Arena v. Perez

Filing 10

ORDER DISMISSING CASE: For the reasons set forth in the attached memorandum and order, the Court denies Petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner has not made a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 6/19/2017. (Chivers, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
VINCENT ARENA,
Petitioner,
MEMORANDUM & ORDER
11-CV-1905 (PKC)

- against ADA PEREZ, Superintendent, Downstate
Correctional Facility,
Respondent.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Petitioner Vincent Arena (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his conviction entered on September 29, 2008, in the Supreme Court of the
State of New York, Kings County. Following a jury trial, Petitioner was convicted of one count
of murder in the second degree, in violation of New York Penal Law § 125.25(3), and one count
of falsely reporting an incident, in violation of New York Penal Law § 240.50(1). He was
sentenced to an aggregate indeterminate term of 25 years to life in prison. Petitioner contends that
his conviction should be vacated as not supported by sufficient evidence. For the reasons stated
below, the petition for writ of habeas corpus is denied.
BACKGROUND
I.

FACTS
Viewing the facts presented at Petitioner’s trial in the light most favorable to the

prosecution, United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008), a reasonable jury could have
found the following.
On the night of September 4, 2005, Petitioner was playing cards and watching television
at a social club in Brooklyn, New York, with his acquaintances John Mirablie, John Fontana, and

Matthew Munch. (Trial Tr. (“Tr.”) 266-69 (Munch); Tr. 670 (Fontana).) Petitioner, Fontana, and
Mirablie were all drinking beer. (Tr. 268 (Munch).) At some point, Mirablie placed a phone call
to a friend of his, Anthony Braccia. (Tr. 669 (Fontana).) At around 3:30 a.m., Braccia and a
friend, Antonio Calandra, arrived at the social club. (Tr. 217-20 (Calandra); Tr. 269-70 (Munch);
Tr. 671-74 (Fontana).)

Braccia was wearing conspicuous and expensive looking jewelry.

(Tr. 279-80, 444 (Munch).) Before that night, Petitioner, Munch, and Fontana had never met
Braccia or Calandra. (Id.) The six men—Petitioner, Fontana, Munch, Mirablie, Calandra, and
Braccia—socialized at the club until around 4:45 a.m., when they decided to drive to a nearby
bagel store. (Tr. 217-20 (Calandra); Tr. 269-70, 272, 275-77 (Munch); Tr. 671-74 (Fontana).) The
six men rode together in Petitioner’s commercial van, which resembled a small school bus, with
Munch driving the van and the other five men seated in the back. (Tr. 220-21 (Calandra);
Tr. 271-75 (Munch); Tr. 674-75 (Fontana).)
When the men arrived at the bagel store, everyone went inside except Munch, who stayed
with the van. (Tr. 226-27 (Calandra); Tr. 281-82 (Munch); Tr. 678-79, 809 (Fontana).) Petitioner
and Fontana were the first to emerge from the store, and, as they approached the van, Petitioner
told Fontana that Anthony Braccia was “a jerkoff” who “deserves to get robbed.” (Tr. 284-85,
447 (Munch); Tr. 679-80, 685-86, 809-11, 903, 999 (Fontana).) The other three men returned to
the van a few minutes later. (Tr. 284-86, 449-50 (Munch); Tr. 905-07 (Fontana).) Munch then
began to drive the men to their respective homes. Munch dropped off Mirablie first and Calandra
second, leaving Petitioner, Fontana, and Braccia alone in the back of the van. (Tr. 285-88
(Munch); Tr. 229-30, 254-55 (Calandra); Tr. 688-89, 907-08, 912 (Fontana).) Although Fontana
lived down the street from Mirablie, Fontana did not ask to get out of the van when Mirablie was

