Congelosi v. Miller (611 F. Supp. 2d 274, 2009)

DECISION AND ORDER

SIRAGUSA, District Judge.

This case is before the Court to consider objections raised by Petitioner to the Report and Recommendation (“R & R”) filed by United States Magistrate Judge Victor E. Bianchini upon review of Petitioner’s application for the issuance of a writ of habeas corpus pertaining to his state court conviction. The law provides that in reviewing the objections, this Court

shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1) (2005). Petitioner was convicted in a New York State court on November 4, 1996, of depraved indifference murder, assault and felony driving while intoxicated. He challenged his conviction in the New York courts by way of a direct appeal, by way of New York Criminal Procedure Law Article 440 application, and a petition for a writ of error coram nobis. He then filed the instant petition seeking from this Court a writ of habeas corpus contending that the State courts had committed errors supporting eleven different grounds for overturning his conviction. The Court referred the matter to Judge Bianchini for a R & R, and based on that report, and a de novo review of the portions to which Petitioner objects, the Court adopts the recommendations of Judge Bianchini and dismisses the petition without issuing a certificate of appealability.

Failure to mention consideration of Petitioner’s Supplemental Memorandum and Reply

First, Petitioner objects that Judge Bianchini did not consider his “reply to the State’s opposition.” In this regard, it appears Petitioner is referring to the documents he entitled “Petitioner’s Supplemental Memorandum of Law to his Title 28 U.S.C.A. 2254 Habeas Corpus Petition,” (Docket No. 15, filed on Aug. 12, 2002), and “Petitioner’s Reply in Response to Respondent’s Answer in Opposition to Petitioner’s Application for Writ of Habeas Corpus,” (Docket No. 28, filed on Nov. 20, 2002). Petitioner concludes that, since Judge Bianchini did not specifically mention these documents in his R & R, he did not consider them.

By way of background, a week after Petitioner filed Docket No. 15, he filed an amended petition (Docket No. 17, filed on Aug. 19, 2002), including a memorandum of law, and exhibits (Docket Nos. 18-22). On October 21, 2002, Respondent filed his answer as well as the state court records. On November 20, 2002, Petitioner replied to the answer, and then, about a year later, on February 2, 2004, moved to file a supplemental pleading. Although Respondent opposed, in a September 2, 2004, Decision and Order, United States Magistrate Marion W. Payson granted Petitioner’s application, deeming it a motion to supplement his memorandum of law. Judge Payson set October 4, 2004, for Respondent to file a response to the supplemental memorandum and Respondent did so in Docket No. 39, filed on November 4, 2004.

In her September 2, 2004, decision and order, Judge Payson did not provide Petitioner an opportunity to reply to Respondent’s supplemental memorandum of law; nevertheless, Petitioner did so in what he captioned, “Petitioner’s Response to Respondent’s Supplemental Memorandum of Law,” filed as Docket No. 41, on November 19, 2004.

Even assuming, arguendo, that Judge Bianchini’s failure to reference the two documents at issue (Docket Nos. 15 & 28) in his R & R means that he did not consider them, as Petitioner suggests, the objection fails. Other than his conclusory statement that Judge Bianchini would have come to a different result had he considered Docket Nos. 15 and 28, Petitioner makes no argument that by not considering those two documents, Judge Bianchini came to the wrong conclusion in the R & R. Judge Bianchini, in a 58-page R & R, thoroughly discussed the eleven grounds Petitioner raised in support of his petition. Miranda issue

Second, Petitioner objects to the R & R with respect to the Miranda issue he raised. (Objection ¶ 2.) He maintains that the state courts erred in failing to suppress a statement he made to Officer Fen-ton on the basis that he was subjected to a custodial interrogation without first having been given his Miranda warnings. As to this issue, Judge Bianchini wrote, “I tend to agree with [Petitioner] that Officer Fen-ton should have known that his comment was at least ‘reasonably likely to elicit an incriminating response.’ ” (R & R, at 16.) Therefore, Judge Bianchini, in fact, accepted Petitioner’s argument that Officer Fen-ton conducted a custodial interrogation. Accordingly, Petitioner’s objection, relating to his custodial status, is without merit.

Additionally, Petitioner argues that Judge Bianchini’s erroneously determined that any Miranda violation on Officer Fenton’s part was harmless beyond a reasonable doubt. In this regard, Petitioner contends that his statement that he had consumed “a couple of beers” earlier in the day, made in response to Officer Fenton’s question, was the only direct evidence of voluntary intoxication and, therefore, its admission was not harmless. (Objection ¶ 6.) However, Petitioner’s argument ignores the other evidence of voluntary intoxication at trial, which Judge Bianchini listed in his R & R. Referring to the statement Petitioner made to Officer Fen-ton, Judge Bianchini wrote:

This piece of evidence was a relatively insignificant part of the prosecution’s proof that [Petitioner] was intoxicated, and voluntarily so: his B.A.C. result was 0.28-0.29, almost three times the legal limit; various witnesses observed his physical condition and combative, irrational behavior following the accident; he was seen holding a glass object in his hand while driving; and a nearly empty liquor bottle was found in his truck. See, e.g., T.538, 552, 581-82. And, a nurse who treated [Petitioner] at the hospital testified that he had told her essentially the same thing he had said to Officer Fenton — that he had consumed a “couple of beers” earlier in the day. See T.538, 546-47. [Petitioner] also had told a paramedic at the accident scene that he had been coming from a party before the accident. T. 555-56. Thus, the statement which [Petitioner] sought to preclude was cumulative to other evidence regarding his voluntary intoxication so that its admission could not reasonably have had a detrimental effect on the verdict.

