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finding that hotel employee's testimony regarding gestures made by hotel guests towards petitioner was not testimonial hearsay because it was introduced for the purpose of showing why employee attempted to apprehend petitioner
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04 Civ. 4342 (RWS).
August 11, 2006
ALBERT CARROLL Petitioner Pro Se Great Meadow Correctional Facility Comstock, NY.
HONORABLE ELIOT SPITZER Attorney General of the State of New York Attorneys for Respondent New York, NY. By: ROBIN A. FORSHAW, Assistant Solicitor General MEGAN P. DAVIS, Assistant Attorney General Of Counsel.
OPINION
Petitioner Albert Carroll ("Petitioner") has sought a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, his petition is denied.
I. Prior Proceedings
Petitioner filed his petition pro se on May 10, 2004, alleging he is being held in state custody in violation of his federal constitutional rights.
His state custody arises from a judgment of conviction entered on December 14, 2000, in the New York State Supreme Court, New York County, convicting him of Burglary in the First Degree (New York Penal Law ("Penal Law") § 140.30(2)), Robbery in the First Degree (Penal Law § 160.15(1)) and Robbery in the Second Degree (Penal Law § 160.10(1)). Petitioner was sentenced, as a persistent violent felony offender, to concurrent, indeterminate prison terms of twenty-five years to life on each count. His conviction was affirmed by the Appellate Division, First Department, on March 11, 2003, and leave to appeal to the New York State Court of Appeals was denied on June 26, 2003. People v. Carroll, 759 N.Y.S.2d 443 (N.Y.App.Div.), leave to appeal denied, 100 N.Y.2d 560 (2003). He is currently incarcerated at the Great Meadow Correctional Facility pursuant to that judgment of conviction.
Petitioner has challenged the lineup at which he was identified, the admission of hearsay evidence at his trial, and the effectiveness of his representation at trial.
The respondent Gary Greene (the "State") filed its opposition to the petition on November 15, 2004, conceding that the petition was timely and Petitioner's claims were exhausted. (Resp't Mem. Opp., at 18-19.)
II. The State Court Proceedings A. The Crime
On February 22, 2000, Petitioner and an unapprehended accomplice followed Ava Taner ("Taner") from the lobby of the Paramount Hotel in midtown Manhattan up to her hotel room. When Taner unlocked the door to her room, Petitioner grabbed Taner around the neck and forced her into her room, dislocating her jaw in the process. Petitioner then threw Taner to the floor, and he and his accomplice removed her wedding and engagement rings. Several witnesses observed Petitioner and his accomplice running through the hotel immediately after this incident; he was followed by hotel employees as he fled and was apprehended. Later that night, Taner identified Petitioner in a lineup as one of her attackers. A New York County grand jury charged Petitioner with Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25(1)), Burglary in the First Degree, Robbery in the First Degree, and Robbery in the Second Degree.
B. The Suppression Hearing
Before trial, Petitioner moved to suppress Taner's lineup identification. After holding a suppression hearing on June 22, 2000, the Honorable Bernard Fried denied the motion.
The People established the following at the hearing:
At about 5:45 p.m. on February 22, 2000, New York City Police Officer Kevin Janusz, his partner, Officer Stephen Frawley, and two EMTs were escorting an injured civilian out of the subway station at West 44th Street and Eighth Avenue. (Hrg. Tr. at 28-29.) Officer Janusz noticed Petitioner running towards him from the northeast corner of the intersection. (Hrg. Tr. at 30, 39-40.) Petitioner ran past Officer Janusz, "slammed" into the injured civilian and continued running into the subway station. (Hrg. Tr. at 30.) Within seconds, an out-of-breath man in a hotel uniform appeared, pointed in Petitioner's direction and said, "Grab him." (Hrg. Tr. at 31, 34.) Officer Janusz yelled to his partner to stop Petitioner and then ran after him. Within about ten seconds, Petitioner was apprehended inside the subway station. (Hrg. Tr. at 32-33.)
Citations to "Hrg. Tr." refer to the transcript of the suppression hearing, citations to "Jury Tr." refer to the jury selection transcript, citations to "Trial Tr." refer to the trial transcript, and citations to "Sent. Tr." refer to the transcript of Petitioner's sentencing hearing.
The man in the hotel uniform told Officers Janusz and Frawley that Petitioner "had robbed somebody" in the Paramount Hotel, which was located a few blocks away. (Hrg. Tr. at 33.) Officer Janusz detained Petitioner at a nearby police station while Officer Frawley and a sergeant went to the hotel to investigate the report. (Hrg. Tr. at 34.) Officer Frawley returned approximately ten to fifteen minutes later and confirmed the hotel employee's story. (Hrg. Tr. at 35-36.)
Although the police initially considered doing a "show-up" identification at the hotel, they ultimately decided to arrange a lineup instead. (Hrg. Tr. at 36-38.) At about 10:00 that night, Detective James Heaphy brought Taner to the precinct. (Hrg. Tr. at 3-4.) Detective Heaphy told Taner he was bringing her to the station to view a lineup and "that the person may or may not be there, that she doesn't have to pick anyone out." (Hrg. Tr. at 6.)
In the meantime, Detective Patricia Kelly placed Petitioner in a lineup. When Taner arrived at the precinct, Detective Kelly explained how the lineup would be conducted. Detective Kelly explained that Taner
would come into a room with a window in it that was one way, that the people inside could not see her, that she was to look through the window and there would be five people inside holding numbers. After she looked through . . . I would ask her three questions. I would ask her if she recognized anyone, if so, what number they were holding, and where she recognized the person from.
(Hrg. Tr. at 16-17.) Detective Kelly never told Taner which of the two suspects the police thought they had, and she never indicated what number the suspect would be holding or otherwise drew Taner's attention to any of the lineup participants. (Hrg. Tr. at 17-18.) After viewing the lineup for about thirty seconds, Taner identified Petitioner. (Hrg. Tr. at 18.)
The People introduced a photograph of the lineup into evidence at the hearing. (Hrg. Tr. at 18-19.)
Petitioner presented no evidence at the suppression hearing.
The court found that the lineup was not unduly suggestive and denied Petitioner's motion to suppress the identification:
The complaining witness was taken from the hospital and instructed on the purpose of [the] lineup, not told in any way, shape or form that the person who had allegedly robbed her would be there but that she should look carefully and decide whether she knew anybody in the lineup. She was not allowed to have any observation of the defendant prior to [the] lineup being conducted.
The lineup was conducted with the three standard questions being asked and the witness identified this defendant as the person who had just robbed [her].
. . .
Citations are unnecessary for the proposition that what is required at the lineup is that there be not an unduly suggestive lineup, all lineups are inherently suggestive.
I viewed what is known, marked as exhibit number 1 in evidence. It appears, although this defendant may be darker, in light of this photograph, [than] the two persons seated next to him, the person at the end, does not seem to be much lighter than him in skin color.
In any event, it doesn't appear to me that this lineup is unduly suggestive.
(Hrg. Tr. at 50-51.)
Petitioner proceeded to trial before the Honorable William A. Wetzel and a jury on October 10, 2000.
C. Jury Selection
Before jury selection began, the court asked Petitioner whether he wished to waive his right to be present during sidebar discussions with potential jurors:
Mr. Carroll, your attorney has spoken to you about the fact that you have the right to be present if we have any discussion with jurors at the side. But then again, you can waive that right so that people may be more open in discussing with your attorney and the Assistant issues that they don't want to talk publicly about. Do you wish to waive that right and have your attorney come up and talk privately with these jurors?
