MELENDEZ v. KIRKPATRICK

f them. 60 N.Y.2d at 273-74. Faced with the question of whether intoxication could negate the mens rea for depraved indifference murder, the New York Court of Appeals held that the trial court properly declined to instruct the jury that Register's intoxication could be considered in deciding whether he was guilty of depraved indifference murder. The Court of Appeals explained that depraved indifference murder "differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct." Id. at 274. Thus, under Register, the elements of depraved indifference murder under P.L. § 125.25(2) included (1) a mens rea of "recklessness," referring to a defendant's "conscious disregard of a substantial risk;" (2) an actus reus, defined as a defendant "engaging in conduct which creates a grave risk of death to another person;" and (3) an "additional requirement" mandating that the conduct occur "[u]nder circumstances evincing a depraved indifference to human life." 60 N.Y.2d at 276. This last element referred not to a mens rea or actus reus, but instead to "the factual setting in which the risk creating conduct must occur-objective circumstances which are not subject to being negatived by evidence of defendant's intoxication." Id. Although, as Register recognized, depraved indifference murder

"resembled" reckless manslaughter, the focus of the offense of depraved indifference murder "[was] not upon the subjective intent of the defendant . . . but rather upon an objective assessment of the degree of risk presented by defendant's reckless conduct." Id. at 277 (citations omitted) (emphasis added). Stated another way, under Register and its progeny, "[t]he depravity and indifference of the crime was assessed objectively based on a review of the circumstances constituting the offense." Rustici v. Phillips, 497 F. Supp.2d 452, 484 (E.D.N.Y. 2007) (citing People v. Sanchez, 98 N.Y.2d 373, 381, 82 (N.Y. 2002) (reaffirming Register and stating that it is the "defendant's disregard of the risk [which] elevates and magnifies the degree of recklessness, itself establishing the required circumstances evincing depraved indifference to human life")).

People v. Sanchez was issued on July 9, 2002, slightly less than three months after Melendez's conviction on May 24, 2002. Sanchez "ratified Register's continued authority." Policano, 7 N.Y.3d at 602, and represented "not the creation of a new legal principle, but the application of long-settled New York law to new facts," id. The Second Circuit has recently stated that reviewing courts may properly rely on Sanchez "as a means of understanding the applicable law as it existed at the time of [petitioner's] trial. . . ." Policano v. Herbert, 430 F.3d 82, 92 (2d Cir. 2005); Policano v. Herbert, 507 F.3d 111, 115 n. 4 (2d Cir. 2007); Policano, 7 N.Y.3d at 599-600, 602-03.

In Sanchez, the defendant and the victim were acquaintances and on the night of the murder, were both at the home of Sanchez's girlfriend during a birthday party for her daughter. 98 N.Y.2d at 375. After the defendant and the victim exchanged "harsh words . . . in a hallway near the foyer entrance of the apartment," id., the only eyewitness to the incident testified that she observed defendant walking through the entrance doorway from the hallway where two children were playing in the foyer, away from the victim, who was behind the partially opened door. Then the eyewitness saw defendant abruptly turn around and fire a gun pointed at the victim's chest. The defendant then fled. The entire incident took only a matter of seconds. Sanchez, 98 N.Y.2d at 375-76. Although acquitted of intentional murder, the defendant in Sanchez was found guilty of depraved indifference murder. A majority of the New York Court of Appeals held that the jury could have found that the murder was not intentional, because the two men were friends, the shooting appeared to have been "sudden, spontaneous and not well-designed to cause imminent death," and the jury may have concluded that this was an "instantaneous, impulsive shooting-perhaps to disable or frighten [the victim], rather than to kill him." The Sanchez court found that "a jury [thus] reasonably could have found that defendant's homicidal level of mental culpability was reckless rather than intentional." Id. at 377-78.