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dropped off, choosing instead to stay in the van. (Tr. 908 (Fontana).) Braccia was still wearing
his jewelry when Calandra was dropped off. (Tr. 230 (Calandra); Tr. 287 (Munch).)
As Munch drove the van toward the next drop-off point, Petitioner stabbed Braccia twice
with a knife and demanded that Braccia remove his jewelry. (Tr. 691-92, 777-78 (Fontana).)
Fontana, referring to the jewelry, told Braccia to “[t]ake it off, just take it off.” (Tr. 290, 292,
471-72 (Munch); Tr. 779 (Fontana).) As Munch continued to drive the van, Petitioner continued
to stab Braccia with a knife. (Tr. 780-81 (Fontana).) Fontana was not involved in the attack on
Braccia, but, at some point, Braccia forcibly pinned Fontana against the windshield of the van.
(Tr. 290-91, 471-74, 476 (Munch); Tr. 781-83, 926-27 (Fontana).) In the course of this physical
struggle, Braccia was stabbed thirty times, and his throat was slashed. (Tr. 290-91, 293, 471-72,
477, 483 (Munch); Tr. 785-87 (Fontana).) Braccia died from his wounds in the van, and his blood
covered the inside of the van, his clothes, and the clothes of Petitioner and Fontana. (Tr. 295,
478-79 (Munch); Tr. 786-87 (Fontana).) Thereafter, Munch stopped the van, and Petitioner and
rolled Braccia’s motionless body out of the van and onto the street. (Tr. 296, 492 (Munch);
Tr. 787, 790 (Fontana).) Braccia’s body was found later that morning, without any of the jewelry
Braccia had been wearing the night before. (Tr. 138 (Gangi).)
After dumping Braccia’s body, Petitioner, Fontana, and Munch attempted to conceal their
involvement in Braccia’s death. The three men changed out of their bloodied clothing and
attempted to clean the bloodstains on the inside of Petitioner’s van. (Tr. 297-302, 306-12 (Munch);
Tr. 788-90 (Fontana).) When their attempts to remove the bloodstains from the van failed,

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Petitioner told Munch to abandon the van on the outskirts of Brooklyn. (Tr. 314-16 (Munch).)
Petitioner then reported the van as stolen. (Tr. 594-97 (Maldonado).)1
In September 2006, after a year-long investigation, New York City Police Department
officers arrested Petitioner, Munch, and Fontana in connection with Braccia’s death. (Tr. 1295-97,
1339-40 (Det. Yero).) Petitioner was charged with first degree murder, second degree murder,
falsely reporting an incident in the third degree, and related counts. (Dkt. 4 ¶ 6.) Fontana was
charged with felony murder and robbery. (Tr. 799 (Fontana).) In March 2008, Fontana and Munch
entered guilty pleas pursuant to cooperation agreements with the government; Fontana and Munch
each pled guilty to hindering prosecution, in satisfaction of all charges against them. (Tr. 352-53
(Munch); Tr. 799, 805 (Fontana).)
II.

TRIAL, VERDICT AND SENTENCING
Petitioner was tried before a jury in April 2008 in the Supreme Court of the State of New

York, Kings County. (Dkt. 1 ¶ 6.) The government’s main witnesses against Petitioner were
Fontana and Munch, both of whom testified pursuant to their cooperation agreements. (Tr. 352-53
(Munch); Tr. 799, 805 (Fontana).) As first-hand witnesses to Braccia’s death, Fontana and Munch
testified that Petitioner was Braccia’s sole assailant and responsible for Braccia’s death, as set forth
in the Facts section above. The government also introduced forensic evidence, including an
autopsy report showing that Braccia’s body had thirty stab wounds and a slashed jugular vein. (Tr.
1434-35, 1444-45 (Dr. Roman).) The medical examiner who testified at trial could not determine
the order in which the wounds were inflicted, nor could she determine how many assailants had
stabbed Braccia. (Tr. 1435-39 (Dr. Roman).) The medical and forensic evidence was inconclusive

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No evidence was introduced at trial regarding what happened to the knife Petitioner used
to stab Braccia.
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as to whether Braccia had been stabbed by single knife or two different knives. (Id.) The forensic
evidence was also inconclusive as to whether Braccia had been stabbed by a single person or by
multiple people. (Id.)
Petitioner did not testify at trial, but the defense called one of Petitioner’s friends, Nikola
Russo, to testify as part of Petitioner’s defense. Russo described a conversation between himself
and Munch during which Munch told Russo that, a couple months earlier, Fontana had gotten into
a fight in a van and stabbed someone. (Tr. 1490 (Russo).) According to Russo, Munch told Russo
to keep that information confidential. (Id.)
In the government’s closing argument, the prosecutor asked the jury to find Petitioner
guilty of murder in the first degree, felony murder in the second degree, and false reporting of an
incident. (Tr. 1741-42.) With respect to the count for felony murder in particular, the prosecutor
urged the jury to find Petitioner guilty based on the theory that Braccia was killed in the course of
Petitioner and Fontana acting in concert to rob Braccia. (Id.) The prosecutor did not expressly
argue in closing that the jury should find Petitioner guilty of felony murder based on Petitioner’s
own personal acts that caused Braccia’s death in the course of robbing him. (Id.)2
In its charges to the jury, the trial court stated the elements of the criminal counts against
Petitioner. (Dkt. 4 at ECF3 23-24.) With respect to the count for felony murder, the trial court did
not limit its instructions to the “acting in concert” theory that the prosecution had emphasized in
its closing argument. (Id.) Instead, the trial court instructed the jury that each element of felony