(R & R, at 16.) The Court concludes that even if the trial court had suppressed the statement made to Officer Fenton, probable cause existed for Petitioner’s arrest and a reasonable jury could have found guilt beyond a reasonable doubt.

Autopsy photographs

Third, Petitioner objects to Judge Bianchini’s recommendation with respect to the autopsy photographs. Although Judge Bianchini agreed with Petitioner that the two, small, black and white photographs should not have been admitted, he nonetheless determined that their admission did not rise to a constitutional violation. As the Second Circuit stated in Collins v. Scully, 755 F.2d 16 (2d Cir.1985):

We are not here simply being called upon to apply rules of evidence that might permit the state court in its discretion to grant a new trial but rather are dealing with a more fundamental constitutional concept of fairness. The standard in our view should therefore be whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been “crucial, critical, highly significant,” Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir.1982) (internal quotation marks omitted).

Collins, 755 F.2d at 19. The record does not support a finding that the two autopsy photographs that were admitted were “crucial, critical, [or] highly significant.” Id. Therefore, the Court rejects Petitioner’s third objection.

Ineffective assistance of counsel

Fourth, Petitioner objects to Judge Bianchini’s recommendation that the preserved claim of ineffective assistance of counsel, based on the failure to move to suppress blood tests, is without merit. (Objection ¶ 12.) At the outset, it is well settled that to prevail on an ineffective assistance of counsel claim, Petitioner must show both (a) “that counsel’s representation fell below an objective standard of reasonableness .... under prevailing professional norms,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (b) “that the deficient performance prejudiced the defense,” that is, “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” id. at 687, 104 S.Ct. 2052.

As to the blood test, the Court agrees with Judge Bianchini’s interpretation of the holding by the New York Court of Appeals in People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213 (1995). In Atkins, the Court of Appeals held that where, as here, a motorist has consented to a blood test prior to arrest, the statutory prerequisites of New York State Vehicle and Traffic Law § 1194, relied on by Petitioner, do not apply. Accordingly, trial counsel’s failure to move to suppress the blood test results as violative of the statute cannot be deemed ineffectiveness under the Strickland test. Consequently, the Court rejects Petitioner’s fourth objection.

Fifth, Petitioner objects to Judge Bianehini’s recommendation that trial counsel was not ineffective for deciding against introducing evidence regarding Petitioner’s long standing alcoholism. (Objection ¶ 15.) The Court has reviewed Petitioner’s arguments made in his objection and his memoranda of law and disagrees that trial counsel’s failure to investigate and raise the issue of Petitioner’s alcoholism amounted to ineffective assistance of counsel. Based on the state of the law at the time of Petitioner’s trial, trial counsel’s decision not to raise this defense was a reasonable strategic decision. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Sixth, Petitioner objects to Judge Bianchini’s recommendation that appellate counsel was not ineffective “for failing to raise petitioner’s right to be present at an unsupervised contact/communication between the court deputy and the jury and the right to have his trial judge present at that critical stage....” (Objection ¶ 19.) After reviewing the arguments raised in Petitioner’s objection, reply and his memoranda of law, as well as his petition for a writ of error coram nobis, the Court agrees with Judge Bianchini that Petitioner’s contentions are without merit.

Jury charge misstatement and ineffectiveness of counsel

Seventh, Petitioner objects to Judge Bianchini’s recommendation that the trial court’s misstatement of one of the elements of depraved indifference murder during one iteration of the charge to the jury is subject to harmless error analysis. (Docket No. 17, at 66; Objection ¶ 24.) More specifically, on one occasion, the trial court erroneously instructed the jury that conduct causing serious physical injury was an element of depraved indifference murder when, in fact, the applicable statute provides that a person “[ujnder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” N.Y. Penal Law § 125.25(2). However, on this issue, the Court agrees with Judge Bianchini’s analysis that “[wjhere, as here, the omitted element was uncontested and was supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the reviewing court will properly find the mis-instruction to have been harmless.” (R & R, at 51 (citations omitted).)

Eighth, Petitioner objects to Judge Bianchini’s recommendation that trial counsel was not ineffective for failing to object to erroneous jury charges, including an erroneous verdict form, and that appellate counsel was not ineffective for failing to raise this issue on appeal. (Objection ¶ 28.) With regard to trial counsel, Judge Bianchini correctly determined that the claim was unexhausted and subject to a procedural bar. (R & R, at 42.) With regard to appellate counsel, contrary to Petitioner’s contention (Objection ¶ 30), Judge Bianchini, at page 52 of his R & R, specifically addressed the issue of appellate counsel’s failure to object to the jury instructions and verdict form and found the claim to lack merit. After a review of the arguments Petitioner raises, the Court agrees there is no merit to his claim of appellate counsel ineffectiveness.

Eighth Amendment

Ninth, Petitioner objects to Judge Bianchini’s recommendation that Petitioner’s sentence did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment prohibition. Essentially, Petitioner argues that his sentence was excessive, because he only had the mens rea of recklessness, not depraved indifference. (Objection ¶¶ 36-38.) Petitioner’s case, though, does not fall within the Eighth Amendment’s prohibition of extreme sentences that are grossly disproportionate to the crime. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The maximum sentence for his conviction was 25 years to life, and he received an aggregate sentence of 16 years to life, only one year more than the statutory minimum. “No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) (citations omitted).

With regard to his mens rea, at the time of his conviction, under New York law, depraved indifference murder required that the prosecution establish recklessness. People v. Register, 60 N.Y.2d 270, 274, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983). The court also wrote:

A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk (Penal Law, § 15.05, subd. 3), but to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind.... The crime 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.

Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704. About nine years after his conviction, in People v. Suarez, 6 N.Y.3d 202, 214, 844 N.E.2d 721 (2005), the New York Court of Appeals held that, “the statutory provision that a defendant act ‘[u]nder circumstances evincing a depraved indifference to human life’ constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference. ...” The following year, the New York Court of Appeals wrote, “[w]e say today explicitly what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state.” People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006). The Feingold standard, however, is not retroactive to the date of Petitioner’s conviction. Policano v. Herbert, 507 F.3d 111 (2d Cir.2007); Policano v. Herbert, 7 N.Y.3d 588, 825 N.Y.S.2d 678, 859 N.E.2d 484 (2006).

Certificate of appealability

Finally, Petitioner objects(Objeetion ¶ 39) to Judge’s Bianchini’s recommendation that no certificate of appealability be issued. 28 U.S.C. § 2253 (1996). He requests that if the Court dismisses his petition, it issue a certificate of appealability. Should this Court not issue a certificate of appealability, Petitioner would have to apply to the Second Circuit Court of Appeals for a certificate. 28 U.S.C. § 2253(c)(1). The criteria for issuing a certificate of appealability is as follows:

A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. See Lozada v. U.S., 107 F.3d 1011, 1013 (2d Cir.1997). The statue mandates that the certificate of appealability, “shall indicate which specific issue or issues satisfy the showing required by paragraph (2).” 28 U.S.C. § 2253(c)(2)... .The petitioner need not show that he should prevail on the merits; instead, he need only demonstrate: (1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate as to deserve encouragement to proceed further. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

United States v. Jeres, Nos.96 Civ 2702(LBS), 92 CR 757(LBS), 1997 WL 639040,*1 (S.D.N.Y. Oct. 15, 1997). Here, Petitioner suggests in particular that the failure of trial counsel and appellate counsel to challenge the “erroneous jury charge and verdict form” raised in his eighth objection, discussed, above, meets this standard. The Court disagrees and finds that the claimed flaws in Petitioner’s trial are not debatable among jurists of reason, not resolvable in a different manner, nor are the questions adequate to deserve encouragement to proceed further. Id. The Court, therefore, denies a certificate of appealability. Petitioner will have to apply directly to the Court of Appeals for a certificate. Accordingly, it is hereby,

ORDERED, that, after de novo review the R & R of United States Magistrate Judge Victor E. Bianchini’s R & R (Docket No. US) is accepted in whole; and it is further

ORDERED, that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Docket No. 17) is denied; and it is further

ORDERED, that Petitioner’s request for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253 is denied. It Is So Ordered.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Petitioner Brian Congelosi (“Congelosi” or “petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction on November 4, 1996, on charges of murder, assault, felony driving while intoxicated (“DWI”). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 686(b) for the issuance of a report and recommendation regarding the disposition of Congelosi’s petition. For the reasons that follow, I recommend that the petition be denied.

II. Factual Background and Procedural History

A. Overview

The conviction here at issue stems from a fatal two-car crash that occurred on the evening of March 4, 1996, on Maplewood Avenue in the City of Rochester involving a pick-up truck driven by Congelosi and a small vehicle carrying five passengers: nineteen-year-old Carrie Ann O’Meara (“Carrie Ann”); her mother, Kathleen O’Meara (“Mrs.O’Meara”); and three siblings, Brandon Miller (“Brandon”), Dale Miller (“Dale”), and Nicole Miller (“Nicole”). Carrie Ann and Brandon died, and Mrs. O’Meara and Dale both suffered serious and life-threatening injuries. Only the youngest child, Nicole, escaped with relatively minor injuries. At the time of the accident, Congelosi was heavily intoxicated, having a blood-alcohol content well more than twice the legal limit. He was arrested that night and subsequently indicted by a Monroe County grand jury on two counts of second degree (depraved indifference) murder, two counts of first degree assault, one count of third degree assault, two counts of felony DWI, and one count of first degree aggravated unlicensed operation of a motor vehicle.

B. Petitioner’s Jury Trial

At Congelosi’s jury trial in Monroe County Court (Egan, J.), the prosecution presented evidence that Congelosi’s driver’s license previously had been revoked following a DWI conviction and had been required to attend a program addressing the risks of drinking and driving. On the evening of the accident, between 6:00 and 6:80 p.m., Congelosi was seen driving his vehicle (a full-size pick-up truck) on Maple-wood Avenue in an extremely erratic manner. See T.7-9, 441-43, 465-69, 489-92, 513-17, 538, 552, 655-68, 681, 696, 731-32. One motorist observed Congelosi holding what appeared to be a glass object in his hand as he drove, and a near-empty liquor bottle was later found in Congelosi’s truck. See T.452, 459-60, 568. 585. It was estimated that Congelosi was driving about 50 to 55 m.p.h. although the speed limit was no more than 35 m.p.h. in the area. Congelosi sideswiped several cars and repeatedly swerved into lanes containing oncoming traffic, forcing the other drivers to take emergency actions in order to avoid being hit. See T.408, 444-46, 449, 468-75, 492-96, 517-18, 563-64, 710-14.

Congelosi continued to drive his vehicle in this manner for nearly three miles before he drove almost head-on into the small vehicle occupied by the O’Meara family. Carrie Ann was driving, with Mrs. O’Meara in the passenger seat; the younger siblings were all in the back seat. The force of the impact essentially demolished the front-ends of both vehicles. See T.405, 410-16, 421-23, 433-35, 475, 496-97, 503-06, 519-21, 524-25, 564, 693-95, 715.