Sanchez clarified that Register did not stand for the proposition that "ordinary recklessness" was sufficient to establish depraved indifference murder. Rather, what was required under Register's depraved indifference formulation was a showing of "heightened" or "extreme recklessness," that is, "the conscious disregard of circumstances revealing the exceptional risk of death from the defendant's conduct. . . ." 98 N.Y.2d at 380. Sanchez explained that the "crux of [depraved indifference] murder . . . [as defined by Register] is recklessness exaggerated by indifference to the circumstances objectively demonstrating the enormity of the risk of death from the defendant's conduct." Id. Thus, "when the risk of death is manifestly extreme and unjustified . . . a defendant's disregard of the risk elevates and magnifies the degree of recklessness, itself establishing the required circumstances evincing depraved indifference to human life." 98 N.Y.2d at 381.

The New York Court of Appeals, noting that a jury could have found that Sanchez did not intend to kill his victim, found that under Register, "based on an objective assessment of the risk defendant recklessly created and disregarded, the likelihood of causing death from defendant's conduct was so obviously severe that it evinced a depraved indifference to human life. Surely, pointing a gun at [the victim], without the slightest justification, discharging it within not more than 18 inches of his body and striking him in the chest, would permit a jury rationally to conclude that defendant demonstrated an indifference to human life so depraved as to be deserving of the same punishment as intentional murder; that it was virtually a knowing, although not intentional, homicide. Sanchez, 98 N.Y.2d. at 384 (emphasis in original). The Sanchez court concluded that "[defendant's] conduct involved such a high risk of death that it could also lead to the conclusion that it was intentional supports rather than detracts from characterizing it as evincing depraved indifference to human life." Id. The Sanchez court opined that "purposeful homicide itself is the ultimate manifestation of indifference to the value of human life." Id.

The Sanchez case also clarified that Register did not stand for the proposition that "ordinary recklessness" was sufficient to establish depraved indifference murder. Register instead required a showing of "heightened" or "extreme recklessness-the conscious disregard of circumstances revealing the exceptional risk of death from the defendant's conduct. . . ." Sanchez, 98 N.Y.2d at 380. As defined by Register, the Sanchez court explained, the "crux of [depraved indifference] murder . . . is recklessness exaggerated by indifference to the circumstances objectively demonstrating the enormity of the risk of death from the defendant's conduct." Id.; see also id. at 381 ("[W]hen the risk of death is manifestly extreme and unjustified . . . a defendant's disregard of the risk elevates and magnifies the degree of recklessness, itself establishing the required circumstances evincing depraved indifference to human life." Id. at 381.

"[V]iewing the evidence in the light most favorable to the prosecution," Jackson, 443 U.S. at 319, at the time of petitioner's conviction, a reasonable jury applying the law as explicated by the New York Court of Appeals in Register and Sanchez, could have found the evidence presented at petitioner's trial sufficient to establish guilt beyond a reasonable doubt of depraved indifference murder. Indeed, the facts in Melendez's case are quite comparable to those present in Sanchez, in which the New York Court of Appeals sustained the jury's finding of depraved indifference murder. As the Fourth Department found on Melendez's direct appeal, his "act of holding a gun that ultimately discharged close to the victim's face in the course of a scuffle was an act sufficiently reckless to create a grave and substantial risk of death." People v. Melendez, 11 A.D.3d 983 (App. Div. 4^th Dept. 2004). Similarly, in Sanchez, the New York Court of Appeals found that

based on an objective assessment of the risk [as dictated by Register] defendant [Sanchez] recklessly created and disregarded, the likelihood of causing death from defendant's conduct was so obviously severe that it evinced a depraved indifference to human life. Surely, pointing a gun at [the victim], without the slightest justification, discharging it within not more than 18 inches of his body and striking him in the chest, would permit a jury rationally to conclude that defendant demonstrated an indifference to human life so depraved as to be deserving of the same punishment as intentional murder; that it was virtually a knowing, although not intentional, homicide.