2

Petitioner, however, argues that the prosecutor “made it plain” that he was asserting an
“acting in concert” theory of felony murder. (Pet.’s Br. 34.)
3

“ECF” refers to the pagination generated by the Court’s CM/ECF system, not the
document’s internal pagination.
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murder could be satisfied either by Petitioner’s “personal” actions or by Fontana’s actions to the
extent the jury found that Petitioner was “acting in concert with Fontana.” (Id.)
The jury found Petitioner not guilty of murder in the first degree, but guilty of felony
murder in the second degree and falsely reporting an incident. (Dkt. 4 ¶ 7.) With respect to the
count for felony murder, the jury’s general verdict did not indicate whether the jury believed that
Petitioner “personally” caused Braccia’s death, or believed that it was Fontana who caused
Braccia’s death, with Petitioner merely “acting in concert” with Fontana to rob Braccia. (Id.) On
September 29, 2008, Petitioner was sentenced to concurrent prison terms of twenty-five years to
life on the felony murder count and one year on the false reporting count. (Dkt. 4 ¶ 8.)
III.

EXHAUSTION OF STATE REMEDIES
Petitioner appealed his conviction to the Supreme Court of New York, Appellate Division,

Second Department (“Appellate Division”). (Dkt. 4 ¶ 9.) On direct appeal, Petitioner asserted
several claims of error in his conviction, including, as relevant here, that his conviction for felony
murder was against the weight of the evidence. (Id.) In particular, Petitioner argued that
“[because] the felony murder count was predicated on the concerted robbery as an underlying
felony, and the evidence of such robbery was insufficient, the evidence of felony murder was
equally insufficient, and that count must be reversed and dismissed.” (Pet.’s App. Div. Br. 19.)
The Appellate Division rejected all of Petitioner’s claims of error and affirmed his
conviction and sentence. (Dkt. 1 at ECF 5-7.) With respect to Petitioner’s arguments about the
sufficiency of the evidence, the Appellate Division held that, “[v]iewing the evidence in the light
most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s
guilt beyond a reasonable doubt.” (Dkt. 1 at ECF 6.) The New York Court of Appeals denied

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Petitioner’s application for discretionary review on August 18, 2010, and Petitioner did not file a
petition for writ of certiorari in the United States Supreme Court. (Dkt. 1 ¶¶ 8-9.)
IV.

INSTANT PETITION
On April 19, 2011, Petitioner timely filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254, seeking vacatur of his conviction for felony murder in the second
degree. (Dkt. 1 at ECF 2-3.) Petitioner asserts as his sole ground for habeas relief that he was
denied “due process because the evidence of murder in the second degree (felony murder) under
an acting in concert theory was legally insufficient in that cooperating witnesses Munch and
Fontana—the two individuals in the van with petitioner—denied having participated in any way
in the underlying robbery of decedent Braccia, and thus an essential element was not proven
beyond a reasonable doubt.” (Dkt. 1 at ECF 2-3.)
DISCUSSION
I.

EXHAUSTION
As a threshold matter, a prisoner seeking habeas relief in federal court must have exhausted

his state remedies by “presenting [his] constitutional claims to the state courts in the first instance.”
Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014) (citing 28 U.S.C. § 2254(b)). “This requires
that the prisoner ‘fairly present’ his constitutional claim to the state courts, which he accomplishes
‘by presenting the essential factual and legal premises of his federal constitutional claim to the
highest state court capable of reviewing it.’” Id. at 133 (quoting Rosa v. McCray, 396 F.3d 210,
217 (2d Cir. 2005)). “While ‘a state prisoner is not required to cite chapter and verse of the
Constitution in order to satisfy this requirement,’ he must tender his claim ‘in terms that are likely
to alert the state courts to the claim’s federal nature.’” Id. (quoting Carvajal v. Artus, 633 F.3d 95,
104 (2d Cir. 2011)).

