Corbin v. Perez
| Decision Date | 26 June 2015 |
| Docket Number | 14cv3200 (ER)(MHD) |
| Parties | THOR CORBIN, Petitioner, v. ADA PEREZ, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT & RECOMMENDATION
Pro se petitioner Thor Corbin seeks a writ of habeas corpus to challenge his February 23, 2009 conviction in the New York State Supreme Court, Bronx County, on one count of assault in the first degree. (New York Penal Law § 120.10(1)). He is currently serving a fourteen-year sentence based on that conviction.
The petition, filed on April 22, 2014,1 advances a single claim, that petitioner was denied the effective assistance of trial counsel when his attorney failed to move for a trial order of dismissal pursuant to New York State Criminal Procedure Law section 290.10 on the ground that the trial evidence was not legallysufficient to establish that the victim had suffered a "serious physical injury," as required for first-degree assault.2 (Pet. ¶ 12). Respondent opposes this petition. For the reasons set forth below, we recommend denying the petition.3
The case against Mr. Corbin stemmed from a shooting incident on the evening of August 27, 2007, when an individual identified as Mr. Corbin fired multiple shots from a passing automobile at Malcolm Scott, a high-school student, outside Mr. Scott's Bronx home. (Declaration of David P. Johnson ( ), Ex. 2, Respondent's Brief on Direct Appeal, 7-10). One bullet struck Mr. Scott in the lower back, just above his buttocks, resulting in his being transported by ambulance to a trauma center, where he was treated before being released on August 29, 2007. (Id. at 10-11).Mr. Scott required a cane to assist his walking after the shooting. (Id. at 12).
In the wake of this incident, a Bronx Country grand jury returned an eleven-count indictment against Mr. Corbin. It charged him with attempted murder in the second degree, assualt in the first degree, assault in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), reckless endangerment in the first degree, criminal possession of a weapon in the fourth degree, possession of ammunition, reckless endangerment in the second degree, and assault in the third degree. (Resp. Decl. Ex. 2 at 2-3).
At a pretrial hearing testing the validity of the victim's lineup identification of his assailant, the police investigators provided evidence to support their contention that petitioner was so well known to the victim that he was "impervious to police suggestion" during an identification lineup. (Def. Decl. Ex. 2 at 15)(quoting People v. Rodriguez, 79 N.Y.2d 445, 452 (1992)). This evidence included a detective's testimony that Mr. Scott had had dealings with petitioner in mating their two dogs and hadsubsequently seen petitioner very frequently in the neighborhood. (Id. at 14). The trial court (the Hon. Michael A. Gross, S.C.J.) denied Mr. Corbin's motion to suppress, holding that Mr. Scott was sufficiently familiar with Mr. Corbin that he was indeed impervious to police suggestion at the lineup. (Id. at 16-17).
The State's evidence at trial showed that petitioner and the victim were well known to each other, starting with a street meeting in which the two men had allowed their two dogs to mate. (Tr. 527:4-534:20). Mr. Scott testified that after the dogs had mated, he continued to see petitioner regularly in his neighborhood -- as often as four or five times a week -- and most commonly saw Mr. Corbin driving a silver Chevy Impala with distinctive rims and loud music playing. (Id. at 537:20-538:6). Mr. Scott further testified that they had had a subsequent conversation, in which Mr. Corbin had promised him a puppy from the litter, but claimed that he could not yet get close to the puppies because the mother was too protective. (Id. at 537:9-546:22).
On August 27, 2007, Mr. Corbin stopped and exited his car to confront Mr. Scott for purportedly maligning him to others regarding the puppies, and then punched Mr. Scott in the face. (Id. at 549:10-550:2). The two men then engaged in a fist fight, afterwhich they separated, with petitioner driving off and Mr. Scott walking home. (Id. at 557:1-558:18).
At least an hour after the altercation, Mr. Scott was sitting with a neighbor on the ledge of his apartment building recounting his earlier confrontation with Mr. Corbin. (Id. at 566:3-567:17). At this time, Mr. Scott testified, he observed Mr. Corbin drive past in the silver Impala two or three times. (Id. at 571:1-25). Mr. Scott testified that petitioner was well known to him and that he clearly recognized Mr. Corbin driving past him several times that night. (Id. at 574:14-25). He recounted that it was a hot evening, that petitioner was driving with the car window down, and that there was sufficient lighting on the street to identify petitioner at the wheel. (Id. at 569:1-25; 577:3-11).