Sanchez, 98 N.Y.2d at 384 (emphasis in original). Significantly, the fact that Sanchez's conduct "involved such a high risk of death that it could also lead to the conclusion that it was intentional support[ed] rather than detract[ed] from characterizing it as evincing depraved indifference to human life. . . ." Id. According to majority in Sanchez, "purposeful homicide itself is the ultimate manifestation of indifference to the value of human life." Id.

Furthermore, the jury in Melendez's case was entitled to reject his trial testimony claiming that he acted in self-defense and rather credit his statement contemporaneously given to the police after the shooting that he had not intended to kill Hewitt. In his statement, petitioner told the police that Hewitt had gotten into a fight with one of petitioner's friends. Petitioner explained to the police as follows: Hewitt "got up off the ground and as he was getting back in the passenger's side of the pickup truck, I went up and shot him. I didn't mean for the gun to go off. I was just trying to scare the guy." T. 641. Petitioner ended his written statement by stating "I didn't mean for this to happen that night." T. 642. Accepting Melendez's statement to police, the jury could have found that, as in People v. Sanchez, Melendez's actions were "sudden, spontaneous and not well-designed to cause imminent death," Sanchez, 98 N.Y.2d at 377-78, and "instantaneous, impulsive-perhaps to disable or frighten [Hewitt], rather than to kill him," id. The jury, crediting the version of events given in Melendez's confession, could have concluded that his "homicidal level of mental culpability was reckless rather than intentional[,]" id. Thus, under Register and Sanchez, a rational trier of fact, applying the law in effect at the time of Melendez's conviction, could have found guilt under a depraved indifference theory based on the evidence at trial, viewed in the light most favorable to the prosecution.

The sea-change in New York's law on depraved indifference murder began after Sanchez, while Melendez's appeal was pending before the Fourth Department. Specifically, after petitioner's conviction in May 2002, and before August 15, 2005, the date on which petitioner's conviction became final, the New York Court of Appeals issued three decisions narrowing the applicability of the depraved indifference murder statute: People v. Hafeez, 100 N.Y.2d 253 (N.Y. 2003), People v. Gonzalez, 1 N.Y.3d 464 (N.Y. 2004) and People v. Payne, 3 N.Y.3d 266 (N.Y. 2004). In Hafeez, the New York Court of Appeals affirmed the Appellate Division's reversal of a depraved indifference murder conviction under a theory of accomplice liability where the evidence showed that the co-defendant had "plotted his revenge for months in advance and effectuated a plan on the night of the stabbing by a scheme intended to place the victim in a position where he would be vulnerable to attack." Defendant Hafeez lured the victim out of the bar, where his co-defendant was waiting with a knife "concealed . . . in his sleeve poised to slip into his hand;" "[t]he plan culminated in a single deliberate wound to the chest that perforated the victim's heart." The New York Court of Appeals deemed it "a quintessentially intentional attack directed solely at the victim." Hafeez, 100 N.Y.2d at 258. According to the Hafeez court, "there exist[ed] no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability [of heightened recklessness] required for depraved indifference murder," where "both defendants were focused on first isolating, and then intentionally injuring the victim." Id. at 259.

The Hafeez court further found that a prosecutor seeking a conviction under the depraved indifference statute must prove that a defendant's conduct was "`imminently dangerous and presented a very high risk of death to others'" besides the victim. 100 N.Y.2d at 259 (quoting Register, 60 N.Y.2d at 274). The conduct described in Hafeez — a premeditated attack which involved luring the victim to an isolated spot, and which culminated in a single, intentional stab wound to the victim's chest-did not meet this standard since it did not present a "very high risk of death to others," Hafeez, 100 N.Y.2d at 259. Thus, Sanchez was distinguished as "involv[ing] the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury" to non-participants. Hafeez, 100 N.Y.2d at 259.

