Prince v. Lee

Filing 13

MEMORANDUM AND ORDER: For the reasons stated in the attached Memorandum and Order, Prince's petition for a writ of habeas corpus 1 is denied. A copy of the Memorandum and Order and the transcript of the oral argument will be mailed to Prince. Ordered by Judge John Gleeson on 4/22/2011. (Cooley, Alicyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
CHRISTOPHER PRINCE,
:
:
Petitioner,
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:
- against :
:
WILLIAM LEE,
:
:
:
Respondent. :
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A P P E A R A N C E S:

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER
10-CV-5306 (JG)

CHRISTOPHER PRINCE
# 04-R-1765
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582-0010
Petitioner, pro se
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
120 Broadway
New York, New York 10271
By:
Lisa Ellen Fleischmann and Alyson J. Gill
Attorneys for Respondent
JOHN GLEESON, United States District Judge:
Christopher Prince petitions for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Prince challenges his April 2004 conviction in New York State Supreme Court, Queens
County, of criminal possession of a weapon in the third degree pursuant to New York Penal Law
§ 265.02(4). 1 Appearing pro se, Prince seeks habeas relief on the grounds that there was
insufficient evidence supporting his conviction and he was denied effective assistance of
appellate counsel. Oral argument was heard on April 5, 2011, at which Prince appeared via

1

Subsection 265.02(4) was repealed as of November 1, 2006. L.2006, c. 742, § 1.

videoconference from his place of incarceration. Prince’s reply brief, dated April 4, 2011,
reached the Court on April 8, 2011, and I considered it in arriving at my decision on Prince’s
petition. For the reasons stated below, the petition is denied.
BACKGROUND
A.

The Offense Conduct
The evidence at trial established that late in the evening on March 19, 2003,

Prince answered his girlfriend Natalie Smith’s cell phone while at her house in Queens. The
caller was Smith’s ex-boyfriend, Orville Mongol. Mongol became upset when he heard a male
voice answer Smith’s phone, and he asked to speak to Smith. After the call ended, Ian Burke, a
friend of Mongol who was with him at the time, attempted to calm Mongol down. Mongol then
drove to Smith’s house with Burke and Burke’s girlfriend in his truck, double parked on Smith’s
street, and exited the truck with the engine still running while Burke moved to the back seat with
his girlfriend. Mongol knocked on Smith’s door, and when no one answered he yelled to Smith
to open the door. After Smith refused, Mongol yelled to Jennifer Turner – the owner of Smith’s
building – to open the door, and she complied. As Turner opened the door, Prince ran down the
stairs behind her and attempted to exit the building through the front door. Mongol demanded to
know Prince’s name and blocked his exit.
Mongol and Prince then walked down the house’s steps and onto the sidewalk,
where their conflict escalated. At some point during or shortly after his walk down the steps to
the sidewalk, Prince put his hand in his back pocket. He then walked past Mongol’s vehicle and
into the street, while Mongol walked toward the back of the vehicle. Prince then quickly turned
around so he was facing Mongol, pointed a gun at Mongol and fired at him. Mongol hid behind
the side of his truck, and at that point, Prince ran across the street and fired another shot after

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several failed attempts to cock the gun. Mongol then tried to get back into his truck and drive
after Prince, who was running away, but Burke stopped Mongol by putting his foot on the brake
and wrestling with Mongol to keep him out of the vehicle.
After Prince fled, the police arrived, patted down Mongol, and elicited a statement
from him. Detective Steven DeLuca told Mongol to call him if he saw Prince again and to avoid
speaking to Prince. After Mongol’s second sighting of Prince at a night club, Mongol called
DeLuca to notify him that he had seen Prince twice. Mongol subsequently found Prince’s cell
phone number on Smith’s cell phone while at a party for his and Smith’s daughter, and he
provided that phone number to DeLuca. On May 5, 2003, DeLuca called Prince and arranged to
meet him in front of his house. Prince arrived at the specified time with Smith, and agreed to
accompany DeLuca to the police precinct, where DeLuca arrested him.
B.

