McCallum v. Graham

Filing 18

-CLERK TO FOLLOW UP- DECISION AND ORDER denying Petitioners application for a writ of habeas corpus and dismissing the petition. Motion terminated: 9 MOTION to include as part of plaintiff's record two affidavits re 5 Petition for Writ of Habeas Corpus filed by David K. McCallum. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 6/1/2016. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID K. McCALLUM,
Petitioner,

No. 6:14-cv-06571-MAT
DECISION AND ORDER

-vsSUPERINTENDENT HAROLD GRAHAM, Auburn
Correctional Facility,
Respondent.

I.

Introduction
Proceeding pro se, David K. McCallum (“Petitioner”) seeks a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis
that he is unconstitutionally detained in Respondent’s custody as
the result of a judgment of conviction entered against him on
February 11, 2010, in State of New York County Court, Erie County
(Franczyk, J.), following a jury verdict convicting him of one
count of Manslaughter in the First Degree (N.Y. Penal Law (“P.L.”)
§ 125.20(1)). Petitioner is currently serving a determinate term of
18 years to be followed by 5 years of post-release supervision.
II.

Factual Background and Procedural History
In

February

of

2008,

Paul

Krieger

(“Krieger”)

and

his

girlfriend, Jennifer Rammacher (“Rammacher”), were tenants of the
second-floor apartment at 890 East Eagle in the City of Buffalo,
which was owned by Petitioner. On the night of February 7, 2008,
Rammacher decided to stay at her parents’ house, since Krieger had

recently been incarcerated, and the lower apartment at 890 East
Eagle was vacant. Upon arriving at the house to collect some of her
things, Rammacher found the doorframe damaged and heard music
coming from the attic. When she asked who was there, a man
responded,

“It’s

Puerto

Rican

Jimmy,”

i.e.,

James

Urbinato

(“Urbinato”). Rammacher was acquainted with Urbinato since she,
Krieger, Petitioner, and Urbinato had hung out together in the
apartment

several

times

prior

to

February

7,

2008.

However,

Rammacher had not given Urbinato permission to be there, so she
told him to leave. According to Rammacher, Urbinato was “running
around like a maniac” and waving a gun that “[a]bsolutely” appeared
to be real, not a toy. (T.450). Urbinato claimed that the door had
been kicked in before he had arrived, that he was guarding the
house, and that he was going to shoot the landlord, his dog, and
anyone else who walked into the house. (T.473-74). Rammacher
insisted

that

Urbinato

leave

or

she

would

call

the

police.

Eventually, Urbinato left on his own accord. Rammacher then called
Jesse Halliday (“Halliday”), who did maintenance work at the
apartment, and asked him to talk to Petitioner about fixing the
door. She also mentioned her encounter with Urbinato and the gun,
and the threats he had made about shooting Petitioner and his dog.
The following morning, Petitioner called Rammacher on his way
to her apartment. About 20 minutes later, he called again, saying
that he had found Urbinato in her bedroom and that Urbinato had

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attacked him with a hammer. Petitioner told her that he had
disarmed Urbinato and punched him, knocking him to the floor.
Urbinato then had reached for a screwdriver in the back pocket of
his pants, but Petitioner had picked him up and carried him down
the stairs. Petitioner told Rammacher to call 911 and report an
intruder in her apartment. When Rammacher called the police, they
asked her to come to 890 East Eagle, where she found the house
being treated as a crime scene.
Rammacher’s boyfriend, Krieger, testified for the prosecution
in exchange for a reduction in the criminal charge pending against
him. Krieger had known Petitioner for about 10 years and Urbinato
for between 5 to 7 years. Urbinato was “just a drug addict
basically,” and Krieger allowed Urbinato to work with him to earn
some money. About a month prior to Petitioner’s encounter with
Urbinato, Krieger was talking to a group of people, including
Petitioner, and mentioned that the gun Urbinato carried around was
fake. Krieger said Urbinato was not a “tough guy”; Krieger had
never seen him become aggressive or violent.
Halliday testified for the prosecution that he had been
friends with Petitioner for a long time, and had done construction
work with him for about 10 years. Halliday had known Urbinato for
about 10 years. He once saw Urbinato get into a fight, which
Urbinato “didn’t win[.]” (T.509).

-3-

On the morning of February 8, 2008, Halliday met Petitioner at
Rammacher’s apartment where they found Urbinato standing in the
rear bedroom, looking as though he had just woken up. Petitioner
“advanc[ed]” on Urbinato and told him “‘to get the “F” out of
[there].’” (T.514). Urbinato retorted that he was there with
Rammacher’s permission; Petitioner replied that he had just spoken
with Rammacher who said she did not want him there. Since they had
been told by Rammacher that Urbinato had a gun, Petitioner kept
asking Urbinato where it was. (T.538). Petitioner was “inching up,
saying come on, . . . get the F out of here and that’s when
[Urbinato] reached for something in his pocket” that had a wooden
handle. Whatever Urbinato was reaching for got stuck, and that is
when Petitioner punched him hard in the face. (T.515). Urbinato
“kind of flew back” and “did like a little somersault[.]” (T.516).
Before Urbinato could get up, Petitioner “grabbed him and flipped
him over and slammed him on his back into the kitchen area.”
(T.517). Halliday said that Urbinato was not moving at all while
Petitioner was rapidly “flipping him” “back and forth” about 4 or
5 times. (T.518). During this time Petitioner removed a “couple
screwdrivers” and the wooden-handled object, which was a hammer,
from Urbinato’s person. (T.518-19). Halliday said that Urbinato
never landed a blow against Petitioner. (T.519). Urbinato “kind of
lifted his arms” and said, “all right, all right, something of that
nature.” (T.521). Halliday did not have trouble understanding

