Opinion
1:22-CV-00084 (VSB) (SDA)
03-16-2023
Lorenzo Shoy, Petitioner, v. David R. Harris, Respondent.
HONORABLE VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Petitioner Lorenzo Shoy (“Shoy” or “Petitioner”), a New York prisoner currently incarcerated at Green Haven Correctional Facility, seeks a writ of habeas corpus, as authorized by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Following a jury trial, Shoy was convicted on August 2, 2017, in the Supreme Court of the State of New York, Bronx County, of two counts of Attempted Gang Assault in the First Degree and one count of Assault in the Third Degree and was sentenced to an aggregate term of imprisonment of eleven years' incarceration to be followed by two-and-a-half years' post-release supervision. (Am. Pet., ECF No. 4, ¶¶ 1, 3, 5.)
Shoy filed this action pro se in January 2022, challenging the sufficiency and weight of the evidence used to convict him (Ground One) and the trial court's jury instructions (Ground Two). (See Am. Pet. ¶ 12.) For the reasons set forth below, I respectfully recommend that Shoy's Amended Petition be DENIED in its entirety.
Shoy's initial Petition was filed on January 4, 2022 (see Pet., ECF No. 1) and his Amended Petition was filed on January 20, 2022. (See Am. Pet.)
Transcripts of the proceedings in state court are filed at ECF No. 22. The trial transcript is filed at ECF Nos. 22-6 through 22-20. Citations to the trial transcripts are made using the prefix “Trial Tr.” followed by the relevant page number(s) and, where applicable, the name of the testifying witness in parentheses.
I. Facts Giving Rise To Conviction
On August 16, 2014, Shoy, along with Rafael Gonzalez (“Gonzalez”) and Rigoberto Fonseca (“Fonseca”), among others, assaulted undercover Bronx Narcotics Detectives Quinn Sealey (“Det. Sealey”) and Jose Peinan (“Det. Peinan”), during an undercover buy-and-bust operation inside of a deli. (Trial Tr. 37-39.) In the early morning hours, Det. Sealey (wearing a red-and-grey shirt with cargo pants and a black do-rag) was standing at the deli counter waiting for change. (Trial Tr. 37-39, 88 (Det. Sealey); People's Exhibit 1, Video, Cameras 5, 6, 7: 2:45:34-2:45:45.) Thereafter, Shoy (wearing a black shirt and black shorts) entered the deli followed by another individual (wearing a yellow shirt and black hat) and Fonseca (wearing a red shirt). (Trial Tr. 38-39; People's Exhibit 1, Video, Cameras 5, 6, 7: 2:45:45-2:45:50.) The three individuals, along with Gonzalez (who already was present in the deli) and others, positioned themselves behind Det. Sealey, with the individual in the yellow shirt standing directly behind Det. Sealey. (People's Exhibit 1, Video, Camera 7: 2:45:50-2:45:51.) The individual in the yellow shirt punched Det. Sealey on the right side of Det. Sealey's head. (Id., Camera 7: 2:45:51-2:45:54.) Shoy, Gonzalez and others then closed in on Det. Sealey, cornering him between the wall and counter. (Id., Camera 7: 2:45:51-2:45:57.) Multiple individuals punched Det. Sealey, and he fell to the floor. (Id., Camera 7: 2:45:57-2:46:00.)
People's Exhibit 1 was admitted into evidence at trial. (Trial Tr. 47.)
While Det. Sealey was on the floor, Det. Peinan (wearing a black-and-white t-shirt and jeans) entered the store and attempted to get people off of Det. Sealey. (Trial Tr. 469-70, 537 (Det. Peinan); People's Exhibit 1, Video, Camera 7: 2:45:55-2:46:00.) Shoy fell back into a rack of food. (Id., Camera 7: 2:45:58-2:46:00.) Multiple individuals struck Det. Peinan. (Id.) Det. Sealey was dragged through the store and thrown into a glass refrigerator door. (Trial Tr. 40 (Det. Sealey); People's Exhibit 1, Video, Camera 4: 2:46:00-2:46:07.)
As Det. Sealey was being dragged through the deli, Shoy went back towards the counter to pick an item off the floor. (People's Exhibit 1, Video, Cameras 3, 8: 2:46:00-2:46:06.) Gonzalez then dragged Det. Peinan away from the group of attackers into the middle of the deli. (Id., Camera 3: 2:46:04-2:46:06.) Shoy joined Gonzalez in striking Det. Peinan. (Id., Camera 3: 2:46:06-2:46:12; see also Trial Tr. 471, 660 (Det. Peinan).) In addition, Shoy kicked and stomped on Det. Peinan. (Id.)
Shoy and others then left the deli. (People's Exhibit 1, Video, Cameras 3, 5, 6, 7: 2:46:15-2:46:25; see also Trial Tr. 538-39 (Det. Peinan).) Two days later, Shoy turned himself in to the police. (Trial Tr. 913 (Det. Flately).)
