Petition — Coniglio v. Warden, Clinton Correctional Facility

Office Supreme Court, U.S,

82 1964 PILE O

| SUN 2 1993

No. | ALEXANDER |. STEVAS,

IN THE

Supreme Court of the United States

October Term, 1982

BENNY CONIGLIO,

Petitioner,

Vv.

WARDEN, CLINTON CORRECTIONAL FACILITY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. JEFFREY WEISENFELD

Attorney for Petitioner

401 Broadway—Suite 306

New York. N.Y. 10013

(212) 925-8640

Dick Bailey F xentexs, 203 Richmond Avenue @ Staten Island, New York 10302

Tel.: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

i

ISSUES PRESENTED

1. Whether uncontradicted and corroborated

testimony of a prosecution witness tending to negate

the intent necessary for accessoria liability, must be

considered in evaluating the sufficiency of the

evidence under Jackson v. Virginia.

2. Whether the evidence of guilt satisfied the stan-

dards of Jackson v. Virginia.

TABLE OF CONTENTS

Re PO i i wc inn eee

I GO RUE, oi i ee

OS

EO I A

Me RU eek

Tepe er PC. . sk ee

Reasons for Granting the Writ..............

ee ees

APPENDIX

Appendix ‘‘A’’ Opinion of the Second Circuit . .

Appendix ‘‘B’’ Opinion of the District Court . .

TABLE OF CASES

Burks v. United States, 437 U.S. 1 (1978). ....

Cooper v. United States, 218 F.2d 394 (D.C. Cir.

BO, a a cece eck.

iv

Davis v. United States, 160 U.S. 469(1895).... 12

Fuller v. Anderson, 662 F.2d 420 (6th Cir. 1981)

Ws ii cc ck. 14.15

In re Winship, 397 U.S. 358 (1970)........... 12

Jackson v. Virginia, 443 U.S. 307 (1973). . . . i,8,11,12

People v. Fiorentino, 197 N.Y. 560 (1910)..... 14

People v. LaBelle, 18 N.Y.2d 405 (1966)....... 12

People v. LaBruna, 66 A.D.2d 300 (4th Dept.

ee. 12

People v. Monaco, 14 N.Y.2d 43 (1964)........ 12

People v. Yazum, 13 N.Y.2d 302 (1963)....... 14

Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979). 14,15

Stacey v. Love, 679 F.2d 1209 (6th Cir. 1982).. 15

United States v. Tavoularis, 515 F.2d 1070 (2d

a 12

STATUTES

Gectsom 20.00 Ponel Lew................... 8

OTHER AUTHORITIES

Richardson on Evidence (10th Ed. 1973)..... . 14

]

IN THE

SUPREME COURT OF THE UNITED STATES

BENNY CONIGLIO,

Petitioner,

-against-

WARDEN, CLINTON CORRECTIONAL

FACILITY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES AND THE ASSOCIATE

JUSTICE OF THE UNITED STATES SUPREME

COURT

Petitioner, Benny Coniglio, respectfully prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Second

Circuit which affirmed a judgment of the United

States District Court for the Southern District of New

York dismissing petitioner's petition for a writ of

habeas corpus, pursuant to 28 U.S.C. Sec. 2254, seek-

ing relief from a New York State judgment convicting

him of a second degree murder [N.Y. Penal Law Sec.

125.25(1)] and sentencing him to a term of imprison-

ment with a maximum of life and a minimum of

twenty-five years.

2

OPINIONS BELOW

A copy of the unreported opinion of the Court of

Appeals, rendered March 4, 1983, is annexed hereto as

Appendix A. A copy of the District Court’s

unreported decision, rendered is annexed hereto as

Appendix B. On his direct appeal to the Appellate

Division of the Supreme Court of the State of New

York, petitioner’s judgment was affirmed without opi-

nion. People v. Coniglio, 74 A.D.2d 1004 fist Lept.

1980), and permission to appeal to the New York

Court of Appeals was also denied without opinion.

People v. Coniglio, 50 NY2d 1000 (1980) (Meyer, J.).

JURISDICTION

The iudgment of the Court of Appeals was

entered on March 4, 1983. Petitioner remains in-

carcerated in a New York State correctional facility,

pursuant to the judgment of conviction which is the

subject of this petition.

The Court’s jurisdiction is invoked pursuant to 28

U.S.C. Sec. 1254(1).

