Santiago v. Kaplan

Filing 11

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. I decline to issue a certificate of appealabilty. Ordered by Judge Edward R. Korman on 7/24/2014. (Nielsen, Elizabeth) (Main Document 11 replaced on 7/24/2014) (Chee, Alvin).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

NIXZALIZ SANTIAGO,
Petitioner,
MEMORANDUM & ORDER
– against –
SABINA KAPLAN, Superintendent,

13-CV-00218 (ERK) (LB)

Respondent.

KORMAN, J.:
I assume familiarity with the circumstances of this case. Briefly, Nixzaliz Santiago was
convicted of manslaughter in the first degree, two counts of assault in the second degree,
unlawful imprisonment in the second degree, and endangering the welfare of a child in relation
to the death of her seven year old daughter, Nixzmary Brown. Santiago’s husband, Cesar
Rodriguez, was separately tried and convicted. On November 12, 2008, Santiago was sentenced
to consecutive terms of imprisonment of twenty-five years for manslaughter, seven years for
each assault, one and one-third to four years for unlawful imprisonment, and one year for
endangering the welfare of a child. On August 23, 2011, the Appellate Division modified the
judgment by vacating the conviction of assault in the second degree as charged in the fourth
count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the
indictment. People v Santiago, 928 N.Y.S.2d 602 (N.Y. App. Div. 2011). The Appellate
Division affirmed the judgment as modified. Id.

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I
In her petition for a writ of habeas corpus, Santiago raises two challenges to the
sufficiency of the evidence. 1 In order to prevail under a sufficiency of the evidence argument in
a habeas proceeding, the petitioner “bears a very heavy burden.” Einaugler v. Supreme Court,
109 F.3d 836, 840 (2d Cir. 1997). In assessing such cases, the reviewing court must decide
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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “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, 132 S.Ct.
2, 4 (2011).
First, Santiago argues that the manslaughter in the first degree conviction should be
reversed because the prosecution failed to prove that “[b]eing eighteen years old or more and
with intent to cause physical injury to a person less than eleven years old, [Santiago] recklessly
engage[d] in conduct which create[d] a grave risk of serious physical injury to such person and
thereby cause[d] the death of such person.” P.L. § 125.20(4). Specifically, Santiago argued that
the prosecution did not establish that she had “the intent to cause physical injury.” Id.
“Often there is no direct evidence of a defendant's mental state and the jury must infer the
mens rea circumstantially from the surrounding facts.” People v Smith, 79 N.Y.2d 309, 315
(N.Y. 1992). Moreover, a defendant’s intent to cause physical injury may be inferred from the
defendant’s “community of purpose” with another to engage in a criminal course of conduct.

1

Santiago raises an additional evidentiary challenge to her conviction of assault in the second degree as
charged in the fourth count of the indictment, which was vacated by the Appellate Division and is therefore moot.
See People v Santiago, 928 N.Y.S.2d 602 (N.Y. App. Div. 2011).

2

People v. Cabey, 85 N.Y.2d 417, 421 (N.Y. 1995) (quoting People v Allah, 71 N.Y.2d 830, 832
(N.Y. 1988). As applied to this case, the defendant’s intent to cause physical injury can be
readily inferred from the defendant’s community of purpose with her husband to engage in a
course of extreme child abuse which ultimately led to Nixzmary’s death. Santiago’s own oral
and videotaped statements indicated a history of child abuse. Specifically, Santiago stated that
Rodriguez had repeatedly beaten Nixzmary and caused visible injuries; that Nixzmary was kept
in a room separate from the other children and sometimes was tied or taped to a chair; and that
in November 2005, Santiago pushed Nixzmary to the floor, causing a cut to her forehead which
required stitches. More significantly, Santiago also admitted that between January 10, 2006 and
January 11, 2006, she told her already enraged husband that Nixzmary had broken his printer,
and encouraged him to question her. Rodriguez hit Nixzmary, carried her to the bathtub, took
off her clothes, and held her head under cold water. Santiago heard “like loud banging [noises]”
and the sound of Nixzmary crying coming from the bathroom, [Valentin 873,] and then saw
Rodriguez take Nixzmary out of the bathroom and place her naked onto a bedroom floor.
Santiago “heard [her] daughter moaning as if she was in pain,” but was busy attending to her
other children and left Nixzmary alone “laying down, still naked on the floor,” for two to three
hours before checking on her. [Valentin 873.] Although Santiago stated that she then tried to
warm Nixzmary by dressing her and placing her next to a heater, she again left Nixzmary
without summoning medical assistance or rendering any other aid. Based on the estimated time
of death, Santiago left her daughter lying dead on the floor for approximately twelve hours
before contacting a neighbor. [Sampson: 523, 527, 728, 724-25; Valentin: 882.] Under these
circumstances, the Appellate Division reasonably applied the principles underlying the Jackson
standard, concluding that the evidence at trial, viewed in the light most favorable to the