-4-

Urbinato. Petitioner repeatedly told him, “[T]hen get the F out of
here, get going, beat it.” (T.521). When Urbinato did not move from
where he was lying on the floor, Petitioner grabbed him by the
shoulders with both hands and dragged him down the stairs. (T.522).
Because Urbinato was “bleeding pretty badly” and “too stubborn” to
go to the hospital, Halliday phoned one of Urbinato’s friends to
let him know of Urbinato’s condition. (T.522-23).
After getting off the phone with Urbinato’s friend, Halliday
left because of all the blood; “it was just kind of gory[.]”
(T.524). At that point, Urbinato was standing on the front steps
and holding onto the railing. His pants, which were too big for
him, had fallen down around his ankles when he was being dragged
down the stairs.

Halliday heard Urbinato remark to Petitioner,

“[W]hy [are] you doing this to me[?]” (T.523). Petitioner was on
the phone with 911 when Halliday left.
Later, Petitioner asked Halliday for advice about what to do.
Halliday advised him to go back to Rammacher’s apartment, even
though he would be arrested if he did so. (T.539).
Officer Paul Sobkowiak (“Sobkowiak”) of the Buffalo Police
Department (“BPD”) responded to a 911 call about a burglary at
890 East Eagle. Arriving about 10 minutes after the call had come
in, he found Urbinato, not wearing shoes or pants, lying in a
“contorted position” in blood-stained snow. Urbinato was “in bad
condition” and looked as though he “might have been run over.”

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(T.545). When Sobkowiak tried to speak with him, Urbinato made only
a “gurgling sound” and lost control of his bowels. (T.545).
Paramedic Sue McMahon (“McMahon”) found Urbinato unresponsive
to any stimuli. His left eye was swollen shut and had a “deviated
gaze” when she lifted up the eyelid; his right eye did not react to
stimuli. He was exhibiting decorticate and decerebrate posturing,
and he did not flinch when she inserted a large needle into his
arm. (T.575-77). McMahon suggested to the lieutenant that he call
in homicide detectives because she felt that Urbinato “probably
wouldn’t make it.” (T.578).
Several days later, Detective James Lonergan of the BPD
searched the interior of 890 East Eagle. While he was there, he
encountered a woman who handed him a cell phone; Petitioner was on
the line. Lonergan told Petitioner that the police wanted to speak
to him about an assault that had occurred at the house. Petitioner
told Lonergan that Urbinato had come after him with a hammer and
screwdriver, so Petitioner hit him. Lonergan told Petitioner to
come down to the station to give a statement, but Petitioner did
not do so that day.
After Detective Mark Vaughn issued a “be on the lookout”
notice for Petitioner, attorney James DeMarco, Esq. (“DeMarco”)
contacted the BPD about having Petitioner give a statement. On
February 21, 2008, Petitioner and DeMarco went to the BPD, but
Petitioner did not bring the hammer and screwdriver with which

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Urbinato allegedly had threatened him. After waiving his rights,
Petitioner gave a written, signed statement. Petitioner said that
when he first encountered Urbinato at Rammacher’s apartment, he
wanted him to stay “calm because [Rammacher] said he had a gun” and
had

threatened

to

shoot

Petitioner

and

his

dog.

(T.623-24).

Petitioner told Urbinato he had to leave; Urbinato kept asking why.
Petitioner
told [Urbinato] that [Rammacher] didn’t want him there.
We were close to each other now. I put my hand up to wave
him out of the apartment. All of a sudden he reached
towards his waist and grabbed the hammer he had there. I
thought I was going to have my head split open. I just
threw a punch. It connected with his face. [Urbinato]
fell back.
. . .
At that point, Petitioner stated, Urbinato was on his knees, trying
to get to the back bedroom. Thinking Urbinato might have a weapon
in that room, Petitioner grabbed him and pulled him back, taking
the hammer away from him as well as two screwdrivers. After
frisking Urbinato front and back, Petitioner did not find a gun.
(T.624). Even though he told Urbinato to go, Urbinato “wasn’t
making any effort to get up.” (Id.). At this point, Petitioner
said, Urbinato’s eyes were open and he was speaking coherently. He
picked Urbinato up by his shoulders and “guided him down the
stairs.” (T.625). Once he got Urbinato downstairs, Petitioner
noticed that Urbinato, though conscious, was “bleeding bad” and
“breathing hard.” (Id.). Petitioner was telling him to leave, but

-7-

Urbinato got up and was trying to get back into the house.
Petitioner was standing on the porch steps and speaking to 911.
Urbinato was talking and “trying to get to [him]” so Petitioner
“pushed him with [his] foot and he went down.” (T.625). Petitioner
went back

inside

and retrieved

his

tools.