(Jury Tr. at 2.) Petitioner responded, "Yes," and also stated that he had signed a written waiver. (Id.)
D. The Trial Testimony
Taner testified that on February 22, 2000 she was staying in Room 1208 at the Paramount Hotel on West 46th Street between Broadway and Eighth Avenue. (Trial Tr. at 20, 22.) After spending the day in the city, Taner returned to the hotel at about 5:30 p.m. and got onto the elevator to go up to her room. (Trial Tr. at 20-21.) Right before the elevator doors were about to close, Petitioner and another African-American man got onto the elevator. Neither pressed a button, which made Taner "very nervous" and immediately "suspicious." (Trial Tr. at 23, 58-59.) She asked the men what floor they wanted, and Petitioner responded that they, like her, were going to the twelfth floor. (Trial Tr. at 23.)
Taner stated that she was standing approximately an arm's length away from Petitioner in the elevator. Nothing was obstructing her view. (Trial Tr. at 28-29.) Although the elevator was lit with a rose colored bulb, Taner testified that she could "see very well." (Trial Tr. at 22.) She described her eyesight as "very good" and said that she only wore glasses for reading or doing paperwork. (Trial Tr. at 19.)
Based on her observation of Petitioner in the elevator, Taner described him at trial as being about six feet tall and weighing about 200 pounds. She said he was dressed in a casual, "kind of hip-hop" jacket with long sleeves. The sleeves of the jacket, which looked dark blue in the elevator, were a different color than the body of the jacket. According to Taner, Petitioner also was wearing a close-fitting knit cap. Taner testified that Petitioner's companion was shorter and wore his hair in short, curly cornrows or dreadlocks. (Trial Tr. at 23-26.) Taner identified Petitioner in the courtroom as the man she had seen in the elevator. (Trial Tr. at 27.)
Taner testified that she rode in the elevator with the two men up to the twelfth floor. When Taner got off of the elevator, the two men followed. She walked in the direction of her room, but was afraid to open the door since the two men "were wandering around the hall pretending to look for a room." (Trial Tr. at 31-32.) Taner tried to stall by fumbling for her keys. She also spoke to Petitioner, asking him, "Can't you find the room you're looking for?" He "made up some kind of funny story," claiming that he and his companion "were trying to find this room and they didn't know exactly what room it was." Taner suggested that the men were on the wrong floor and that they should return to the lobby. (Trial Tr. at 32.) Throughout this exchange, Taner "was looking" at the men, "trying to figure out where they were going." (Trial Tr. at 34.) She testified that she "noticed [Petitioner] more [than his companion] because he's bigger and has more of a presence, physical presence, and he had a round face, and I was talking to him." (Trial Tr. at 68.) She focused on Petitioner's face, in particular, because she "believe[d] in looking at peoples [sic] faces if I have a concern rather than their clothing necessarily, and I was very worried to be with these two in the hallway, and when I talk to people I look at them." (Trial Tr. at 70.) Although the lighting in the hallway was somewhat "dim," Taner stated that she could "see everything clearly." (Trial Tr. at 33.) "I saw [Petitioner's] face very clearly," she said. (Trial Tr. at 65.)
Taner finally decided to try to enter her hotel room quickly and put the key in the lock. As soon as she turned her back to the two men, however, Petitioner grabbed her from behind with his arm around her neck. (Trial Tr. at 34-35.) Taner was "sure" that it was Petitioner who had grabbed her based on his height. (Trial Tr. at 36.) Petitioner pushed Taner into her hotel room and then "proceeded to put his hands on [her] neck" as if he were trying to strangle her. Taner felt her "neck being twisted like he was trying to break [her] neck." (Trial Tr. at 36-37.) Taner was screaming and struggling. She felt "[p]ain and fear like [she had] never experienced in [her] life." (Trial Tr. at 37, 62.) Eventually, Taner heard "a noise like a snap" — which she later learned was the sound of her jaw being dislocated — and she "slumped to the ground." Taner felt Petitioner or his accomplice removing her wedding band and engagement ring from her finger "with force," and then the two men fled. (Trial Tr. at 37-38.)
After the attack, Taner opened the door to her hotel room and saw two women standing out in the hall. In spite of her dislocated jaw, Taner managed to tell the women that she had been attacked, and the women left to get help. (Trial Tr. at 39-40.) The two women rode the elevator down to the tenth floor, at which point the elevator doors opened, and Gregory Frutchey ("Frutchey"), a hotel bell captain, got on. Frutchey testified that the two women shouted to him that there was "someone being choked on the 12th floor, robbed, choked, strangled." (Trial Tr. at 107, 109-10.) Frutchey picked up the telephone in the elevator in order to contact security. (Trial Tr. at 110.)
Petitioner's attorney objected to this testimony, at which point the judge gave a limiting instruction, cautioning the jury that the "statement is just offered not for the truth of the accuracy of it, but to give us a context of what happened next." (Trial Tr. at 109-10.)
While Frutchey waited for the operator to answer the telephone, the elevator descended to the third floor. The doors opened, and two African-American men stepped onto the elevator. Frutchey testified that the two men "were acting as if they were waiting for the elevator normally but their panting was rather unusual." (Trial Tr. at 111.) Frutchey described one man as taller than the other and said the shorter man wore his hair in "baby dreads." (Trial Tr. at 113.) After the two men got onto the elevator, the two women started "elbowing" Frutchey and "indicating to [him] something silently." (Trial Tr. at 112.) Before the elevator doors closed again, the two men suddenly exited and ran toward the stairwell. (Trial Tr. at 112.)
Petitioner's attorney did not object to this testimony.
At about the same time, a concierge at the hotel, Debra Moore ("Moore"), was walking down the "executive hallway" on the second floor when she heard a commotion coming from the stairwell. (Trial Tr. at 147-49.) Moore testified that she opened the door and saw two African-American men "tearing down the stairs" and cursing. (Trial Tr. at 149.) The men bumped into her and then ran into the executive hallway. (Trial Tr. at 149, 155.) Moore described the men as being dressed in "hip-hop" type clothing, puffy, olive green vests and long sleeves. She said that one of the men had his hair in short dreadlocks. (Trial Tr. at 150-51.)
Pamela Graber, the general manager of the hotel, similarly testified that she heard a "clattering noise" coming from outside her office in the executive hallway at around 5:30 or 5:45 p.m. She opened her office door and saw two men crouched down and running quickly down the hall toward the mezzanine-level restaurant. (Trial Tr. at 158-60, 162.) Graber testified that one of the men was wearing a puffy, olive green vest. (Trial Tr. at 161.) She remembered having seen the man entering the hotel about fifteen to twenty minutes earlier. (Trial Tr. at 164-65.) At that time, she had noticed the man was African-American, "fairly round faced," and that he was wearing a "stocking cap." (Trial Tr. at 165-66.) Graber testified that she suspected something was wrong. She called 911 and told her secretary to notify security. (Trial Tr. at 167.)
Jan Rozenveld, an assistant general manager at the hotel, testified that he also observed the two men at about 5:30 p.m. Rozenveld was standing in the mezzanine-level restaurant when he saw two men run out of the executive hallway. Rozenveld said both men were African-American, and one was wearing a green puffy jacket. (Trial Tr. at 187-88.) The taller of the two men was about six feet tall. The shorter man had hair that was "spiky" or "twisted." (Trial Tr. at 188-89.)
