DeArmas v. People of State of NY

• Decision Date: 01 October 1992
• Docket Number: No. 90 Civ. 0487 (SWK).,90 Civ. 0487 (SWK).
• Citation: 804 F. Supp. 524
• Parties: Vicente DeARMAS, Petitioner, v. PEOPLE OF the STATE OF NEW YORK, Respondent.
• Court: U.S. District Court — Southern District of New York

804 F. Supp. 524

Vicente DeARMAS, Petitioner, v. PEOPLE OF the STATE OF NEW YORK, Respondent.

No. 90 Civ. 0487 (SWK).

United States District Court, S.D. New York.

October 1, 1992.

Vicente DeArmas, pro se.

Tyrone Mark Powell, Asst. Atty. Gen., New York City, for respondent.

ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION

KRAM, District Judge.

This Court has received and reviewed the Report and Recommendation issued by Magistrate Judge Grubin dated February 19, 1991 in the above-captioned action. No timely objections to the Report and Recommendation have been made by the parties to this action. See Fed.R.Civ.P. 72(b). The Court has considered the Report and agrees with its recommendation to deny petitioner's application for a writ of habeas corpus. Accordingly, it is hereby

ORDERED that the Report and Recommendation issued by Magistrate Judge Grubin dated February 21, 1991 is accepted in accordance with 28 U.S.C. § 636(b); and it is further

ORDERED that petitioner's application for a writ of habeas corpus is denied.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE SHIRLEY WOHL KRAM

GRUBIN, United States Magistrate Judge:

Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction entered upon a jury verdict in the New York State Supreme Court, New York County, for criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)) (McKinney 1989). On March 25, 1988, he was sentenced to a prison term of three and one-half to seven years to be served concurrently with a sentence of one to three years for violating the conditions of probation imposed upon him in an earlier case and consecutively with a sentence of one and one-half to three years for bail jumping in the instant case.

On June 15, 1989, the Appellate Division, First Department, affirmed the judgment of conviction without opinion, People v. DeArmas, 151 A.D.2d 1053, 544 N.Y.S.2d 405 (1st Dept.1989). On August 17, 1989, leave to appeal to the New York State Court of Appeals was denied by Judge Hancock, People v. DeArmas, 74 N.Y.2d 807, 546 N.Y.S.2d 565, 545 N.E.2d 879 (1989).

The issues presently before the court are whether petitioner was denied the effective assistance of counsel and whether the sentence imposed upon him by the trial court was excessive. I recommend that your Honor deny the petition for the reasons that follow.

FACTUAL BACKGROUND

Petitioner's conviction arises from an argument with his girlfriend on a street during the course of which he brandished a loaded pistol. Viewing the facts in the light most favorable to respondent, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir.1986), the evidence at trial established the following:

Between 11 p.m. and midnight on February 1, 1986 Mr. Willie Ford was in his home "watching t.v. and listening to the altercations going on in the street" when he heard and observed through a window petitioner and a woman embroiled in a loud argument on the street directly in front of his house (Tr. 13-17).¹ The street was lighted by a street light near the front of Mr. Ford's house (Tr. 17, 39). A second man was also present outside and was standing near petitioner and the woman (Tr. 15). Petitioner was approximately twenty to thirty feet from Mr. Ford (Tr. 17-18). Mr. Ford saw petitioner pull out a pistol from his coat pocket and, during the course of the argument, "swing it back and forth" for a period of ten or fifteen minutes (Tr. 18-21). According to Mr. Ford, petitioner did not point the gun directly at the woman (Tr. 21). He then saw petitioner place the pistol on the ground near the left rear tire of a car parked immediately next to where he was standing (Tr. 27, 28, 55), and three to five seconds thereafter saw a police patrol car arrive on the scene (Tr. 29-30), at which time Mr. Ford telephoned 911 to inform the officers in the patrol car that petitioner had hidden the gun under the car (Tr. 30-31). Shortly thereafter, a second patrol car arrived and the officers from that patrol car immediately looked under the parked car, where they found the gun (Tr. 31-33, 54-55). The gun was loaded (Tr. 56). After speaking with the additional man who had witnessed the argument, the police officers in the second car, Officers Henry and Connolly, placed petitioner under arrest (Tr. 78).