Det. Sealey suffered a laceration to the back of the head that required two staples to close. (Trial Tr. 57, 124 (Det. Sealey); 768 (Dr. Attaalla).) He also suffered scratches on his neck, bruises on his hands, a swollen right eye and a bloody nose. (Trial Tr. 57-58, 125 (Det. Sealey); 768 (Dr. Attaalla).) Det. Sealey was unable to see properly, and his vision was limited by white dots that would appear in his eyes. (Trial Tr. 58-59, 125 (Det. Sealey).) Det. Sealey also experienced pain in his shoulder due to a torn labrum that required surgery to repair. (Trial Tr. 58 (Det. Sealey); 769 (Dr. Attaalla); 851, 856 (Dr. Lent).) Det. Peinan also was treated at the hospital for a broken eye socket, a corneal abrasion and contusions on his head. (Trial Tr. 486, 552, 604, 648 (Det. Peinan); 756, 758 (Dr. Attaalla).)
II. Relevant State Court Proceedings
A. Trial
Commencing on May 23, 2017, Shoy and others were tried by jury before Justice Robert A. Neary. (Trial Tr. 1.) A summary of the trial testimony from the prosecution witnesses is set forth in Background Section I, supra. The only witness who testified on behalf of Shoy was his mother, Vanesta Shoy, who was not a witness to the incident. (Trial Tr. 1079 (V. Shoy).)
During the jury charge, the trial court instructed the jury as follows with respect to accomplice liability:
Our law recognizes that two or more individuals can act jointly to commit a crime and in certain circumstances each can be held criminally liable for the actions of the other. In that situation, those persons can be said to be acting in concert with each other.
Our law defines the circumstances under which one person may be criminally liable for the conduct of another and that definition is as follows: When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when acting with the state of mind that's required for the commission of the offense, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct.
. . .
In order for the defendant to be held criminally liable for the conduct of others which constitutes an offense you must find, one, he solicited, requested, commanded, importuned or intentionally aided that person or persons to engage in that conduct, and, two, that he did so with the state of mind required for the commission of each specific offense. . . .
The People have the burden of proving beyond a reasonable doubt that the defendant acted with the state of mind required for the commission of the crime and either personally or by acting in concert with another person committed each of the remaining elements of the crime.
. . .
It's your obligation to evaluate the evidence as it applies or fails to apply to each defendant separately. Each instruction on the law must be considered by you as referring to each defendant separately. You must return a separate verdict for each defendant, and those verdicts may be, but need not necessarily be the same. It's your sworn duty to give separate consideration to the case of each individual defendant.(Trial Tr. 1455-58.)
Then, with respect to the first count of the indictment, attempted first-degree gang assault as to Det. Sealey, the trial court stated:
Under our law, a person is guilty of Gang Assault in the First Degree when with intent to cause serious physical injury to another person and when aided by two or more other individuals actually present, he caused a serious physical injury to such person. . . .
In order for you to find the defendants guilty of Attempt to Commit the Crime of Gang Assault in the First Degree, the People are required to prove from all the evidence in the case, beyond a reasonable doubt, the following three elements: One, that on or about August 16th, 2014 in the Bronx, the defendant personally or acting in concert with each other and others intended to commit the crime of Gang Assault in the First Degree against Quinn Sealey; two, that the defendant or defendants engaged in conduct which attended to affect the commission of that crime; and, three, that the defendant was not justified.(Trial Tr. 1458, 1461.) The court provided identical language for the second count of the indictment, attempted first-degree gang assault as to Det. Peinan. (Id. 1462, 1465.)
The jury found defendant guilty of two counts of attempted first-degree gang assault, as to both Det. Sealey and Det. Peinan, and one count of third-degree assault as to Det. Peinan. (Trial Tr. 1525-27.)
B. Sentencing
On August 2, 2017, the trial court sentenced Shoy to a term of five-and-a-half years' incarceration and two-and-a-half years' post-release supervision for each count of attempted first-degree gang assault, to run consecutively to each other and concurrently with a definite term of one year's imprisonment for his conviction of third-degree assault. (S. Tr., ECF No. 22-20, at PDF p. 127.)
C. Direct Appeal
Shoy appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department, raising three claims: (1) that the evidence at trial was legally insufficient to prove that he had the intent to cause serious physical injury to either Det. Sealey or Det. Peinan or was an accomplice to the assaults and that the verdict was against the weight of the evidence; (2) that the trial court's jury instruction incorrectly applied the accomplice liability charge to the mens rea element of Attempted Gang Assault in the First Degree; and (3) that the sentence was excessive. (See Pet. App. Div. Br., ECF No. 20-1.) On December 26, 2019, the Appellate Division unanimously affirmed Shoy's conviction. See People v. Shoy, 178 A.D.3d 621 (1st Dep't 2019).