STATUTES INVOLVED

New York Penal Law Sec. 125.25—Murder in the

second degree

A person is guilty of murder in the second degree

when:

1. With intent to cause the death of another per-

son, he causes the death of such person or of a third

person...

4

3

New York Penal Law Sec. 20. 00—Criminal liabili-

ty for conduct of another

When one person engages in conduct which con-

stitutes an offense, another person is criminally liable

for such conduct when, acting with the mental

culpability required for the commission thereof, he

solicits, requests, commands, importunes, or inten-

tionally aids such person to engage in such conduct.

STATEMENT OF THE CASE

State Proceedings

The Trial

On the night of May 27-28, 1973, Tommy Genco,

who worked as a doorman at the Cabaret Lounge

disco bar was shot in the head and killed outside the

bar.

The prosecution evidence at trial was, as stated

by the trial court, purely circumstantial, since there

was only one witness to the actual shooting and he

could not identify the occupants of the car, nor which

of the occupants shot Genco. The prosecution

evidence, even conceding the truthfulness of the State

witnesses and granting all reasonable inferences, still

falls far short of that required by the United States

Constitution as set forth in Jackson v. Virginia, 443

U.S. 307 (1973).

4

The Events Inside the Bar

It was uncontested that Coniglio and Clementi

were in the bar on the evening of the shooting. An

employee of the bar, Jack Skulsky, the barman, stated

that he had seen Coniglio and another man in the bar

arguing with Genco (58-59). During the argument, the

other man, identified as ‘‘Cleme,”’ slapped Genco in

the face (58-60). Skulsky also testified that some time

after this argument, Coniglio, ‘‘Kind of indicated that

it wasn’t over’’ (60).? Skulsky also testified that he

noticed that both Coniglio and Cleme had bulges in

their waist bands (62).’

Other witnesses generally corroborated Skulsky’s

testimony about Coniglio’s presence in the bar, but

oddly, despite Skulky’s testimony that the argument

was ‘‘loud”’ (59) and that, immediately after the argu-

ment, Coniglio and ‘‘Cleme”’ left the bar (62), none of

the other witnesses testified as to any argument or

slapping.

John Genco, a patron and the victim’s brother

testified that he got to the bar at about 3:00 to 4:00

a.m. and saw his brother there (416). He also saw three

men sitting at the bar, looking at his brother (418).

Genco was quite certain that his brother neither spoke

to these men nor “... paid no attention to them”

1. On or about May 8, 1983, co-defendant Clementi filed a petition

for a writ of certiorari. Said petition is still pending.

2. Skulsky never stated upon what statements of Coniglio his

conclusion was based.

3. From this, and from the fact that he saw what looked like a

handle on the bulge at ‘‘Cleme’s’’ waistband, Skulsky concluded

that both men were carrying guns (62).

5

(418). Genco then saw one of the three men leave and

about twenty minutes later, while he was talking to

his brother, the other two men left (420).‘

Dante Musci, a patron, who knew Coniglio and

Clementi saw them in the bar that night, but he

observed no argument or slap (267, 323-324).

Theresa Cicale, a patron, testified that she spoke

to Coniglio in the bar at about the time he left the bar

and that he had asked her to come home with him

(991, 993). She did not testify as to any conversation,

argument, or slapping involving Genco in the bar.

Neither Nick DiGiorno, a patron, nor Michael

Vivenzio, the co-manager, both of whom were in the

bar that evening around the time of the shooting, saw

or heard any argument or slapping incident.

Gus Santoro, the owner of the bar, did see Genco

engaged with Coniglio, Clementi, and Cicale in a ‘‘loud

conversation,’ but he saw no slap, nor could he

characterize the conversation as an argument (1036,

1055-56). Moreover, Santoro could not say what was

being said nor whether Coniglio, specifically, was in-

volved in the loud conversation.

At this point, even accepting the strongest case

for the prosecution, the only evidence is that Coniglio

was in the bar with Clementi, there was a verbal argu-

4. It must be noted, that Skulsky placed the argument and slap

as immediately preceding Coniglio and ‘“‘Cleme’s’’ leaving the bar

(62). John Genco’s testimony was clear that he watched his

brother and the three men (later two men) for a considerable

period of time before the last two of them left. Yet, he observed

neither the ‘‘loud’’ argument nor the slap.

