Opinion
03 Civ. 3343 (TPG).
May 26, 2006
OPINION
This is a habeas corpus petition under 28 U.S.C. § 2254 by a state prisoner. Respondent has filed papers in opposition. The petition is denied.
Petitioner Jackson was convicted in Supreme Court, New York County, of first and second degree robbery and second and third degree criminal possession of a weapon. He was sentenced, as a second violent felony offender, to indeterminate concurrent terms, from 12 ½ to 25 years on the first-degree robbery count, and lesser terms on the other counts. His conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied.
Two points are made in the petition. The first is that trial testimony given by two police offices suggested that Jackson had a prior criminal record. The second is that the trial judge failed to submit to the jury petit larceny as a lesser included offense.
As to the first point, it was specifically addressed by the Appellate Division and found to be without merit. There is no conceivable basis for petitioner's claim on this issue in light of the requirements of 28 U.S.C. § 2254(d). There is no indication whatever that the Appellate Division rule was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court, nor was the ruling based on an unreasonable determination of the facts.
The testimony at the trial by the two police officers simply did not state that Jackson had a prior criminal record, nor was there anything which could imply such a thing. There was testimony by one officer about requesting a photograph in order to assist in locating petitioner after the commission of the crime. But the officer was interrupted by a defense objection before the officer said where the photograph was requested from. The Appellate Division found that the "possibility that the jury could have inferred, from this testimony, that [petitioner] had a criminal record was remote. Moreover, the court offered to provide a curative instruction but [petitioner] declined such relief. People v. Jackson, 732 N.Y.S.2d 408, 409 (1st Dept. 2001). There is no merit in Jackson's first constitutional claim.
As to the second claim on the present petition, the Appellate Division found that the trial court's refusal to charge petit larceny as a lesser included offense was proper since "there was no reasonable view of the evidence that [petitioner] stole the complainant's car without the application of force." Id. Again, there is no basis for saying that this ruling was contrary to Federal law as determined by the United States Supreme Court nor did the Appellate Division ruling involve an unreasonable determination of the facts.
Conclusion
The petition for a write of habeas corpus is denied.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
SO ORDERED.