dissenting:
I respectfully dissent. I think that Judge Dearie had it right.
In the first place, he correctly set out the standards governing federal habeas corpus review of state convictions by pointing out that a petitioner challenging a state conviction bears a heavy burden, one that requires upholding a conviction if, after viewing the evidence in the light most favorable to the prosecution, the court finds that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979).
Judge Dearie then properly held that all possible inferences that may be drawn from the evidence must be construed in the prosecution’s favor. The court also must bear in mind that guilt may be established entirely by circumstantial evidence and that evidence must not be reviewed piecemeal but, rather, as a whole, giving due deference to the jury’s assessments of the weight of the evidence and the credibility of witnesses.
*37With this legal backdrop, Judge Dearie proceeded to analyze the evidence — correctly, in my view — as follows. He found that the circumstantial evidence established that Maldonado and Aponte had threatened to kill Martinez; that Garcia, after speaking with Martinez, separated himself from Martinez and talked with Maldonado while pointing across the street to Martinez and Toro; and that thereafter Garcia killed Martinez in an empty apartment with Toro present. Judge Dearie found that Toro, as a witness to the Mlling, thereby became a threat to Maldonado, Garcia, and Aponte.
He nevertheless went on to find that the only evidence to support Maldonado’s actual involvement in the Toro murder was Maldonado’s presence with Aponte and Garcia in the car from which the shot was fired. The car did not belong to Maldonado. He could just as easily have been a surprised passenger as an accessory to murder. Judge Dearie pointed out that there was no evidence suggesting Maldonado was a lookout or present to identify Toro. Certainly Aponte needed no help identifying Toro because Aponte had seen Toro the previous day when Toro and Garcia fled the scene of the Martinez murder.
As the judge said, even if a jury could reasonably infer that Aponte killed Toro to protect those involved in Martinez’s murder, the only evidence to implicate Maldonado was his isolated threat to Martinez the night before, a threat which, as a matter of state law, the appellate division found insufficient to sustain Maldonado’s conviction for that murder. In short, Judge Dearie found that evidence of presence combined with slim evidence of motive could not substitute for evidence of intent to kill. In the judge’s view, no reasonable juror could be satisfied that the state had met its burden to prove beyond a reasonable doubt that petitioner intended to kill Toro. In saying that, I think that Judge Dearie said it all.
Our panel majority, however, has added factors on which it relies to sustain the conviction. It says that Maldonado “had an awareness, the jury could find beyond a reasonable doubt, reasoning backwards from the presence of the shotgun and its ultimate use, that Aponte was going to shoot Toro; and that Maldonado was there in order to render whatever support or assistance was needed.” Supra at 36. This supposed “reasoning backwards” is, in my view, no substitute for hard evidence. As Judge Dearie put it,
While the State need not satisfy this Court that every reasonable hypothesis of innocence has been eliminated by the evidence — an obviously insurmountable task in this Court’s view — readily available inferences of innocence must counsel the Court’s assessment of whether a reasonable juror could find beyond a reasonable doubt that the petitioner intended to kill Toro. Although the State has articulated the necessary inferential chain connecting petitioner to the Toro murder, the critical link is too fragile to support the weight of conviction.
I would affirm.