Carrie Ann retained consciousness momentarily and then died in the car. Brandon suffered severe head wounds and internal injuries; he survived for three days in the hospital. See T.426, 430-32. Dale sustained serious internal injuries as well, necessitating a colostomy which fortunately was able to be reversed at a later time. Mrs. O’Meara broke her back, collarbone, and wrist. See T.427-33, 437-38. Nicole’s injuries, fortunately, were minor in comparison. See T.429-30.

Congelosi was uninjured. His blood alcohol content (“B.A.C.”) at the time of the accident was between 0.28 and 0.29; the level at which a person is considered to be intoxicated under the Vehicle and Traffic Law (“V.T.L.”) was 0.10 at the time of the incident. See People v. Paris, 159 A.D.2d 733, 553 N.Y.S.2d 444, 445 (App.Div.2d Dept.1990).

The jury returned a verdict convicting Congelosi as charged. He was sentenced to concurrent terms of imprisonment, the longest of which was sixteen years to life with respect to the depraved indifference murder convictions. Congelosi then entered a guilty plea to counts eight and ten of the original indictment, which had been severed from the counts involving the O’Meara incident prior to trial. As part of the guilty plea, he received two concurrent sentences of 1 1/3 to 4 years, which were set to run concurrently to his sentences for his convictions following the jury trial.

C. Post-Trial Proceedings

Represented by new counsel on direct appeal, Congelosi asserted many of the claims that he now raises in the instant habeas petition. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on November 12, 1999. The New York Court of Appeals subsequently denied leave to appeal on February 25, 2000, and then denied his motion for reconsideration of his leave application on May 26, 2000.

Proceeding pro se, Congelosi moved pursuant to New York’s Criminal Procedure Law (“C.P.L.”) §§ 440.10 and 440.20 for vacatur of the judgment. He sought relief on the basis that he had been denied the effective assistance of trial counsel and that the sentence imposed amounted to cruel and unusual punishment. The trial court denied his applications on December 20, 2001. The Appellate Division subsequently denied leave to appeal.

On April 30, 2002, Congelosi also filed an application for a writ of error coram nobis challenging appellate counsel’s performance on several grounds, and also asserting a new error on the part of trial counsel. The Appellate Division summarily denied relief on July 3, 2002.

D. The Habeas Proceeding

Congelosi instituted the present habeas corpus proceeding on our about January 8, 2002. See Petition (“Pet.”), Docket No. I. On or about August, 9, 2002, Congelosi filed a motion to amend along with a proposed amended petition. See Docket Nos. 14 & 15. The Court (Siragusa, D.J.) granted Congelosi’s motion to file an amended petition on August 19, 2002. See Docket No. 16. In his Amended Petition (Docket No. 17) filed the same day, Congelosi asserts the following grounds for habeas relief: (1) his rights were violated because he was subjected to custodial interrogation without Miranda warnings; (2) the trial court erred in admitting “gruesome” photographs of the two deceased victims where they were not probative of any material issue; (3) his convictions for depraved indifference murder violated his rights to substantive due process and equal protection of the laws; (4) trial counsel failed to move to suppress the results of the blood-alcohol test under Y.T.L. § 1194(2); (5) trial counsel failed to present evidence of petitioner’s chronic alcoholism, including expert testimony on that subject; (6) petitioner was deprived of his right to waive his presence at the bench for juror sidebars during voir dire; (7) appellate counsel failed to argue that a courtroom deputy had unsupervised contact with the jury; (8) the trial court constructively amended the indictment by mis-describing an element of depraved indifference murder in its jury charge; (9) appellate counsel failed to argues issues concerning errors in the jury instructions; (10) trial counsel failed to object to erroneous jury charges and an erroneous jury verdict form; and (11) petitioner’s sentence of sixteen years to life is cruel and unusual under the Eighth Amendment. See Amended Petition (“Amend.Pet.”), Docket No. 17. Congelosi later sought and received permission to file a Supplemental Memorandum of Law (“Pet’r Supp. Mem.”), Docket No. 31, elaborating on the third and eleventh grounds for relief.

Respondent filed an answer and opposing memorandum of law on October 21, 2002. See Docket Nos. 26 & 27. Respondent filed a response to Congelosi’s supplemental memorandum of law, to which Congelosi filed a reply. Respondent contends that the third ground for relief is unexhausted because it was never presented to the state courts in Congelosi’s direct appeal or in any of his other post-conviction motions for relief. Respondent also argues that it should be deemed exhausted, but nevertheless subject to an unexcused procedural default. With regard to Congelosi’s remaining claims, respondent contends that they do not warrant habeas relief. For the reasons that follow, I recommend finding that ground three should be deemed exhausted but procedurally barred. Furthermore, I recommend dismissing the remainder of Congelosi’s claims because they lack merit, regardless of the standard of review employed.

III. Legal Principles Applicable to Habeas Petitions

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court’s adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Under the “contrary to” clause, “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495 (O’Connor, J., concurring and writing for the majority in this part). Under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Under this standard, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. In order to grant the writ there must be “some increment of incorrectness beyond error,” although “the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Matter of Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted). “[FJederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context.” Overton v. Newton, 295 F.3d 270, 278 (2d Cir.2002); see also Yung v. Walker, 296 F.3d 129 (2d Cir.2003) (amended opinion) (district court’s habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of “the more general teachings” of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court’s decision was contrary to or an unreasonable application of “a reasonable extension” of Supreme Court jurisprudence. Berbary v. Torres, 340 F.3d 63, 72 (2d Cir.2003). Determination of factual issues made by a state court “shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

IY. Analysis of the Petition

A. Ground One: Petitioner’s Fifth Amendment rights under Miranda were violated by the admission of his statement at the accident scene that he “had a couple of beers.”