6

ment with Tommy Genco and that Clementi, not Con-

iglio, slapped Genco.

Events Outside the Bar

After this argument, Coniglio and Clementi left

the bar, leaving John and Tommy Genco in conversa-

tion in the bar (62, 420, 1037). Shortly thereafter,

Tommy Genco left the bar. Skulsky and John Genco,

joined him in a conversation outside the bar (63, 324,

420). After this conversation, Skulsky went back in

the bar, John Genco went to get his car, and Tommy

Genco remained in front of the doorway to the bar (63,

279, 423).

Coniglio, at this time, was outside the bar. He had

‘“Vinnie”’ go inside the bar and ask Cicale to step out-

side. Cicale left the bar and spoke to Coniglio, who

again asked her to come with him. Cicale refused and

Coniglio gave her a little push (991-993). This conver-

sation with Cicale took place only moments before the

shooting of Genco (370, 998). Cicale noticed Tommy

Genco and Dante Musci outside of the bar. She then

went back inside (347, 422, 993, 998). Genco testified

that he saw the two men from the bar standing by a

brand new black car with a wheel on the back (421). He

saw Cicale abruptly leave with these two men (422).

Musci stated that at this time, he saw a dark car dou-

ble parked outside the bar (381).°

Cicale also testified that previously she had

driven in a brand new black Buick with Coniglio

(994-995). Evidence was introduced that on April 11,

5. Cicale testified that there were other double parked cars in the

area (1011).

7

1973, Clementi bought a black Buick and registered it

on May 4, 1973 (565-566). No evidence was offered

that the car in which Cicale had ridden was the same

car as Clementi’s.

The Shooting

DiGiorno testified that he had stepped out of the

bar to smoke a cigarette, when he saw Tommy Genco

leaning into a ‘“‘dark car, dark blue, green” car. He

then heard a shot and saw Genco fall back from the

car as the car “‘shot away’’ (980-981). DeGiorno went

back into the bar and told Vivenzio that ‘‘someone got

shot”’ (980). DiGiorno could not identify the car nor

any special features. He could not say who was in the

car or from where the shot came. Vivenzio saw DiGior-

no come into the bar, close the door quickly and heard

him say that ‘“‘someone got shot’”’ (254). Vivenzio then

walked over to the door and walked outside the bar.

Once outside the bar, Vivenzio saw a black car

speeding off with two men inside (254-255). John Gen-

co, during this time, saw the same double parked

black car he had seen earlier, back up into the intersec-

tion. The two men inside were the same as those whom

he had earlier seen in the bar and speaking to Cicale

outside the bar. The shorter man was driving. Genco

watched as the two men gazed at him and sped off

down the block past the bar (424-425). Vivenzio then

saw John Genco in his car and he went with John Gen-

co to try and locate the black car (254-255).

Events After the Incident Evidence of Flight

Detective Marsenison testified that a week after

the killing, an alarm was put out for Coniglio and that

he investigated Coniglio’s whereabouts (490).

8

Marsenison determined that Coniglio was no longer

residing with his parents and that he had gone on

vacation (546). Several years later, when Coniglio was

arrested, he had in his possession, false identification.

The Admission

Nanette Sanzo testified that during the time that

Coniglio lived with her in Florida:

He told me that he had shot someone in the head in

the front of a bar in New York, over ten thousand

dollars and he was sitting in a car when it happened

(196).

She first told the police of this admission in 1977,

four years after it had allegedly been made and at a

time when she was a “‘police informant’’ and had the

incentive to please the authorities and to learn of the

details which would please them (217). (Transcript of

Wade Hearing, p. 2, 19, 20, 47).

During his summation, the prosecutor stated to

the jury:

I submit to you, very crucially in this case, Benny

[Coniglio] was the driver, Cleme is the passenger.

Cleme is the heavy in the bar, he does the slapping.

Now, follow it one step farther. If you look at the

autopsy report and a lot of technical terms, but one

thing is very simple, bullet track, the direction of the

bullet wound in from front to back, left to right and

upward in the deceased’s body ...[T]he shooter in

this case, ladies and gentlemen, and you may be very

surprised for me to argue it to you, but I do submit it

to you most respectfully, and I submit to you from the

evidence you can so draw the conclusion beyond a

9

reasonable doubt, is Cleme not Benny. The reason

why I say that to you is this. Who is the short little

braggart that tells Nanette Sanzo, I shot somebody

outside of a bar, I, all by myself, me. Nanette who is

much taller than him, he says that to her, that’s what

he says, but he is driving the car, and I submit from

the angle of the bullet and that which occurred inside

the bar, the shooter is not Benny, despite what he

himself says to a girl in Florida who doesn’t know

anything about it. The shooter is Cleme (1475-1486).

