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holding that the "were we to review this claim" language did not alter the fact that the state court's ruling rested on an adequate and independent state ground
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02 Civ. 0825 (AGS) (AJP)
July 9, 2002
REPORT AND RECOMMENDATION
To the Honorable Allen G. Schwartz, United States District Judge:
Petitioner Robert Ibarra, pro se, seeks a writ of habeas corpus from his December 4, 1997 conviction in Supreme Court, New York County, of first degree attempted assault and first degree reckless endangerment, and concurrent sentences of seven and one half to fifteen years imprisonment and two to six years imprisonment, respectively. (Pet. ¶¶ 1-4.) Ibarra's conviction stemmed from his pushing someone toward the subway tracks, and his habeas petition alleges that the evidence presented at his trial was legally insufficient because there was no evidence that he intended to use the third rail as a dangerous instrument. (Pet. ¶ 12(A).)
For the reasons set forth below, Ibarra's petition should be DENIED.
FACTS
The Evidence at Ibarra's Trial
Ibarra's jury trial began on November 3, 1997 in Supreme Court, New York County. (Dkt. No. 12: Trial Transcript ["Tr."] 1.) Ibarra did not testify and presented no witnesses.
The State's eyewitnesses testified that on April 10, 1997 at approximately 4:45 p.m., Ibarra approached Ramona Fajardo, Valerie Johnson and Michael Schweiger on the A-train platform at the Broadway/Nassau station. (Fajardo: Tr. 15, 19-20, 35-38; Johnson: Tr. 43-44, 46; Schweiger: Tr. 98-99.) Schweiger was standing near the "edge of the platform," to the right of Fajardo and to the left of Johnson, and was "looking for the train." (Fajardo: Tr. 16, 20, 23, 28, 35-36; Johnson: Tr. 46; Schweiger: Tr. 101-02, 113.) Ibarra "r[a]n from the back" and with both of his hands together "pushed" Schweiger "hard" in the back. (Fajardo: Tr. 22-23, 38-39; Johnson: Tr. 46, 48, 49, 55; Schweiger: Tr. 102-03, 114.) Ibarra did not accidentally bump into Schweiger but rather intentionally pushed him. (E.g., Fajardo: Tr. 22; Johnson: Tr. 49.) As a result of Ibarra's push, Schweiger was "dangling way over" the edge of the platform, but was able to regain his balance and did not fall onto the tracks. (Fajardo: Tr. 23, 39-41; Johnson: Tr. 46-47, 50; Schweiger: Tr. 103, 114-15.) As Schweiger attempted to steady himself on the platform, Ibarra "stepped back and . . . looked to see what was going to happen." (Fajardo: Tr. 23-24; Johnson: Tr. 50.) Schweiger regained his balance "[r]ight when the train came." (Johnson: Tr. 46, 59.)
After Schweiger regained his balance, Ibarra "tried to flee" and was "heading for the stairs." (Fajardo: Tr. 24; Schweiger: Tr. 104, 115.) Schweiger "grabbed" Ibarra, got him onto the ground, and asked why Ibarra had pushed him. (Fajardo: Tr. 24-27; Johnson: Tr. 50-51; Schweiger: Tr. 104-05.) Ibarra replied that he was "just fucking around" and told Schweiger to get off him because Schweiger was "ruining [Ibarra's] coat." (Fajardo: Tr. 27, 41; Johnson: Tr. 50-51, 55, 58; Schweiger: Tr. 105.) Schweiger held Ibarra on the ground until Transit Police Officers Richard Lee and Charles Kuhn arrived in response to a call from the Broadway/Nassau station. (Fajardo: Tr. 27- 29; Johnson: Tr. 50; Schweiger: Tr. 106, 116; Lee: Tr. 64-65; Kuhn: Tr. 80-81.) After the officers spoke to Schweiger and the other witnesses, they arrested Ibarra. (Lee: Tr. 66; Kuhn: Tr. 83.)
All of the State's witnesses at trial identified Ibarra as the assailant. (Fajardo: Tr. 20; Johnson: Tr. 48; Lee: Tr. 75; Kuhn: Tr. 81-82, 90; Schweiger: Tr. 101.)
In addition to his role in arresting Ibarra, Officer Lee testified that he had worked for the Transit Authority for two years (as a conductor, track man and motor man) prior to his eight years as a Transit Police Officer. (Lee: Tr. 62-63.) Officer Lee testified that the third rail of the subway tracks is "where the train gets its power to run" and that it "carries 600 volts of electricity." (Lee: Tr. 69.) Officer Lee testified that if one were to fall from the platform and touch the third rail, "more than likely you would get electrocuted," and that at the Broadway/Nassau station, the electric third rail is located "directly below the platform." (Lee: Tr. 70-72.)