Procedural History
1.

The Trial and Sentencing
Prince proceeded to a jury trial before Justice Barry Kron of the New York State

Supreme Court, Queens County. Mongol, Burke, Detectives DeLuca and Vincent Papasodero,
and Police Officer Michael DeBonis testified for the People. The defense called Smith, Turner
and Andrew Stephenson, whom Prince had called on the night of the shooting to pick him up and
give him a ride home, and who witnessed Prince and Mongol’s altercation but did not see who
fired the gunshots. On March 23, 2004, the jury returned a verdict acquitting Prince of attempted
murder of Mongol, criminal possession of a weapon in the second degree and reckless
endangerment, but convicting him of criminal possession of a weapon in the third degree. On
April 20, 2004, Justice Kron sentenced Prince to four years’ imprisonment and three years’ postrelease supervision.

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2.

The Direct Appeal
Prince appealed from the judgment of the Supreme Court on the ground that the

jury verdict was against the weight of the evidence. The People construed Prince’s argument to
include a legal sufficiency challenge to his conviction as well as a request for a new trial on the
ground that the guilty verdict was against the weight of the evidence. On October 7, 2008, the
Appellate Division, Second Department, affirmed Prince’s conviction, rejecting his legal
sufficiency claim as both unpreserved and lacking in merit. See People v. Prince, 864 N.Y.S.2d
331, 331 (2d Dep’t 2008) (“[W]e find that [the evidence] was legally sufficient to establish the
defendant’s guilt beyond a reasonable doubt.”). The court also exercised its factual review
power and held that the guilty verdict was not against the weight of the evidence. Id.
Prince applied for leave to appeal from this decision but a judge of the Court of
Appeals denied his application on June 30, 2009. People v. Prince, 11 N.Y.3d 929 (2009)
(Read, J.).
3.

The Motion for a Writ of Error Coram Nobis
On January 8, 2010, Prince moved pro se in the Appellate Division for a writ of

error coram nobis, contending that his appellate counsel was constitutionally ineffective in that
she failed to argue (1) that the trial court improperly swore prospective jurors; (2) that the
prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986) in exercising her peremptory
challenges to strike prospective jurors from the panel; (3) that trial counsel was ineffective in
failing to object to the manner in which the trial court handled jury notes, which, Prince argued,
violated New York law; (4) that trial counsel was ineffective in failing to preserve the legal
sufficiency claim; and (5) anything other than the unpreserved legal sufficiency claim on appeal.

4

The Appellate Division denied Prince’s application on June 29, 2010, holding that
Prince had “failed to establish that he was denied the effective assistance of appellate counsel.”
People v. Prince, 903 N.Y.S.2d 263, 263 (2d Dep’t 2010) (citations omitted). Prince then
petitioned for leave to appeal from this decision, but on September 17, 2010, a judge of the Court
of Appeals denied his application. People v. Prince, 15 N.Y.3d 855 (2010) (Graffeo, J.).
4.

The Instant Petition
Prince filed this petition pro se on November 15, 2010, claiming that he is entitled

to a writ of habeas corpus under 28 U.S.C. § 2254 because (1) the evidence adduced at his trial
was insufficient to sustain his conviction; and (2) he was denied the effective assistance of
appellate counsel because counsel failed to argue that (a) the prospective jurors were improperly
sworn; (b) the prosecutor’s peremptory challenges to the jury panel violated Batson v. Kentucky;
(c) the trial court violated New York law governing the protocol for jury notes and jury readback requests; and (d) trial counsel was ineffective for not having preserved the foregoing claims
in the proceedings below. Finally, Prince claims he was denied the effective assistance of
appellate counsel because his counsel raised only an unpreserved claim on direct appeal.
DISCUSSION
A.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) narrowed