(Emphasis supplied)

Thus, at trial the prosecution took the position

that the admission allegedly made by Coniglio to San-

zo was false and that Coniglio had not shot Tommy

Genco.

The State Appeal

The Appellate Division, First Department, affirm-

ed the conviction without a written opinion. On ap-

peal, the prosecution changed its theory of Coniglio’s

culpability. At trial, the prosecution argued that the

admission to Sanzo was false and that it was Clementi

who shot Genco. On appeal, the prosecution improper-

ly did a complete about face and argued that Coniglio

had shot Genco ‘‘just as he described the incident to

Nanette Sanzo...’’ (District Attorney’s brief to the

Appellate Division, p. 24).

The New York Court of Appeals denied leave to

appeal.

10

Federal Proceedings

District Court

On April 29, 1982, Coniglio filed a petition for a

writ of Habeas Corpus pursuant to 28 U.S.C. §2254.

The case was assigned to Hon. Whitman Knapp, who

on October 22, 1982 denied the writ.

On November 3, 1982, Judge Knapp issued a cer-

tificate of probable cause to appeal to the Court of Ap-

peals for the Second Circuit.

Court of Appeals

In his brief to the Court of Appeals, Coniglio

argued that the alleged admission made to Sanzo

could not be relied upon in determining the sufficiency

of the evidence of his guilt. This argument was based

upon the prosecution’s asserted improper change in

theory between trial and appeal.

The Second Circuit, in its opinion affirming the

order of the District Court, did not rely upon the ad-

mission to Sanzo in its evaluation of the sufficiency of

the evidence.

REASONS FOR GRANTING THE WRIT

This case involves an interesting and potentially

frequent situation where a prosecution witness gives

uncontradicted and corroborated testimony which

negates an essential element of the crime. Here, Con-

iglio was charged as an accessory to the shooting

death of a Tommy Genco. As an accessory, Coniglio,

11

in order to be properly convicted, had to be found to

have shared the intent of the actual shooter. The

testimony of a prosecution witness, Theresa Cicale,

which was corroborated by other prosecution

witnesses, was that just a minute or two prior to the

shooting, Coniglio tried to induce her to come home

with him, ostensibly for romantic purposes. Indeed,

there was prosecution testimony that Coniglio tried to

physically make her join him. Other than the fact of

the shooting by another person a minute later, there

was no additional evidence from which a jury could

find that Coniglio joined in or had the requisite intent

to kill Genco, except for evidence of flight. Under

Jackson v. Virginia, the test is what a reasonable jury

could find. Here, to disregard the testimony of Cicale

is totally unreasonable. Only by disregarding her

evidence, can the conviction be sustained.

Further, the proof of guilt is also deficient in that

there is no real proof that Coniglio was in the car from

which the shot which killed Genco was fired.

At the outset, it must be noted that the Second

Circuit did not decide the issue of the propriety of the

prosecution’s use of the alleged admission to Nanette

Sanzo. The Second Circuit did not include this admis-

sion in its analysis of the sufficiency of the evidence.

Accordingly, for purposes of this petition, the suffi-

ciency of the evidence will be discussed without

reference to the admission to Sanzo.

Jackson v. Virginia, 443 U.S. 307, 324 (1979) sets

forth the Federal Constitutional standard for suffi-

ciency of the evidence to convict as whether upon the

evidence on the record at trial ‘‘. . . no rational trier of

fact could have found proof beyond a reasonable

12

doubt.”’ Further, in order to find guilt beyond a

reasonable doubt, there must be sufficient evidence as

to each and every fact necessary to establish every

essential element of the crime charged. Davis v.

United States, 160 U.S. 469, 487 (1895); Burks v.

United States, 437 U.S. 1 (1978); United States v.

Tavoularis, 515 F.2d 1070, 1077 (2d Cir. 1975); see, In

re Winship, 397 U.S. 358, 364 (1970). This rule of law

means that no matter how strong the evidence at trial

is as to one element, if as to another element the proof

is not sufficient, the case must be dismissed. Burks v.