On direct appeal, Congelosi argued, as he does here, that the trial court erred in denying his motion to suppress the statement he made to a police officer at scene of the accident indicating that he had “had a couple of beers.” According to Congelosi, he was in police custody at the time, and the statement was the product of custodial interrogation. As such, Congelosi argues, Miranda warnings were required — but none were given.

The suppression hearing evidence indicated that Congelosi remained trapped inside his vehicle for some time after the accident, and rescue workers had to employ the “jaws of life” in order to extricate him. See 7/11/96 Tr. at 36; 7/23/96 Tr. at 24-25, 58. Once freed, Congelosi immediately became very combative, flailing his arms about and shouting obscenities, and he resisted the efforts of the emergency personnel to assist him and place him on a backboard. 7/11/96 Tr. at 38; 7/23/96 Tr. at 8-9, 26-27. Because they were concerned about their own safety as well as that of petitioner, the emergency personnel expressly requested that petitioner’s hands be handcuffed to the stretcher. 7/11/96 Tr. at 38, 63-64; 7/23/96 Tr. at 15, 20, 27. Once in the backboard and fitted with a cervical collar, Congelosi refused to stop lifting his head up and moving it around. To prevent Congelosi from causing or aggravating any sort of head, neck, or spinal injury, Officer Fenton held Congelosi’s head down with his hands, and continued to do so while they were in the ambulance. 7/11/96 Tr. at 38, 64-66; 7/23/96 Tr. at 10, 26.

Congelosi subsequently calmed down somewhat, and the police officer asked him what had happened. Congelosi did not respond to the question and instead asked for his friend, “Scott,” and whether his truck was okay. 7/11/96 Tr. at 42-43, 67. The officer then remarked, “It smells like you have been drinking,” whereupon Congelosi stated, “I had a couple of beers.” 7/11/96 Tr. at 48. Shortly thereafter, Officer Fenton determined that Congelosi was going to be placed under arrest. During the transport to the hospital, no police officers accompanied Congelosi in the ambulance. Once at the hospital, he was placed under arrest. 7/11/96 Tr. at 44-45, 56.

In denying the suppression motion, the trial court simply indicated that Congelosi had made statements which “were in part spontaneous and in part responses to inquiry by the officer during the investigation of the accident.” However, the custody issue was not directly addressed in the trial court’s order. When the issue of voluntariness arose later during trial, the trial judge indicated that he was of the view that he had in fact determined that petitioner was not in custody when he made the statement in issue. See T.738. Congelosi re-asserted his Miranda claim on direct appeal, where the Appellate Division agreed that the trial court had properly denied Congelosi’s motion to suppress the statement, “I had a couple of beers.” The Appellate Division’s holding on this issue reads in its entirety as follows:

Although defendant was handcuffed to a stretcher, he was restrained at the request of medical personnel, and the statement was made in response to a police officer’s remark, “[I]t smells like you have been drinking[.]”

People v. Congelosi, 266 A.D.2d 930, 698 N.Y.S.2d 810, 811 (App.Div. 4th Dept.1999) (internal citations omitted). Congelosi’s Miranda claim clearly was adjudicated on the merits by the Appellate Division, and review in federal court thus proceeds under the AEDPA deferential standard.

A person questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way” must be “warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Accord Dickerson v. United States, 530 U.S. 428, 444,120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (declining to overrule Miranda). “Custodial interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id.; see also Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam) (holding that the obligation to give Miranda warnings is triggered “only where there has been such a restriction on a person’s freedom as to render him ‘in custody1 ”). It is clear that the concept of custodial interrogation extends beyond the confines of the police station. See Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (holding that a prison inmate serving a state sentence was “in custody” for the purpose of questioning by a federal tax agent); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (finding that a person who was interrogated while on his own bed, at home, in familiar surroundings, was “in custody” for the purposes of interrogation by four police officers when he was under arrest and not free to leave at the time of questioning).

The Supreme Court has identified two “discrete inquiries [which] are essential to the determination” of whether a defendant has been taken into custody for Miranda purposes. See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (holding that custodial determination is a legal question qualifying it for “mixed question of law and fact” review under 28 U.S.C. § 2254(d)). First, the reviewing court must look at the objective circumstances surrounding the interrogation. Second, in light of those circumstances, the reviewing court asks whether “a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. at 113, 116 S.Ct. 457 (1995) (footnote omitted); see also United States v. Newton, 369 F.3d 659, 672 (2d Cir.2004), cert. denied, 543 U.S. 947, 125 S.Ct. 371, 160 L.Ed.2d 262 (2004). If so, then the custody inquiry is over, and the reviewing court need go no further. See id.

However, if a “reasonable person” would not have felt free to leave, then the reviewing court must proceed to the second step of the custody analysis and determine whether this “reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.” Id. (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). “Only if the answer to this second question is yes was the person ‘in custody for practical purposes’ and ‘entitled to the full panoply of protections prescribed by Miranda.’ ” Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)); see also United States v. Mitchell, 966 F.2d 92, 98 (2d Cir.1992) (noting that “[decisions in this circuit have emphasized that in the absence of actual arrest, an interrogation is not ‘custodial’ unless the authorities affirmatively convey the message that the defendant is not free to leave”).