He

saw

Urbinato’s

necklace in the kitchen and his boots by the stairs, so he tossed
them outside near Urbinato. Petitioner then left because there was
an outstanding warrant against him. (T.625). He said that if he had
known how badly Urbinato was hurt, he would have stayed, even if it
meant going to jail on the warrant. (T.627).
Dr. James Woytash, Chief Medical Examiner for Erie County
(“Dr. Woytash” or “the ME”) performed the autopsy on Urbinato. He
testified that the victim’s brain was markedly asymmetrical and
edematous, and exhibited areas of herniation. (T.640-41). There
were no injuries on the victim’s front chest but there were
clusters of abrasions on both knees, a small abrasion on the
knuckles, bruising and abrasions on the small of the back, and
severe bleeding into the right and left buttocks due to multiple
hits on both sides of the buttocks. (T.643). Urbinato had suffered
three subdural hematomas,1 located on the left side, right side,
and right rear of the brain.2 In a person of his age, it would have
1

A hematoma occurs when the blood vessels get ripped and torn, and the blood
starts to leak out into the underlying tissue. (T.646).
2

The results of the autopsy indicated that there was “extensive hemorrhage
in the soft tissues of the entire left side of the head, right side of the head

-8-

taken severe blunt force to cause such subdural hematomas. (T.64445, 646). Dr. Woytash testified that “[a]ny type of bleeding on the
brain is going to prevent a person . . . from being able to
function in a normal stage [sic].” (T.645). He opined that even
after sustaining one subdural hematoma, Urbinato would not have
been able to be aggressive, and was “absolutely not going to be
able to function normally, not be able to talk normally or do
anything

normal.”

(T.651).

According

to

the

ME,

it

was

“[a]bsolutely impossible” for a person with a subdural hematoma to
“go from standing up and speaking clearly, to passed out” “with no
ability to speak or move without having some physical trauma
inflicted upon him[.]” (T.652). The ME testified that the multiple
subdural hematomas sustained by the victim could not have been
caused by one punch. (Id.). The cause of death was multiple blunt
force injuries; the manner of death was homicide. (T.648).
On cross-examination, Dr. Woytash admitted that one of the
subdural

hematomas

could

have

occurred

by

Urbinato

simply

collapsing and his head hitting the floor. (T.655). Dr. Woytash
testified, however, that the bleeding into the victim’s buttocks
could not have been generated by being dragged down or banged
against a flight of 10 to 15 stairs. (T.657).

and entire back of the head.” Pathological Examination, p. 3, Ex. G to
Petitioner’s First C.P.L. § 440.10 Motion. The left hemorrhage was 8"×7½"; the
hemorrhage of the right temporalis muscle was 4×3×¼"; and the acute subdural
hematoma of the right front parietal and temporal bones measured 4"×5"×1/4". Id.

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At defense counsel’s request, the trial court instructed the
jury on second-degree manslaughter as a lesser included offense.
The jury returned a verdict convicting Petitioner of first-degree
manslaughter, and he was sentenced as noted above. Petitioner’s
conviction was unanimously affirmed on direct appeal, see People v.
McCallum, 96 A.D.3d 1638 (4th Dep’t), lv. denied, 19 N.Y.3d 1103
(2012). His two pro se motions to vacate pursuant to N.Y. Crim.
Proc. Law (“C.P.L.”) § 440.10 were unsuccessful.
This timely habeas petition followed in which Petitioner
asserts the following grounds for relief: (1) the prosecutor relied
on false evidence to secure the conviction; (2) the prosecutor
committed misconduct during summation; (3) the verdict was based on
unreliable evidence; (4) trial counsel was ineffective; (5) the
sentence was vindictive; and (6) the verdict was based on legally
insufficient evidence.
III. Standard of Review
The instant petition is governed by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). By its terms, 28 U.S.C. § 2254(d) bars relitigation
of any claim “adjudicated on the merits” in state court, subject
only to the exceptions in §§ 2254(d)(1) and (2). Harrington v.
Richter, 562 U.S. 86, 98 (2011) (“Richter”) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)). Summary rulings by a state court
may constitute adjudications on the merits for purposes of AEDPA.

-10-

See Richter, 131 S. Ct. at 100 (§ 2254(d) “does not require a state
court to give reasons before its decision can be deemed to have
been ‘adjudicated on the merits’”).
IV.

Merits of the Petition
A.

Conviction Obtained Through the Use of False Evidence
(Ground One)

Petitioner asserts that the prosecutor’s theory of the case
was “supported solely by the ME’s opinion” which the prosecutor
“knew”

was

“false.”

Petitioner

is

referring

to

the

opinion

testimony by Dr. Woytash that a person with even one subdural
hematoma would not be able to talk, walk, or do anything normally.
(T.633-52).

Petitioner

asserts

that

the

prosecutor

knowingly

suborned perjury since he was in possession of certain medical
records indicating that the victim was talking when the police
first arrived on the scene. (See T.640—45). Petitioner contends
that these documents “factually disproved” Dr. Woytash’s testimony.
The Supreme Court has held that “[a] conviction obtained
through use of false evidence, known to be such by representatives
of the State, must fall under the Fourteenth Amendment[,]” Napue v.
Illinois, 360 U.S. 264, 269 (1959). Here, however, Petitioner has
not demonstrated that witnesses testified falsely, much less that
they provided inconsistent testimony about the same events. Rather,
he is comparing “apples to oranges”—i.e., the opinion testimony of
an expert, and the observations by eyewitnesses. Even if the
comparison were apt, it is well settled that “‘discrepancies and
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inconsistencies in the record’ are not “proof” that perjury was
committed at trial.’” Campbell v. Greene, 440 F. Supp. 2d 125, 147
(N.D.N.Y. 2006) (quoting Edwards v. Dretke, No. CIV.05–0526, 2005
WL 3504121, at *6 (S.D. Tex. Dec. 21, 2005); other citations
omitted).