the scope of federal habeas review of state convictions where the state court has adjudicated a
petitioner’s federal claim on the merits. 28 U.S.C. § 2254(d). Under the AEDPA standard, the
reviewing court may grant habeas relief only if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” id. § 2254(d)(1), or “was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding,” id. §
2254(d)(2). 2
The Supreme Court has interpreted the phrase “clearly established Federal law” to
mean “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); see also
Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A decision is “contrary to” clearly
established federal law if “the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A
decision is an “unreasonable application” of clearly established federal law if a state court
“identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. “In other words, a
federal court may grant relief when a state court has misapplied a ‘governing legal principle’ to
‘a set of facts different from those of the case in which the principle was announced.’” Wiggins
v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under the “unreasonable application” standard set forth in Williams, “‘a federal
habeas court may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.’” Gilchrist, 260
F.3d at 93 (quoting Williams, 529 U.S. at 411). Elaborating on this standard, the Supreme Court
has held that a habeas court may only “issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with this Court’s

2

This limitation on relief is referred to as “AEDPA deference.” E.g., Jimenez v. Walker, 458 F.3d
130, 135 & n.2 (2d Cir. 2006).

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precedents.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011); see also id. at 786-87 (a state
prisoner seeking federal habeas relief “must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement”).
“[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 786.
AEDPA’s limited scope of review applies whenever a state court disposes of a
state prisoner’s federal claim on the merits and reduces its disposition to judgment, regardless of
whether it gives reasons for its determination or refers to federal law in its decision. See Richter,
131 S. Ct. at 785; Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
In addition to the deference owed to state court determinations of fact under §
2254(d), subsection (e) requires that a federal habeas court presume all state court factual
determinations to be correct. The petitioner has the burden of rebutting this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
B.

Prince’s Claims
1.

Sufficiency of the Evidence
Prince first claims that there was insufficient evidence adduced at trial to support

his conviction for criminal possession of a weapon in the third degree. 3 A state habeas petitioner
is entitled to the writ if it is found that upon the evidence adduced at trial no rational trier of fact

3

Respondent contends, and the Appellate Division held, that Prince’s legal sufficiency claim was
procedurally defaulted in the state court proceedings. Based on my review of the record, I find otherwise: at the
close of the evidence, Prince’s trial counsel moved for dismissal of the People’s case on the ground that the People
had not “established a prima facie case,” and he further argued that “no jury [could find] proof beyond a reasonable
doubt” of the crimes charged. Tr. at 824. Counsel’s motion appears to me to constitute a sufficiency challenge, and
I therefore disagree with Respondent and the Appellate Division that this claim was procedurally defaulted. In any
event, I need not address Respondent’s procedural argument because I conclude that Prince’s legal sufficiency claim
is without merit. In light of my rejection of the legal sufficiency claim, I need not consider Respondent’s additional
contention that Prince’s “weight of the evidence” claim is not cognizable on federal habeas review.

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could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
324 (1979); see also id. at 319 (“[T]he 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.”). Guilt beyond a reasonable doubt
may be established entirely by circumstantial evidence, and such evidence must be reviewed not
piecemeal, but as a whole. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). The petitioner
bears a “very heavy burden” in convincing a federal habeas court to grant his petition on the
ground of insufficient evidence. Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002)
(quotation marks omitted).
At the time of Prince’s conviction, New York Penal Law § 265.02(4) provided
that a person is guilty of criminal possession of a weapon in the third degree when “[s]uch
person possesses any loaded firearm” other than “in such person’s home or place of business.”
The People therefore were obligated to prove beyond a reasonable doubt that Prince possessed a
loaded firearm, and that at the time of such possession, he was not in his home or place of
business. Prince argues that there was insufficient proof of his possession of the gun, focusing
primarily on the lack of credibility of the People’s witnesses. He notes that only Mongol and
Burke testified to his possession of the gun, and asserts that Mongol’s testimony was incredible
because Mongol had a motive to blame Prince, Mongol was the true aggressor in the incident,
and Mongol’s testimony was ridden with inconsistencies and contradictions, especially regarding
the number of gunshots he heard. Pet. at 4. Prince also attaches significance to the absence of
evidence reflecting that the gun attributed to him had been fired, and to the jury’s decision to
convict him only of criminal possession of a weapon in the third degree, despite his having been
charged with more severe offenses. Id.

