Rodriguez v. Smith

CANNELLA, District Judge-

Petition for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, is hereby denied. 1

This is the most recent in a line of cases challenging New York’s scheme of affirmative defenses on the basis of Mullaney v. Wilbur,. 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). 2 The instant applica tion challenges the constitutionality of New York Penal Law § 40.10(3), which makes renunciation of an “attempt” crime an affirmative defense. 3 Under New York law it is the defendant who has the burden of establishing an affirmative defense by a preponderance of the…