Indeed, the Second Circuit has held that “even a direct

conflict

in

testimony

does

not

in

itself

constitute

perjury.”•United States v. Gambino, 59 F.3d 353, 365 (2d Cir.
1995). Petitioner has simply pointed out inconsistences in the
testimony of certain witnesses and described alleged discrepancies
between the testimony and certain records. This is insufficient, as
a

matter

of

law, to

establish

that

the

prosecutor

knowingly

suborned perjury or allowed false evidence to be put before the
jury. See, e.g., Dixon v. Conway, 613 F. Supp.2d 330, 372-73
(W.D.N.Y. 2009) (“Since the only ‘proof’ provided by Dixon in
support of his claim of perjury is based upon inconsistencies in
the testimony

of

some of

the

prosecution witnesses,

as

well

differences between the testimony of prosecution witnesses and
petitioner’s

witnesses’

version

of

events,

Dixon

has

not

established that any of the testimony upon which this aspect of his
claim of actual innocence is based was, in fact, perjurious.”).
B.

Prosecutorial Misconduct (Ground Two)

Petitioner contends that the prosecutor violated his due
process

right

to

statements—consisting

a
of

fair

trial

his personal

-12-

by

making

opinion,

which

“numerous
directly

contradicted evidence that he presented—suggesting that Petitioner
was a liar and had fabricated his defense” and “suggested to the
jury during summation that they would not be following the law if
they

did

not

find

Petitioner

guilty.”

The

Fourth

Department

rejected this claim without discussion. See McCallum, 96 A.D.3d at
1640-41 (“We have examined defendant’s remaining contentions in his
main and pro se supplemental briefs and conclude that none requires
reversal or modification.”).
A claim of prosecutorial misconduct on habeas corpus is
reviewed under “the narrow [standard] of due process, and not the
broad exercise of supervisory power.” Floyd v. Meachum, 907 F.2d
347,

353

(2d

inappropriate

Cir.

1990)

prosecutorial

(citation
comments,

omitted).
standing

Generally,
alone,

are

insufficient to reverse a conviction. United States v. Young, 470
U.S. 1, 11 (1985). Rather, the reviewing court must assess the
impact of the improprieties on the fairness of the trial as a
whole. Id.
Petitioner

primarily

complains

that

the

prosecutor made

comments denigrating the defense, e.g., that Petitioner’s “hammer
story was ridiculous.” (T.738). The prosecutor argued that if
Petitioner’s version of events were true, the jury should have
expected to hear that he had remained at the scene, provided his
version of the altercation to the first responders, and perhaps
shown police the hammer and screwdriver with which Urbinato had

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attacked him. However, the prosecutor observed, none of these
things had happened. Although a prosecutor may not suggest that a
defendant has an affirmative obligation to present evidence on his
own behalf, once a defendant does in fact put on a defense case,
the prosecutor may fairly comment on the defense’s failure to call
witnesses to support his factual theory. See United States v.
Yuzary, 55 F.3d 47, 53 (2d Cir. 1995) (finding that the prosecutor
was entitled to comment on the defendant’s “‘failure . . . to
support his own factual theories with witnesses’”) (quoting United
States v. Barnes, 604 F.2d 121, 148 (2d Cir. 1979); further
citations omitted)); see also, e.g., Ford v. Ricks, No. 01-CV-0775A
VEB, 2007 WL 9225082, at *7 (W.D.N.Y. Feb. 27, 2007), R&R adopted,
No.

01-CV-775,

2007

WL

9225110

(W.D.N.Y.

Oct.

5,

2007)

(no

misconduct where prosecutor “commented that there was no proof to
support defense counsel’s theory of deliberate misidentification by
the victims” and stated, e.g., “‘there is nothing to this defense
whatsoever. . . .’”) (internal citations to record omitted).
After reviewing the entire trial transcript, with particular
attention to the comments challenged by Petitioner, the Court finds
that there was no due process violation of his right to a fair
trial. Most of the comments were within the bounds of acceptably
zealous advocacy, and those that exceeded such bounds were not “so
prejudicial that they rendered the trial in question fundamentally
unfair.” Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986). See,

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e.g., Pina v. Kuhlmann, 239 F. Supp. 2d 285, 290 (E.D.N.Y. 2003)
(summation did not violate petitioner’s due process rights where
prosecutor characterized petitioner’s testimony as “ridiculous”
“utter nonsense” and stated that “it makes no sense”). Since
Petitioner’s prosecutorial misconduct claim is not meritorious
under a de novo standard of review, it necessarily cannot provide
a basis for habeas relief under AEDPA’s more deferential standard.
C.

Claims Regarding
Conviction
1.

the

Evidentiary Sufficiency

of

the

Conviction Based on Unreliable Evidence (Ground
Three)

Petitioner argues that the evidence to support his conviction
was

unreliable

contradicted

because,

his

own

inter

opinion

alia,

Dr.

testimony,

Woytash

which,

allegedly

according

to

Petitioner, also was factually incorrect. It is well settled that
the credibility and reliability of witness testimony are issues of
fact to be determined by the jury. See, e.g., Mason v. Brathwaite,
432

U.S.

98,

116

identification”
notwithstanding

(1977)

was

(noting

“evidence

that

it

that

for

“reliability

the

contained

jury

“some

of

to

the

weigh”

element

of

untrustworthiness”); United States v. Strauss, 999 F.2d 692, 696
(2d Cir. 1993) (stating that “the jury is exclusively responsible
for

determining

a

witness’

credibility”)

(citation

omitted).

Petitioner’s claim based on the allegedly “unreliable” evidence
presented

at

trial

therefore

does

-15-

not

present

a

cognizable

constitutional issue amenable to habeas review. See, e.g., Cole v.
Rock, No. 12-CV-6587 NSR PED, 2013 WL 5323733, at *13 (S.D.N.Y.
Sept.