United States, supra.

In this case, the proof of two elements; intent and

presence in the car from which the shot was fired, were

not proven beyond a reasonable doubt, as that stan-

dard is defined in Jackson.

Coniglio was charged as an accessory. Accessorial

participation with an intent to kill is defined in

§20.00 et seq. P.L. The key to such accessorial par-

ticipation is that the accessory must act with the

‘“‘mental culpability required for the commission

thereof, and must solicit, request, command, impor-

tune, or intentionally aid the principal engaged in

such conduct.” In short, the accessory must share the

intent of the principal actor to be held liable for the

crime committed by the actor. People v. LaBelle, 18

N.Y.2d 405, 412 (1966); People v. Monaco, 14 N.Y.2d

43, 46 (1964); Reople v. LaBruna, 66 A.D.2d 300, 302

(4th Dept. 1979).

Thus, the key issue raised here is whether the

evidence of Coniglio’s intent before and at the instant

of the shooting is sufficient. It is patently insufficient.

13

There is absolutely no evidence that Coniglio in

any way participated in the shooting before it occur-

red, his mere presence’ in the car and his presence at

the dispute in the bar do not even approach the quan-

tum of evidence required to find the requisite intent.

In fact, the evidence is quite to the contrary, it

establishes Coniglio’s lack of intent.

Just moments before the shooting, Theresa Cicale

was asked by Coniglio to come home with him or to go

with him.’ Therefore, it is obvious that immediately

before the shooting, Coniglio could not have intended

to participate in a homicide. For who asks a woman to

come with him when he intends to kill someone. Cicale

was a prosecution witness and her conversation with

Coniglio outside the bar shortly before the shooting is

corroborated by other prosecution witnesses. There is

absolutely nothing further in the record to indicate

that, in the brief, momentary gap between his invita-

tion and the killing, Coniglio’s intent changed from

amorous to murderous. In fact, his invitation to Cicale

shows that Coniglio was entirely unaware of any in-

tention on the part of anyone to shoot Genco. Nor is

there anything in the record which would indicate

Coniglio did anything more than drive away after the

shooting. This evidence of lack of intent just before

the shooting must be considered under the reasonable

inference standard of Jackson, for to disregard it

would be entirely unreasonable. Absent any evidence

on the crucial issue of intent at the time of the

6. Assumed arguendo.

7. There was even some prosecution testimony that Coniglio tried

to force her to come with him.

14

shooting, the case against Coniglio is not sufficient to

sustain the conviction. Fuller v. Anderson, 662 F.2d

420 (6th Cir. 1981), cert. denied 30 CrL 4256, involving

a remarkably similar intent issue, holds that evidence

is insufficient to sustain a conviction where, as here,

there was no evidence of intent to participate in the

crime at the time of its commission. While the court

found that one person did have such intent, it goes on

to state: ‘‘assuming Zerious Meadows had this intent

(to burn the house), however, there was noe vidence

that it was shared by petitioner or the other boys.”’ Jd.

at 414. Also, Speigner v. Jago, 603 F.2d 1208 (6th Cir.

1979).°

It must also be remembered that the Court gave a

Sandstrom-type charge in this case. Putting aside the

issue of whether the charge given here rises to the

level of a constitutional violation and whether the

issue was waived in the state courts, still this court, in

evaluating the jury verdict, should take into con-

sideration that the charge on intent permitted the

jury to infer the intent to kill from the mere fact of the

shooting. In this light, the jury’s verdict can be more

readily understood as an application of the inference

rather than an evaluation of the evidence of intent.

The evidence that Coniglio drove away and that

he could not be located for some time by the police,

cannot supply the missing links. Evidence of flight, at

best, is to be treated with caution and has only slight

probative value. People v. Yazum, 13 N.Y.2d 302, 304

(1963); People v. Fiorentino, 197 N.Y. 560, 567 (1910);

Richardson on Evidence, p. 135 (10th Ed. 1973).

8. Cited with approval in Jackson v. Virginia, supra at 316 n.7.

15

Federal courts have consistently recognized that even

‘innocent people caught in a net of circumstance fre-

quently ...”’ flee. Cooper v. United States, 218 F.2d

394 (D.C. Cir. 1954); Stacey v. Love, 679 F.2d 1209

(6th Cir. 1982) (‘‘...any fool faced with fear and

foreboding can flee and hide.”’) The consistency of this

position on the probative value of flight is further

demonstrated by Fuller v. Anderson, supra and

Speigner v. Jago, supra, where there was strong, clear

evidence of flight. Still, the Sixth Circuit in those

cases reversed the convictions.