After the close of the evidence, the defense moved to dismiss the second count of the indictment, charging reckless endangerment, on the ground that it did not name Schweiger (or anyone else) as the complaining witness. (Tr. 124-29.) Defense counsel did not move to dismiss the attempted assault charge on the ground that there was insufficient evidence as to the third rail, or on any other ground, for that matter. (Tr. 126-29, 131.) Nor did defense counsel in summation refer to the third rail issue at all. (Defense Summation: Tr. 133-42)
The prosecutor's summation stated that the witnesses saw Ibarra "push another human being towards the subway tracks. Tracks filled with 600 volts of electricity and moving subway cars. . . ." (Prosecution Summation: Tr. 143; see also id. at 144-46.)
In charging the jury, the trial judge informed the jury that the prosecution had to prove, inter alia, that "the third rail was a dangerous instrument," and instructed that "[a]ccording to the law, a dangerous instrument is any instrument which under the circumstances in which it is used is readily capable of causing death or other serious physical injury." (Charge: Tr. 180; see also id. at 197-98.) Defense counsel did not object to the charge. (Tr. 192.)
On November 6, 1997, the jury convicted Ibarra of first degree attempted assault and first degree reckless endangerment. (Tr. 205-07.)
Ibarra's Sentencing
At sentencing, Ibarra's counsel moved pursuant to C.P.L. § 330.30(1) to set aside the verdict, asserting that "'the people have [not] proven that the defendant had any knowledge that this was a third rail or that [it] was a dangerous instrument.'" (Ex. A: Ibarra 1st Dep't Br. at 5 (quoting Sentencing Tr. 6-7); Ex. B: State 1st Dep't Br. at 9) The trial court summarily denied the motion. (Ex. A: Ibarra 1st Dep't Br. at 5 (citing Sentencing Tr. 7.)
References to Exhibits are to those in the Affidavit of Assistant Attorney General Maria Filipakis, Dkt. No. 11.
This Court has not been provided with the sentencing transcript. The Court relies upon the information contained in the parties' state appellate briefs, since the parties do not dispute what transpired at sentencing. (See Ex. A: Ibarra 1st Dep't Br. at 5; Ex. B: State 1st Dep't Br. at 9.)
Ibarra's Direct Appeal
In January 2000, represented by appointed counsel, Ibarra appealed to the First Department, asserting that there was insufficient evidence to prove his guilt of first degree attempted assault. (Dkt. No. 11, Ex. A: Ibarra 1st Dep't Br. at 7-12.) New York Penal Law provides that "[a] person is guilty of assault in the first degree when . . . with intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a . . . dangerous instrument." Penal Law § 120.10(1). Ibarra claimed that the prosecution failed to prove that the third rail was used by Ibarra as a "dangerous instrument." (Ibarra 1st Dep't Br. at 7.)
On June 13, 2000, the First Department unanimously affirmed Ibarra's conviction, holding that:
[Ibarra] failed to preserve his challenge to the sufficiency of the evidence supporting the element of use of a dangerous instrument under his attempted assault conviction, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the evidence supports the inference of defendant's awareness of the danger posed by the electrified third rail of the subway, regardless of its particular location in relation to the platform, as well as the inference that [Ibarra] intended to use the third rail for the purpose of causing serious physical injury to the person he attempted to shove onto the tracks.
People v. Ibarra, 273 A.D.2d 87, 87-88, 710 N.Y.S.2d 878, 878 (1st Dep't 2000).
On December 26, 2000, the New York Court of Appeals denied leave to appeal. People v. Ibarra, 95 N.Y.2d 964, 722 N.Y.S.2d 482 (2000).
Ibarra's Present Federal Habeas Corpus Petition
Ibarra's timely federal habeas corpus petition asserts the same insufficiency of the evidence claim that Ibarra raised before the First Department. (Pet. ¶ 12(C).)
Ibarra's habeas petition initially raised two additional claims: (1) repugnancy of the verdict (Pet.¶ 12(B)), and (2) ineffective assistance of trial counsel (Pet.¶ 12(C)). The Court informed Ibarra that those claims appeared unexhausted. (Dkt. No. 3: 3/20/02 Order.) By letter dated March 22, 2002, Ibarra withdrew these two claims, and by Memo Endorsed Order dated March 28, 2002, this Court dismissed these additional claims with prejudice. (Dkt. No. 6.)
