Rustici v. Philips

• Decision Date: 03 August 2007
• Docket Number: No. 04 CV 2856(ADS).,04 CV 2856(ADS).
• Citation: 497 F.Supp.2d 452
• Parties: Christopher RUSTICI, Petitioner, v. William PHILIPS, Superintendent, Greenhaven Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

497 F.Supp.2d 452

Christopher RUSTICI, Petitioner, v. William PHILIPS, Superintendent, Greenhaven Correctional Facility, Respondent.

No. 04 CV 2856(ADS).

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

August 3, 2007.

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Law Offices of Thomas F. Liotti by Thomas F. Liotti, Esq., of Counsel, Garden City, NY, for the Petitioner.

Kathleen M. Rice, District Attorney, County of Nassau, by Margaret E. Mainusch, Assistant District Attorney, Mineola, NY, for the Respondent.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Christopher Rustici ("Rustici" or the "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court regrets that this habeas petition, which was filed in 2004, is only being determined at this time. However, the resolution of this matter was delayed, in part, by the petitioner's counsel, who has submitted almost two hundred pages of briefing, including six supplemental briefs. The Court notes that most recent supplement brief was filed on March 15, 2007. For the reasons that follow, " the petition is denied.

I. BACKGROUND

A. Procedural History

The petitioner seeks to vacate a January 26, 2000 judgment of conviction and February 29, 2000 sentence, which were entered after a jury convicted him of one count of Murder in the Second Degree based on a theory of depraved indifference; one count of Criminal Possession of a Weapon in the Second Degree; and one count of Criminal Possession of a Weapon in the Third Degree. The charges arose out of the shooting death of Paul Behr ("Behr") in 1997. At his trial in state court, the petitioner admitted shooting Behr, but claimed that the gun discharged accidentally.

On February 29, 2000, the Honorable Donald E. Belfi of the County Court for the County of Nassau sentenced the petitioner to a term of imprisonment of twenty-five years to life under the murder count; seven and one-half to fifteen years under the second degree weapon possession count, to run concurrent to the murder count; and three and one-half to seven years under the third degree weapon possession count, to run consecutively to the other counts. The New York Supreme Court, Appellate Division, Second Department, affirmed the conviction, People v. Rustici, 303 A.D.2d 606, 756 N.Y.S.2d 498 (2d Dep't 2003), and the New York Court of Appeals denied leave to appeal, People v. Rustici, 100 N.Y.2d 586, 796 N.E.2d 489, 764 N.Y.S.2d 397 (2003). Also, on September 21, 2001, Judge Belfi denied the petitioner's motion to vacate his judgment of conviction pursuant to Section 440 of New York's Criminal Procedure Law.

On July 7, 2004, Rustici filed this petition, raising eight arguments in support of habeas corpus relief:

Ground One: The Petitioner suffers from a severe personality disorder — Dependent Personality Disorder, which prevented him from understanding the nature and consequences of his actions at the time of the incident. However, because petitioner was unable to offer psychological expert testimony, petitioner received an unfair trial. If the expert testimony was allowed, the jurors would have found petitioner not guilty.

Ground Two: The Petitioner's statements to law enforcement were not made knowingly, voluntarily and intelligently. Due to his severe personality disorder, the Petitioner would have admitted to anything. He was compliant and looking for approval and acceptance from any father or authoritarian figure. The Petitioner was therefore deprived of his right to remain silent in violation of the Fifth Amendment of the United States Constitution.

Ground Three: The presentation of this psychological evidence at trial would enable petitioner to be found not guilty by reason of insanity or guilty of a lesser charge due to extreme emotional disturbance and diminished capacity or to be found not guilty.

Ground Four: The Petitioner's C.P.L. § 440 Motion to vacate his judgment of conviction and ordering a new trial based upon the aforementioned newly discovered evidence [of a severe personality disorder] should have been granted. The trial court erred in not ordering an evidentiary hearing on the basis of the new evidence submitted to support it in support of petitioner's 440 motion.

Ground Five: The Petitioner received an illegal consecutive sentence. The Court could have imposed a sentence of 15 years to life but instead imposed a maximum sentence thusly [punishing] the Petitioner for exercising his right to go to trial. The Petitioner had been offered in plea bargains a determinate sentence of 12 years on a manslaughter first degree plea.