In short, the evidence at trial showed that Con-

iglio had no intent to shoot or join in the shooting of

Genco just a minute before Genco was shot. Other

than the inherently weak flight evidence, there was

nothing else upon which a reasonable jury could infer

or find culpable intent. Therefore, the conviction can-

not stand.

In actuality, there is a second element of the crime

which was not sufficiently established; namely, that

Coniglio was present at the scene of the crime. By the

scene of the crime, what is meant is presence in the car

from which the shot was fired. Mere presence in the

bar is totally inaadequate to show presence at the car,

which is the actual scene of the crime. Again, in

analyzing the sufficiency of the evidence of presence,

only reasonable inferences may be drawn. Careful

analysis of the trial evidence leads to the conclusion

that Coniglio was not in the car from which the shot

was fired.

In light of the testimony of John Genco, there are

only two possibilities: One, that Genco saw the car

with the two men in it before the shooting occurred, or

16

he saw it after the shooting. In either event, only by

resort to an unreasonable inference can Coniglio be

found to be in the car from which Genco was killed.

The only testimony, even remotely identifying

Coniglio or Clementi as being in any car which drove

off is the testimony of John Genco, Genco’s testimony

was very specific that the car, in which he saw the

shorter and taller men, was, at the time he saw it,

backing up into the first intersection ‘‘up from the

Cabaret.’”’ After looking at him, the two men sped

away in the same direction from which they had come

(i.e. back past the Cabaret). However, the testimony of

DiGiorno, the only witness to the shooting, was that

immediately after the shooting and as Tommy Genco

fell back, the car in which Genco had been leaning

‘“,..just shot away.’’ It must be noted that the car

which Genco saw ‘“‘had backed up the street (Buhre

Avenue) right in front of my car... ’’ (Emphasis sup-

plied)

If it is assumed that Genco saw this car before the

shooting occurred, it is absurd to find that the car

Genco saw was involved in the murder.

It must be remembered that the ‘‘black car’? was

originally parked right in front of the club. So too,

Tommy Genco was standing right there. Thus, to ac-

cept the prosecution theory, we have to first find that

Coniglio and Clementi got into the black car right in

front of the club and right near Tommy Genco, then

backed up the block for no apparent reason. There

they were spotted by John Genco and stared at him:

9. In the Grand Jury, Genco said it was a white car.

17

only to then drive back to the same spot they had left

and shoot Genco. In order to keep this ridiculous

theory alive, the prosecution below distorted the

record. The prosecution in its brief to the Second Cir-

cuit (p. 5) states that ‘‘DiGiorno then saw the black

car pull up in front of the bar’’ and then saw Tommy

Genco walk over, lean in, and get shot. Aside from the

timing difficulties in all this activity being completed

in the short time it took John Genco to come around

the corner in his car, the simple fact is that DiGiorno’s

testimony was that at the time he went outside the

club, he saw ‘‘Tommy Genco was leaning in a car... ag

It is clear that in order to supply some link between

the car backing up and the one DiGiorno saw, the pro-

secution wrongly asserted that DiGiorno saw this car

in motion.

This incorrect assertion is crucial to a finding that

the two cars were actually one. It gives the ap-

pearance of one continuous train of events [car backs

up, car pulls forward (Genco loses sight of the car)

then DiGiorno sees the car pull up]. However, there is

absolutely no evidence that the black car from which

the shot was fired ever moved before the shooting.

Simply put, there is no evidence that the car in which

John Genco says he saw Coniglio was the same car

which DiGiorno saw. This absence of proof, itself

creates a guif in the case against Coniglio which

distortions of the record will not bridge.

The other theory, that the shooting occurred after

Genco saw the car with the two men, is just as

preposterous. In fact, the testimony of Genco and

DiGiorno can be harmonized only if two dark cars

were involved. For DiGiorno was positive that after

the shooting, the black car, from which the shot was

18

fired, “‘... just shot away.”’ DiGiorno said nothing

about seeing that car back up the block (Buhre

Avenue) before speeding away. It is inconceivable

that DiGiorno would not have seen the black car back

up after the shooting if it had done so. Moreover, that

there were two different cars is a far more reasonable

view because it is highly unlikely that after shooting

someone that the perpetrators would back up the

block and stop, only to then drive past the scene again

in order to flee.