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prosecution, “was legally sufficient to establish the defendant’s guilt of manslaughter in the first
degree beyond a reasonable doubt.” Santiago, 928 N.Y.S.2d at 604. 2
Second, Santiago contends that the forehead injury assault conviction should be reversed
because a .5 inch laceration requiring three stiches did not constitute “serious physical injury.”
A “serious physical injury” is one which “creates a substantial risk of death, or which causes
death or serious and protracted disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.” P.L. § 10.00(10). The New York Court of
Appeals has further defined serious disfigurement as “when a reasonable observer would find the
victim’s altered appearance distressing or objectionable.” People v. McKinnon, 15 N.Y.3d 311,
311 (N.Y. 2010).

In the present case, the Appellate Division determined that Nixzmary’s

forehead injury constituted a “serious physical injury” because there was evidence that it resulted
in “protracted disfigurement.” Santiago, 928 N.Y.S.2d at 604. In particular, Santiago stated that
the wound required suturing and, without further treatment, became infected and “got so ugly”
that it caused Nixmary’s face to swell. Id. The autopsy photographs also showed that the
laceration was still clearly visible and unhealed at the time of Nixmary’s death, six weeks after
the injury. Id. Under these circumstances, the Appellate Division reasonably concluded that
“given this evidence, and especially considering the prominent location of the wound on the face
of a young girl, it is apparent that had the child lived, the injury would have resulted in a readily
observable protracted disfigurement, and thus it constituted a serious injury within the context of
the crime of assault in the second degree.” Id. at 604-05; see also People v. Gagliardo, 724
N.Y.S.2d 919 (N.Y. App. Div. 2001) (serious physical injury when the lacerations required
suturing and resulted in permanent scarring).

2

Even if the evidence was insufficient to establish the defendant’s guilt of manslaughter in the first degree,
she would still be guilty of the lesser included offense of criminally negligent homicide. P.L. § 125.10; People v.
Hellinger, 96 N.Y.2d 462 (N.Y. 2001).

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II
Santiago also argues that the prosecution failed to provide fair notice of the assault
charges or to ensure that she was tried for the specific acts charged by the grand jury. The
Appellate Division held that Santiago’s remaining contentions, including these claims, were
without merit. Santiago, 928 N.Y.S.2d at 605.
First, Santiago received adequate notice of the second degree assault charge. Count five
of the indictment stated: “the defendant, on or about and between November 1, 2005 and
December 31, 2005 in the County of Kings, being eighteen years old or more, with intent to
cause physical injury to a person less than eleven years old namely: Nixzmary Brown, recklessly
caused serious physical injury to Nixzmary Brown.” In the March 21, 2006 bill of particulars,
the prosecution further alleged that, “on or about and between January 1, 2005 and January 11,
2006, in the County of Kings the defendant … threw Nixzmary Brown onto the floor.”
[Respondent’s Exhibit M at 5.] The prosecution appended a police report detailing Santiago’s
statements to the police, including that “One time I hit my daughter and I pushed her and she fell
and got a bruise above her eye. She got a black eye because of this, but it was the first time.”
[Respondent’s Exhibit L at 2.] Moreover, in the April 17, 2008 supplemental bill of particulars,
the prosecution further alleged “that on or about and between November 1, 2005 and January 11,
2006, in the County of Kings, the defendant pushed or threw Nixzmary Brown on the floor and
caused her to sustain physical injury.”

[Respondent’s Exhibit N at 3-4.]

Under these

circumstances, Santiago received sufficient notice of the “core of criminality to be proven at
trial,” United States v. Wozniak, 126 F.3d 105, 110 (2d Cir. 1997), and the Appellate Division’s
ruling to that affect was not contrary to, and does not involve an unreasonable application of,
clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d);
Williams v. Taylor, 529 U.S. 362, 403-04 (2000).