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The Appellate Division found, upon “viewing the evidence in the light most
favorable to the prosecution, and drawing all reasonable inferences in the prosecution’s favor,”
that the evidence “was legally sufficient to establish the defendant’s guilt beyond a reasonable
doubt.” People v. Prince, 864 N.Y.S.2d at 331. I agree with this conclusion. Although Mongol
and Burke presumably sought to vindicate their own interests at trial, it was the jury’s province
to determine the credibility of these witnesses and to decide which version of the facts to accept,
and its decisions in this regard are entitled to deference. See, e.g., Maldonado, 86 F.3d at 35
(“[A]ssessments of the weight of the evidence or the credibility of witnesses are for the jury . . . ;
we defer to the jury’s assessments of both of these issues.”). Mongol’s and Burke’s testimony
that they saw Prince pull out a gun and aim it at Mongol, and that they heard two gunshots
thereafter, was sufficient evidence of Prince’s possession of the weapon. I further note that their
testimony was consistent with that of Turner, Stephenson, and Vernelle Phillips and Christopher
Phillips, Smith’s neighbors who heard the two gunshots and called 911.
For these reasons, I conclude that the Appellate Division’s decision rejecting
Prince’s sufficiency challenge was not an unreasonable application of clearly established federal
law.
2.

Ineffective Assistance of Counsel
Prince asserts that his appellate counsel’s errors amounted to constitutionally

ineffective assistance of counsel. In order to establish that his counsel was ineffective, he must
prove that (1) counsel’s performance fell below an objective standard of reasonableness, and (2)
there is a reasonable probability that, but for counsel’s errors, the result of the appeal would have
been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984); see Smith v. Murray,
477 U.S. 527, 535-36 (1986) (Strickland test applies to evaluate effectiveness of appellate

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counsel); see also Harrington v. Richter, 131 S. Ct. at 792 (in order to satisfy the prejudice prong
of the Strickland test, “[t]he likelihood of a different result must be substantial, not just
conceivable”). The relevant question for a habeas court reviewing a state court’s dismissal of an
ineffective assistance of counsel claim “is not whether counsel’s actions were reasonable,” but
“whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Richter, 131 S. Ct. at 788.
a.

The Swearing of Prospective Jurors

Although the transcript of Prince’s trial was amended to reflect that the entire
venire was sworn upon entering the courtroom for the first time, Prince nevertheless contends
that his rights to a fair trial and to an impartial jury were violated due to other omissions in the
swearing process. Specifically, Prince claims that there is no record of an oath being given to the
“three individual panels of jurors,” and that the jurors who formed the petit jury – including
those who replaced prospective jurors who were dismissed for cause or pursuant to peremptory
challenges – were not sworn “again prior to trial.” Pet. at 10-11. In his reply brief, Prince
elaborates on this claim, contending that the jury was not properly warned to avoid being
“influence[d] by non-court matters such as reading the paper or watching TV, where aspect[s] of
the case could be broadcast.” Prince Reply Br. at 5.
New York Criminal Procedure Law § 270.15 provides that a panel of prospective
jurors “shall be immediately sworn to answer truthfully questions asked them relative to their
qualifications to serve as jurors in the action,” and that “[t]he prospective jurors who are not
excluded from service must retain their place in the jury box and must be immediately sworn as
trial jurors” to “try the action in a just and impartial manner, to the best of their judgment, and to
render a verdict according to the law and the evidence.” N.Y. Crim. Proc. Law § 270.15(1)(a),

