Pasquale MAIORINO, Petitioner,
Charles J. SCULLY, Superintendent, Green Haven Correctional Facility,
United States District Court,
Southern District of New York
746 F. Supp. 331 (1990)

LASKER, District Judge.

 Pasquale Maiorino, appearing pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982).  In 1980, after a jury trial in the New York State Supreme Court, New York County, Maiorino was convicted of murder in the second degree (New York Penal Law § 125.25) for having intentionally caused the death of Clay Delauney, and attempted murder in the second degree (New York Penal Law §§ 110.00, 125.25) for the stabbing of Kevin McCullough.  His co-defendant, Nicholas Letterese, was convicted of manslaughter in the first degree and assault in the first degree.

 At trial, Maiorino and Letterese claimed that they mistakenly entered a bar frequented by gay men, Uncle Charlie's South, where they met the victims, Clay Delauney and Kevin McCullough.  They then accompanied the victims to Delauney's apartment in order to purchase some marijuana.  Maiorino and Letterese testified that, after setting a scene for seduction that included candlelight and several attempts to ply Maiorino and Letterese with alcohol and narcotics, Delauney and McCullough attempted to forcibly sodomize them and that Maiorino and Letterese were justified in using deadly physical force in order to repel the attack.  The prosecution argued that Maiorino and Letterese approached [p. 333] Delauney and McCullough intent on robbing them.  In support of the prosecution's theory, McCullough testified that, after entering Delauney's apartment, Letterese attacked Delauney and McCullough with a candlestick holder and Maiorino stabbed them repeatedly with a letter opener and a clasp knife.  Delauney died the next day from his wounds and McCullough was permanently disabled.

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 Maiorino . . . claims that his appellate attorney deprived him of effective assistance of counsel on appeal by failing to raise two arguments.  He contends that Justice Torres erred by instructing the jury that if Letterese were found guilty of manslaughter in the first degree Maiorino could be convicted of murder in the second degree without, according to Maiorino, having caused the death of Delauney, thereby relieving the prosecution of its burden of proof as to causation. . . .

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[p. 335]


 Maiorino also argues that he was denied effective assistance of counsel on appeal because appellate counsel overlooked certain legal issues that would have warranted the reversal of his conviction.  First, Maiorino contends that his appellate counsel was ineffective because he failed to argue that Maiorino could not properly have been convicted of murder after the jury found that Letterese had caused Delauney's death.  Maiorino argues that this violated his due process rights by removing from jury consideration the element of causation of death. . . .

 Every criminal defendant is entitled to effective assistance of counsel on his first appeal as of right.  Evitts v. Lucey, 469 U.S. 387, 397, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985).  However, to constitute grounds for habeas corpus relief on account of ineffectiveness of counsel a petitioner must overcome the presumption that "counsel's conduct falls within the wide range of reasonable professional assistance."  Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (Sixth Amendment requires that effectiveness of counsel be judged according to a standard of reasonableness under the circumstances).  The mere fact that an attorney has failed to raise an issue does not rebut this presumption.  Appellate counsel is not required to raise every issue requested by a defendant, provided counsel professionally evaluates the defendant's case and makes a tactical decision in good faith not to pursue the issue.  Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983).  Moreover, counsel may omit colorable claims in order to avoid diluting or burying good arguments.  Id. at 753, 103 S.Ct. at 3313.  Only if counsel omits a claim which would reasonably have affected the outcome of an appeal in the defendant's favor may relief be granted.  See, e.g., People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987) (defendant must show a "greater likelihood" that the decision would have been different had the omitted issue been raised).

 A. Failure to Raise the Issue of Causation

 In the present case, there is no "greater likelihood" that the judgment would have been reversed or modified had counsel argued that Maiorino could not be convicted of murder because the jury already found that Letterese caused Delauney's death.  Given the trial judge's repeated instructions and the extensive medical evidence presented by the prosecution, the jury could reasonably have found that Maiorino did in fact cause Delauney's death. Moreover, there is no legal impossibility in a jury verdict which finds accomplices guilty of different degrees of homicide, provided [p. 336] each one had a different degree of culpability.

 i.  Causation

 Maiorino's contention that the jury convicted him of second degree murder without finding that he caused Delauney's death is unpersuasive in light of the trial judge's repeated instructions regarding causation. In his charge, Justice Torres carefully reminded the jury of the two requirements for accomplice liability, the theory advanced by the prosecution:

In order to find a person criminally liable for the conduct of another, you must find in addition to the mental culpability, that is the intent and knowledge with which he acted, that he aided, assisted, participated, solicited, requested, commanded, or importuned another person to engage in conduct which constitutes an offense.  T. 2144.
 He repeatedly charged that separate verdicts were required for each defendant.  Moreover, Justice Torres emphasized that, in order to convict Maiorino or Letterese of either murder or manslaughter, the jury must find that the defendant in question caused Delauney's death.  In no way did the trial judge's charge amount to a "mandatory presumption" that Maiorino had caused Delauney's death, thereby removing from jury consideration the element of causation.  Justice Torres clearly instructed the jury that it must arrive at separate verdicts for each defendant and that it must find that the prosecution has proved beyond a reasonable doubt the requisite degree of mental culpability and causation as to each defendant.

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 . . . [U]nder New York's accomplice liability theory, proof of the criminal relationship between the perpetrators is sufficient to establish guilt "notwithstanding the absence of proof as to which specific act of which individual was the immediate cause of the victim's death."  People v. Dlugash, 41 N.Y.2d 725, 732, 395 N.Y.S.2d 419, 424, 363 N.E.2d 1155, 1159 (1977).  See also People v. Williams, 114 A.D.2d 385, 386, 493 N.Y.S.2d 903, 904 (2d Dep't 1985) (prosecution not required to prove defendant fired fatal shot where evidence was sufficient to prove that defendant acted in concert with another).  Thus, the jury in this case was not required to determine which defendant-accomplice was the immediate cause of Delauney's death. Nevertheless, the evidence supports the conclusion beyond a reasonable doubt that Maiorino did in fact cause Delauney's death by stabbing him repeatedly. Since there is no "greater likelihood" that the judgment would have been favorable to Maiorino had the issue of causation been raised, Maiorino's contention that he received ineffective assistance of appellate counsel lacks merit.

ii. Accomplice Liability and Degree of Homicide

 Justice Torres correctly pointed out in his jury charge that accomplices may be convicted of differing degrees of homicide depending on each one's specific intent.  T. 2205-07.  See New York Penal Law § 20.15.  See also People v. Castro, 55 N.Y.2d 972, 973, 449 N.Y.S.2d 184, 184-85, [p. 337] 434 N.E.2d 253, 253-254 (1982) (in a trial involving charges of differing degrees of riot and unlawful imprisonment, court erred by instructing jury on accessory liability without indicating that degree of offense is determined by individual mental state);  People v. Monaco, 14 N.Y.2d 43, 46- 47, 248 N.Y.S.2d 41, 44, 197 N.E.2d 532, 535 (1964) (where record shows a spontaneous act of homicide by co-conspirator, the other participant is not guilty of murder without a greater showing of a "personal design" to kill).

 Thus, there is no legal impossibility in a jury verdict which found Maiorino guilty of murder and Letterese guilty of manslaughter under an accomplice liability theory.  The jury may reasonably have found that Maiorino acted with a specific intent to kill, while finding that Letterese intended only to cause serious physical injury.  Maiorino's appellate attorney did not, therefore, render ineffective assistance of counsel by failing to raise the issue of a repugnant verdict as to causation.

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[p. 338]

 Maiorino's petition for a writ of habeas corpus is denied.

 It is so ordered.