ANALYSIS
I. IBARRA'S INSUFFICIENT EVIDENCE CLAIM IS BARRED BY AN ADEQUATE AND INDEPENDENT STATE LAW GROUND
The First Department denied Ibarra's insufficiency of the evidence claim based upon his failure "to preserve his challenge to the sufficiency of the evidence." People v. Ibarra, 273 A.D.2d 87, 87, 710 N.Y.S.2d 878, 878 (1st Dep't), appeal denied, 95 N.Y.2d 964, 722 N.Y.S.2d 482 (2000). At the conclusion of the evidence at trial, Ibarra's counsel had made only a general motion that the "[p]eople failed to prove the case beyond a reasonable doubt." (Tr. 131.)
It is black letter law in New York that a defendant's trial motion to dismiss for insufficiency of the evidence must be "specifically directed" at the alleged error to be preserved for appellate review. E.g., People v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 148 n. 2 (1979); see also, e.g., People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995) ("We noted in People v. Cona . . . that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be 'specifically directed' at the alleged error. . . ."); People v. Diaz, Nos. 570708-00, 00-461, 2002 WL 759631 at *1 (1st Dep't Apr. 22, 2002) ("defendant did not preserve by specific objection his current claims regarding the legal sufficiency of the evidence. . . ."); People v. Seabrooks, 289 A.D.2d 515, 515, 735 N.Y.S.2d 590, 591 (2d Dep't 2001) ("The defendant failed to specifically object with regard to the legal sufficiency of the evidence on the grounds he raises on appeal. Therefore, his arguments in this respect are unpreserved for appellate review."), appeal denied, 2002 WL 1369793 (Apr. 2, 2002); People v. Elmore, 269 A.D.2d 404, 404, 702 N.Y.S.2d 860, 860 (2d Dep't) ("The defendant's generalized request for a trial order of dismissal was not sufficiently specific to preserve for appellate review his [specific appeals] challenge. . . ."), appeal denied, 94 N.Y.2d 947, 710 N.Y.S.2d 3 (2000).
Accordingly, the First Department's denial of Ibarra's insufficiency of the evidence claim was based on an adequate and independent state ground of procedural default, which bars federal habeas review of the claim. For a discussion of the "adequate and independent" state ground doctrine see, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
For decisions authored by this Judge discussing the "adequate and independent" state ground doctrine, see e.g., Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman, D.J. Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-9 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (SD.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (SD.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (SD.N.Y May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 210-14 (SD.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (SD.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted by 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at * 4 (Apr. 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at * 7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
The fact that the First Department explicitly stated that it found Ibarra's claim to be procedurally barred, but also stated the conclusion it would reach "[w]ere we to review this claim," does not change the result. See e.g., Fama v. Commissioner of Correctional Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 (state decision which denied claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).
See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Larrea v. Bennett, 2002 WL 1173564 at *9 n. 8 ( cases cited therein); Simmons v. Mazzuca, 2001 WL 537086 at *10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Jones v. Duncan, 162 F. Supp.2d at 211 (same); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the claim on the merits"); Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (claim that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation).
Accordingly, since the First Department's decision rested on an adequate and independent state procedural ground, Ibarra's habeas petition should be denied. See also, e.g., Garcia v. Lewis, 188 F.3d at 77-82 ("There is no question that the Appellate Division's explicit invocation of the procedural bar constitutes an 'independent' state ground, . . . even though the court spoke to the merits of [petitioner's] claim in an alternative holding . . .
II. IN ANY EVENT, IBARRA'S INSUFFICIENT EVIDENCE CLAIM IS WITHOUT MERIT
Even if this Court were to review the merits of Ibarra's petition, his insufficient evidence claim is meritless.
A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims
For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation see Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001)(Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).
Petitioner Ibarra bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden "on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction . . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).
Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d 1383, 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).
The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").
See also, e.g., Jones v. Duncan, 162 F. Supp.2d at 215; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13; Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *3 (S.D.N.Y. Mar. 11, 1997); Briecke v. New York, 936 F. Supp. 78, 84 (E.D.N.Y. 1996).
B. The Evidence Was Legally Sufficient to Support Ibarra's Conviction of Attempted Assault
Ibarra was convicted of first degree attempted assault. (Tr. 205-07.) First degree assault is statutorily defined as follows: "[a] person is guilty of assault in the first degree when . . . with intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a . . . dangerous instrument." Penal Law § 120.10(1). A dangerous instrument is an instrument which "under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing . . . serious physical injury." Penal Law § 10.00(13).