Gonzalez followed upon the heels of Hafeez. There, the New York Court of Appeals determined that defendant Gonzalez could not be convicted of depraved indifference murder where he shot the victim multiple times, with some shots fired at close range-specifically, once in the chest, once in the face from a distance of six to eighteen inches, six times in the head from approximately six inches away, and twice in the back. Gonzalez, 1 N.Y.3d at 465-66. Noting that "[a] defendant acts intentionally with respect to a result `when his conscious objective is to cause such a result,'" id. at 467 (quoting N.Y. PENAL LAW § 15.05), the Gonzalez court found that the only "reasonable" conclusion from the evidence was to find "defendant was guilty of an intentional shooting and no other." 1 N.Y.3d at 467 (quotation marks omitted). The Gonzalez court clarified that depraved indifference murder still could be found where the defendant's conduct was directed at a "single victim," id. at 467. The court reiterated its prior reasoning from Hafeez that Sanchez differed from the one-on-one killing scenario present in Gonzalez because Sanchez involved "`the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury.'" Id. (quoting Hafeez, 100 N.Y.2d at 259).

The third case of the trio was People v. Payne, and it was upon this case that Melendez's appellate counsel premised the motion for reargument. In Payne, the defendant and the victim had been friends for decades but the relationship recently had become strained. 3 N.Y.3d at 269. After a day of heavy alcohol consumption, Payne erupted in anger upon discovering that the victim had spoken to his girlfriend. Armed with a shotgun, Payne went to the victim's home and shot him at point-blank range. Payne was convicted of depraved indifference murder, and the Appellate Division affirmed the conviction. The New York Court of Appeals reversed, finding that the defendant could not have committed depraved indifference murder. Id.

The Payne court held that there was a "manifest intent to kill." 3 N.Y.2d at 271. This holding, however, did not undermine Sanchez, because Sanchez did not fit into this category of homicides. Payne reiterated its comments in Gonzalez and Hafeez that Sanchez was fundamentally different because it was of the type of "homicides in which a defendant lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoots into a crowd or otherwise endangers bystanders." Id. The Payne court explained,

As the drafters of the Penal Law put it, depraved indifference murder is "extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Denzer and McQuillan, Practice Commentary, McKinney's Cons[olidated] Laws of NY, Book 39, Penal Law § 125.25, at 235 (1967)).

Thus, if a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense), but not depraved indifference murder. Moreover, it should be obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional. Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Payne, 3 N.Y.3d at 272-73. The Payne court relied upon its decision in Hafeez, which also had been relied upon in Gonzalez, to distinguish the Sanchez case as a one-on-one killing that could qualify as a depraved indifference murder. Payne, 3 N.Y.3d at 271 (quoting Hafeez, 100 N.Y.2d at 259) ( Sanchez "`involved the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury.'"). In sum, Payne affirmed Sanchez's holding when it defined depraved indifference murder as "extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness. . . ." Payne, 3 N.Y.3d at 272 (quotation marks omitted).

This trio of cases- Hafeez, Gonzalez, and Payne-issued after Sanchez (which ratified Register) and before Melendez's conviction became final-represented a gradual, but perceptible, change in the New York Court of Appeals' interpretation of the "under circumstances evincing a depraved indifference to human life" element of depraved indifference murder. In the interim between Register and Payne, the standard morphed from an objective assessment of the degree-of-risk of death presented by the defendant's conduct into something that more resembled an assessment of the defendant's mental state. However, according to the New York Court of Appeals, it had continued to "adhere [] to a mens rea of recklessness in Hafeez, Gonzalez, [and] Payne." Policano, 7 N.Y.3d at 602-03.

Notwithstanding this shift in the law, and in particular, the Payne decision, Melendez's conviction for deprived indifference murder can be sustained because, viewing the evidence in the light most favorable to the prosecution and, there still was legally sufficient evidence to find guilt beyond a reasonable doubt. In other words, the incremental changes to the law of depraved indifference made in Hafeez, Gonzalez, and Payne do not affect the legality of Melendez's conviction.

