Bien v. Smith

Decision Date19 April 2008
Docket NumberNo. 05CV6118 (ADS)(ARL).,05CV6118 (ADS)(ARL).
Citation546 F.Supp.2d 26
PartiesStephen BIEN, Petitioner, v. Joseph T. SMITH, Superintendent, Shawangunk Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Stephen Bien, Wallkill N.Y., Pro Se Petitioner.

Thomas J. Spota, District Attorney of Suffolk County, by Guy Arcidiacono, Assistant District Attorney, Riverhead, NY.

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, District Judge.

Presently before the Court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Stephen Bien ("Bien" or the "Petitioner"). For the reasons that follow, the petition is denied.

I. BACKGROUND
A. Procedural History

Stephen Bien petitions this Court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. The Petitioner seeks relief from his December 2, 1999 conviction, following a jury trial in County Court, Suffolk County, New York (Ohlig, J.), on one count of murder in the second degree pursuant to N.Y. Penal Law § 125.25(1), also known as "intentional murder." The Petitioner was found not guilty on one count of "depraved indifference murder" pursuant to N.Y. Penal Law § 125.25. The charges arose out of the June 6, 1998 death of Janet Rispoli Zachman ("Rispoli").

After his conviction on December 2, 1999, the Petitioner was sentenced to an indeterminate term of 25 years to life imprisonment. The New York Appellate Division, Second Department, affirmed the conviction, People v. Bien, 1 A.D.3d 442, 766 N.Y.S.2d 895 (2d Dep't 2003), and the New York Court of Appeals denied leave to appeal, People v. Bien, 1 N.Y.3d 624, 808 N.E.2d 1282, 777 N.Y.S.2d 23 (2004). In addition, the Appellate Division, Second Department denied Bien's application for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, the 2003 affirmance of his conviction. People v. Bien, 12 A.D.3d 615, 784 N.Y.S.2d 376 (2d Dep't 2004). The New York Court of Appeals also denied leave to appeal this decision. People v. Bien, 4 N.Y.3d 796, 828 N.E.2d 88, 795 N.Y.S.2d 172 (2005).

On December 28, 2005, Bien filed a § 2254 petition pro se, alleging: (1) that the trial court improperly refused to instruct the jury on the lesser included offense of manslaughter in the first degree; (2) that his right to a complete defense was violated by the trial court's refusal to allow him to present evidence of extreme emotional disturbance and to instruct the jury on the defense of extreme emotional disturbance; (3) lack of an impartial forum; (4) prosecutorial misconduct; (5) ineffective assistance of trial counsel; and (6) ineffective assistance of appellate counsel.

The Petitioner submitted a memorandum in support of his habeas corpus petition. In the memorandum, the Petitioner alleges that he was deprived of the right to present a complete defense because the trial court refused to allow defense psychologist, Dr. Jaime Greene, to give her opinion of whether the petitioner was acting under an extreme emotional disturbance at the time of Rispoli's death. In addition, the Petitioner alleges that the trial court erred when it refused to charge the jury regarding the affirmative defense of extreme emotional disturbance.

Further, the Petitioner claims that the trial court erred when it refused to charge the jury on the lesser included offense of manslaughter in the first degree. The Petitioner contends that the evidence submitted at trial, when viewed in a light most favorable to him, supports a view that the Petitioner did not intend to kill Rispoli, but instead intended only serious physical injury. The Petitioner argues that the trial court's refusal to charge manslaughter violated his Sixth and Fourteenth Amendment Constitutional rights.

The Petitioner also contends that both his trial and appellate counsel were ineffective. Specifically, the Petitioner states that his appellate counsel failed to raise several key issues, including the ineffective performance of the Petitioner's trial counsel, the denial of an impartial forum, and prosecutorial misconduct. In addition, the Petitioner claims that his trial counsel was wholly ineffective because he failed to question the arresting officer regarding his conclusion that the Petitioner was not intoxicated at the time of his arrest without the benefit of a blood alcohol content test. In addition, the Petitioner claims that his trial counsel was ineffective because he failed to object to the apparent bias of the trial judge and inflammatory statements made by the prosecutor.