The two men ran down the front stairs, through the lobby and out the hotel's main entrance. (Trial Tr. at 114-19.) At that point, the bell captain, Frutchey, reached the second floor and yelled, "[S]top those guys." (Trial Tr. at 119, 190.) Frutchey and Rozenveld chased Petitioner and his accomplice out of the hotel. The two suspects eventually split off in separate directions, and Frutchey and Rozenveld both followed Petitioner south on Eighth Avenue toward the subway entrance on West 44th Street. (Trial Tr. at 120-24, 195-96.) Petitioner was apprehended in the subway station by Officers Janusz and Frawley and the two EMTs who were helping an injured civilian. (Trial Tr. at 123-26, 197-202, 218-22, 239-43, 266-71.) At the time he was caught, Petitioner was wearing a dark green sweatshirt or vest and was out of breath. (Trial Tr. at 200, 230, 233, 239, 243.)
Later that evening, Taner identified Petitioner in a lineup as "[w]ithout a doubt in [her] mind" one of the men who had attacked her. (Trial Tr. at 46, 183.) Taner testified that she recognized Petitioner in the lineup by "[h]is face." (Trial Tr. at 48.) She also testified that the clothing Petitioner was wearing in the lineup was "consistent" with the clothing she had seen him wearing earlier that night. (Trial Tr. at 47-48.) The photograph of the lineup was admitted as an exhibit at trial. (Trial Tr. at 47.)
At the close of the People's case, the court reminded Petitioner, outside of the presence of the jury, of his right to testify and of his right before that to a Sandoval hearing. (Trial Tr. at 275-76.)
Petitioner's counsel advised the court, "We have discussed this at great length, your Honor, in this respect and Mr. Carroll has not changed his mind. He does not wish to testify." Petitioner did not object to this statement. (Trial Tr. at 276.) Consequently, Petitioner did not testify or present any other evidence at trial.
Before the case was given to the jury, Petitioner's attorney moved to dismiss all of the charges on the ground that the People had failed to establish a prima facie case. (Trial Tr. at 277.) The court denied the motion with respect to the robbery and burglary charges, stating that "[t]here's a prima facie showing" that Petitioner attacked Taner in her hotel room, seriously injured her, and then stole her rings. (Trial Tr. at 279.) However, the court granted the motion with respect to the attempted murder charge, finding that the People had failed to make a prima facie showing that Petitioner intended to kill Taner. (Trial Tr. at 283-85.)
In pertinent part, the court instructed the jury on the People's burden of proof and, specifically, on the meaning of "reasonable doubt." The court explained:
[T]his defendant is presumed innocent, and that presumption of innocence remains with him throughout this trial and your deliberations, as well the burden of proof rests with the People and never shifts. That burden of proof rests with the People throughout your deliberations.
So, what do we mean when we use this term "proof beyond a reasonable doubt"? A reasonable doubt is a doubt which you conscientiously have after having used your powers of reason and logic. For it to be a reasonable doubt, it must be based upon the nature and the quality of the evidence or from the lack of evidence if you conclude that the evidence presented was insufficient.
A reasonable doubt is an actual doubt for which you can formulate a reason based upon logic and analysis.
Now you should use the same powers of reasoning and decision-making that you would ordinarily apply in matters of this importance.
When I do refer to a lack of evidence, I'm not inviting you to speculate about what additional evidence, were it to have been presented, may or may not have established. You're not to speculate about matters not before you.
What I mean by a lack of evidence is if you determine that the evidence which the People have presented fails to establish the defendant's guilt beyond a reasonable doubt, then you have a lack of evidence, and in that case, you should conclude the People have not met their burden.
But, on the other hand, if you do conclude that the evidence presented convinces you of the defendant's guilt beyond a reasonable doubt, well then, it doesn't matter what other evidence was not presented or what the additional evidence may or may not have proven.
In determining reasonable doubt, consider both those words. A defendant isn't to be acquitted if there is any kind of doubt about guilt; that is to say, guilt need not be shown beyond any imaginable doubt or to a mathematical certainty for here in courts of law, cases rest largely on human observation and memory, and proof beyond any kind of doubt is an impossible standard for us to maintain.
The human mind, as you know, can conceive of a doubt about almost anything. It is, however, possible to remove all reasonable doubt and that is the standard which must be met before a defendant can be convicted.
So, a reasonable doubt isn't a mere guess or speculation or suspicion that a defendant may not be guilty. It's a doubt rooted in reason and based upon an evaluation of the evidence or lack of evidence. It must be distinguished from a doubt based on whim or speculation or upon an emotion such as sympathy for a defendant or hostility or prejudice against a witness.
And finally, because your verdict must always be based on logic and evaluation of the evidence, if the charges have not been proven beyond a reasonable doubt, then nothing, including concern about crime or these charges in particular should deter you from rendering a verdict of not guilty.
But likewise, if the charges have in fact been proven beyond a reasonable doubt, then nothing, including distaste for sitting in judgment of a fellow human being or sympathy or emotion should prevent you from rendering a verdict of guilty.
In other words, your solemn duty is to render a true verdict and you must live up to that responsibility, whatever your verdict may be.
(Trial Tr. at 361-64.)
After completing his instructions to the jury, the court asked counsel whether "there are any exceptions to the charge." Petitioner's attorney stated, "I have none, your Honor." (Trial Tr. at 380.)
The jury convicted Petitioner on all three of the charges that were submitted to it. (Trial Tr. at 382-84.) The court sentenced Petitioner, as a persistent violent felony offender, to concurrent, indeterminate prison terms of twenty-five years to life on each count. (Sent. Tr. at 9-10.) E. Post-Trial Proceedings
Petitioner was represented by new counsel at his sentencing because the attorney who had tried the case was "seriously ill" and "unable to continue." (Sent. Tr. at 2.)
Petitioner directly appealed his conviction and moved, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the judgment against him.
Through his appellate counsel, the Office of the Appellate Defender and Debevoise Plimpton, Petitioner appealed his conviction to the Appellate Division, First Department. (See Decl. Opp. Pet. ("Davis Decl."), Ex. A.) Petitioner argued that (1) the lineup in which Taner identified him was unduly suggestive, (2) the hearing court improperly limited cross-examination during the suppression hearing, (3) Petitioner's trial counsel was ineffective for failing to move to reopen the suppression hearing after Taner testified at trial that Petitioner's clothing was "consistent" with that of her attacker, (4) Petitioner was deprived of meaningful appellate review because the People lost the lineup photography after trial, and (5) Petitioner's rights under the Confrontation Clause were violated because the trial court improperly admitted hearsay evidence (namely, Frutchey's testimony that the two women in the elevator had "elbowed" him.)
The Appellate Division denied all of these claims and affirmed Petitioner's conviction by decision dated March 11, 2003.Carroll, 759 N.Y.S.2d at 443. Specifically, the court held that Petitioner's motion to suppress the lineup identification was properly denied:
His sole argument at the suppression hearing was that the lineup was unduly suggestive because his skin tone was allegedly markedly darker than that of the other four African-American lineup participants. . . . [T]he hearing court found the lineup to be fair in this regard and described the pertinent aspect of the now-missing photograph by stating that another lineup participant had approximately the same skin tone as defendant. In any event, defendant was not entitled to be surrounded by persons of highly similar appearance, so long as he was not highlighted. There is no evidence that the victim ever mentioned anything about either of the perpetrators' skin tones to the police. Accordingly, defendant would not be entitled to suppression based on a difference between his skin tone and those of the other participants.Carroll, 759 N.Y.S.2d at 444 (citations omitted.)