Congelosi contends that he clearly was in custody because he was “restrained against his will” by having both hands handcuffed to the stretcher and by having Officer Fenton hold his head still. “[T]he bare fact of physical restraint does not itself invoke the Miranda protections.” Wilson v. Coon, 808 F.2d 688, 690 (8th Cir.1987) (noting that the “Supreme Court has recognized that a restraint on freedom of action does not ipso facto create a situation in which Miranda warnings are necessary”) (citing Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)) (in determining whether a traffic stop amounts to “custody,” pertinent question was whether it “exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights”). In Wilson v. Coon, the Eighth Circuit was called upon to “decide whether the ambulance attendant’s physical restraint [of petitioner] created an inherently coercive environment which required Miranda warnings.” 808 F.2d at 690. There were three factors present in Wilson that convinced the appellate court that petitioner’s restraint did not create “an inherently coercive environment.” Id. First, as was the case in Berkemer, a “reasonable person would expect physical detention by ambulance personnel at an accident site to be ‘presumptively temporary and brief.’ ” Id. (quoting Berkemer, 468 U.S. at 437, 104 S.Ct. 3138). As the Eighth Circuit noted,

One would reasonably expect such detention to last only for the time necessary to complete a medical examination for injuries. This time may be a brief field examination at the accident site or, as in Wilson’s case, a longer period for examination and observation in a hospital. The important point, however, is that a reasonable person would expect the detention to last only for the time that is medically necessary and would feel free to leave after then (or before, if the patient competently refused to consent to medical treatment). This is in contrast to the typical Miranda situation, which is prolonged and may continue until the suspect divulges the information sought.

Id. (citing Berkemer, 468 U.S. at 488, 104 S.Ct. 3138) (emphasis supplied). Congelosi states that he did not know that he was being restrained for medical purposes and, based on Congelosi’s level of intoxication, this is unsurprising. However, the test is what a reasonable person would have believed — not a person with a B.A.C. of nearly 0.30. Congelosi contends that even if there was a medical exception to the custody test, he did not want to receive any medical treatment. However, given the physical state in which Congelosi was described as being, it is questionable whether he could have “competently refused to consent to medical treatment,” 808 F.2d at 690. A reasonable person, having just been extricated from his crushed vehicle by the jaws of life, would not refuse medical treatment under those circumstances.

The second factor in Coon which militated against a finding of “custody” was that “the detention ... occurred in public and in view of non-police witnesses, the medical attendants.” Id. “Public exposure reduces the likelihood that law-enforcement agents will use oppressive or abusive tactics and renders the situation less ‘police-dominated.’ ” Id. (quoting Berkemer, 468 U.S. at 438-39, 104 S.Ct. 3138). The same was true in Congelosi’s case — there were emergency medical present at the time.

Third, and most important, according to the court in Coon, was that the physical restraint “was applied by ambulance attendants for medical purposes, not by law-enforcement officers for investigative purposes.” Id. Such was the case here, where the emergency medical personnel were afraid both for their safety and that of Congelosi, and accordingly requested that he placed in restraints so that he would not injure himself or others. Again, a “reasonable person would perceive this detention as imposed only for purposes of a medical examination, not a police interrogation.” It is difficult to disagree with the proposition that “[djetention for a medical examination is not a situation that a reasonable person would find inherently coercive in the sense required by Miranda.” Id. Although, as the Eighth Circuit observed, “[tjhere may be facts which transform physical restraint for a routine medical examination at an accident site into an inherently coercive situation,” id., it could not find such facts on the present record before it. The fact that Officer Fenton was helping the emergency medical personnel by holding Congelosi’s head still did not render the situation inherently coercive so as to warrant a finding that Congelosi was “in custody.” See id. (state trooper’s statement that he “was trying to assist the ambulance personnel” did not imply that detention was “police-dominated, inherently coercive, or tantamount to a formal arrest”). It thus was not an unreasonable application of clearly established Supreme Court precedent for the state courts to conclude that Congelosi was not subject to custodial detention within the meaning of Miranda.

Since the warnings are required only in the situation of a custodial interrogation, courts have also addressed the issues of when a person in custody has been “interrogated” for the purposes of Miranda. Turning to the “interrogation” aspect of the Miranda inquiry, Congelosi contends that he was subjected to an “interrogation” because Officer Fenton should have known that his comment was likely to lead to an incriminating remark. Although “interrogation” usually takes the form of direct questioning by police authorities, federal courts have recognized situations where interrogation can occur indirectly. In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court held that interrogation requiring the issuance of the Miranda warnings occurs whenever an individual is “subjected to either express questioning or its functional equivalent.” Id. at 300-01, 100 S.Ct. 1682. In other words, the term interrogation “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682.

In Innis, the suspect was arrested for a murder that had been committed with a sawed-off shotgun. Upon his arrest, the suspect requested counsel, thereby invoking his Sixth Amendment rights. While he was being transported in a patrol car with three police officers, one of the officers spoke to the other officers in the car, noting that a school for handicapped children was located near the scene of the murder. The officer remarked, “God forbid one of the children might find a weapon with shells and they might hurt themselves.” Id. at 294-295, 100 S.Ct. 1682. The suspect then interrupted the conversation and told the officers where the murder weapon was located.

Defense counsel for Innis sought to suppress the officers’ testimony regarding that statement revealing the location of the gun, arguing that it had been elicited in violation of Innis’ Sixth Amendment right to have counsel present during a custodial interrogation. The Supreme Court disagreed, finding that no interrogation had taken place because the officers should not necessarily have known that their conversation was “reasonably likely to elicit an incriminating response.” Id. at 302, 100 S.Ct. 1682. See also Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (interrogation includes “words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer know or reasonably should know are likely to have the force of a question on the accused and therefore be reasonably likely to elicit an incriminating response.”)

