Prince v. Perez
Prince's petition is denied. I decline to issue a certificate of appealability. Ordered by Judge Edward R. Korman on 4/11/2018. CM. (Ward, Andrew)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
– against –
MEMORANDUM & ORDER
After shooting another man during a fist fight, Darren Prince was convicted at trial in New
York state court of reckless manslaughter and second-degree criminal possession of a weapon.
N.Y. Penal Law §§ 125.15, 265.03. The Appellate Division affirmed. People v. Prince, 136 A.D.3d
844 (2d Dep’t 2016), leave to appeal denied, 28 N.Y.3d 973 (2016). Prince now petitions pro se
for habeas relief. His three arguments fail.
Prince’s first argument is that the jury should have been instructed on criminally negligent
homicide, a lesser included offense of reckless manslaughter. See N.Y. Penal Law §§ 125.10,
125.15. Specifically, Prince claims the jury could have found him guilty of only negligence
because he was unaware of a risk of death (an element of reckless manslaughter) when he shot the
victim as they tussled for control of the gun. But I can grant relief only if the Appellate Division’s
rejection of this argument violated clearly established federal law as decided by the United States
Supreme Court, 28 U.S.C. § 2254(d)(1), and the Supreme Court had not “decided whether the
failure to instruct the jury on lesser included offenses in noncapital cases is a constitutional issue
that may be considered on a habeas petition,” Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995).
Prince’s case was noncapital, so the argument fails.
Moreover, there was no error in the Second Department’s decision. Even if the evidence is
viewed in the light most favorable to Prince, his argument—that someone drawing a loaded gun
during a fist fight could somehow not perceive a substantial and unjustifiable risk of death—is not
persuasive. As a matter of state law, the New York Court of Appeals has considered the similar
case of a man accidentally firing a gun he had pointed at a crowd; it deemed a negligence
instruction inappropriate. People v. Randolph, 81 N.Y.2d 868 (1993) (memorandum opinion). So
too with Prince. Nothing here “so infected the entire trial that the resulting conviction violates due
process.” Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (quoting Cupp v. Naughten,
414 U.S. 141, 147 (1973)).
Prince next argues that the trial court erred by refusing to give a missing-witness charge
regarding two alleged eyewitnesses whom the prosecution did not call at trial. Here, the same
obstacle arises: the Supreme Court has never created a constitutional requirement that a
missing-witness charge be given. Dell v. Ercole, 06-CV-1724 (RJD), 2009 WL 605188, at *6
(E.D.N.Y. Mar. 6, 2009); Reyes v. Miller, 04-CV-3653 (DGT), 2005 WL 3576841, at *4 (E.D.N.Y.
Dec. 29, 2005). Again, in theory, if the missing charge was error, Prince could prevail if its absence
infected the entire trial, but this is just not the case. In summation, Prince’s defense counsel twice
highlighted that only one eyewitness among many had testified, so the jury was aware of the issue.
See United States v. Torres, 845 F.2d 1165, 1170–71 (2d Cir. 1988) (noting for federal trials that
defense counsel’s discussion of missing witnesses can mitigate the lack of a charge); Reyes,
2005 WL 3576841, at *5 (same, on habeas).
Finally, Prince claims that his total indeterminate prison sentence (13 years and 4 months
to 20 years) is excessive. Prince does not, however, show that the sentence is unconstitutional, nor
could he, given the Supreme Court’s repeated refusal to permit collateral relief from sentences
harsher than Prince’s that were imposed for less serious crimes. See, e.g., Lockyear v. Andrade,
538 U.S. 63 (2003).
Prince’s petition for a writ of habeas corpus is DENIED. Because Prince has not made a
substantial showing of the denial of a federal constitutional right, I decline to issue a certificate of
appealability. 28 U.S.C. § 2253(c)(2).
Edward R. Korman
Brooklyn, New York
April 11, 2018
Edward R. Korman
United States District Judge
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