The Appellate Division also rejected Petitioner's claim that his attorney was ineffective for failing to move to reopen the suppression hearing:
Defendant was not deprived of effective assistance when counsel made no application for reopening of the Wade hearing based on the victim's trial testimony that, at the lineup, defendant wore a jacket that was "consistent" with a particular type of jacket worn by one of the perpetrators. Since there was no evidence that the victim gave the police any description of either perpetrator's clothing, there is no reason to believe that an application to reopen the Wade hearing would have ultimately led to suppression of identification testimony.Id. at 444.
With respect to Petitioner's claim that the hearing court had improperly limited cross-examination during the suppression hearing, the Appellate Division, citing Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986), found that the court had "properly exercised its discretion in imposing reasonable limits on cross examination. The court accorded defendant ample latitude in which to pursue all relevant lines of inquiry, and the precluded matters were irrelevant or collateral to the pertinent issues." Carroll, 759 N.Y.S.2d at 444-45.
The Appellate Division additionally denied Petitioner's claim that the loss of the lineup photograph had precluded meaningful appellate review: "Even if we were to assume, arguendo, that the missing photograph would have cast doubt on the hearing court's description of the skin tones of the lineup participants, we would, for the reasons previously stated, find no basis for suppression." Id. at 444.
Finally, the Appellate Division found that Petitioner's Confrontation Clause claim was unpreserved:
The trial court properly received evidence of gestures by two unidentified persons involved in the events leading to defendant's capture. While defendant challenged certain other testimony relating to these persons, he never objected to the gestures on any ground. Accordingly, his present claim that these gestures were inadmissible hearsay is unpreserved and we decline to review it in the interest of justice.Id. at 445. The court alternatively found Petitioner's claim to be meritless and held that any error was harmless:
Were we to review this claim, we would find that the gestures were properly admitted to explain the actions undertaken by hotel employees to pursue defendant and his companion. In any event, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt. Defendant was captured in immediate flight from the crime scene, and, in addition to the victim's identification, there was a strong chain of circumstantial evidence linking him to the crime.Id. at 445.
Petitioner sought leave to appeal to the New York Court of Appeals by letter dated May 2, 2003. He raised all of the same claims he had raised before the Appellate Division. The People opposed that application by letter dated June 23, 2003. (Davis Decl., Exs. D, E.) Associate Judge George Bundy Smith denied Petitioner's request for leave to appeal on June 26, 2003.People v. Carroll, 100 N.Y.2d 560 (2003).
After the Appellate Division affirmed his conviction, Petitioner filed a pro se motion to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10. (Davis Decl., Ex. G.) He claimed for the first time that his attorney had been terminally ill throughout the trial and therefore had provided ineffective representation. In particular, Petitioner claimed that his attorney (1) failed to make a timely motion for a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974); (2) improperly advised Petitioner to waive his rights under People v. Antommarchi, 80 N.Y.2d. 247 (1992); (3) inadequately cross-examined witnesses; (4) failed to object to the court's charge to the jury concerning the meaning of "reasonable doubt"; and (5) failed to make a motion at the conclusion of the evidence for a trial order of dismissal of all charges in the indictment.
On July 8, 2003, Justice Wetzel denied Petitioner's motion on the ground that his claim should have been brought on direct appeal. (Davis Decl., Ex. H.) Justice Wetzel noted that Petitioner had raised an ineffective assistance claim before the Appellate Division and that court had "concluded that the defendant did in fact receive meaningful representation." Justice Wetzel also explained that "petitioner does not suggest any argument with regard to adequacy of counsel that would not be included within the record on appeal."
Petitioner applied for leave to appeal to the Appellate Division, First Department, on July 29, 2003, raising all of the same claims he raised in his initial motion. (Davis Decl., Ex. I.) The People opposed the application by letter dated October 2, 2003. (Davis Decl., Ex. J.) On April 6, 2004, the Appellate Division denied Petitioner's leave to appeal. III. Discussion A. The Rejection Of Petitioner's Lineup Identification Claims By The Appellate Division Was Not Unreasonable
Petitioner has alleged that (1) the lineup was unduly suggestive and should have been suppressed, (2) the trial court "erroneously restricted the scope of cross-examination" during the hearing on petitioner's motion to suppress the identification, (3) Petitioner's counsel was ineffective for not renewing the motion to suppress after Taner testified at trial, and (4) the loss of the original lineup photograph after trial deprived Petitioner of his right to meaningful appellate review. The decision of the Appellate Division that these claims were without merit was not contrary to nor an unreasonable application of clearly established Federal law, and these claims therefore cannot support the grant of habeas relief.
1. The Standard Of Review
Because each of these claims was "adjudicated on the merits" in the state court, see Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (state decision qualifies as an adjudication on the merits where it disposes of petitioner's federal claim on substantive grounds and reduces that disposition to judgment), this Court can grant Petitioner's application for habeas corpus relief only if he can show that the Appellate Division's decision rejecting those claims was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" clearly established federal law "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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., for the Court).
In order to prevail under the "unreasonable application" clause, Petitioner bears a "heavy burden" to show that the Appellate Division identified the correct governing legal principle from the Supreme Court's precedent but "unreasonably applie[d] that principle to the facts" of his case. Id.;Christie v. Hollins, No. 01 Civ. 11605, 2003 WL 22299216, at *2 (S.D.N.Y. Oct. 7, 2003). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "Under § 2254(d)(1)'s `unreasonable application' clause . . . 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." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (quoting Williams, 529 U.S. at 411). Rather, the state court's application of federal law must be "objectively unreasonable." Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 409).
2. The Lineup Was Not Unduly Suggestive
Petitioner has argued that the lineup in which Taner identified him was unduly suggestive because his skin tone allegedly was darker than that of the "fillers," all of whom were African-American. The Appellate Division rejected this claim, explaining:
[T]he hearing court found the lineup to be fair in this regard and . . . stat[ed] that another lineup participant had approximately the same skin tone as defendant. In any event, defendant was not entitled to be surrounded by persons of highly similar appearance, so long as he was not highlighted. There is no evidence that the victim ever mentioned anything about either of the perpetrators' skin tones to the police. Accordingly, defendant would not be entitled to suppression based on a difference between his skin tone and those of the other participants.Carroll, 759 N.Y.S.2d at 444 (citations omitted). That decision was neither contrary to, nor an unreasonable application of, Supreme Court law.
The Supreme Court has established a two-step inquiry for evaluating whether the admission of an out-of-court identification comports with due process. First, the court must determine whether the identification procedure used was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Second, even assuming the procedure used was unnecessarily suggestive, the identification still may be admitted at trial if the "totality of the circumstances" shows that the identification was independently reliable. Manson v. Brathwaite, 432 U.S. 98, 114 (1977) ("[R]eliability is the linchpin in determining the admissibility of identification testimony."). Whether or not the identification was independently reliable turns on "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The Appellate Division reasonably applied these principles.
First, the Appellate Division reasonably concluded that the lineup was not impermissibly suggestive. After reviewing a photograph of the lineup, the trial court found that one of the fillers "was not much lighter than [petitioner] in skin color" and, "[i]n any event, it doesn't appear to me that this line up is unduly suggestive." (Hrg. Tr. at 51.) That factual finding is presumptively correct for the purpose of this proceeding. 28 U.S.C. § 2254 (e) (1).