Regarding what constitutes a "dangerous instrument," the New York Court of Appeals has explained:
The statute makes no attempt to give an absolute definition of the term or to provide a list of items which can be considered dangerous instruments. Instead the statute states plainly that any "instrument, article or substance," no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury. The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute.
People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 608 (1981) (citations omitted). Under this "use-oriented approach," the trier of fact is called upon to infer whether or not the defendant knowingly used something with an otherwise perfectly legitimate function as a "dangerous instrument." Courts have deemed a variety of seemingly innocuous objects to be "dangerous instruments" under the circumstances in which they were used. See, e.g., People v. Curtis, 89 N.Y.2d 1003, 1004, 657 N.Y.S.2d 395, 396 (1997) (belt); People v. Vasquez, 88 N.Y.2d 561, 580, 647 N.Y.S.2d 697, 707 (1996) (wadded-up paper towel used as a gag); People v. Carter, 53 N.Y.2d at 117, 440 N.Y.S.2d at 609 (pair of rubber boots); People v. Ozarowski, 38 N.Y.2d 481, 491, 381 N.Y.S.2d 438, 444 (1976) (baseball bat); People v. Brown, 100 A.D.2d 879, 881, 474 N.Y.S.2d 139, 141 (2d Dep't 1984) (stickball bat); People v. Ford, 60 A.D.2d 40, 43-44, 400 N.Y.S.2d 35, 38 (1st Dep't 1977) (handkerchief), rev'd on other grounds, 46 N.Y.2d 434, 442, 414 N.Y.S.2d 102, 106 (1979); People v. Bouldin, 40 A.D.2d 1045, 1045, 338 N.Y.S.2d 686, 687-88 (3d Dep't 1972) (spatula); People v. Torrez, 86 Misc.2d 369, 371, 382 N.Y.S.2d 233, 234 (S.Ct. Bx. Co. 1976) (dog).
New York courts also have held that a defendant need not be in possession or control of an object for it to be considered a "dangerous instrument," and have found subway trains to be dangerous instruments. See, e.g., People v. Thomas, 169 A.D.2d 515, 516, 564 N.Y.S.2d 372, 372 (1st Dep't) (moving subway train), appeal denied, 78 N.Y.2d 975, 574 N.Y.S.2d 955 (1991); People v. Pagan, 160 A.D.2d 284, 285, 553 N.Y.S.2d 380, 381 (1st Dept) (same), appeal denied, 76 N.Y.2d 793, 559 N.Y.S.2d 998 (1990); see also, e.g., People v. Galvin, 65 N.Y.2d 761, 762-63, 492 N.Y.S.2d 25, 26 (1985) (sidewalk).
Ibarra does not claim that he did not know generally that the third rail is, or could be, a dangerous instrument. (See Ex. A: Ibarra 1st Dept Br. at 7; Pet. ¶ 12(A).) Rather, he claims that the prosecution offered no evidence that Ibarra "knew of the third rails [sic] unusual location" at the Broadway/Nassau station or that he "intended to use the third rail." (Pet. ¶ 12(A).)
Ibarra misses the point. The jury heard testimony at trial as to the inherent danger of the third rail: Officer Lee testified that the third rail "carries 600 volts of electricity" and that if a person were to touch the third rail, he would "more than likely" "get electrocuted." (Lee: Tr. 69-70.) A jury could have concluded that it is common knowledge among residents of New York City that the subway's electric third rail is inherently dangerous and that serious injury or death may result from contact with it. The Court may take judicial notice that the electric third rail is part of the subway tracks at every New York City subway station, and that a New York jury would be aware of this. There was no evidence at trial that Ibarra was from out of town so as to be unaware that subway tracks contain an electrified third rail. A reasonable jury could infer from the evidence that Ibarra was aware that the third rail was located on the subway tracks, even if Ibarra did not know exactly where the third rail was located at this particular station. Moreover, even if the third rail's location at this station was more hidden than in other stations, Ibarra could not know where Schweiger would fall relative to the third rail after being pushed by Ibarra. The exact location of the third rail had no bearing on the risk of serious injury or death that Ibarra imposed upon Schweiger by attempting to push him onto the subway tracks.
Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 n. 1O, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision that the evidence was sufficient to convict Ibarra for first degree attempted assault was contrary to established federal law or was based on an unreasonable determination of the facts.
CONCLUSION
For the reasons set forth above, Ibarra's habeas petition should be denied and a certificate of appealability should not be issued.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Allen G. Schwartz, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Schwartz. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).