Petronio v. Walsh

Decision Date14 September 2010
Docket NumberNo. 09-CV-341 (ADS),09-CV-341 (ADS)
PartiesMark PETRONIO, Petitioner, v. James WALSH, Superintendent, Respondent.
CourtU.S. District Court — Eastern District of New York

Jonathan I. Edelstein, Esq., New York, N.Y., for Petitioner.

Kathleen Rice, Nassau County District Attorney, by Tammy J. Smiley, Assistant District Attorney, Margaret E. Mainusch, Assistant District Attorney, for Respondent.

Memorandum of Decision and Order

SPATT, District Judge.

Mark Petronio ("Petronio" or "the Petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, raising various challenges to his state court conviction for murder in the second degree, N.Y. Penal Law § 125.25(2) ("depraved indifference murder"). The Court finds that, in light of the New York Court of Appeals' reinterpretation of Section 125.25(2) in the years following Petronio'sconviction, the evidence offered at his trial was legally insufficient to convict him of depraved indifference murder. His petition is therefore granted and the case is remanded to the state courts for proceedings consistent with this opinion.


On April 24, 2002, Petronio was convicted, after a jury trial in Nassau County Court of murder in the second degree, N.Y. Penal Law § 125.25(2), insurance fraud in the third degree, N.Y. Penal Law § 176.20, and tampering with physical evidence, N.Y. Penal Law § 215.40(2). The charges stemmed from the fatal beating of Jeffrey Walter ("Walter" or "the Decedent") on November 3, 2000.

A. The Fatal Beating of Jeffrey Walter

The following facts are adduced from the instant petition and the underlying record. On November 3, 2000, Jeffrey Walter and his friend, Thomas Giglio ("Giglio"), drove to Mark Petronio's home in Valley Stream, New York, for the purpose of selling the Petitioner a substantial quantity of ecstasy pills. Walter had Giglio drop him off at a local bowling alley, where Petronio agreed to meet him. (Tr. 1401-02.) They returned together to Petronio's house to consummate the deal. (Tr. 1402.)

Once in Petronio's basement, Walter offered him the ecstasy, and Petronio observed that there were far fewer tablets than had been agreed upon. (Tr. 1402-05.) Having been cheated by Walter in the past, Petronio accused him of trying to "rip him off," (Tr. 1405,) and according to Petronio's testimony, Walter then punched him in the head. (Tr. 1406.) In the ensuing struggle, Petronio fell onto a bed and the Decedent landed on top of him. (Tr. 1409.) As the two men wrestled, Petronio was able to free his right arm and retrieve a can of pepper spray from his pocket. (Tr. 1410.)

Petronio then sprayed the Decedent in the face with the pepper spray, causing him to scream in pain. (Tr. 1410.) Because the men were face-to-face, Petronio also managed to get pepper spray in his own eyes. (Tr. 1411.) Petronio testified that because the Decedent was clinging to his leg, he believed that the Decedent still posed a threat, (Tr. 1411-12,) and that he sought to prevent Walter from reaching his bag, for fear that it contained a gun. (Tr. 1411.) He then slammed the Decedent's head against the floor three times and kicked him in the head twice, whereupon the Decedent stopped moving. (Tr. 1411-12.)

Petronio testified that he went to the restroom to wash the pepper spray out of his eyes, and discovered upon returning that the Decedent was not breathing. (Tr. 1413.) He wrapped the Decedent's head in duct tape to stop him from bleeding on the floor and because he did not want to look at the Decedent's face. (Tr. 1415.) He placed the body in a laundry bag and drove in his Jeep to his father's house in Newburgh, New York, to dispose of the remains. (Tr. 1415-20.)

Once there, Petronio's father told him that he would not help him dispose of the body. (Tr. 1421.) Petronio then drove to John F. Kennedy International Airport ("JFK") and left the Jeep in long-term parking. On the night of the incident, Petronio stayed with his then-girlfriend, Christine Riccio ("Riccio"). She testified at the trial that she noticed no injuries on the defendant's body besides a one-inch cut on the back of his hand and a lump on the back of his head. (Tr. 617.)

The following day, Petronio had a friend drive him back to JFK to retrieve the Jeep. (Tr. 1423.) He and the friend then drove the Decedent's body to a home Petronioowned in Patchogue, New York. (Tr. 1424.) Petronio eventually enlisted the help of two laborers to bury the body in the backyard of the Patchogue home. (Tr. 1428-29.) Together, they covered the body with soil and lime. Two weeks later, Petronio installed a concrete patio over the burial site. (Tr. 1430.)