Even without the benefit of this presumption, however, Petitioner's claim still must be rejected because there is no evidence that Taner identified Petitioner on the basis of his skin tone to the police or anyone else. "A lineup is unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants obviously do not." Raheem v. Kelly, 257 F.3d 122, 134 (2d Cir. 2001). Thus, the "focus of the inquiry is not whether the suspect has a distinctive feature not shared by the other participants, but whether that feature matches the description provided by the witness." West v. Greiner, No. 01 CV 1267 (JG), 2004 WL 315247, at *5 (E.D.N.Y. Feb. 12, 2004).See also Gilbert v. Superintendent of the Collins Corr. Facility, No. 03 Civ. 3866 (LBS), 2004 WL 287683, at *12 (S.D.N.Y. Feb. 11, 2004) (lineup was not unduly suggestive even though petitioner was the only individual wearing a brown leather jacket because witness had not focused on that aspect of his assailant's appearance).
In his summation, defense counsel argued that Taner had not noticed Petitioner's skin color and that this alleged oversight made her identification unreliable. (Trial Tr. at 301 ("Nobody could tell whether this perpetrator was fair skinned, dark skinned or what."); see also id. at 309-10 (arguing that Taner's identification was unreliable because she was "not able to say with any degree of accuracy the skin color" of the individuals who robbed her); id. at 312 ("You don't know what the skin color of the person who did this.")). Rather, the evidence shows that Taner identified Petitioner based on the shape of his face. When asked explicitly what it was about Petitioner that Taner recognized in the lineup, she responded without hesitation, "His face." (Trial Tr. at 48; see also id. at 68 (while at the hotel, Taner noticed Petitioner more that his accomplice "because [Petitioner was] bigger and he has more of a presence, physical presence, and he had a round face"); id. at 69-70 (while observing Petitioner at the hotel, Taner focused on his face)). Thus, even assuming, as Petitioner claims, that his skin tone was significantly darker than that of the fillers, that fact would not have rendered the lineup unduly suggestive with respect to Taner because she never focused her attention on that aspect of Petitioner's appearance. The Appellate Division reasonably reached this same conclusion.See Carroll, 759 N.Y.S.2d at 444.
Moreover, even if the lineup had been unduly suggestive, the totality of the circumstances establishes that Taner's identification of Petitioner was independently reliable. Taner identified Petitioner in the lineup within a few hours of the crime as "[w]ithout a doubt" the man who had attacked her. (Trial Tr. at 46.) See id. at 183 (explaining that Taner identified petitioner without hesitation). She made this unequivocal identification after having observed Petitioner for approximately one to two minutes as she rode together with him in the elevator from the lobby to the twelfth floor of the hotel. (Id. at 31.) For the entire duration of this ride, Taner stood only an arm's length away from Petitioner, and there was nothing obstructing her view. (Id. at 28-29.) Taner testified that she became immediately suspicious of Petitioner and that she, therefore, looked carefully at his face from the moment he got on the elevator. (Id. at 58-59, 70.) Taner also spoke to Petitioner, both on the elevator and later in the hallway outside her room, which further focused her attention on Petitioner. (Id. at 59-60, 68, 70.) These circumstances demonstrate the independent reliability of Taner's identification. The Appellate Division's decision to reject his due process claim was objectively reasonable.
A federal habeas court may rely upon the record of both the trial and suppression hearing in determining whether an identification procedure is suggestive. See Jackson v. Fogg, 465 F. Supp. 177 (S.D.N.Y.), aff'd, 589 F.2d 108 (2d Cir. 1978).
3. Counsel Was Not Ineffective
Petitioner also asserts that he was deprived of his right to the effective assistance of counsel because his attorney failed to renew Petitioner's motion to suppress the lineup identification after Taner testified at trial. At trial, Taner stated that the clothing that Petitioner wore in the lineup was "consistent" with the clothing worn by the individual who had attacked her. (Trial Tr. at 47-48.) Petitioner claims that that testimony suggested Taner had identified Petitioner based on his clothing and that it should have prompted his attorney to seek to reopen the Wade hearing for the purpose of showing that Petitioner's clothing made the lineup unduly suggestive. The Appellate Division rejected Petitioner's claim, explaining that the "totality of the record establishes that defendant received meaningful representation." Carroll, 759 N.Y.S.2d at 444. According to the court, Petitioner
was not deprived of effective assistance when counsel made no application for reopening of the Wade hearing based on the victim's trial testimony that, at the lineup, defendant wore a jacket that was "consistent" with a particular type of jacket worn by one of the perpetrators. Since there was no evidence that the victim gave the police any description of either perpetrator's clothing, there is no reason to believe that an application to reopen the Wade hearing would have ultimately led to suppression of identification testimony.Id. That decision was neither contrary to, nor an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a court may find that counsel's performance was constitutionally ineffective only upon a twopronged showing by the defendant that (1) his attorney's conduct "fell below an objective standard of reasonableness" and (2) the defense was prejudiced as a result of the challenged conduct, i.e., that "there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different." 466 U.S. at 687-94. Petitioner has not made this showing, nor has he established that the Appellate Division unreasonably held that he failed to make the requisite showing. See Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (holding that it is not sufficient for petitioner to convince the court that it would have reached a different conclusion underStrickland if it had been faced with the claim in the first instance; rather, the court may intervene only if it determines that the state court's application of Strickland was "objectively unreasonable").
First, there is no evidence that Taner ever described Petitioner's clothing. Nor is there any evidence that Taner identified Petitioner from the lineup based on the way he was dressed. To the contrary, Taner testified that she recognized Petitioner by his face. (Trial Tr. at 48; see also id. at 70 ("I believe in looking at peoples [sic] faces if I have a concern rather than their clothing necessarily")). The fact that Taner may have remembered long after the lineup occurred that Petitioner's clothing was "consistent" with her attacker's in no way undermines her testimony that that clothing did not affect her identification. Gilbert, 2004 WL 287683, at *12 (rejecting ineffectiveness claim based on attorney's failure to move to reopen Wade hearing; where witness had not focused on petitioner's brown leather jacket, the jacket did not make the lineup unduly suggestive.
Petitioner has also argued that in addition to Taner, other witnesses for the People "remarked upon" Petitioner's clothing during trial. (Pet'r Br. at 18.) However, whether or not other witnesses, none of whom was asked to identify Petitioner from a lineup, may have noticed Petitioner's clothing is irrelevant to the question whether the lineup was unduly suggestive to Taner, who did not focus on how Petitioner was dressed. See Raheem, 257 F.3d at 134 ("Where one witness has emphasized a particular characteristic of the perpetrator in giving a description to the police, a lineup in which only the defendant has that characteristic may well taint the identification of the defendant only by that viewer.").
Even assuming Petitioner's counsel could have persuaded the trial court that the lineup was unduly suggestive, Taner's identification still would have been admissible at trial on the ground that it was independently reliable. Thus, Petitioner has not established, and cannot establish, a reasonable probability that had Petitioner's attorney only moved to reopen the Wade hearing, the trial court would have suppressed Taner's identification. See Kendrick v. Greiner, 296 F. Supp. 2d 348, 365 (E.D.N.Y. 2003) (finding habeas relief unwarranted on ineffectiveness claim where "there is no likelihood that a motion to reopen the Wade hearing would have been successful"); Senor v. Greiner, No. 00 CV 5673, 2002 WL 31102612, at *8 (E.D.N.Y. Sept. 18, 2002) (denying ineffectiveness claim where petitioner failed to show a reasonable probability that the court would have suppressed lineup identifications). 4. Limitation On Cross-Examination Did Not Violate Petitioner's Constitutional Rights
It is well-established that trial judges have "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The "Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. (citation omitted). Citing Van Arsdall, the Appellate Division concluded that the trial court had "properly exercised its discretion in imposing reasonable limits on cross-examination. The court accorded defendant ample latitude in which to pursue all relevant lines of inquiry, and the precluded matters were irrelevant or collateral to the pertinent issues." Carroll, 759 N.Y.S.2d at 444-45. That decision was objectively reasonable.