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Here, Respondent concedes that Petitioner raised his insufficiency of evidence claim on
direct appeal to the Appellate Division and in his petition seeking review by the New York Court
of Appeals. (Dkt. 4 ¶¶ 9, 13.) Petitioner has properly exhausted his state law remedies with respect
to the claim asserted in the instant petition.
II.

PROCEDURAL BAR
Under 28 U.S.C. § 2254, the Court need not consider the merits of any claim that is

procedurally defaulted. Harrington v. Richter, 562 U.S. 86, 103 (2011). “A procedural default
occurs in one of two ways.” Jackson, 763 F.3d at 133. First, it occurs when “the state prisoner
fails to exhaust his state remedies . . . .” Id. Second, it occurs “if the state court’s rejection of
a federal claim rests on state law grounds—such as the operation of a state procedural rule—that
is both independent of the federal question and adequate to support the judgment.” Id. (quotation
omitted); accord Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does
not lie for errors of state law.” (quotation omitted)); Howard v. Walker, 406 F.3d 114, 121
(2d Cir. 2005) (“A claim that a state conviction was obtained in violation of state law is not
cognizable in the federal court.”). “The preclusion of federal review applies only when ‘the last
state court rendering a judgment in the case clearly and expressly states that its judgment rests
on a state procedural bar.’” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006) (quoting Glenn
v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)).
As noted above, Petitioner exhausted his state remedies with respect to the claim
presented here. In addition, the highest state court to consider Petitioner’s insufficiency of
evidence claim, the Appellate Division, concluded that “the evidence . . . was legally sufficient
to establish the defendant’s guilt beyond a reasonable doubt.” (Dkt. 1 at ECF 6.) The Appellate
Division did not reject Petitioner’s insufficiency of evidence claim solely “on state law

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grounds—such as the operation of a state procedural rule.” Jackson, 763 F.3d at 133. In short,
there is no procedural bar to Petitioner’s federal habeas claim.
III.

STANDARD OF REVIEW
A federal district court “shall entertain an application for a writ of habeas corpus [o]n behalf

of a person in custody pursuant to the judgment of a State court on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). If
a petitioner’s claim was “adjudicated on the merits in State court proceedings,”4 the district court
may grant the petition if the adjudication of the claim:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was 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).
A State court decision is “contrary to” clearly established federal law if “the state court
reached a conclusion of law that directly contradicts a holding of the Supreme Court” or, “when
presented with ‘facts that are materially indistinguishable from a relevant Supreme Court
precedent,’” the State court arrived at an opposite result. Evans v. Fischer, 712 F.3d 125, 132
(2d Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
A State court decision is an “unreasonable application” of clearly established federal law
if “the state court identifies the correct governing legal principle from [Supreme Court] decisions
but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at

4

An “adjudication on the merits” is one that “(1) disposes of the claim on the merits, and
(2) reduces its disposition to judgment.” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quotation
omitted).
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413. The Court cautions, however, that “an unreasonable application of federal law is different
from an incorrect application of federal law.” Id. at 410; see also Grayton v. Ercole, 691 F.3d
165, 174 (2d Cir. 2012) (“[T]he writ may only issue where the state court's application of the law
was not only wrong, but unreasonable.”). A federal 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 [the Supreme] Court’s precedents.” Harrington, 562 U.S. at 102.
Furthermore, “[i]n § 2254 proceedings[,] a court must assess the prejudicial impact of
constitutional error in a state-court criminal trial under the substantial and injurious effect standard
set forth in Brecht v. Abrahamson.” Jackson, 763 F.3d at 140 (internal brackets and quotation
omitted).

Under Brecht, “a federal court may overturn a state conviction only when the

constitutional violation ‘had a substantial and injurious effect or influence in determining the jury’s
verdict.’” Id. (quoting Brecht, 507 U.S. at 637). In this regard, “[t]he strength of the prosecution’s
case without the erroneously admitted evidence ‘is probably the single most critical factor in
determining whether the error was harmless.’” Id. To evaluate the importance of the wrongly
admitted evidence, a federal court considers “(1) the prosecutor’s conduct with respect to the
evidence, (2) whether the evidence bore on an issue plainly critical to the jury’s decision, and (3)
whether the evidence was material to the establishment of the critical fact, or whether it was instead
corroborated and cumulative.” Id. (quotation marks omitted).
IV.