First, unlike the instant case, the uncontroverted evidence in Hafeez, Gonzalez, and Payne foreclosed the New York Court of Appeals from reaching any "reasonable conclusion" other than that each of the defendants acted with "a manifest intent to kill." In Hafeez, 100 N.Y.2d at 259, the victim was lured out of a bar for the express purpose of being the target of an intentional attack. In Gonzalez, 1 N.Y.3d at 467, the defendant repeatedly fired at the victim, striking him 10 times at close range. In Payne, 3 N.Y.3d at 269-71, the defendant armed himself with a shotgun before deliberately confronting the victim. Here, in contrast, evidence presented to the jury in this case did not establish a "manifest intent to kill" on Melendez's part. Melendez's statement to the police immediately after the incident contained several averments that he did not mean to shot or kill Hewitt. Although Melendez fired several times into the air as he ran away, he only fired one shot at Hewitt. This is not like the situation in Gonzalez, where it was "obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional." Payne, 3 N.Y.3d at 272.

"[A] reviewing court `faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution.'" Policano v. Herbert, 507 F.3d at 117 (quoting Jackson v. Virginia, 443 U.S. at 326). As discussed in detail above, the evidence presented at petitioner's trial is sufficient to support a rational jury's conclusion that Melendez lacked a "conscious objective" to kill Hewitt, and "instead [petitioner was] recklessly indifferent, depravedly so, to whether [Hewitt's] death occur[red]." Gonzalez, 1 N.Y.3d at 467-68.

Furthermore, although Hafeez, Gonzalez, and Payne narrowed the circumstances in which a defendant could be convicted of depraved indifference murder, particularly with respect to a one-on-one killing, the New York Court of Appeals continued to uphold Sanchez because that case "`involved the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury,'" Payne, 3 N.Y.3d at 271 (quoting Hafeez, 100 N.Y.2d at 259) (emphasis supplied)). The defendant's actions in Sanchez thus endangered others. It bears noting that the New York Court of Appeals in Sanchez did not explicitly rely upon the danger posed by the defendant's actions to individuals besides the intended victim; nor did the Sanchez court suggest that this factor was critical to its finding that the defendant acted with depraved indifference to human life. In subsequent decisions, see Hafeez, Gonzalez, and Payne, however, the New York Court of Appeals repeatedly distinguished Sanchez on this ground (i.e., danger to unintended victims). This Court notes that Melendez's case, although a one-on-one shooting, falls within the Sanchez "danger to others exception." Viewing the evidence in the light most favorable to the prosecution, Jackson, 443 U.S. at 319, the Court finds that Melendez's actions presented a risk of danger to the bystanders watching the incident involving Hewitt. Hewitt's friend was sitting next to him when Melendez fired his gun near Hewitt's head. And, there were other individuals standing less than a foot away from the victim at the time of the shooting. Melendez initially told the police that he was wielding a gun to in order "scare" Hewitt; although he later testified at trial that he was acting in self-defense. The Court, however, must view the available evidence on this point in the light most favorable to the prosecution, and therefore must accept his statements to the police. At the time Melendez fired his gun, there was a crowd of onlookers gathered closely around Hewitt, and Palermo was seated right next to Hewitt in the truck. A rational jury could have found that petitioner, by his actions, had recklessly endangered others in addition to the victim, and presented "a heightened risk of unintended injury," Hafeez, 100 N.Y.2d at 259; Gonzalez, 1 N.Y.3d at 468; Payne, 3 N.Y.3d at 271.