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Second, while Santiago argues that the prosecution failed to ensure that she was tried for
the specific acts charged by the grand jury, there is no federal constitutional right to a grand jury
in a state criminal proceeding. LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002); see also
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (relying on United States v. Mechanik, 475 U.S.
66 (1986)). Because Santiago was not entitled to be indicted by a grand jury, she may not raise a
federal habeas corpus claim based on any deviation from the indictment provided that she
received sufficient notice of the charges against her.
III
Finally, Santiago challenges her sentence on the grounds that her Fifth and Fourteenth
Amendment due process rights were violated by illegal and excessive consecutive sentences.
Specifically, she argues that the trial court erred by running the sentences for assault
consecutively to that for manslaughter because the assaults were allegedly part of the child abuse
syndrome offered by the prosecution as a cause of death. She also raises, for the first time, a
claim that her allegedly excessive sentence violated the Eighth Amendment prohibition against
cruel and unusual punishment. The Appellate Division held that the trial court had “properly
imposed consecutive sentences on the manslaughter and the assault convictions,” Santiago, 928
N.Y.S.2d at 605 (citing New York Penal Law § 70.25; People v. McKnight, 16 N.Y.3d 43 (N.Y.
2010)), and that the “remaining sentences imposed are not excessive,” Id. (citing People v.
Thompson, 60 N.Y.2d 513, 519 (N.Y. 1983); People v. Suitte, 455 N.Y.S.2d 675 (N.Y. App.
Div. 1982)).
Santiago’s Fifth and Fourteenth Amendment due process claims are not cognizable on
federal habeas corpus review. “No federal constitutional issue is presented where ... the sentence
is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir.
1992); see also United States v. McLean, 287 F.3d 127, 136 (2d Cir. 2002) (internal quotation

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omitted) (“there is no constitutionally cognizable right to concurrent, rather than consecutive,
sentences”). Santiago’s sentence does not “prescrib[e] greater punishment than the legislature
intended,” Missouri v. Hunter, 459 U.S. 359, 366 (1983), because New York Law provides for
consecutive sentences as long as the offenses were not “committed through a single act or
omission, or through an act or omission which in itself constituted one of the offenses and also
was a material element of the other,” N.Y. Penal Law § 70.25(2). The ability to punish the
assault and manslaughter counts separately is within the legal scheme of New York Law, and the
question of how to construe the evidence is an issue for the trial court to decide. Tunick v. Safir,
209 F.3d 67, 76 (2d Cir. 2000).
In this case, the trial court found, and the parties agreed, that there was a reasonable view
of the evidence from which the jury could find that the charged assaults were “not part of . . . the
ultimate homicide.” [1468-69.] The trial judge also submitted the assault counts to the jury
because each count “would be a totally separate injury on a separate occasion.” [1469-70.]
Based on this determination, it was within the trial court’s discretion to impose consecutive
sentences and this court cannot reexamine the issue. See Carvajal v. Artus, 633 F.3d 95, 107 (2d
Cir. 2011) (“[i]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”); see also Figueroa v. Grenier, 2005 WL 249001, at *
15 (S.D.N.Y. Feb. 3, 2005) (Whether sentences can be consecutive is “purely a matter of state
law and [is] not cognizable on habeas review.”);

Joseph v. Racette, 2014 WL 1426255

(E.D.N.Y. April 14, 2014); Davis v. Herbert, 2003 WL 23185747, at *15 (E.D.N.Y. Oct. 24,
2003) (“[w]hether the sentence could be consecutive was a matter of state law and raises no
Constitutional issue”).
Santiago’s sentence after the judgment of conviction was modified by the Appellate
Division came to a total of 33 and one third to 36 years. She argues that this sentence violated

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the Eighth Amendment. This claim does not provide grounds for habeas corpus relief because
Santiago did not raise this claim on appeal. Consequently, she failed to exhaust the available
remedies. See McCleskey v. Zant, 499 U.S. 467 (1991); Rose v. Lundy, 455 U.S. 509 (1982).
Moreover, “New York law requires a state court to deny a collateral attack on a state conviction
where the defendant unjustifiably failed to raise the claim on direct review despite a sufficient
record.” Gordon Mehler, John Gleeson, & David C. James, Federal Criminal Practice: A
Second Circuit Handbook, § 22-4(c)(3) at 392 (14th ed. 2014); see also Sweet v. Bennett, 353
F.3d 135, 140 (2d Cir. 2003). Under these circumstances, the claim is not only unexhausted, it is
also procedurally forfeited. In any event, the Appellate Division held that the sentence was not
excessive, exercising a discretionary standard of review that is not dependent on a finding that
the sentence rose to the level of an Eighth Amendment violation.
CONCLUSION
The petition for writ of habeas corpus is DENIED. I decline to issue a certificate of
appealability.
SO ORDERED.
Brooklyn, New York
July 24, 2014

/s/
Edward R. Korman
Senior United States District Judge

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