ANALYSIS
As noted above, Petitioner asserts a single ground for habeas relief: “the prosecution failed

to prove that Braccia’s death actually occurred in connection with a robbery in which Arena and
Fontana acted in concert, and thus the evidence was insufficient as to [the felony murder count],
in violation of Arena’s right under the federal constitution to be convicted only ‘upon proof beyond

10

a reasonable doubt of every fact necessary to constitute the crime of which he [was] charged.’”
(Pet.’s Br. 2 (quoting In re Winship, 397 U.S. 358, 364 (1970)).)
On federal habeas review, the Court generally does not have authority to grant relief based
on an independent review of the weight of the evidence supporting a state jury’s verdict. See
Young v. Abrams, 698 F.2d 131, 135-36 (2d Cir. 1983). On direct appeal, the Appellate Division
affirmed Petitioner’s conviction, noting specifically that it had “fulfill[ed] [its] responsibility to
conduct an independent review of the evidence,” and was “satisfied that the verdict of guilt was
not against the weight of the evidence.” (Dkt. 1 at ECF 6.) The federal habeas mechanism does
not authorize this Court to second-guess that evaluation. Young, 698 F.2d at 135-36.
The circumstances in which a federal district court may grant habeas relief based on
insufficiency of the evidence are extremely narrow. As the Supreme Court recently explained:
The opinion of the Court in Jackson v. Virginia, 443 U.S. 307 (1979), makes clear
that it is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of
fact could have agreed with the jury. What is more, 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. The federal court instead
may do so only if the state court decision was “objectively unreasonable.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quoting Renico v. Lett, 559 U.S. 766, 772 (2010)). Indeed,
the Supreme Court “h[as] made clear that Jackson claims[—i.e., habeas claims asserting
insufficiency of the evidence—] face a high bar in federal habeas proceedings because they are
subject to two layers of judicial deference,” one layer of deference to the jury, and a second layer
of deference to the reviewing State court. Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012).
Against this background, the Court considers the merits of Petitioner’s claim that there was
insufficient evidence to convict him of felony murder under New York Penal Law § 125.25(3).
New York Penal Law defines felony murder as follows:
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A person is guilty of murder in the second degree when: Acting either alone or
with one or more other persons, he commits or attempts to commit robbery . . . and,
in the course of and in furtherance of such crime . . . he, or another participant, if
there be any, causes the death of a person other than one of the participants.
N.Y. Penal Law § 125.25(3).
Petitioner does not contend that the trial court’s charges to the jury failed to accurately
describe the elements of felony murder under the New York Penal Law. Petitioner argues, rather,
that there was no evidence introduced at trial that supported his conviction for felony murder.
(Pet.’s Br. 19-20, 26-28.) According to Petitioner, the jury’s decision to acquit Petitioner on the
count of murder in the first degree demonstrated that the jury did not believe Petitioner was the
one who stabbed Braccia, and, therefore, the jury must have convicted Petitioner of felony murder
based on his acting “in concert with” Fontana to rob Braccia, even though it was Fontana (not
Petitioner) who stabbed and killed Braccia. (Pet.’s Br. 26-27; see also Pet.’s Reply Br. 1 (asserting
that “[t]here was a considerable risk here that Arena—who was acquitted of intentional
murder . . .—was convicted of felony murder based on the jury’s conclusion that it was Fontana,
and not Arena, who had stabbed Braccia to death, but that Arena and Fontana had acted together
to rob Braccia”).) Petitioner claims that a verdict resting on that premise cannot stand because
“[s]uch a finding under an acting in concert theory was not supported by legally sufficient evidence
. . . since there was no evidence that Fontana intended to rob Braccia, let alone shared such intent
with Arena.” (Pet.’s Reply Br. 1-2.)
Given the deferential standard of review that applies here, the Court must reject
Petitioner’s claim of insufficiency of the evidence. In his argument, Petitioner places great
emphasis on Fontana’s and Munch’s testimony in which they denied any intent to rob Braccia and
denied any involvement in the brutal stabbing and killing of Braccia. (E.g., Pet.’s Br. 29-30.) But
Petitioner ignores the extensive and obvious circumstantial evidence from which a rational juror
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could have concluded that Arena and Fontana had a common intent to rob Braccia of his jewelry.
The record shows that minutes before the stabbing, Fontana and Arena walked out of the bagel
shop together talking about Braccia. Fontana also admitted that he lived down the street from
Mirablie, yet did not ask to be dropped off at the same time as Mirablie, suggesting that Fontana
was motivated to remain in the van after Mirablie and Calandra were dropped off. The record also
shows that Fontana actively participated in concealing the killing of Braccia, and one witness,
Nikola Russo, testified that Munch admitted that Fontana had stabbed Braccia.5 Finally, when
Arena began to stab Braccia, Fontana told Braccia to just “let go” of his jewelry. Based on these
circumstances, a rational juror could have concluded beyond a reasonable doubt that Fontana and
Arena had a common purpose to rob Braccia. Furthermore, this Court cannot say, as would be
required to vacate Petitioner’s conviction under Jackson, that the Appellate Division was
objectively unreasonable to reject Petitioner’s insufficiency of evidence claim and affirm
Petitioner’s conviction.
Furthermore, even if the Court agreed with Petitioner that no rational juror could have
found beyond a reasonable doubt that Petitioner and Fontana “acted in concert” to rob Braccia, the
Court nonetheless would not grant habeas relief. New York Penal Law § 125.25(3) makes clear
that a defendant can be convicted of felony murder even if he is acting “alone.” The trial court’s
jury charge reflected this form of felony murder by instructing the jury that each element of the
crime could be satisfied either by Petitioner’s “personal” actions or by Fontana’s actions, to the