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(2). The court complied with this provision by immediately administering the oath to the
prospective jurors when they first entered the courtroom. Ex. G to Fleischmann Decl., at 12
(stating that trial record was recently amended before Justice Kron to officially read,
“Whereupon the jury was sworn in by the Clerk of the Court”). In addition, the record reflects
that the final 12 members of the jury were sworn prior to trial. Tr. at 232 4 (stating,
“[w]hereupon, the jurors were sworn in”). As a result, it appears that the trial court complied
with the applicable state law provisions regarding administration of the oath to jurors, and
Prince’s arguments to the contrary are baseless.
Furthermore, the court adequately instructed the 12 selected jurors to shield
themselves from outside influences on their deliberations, stating, after swearing them:
“Anything about the case reported in the press, studiously avoid it. It has nothing to do with
your job as [regards] reaching a verdict, which is [to] base your verdict solely and exclusively on
what you hear in the courtroom during the trial.” Id. at 233. At defense counsel’s request upon
the publication of certain newspaper articles about Prince’s case, the trial court again instructed
the jury on this issue in its jury charge. Id. at 956-57 (“I simply reiterate, because it is so
important that I keep reiterating this, that everything involved in the deliberations has to be based
solely and exclusively on the evidence you have heard during this trial from the witnesses, which
is . . . the sole thing that your verdict can be based on and cannot in any way be based on
anything written in the newspaper, an article or anything else that you might have been exposed
to.”).
In light of the foregoing, Prince’s appellate counsel’s decision not to raise this
issue on direct appeal did not fall below an objective standard of reasonableness. Counsel had
no constitutional “duty to raise every colorable claim suggested by” Prince, Jones v. Barnes, 463
4

Citations to the trial transcript are preceded by “Tr.”

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U.S. 745, 754 (1983) (quotation marks omitted), and counsel may well have decided that a weak
claim regarding the jury oath was not worth asserting. Moreover, there is no indication that the
appeal would have succeeded had counsel raised this claim. I accordingly find that the Appellate
Division’s rejection of this ineffective assistance of counsel claim on Prince’s coram nobis
motion was not an unreasonable application of federal law.
b.

The Prosecutor’s Peremptory Challenges to Prospective Jurors

Prince also claims that his appellate counsel was ineffective for not having argued
on appeal that the prosecutor’s use of her peremptory challenges against prospective jurors was
racially discriminatory in violation of Batson v. Kentucky, 476 U.S. 79 (1986). A defendant
raising a Batson objection to a prosecutor’s use of her peremptory challenges must first establish
a prima facie case of racial discrimination, which involves showing that he is a member of a
cognizable racial group and presenting facts and any other relevant circumstances – such as the
prosecutor’s “‘pattern’ of strikes against black jurors” in the venire – which “raise an inference
that the prosecutor used that practice to exclude [members of the venire] from the petit jury on
account of their race.” Id. at 96-97. Once the defendant has done so, the prosecutor must “come
forward with a neutral explanation for challenging black jurors” that is related to the case at bar.
Id. at 97. The trial judge then must determine whether the defendant has established purposeful
discrimination after “undertak[ing] a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Id. at 98, 93 (quotation marks omitted). Batson requires
the judge “to take into account all possible explanatory factors in the particular case[;]” for
example, “where the explanation for a peremptory challenge is based on a prospective juror’s
demeanor, the judge should take into account, among other things, any observations of the juror

