Ortiz v. N.Y.S. Parole in Bronx, N.Y.

• Decision Date: 10 November 2009
• Docket Number: Docket No. 07-2299-pr.
• Citation: 586 F.3d 149
• Parties: Abel ORTIZ, Petitioner-Appellant, v. N.Y.S. PAROLE IN BRONX, N.Y., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

586 F.3d 149

Abel ORTIZ, Petitioner-Appellant, v. N.Y.S. PAROLE IN BRONX, N.Y., Respondent-Appellee.

Docket No. 07-2299-pr.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2009.

Decided: November 10, 2009.

Susan D. Fitzpatrick, Law Offices of Susan D. Fitzpatrick, Esq., Red Hook, N.Y., for Petitioner-Appellant.

Jodi A. Danzig, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, N.Y., for Respondent-Appellee.

Before: KEARSE, SACK, and LIVINGSTON, Circuit Judges.

DEBRA ANN LIVINGSTON, Circuit Judge:

Petitioner Abel Ortiz ("Ortiz") appeals from the decision of the United States District Court for the Southern District of New York (Preska, J.), denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in New York State Supreme Court, New York County (Fried, J.), Ortiz was convicted of seven counts of riot in the first degree, in violation of N.Y. Penal Law § 240.06, and seven counts of assault in the second degree, in violation of N.Y. Penal Law § 120.05(6). On appeal to this Court, Ortiz claims that the district court erred in denying his petition because the New York courts' interpretation of the New York riot statute, N.Y. Penal Law § 240.06, deprived him of the right to fair notice under the Due Process Clause of the Fourteenth Amendment. See Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir.2008) ("[A] conviction is invalid under the Due Process Clause if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited ...." (quoting United States v. Williams, ___ U.S. ___, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008)) (internal quotation marks omitted)). We affirm the judgment of the district court.

BACKGROUND

On June 11, 2000, following the Puerto Rican Day Parade, a large crowd of young men gathered near an entrance to Central Park at Central Park South and Sixth Avenue. While entering and exiting the park at that location, women were surrounded by groups of men, who sprayed them with water and groped them, both over and under their clothes. See Pet'r's App. Div. Br. 3. In some instances, the victims had their clothes torn off, exposing their breasts and vaginas. In some cases, the assailants used their fingers to penetrate the women's vaginas and anuses. Some victims were punched, kicked, and dragged along the ground. Others had their property stolen. See App. 12. The following is a recitation of the facts surrounding this riot shown at Ortiz's trial and set forth in the light most favorable to the prosecution. See Ponnapula v. Spitzer, 297 F.3d 172, 176 (2d Cir.2002).

I. Ortiz's Involvement in the Riot

Several videotapes depicting scenes from the riot placed Ortiz amidst the crowd between 5:19 p.m. and 5:47 p.m. At various times, Ortiz was clapping, smiling and pumping his arm. One video recording captured him waving his arm at 5:40 p.m. and pointing down a road. Ortiz can be heard to tell the crowd, "Hey everybody be quiet, the bitch is over there down the road by the pole." Tr. 1217-18. As a result, other individuals pointed and "headed in that direction." Tr. 1219. Ortiz was also placed at the scene when a "whole bunch of people [were] rushing towards ... a certain point." Tr. 1221. He is captured in a different video recording "reach[ing] back and grab[bing]" an unidentified woman from behind. Tr. 1227. Ortiz is shown "facing forward and reaching back and smiling and grabbing her breast." Id.

Video evidence also depicted Ortiz smiling and clapping at the scene of the riot when victims who testified at trial were also present. E.R. testified that she was surrounded by a large group of men, that several of them pulled down her top, exposing her breasts, and that they touched her breasts and buttock and penetrated her vagina until she was able to break free from the crowd. M.R. testified that a group of approximately twenty men surrounded her, doused her with water, and ripped her tank top. She alleged that Ortiz himself grabbed her breasts and then restrained her while others groped her body and penetrated her vagina and rectum with their fingers.¹ Video evidence placed Ortiz at the scene with both women.

Testifying on his own behalf, Ortiz acknowledged that men in the crowd were attacking women, including both E.R. and M.R. He further admitted that he was present in the crowd during these attacks. He testified, however, that he was trying to assist E.R. and M.R. and that he did not participate in any of the attacks. Ortiz acknowledged pointing out women to the men in the crowd and saying, "[S]hush, be qu[iet], look at them ... bitch, she is over there by the pole." Tr. 2316. He testified, however, that he made the comment not to encourage further incidents but to divert rioters from a woman under threat of attack. Finally, Ortiz testified that at 5:47 p.m. he "noticed [the situation was] getting out of control," and he left the park. Tr. 2225.

