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LANGSTON v. SMITH

Docket No. 10-3045-pr.

630 F.3d 310 (2011)

Kevin LANGSTON, Petitioner-Appellee, v. Joseph SMITH, Superintendent of Shawangunk Correctional Facility, Respondent-Appellant.

United States Court of Appeals, Second Circuit.

Decided: January 7, 2011.

Attorney(s) appearing for the Case

Warren S. Landau ( Lynn W.L. Fahey , on the brief), Appellate Advocates, New York, New York, for Petitioner-Appellee.

Morgan J. Dennehy , Assistant District Attorney ( Leonard Joblove , Ann Bordley , and Victor Barall , Assistant District Attorneys of Counsel, on the brief), for Charles J. Hynes , District Attorney, Kings County, Brooklyn, New York, for Respondent-Appellant.

Before: FEINBERG, NEWMAN, and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

In 2003, a New York jury convicted petitioner-appellee Kevin Langston of felony assault and criminal possession of a weapon in the second degree.1 New York's felony assault statute criminalizes actions taken "[i]n the course of and in furtherance of the commission ... of a felony" that cause "serious physical injury" to a non-participant. N.Y. Penal Law § 120.10(4). At trial, the prosecution demonstrated...

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