After Melendez's conviction became final in 2005, the New York Court of Appeals issued two decisions, which articulate its current interpretation of the depraved indifference murder statute. See People v. Suarez, 6 N.Y.3d 202 (N.Y. 2005); People v. Feingold, 7 N.Y.3d 288 (N.Y. 2006). In Suarez, issued a few months after petitioner's conviction became final, the New York Court of Appeals considered two cases involving one-on-one stabbings. Notably, the Court recognized that it was "depart[ing] slightly from the Register formulation" by "mak[ing] clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk." In both appeals in Suarez, the convictions for depraved indifference murder were reversed. The Suarez court reiterated its observations in Payne that the "`use of a weapon can never result in depraved indifference murder when . . . there is a manifest intent to kill,'" and that "`a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.'" Suarez, 6 N.Y.3d at 208 (quoting Payne, 3 N.Y.3d at 271, 272) (emphasis in original)). Suarez also circumscribed the situations in which "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered," 6 N.Y.3d at 212, to those cases in which "the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die," and those cases in which "a defendant-acting with a conscious objective not to kill but to harm-engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim[,]" id. at 212-13. Finally, the New York Court of Appeals in Suarez cited its much earlier decision in People v. Roe, 74 N.Y.2d 20 (N.Y. 1989), where the defendant in a game of so-called "Polish roulette" shot the victim at point-blank range

without knowing whether he had chambered a "live" or a "dummy" round, as an example of the "few other extraordinary cases involving conduct that endangered only one person, where the evidence showed not just recklessness, but depraved indifference to human life." Id. at 213. The Suarez court concluded that in situations other than these, "a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation." Id. Suarez stated that "the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered." 6 N.Y.3d at 213 n. 7 (emphasis in original). In Gonzalez, for example, a case where the depraved indifference conviction was reversed, the defendant, after shooting the victim, had "`waved the gun at the only eyewitness-the barber-warned him not to say anything and walked out the door[.]'" Id. (quoting Gonzalez, 1 N.Y.3d at 466) (citation omitted)). Nevertheless, the Suarez court again affirmed the conviction in Sanchez, following the same line of reasoning it had emphasized in Hafeez, Gonzalez and Payne, namely, that Sanchez had acted with depraved indifference because "`others were endangered.'" Id. (quoting Payne, 3 N.Y.2d at 272).

People v. Feingold, decided in 2006, involved a defendant convicted of first degree reckless endangerment at a nonjury trial after he attempted to commit suicide by sealing his apartment and turning on the gas, which led to an unintended explosion that heavily damaged neighboring apartments. 7 N.Y.3d at 289-90. Feingold first acknowledged that the statutory language defining first degree reckless endangerment, i.e., "`when, under circumstances evincing a depraved indifference to human life, [a person] recklessly engages in conduct which creates a grave risk of death to another person,'" N.Y. PENAL LAW § 120.25, was identical to the language contained in P.L. § 125.25(2), which defines depraved indifference murder. Feingold, 7 N.Y.3d at 290 n. 1. Feingold recognized that after Register and Sanchez, the Hafeez, Gonzalez, Payne and Suarez decisions had "pointed the law in a different direction." 7 N.Y.3d at 292-94. Although "the Suarez court did not explicitly overrule Register and Sanchez, we conclude [in Feingold] that the law has changed to such an extent that People v. Register and People v. Sanchez should no longer be followed." Id. Feingold said "explicitly what . . . Suarez stopped short of saying: depraved indifference to human life is a culpable mental state," 7 N.Y.3d at 294, rather than an element found by examining the objective set of factual circumstances of the incident. Because the judge, acting as factfinder at defendant's bench trial in Feingold clearly found that he did not possess the mens rea of depraved indifference to human life, the majority reduced his conviction to second degree reckless endangerment under N.Y. Penal Law § 120.20. Id. at 295, 297 n. 3.