On December 16, 2000, Petronio moved into Riccio's apartment in Astoria, Queens. She testified that a few days later, Petronio returned home late, very upset, and confessed to her that he had killed a man during a fight. (Tr. 619-20.) He said that he did not call the police because there was a large quantity of drugs involved. ( Id.)

Two months later, Riccio had moved in with a new boyfriend, Mark Morella ("Morella"). Morella testified that near the end of February 2001, Petronio called him and demanded that he kick Riccio out of his home. (Tr. 657.) When Morella declined, Petronio threatened to kill him, saying, "[y]ou don't know what I'm capable of, ask Christine." ( Id.)

B. Petronio's Arrest and Subsequent Confessions

Petronio was arrested on March 8, 2001 and transported to Nassau County Police Department Headquarters, where he was interrogated. (Tr. 724.) While in custody, he made a series of evolving statements describing the events of November 3, 2000, the last of which was similar to his testimony at trial in all material respects except one. (Tr. 733-72.) In his final statement to the police, Petronio recalled throwing the Decedent, face-first, into the ground several times and jumping on the Decedent's back and neck with both feet. (Tr. 767-68.)

The medical examiner, Dr. Gerard Catanese ("Catanese"), testified at trial that the Decedent suffered numerous fractures of the bones in his face and neck, and that the vertebrae in his neck had been fully separated during the fight. (Tr. 1103-04.) He also found hemorrhaging in and around the Decedent's neck, indicating that he was alive at the time his neck was broken. (Tr. 1103.) He testified that these injuries were consistent with a tremendous force being applied to the head and neck several times while the victim was lying face down on a hard surface, (Tr. 1105-06,) and that the fractured vertebrae would have likely caused instant death. (Tr. 1108.)

C. Trial Motions and Objections

During the prosecutor's cross examination of Petronio, he offered a series of answers that were either vague, evasive, or outside the scope of the questions. The trial judge instructed Petronio to answer the questions:

The Court: I have told you a dozen times, answer the questions. Okay.
Defendant: Okay. Sorry.
The Court: I don't want any communication.
Mr. Kase: Judge, may I have a moment?
The Court: Do you understand what I'm saying, both of you?
Mr. Kase: Judge-
The Court: I'm trying to get a point across to your client. He's looking at you. I don't want that happening. I want you to concentrate on what I'm saying ...

(Tr. 1591.) At recess, defense counsel moved for a mistrial on the grounds that the Court had "indicated" that counsel was improperly coaching Petronio and that the accusation improperly prejudiced the jury. The Judge denied the motion, but offered curative instructions to the jury to which defense counsel did not object.

At the end of the People's case, Petronio moved to dismiss the depraved indifference murder charge on the grounds that the prosecution had not made out a prima facie case. (Tr. 1162.) The Judge denied the motion summarily, ruling that he believed that "there is ... a reasonable interpretation of the evidence that would establish the essential elements." (Tr. 1163.)

After summation but before the jury charge, Petronio objected to the admission of testimony regarding his threatening phone call to Morella, on the grounds that it was prejudicial. The Judge overruled the objection. (Tr. 1790-91.) At the same time, Petronio moved to have the Judge instruct the jury to consider a justification defense under N.Y. Penal Law § 35.20, relating to the right to use deadly force to terminate a burglary. The Judge denied the motion, holding that there was no evidence in the record to suggest that Petronio had killed the Decedent with the intent to thwart a burglary. (Tr. 1794-1800.)

D. The Jury Charge

The trial Judge charged the jury to consider the count of second-degree murder under N.Y. Penal Law § 125.25(1) ("intentional murder"), and, in the alternative, depraved indifference murder under Penal Law § 125.25(2). The Court instructed the jury that Petronio should be found guilty of depraved indifference murder if he "recklessly engaged in conduct which created a grave risk of death to another person and thereby caused the death of [the Decedent]." (Tr. 1828.) The Judge also charged the alternative, lesser count of second-degree manslaughter.

The Court then instructed the jury that if it found Petronio guilty of any of the aforementioned offenses, it should consider whether he was entitled to a defense under the New York justification statute, N.Y. Penal Law § 35.15(2)(a). The Court also charged the remaining counts in the indictment: third-degree insurance fraud, N.Y. Penal Law § 176.20, and tampering with physical evidence, N.Y. Penal Law § 215.40(2).

E. Verdict and Sentencing

On April 24, 2002, the jury acquitted Petronio of intentional murder, but found him guilty of depraved indifference murder. The jury also convicted Petronio of the lesser counts of insurance fraud in the second degree and tampering with physical evidence.

After the verdict but prior to sentencing, Petronio brought to the trial Court's attention a decision in which the late United States District Judge Charles Brieant...

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