5

Although Russo’s testimony that Fontana stabbed Braccia could have caused the jury to
discredit Fontana’s and Munch’s identification of Petitioner as the lone stabber, it nonetheless
supported a felony murder theory, by providing evidence of Fontana’s complicity in the three
men’s plan to rob the victim. In order to convict Petitioner of felony murder, the jury did not need
to find that he was the sole person, or even one of the persons, who stabbed Braccia, but only that
he “acted in concert” with Fontana and Munch to commit the robbery that resulted in Braccia’s
death. (See Dkt. 4 at ECF 23-24 (jury instruction on felony murder charge).)
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extent the jury found that Petitioner was “acting in concert with” Fontana. (Dkt. 4 at ECF 23-24.)
Given the extensive testimony from Fontana and Munch that established Arena’s intentions to rob
Braccia and Arena’s subsequent attack on Braccia, a rational jury could have found that Arena,
acting alone, caused Braccia’s death in the course of robbing him.6
CONCLUSION
For the reasons set forth above, the Court denies Petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Because Petitioner has not made a substantial showing of a
denial of a constitutional right, no certificate of appealability shall issue.

See 28 U.S.C.

§ 2253(c)(2). Additionally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied
for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk
of Court is respectfully requested to enter judgment and close this case.

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Petitioner argues that his conviction cannot be sustained based on the theory that
Petitioner himself stabbed Braccia. First, Petitioner argues that “[t]he acquittal of Arena on
[murder in the first degree] . . . indicates that the jury was not convinced that it was Arena who
had stabbed Braccia.” (Pet.’s Br. 26.) The Court disagrees. Given the facts introduced at trial, a
rational juror could have concluded that Petitioner lacked the specific intent needed to convict him
of murder in the first degree, yet still was the one, or one of the ones, who stabbed Braccia in the
course of robbing him. Second, Petitioner argues that, under New York law, a general verdict,
like the one returned in Petitioner’s case, cannot rest on a jury charge that invites the jury to render
a general verdict based on one or more “alternative theories” of the same crime. According to
Petitioner, New York law prohibited the trial court from instructing the jury that each element of
felony murder could be satisfied either by Petitioner’s “personal” actions or by Fontana’s actions,
to the extent the jury found that Petitioner was “acting in concert with” Fontana. (Pet.’s Br. 27-29.)
However, the Court cannot grant federal habeas relief based on a supposed violation of New York
law governing general verdicts. For purposes of this Court’s habeas review, “when disjunctive
theories are submitted to the jury and the jury renders a general verdict of guilty, . . . [i]f [the
defendant’s] challenge [to the submission of disjunctive theories] is evidentiary”—as Petitioner’s
challenge is here—“as long as there was sufficient evidence to support one of the theories
presented, then the verdict should be affirmed.” United States v. Garcia, 992 F.2d 409, 416 (2d
Cir. 1993) (citing Griffin, 502 U.S. 46, 50 (1991)); accord Lopez v. Smith, 135 S.Ct. 1, 5 (2014).
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SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge

Dated: June 19, 2017
Brooklyn, New York

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