Ground One

Petitioner's first claim is that his right to the effective assistance of counsel, guaranteed by the Sixth Amendment, was violated.

The Supreme Court set forth the standards for evaluating a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and has reaffirmed them in Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985), Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986) and Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986). See also United States v. Perez, 904 F.2d 142, 151 n. 3 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 270, 112 L.Ed.2d 226 (1990); Tsirizotakis v. LeFevre, 736 F.2d 57, 62-63 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984); Matos v. Miles, 737 F.Supp. 220, 221 (S.D.N.Y.1990); Arce v. Smith, 710 F.Supp. 920, 924-25 (S.D.N.Y.), aff'd, 889 F.2d 1271 (2d Cir.1989), cert. denied sub nom. Arce v. Berbary, 495 U.S. 937, 110 S.Ct. 2185, 109 L.Ed.2d 513 (1990). Because the purpose of the Sixth Amendment's requirement of effective assistance of counsel is to ensure a fair trial, "the essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S. at 374, 106 S.Ct. at 2582. See also Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2063; United States v. Ditommaso, 817 F.2d 201, 215 (2d Cir.1987). See United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990); Arocena v. United States, 721 F.Supp. 528, 534 (S.D.N.Y.1989), aff'd, 902 F.2d 1556 (2d Cir.), cert. denied, 496 U.S. 938, 110 S.Ct. 3219, 110 L.Ed.2d 666 (1990).

The Court explained in Strickland that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating two elements. See also United States v. Aiello, 900 F.2d 528, 532 (2d Cir.1990); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir.1990); Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987); Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir.1984), cert. denied, 470 U.S. 1056, 105 S.Ct. 1765, 84 L.Ed.2d 826 (1985); Udzinski v. Kelly, 734 F.Supp. 76, 82 (E.D.N.Y.1990); Benedict v. Henderson, 721 F.Supp. 1560, 1562 (N.D.N.Y.1989), aff'd, 904 F.2d 34 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990); Arocena v. United States, 721 F.Supp. at 533; Lawson v. United States, 648 F.Supp. 378, 380 (S.D.N.Y.1986). First, he must show not simply that his counsel erred, but that the errors were not within the realm of reasonableness under the professional norms prevailing at the time of trial. Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. Although the Court has not established specific guidelines for evaluating the reasonableness of counsel's actions, there is to be applied a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel has "made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. A petitioner "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). See also Mills v. Scully, 826 F.2d 1192, 1197 (2d Cir.1987); Cuevas v. Henderson, 801 F.2d at 589-90.

The Second Circuit has repeatedly instructed that "we will not second-guess trial counsel's defense strategy simply because the chosen strategy has failed," United States v. Ditommaso, 817 F.2d at 215; see also United States v. Aiello, 900 F.2d at 532-33; Mills v. Scully, 826 F.2d at 1197; Cuevas v. Henderson, 801 F.2d at 590; Trapnell v. United States, 725 F.2d 149, 155 (2d Cir.1983), and this court has stated:

The general rule is that habeas relief will not be granted where it is shown only that there have been tactical or strategical errors of counsel, or that the case could have been better tried. Rickenbacker v. Warden, 550 F.2d 62, 66 (2d Cir.1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977); United States ex rel. Pugach v. Mancusi, 310 F.Supp. 691, 716 (S.D.N.Y.1970), aff'd, 441 F.2d 1073 (2d Cir.), cert. denied, 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88 (1971).

Healey v. New York, 453 F.Supp. 14, 16-17 (S.D.N.Y.1978). See also Cuevas v. Henderson, 801 F.2d at 590; Journet v. Coombe, 649 F.Supp. 522, 524 (S.D.N.Y. 1986).

Second, the petitioner must show that his attorney's performance prejudiced his defense. Thus, if a petitioner can establish that his counsel's performance fell below the prevailing professional norms, he must also show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. See also Kimmelman v. Morrison, 477 U.S. at 375, 106 S.Ct. at 2582; United States v. Jones, 900 F.2d 512, 519 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 59, 112...