Subsequently, in Arizona v. Mauro, 481 U.S. 520, 529, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987), the Supreme Court stated that “[ojfficers do not interrogate a suspect simply by hoping that he will incriminate himself. Mauro reaffirmed the statement made in Miranda, and again in Innis “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is “not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated .... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

Here, Officer Fenton first inquired of Congelosi what had happened, and received no direct response. Officer Fenton then stated, “it smells like you’ve been drinking.” In state court and in this habeas proceeding, the state has essentially argued that Officer Fenton’s remark was “a spontaneous comment rather than an intentional interrogation.” “However, [u]nder Miranda, courts have no reason or mandate to consider whether, as the state suggests here, a law enforcement officer’s question was not really a question because, objectively considered, it did not call for a response.” Harryman v. Estelle, 616 F.2d 870, 874 (5th Cir.1980) (cited in United States v. Soto, 953 F.2d 263, 265 (6th Cir. 1992)). As the court observed in Soto, “Neither absence of intent to interrogate nor exclamation of surprise is determinative of whether interrogation was conducted.” To this point, Congelosi offers the concession made by Officer Fenton at trial that when he made that comment, he was attempting to determine whether Congelosi had been drinking. Added to that is the fact Officer Fenton had unsuccessfully tried to get Congelosi to tell him what had happened just prior to his making the comment about smelling alcohol on Congelosi, who apparently was displaying the physical signs of a bellicose drunk. Under these specific circumstances, I tend to agree with Congelosi that Officer Fenton should have known that his comment was at least “reasonably likely to elicit an incriminating response.”

However, even if there was a Miranda error committed in Congelosi’s case, it was harmless. The only statement at issue was Congelosi’s admission that he had “had a couple beers.” This piece of evidence was a relatively insignificant part of the prosecution’s proof that Congelosi was intoxicated, and voluntarily so: his B.A.C. result was 0.28-0.29, almost three times the legal limit; various witnesses observed his physical condition and combative, irrational behavior following the accident; he was seen holding a glass object in his hand while driving; and a nearly empty liquor bottle was found in his truck. See, e.g., T.538, 552, 581-82. And, a nurse who treated Congelosi at the hospital testified that he had told her essentially the same thing he had said to Officer Fen-ton — that he had consumed a “couple of beers” earlier in the day. See T.538, 546-47. Congelosi also had told a paramedic at the accident scene that he had been coming from a party before the accident. T.555-56. Thus, the statement which Congelosi sought to preclude was cumulative to other evidence regarding his voluntary intoxication so that its admission could not reasonably have had a detrimental effect on the verdict.

For the foregoing reasons, I recommend dismissing Congelosi’s claim challenging the admission of his statement to the police about his consumption of alcohol prior to the accident. Even if there was a Miranda violation, the error was harmless in light of the overwhelming evidence of Congelosi’s intoxication.

B. Ground Two: The trial court abused its discretion in allowing autopsy photographs of the two deceased victims.

Congelosi contends that the trial court erred in admitting two autopsy photographs into evidence. He contends that the photographs were not probative of any material issue in the trial, and thus served only to inflame the jury. See Amend. Pet. at 15-19 (Docket No. 17). When this claim was raised on direct appeal, the Appellate Division found that petitioner had “waivfed] his present contention” of error with regard to one of the photographs, since trial counsel ultimately withdrew his objection to its admission. With regard to the second photograph, the Appellate Division determined that it “was not so inflammatory as to deprive [petitioner] of a fair trial[.]” People v. Congelosi, 266 A.D.2d 930, 698 N.Y.S.2d at 812 (citations omitted).

The admissibility of evidence in a state court criminal proceeding is primarily a matter of state law, and federal courts are not to review state court evidentiary rulings to determine whether the state court correctly applied state law. See Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”). Errors of state law, moreover, are not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire. Thus, to obtain habeas relief based on an alleged evidentiaryerror, a petitioner must demonstrate that the error was so pervasive as to have undermined the fundamental fairness of his trial and thereby deprived him of his due process rights under the Fourteenth Amendment. See United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); accord Collins v. Scully, 755 F.2d 16, 18 (2d Cir.1985).

Viewing the erroneously admitted evidence objectively in light of the entire record before the jury, the habeas court must ask whether the evidence was sufficiently material to have provided the basis for petitioner’s conviction, or to have obviated a reasonable doubt that would have existed on the record without it. Collins, 755 F.2d at 19. In short, the Second Circuit has explained, the allegedly erroneous evidence must have been “crucial, critical, [or] highly significant” to the outcome of the trial before the error relating to its admission can be a basis for habeas relief. Id. (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir.1982)). In other words, the critical question for the habeas court is not whether the trial court properly admitted the photographs but whether their admission denied petitioner a “fundamentally fair” trial.

Under longstanding New York and federal evidentiary law, it is matter of the trial court’s discretion as to whether to introduce photographs of homicide victims. See People v. Wood, 79 N.Y.2d 958, 582 N.Y.S.2d 992, 591 N.E.2d 1178 (1992). (“The general rule is ... [that] photographs are admissible if they tend ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded ‘only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendantp.]’ ”) (quoting People v. Pobliner, 32 N.Y.2d 356, 369-70, 345 N.Y.S.2d 482, 298 N.E.2d 637 (N.Y.1973)) (“[Photographs of the deceased are admissible if they tend to prove or disprove a disputed or material issue ... even though they portray a gruesome spectacle and may tend to arouse passion and resentment against the defendant in the minds of the jury.”) (quotation omitted); see also People v. Williams, 241 A.D.2d 911, 912, 663 N.Y.S.2d 1023, 1997 N.Y. Slip Op. 06489 (App.Div. 4th Dept. July 3, 1997) (“Contrary to the contention of defendant, the court did not abuse its discretion in admitting into evidence the autopsy photographs of the victims. The photographs were ‘probative on the issue of depraved indifference to human life, an element of a crime for which he was charged’.”) (quotation and citations omitted).