At the Wade hearing, the trial court sustained the ADA's objections to the following two questions posed by defense counsel:
Question: Where did the other four standees in the line up come from, where did you get them?
* * *
Question: Did you ask this defendant whether he was satisfied with the clothing he was wearing and whether he would like to have some other garments to wear?
(Hrg. Tr. at 24-25.)
Petitioner has failed to explain how the source of the fillers could have had any bearing on the suggestiveness of the lineup. The trial court permitted defense counsel to elicit this precise information from Officer Kelly at trial notwithstanding its ruling during the Wade hearing. At trial, defense counsel asked Officer Kelly again, "Where did you get the fillers from"? Officer Kelly responded that one of the fillers was a police officer who had been in the precinct at the time. She did not remember the source of the others. (Trial Tr. at 182.) Thus, setting aside all of Petitioner's speculation that counsel's question may have elicited information about the fillers' "demeanor and appearance" (Pet'r Br. at 17), Officer Kelly's testimony did not tend to show that the lineup was unduly suggestive.
Petitioner's second question, whether or not the police asked him if he "was satisfied with the clothing he was wearing," was equally irrelevant. Petitioner argues that he hoped this question would elicit that the police failed to take steps to conceal his "distinctive" clothing. (Pet'r Br. at 15.) Taner did not identify Petitioner by his clothing. She identified him by his face. For these reasons, the Appellate Division reasonably rejected Petitioner's Confrontation Clause claim.
5. The Loss Of The Lineup Photo Did Not Violate Petitioner's Constitutional Rights
Petitioner has contended that he was deprived of his fundamental right to an appeal because the District Attorney's office lost the photograph of the lineup after trial. The Appellate Division denied this claim. The court explained that, "[e]ven if we were to assume, arguendo, that the missing photograph would have cast doubt on the hearing court's description of the skin tones of the lineup participants, we would . . . find no basis for suppression." Carroll, 759 N.Y.S.2d at 444.
In Arizona v. Youngblood, 488 U.S. 51, 58 (1989), the Supreme Court held that the "government's failure to preserve potentially useful evidence does not constitute a denial of due process" unless the defendant can show "bad faith" on the part of the government. Petitioner has not even alleged, much less presented any evidence, that the loss of the lineup photograph here was the result of bad faith on the part of the District Attorney's office.
Nor can Petitioner show that he has been prejudiced in any way by the loss of the lineup photo. After reviewing the lineup photo, the hearing court specifically found that Petitioner's skin tone was not significantly darker than one of the fillers and, in any event, that the lineup was not unduly suggestive. (Hrg. Tr. at 51.) The jury likewise had an opportunity to view the original lineup photograph, which was admitted as an exhibit at trial (Trial Tr. at 47), and to consider defense counsel's arguments that the lineup, and Taner's identification, were unreliable. (Trial Tr. at 296-98, 301-02, 309-12.) Most importantly, Petitioner has failed to present any evidence that the missing photograph would support his contention that the lineup was unduly suggestive. Cf. McCray v. Barkley, No. 01 Civ. 4821 (DAB) (GAG), 2004 WL 32931, at *11-*12 (S.D.N.Y. Jan. 7, 2004) (holding that loss of portion of trial transcript did not deprive petitioner of right to a fair appeal where he presented no evidence that missing transcript would reflect reversible error).
Even assuming that the photograph would reveal, as Petitioner claims, that his skin tone varied markedly from that of the other lineup participants, or that his clothing was distinctive, that would not render the lineup inadmissible because Taner did not rely upon those characteristics and her identification was independently reliable. For these reasons, the Appellate Division reasonably rejected Petitioner's claim that the loss of the lineup photo deprived him of his right to meaningful appellate review. Cf. Edmonds v. McGinnis, 11 F. Supp. 2d 427, 436-37 (S.D.N.Y. 1998) (rejecting challenge to identification based, in part, on prosecution's loss of lineup photo after trial where petitioner made no attempt to prove bad faith on the part of the People, petitioner suffered no prejudice since photos were available to hearing court and at trial, and the record supported court's finding that lineup was not suggestive); Rivera v. Blackwell, Civ. A. No. 90-37, 1990 WL 110260, at *6-*7 (D.N.J. Aug. 1, 1990) (finding that destruction of photographic evidence after trial did not violate due process because there was no evidence of bad faith and jury had full opportunity to weigh destroyed evidence).
B. The Admission Of Testimony Regarding Gestures Did Not Violate Petitioner's Constitutional Rights
At trial, the hotel's bell captain, Frutchey, testified that two women in the elevator elbowed him and tipped their heads when they saw Petitioner and his accomplice. (Trial Tr. at 112.) Petitioner now claims that these gestures amounted to an implicit identification of Petitioner as the perpetrator and, therefore, constituted inadmissible hearsay testimony that violated his rights under the Confrontation Clause.
Before Frutchey took the stand, the ADA alerted the court and defense counsel that she expected Frutchey to testify that two women told him a hotel guest upstairs had been "attacked," that the women began elbowing Frutchey when they saw Petitioner and his accomplice, and that the women then said, "That's them, that's them." (Trial Tr. at 91-93.) With the exception of the women's exclamation, "That's them, that's them," the court held that all of Frutchey's proposed testimony was admissible as either an excited utterance or to explain Frutchey's subsequent actions (namely, that he subsequently chased after Petitioner and the other man). (Trial Tr. at 94-99.) Petitioner's attorney objected to Frutchey's use of the word "attack" but otherwise did not object to the ruling on constitutional grounds or on any other basis. Nor did counsel request a limiting instruction. (Trial Tr. at 99.) When Frutchey ultimately testified, Petitioner's counsel objected to Frutchey's testimony that the women "shouted at me that there's someone being choked on the 12th floor, robbed, choked, strangled" (Trial Tr. at 109), but he did not object when Frutchey stated that the women had elbowed him. (Trial Tr. at 112.)
On appeal, Petitioner claimed for the first time that Frutchey's testimony that the women had elbowed him was inadmissible hearsay. In denying Petitioner's challenge to the alleged hearsay testimony, the Appellate Division stated,
While defendant challenged certain other testimony relating to [the two women], he never objected to the gestures on any ground. Accordingly, his present claim that these gestures were inadmissible hearsay is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the gestures were properly admitted to explain the actions undertaken by hotel employees to pursue defendant and his companion. In any event, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt. Defendant was captured in immediate flight from the crime scene, and, in addition to the victim's identification, there was a strong chain of circumstantial evidence linking him to the crime.Carroll, 759 N.Y.S.2d at 445 (citation omitted). Because this decision rested on an independent and adequate state procedural ground, Petitioner's claim is barred from federal habeas review.Coleman v. Thompson, 501 U.S. 722, 729 (1991) ("[T]his Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.").