In conclusion, the total lack of evidence of Con-

iglio’s intent at the time of the shooting itself dooms

this conviction. In addition, the evidence shows that

the car in which he was riding, assuming arguendo the

accuracy of the identification of Coniglio as being in

the car seen by John Genco, could not have been the

same one as the one from which Tommy Genco was

shot.

While it is correct that Jackson and the due pro-

cess clause set a standard on habeas corpus review

that is difficult for a petitioner to meet, here, where

evidence which comes from a prosecution witness is

uncontradicted, corroborated, and negates an element

of the crime, the conviction cannot stand.

This Court should grant the petition since this

case raises the novel issue of the impact of ex-

culpatory prosecution evidence on the Jackson stan-

dards. Moreover, this type of circumstance will in-

evitably arise many more times, and this Court should

render an opinion in this case in order to give guidance

to the Circuit Court.

19

CONCLUSION

FOR THE REASONS SET FORTH ABOVE,

THE WRIT OF CERTIORARI SHOULD BE

GRANTED.

Respectfully submitted,

J. JEFFREY WEISENFELD

Attorney for Petitioner

401 Broadway—Suite 306

New York, N.Y. 10013

(212) 925-8640

la

APPENDIX A

OPINION OF THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on

the Fourth day of March, One thousand nine hun-

dred and eighty-three.

Present:

HONORABLE JAMES L. OAKES,

HONORABLE AMALYA L. KEARSE,

HONORABLE DOLORES K. SLOVITER,

Circuit Judges.

BENNY CONIGLIO,

Petitioner-Appellant,

¥,

WARDEN, CLINTON CORRECTIONAL

FACILITY,

Respondent-Appellee,

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK

This cause came on to be heard on the transcript

of record from the United States District Court for the

Southern District of New York, and was argued by

2a

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court be and it hereby is affirm-

ed.

Petitioner Benny Coniglio, a state prisoner, ap-

peals from a judgment of the United States District

Court for the Southern District of New York, Whit-

man Knapp, Judge, denying his petition for a writ of

habeas corpus. Coniglio contended principally that (1)

under the standards of Jackson v. Virginia, 443 U.S.

307 (1979), the evidence was insufficient to sustain his

murder conviction, and (2) the trial court’s instruc-

tions on intent denied him due process under the prin-

ciples set forth in Sandstrom v. Montana, 442 U.S.

510 (1979). Finding no merit in these or any of Con-

iglio’s other contentions, we affirm the judgment.

The evidence adduced at petitioner’s trial, viewed

in the light most favorable to the prosecution, see

Jackson v. Virginia, supra, 443 U.S. at 319, was ade-

quate to permit a rational trier of fact to find Coniglio

guilty of the murder of T. Genco. The jury could have

found, inter alia, that on the night of the murder Con-

iglio and his companion Clementi were in the Cabaret

Lounge, where they had a heated argument with T.

Genco; that Clementi slapped T. Genco, following

which Coniglio, while walking away, told T. Genco

that the dispute “wasn’t over;” that both Coniglio

and Cle:nenti were carrying guns; that thereafter Con-

iglio and Clementi were seen outside near a late-model

black automobile; that Clementi had recently purchas-

ed a late-model black automobile; that a late-model

black automobile carrying two men pulled up outside

3a

the Cabaret Lounge; that T. Genco leaned inside,

whereupon he was shot and mortally wounded; that

the car sped away; that Coniglio fled from his home

community and assumed a new identity. Even assum-

ing, arguendo, that the jury was not to consider as

evidence of Coniglio’s guilt the statement he made to

his girlfriend, Sanzo, that while seated in a car “‘he had

shot someone in the head in the front of a bar in New

York, over ten thousand dollars,’ the evidence was

sufficient for the jury to find beyond a reasonable

doubt that Coniglio either did the shooting or aided

and abetted Clementi in the shooting.

As to Coniglio’s Sandstrom claim, assuming that

it is not barred by the doctrine of procedural default,

see Wainwright v. Sykes, 433 U.S. 72 (1977), we con-

clude that the claim is meritless. The challenged por-

tion of the charge merely informed the jury that it

could ‘‘infer’’ that Coniglio intended the necessary

and probable consequences of an act ‘done by him,”

and did not state that the law presumed such intent.