The photographs in issue at Congelosi’s trial were two small, black-and-white prints depicting the victims prior to autopsy. Defense counsel objected that one photograph was gruesome and that the other was “incredibly” gruesome. Defense counsel argued that their admission served no evidentiary purpose since the central issue in the ease was the mental state and culpability of petitioner, not whether the car crash had actually killed the two victims. In opposition, the prosecutor did not offer an evidentiary purpose for the photographs’ admission, but merely noted that he had worse photographs that he was not seeking to admit.

Since the medical examiner’s testimony adequately described the injuries incurred by the victims during the car crash and the cause of death, I tend to agree with Congelosi that the photographs of the two victims were cumulative. Moreover, the photographs, in my view, were only marginally relevant, were somewhat prejudicial, and should not have been admitted. However, even if Congelosi is correct that there was an error of state evidentiarylaw, he was not prejudiced in the constitutional sense by the photographs’ introduction into evidence. This is because the two photographs clearly were not the basis for Congelosi’s conviction. Stated another way, the photographs did not remove a reasonable doubt that otherwise would have existed in their absence, as the factual recitation in this Report and Recommendation illustrates. There clearly was abundant evidence presented by the prosecution to convict Congelosi of the charges against him, and even if the photographs had been excluded, there is no reasonable probability that the jury would have reached a more favorable verdict. See Collins, 755 F.2d at 19; Taylor, 708 F.2d at 891. Accordingly, I recommend denying habeas relief because the admission of the photographs did not abridge Congelosi’s right to a fundamentally fair trial.

C. Ground Three: Petitioner’s conviction for depraved indifference murder as applied to the facts of this case violated petitioner’s constitutional rights to equal protection of the law and substantive due process.

1. Exhaustion and Procedural Default

Congelosi argues in Ground Three of his amended petition that “the history of the New York Court of Appeals’ efforts to interpret the term ‘depraved indifference’ is both confused and contradictory.... [Tjhere is no principled basis upon which to distinguish depraved indifference murder and reckless manslaughter.” Amend. Pet. at 20 (Docket No. 17). According to Congelosi, the result has been unconstitutional variances in the types of charges that prosecutors can lodge and sentences that can be imposed for essentially the same conduct. According to petitioner, the “evisceration of the distinction” between the mental states required for the two crimes “violates both equal protection of laws and substantive due process.” Id.; see also id. at 23 et seq. (Docket No. 17). Congelosi urges that given the facts of his case, it would have been more reasonable for the jury to find him guilty of a lesser degree of culpability — such as that supporting a charge of “reckless manslaughter.”

Respondent contends that Congelosi failed to exhaust this claim because he did not present the substantial equivalent of such a such claim in federal constitutional terms to the state courts. On direct appeal, Congelosi advanced an argument with the point-heading that the verdict was against the weight of the evidence and cited C.P.L. § 470.15(5) and People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 (1987) in the opening paragraph.

Much of appellate counsel’s ensuing discussion was devoted to arguing that, as a matter of statutory construction of the relevant laws and looking at the state legislature’s intent, a vehicular fatality caused by a motorist who was driving while intoxicated cannot constitute depraved indifference murder. See Resp’t Ex. C at 33 et seq. Appellate counsel noted that under the statutes with which he was charged, the prosecution “did not need to show any mens rea,” because “[p]roof of voluntary intoxication removes any need to prove awareness of the risk, and depraved indifference is a description of objective circumstances, not a culpable mental state.” Id. This, appellate counsel reasoned, “is a formula for strict liability murder,” but “there is no evidence that the [New York] Legislature intended to create a strict liability murder statute in New York in place of the vehicular and other penal law crimes it did create.” Resp’t Ex. C at 33-34; see also id. at 34-35 (“Intoxication removes the need to show any knowledge of risk, and operation of a motor vehicle while intoxicated and in a way that caused death almost by definition represents an objective circumstance representing depraved indifference to human life. Thus every vehicular manslaughter case becomes depraved indifference murder but for jury nullification of the greater charge, or prosecutorial fear of such nullification.”). There was no discussion by him of the alleged statutory infirmity in Constitutional terms.

Instead, Congelosi argued in his appellate brief, “[u]nder a DWI depraved indifference murder theory, ... the prosecution’s burden in a DWI fatality is reduced to the equivalent of that in a prosecution for vehicular manslaughter[,]” because the prosecution “need only prove that the defendant was intoxicated, that his operation of a vehicle was consistent with intoxication, and that this operation of a vehicle caused death.” Resp’t Ex. C at 34. Thus, there was “no meaningful difference between what the [Legislature ... designated a ‘D’ felony and ... and ‘A’ felony,” which, appellate counsel argued, could not have been the Legislature’s intent. Resp’t Ex. C at 35.

Respondent contends that Congelosi has failed to exhaust his state court remedies with regard to the unconstitutionality of the depraved indifference murder statute because he did not present it in federal constitutional terms to the state courts. See Resp’t Mem. at 9-10 (Docket No. 26) (citing, inter alia, Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir.1984); Daye v. Attorney Gen’l of N.Y., 696 F.2d 186, 190-91 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984)). As respondent correctly points out, Congelosi’s argument on direct appeal did not explicitly reference either the New York State constitution or the Federal constitution; nor did he invoke notions of due process or equal protect