The Appellate Division denied Petitioner's claim as "unpreserved," explaining that "he never objected to the gestures on any ground." Carroll, 759 N.Y.S.2d at 445. In doing so, the Appellate Division relied upon the "firmly established and regularly followed" New York procedural requirement, Ford v. Georgia, 498 U.S. 411, 423-24 (1991), that a defendant must raise all hearsay objections, and specify the constitutional nature of those objections, at trial in order to preserve them for appeal. See People v. Kello, 96 N.Y.2d 740, 743-44 (2001) (defendant failed to preserve Confrontation Clause claim where he objected to admissibility of evidence solely under state hearsay rule), habeas corpus pet'n denied, No. 01 Civ. 1183 (HB), 2003 WL 21488015, at *3-*4 (S.D.N.Y. June 26, 2003); People v. White, 748 N.Y.S.2d 349, 350 (N.Y.App.Div. 2002) (finding constitutional objection to alleged hearsay evidence was unpreserved); People v. Haywood, 694 N.Y.S.2d 665, 665 (N.Y.App.Div. 1999) (claim that "gesture" was inadmissible hearsay was unpreserved).
The fact that the Appellate Division alternatively considered the merits of Petitioner's claim does not negate its reliance on a procedural bar. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. . . . [T]he adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").
Because the last "reasoned" opinion on Petitioner's Confrontation Clause claim rejected that claim on the basis of a state procedural bar, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), Petitioner can obtain federal habeas review only if he demonstrates either (1) cause for the default and actual prejudice; or (2) that this Court's failure to consider his claim would result in a fundamental miscarriage of justice because Petitioner is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Petitioner has not even attempted to make such a showing here. He has not alleged any cause for his default, and, as explained more fully below, he cannot demonstrate actual prejudice because his claim lacks merit. Nor has Petitioner come forward with "new reliable evidence" that he is actually innocent. Schlup v. Delo, 513 U.S. 298, 324, 330 (1995).
After rejecting Petitioner's claim as procedurally barred, the Appellate Division alternatively held that the gestures of the two women "were properly admitted to explain the actions undertaken by hotel employees to pursue defendant and his companion" and, in any event, that any error was harmless.Carroll, 759 N.Y.S.2d at 445. That decision was objectively reasonable. Cf. Green v. Herbert, No. 01 Civ. 11881 (SHS) (AJP), 2002 WL 1587133, at *11 (S.D.N.Y. July 18, 2002) (noting that because of the state court's alternative holding on the merits, the deferential standard of review contained in 28 U.S.C. § 2254(d) (1) applies to the extent the federal courts reach the merits), report and recommendation adopted and cert. of appealability denied, slip op. (S.D.N.Y. Sept. 9, 2002).
The admission of an out-of-court statement for a nonhearsay purpose, as here, raises no Confrontation Clause concerns. See Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004) (citingTennessee v. Street, 471 U.S. 409, 413-14 (1985)). The Appellate Division reasonably found that Frutchey's testimony was admitted to explain Frutchey's subsequent actions, not to prove the truth of any implicit assertion being made by the two women.Carroll, 759 N.Y.S.2d at 445. Specifically, as a result of being elbowed by the two women, Frutchey stated that he suspected that Petitioner and his companion were the perpetrators. His testimony concerning the women's gesture, therefore, explained why Frutchey decided to chase after Petitioner. (Trial Tr. at 112-13.) This was a permissible, non-hearsay purpose for admitting the challenged testimony, and the Appellate Division's conclusion to that effect was objectively reasonable. See, e.g., United States v. Lubrano, 529 F.2d 633, 637 (2d Cir. 1975) (finding out-of-court statements admissible to aid jury in understanding "background events").
Although there may be some risk that the jury considered Frutchey's testimony for an improper purpose, that concern does not rise to a constitutional level. First, any potential prejudice could have been avoided had Petitioner's counsel requested a limiting instruction. Cf. Lubrano, 529 F.2d at 637 ("if a limiting instruction had been requested, it might well have been given"). More importantly, the authority to weigh the prejudicial impact of Frutchey's testimony against its probative value rested with the trial court, and that evidentiary ruling may not be disturbed absent a showing that any alleged error "was so pervasive as to have denied [Petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).
Taner unequivocally identified Petitioner as her attacker after having observed him at close range, without obstruction, over an extended period of time and under conditions that motivated her to pay close attention to his appearance. As explained above, nothing in the record cast any doubt on the reliability of her identification. Multiple witnesses testified that they observed Petitioner running through the hotel within minutes of Taner's attack, and Petitioner ultimately was caught trying to flee from the scene. Given all of this incriminating evidence, Petitioner cannot demonstrate that Frutchey's testimony was so "substantial, significant or crucial . . . to have denied [him] the fundamentally fair trial requested by the Due Process clause."Collins, 755 F.2d at 19.
For this same reason, any error by the trial court in admitting Frutchey's testimony was harmless. See Carroll, 759 N.Y.S.2d at 445. Whether this Court applies Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (error is harmless if it did not result in "actual prejudice," that is, it did not have "a substantial and injurious effect or influence in determining the jury's verdict") (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)), or analyzes whether the Appellate Division reasonably appliedChapman v. California, 386 U.S. 18, 24 (1967) (error is harmless if it was "harmless beyond a reasonable doubt"), the result is the same. For all of the reasons outlined above, including the unimpeached identification of Petitioner as the perpetrator and his apprehension by the police while fleeing from the hotel, any evidentiary error was harmless and does not warrant habeas corpus relief.
C. Petitioner's Additional Claim Of Ineffective Assistance Of Counsel Is Procedurally Barred And Without Merit
Petitioner argues that his attorney was terminally ill during trial and therefore was unable to provide constitutionally effective representation. Petitioner claims that because of these alleged health problems, his trial counsel (1) failed to make a timely motion for a hearing concerning the admissibility of evidence of Petitioner's prior convictions pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974); (2) improperly advised Petitioner to waive his right to be present during sidebar conferences under People v. Antommarchi, 80 N.Y.2d 247 (1992); (3) inadequately cross-examined witnesses; (4) failed to object to the court's charge to the jury concerning the meaning of "reasonable doubt;" and (5) failed to make a motion at the conclusion of the evidence for a trial order of dismissal of all charges in the indictment. This claim is procedurally barred because Petitioner failed to raise it on his direct appeal and has failed to satisfy his burden of proof.
Two months after the Appellate Division affirmed his conviction, Petitioner raised the issue of his attorney's illness for the first time in a pro se motion to vacate the judgment against him pursuant to N.Y. Crim. Proc. Law § 440. (Davis Decl., Ex. G.) Noting that Petitioner's direct appeal already had been decided by the Appellate Division and that Petitioner had not suggested "any argument with regard to adequacy of counsel that would not be included within the record on appeal," Justice Wetzel denied Petitioner's motion. (Davis Decl., Ex. H.) This decision was based on an adequate and independent state procedural ground that precludes federal habeas review.
Under N.Y. Crim. Proc. Law § 440.10(2) (c), a New York court must deny a motion to vacate a judgment of conviction where "sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion," yet the defendant "unjustifiabl[y] failed to raise such ground or issue upon" direct appeal. Justice Wetzel "clearly and expressly" relied upon this procedural bar when he denied Petitioner's motion. Harris, 489 U.S. at 263. Because Petitioner has failed to allege cause and prejudice, or to show that he is actually innocent, this claim is procedurally barred.See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (finding state court's reliance on § 440.20(c) (c) precluded federal habeas review).
Although Justice Wetzel cited N.Y. Crim. Proc. Law § 440.10(2) (a), it is clear from his reasoning (namely, his finding that Petitioner's claim was based entirely on facts available in the record on appeal) that he was relying upon § 440.10(2) (c).