With respect to legal sufficiency and weight of the evidence, the Appellate Division held:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's credibility determinations. As to both victims, the evidence, including a surveillance videotape, established the element of intent to cause serious physical injury, as required for attempted first-degree gang assault. The evidence supporting the inference of defendant's intent was not limited to his own violent acts, but also included his acts of assisting others in committing more serious violence against the victims. The evidence permitted the jury to reasonably infer that defendant was part of a group that surrounded the first victim, and that while some members of the group assaulted the victim, defendant and others prevented him from
leaving. The jury was also justified in finding that defendant kicked the second victim, and that this intentionally aided another participant in simultaneously inflicting more serious blows.Shoy, 178 A.D.3d at 621-22 (citations omitted).
With respect to the jury charge, the Appellate Division held:
The court's charge, viewed as a whole, properly explained that in order to find defendant criminally liable for the conduct of others, the jury had to find that he acted with the requisite intent to commit the offense, and that he intentionally aided the others in such conduct. The court gave the jury a thorough and accurate explanation of the concept of acting in concert, in which it repeatedly emphasized that defendant's personal state of mind was controlling. At the point when the court used the term acting in concert while stating the elements of attempted gang assault, the jury had just been told exactly what acting in concert requires. As such, the jury could not have been misled to believe that the intent of another participant in the crime could satisfy the intent element.Id. at 622 (citations omitted).
On April 15, 2020, the New York Court of Appeals denied Shoy's application for leave to appeal. People v. Shoy, 35 N.Y.3d 974 (2020).
III. Habeas Petition
In his Amended Petition, Shoy restates the claims he presented to the Appellate Division regarding the sufficiency of the evidence proving his guilt (Ground One) and the trial court's jury instruction (Ground Two). (See Am. Pet. at PDF pp. 5, 7.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by AEDPA, a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to,” or an “unreasonable application of,” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Williams, 529 U.S. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Sufficiency Of The Evidence
“The Due Process Clause prohibits conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.'” Fashaw v. Griffin, No. 17-CV-07328 (KPF), 2020 WL 6482924, at *13 (S.D.N.Y. Nov. 4, 2020) (quoting In re Winship, 397 U.S. 358, 364 (1970)). “In a challenge under 28 U.S.C. § 2254 to the evidentiary sufficiency of a state criminal conviction, [the Court] review[s] the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.” Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 317 (1979)); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“[T]he only question under Jackson is whether [the jury's verdict] was so insupportable as to fall below the threshold of bare rationality.”).
“Where the state courts have decided a habeas petitioner's legal sufficiency claim on the merits, . . . this Court must review that claim under a ‘doubly deferential standard of review.'” Fashaw, 2020 WL 6482924, at *13 (quoting Garbutt v. Conway, 668 F.3d 79, 81-82 (2d Cir. 2012)). The Court “defer[s] first to the jury's verdict, drawing all inferences in its favor.” Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012) (citing United States v. Archer, 671 F.3d 149, 160 (2d Cir. 2011)). “Second, [the Court] defer[s] to the state courts' rejection of the defendant's constitutional arguments, at least insofar as it did not result from an unreasonable determination of the facts or an unreasonable application of clearly established federal law.” Id. (citing Garbutt, 668 F.3d at 81). Thus, where the state courts have denied a claim of insufficient evidence on the merits, the writ should not be granted unless “no reasonable court could have held that any reasonable jury could have read the evidence to establish petitioner's guilt beyond a reasonable doubt.” Garbutt, 668 F.3d at 82 (emphasis in original); see also Scott v. Graham, No. 16-CV-02372 (KPF) (JLC), 2017 WL 2820061, at *20 (S.D.N.Y. June 29, 2017), report and recommendation adopted, 2018 WL 5257613 (S.D.N.Y. Oct. 22, 2018) (citation omitted) (petitioner challenging sufficiency of evidence to support state-court conviction “bears a very heavy burden”).
It is not the role of a federal court in considering a habeas petition to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original). Further, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court.” Cavazos v. Smith, 565 U.S. 1, 4 (2011). “Because rational people can sometimes disagree . . . judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id.
DISCUSSION
I. The Appellate Division's Determination Regarding Sufficiency Of The Evidence Was Not Contrary To Or An Unreasonable Application Of Clearly Established Federal Law (Ground One)
“When considering the sufficiency of the evidence of a state conviction, ‘[a] federal court must look to state law to determine the elements of the crime.'” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) (citing Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993)). Petitioner challenges his conviction in New York state court of attempted first-degree gang assault. Under New York law, a conviction for gang assault in the first degree requires, in relevant part, “intent to cause serious physical injury to another person . . . when aided by two or more other individuals actually present.” N.Y. Penal Law § 120.07. A person commits attempted first-degree gang assault when he (i) intends to commit first-degree gang assault, and (ii) engages in conduct which tends to effect the commission of first-degree gang assault. See N.Y. Penal Law §§ 110/120.07. Under New York's accomplice liability statute, “[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” N.Y. Penal Law § 20.00.