20,

“unreliable

2013)

(petitioner’s

because

[he]

could

arguments
only

that

vaguely

witness

was

describe

the

perpetrator after the incident, there was a one-month time period
between the crime and identification, and he did not have an
opportunity to form an accurate memory of the perpetrator” were
“beyond the scope of review of a habeas court”) (citing Perkins v.
Comm’r of Corr. Servs., 218 F. App’x 24, 25 (2d Cir. 2007)
(unpublished opn.) (rejecting habeas challenge to sufficiency of
evidence which “center[ed] on the reliability and credibility of
the sole eyewitness to the crime”; “[a]ssuming that eyewitness
testimony has been properly admitted, its credibility is for the
jury”); Bonton v. Ercole, 08 Civ. 526, 2008 WL 3851938, at *8
(E.D.N.Y. Aug. 18, 2008) (“[I]t is not the court’s role to decide
whether petitioner’s interpretation of the forensic evidence is
more appropriate than the jury’s.”)).
2.

Legal Insufficiency of the Evidence (Ground Six)

Petitioner argues that the prosecution presented insufficient
evidence that he “intended to cause serious physical injury” to
Urbinato. See Pet., p. 14B. Petitioner indicates that this claim
has not been exhausted and that he has raised it in an application
for a writ of error coram nobis that was pending in the Fourth
Department at the time he filed his habeas petition. See Pet.,
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p. 14C. Respondent has not asserted the defenses of non-exhaustion
and procedural default in regards to this claim; nor has Respondent
addressed whether an insufficiency-of-the-evidence claim properly
may be exhausted by means of an application for a writ of error
coram nobis. Rather than attempt to unravel the potentially complex
procedural issues that might bar review of this claim, the Court,
in the interest of judicial economy, will consider it on the
merits.
“When considering the sufficiency of the evidence of such a
state conviction, a federal court ‘must consider the evidence in
the light most favorable to the prosecution and make all inferences
in its favor,’ and, in doing this, ‘must look to state law to
determine the elements of the crime.’” Gutierrez v. Smith, 702 F.3d
103, 113 (2d Cir. 2012) (quotation and internal quotation marks
omitted)).

Under

New

York

law,

“[a]

person

is

guilty

of

manslaughter in the first degree when . . . [w]ith intent to cause
serious physical injury to another person, he causes the death of
such person . . . .”

N.Y. PENAL LAW § 125.20(1). The critical

question is whether, after viewing the evidence in the light most
favorable to the prosecution, and drawing all reasonable inferences
in its favor, any reasonable jury, see Jackson v. Virginia, 443
U.S. 307, 319 (1979), could have found, beyond a reasonable doubt,
that Petitioner, while possessing the intent to cause serious
physical injury to Urbinato, caused Urbinato’s death.

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Petitioner argues that there was insufficient evidence to
prove intent because (1) Dr. Woytash testified that the “injuries
were consistent with non-intentional causes”; (2) after removing
the hammer and screwdrivers from the victim’s person, Petitioner
threw them into a corner; and (3) Petitioner called 911 “for the
sole purpose of requesting an ambulance to help decedent.” As to
the first argument, although Dr. Woytash conceded that one of the
subdural hematomas could have been caused by the victim falling and
hitting his head, the victim suffered a total of three acute
subdural

hematomas.

In

addition,

the

victim

sustained

severe

bruising in his lower back and buttocks which Dr. Woytash testified
could not have been caused unintentionally by bumping against 10 to
15 steps in the course of being dragged down the stairs. See, e.g.,
People v.

Ramos,

19 N.Y.3d

133,

136

(2012)

(conclusion

that

conviction for first-degree manslaughter was supported by legally
sufficient evidence was “not negated by the possibility that
defendant’s conduct also might have been deemed consistent with a
reckless state of mind” because “[t]here is no contradiction in
saying that a defendant intended serious physical injury, and was
reckless as to whether or not death occurred”); People v. Steven
S., 160 A.D.2d 743, 744 (1990) (evidence legally sufficient to
prove intent to cause serious physical injury where, although there
was some evidence indicating that the victim’s injuries “may have
occurred unintentionally when he grabbed the defendant, who was

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holding a knife, from behind and spun him around,” the victim
“testified that when he grabbed the defendant’s arm to prevent him
from fleeing, the defendant ‘lunged around’ and stabbed him in the
face”).
With regard to fact that Petitioner did not use Urbinato’s
hammer

and

screwdrivers

against

him,

this

argument

“focuses

exclusively on the evidence favoring [Petitioner], and ignores the
evidence favoring the prosecution.” Gumbs v. Heath, No. 10-CV-848
SLT, 2013 WL 1345073, at *10 (E.D.N.Y. Mar. 29, 2013). Moreover,
the prosecution was not required to prove that Petitioner utilized
a weapon in order to prove intent to cause serious physical injury.
Cf. People v. Muhammad, 17 N.Y.3d 532, 542 (2011) (stating that
acquittals on weapon possession counts “did not inherently negate”
the element of “intent to cause serious physical injury” of firstdegree assault by means of a weapon).
Finally, while Petitioner’s call to 911 for the purpose of
summoning aid might have shown that he did not intend to cause
Urbinato’s death, it did not preclude the jury from inferring that,
based on all of the other circumstances, including the severity of
Urbinato’s injuries, Petitioner intended to cause serious physical
injury. See, e.g., People v. Steinberg, 79 N.Y.2d 673, 683 (1992)
(“That defendant acceded to Nussbaum’s request to telephone 911
when Lisa stopped breathing might demonstrate that defendant did
not intend to cause the child’s death, but does not militate

-19-

against

the

jury

finding

that

he

intended

to

cause

serious

injury.”). Here, reasonable but contrary inferences were possible
regarding Petitioner’s intent. When “competing inferences” to be
drawn from the evidence are “not unreasonable,” they are “within
the exclusive domain of the finders of fact,” and are “not to be
disturbed” by a court reviewing the sufficiency of the evidence.
People v. Bueno, 18 N.Y.3d 160, 169 (2011) (brackets and internal
citations omitted).
D.