Because Suarez and Feingold were decided after Melendez's conviction became final, and in light of the Second Circuit's affirmance in the case of Guzman v. Greene, this Court will not go on to consider what effect, if any, Feingold would have had on this case had it been decided while Melendez's appeal were still pending. Guzman v. Greene, No. 06-1456-pr, 337 Fed. Appx. 27, *29, 2009 WL 2019892, at **1 (2d Cir. July 14, 2009) ("We note, finally, that People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006), which overruled People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983) and People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002), were decided after Guzman's conviction became final. We therefore need not discuss how, if at all, this case would have been affected if Feingold had been decided earlier.") (summary order), aff'g Guzman v. Greene, 425 F. Supp.2d 298 (E.D.N.Y. 2006) (denying habeas relief on the basis that sufficient evidence supported defendant's conviction for depraved indifference murder and performing independent retroactivity analysis and finding Feingold and Suarez should not apply retroactively). The Court notes that the New York Court of Appeals in Policano, although not presented with retroactivity as a certified question from the Second Circuit, went out of its way to hold that Hafeez, Gonzalez, Payne, Suarez and Feingold, all of which were issued after the defendant's conviction became final, should not apply retroactively to the defendant's case. Policano, 7 N.Y.3d at 604; accord, e.g., People v. Jean-Baptiste, 11 N.Y.3d 539, 901 N.E.2d 192, 872 N.Y.S.2d 701 (N.Y. 2008).

B. Claim Two: Ineffective assistance of trial counsel based upon failure to preserve the insufficiency-of-the-evidence claim

Melendez contends that he was denied his Sixth Amendment right to the effective assistance of trial counsel because his defense attorney failed to properly preserve his challenge to the sufficiency of the evidence. In order to establish a claim of ineffective assistance of counsel, a defendant must show that his counsel provided deficient representation, and that the petitioner suffered prejudice as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Prejudice requires a demonstration of a "reasonable probability" of a different outcome. See id. A reviewing court may review the Strickland prongs in either order, and there is no reason to consider both if a petitioner makes an inadequate showing on one. Id. at 697.

Here, respondent argues that petitioner's contention was rendered moot by the fact that the Fourth Department ultimately exercised its interest of justice jurisdiction and reviewed the merits of the legal-insufficiency claim despite the fact that it was not properly preserved. Petitioner thus cannot demonstrate that trial counsel's failure to preserve the claim since the Fourth Department reviewed the claim notwithstanding the lack of preservation. Because Melendez cannot demonstrate a reasonable probability of a different outcome resulting from trial counsel's omission, he cannot establish prejudice, and his Strickland claim must fail.

C. Claim Three: The Appellate Division erroneously denied re-argument of petitioner's appeal.

Melendez sought re-argument of his appeal, specifically with respect to the depraved indifference holding, on the basis that the Appellate Division had misapprehended the underlying facts as evidenced by its comment that the shooting took place "in the course of a scuffle." Melendez states in his petition that "all evidence at trial showed that while a scuffle had occurred, the scuffle was between the decedent and a third party and it had ended well before the petitioner shot and killed the decedent." Petitioner, ¶ 22(C) (Docket No. 1). Respondent argues that the victim, having been beaten and knocked to the ground, was just about to be driven away from the scene by his friend when he was shot by Melendez. Under these circumstances, respondent argues, the Appellate Division's characterization of the shooting as having occurred "in the course of a scuffle" is a fair one and cannot be called an "unreasonable determination of the facts in light of the evidence" presented at trial. Resp't Mem. (citing 28 U.S.C. § 2254(d)(2)).

As an initial matter, the Court questions whether this claim presents a Federal constitutional issue cognizable on habeas review. "Motions for reargument are addressed to the sound discretion of the Judge who decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision[.]" Rodney v. New York Pyrotechnic Products Co., Inc., 112 A.D.2d 410, 411, 492 N.Y.S.2d 69, 70 (App. Div. 2d Dept. 1987) (citing Delcrete Corp. v. Kling, 67 A.D.2d 1099, 1099-1100, 415 N.Y.S.2d 148, 150 (App. Div. 4^th Dept. 1979)). In any event, the Court agrees with respondent's argument that the Appellate Division fairly characterized the facts. Thus, there was no "misapprehension" and the appellate court properly declined to grant reargument on that basis. This claim is totally without merit and is dismissed.

III. Conclusion

For the reasons set forth above, Melendez's request for a writ of habeas corpus is denied and the petition is dismissed. Because Melendez has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability.

IT IS SO ORDERED.

Dated: October 8, 2010 Rochester, New York