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that the judge was able to make during the voir dire.” Thaler v. Haynes, 130 S. Ct. 1171, 1174
(2010) (per curiam) (quotation marks and brackets omitted).
Here, Prince’s trial counsel first objected to the prosecutor’s use of her
peremptory challenges after she challenged an African-American female juror. Tr. at 168-69.
Ostensibly because Prince is African-American, counsel argued that the prosecutor’s peremptory
challenge of a juror falling under the category of “minorities” or “non-whites” violated Batson.
Id. at 169. The trial court noted that the challenged juror was only the second African-American
juror on the panel, that the previous African-American juror had been seated with no objection,
and that defense counsel already had challenged three non-white jurors whom the prosecutor had
found acceptable. Id. at 171-72. Despite the court’s conviction that defense counsel had failed
to establish a prima facie case of a Batson violation, it nevertheless elicited a race-neutral
explanation for the peremptory challenge from the prosecutor, who pointed to the juror’s
statement that she was “a leader to a fault” and to her failure to pay attention to and comprehend
the prosecutor’s initial questioning. Id. at 174. The court then expressed its belief that “the
reasons Miss Neustadt has given are sincere,” were directed at “the individual person” in
question, and were based on “the way she responded” to the prosecutor’s questions. Id. After
the prosecutor’s second peremptory challenge of an African-American female juror, defense
counsel again raised a Batson objection regarding the prosecutor’s peremptory strikes of AfricanAmerican females. Id. at 175. After the prosecutor explained that she wished to challenge the
juror because she had responded to questions regarding how she would judge the credibility of a
witness with a blank stare, id. at 176, the court accepted this race-neutral explanation, stating, “I
do not believe the reason given is a subterfuge,” id. When defense counsel attempted to
persuade the court that the prosecutor’s explanation was illegitimate, the court elaborated on its

13

thought process, stating: “[i]n sitting here in the courtroom and observing the dynamics between
the attorneys and the potential jurors I take that all into account, and I do not believe the striking
of Miss Hoppie is a subterfuge.” Id. at 177. Finally, after the prosecutor struck a fourth female
African-American juror, the court initiated its own Batson inquiry on the ground that the
prosecutor had now exercised her third peremptory challenge against an African-American
woman, and the court “believe[d] that is a pattern.” Id. at 179. The prosecutor responded that
she could not get any responses from the juror in question and did not feel as if she could engage
her. Id. The court then concurred that the juror “had a disengaged demeanor sitting here” and
expressly accepted the prosecutor’s “reason given as something unrelated to race or gender and
again related to the dynamics of the interplay.” Id. at 179-80.
The record reflects that the trial court took seriously defense counsel’s allegations
of Batson violations and attempted to ferret out any racially discriminatory intent on the part of
the prosecutor. The court was ideally situated to judge the credibility of the prosecutor as she
explained her reasons for exercising her peremptory challenges against African-American
females, and to observe the demeanor of the challenged jurors during voir dire. In addition, the
fact that the court raised a Batson objection sua sponte after the prosecutor’s third peremptory
challenge of an African-American woman reflects its dedication to guarding against a Batson
violation.
In light of the propriety of the trial court’s denials of defense counsel’s Batson
objections, I have no difficulty concluding that Prince’s appellate counsel’s decision not to press
a Batson claim on appeal fell within the “wide range of professionally competent assistance”
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 690. Moreover, as the trial court’s
rulings on defense counsel’s Batson objections would have been entitled to deference on appeal,

14

I cannot conclude that the result of Prince’s appeal would have been different had appellate
counsel pursued a Batson claim. I therefore find that the Appellate Division’s rejection of this
ineffective assistance of counsel claim was not an unreasonable application of federal law.
c.

The Trial Court’s Failure To Comply with New York Criminal Procedure
Law § 310.30

Prince also takes issue with the manner in which the trial court handled jury notes
and read-back requests, and contends that his appellate counsel was ineffective for not having
argued on appeal that the court erred in this regard. Specifically, he criticizes the trial court for
not returning the jury to the jury room after they made their requests, not giving the prosecution
and defense a fair opportunity to respond to such requests, not introducing each read-back or
other request as a court exhibit, and failing to exercise its discretion to give the jury a copy of
certain state criminal statutes. Pet. at 14.
New York Criminal Procedure Law § 310.30 provides that, upon the jury’s
request for further instruction or information, “the court must direct that the jury be returned to
the courtroom and, after notice to both the people and counsel for the defendant, and in the
presence of the defendant, must give such requested information or instruction as the court
deems proper.” Here, the trial court responded to several of the jury’s requests seriatim after
bringing the jury into the courtroom, provided the jury with a read-back of Jennifer Turner’s
testimony after a short delay, and read the jury the New York state statutory definition of
reckless endangerment in the first degree in lieu of providing it with a copy of the statute itself.
See Tr. at 942-48. Although defense counsel encountered obstacles in returning to court upon
hearing that the jury had sent the court its first note, the record reflects that counsel was present
when the court responded to the jury’s requests. Finally, the court was well within its discretion
in declining to provide the jury with a copy of the criminal statute defining reckless

