Matarese v. LeFevre, 736

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation801 F.2d 98
Docket NumberNo. 736,D,736
PartiesVito MATARESE, Petitioner-Appellant, v. Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, and Robert Abrams, Attorney General, State of New York, Respondents-Appellees. ocket 83-2389.
Decision Date12 September 1986

Michael Young, New York City, for petitioner-appellant.

Robin Bernstein, Asst. Dist. Atty., Brooklyn, (Elizabeth Holtzman, Dist. Atty., Kings County, Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, on the brief), for respondents-appellees.

Before VAN GRAAFEILAND, NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Vito Matarese, a New York State prisoner convicted of third-degree robbery, appeals from a final judgment of the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, dismissing his petition for a writ of habeas corpus which contended, inter alia, that the trial judge's main and supplemental jury charge that "a person is presumed to intend the natural consequences of his act, unless the act was done under circumstances or conditions which preclude the existence of such intent," unconstitutionally shifted to Matarese the burden of proof on the issue of intent. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Matarese also appeals from an order of the district court dismissing his motion pursuant to Fed.R.Civ.P. 60(b)(6) for relief from the judgment. Respondents Eugene LeFevre, et al. (the "State"), contend that the appeal should be dismissed for lack of appellate jurisdiction and that in any event the appeal lacks merit.

We conclude that we lack jurisdiction to review the judgment dismissing the petition, that we have jurisdiction to review the order denying Matarese's Rule 60(b)(6) motion for relief from the judgment, and that the order denying Rule 60(b)(6) relief should be affirmed.


In June 1978, after a jury trial on charges of, inter alia, first-degree robbery and petit larceny, Matarese was convicted in New York State Supreme Court, Kings County, of third-degree robbery and was sentenced to a prison term of fifteen years to life. Matarese's principal defense was that he had not had larcenous intent.

A. The Evidence and the Trial Arguments

At the trial, the State presented evidence that, on the afternoon of October 12, 1976, after consuming five rum-and-coke drinks in a period of fifteen or twenty minutes in a bar in Brooklyn, New York, Matarese became involved in an argument with one of the other patrons, Clifford Ely, who either fell or was knocked to the floor by Matarese. When Louis Schobel, a friend of Ely, approached, Matarese ordered him to go into the bathroom. When Schobel tried to hit Matarese, Matarese lifted his coat, exposing what appeared to be a gun, and ordered Schobel, another patron, and the bartender into the bathroom. Ely remained on the floor. As the others were walking towards the bathroom, an off-duty police officer entered the bar. Matarese grabbed his arm and told him to go into the bathroom. A third patron was already in the bathroom. Matarese told them all not to come out or they would be shot. He

then took $140 from the bar's cash register and left

In defense, Matarese's attorney argued that, for two reasons, the evidence was insufficient to establish that Matarese had had the intent to commit a robbery. First, emphasizing that Matarese had never announced a robbery or attempted to take anything from any of the individuals in the bar, counsel suggested that Matarese had ordered the patrons and the bartender into the bathroom to protect himself after Schobel had threatened to hit him, and that Matarese had taken the money merely as an afterthought. Second, counsel argued that Matarese had not been sober enough to be capable of forming the requisite intent to commit a robbery. He stressed that Matarese had consumed five rum-and-cokes in a period of fifteen minutes, had argued with another patron, and on his way out, had stumbled, dropped a bottle of scotch and some coins, and been unable to pick them up.

B. The Trial Court's Instructions

Prior to the jury's deliberations, the trial court instructed the jury on first-degree robbery, third-degree robbery as a lesser included offense of first-degree robbery, and petit larceny. Under New York law, all of these offenses required proof of larcenous intent. The court informed the jury that "a person steals property and commits larceny when with the intent to deprive another of property he wrongfully takes such property from an owner thereof," and that "a person acts with intent to deprive another of property when his conscious aim or objective is to deprive another of property." The court further instructed the jury as follows on the element of intent:

I charge you that intent is an essential element in every crime. Intent is the operation of the mind whereby a person aims to obtain the desired natural consequences or effects of his act. It is a mental operation that cannot be photographed. It is silent, secret and invisible to the human eye. The intent of a person may, however, be ascertained from his conduct, his speech or from a combination of both. Generally a man's acts and outward manifestations reveal an expression of his mind. It is not always by words alone that a man expresses his intention and I am sure that you have heard the old adage that actions speak louder than words.

It is a fundamental rule in evidence that a person is presumed to intend the natural consequences of his act, unless the act was done under circumstances or conditions which preclude the existence of such intent. If you find that the defendant committed the act charged, then you must decide whether or not from all of the established facts, speech, conduct and actions of the defendant, he intended the crime.

Under the Penal Law, intent is defined as follows: "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct."

As I have just advised you, in order to find the defendant guilty of the crimes charged in the indictment, the People must prove his guilt beyond a reasonable doubt as to each essential element of the crime and one of the essential elements is intent.

There has been testimony at the time of the crimes charged to him and alleged that the defendant committed, he had had several drinks. If you are satisfied from the evidence that he did in fact commit the crimes charged, then you must consider whether or not he was in such a mental state that he could not form an intent to commit the acts. Was he in fact intoxicated? If he was not, then you need not consider this at all. If he was, then I charge you that intoxication is not in and of itself a defense to a criminal charge but evidence of intoxication, if you believe it and accept it, must be considered by you for the purpose of determining whether or not the defendant was in such a mental state at the time immediately prior to and at the

time of the acts being committed so that he could not form the intent required by law. The question is not whether the defendant was drunk or intoxicated but whether his condition was of such a character that it destroyed the power to form a particular intent, which is a necessary element of the crimes charged

The jury should proceed with caution before arriving at the conclusion that the voluntary intoxication, if the jury believed that he was intoxicated, of the defendant in any way affected his ability to form an intent. In considering this proposition, you should consider the details surrounding the alleged crime, including the details which preceded it and the subsequent acts of the defendant thereafter. It is for you to determine on the basis of the entire testimony whether or not you believe the defendant was intoxicated or in the mental state affecting his ability to form the requisite intent. Then apply the law as I have defined it to you.

(Emphasis added.) The italicized language forms the basis for Matarese's claim that the court improperly shifted to him the burden of proof on the issue of intent.

The judge also instructed the jury as to the nature of the prosecution's burden of proof. He stated that the prosecution always had the burden of proof, that its burden was to prove Matarese's guilt beyond a reasonable doubt, and that the prosecution bore this burden with respect to each essential element of the crime, including the element of intent. The judge stated that the defendant was "clothed ... with a presumption of innocence ... [and] entitled to every inference in his favor which can be reasonably drawn from the evidence." It reminded the jury that the jury was the trier of facts.

Following the charge, defense counsel questioned whether there had been a "specific charge in regard to the necessity to find intent to each and every one of those elements," but did not otherwise object to the intent portion of the court's instructions.

The jury began its deliberations on February 22, 1978, at 10:40 a.m. That afternoon, it requested and received a rereading of, inter alia, the judge's instructions on the elements of the crimes charged. The jury resumed its deliberations at 2:29 p.m. At 4:40 p.m., it returned to the courtroom with a request that the elements of first-degree robbery be explained again and stated, "We would like to have an understanding if the weapon has to be displayed with the intent to rob." After reinstructing the jury on the elements of first-degree robbery, the trial judge continued:

As I told you earlier, intent is an essential element of every crime.

I'll read it to you what I said about intent earlier and redefine it for you. Apparently it's giving you some difficulty.

Intent is the operation of the mind...

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