Petitioner alleges conclusorily that his attorney's performance "was severely impaired as a direct consequence of his illness." (Pet'r Br. at 26.) However, as the Second Circuit has observed, "There is simply nothing inherent in an attorney's illness that necessarily will impede a spirited defense `most of the time' to justify finding the attorney's representation per se ineffective." Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992). "Rather, given the varying effects health problems can have on an individual's ability to function, claims of ineffective assistance based on attorney illness" must be evaluated using the two-pronged test established in Strickland. Id. Thus, Petitioner must show (1) that his attorney's conduct "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) that the defense was prejudiced as a result of the challenged conduct, i.e., that "there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different," id. at 694.
Petitioner claims that his attorney erred by failing to make a pretrial motion for a Sandoval hearing. However, Petitioner cannot show that he was prejudiced by this decision in any way because at the close of the People's case, the court advised Petitioner he still had the right to such a hearing. (Trial Tr. at 275.) The court ultimately did not hold a Sandoval hearing because Petitioner, after discussing the issue "at great length" with his attorney, opted not to testify. The court's decision had nothing to do with the timing of Petitioner's application. (Trial Tr. at 276.)
To the extent Petitioner is alleging that his attorney waived his right to a Sandoval hearing, or even to testify, over his objection, this claim is utterly unsupported by the record. When counsel advised the court that Petitioner had decided not to testify, Petitioner remained completely silent and never suggested he had any desire to take the stand. (Trial Tr. at 26.) In any event, even if he could present proof that his attorney affirmatively prevented him from testifying, Petitioner has not described his proposed testimony or explained how it would have affected the outcome of his trial. Indeed, the record suggests his testimony only would have hurt his case. If Petitioner had taken the stand, he likely would have been cross-examined about his lengthy criminal history, including prior convictions for Robbery in the Second Degree, Attempted Robbery in the Second Degree and Burglary in the Third Degree. (Sent. Tr. at 3-4, 7-8.) Moreover, when Petitioner was given the opportunity to speak at his sentencing, the trial court found his statements to be so incredible that it imposed the maximum sentence. (Sent. Tr. at 9-10.)
There is no evidence that Petitioner's waiver of hisAntommarchi right to be present at sidebars was anything other than knowing and voluntary. After Petitioner spoke with his attorney, the trial judge advised him,
[Y]ou have the right to be present if we have any discussion with jurors at the side. But then again, you can waive that right so that people may be more open in discussing with your attorney and the Assistant issues that they don't want to talk publicly about. Do you wish to waive that right and have your attorney come up and talk privately with these jurors?
(Jury Tr. at 2.) Petitioner responded, "Yes," without qualification, and also indicated that he had signed a written waiver. (Id.) Moreover, Petitioner does not specify a single sidebar from which he was excluded, much less explain how his exclusion would have affected the outcome of the trial. These allegations, even in a pro se petition, fall far short of the stringent showing required for Petitioner to establish ineffective assistance underStrickland. See Smalls v. McGinnis, No. 04 Civ. 0301 (AJP), 2004 WL 1774578, at *23 (S.D.N.Y. Aug. 10, 2004) (finding conclusory allegations in pro se petition insufficient to meet the rigorous standard under Strickland).
The only witness Petitioner specifically names as having been subjected to allegedly inadequate cross-examination is Taner. Even as to Taner, however, Petitioner does not specify what line of questioning his attorney allegedly should have pursued or how his counsel's conduct prejudiced the defense. Instead, Petitioner makes the vague and unsubstantiated assertion that his attorney "failed to present Petitioner's case in any fundamental respect" and that "his deficient performance resulted in petitioner having to face a trial totally unprepared." (Pet'r Br. at 28.) Similar allegations have consistently been rejected as inadequate on a petition for federal habeas corpus relief. See Smalls, 2004 WL 1774578, at *23 (citing cases).
Petitioner's attorney elicited that Taner's injuries, although perhaps painful and serious, were not life threatening. On the basis of this evidence, counsel ultimately succeeded in securing dismissal of the most serious charge in the indictment, the charge of attempted murder. (Trial Tr. at 62, 279-85.) Petitioner's attorney also thoroughly questioned Taner about her ability to identify Petitioner. Among other things, counsel established that Taner was "concerned" and "uncomfortable" almost as soon as she saw Petitioner, allowing him to argue later in summation that Taner was too nervous to remember Petitioner's features accurately. (Trial Tr. at 58-60, 296-98.) Petitioner's attorney also established on cross-examination that no single witness had observed Petitioner continuously from the time of the attack until the moment he was captured on the subway platform, and that there were some discrepancies between the descriptions that the various witnesses gave of Petitioner. From this, counsel argued effectively that Petitioner was not the individual who had robbed Taner. (Trial Tr. at 305-06, 308, 310-11.) Although the jury ultimately rejected counsel's arguments, his performance was not constitutionally deficient. Cf. Calderon v. Keane, No. 97 Civ. 2116 (RCC) (JCF), 2002 WL 1205745, at *10 (S.D.N.Y. Feb. 21, 2002) ("[T]he conduct of cross-examination [is] typically [a] question of trial strategy that habeas courts will not second guess unless there is no tactical justification for the course taken."), report and recommendation adopted, 2003 WL 22097504, at *1 (S.D.N.Y. Sept. 9, 2003).
Petitioner additionally claims that his attorney was ineffective for failing to object to the trial court's charge on reasonable doubt. Petitioner does not point to any specific language in the charge as being erroneous. Rather, he appears to argue that his attorney should have objected when the court delivered a reasonable doubt charge that differed from the charge found in the Pattern Jury Instructions. This claim must be denied because the court's charge was legally proper. See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) ("[W]hen a trial court's instruction is legally correct as given, the failure to request an additional instruction" or to object to the instruction "does not constitute deficient performance.").
The trial court's reasonable doubt charge was legally correct even though it may have differed from the charge found in the Pattern Jury Instructions. First, the reasonable doubt charge found in the Pattern Jury Instructions, although preferable, is not mandatory, and a court's failure to use it does not constitute reversible error. People v. Green, 683 N.Y.S.2d 494, 496 (N.Y.App.Div. 1998) (citing People v. Cubino, 88 N.Y.2d 998 (1996)). Moreover, the trial court in Petitioner's case delivered a reasonable doubt charge that substantially mirrored the charge found in the Pattern Jury Instructions. Compare Trial Tr. at 361-64 with Comm. on Criminal Jury Instructions, N.Y. State Office of Court Admin., CJI 2d [NY] Presumption of Innocence, Burden of Proof, Proof Beyond a Reasonable Doubt,available at http://www.nycourts.gov/cji/1-General/ cjigc.html (last visited Aug. 8, 2006). To the extent the two differed, the charge the court read "as a whole" conveyed the correct legal meaning of reasonable doubt.Green, 683 N.Y.S.2d at 496.
Finally, Petitioner claims that his attorney failed to move for a trial order of dismissal with respect to the burglary and robbery charges. This assertion is flatly contradicted by the record. Although he directed his arguments principally to the attempted murder charge, and ultimately succeeded in securing the dismissal of that charge, Petitioner's attorney did move to dismiss the burglary and robbery charges as well. Counsel stated that "the defendant moves for a trial order of dismissal with respect . . . to each count in the indictment on the ground that the People have failed to produce evidence sufficient to establish a prima facie case with respect to each count. Particularly so with respect to the attempted murder." (Trial Tr. at 277.) The court then denied the motion with respect to the burglary and robbery charges, stating that the People had made a prima facie showing that Petitioner had attacked Taner in her hotel room, that she was seriously injured and that her rings were stolen. (Trial Tr. at 279.) Because counsel committed no error, Petitioner's claim of ineffective assistance must be denied.
Conclusion
For the reasons set forth above, the petition 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 also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a) (3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.