Ineffective Assistance of Trial Counsel (Ground Four)
1.

The Strickland Standard

The two-part test for ineffective assistance claims set forth
in Strickland v. Washington, 466 U.S. 668 (1984), requires a
petitioner to demonstrate (1) that his counsel’s performance was
deficient, and (2) “that the deficient performance prejudiced the
defense.” Id. at 687. The Supreme Court has emphasized that counsel
is “strongly presumed” to have rendered adequate assistance and to
have made all significant decisions in the exercise of reasonable
professional judgment. Id. at 686, 689-90. To demonstrate prejudice
as a result of counsel’s performance, the petitioner “must show
that there is a reasonable probability that, but for” the alleged
errors, the result of the trial would have been different. Id. at
694. For ineffective assistance claims that were “adjudicated on
the merits,” the “pivotal question is whether the state court’s
application of the Strickland standard was unreasonable[,]” which

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is different from asking whether defense counsel’s performance fell
below Strickland’s standard.” Richter, 131 S. Ct. at 785.
2.

Counsel’s Alleged Errors

Petitioner

reprises

his

claims,

asserted

in

his

pro

se

supplemental brief on direct appeal and in his pro se C.P.L.
§ 440.10 motions, that defense counsel was ineffective in (1)
failing to discuss the merits of the pre-trial plea offers with
him; (2) failing to counter Dr. Woytash’s testimony with an expert
witness

and

medical

literature;

(3)

failing

to

introduce

exculpatory documentary evidence; and (4) failing to object to
prosecutorial misconduct. All of these claims were raised either in
Petitioner’s C.P.L. § 440.10 motions or in his pro se supplemental
appellate brief, and denied on the merits. As discussed below,
Petitioner has not shown that the State courts incorrectly applied
Strickland, much less that they applied it in an objectively
unreasonable manner.
a.

Deficient Advice Regarding Plea Offers

On August 13, 2008, the prosecutor offered Petitioner the
opportunity

to

plead

guilty

to

second-degree

manslaughter

in

exchange for a sentence of 5 to 15 years. The prosecutor noted that
Petitioner faced a maximum of 25 years if convicted of first-degree
manslaughter. Petitioner did not object when his then-attorney,
Michael T. Kelly, Esq., rejected the plea offer.

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At a pre-trial proceeding on February 2, 2009, the prosecutor
made another plea offer (attempted first-degree manslaughter with
a sentence promise of 3½ to 15 years). Petitioner was present with
Robert M. Goldstein, Esq., the attorney who ultimately tried the
case. Through counsel, Petitioner rejected this plea offer, which
remained available until trial began.
When

Petitioner

raised

this

claim

in

his

second

C.P.L.

§ 440.10 motion, the trial judge aptly observed that Petitioner’s
“chief complaint” appeared to be defense counsel failed to convince
him to plead guilty.” However, as the judge correctly noted, “it
would be improper for defense counsel to exert undue influence in
convincing a defendant to plead guilty.” While “an accused is
entitled to rely upon his counsel . . . to offer his informed
opinion as to what plea should be entered[,]” Von Moltke v.
Gillies, 332 U.S. 708, 721 (1948), “the ultimate decision whether
to plead guilty must be made by the defendant[,]” Purdy v. United
States, 208 F.3d 41, 45 (2d Cir. 2000) (citation omitted). Although
“a lawyer must take care not to coerce a client into either
accepting or rejecting a plea offer[,]” id. (citation omitted), it
is proper for an attorney rendering advice regarding plea offers to
“take into account, among other factors, the defendant’s chances of
prevailing at trial, the likely disparity in sentencing after a
full trial as compared to a guilty plea,” “whether the defendant

-22-

has maintained his innocence, and the defendant’s comprehension of
the various factors that will inform his plea decision.” Id.
Here, Petitioner adamantly maintained his innocence; indeed,
counsel informed the judge when rejecting the second plea offer
that Petitioner “feels that he’s very innocent in this” and “feels
he should have a trial.” It is apparent, based on the transcripts
of

the

court

proceedings,

that

Petitioner

was

aware

of

the

parameters of each plea offer, as well as the likely disparity in
the sentences available as part of a plea bargain versus the
sentences that could be imposed after a guilty verdict. Petitioner
contends, however, that his first attorney misrepresented his
chances of prevailing at trial when he commented, at the bail
hearing,
According

that
to

he

believed

Petitioner,

Petitioner
this

“was

had

been

“overcharged.”

equivalent

to

telling

[Petitioner] that [he] was not guilty of the charged crime.” This
argument, while creative, requires far too much of a logical
stretch to reach the conclusion desired by Petitioner. It bears
noting Petitioner does not allege that counsel stated he had been
mistakenly charged or that he should not have been charged at all.
An equally, if not more reasonable inference, is that counsel
believed Petitioner should have been charged with a lesser crime,
such as those to which he was offered the chance to plead guilty.
The Second Circuit has explained that “[c]ounsel’s conclusion
as to how best to advise a client in order to avoid, on the one

-23-

hand, failing to give advice and, on the other, coercing a plea
enjoys a wide range of reasonableness because ‘[r]epresentation is
an art,’” id. (quoting Strickland, 466 U.S. at 693). The Court
finds

nothing

in

the

record

to

overcome

the

presumption

of

competence accorded to counsel’s performance. Having failed to
establish that his attorney’s performance fell outside the wide
range

of

what

necessarily

is

considered

cannot

establish

reasonable
that

the

conduct,

C.P.L.