15

endangerment in the first degree, as § 310.30 authorizes but does not require the trial court to
“give to the jury copies of the text of any statute which, in its discretion, the court deems
proper.” N.Y. Crim. Proc. Law § 310.30. The court therefore did not err in its handling of the
jury’s notes and read-back requests, and Prince’s appellate counsel accordingly was not
ineffective in failing to raise this argument on appeal.
d.

Appellate Counsel’s Failure To Argue that Trial Counsel Was Ineffective

My analysis of Prince’s fourth ineffective assistance of counsel claim dovetails
with that of his preceding ineffective assistance claims, insofar as Prince cannot prevail on this
claim having failed to do so on the others. Just as Prince’s appellate counsel acted reasonably in
declining to raise the meritless claims discussed above, so was he not required to argue that trial
counsel was ineffective in failing to raise such claims. Trial counsel likely saw no error in the
court’s swearing of the jury or its handling of the jury notes and read-back requests, and to the
extent he objected to the prosecutor’s use of peremptory challenges, he stated that objection on
the record. I presume that appellate counsel concluded that trial counsel’s performance in these
respects was not objectively unreasonable under Strickland, and that trial counsel’s advocacy on
these issues would not have changed the outcome of the trial. To the extent Prince argues that
his appellate counsel should have contended that trial counsel was ineffective in failing to
preserve a sufficiency challenge, in my view, Prince’s appellate counsel in all likelihood
concluded that trial counsel did not perform objectively unreasonably in choosing to pursue a
weight of the evidence claim over a sufficiency challenge. As a result, I reject this ineffective
assistance of counsel claim as well.

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e.

Failure To Raise Any Claims Besides the Weight of the Evidence Claim

As a final quibble with his appellate counsel’s performance, Prince contends that
counsel should not have limited her arguments on appeal to “an unpreserved claim.” Pet. at 16.
Although the Appellate Division deemed Prince’s sufficiency challenge unpreserved, the
primary claim advanced by counsel on appeal – that the verdict was against the weight of the
evidence – was preserved for appellate review. In addition, although Prince faults counsel for
failing to raise “more meritorious issues” on appeal, he has failed to convince me that there were
any such issues to be raised. For these reasons, the Appellate Division did not unreasonably
apply clearly established federal law in rejecting all of Prince’s ineffective assistance of counsel
claims. 5
CONCLUSION
Prince’s petition for a writ of habeas corpus is denied. As Prince has failed to
make a substantial showing that he was denied a constitutional right, no certificate of
appealability shall issue.
So Ordered.
John Gleeson, U.S.D.J.
Date: April 22, 2011
Brooklyn, New York

5

In his reply brief, Prince supplements his ineffective assistance of counsel claims by pointing to
his appellate counsel’s failure to argue that trial counsel was ineffective in not moving for a dismissal of the
indictment at the close of the People’s case and/or the defense’s case or after summations. Prince Reply Br. at 11.
This claim is contradicted by the record, which reflects that Prince’s trial counsel moved to dismiss the People’s
case at the close of the evidence, Tr. at 824, and therefore I reject Prince’s argument that his appellate counsel was
required to assert ineffective assistance of trial counsel on this basis. Prince also takes issue with his appellate
counsel’s failure to provide “effective representation” in connection with Prince’s coram nobis application. Prince
Reply Br. at 12. This claim fails not only because Prince elected to submit that application pro se, but also because
there is no constitutional right to counsel with respect to such collateral post-conviction proceedings, see
Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987); McKethan v. Mantello, 292 F.3d 119, 123 (2d Cir. 2002).

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