Twenty other women testified that they were molested by crowds of men in ways similar to the attacks on E.R. and M.R. Some of these victims were attacked before Ortiz allegedly left the scene. For example, Ortiz conceded in his brief to the Appellate Division that video evidence placed him at the scene when K.H. and R.A.L. were attacked. See Pet'r's App. Div. Br. 12-13. K.H. testified that, as she was exiting the park at around 5:30 or 5:45 p.m., a group of approximately twenty to thirty men surrounded her and her companions, dousing them with water. Approximately five men grabbed K.H.'s breasts, clothing, and buttocks, and she fell to the ground, whereupon more men grabbed her exposed breasts. As K.H. escaped from the crowd, yet additional men grabbed her breasts and buttocks. R.A.L., a friend of K.H. and a companion of hers that day, testified that she was separated from K.H. and her other friends by the same large group of men. The crowd attempted to remove R.A.L.'s clothing, and at one point her shirt was pulled down and her breasts exposed. R.A.L.'s breasts and buttocks were groped multiple times over her clothing.

The first degree riot counts lodged against Ortiz required the State to establish, among other things, that "a person other than one of the [riot] participants suffer[ed] physical injury." N.Y. Penal Law § 240.06 (McKinney 2000). Of the seven victims named in the counts charging Ortiz with first degree riot, five testified that they were attacked subsequent to Ortiz's claimed time of departure. For example, Y.T. and S.T., newlyweds honeymooning in the United States, exited Central Park around 6:00 p.m. Y.T. testified that twenty to forty men surrounded them and sprayed them with water. A group of men threw him to the ground and kept him there, while others surrounded S.T. S.T. testified that she was surrounded by men, pushed to the ground, and that she had her skirt and underwear removed. They touched her breasts and vagina. She suffered injuries, including scratches above her chest and a laceration near her vagina. J.D., also named in a riot count, was attacked sometime after 6:00 p.m. Her assailants ripped off her shirt and took a necklace she was wearing. During the fracas, J.D., then fifteen years old, sprained her knee and suffered bruises and scratches. Similarly, H.I., a college student visiting from England, was attacked twice between 6:05 p.m. and 6:30 p.m. She was punched in the face as assailants removed her shirt, touched her exposed breast, and reached inside her shorts to penetrate her anus and vagina. H.I. lost about $200 in cash and a bank card when assailants left with her handbag.

Based on the time estimates they provided, two of the victims named in the first degree riot counts may have been attacked either before or after 5:47 p.m., when Ortiz claims to have left the park. M.T. stated that more than forty men surrounded her, and that many touched her breasts, buttocks, and vaginal area, both over and under her clothing, sometime between 5:30 p.m. and 6:00 p.m. She suffered a cut to her back and received bruises on her arms and legs and scratches on her chest, neck, and buttocks as a result of the assault. S.W., a young mother from New Jersey, was attacked sometime between 5:00 p.m. and 6:15 p.m. She was kicked in the shin when, surrounded by a crowd of men who were touching her breasts and buttocks, she tried to push away one who was attempting to put his hand inside her pants. S.W. suffered a bruised and swollen leg.

II. State Court Proceedings

Ortiz was indicted for seven counts of riot in the first degree, in violation of N.Y. Penal Law § 240.06. He was also charged with seven counts of assault in the second degree, in violation of N.Y. Penal Law § 120.05(6), for causing injury in furtherance of the commission of a felony, to wit, riot in the first degree. Finally, Ortiz was indicted for four counts of sexual abuse in the first degree, in violation of N.Y. Penal Law § 130.65(1), for sexual contact with M.R.

The scope of Ortiz's criminal liability for actions taken by rioters after his alleged departure was an issue during his trial. In particular, the defense argued at the charge conference that "in this particular situation, I think what we have to say, is when somebody is no longer there they are not responsible...." Tr. 2757. The court disagreed, stating that "[w]hat I think I will say is ... once one joins a riot, that person remains criminally liable for the conduct set in motion until he withdraws 8...." Tr. 2764.² When instructing the jury on this issue, the court first read the text of the riot statute, which, at the time of Ortiz's conduct, stated as follows:

A person is guilty of riot in the first degree when (a) simultaneously with ten or more other persons he engages in tumultouous [sic] and violent conduct and...