§

Petitioner

440.10

court

unreasonably applied Strickland in deny his claim.
b.

Failure to Consult an Expert Witness

Petitioner argues that defense counsel, after learning of the
ME’s opinion at trial, should have requested a continuance to
investigate, consult, and retain a medical expert of his own to
rebut

that

opinion.

The

portion

of

the

testimony

to

which

Petitioner refers is when the ME opined that a person who had
suffered even one subdural hematoma would not have been able to
talk,

walk,

or

do

anything

normally.

(See

T.645-52).

When

Petitioner raised this claim in his first C.P.L. § 440.10 motion,
he attached copies of pages from various home medical reference
books discussing the causes, symptoms, and treatment of subdural
hematomas. Petitioner highlights various sentences on those pages
indicating that symptoms of a subdural hemorrhage or hematoma may
emerge weeks to months after the original precipitating event. See
Pet’r Ex. E-5 to First C.P.L. § 440.10 Motion.

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The trial court determined this ineffective assistance claim
was “without foundation” because Petitioner had not shown that an
expert was “available and willing to rebut” the ME’s testimony.
See First C.P.L. § 440.10 Order, p. 4. Furthermore, the trial court
found, any expert “would have talked in general terms about acute
subdural hematoma . . . and the so called ‘lucid interval’” and
“would not likely have provided any facts or evidence that would
have exonerated” Petitioner. Id., pp. 4-5.
Courts uniformly have held that “[t]he decision whether to
call an expert witness at trial generally falls within the realm of
strategic choices that should not be second-guessed by a court on
review.” Rayford v. Greene, No. 02-CV-0811(VEB), 2008 WL 941706, at
*8 (W.D.N.Y. Apr. 4, 2008) (citing United States v. Kirsh, 54 F.3d
1062, 1072 (2d Cir.) (finding that trial counsel’s decision not to
call fingerprint expert “was plainly a tactical decision and hardly
bespeaks professional incompetence”)). This holds true particularly
where the petitioner “‘has only presented his vague hope that
another expert might have reached a different result than the
government expert.’” Savinon v. Mazucca, 04 Civ. 1589, 2005 WL
2548032, at *33 (S.D.N.Y. Oct. 12, 2005) (quoting Leaks v. United
States, 841 F. Supp. 536, 545 (S.D.N.Y. 1994); citations omitted),
rep. and rec. adopted, 2005 WL 2548032 (S.D.N.Y. Sept. 18, 2006),
aff’d, 318 F. App’x 41 (2d Cir. 2009); see also Rayford, 2008 WL
941706, at *8 (“Despite his claim that his trial counsel was

-25-

ineffective for failing to retain an expert, Rayford has provided
no reason to believe that the defense would have been able to find
an expert witness who would have testified as Rayford hoped.”). As
the trial court found, Petitioner’s claim that defense counsel
should have requested a continuance to call an expert to rebut
Dr.

Woytash’s

testimony

regarding

the

victim’s

physical

capabilities rests only on speculation that such an expert existed.
See Savinon, 2005 WL 2548032, at *33 (finding claim speculative
where habeas petitioner provided “no affidavit or other basis on
which to conclude that there existed a witness who could have
offered relevant and probative evidence contrary to the testimony
offered by [the prosecution’s medical expert]”). The pages from the
home medical reference books submitted by Petitioner address only
on

a

superficial

level

subdural

hematomas,

sustained

under

circumstances unlike what occurred here.3 In any event, these
documents do not establish that there was an expert willing to

3

For instance, Petitioner excerpted pages from a section on “Subdural
Hematoma” in Johns Hopkins Family Health Book, and highlighted the sentence,
“Symptoms may emerge weeks to many months after the original trauma.” Standing
alone, this sentence appears helpful to Petitioner. However, Petitioner did not
highlight the previous and subsequent sentences, which state that subdural
hemorrhage or hematoma “is seen most often in seniors who have sustained a fall
and struck their head” and that “[t]he person may not remember the head injury,
especially if alcohol was involved.” Pet’r Ex. E-5 to First C.P.L. § 440.10
Motion. There can be no serious contention that the beating Urbinato sustained
is comparable in any way to an elderly person falling and bumping their head
once, and not even remembering being injured. In addition, the book goes on to
note that “[t]he degree of severity is associated with the amount of time elapsed
between the initial development of symptoms and loss of consciousness. . . .” Id.
This undermines Petitioner’s argument regarding delay of symptom onset, given
that Dr. Woytash stated that in a person of Urbinato’s age, it would have taken
severe blunt force to cause the size and degree of the subdural hematomas
sustained. (T.644-45, 646).

-26-

testify for the defense regarding “what this particular victim’s
physical state was following the attack, especially in view of the
fact that any outside medical expert would not have had the
opportunity to examine the victim’s body.” First C.P.L. § 440.10
Order, pp. 4-5 (emphasis supplied). Because Petitioner has not
overcome the presumption of reasonableness accorded to counsel’s
strategic decisions, and has not demonstrated prejudice, his claim
fails under Strickland.
c.