Ground Six: The Court erred in not charging the jury on accident or mistake of fact. Again, this coupled with the Petitioner's psychological diagnosis would have caused the Petitioner to either be acquitted or convicted of a lesser charge. The Court also confused the jury on its charging instructions by the preclusion of the lesser included offenses and failing to into account the law in People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 and Jones v. Keane, 82 Civ. 1804(CLB) . Both cases were decided after the Rustici trial but both addressed the conflated and confusing nature of the homicide law in New York which have recently undergone some changes in jury instructions in light of the New York Court of Appeals decision last year in People v. Hafeez, [100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060] (2003).

Ground Seven: The prosecution committed gross misconduct in disregarding motions in limine.

Ground Eight: New York's Statutory distinction between reckless manslaughter and depraved indifference murder, as interpreted by the New York Court of Appeals violates the rights to Due Process and Equal Protection. The U.S. Court of Appeal for the Second Circuit in St. Helen v. Senkowski, Docket No. 03-2777 is currently considering whether the standard used to distinguish between reckless manslaughter and depraved indifference murder is violative of a defendant's Due Process and Equal Protection rights under the Constitution of the United States and the Constitution of the State of New York....

(Petition, dated July 7, 2004.)

In addition to these grounds that are specifically enumerated in the petition, the petitioner also raises several additional grounds for relief in the text of his memoranda submitted in support of his petition. These grounds are that (1) there was insufficient evidence introduced at trial to support the petitioner's conviction of Second Degree Murder on a theory of depraved indifference; and (2) the trial judge improperly limited the defense's cross-examination of a witness in violation of the Confrontation Clause of the Sixth Amendment the Constitution.

B. Facts

Testimony at the petitioner's trial established that on August 22, 1997, at approximately 5:00 p.m., a thirteen year old boy named Ralph Mandarino was in his house in Syosset when he and a friend heard a "loud noise" from outside. It sounded "Mike a car backfiring, or a firecracker." Mandarino and his friend rode their bikes around the block and discovered a neighbor, Paul Behr, lying on his front lawn, on his back, in pain and bleeding. Behr was asking for help. The Nassau County Police were called, and Behr was taken to a hospital where he died from a single gunshot wound. On November 13, 1997, Christopher Rustici was taken into custody in connection with the Behr shooting. The petitioner confessed to shooting Behr, but claimed that the gun discharged accidentally. (Tr. at 56.)^*

1. The Trial Testimony of Christopher Rustici

At his trial, the petitioner testified that he was twenty-three years old in August, 1997. The petitioner was raised in Huntington New York and spent most of his life there. In or about January, 1997 the petitioner "went to Florida to do some work" and to help a friend move into a new house. The petitioner stayed in Florida for approximately five months working in a "detailing shop" where he cleaned cars. (Tr. at 300-01, 305-07.) He then returned to New York.

At some point during the summer of 1997, the petitioner was introduced to a man named Antonio Bertolini. The petitioner and Bertolini became social acquaintances, sometimes going "jet-skiing" together. In or about the end of the month of July in 1997, Bertolini approached the petitioner asking if he would help "beat a guy up" who owed a friend money. The petitioner agreed, although he didn't "think it was serious." (Tr. at 308-11.)

On August 22, 1997, Bertolini picked the petitioner up at his house. As the two drove off, the petitioner did not know where they were going. At some point, Bertolini showed the petitioner a picture of a white male. Bertolini identified the person in the picture only as someone who owed a friend money. The petitioner had never seen this person before, and Bertolini did not tell the petitioner the man's name. (Tr. at 315-17.)

Bertolini drove the petitioner to the victim Behr's neighborhood in Syosset, New York, and identified Behr's house. Bertolini realized that Behr was not at home, so the two went to a pizza restaurant in the neighborhood. After eating pizza, the two returned to Bertolini's car and left the parking lot. As they were leaving the parking lot of the pizzeria, Bertolini pulled a white towel or T-shirt from under the seat, and placed it on the seat of the car. The petitioner asked what the towel or shirt was, and Bertolini revealed that it was wrapped around a revolver. Bertolini commented that "this would be easier ... than beating him up." (Tr. at 317-21.)

Bertolini drove the petitioner back to Behr's neighborhood. This time, as they drove past Behr's house, Bertolini said that Behr was home. Bertolini drove around the corner, said to the petitioner that he would wait there, and told the petitioner "to go do it." The petitioner took the gun, put it in his pocket, and left the car. The petitioner testified that at that...