Shortly after this, petitioner's distinctive Impala again passed, but this time two individuals unknown to Mr. Scott were in the car, not petitioner. (Id. at 580:16-581:4). A second car passed, and then a third car followed and slowed down significantly as it passed in front of Mr. Scott. (Id. at 581:5-13). Mr. Scott paid close attention to this third car, he explained, because it was slowing down near him, and he saw Mr. Corbin, alone, driving that car, which he described as a fuchsia Mitsubishi. (Id. at582:2-21). He testified that he clearly recognized petitioner driving that third car. (Id. at 585:6-18). The two men made eye contact, whereupon, Mr. Scott testified, petitioner fired shots at him, hitting him in the back with the third shot. (Id. 586:20-587:4).
Mr. Scott reported that after the shooting he was transported to a hospital where he spent three days. (Tr. 595:16-25). When he left, because he had difficulty walking, he was given a cane. (Id. at 598:23-599:6). Petitioner's trial took place over a year after the shooting. During his testimony, Mr. Scott reported that he was still "not [] able to be as active as [he] used to be because sometimes [his] hip hurts" as a result of the injury, although in other respects his life was "not really" affected by the incident. (Tr. 625:12-14).
The prosecution also proffered testimony from the Emergency Medical Technician ("EMT") who had treated Mr. Scott at the scene, and the emergency-room physician who had treated Mr. Scott when he was brought to the hospital on the evening of the incident. (Tr. 348-64; 767-82). The EMT testified that the victim had "minimal bleeding" from the bullet entry wound, but that he was treated with a protocol that assumes serious injury because it was a gunshotinjury with no exit wound. (Tr. 355:1-19). The EMT further testified that he was "very surprised" that Mr. Scott's gunshot had not resulted in a more serious medical outcome, because there is a lot of opportunity for a bullet to injure vital organs and "cause a lot of damage" as it travels through the body. (Id. at 356:6-24).
The hospital physician testified that Mr. Scott was in some pain by his right hip, where the bullet had lodged, and that he was provided with a cane at discharge and a rehabilitation consult because of the pain he experienced from the wound. (Id. at 777:25-779:6). The doctor also testified that if the angle of the bullet had been different or if the bullet had struck in a different spot, Mr. Scott would likely have suffered paralysis and pain from a spinal injury, required multiple surgeries because of injury to a vital organ, or might even have died. (Id. at 780:2-11; 782:7-9). She concluded her testimony by stating that "I don't think he had any life threatening injuries from the actual injury he sustained." (Id. at 782:1-4).
During the charging conference held on January 29, 2009, the prosecutor argued in favor of submitting to the jury not only the attempted murder and first-degree assault charges, but also the lesser charges of second-degree assault and attempted first-degreeassault, because there was a "potential view" of the evidence that the injury Mr. Scott sustained did not "rise to the level required by the Penal Law for serious physical injury." Mr. Corbin's attorney objected to all charges other than the attempted-murder count, in part because he did not "believe in a reasonable view of the evidence that this was a serious physical injury." (Tr. 789-92). Notwithstanding the defense counsel's objections, the judge determined that the evidence allowed for either first-degree or second-degree assault, as well as for attempted first-degree assault, depending on how the jury interpreted the evidence from the emergency-room physician regarding the severity of the victim's injury. (Id. at 792:22-793:7). Ultimately the court submitted four counts to the jury -- attempted murder in the second degree, assault in the first and second degrees, and attempted assault in the first degree. (Id. at 887:3-894:23).
At the conclusion of the charging conference, the attorney for Mr. Corbin explicitly indicated that he would defer moving for dismissal until the following day. (Tr. 797:3-6). He also implied earlier in the conference that he would make such a motion related to the sufficiency of the evidence, stating that he did "not have an argument in opposition [to assault in the first degree] if the Court denies the motion to dismiss on prima faci[e]." (Id. at790:7-13). In the event, defense counsel made no such motion.
On February 23, 2009 the jury acquitted petitioner of attempted murder but convicted him of first-degree assault. (Tr. 925:10-13). At the apparently contentious sentencing hearing on March 23, 2009,4 the court imposed a sentence of fourteen years incarceration on petitioner, who was a second felony offender facing a minimum of eight and a maximum of 25 years. (Resp. Decl. Ex. 2 at 32).
On May 18, 2011, petitioner, represented by coun...
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