Failure to Introduce Exculpatory Evidence

In his first C.P.L. § 440.10 motion, Petitioner asserted that
trial counsel was in possession of documentary evidence disclosed
by the prosecution prior to trial that “disprove[d]” Dr. Woytash’s
opinion testimony. See Pet’r First C.P.L. § 440.10 Motion, pp. 7-9
& Pet’r Exs. F-1 to F-3 (medical records). The records indicate
that

the

police

told

the

emergency

medical

services

(“EMS”)

personnel that the victim was talking when the officers first
arrived;
10

EMS

minutes

personnel

later,

the

stated
victim

that
was

no

when

they

longer

arrived

talking

about

and

was

posturing. See Pet’r Ex. F-2. As an initial matter, while these
medical records arguably would have been admissible under the
business records exception to the hearsay rule, any double hearsay
contained in the report (such as the police officers’ statements to
the EMS personnel) would be “admissible only if each level of
hearsay qualifies independently for a hearsay exception.” Lewis v.

-27-

Velez, 149 F.R.D. 474, 487 (S.D.N.Y. 1993) (finding that “[t]his
principle excludes much of the [prison] [incident] [r]eport, which
is comprised largely of hearsay statements from correction officers
involved in the May 1, 1989 incident”) (citing FED. R. EVID. 805;
Eng v. Scully, 146 F.R.D. 74, 79 (S.D.N.Y. 1993)). Assuming that
the relevant portions of the records were admissible, the timeline
described therein supported the prosecution’s argument that in
between

the

time

911

was

called

and

the

ambulance

arrived,

Petitioner had an additional 10 minutes to administer further
injuries to the victim, at a time when he had been disarmed of the
hammer and two screwdrivers.4 In addition, the reports noted that
the police were called to the scene for “an assault in progress”.
See Pet’r Ex. F-2 (emphasis supplied). Trial counsel reasonably
could have concluded that this characterization of the incident
would have undermined the defense argument that it made no sense
for Petitioner to continue assaulting Urbinato after he had called
911. In short, Petitioner has not “overcome the presumption that,
under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Strickland, 466 U.S. at 689 (quotation
omitted). For this reason, his claim fails. See, e.g., Greiner v.
Wells, 417 F.3d 305, 324 (2d Cir. 2005) (declining to “fault

4

See, e.g., T.741-42 (“But you know it was around ten minutes between the
time the original call went out and the time that the first officer got there,
so I’m going to pause for one minute. . . . The Defendant had ten times that to
beat [Urbinato]’s brains out. . . .”).

-28-

[counsel] for refusing to introduce evidence of the window-shooting
incident in light of its ‘significant potential downside,’-that it
would have opened the door to a prosecution line of inquiry harmful
to the defense”) (internal quotation and citations omitted).
d.

Failure to Object to Prosecutorial Misconduct

Petitioner faults trial counsel for failing to object to the
instances of prosecutorial misconduct complained of in Ground Two,
see Section III.B, supra. Notwithstanding the lack of preservation
by timely objection, the Appellate Division reviewed Petitioner’s
prosecutorial misconduct claim on appeal and concluded, albeit
without discussion, that it was among the claims that did not
warrant reversal or modification. See McCallum, 96 A.D.3d at 164041. Therefore, Petitioner cannot establish that he was prejudiced
by trial counsel’s failure to lodge contemporaneous objections to
the allegedly improper remarks. See, e.g., Swail v. Hunt, 742 F.
Supp. 2d 352, 364 (W.D.N.Y. 2010) (“Swail cannot demonstrate that
he was prejudiced by trial counsel’s failure to preserve the
insufficiency claim by means of a renewed motion for a trial order
of dismissal after the defense case, because the Appellate Division
considered the merits of the insufficiency claim, notwithstanding
the lack of preservation.”).
E.

Vindictive Sentencing (Ground Five)

Petitioner contends that the trial judge, in setting his
sentence, punished him for exercising his constitutional right to

-29-

a jury trial. The Fourth Department held that “the fact that the
court imposed a more severe sentence after trial than that offered
during plea negotiations does not demonstrate that defendant was
punished

for

exercising

his

right

to

a

trial[.]”

McCallum,

96 A.D.3d at 1640 (citation omitted).
Federal courts routinely reject vindictive sentencing claims
based on the disparity between sentences offered during the plea
bargaining process and imposed after a guilty verdict. See, e.g.,
Archie v. Strack, 378 F. Supp. 2d 195, 200-01 (W.D.N.Y. 2005) (“The
mere fact that the trial court, following conviction, imposed a
high sentence

does

not,

in

and

of

itself,

establish

‘actual

vindictiveness.’”) (citing, inter alia, Corbitt v. New Jersey, 439
U.S. 212, 219, 223 (1978)). Here, there is “no suggestion that
[Petitioner] was subjected to unwarranted charges[,]” Corbitt, 439
U.S. at 223, and the trial judge never stated or intimated that the
sentence was based on Petitioner’s refusal of various plea offers,
see id. Instead, the judge’s remarks indicate that, in arriving at
the sentence, he focused on the severity of the victim’s injuries,
the disparity in size between Petitioner and the victim, and the
inexplicably violent nature of the assault.5 It was proper, and not
5

For instance, the trial judge commented, “I’m trying to reconcile and
understand what would cause this guy to deserve that kind of a beating once he
had been disabled inside that apartment. And I think you just blew your top and
lost control of yourself and you stuck it to him big time. . . . So this to me
was a classic case of an excessive use of force and that what may have started
out as—as a colorable claim of self-defense, all but evaporated once you took
this guy, took him down.” (S.7-8).

-30-

evidence of retaliatory motive, for the trial court to take these
factors into consideration. The Fourth Department correctly applied
federal

law

in

rejecting

Petitioner’s

assertion

that

he

was

punished for exercising his right to a trial.
VI.

Conclusion
For the foregoing reasons, Petitioner’s application for a writ

of habeas corpus is denied, and the petition (Dkt #1) is dismissed.
Because Petitioner has failed to make a substantial showing of the
denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c).
SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 1, 2016
Rochester, New York

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