Finally, the Petitioner contends that he was denied an impartial forum because of the trial judge's alleged bias and the alleged inappropriate conduct by the prosecutor. In particular, the Petitioner points to the prosecutor's cross-examination of him, where she asked "At what point does your memory fail on the night Rispoli was murdered?" When the defense objected to the use of the term "murder," the court responded that "she didn't die naturally. ... It wasn't a natural death, right? We heard from the medical examiner who testified when they conducted the medical examinations. Overruled. Continue." Further, the Petitioner states that the trial judge exhibited bias at pre-trial hearings by telling defense counsel:`You should tell your client to start remembering what happened that night." Finally, the Petitioner states that the bias of the trial court was further evidenced by the court's statement at sentencing that "the charade is over Mr. Bien the jury didn't believe you, nobody believes you."

The Petitioner further claims that the prosecutor made inflammatory and prejudicial remarks at the trial. Specifically, the Petitioner alleges that the prosecutor's closing statement was prejudicial: "It's been about excuses, mainly in the form of a large vodka bottle or any other bottle that this defendant has been hiding behind his entire life. ... This case has never been about a man, and when I talk about him I truly use the word man loosely." Further, the Petitioner contends that the prosecutor made inappropriate comments at sentencing: "You are an individual who, your whole life, have committed action and violence against the people around you and have used the alcohol bottle to hide behind." Finally, the Petitioner contends that the prosecutor wrongfully harped on the missing receipt for vodka purchased by the Petitioner on the night of Rispoli's death and also presented false evidence by offering expert testimony by an individual unqualified in the area of his testimony.

B. Factual Background

On June 6, 1998, Janet Rispoli was killed by her boyfriend, Stephen Bien at the apartment the couple shared with Rispoli's children Marie, 22, and Nicole, 14, and Marie's 10-month old daughter, Kelly, in Holbrook, New York. Rispoli and Bien had been a couple for approximately one year and had lived together for six months. On the day of Rispoli's death, the couple had been arguing and Rispoli returned the engagement ring that Bien had given to her in April of the same year.

1. Pertinent Portions of the Prosecution's Case
a.) Testimony of Monica Baran

Monica Baran testified that she met Janet Rispoli in Alcoholics Anonymous ("AA") and had been her AA sponsor for approximately six and a half years prior to her death. (Tr. 505-06).1 Baran testified that Rispoli had three children, and lived in Holbrook, New York with two of her children, Marie and Nicole. (Tr. 507-08). Baran stated that Rispoli and Bien had been dating for about a year and the two had arguments during their relationship, which involved "physical confrontations." During an argument which occurred about one month before Rispoli's death on June 6, 1998, the petitioner "jumped on her and she had to kick him off." (Tr. 510-11). Baran stated that she spoke to the petitioner about this incident and told him that it was "not sober behavior and was not acceptable to Janet." (Tr. 511). Baran also testified that the petitioner was "very jealous of the children and very possessive of Janet." (Tr. 511).

One June 6, 1998, in the afternoon, Baran was on the telephone with Rispoli while Rispoli and the petitioner were involved in an argument. Baran testified that Rispoli called her after the petitioner asked Rispoli to return the engagement ring he had given her in April. Baran stated that after Rispoli handed the ring to the petitioner, she heard him say "Are you sure you don't want to wear it anymore?" (Tr. 513). Baran stated that based on the tone in his voice at the time of this exchange, she perceived the Petitioner to be "very angry." (Tr. 513). Baran heard Rispoli tell Bien not to return home, but to return another day to pick up his belongings. (Tr. 515). Baran testified that Bien "mumbled something in an angry voice." (Tr. 516). Baran stated that she recomnmomended to Rispoli that she "have people with her that evening" because she was concerned for her friend's safety. (Tr. 516).

In the days preceding June 6, 1998, Baran stated that she had several telephone conversations with Rispoli. The couple was scheduled to have dinner at Bien's mother's house in honor of his grandmother's birthday. (Tr. 513). Rispoli did not want to go, and wanted to stay home with her daughter and granddaughter. Baran stated that Bien was angry about Rispoli spending time with her children and her granddaughter. (Tr. 513-14).

Baran received another call from Rispoli at about 10 pm on June 6, 1998. (Tr. 517). Baran testified that Rispoli told her that Bien was outside her house on the hood of his car and had been drinking. (Tr. 518). Baran testified that Rispoli seemed frightened and she told her to hang up and call 911. (Tr. 518). Baran waited approximately five minutes, and then called Rispoli back. (Tr. 518). Baran testified that she heard the dogs barking and then heard Rispoli say "he's in the house." (Tr. 519). Baran heard Rispoli's...

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