The Appellate Division held that the evidence was legally sufficient to convict Petitioner. See Shoy, 178 A.D.3d at 621. On the record before the Court, the Appellate Division's decision was reasonable with respect to the counts regarding both Det. Sealey and Det. Peinan. As to Petitioner's conviction with respect to Det. Sealey, the evidence at trial showed that Petitioner and others entered the deli and surrounded Det. Sealey while Det. Sealey was at the counter waiting for change. Then, after one of his cohorts struck Det. Sealey, Petitioner joined others in the group to corner Det. Sealey and prevent Det. Sealey's escape. While Det. Sealey was trapped by Petitioner and others, various individuals in the group proceeded to punch him. As a result of those attacks, Det. Sealey suffered a laceration to the back of the head that required two staples to close, scratches on his neck, bruises on his hands, a swollen right eye, a bloody nose, vision impairment and a torn labrum in his shoulder.
As to Petitioner's conviction with respect to Det. Peinan, the evidence at trial showed that Petitioner repeatedly struck Det. Peinan as he lay on the ground. In addition, Petitioner repeatedly kicked and stomped on Det. Peinan. As a result, Det. Peinan suffered a broken eye socket, a corneal abrasion and contusions on his head.
Petitioner argues that he “was no more than a spectator as to one complainant,” presumably, Det. Sealey, and that he was justified in “kick[ing] the second complainant,” presumably, Det. Peinan, who had run into Petitioner. (See Am. Pet. at 5.) However, “[a]ll inferences from the evidence must be drawn in favor of the prosecution and the jury's assessment of the credibility of witnesses may not be second-guessed.” Copeland v. Walker, 258 F.Supp.2d 105, 118 (E.D.N.Y. 2003) (citing Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994)); see also id. (“a federal habeas court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution” (cleaned up) (citations omitted). As the Appellate Division found, “[t]here is no basis for disturbing the jury's credibility determinations.” Shoy, 178 A.D.3d at 621.
Based upon all the foregoing, the Appellate Division's decision is not contrary to, and did not involve an unreasonable application of, clearly established federal law. Nor is the Appellate Division's decision based on an unreasonable determination of the facts in light of the evidence presented at trial. Thus, Ground One of the Amended Petition should be denied.
To the extent that Petitioner is arguing that the jury's verdict was against the weight of the evidence (see Am. Pet. at 5), such a claim is not cognizable on habeas review. “Unlike a sufficiency of the evidence claim, which is based upon federal due process principles, a weight of the evidence claim is ‘an error of state law, for which habeas review is not available.'” Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y. 2006) (citing Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y. 2002)); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus . . .”).
II. Petitioner's Claim Regarding The Jury Charge Is Not Cognizable And, In Any Event, Lacks Merit (Ground Two)
Petitioner challenges the trial court's jury charge regarding his convictions for attempted first-degree gang assault. To be cognizable in a federal habeas petition, a challenge to a state court jury charge must not only show that the jury charge is an erroneous statement of law but also that the error violated a federal right. See Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); see also Cottrel v. New York, 259 F.Supp.2d 300 (S.D.N.Y. 2003) (“Generally, in all claims relating to the insufficiency or impropriety of jury instructions, ‘a jury charge in a state trial is normally a matter of state law and is not reviewable on federal habeas corpus absent a showing that the alleged errors were so serious as to deprive defendant of a federal constitutional right.'”). For an erroneous jury charge to violate a federal right, the allegedly flawed instruction must have “so infected the entire trial that the resulting conviction violates due process.” Davis, 270 F.3d at 123 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); Gonzalez v. Cunningham, 670 F.Supp.2d 254, 263 (S.D.N.Y. 2009).
Petitioner's claim is not cognizable because there was no erroneous statement of law, given that the trial court's jury charge regarding accomplice liability and first-degree gang assault tracked the statutory language contained in the New York Penal Law. (Compare Trial Tr. 1455-58 with N.Y. Penal Law § 20.00 (accomplice liability); compare Trial Tr. 1458, 1461-62, 1465 with N.Y. Penal Law § 120.07 (first-degree gang assault).) Thus, Petitioner has failed to show that the jury charge contained an error of New York state law, let alone an error of federal constitutional law. Accordingly, I recommend that Petitioner's claim regarding the jury charge be dismissed on the bases that it is not cognizable on federal habeas review and is without merit.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Shoy's Amended Petition for a Writ of Habeas Corpus be DENIED.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick.
THE FAILURE TO FILE THESE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF THOSE OBJECTIONS FOR PURPOSES OF APPEAL. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).