As Coniglio has called to our attention no portion of

the charge having the effect of shifting to him the

burden of proving his innocence, we find no error. See

Sandstrom v. Montana, 442 U.S. at 523-24;

Washington v. Harris, 650 F.2d 447, 453 (2d Cir.

1981). cert. denied, 102 S. Ct. 1455 (1982).

4a

The judgment is affirmed.

s/James L. Oakes

JAMES L. OAKES, U.S.C.J.

s/Amalya L. Kearse

AMALYA L. KEARSE, U.S.C.J.

s/Dolores K. Sloviter

DOLORES K. SLOVITER, U.S.C.J.

N.B. Since this statement does not constitute a formal

opinion of this court and is not uniformly available to

all parties, it shall not be reported, cited or otherwise

used in unrelated cases before this or any other court.

5a

APPENDIX B

OPINION OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BENNY CONIGLIO,

Petitioner,

-against-

WARDEN, CLINTON CORRECTIONAL FACILITY

Respondent.

WHITMAN KNAPP, D.J.

Petitioner, having exhausted his state remedies,

challenges on constitutional grounds his New York

State conviction for murder in the second degree. The

basic facts concerning the murder and the New York

State trial are set forth in an Opinion by Judge

Pollack denying a similar petition for habeas corpus

by petitioner’s co-defendant in the state trial (Clemen-

ti v. Scully, 81 Civ. 5137, Slip Op. dated October 20,

1981). They will not be restated.

Petitioner raises several constitutional issues.

However, in the extraordinarily able brief his counsel

presses only two of them: (1) that the evidence was not

sufficient to meet the standard set forth in Jackson v.

Virginia (1979) 443 U.S. 307; and (2) that the trial

6a

court’s instruction on intent violated the constitu-

tional standard established in Sandstrom v. Montana

(1979) 442 U.S. 510. Having examined the other ques-

tions presented by the petitioner and having conclud-

ed that counsel was well advised to abandon them, we

turn to the arguments advanced in counsel’s

memorandum.

For the purposes of this opinion we accept

without question the statement of facts set forth at

pp. 1 through 7 of the petitioner’s memorandum. That

statement clearly establishes that the jury had before

it evidence upon which it could rationally find the peti-

tioners guilty beyond a reasonable doubt: there was

considerable circumstantial evidence coupled with an

admission alleged to have been made by the petitioner

to his girlfriend. But then a strange thing hap-

pened—the prosecutor in his summation repudiated

the admission (that is to say, he didn’t question the

veracity of the witness who testified to the admission,

but urged the jury to disregard it as bragadocio), and

took the position that the co-defendant and not the

petitioner had fired the fatal shot. Petitioner now

urges that we are bound by the prosecutor’s summa-

tion and should disregard petitioner’s alleged admis-

sion in determining whether the evidence before the

jury met the Jackson standard. We do not so read

Jackson. Jackson is an extremely narrow holding

which prevents a conviction from standing in the total

absence of supporting evidence. See also, United

States v. Tresvant (4th Cir. 1982) 677 F.2d 1018, 1021.

In the instant case there was supporting evidence

before tie jury and the prosecutor’s rather unor-

thodox tactics cannot blunt that fact. See also, Sales

v. Harris (2d Cir. 1982) 675 F.2d 532, 541.

Ta

With respect to the Sandstrom point, the peti-

tioner’s counsel concedes procedural default in presen-

ting it to the state courts, but contends that there was

‘“‘cause and prejudice”’ for the waiver. See Wainwright

v. Sykes (1977) 433 U.S. 72, 87. Accepting, arguendo,

the petitioner’s position as to cause, we find no pre-

judice. The issue in this case was not intent, but iden-

tity. If the jury accepted the proposition that the peti-

tioner and his co-defendant had been properly iden-

tified as the persons in the car from which the shot

was fired, there is no rational reason for believing that

the jury should have concluded that either such per-

son acted without intent to kill. Cf Jordan v. Ham-

mock (2d Cir. 1982) 682 F.2d 52, 53.

Accordingly, the petition for habeas corpus is

denied.

SO ORDERED.

Dated: New York, New York

October 20, 1982

WHITMAN KNAPP, U.S.D.J.