Cotto v. Fischer

Full title: EDDIE COTTO, Petitioner, v. BRIAN FISCHER, Commissioner, NYS Department of…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 23, 2012

09 CV. 9813 (SAS)(MHD) (S.D.N.Y. Aug. 23, 2012)

Opinion

09 CV. 9813 (SAS)(MHD)

08-23-2012

EDDIE COTTO, Petitioner, v. BRIAN FISCHER, Commissioner, NYS Department of Correctional Services, Respondent.

Copies of the foregoing Report and Recommendation have been mailed this date to: Thomas Benjamin Litsky, Esq. New York State Office of the Attorney General 120 Broadway New York, NY 10271 Mr. Eddie Cotto 1626 Lexington Avenue #3A New York, NY 10029 Mr. Eddie Cotto 06-R-5209 Ulster Correctional Facility 750 Berme Road P.O. Box 800 Viapanoch, NY 12458

MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

TO THE HONORABLE SHIRA A. SCHEINDLIN, U.S.D.J.:

Pro se petitioner Eddie Cotto seeks a writ of habeas corpus to challenge his conviction, entered on October 25, 2006, in New York State Supreme Court, New York County, on one count of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Sale of a Controlled Substance in the Third Degree. The court sentenced him to concurrent determinate sentences of six years with three years of post-release supervision for each charge. Cotto appealed to the Appellate Division, First Department, which affirmed the conviction, and the Court of Appeals denied his application for leave to appeal. Cotto is currently serving his term of post-release supervision, which has a maximum expiration date of January 28, 2014.

In his timely petition¹, Cotto asserts seven grounds on which he claims he is being held unlawfully. First, he raises a legal-sufficiency claim, alleging that the evidence at trial was insufficient to show that he had sold a controlled substance to an undercover officer. Second, he argues that he was denied due process by the trial court's ruling that permitted into evidence the money recovered from his person at the time of his arrest in order to prove his intent to sell. Third, he alleges that one of the undercover officers gave perjured testimony and asserts that the court should therefore have dismissed the charges. Fourth, he asserts that there was no probable cause to arrest him. Fifth, he claims that he was denied his due-process right to a public trial by the trial court's closure of the courtroom and decision to allow the two undercover officers to testify anonymously. Sixth, he claims that the trial court failed to adequately respond to a note from the jury requesting clarification of the acting-in-concert theory. Seventh, he alleges that two officers testified under different shield numbers in the grand jury and at trial. (Pet. 5-6(i)).

1 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on the filing of habeas petitions in federal court. 28 U.S.C. § 2244(d)(1). Under its terms, a petitioner has one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" to file a petition in federal court. Id. The judgment is deemed final either when the Supreme Court denies a petition for a writ of certiorari or when the time for making such an application has expired, which is a period of ninety days following final review by the state courts. See, e.g., Williams v. Artuz, 237 F.3d 147, 148-49 (2d Cir. 2001). The New York Court of Appeals denied Mr. Cotto's application for leave to appeal on August 10, 2009. People v. Cotto, 13 N.Y.3d 743, 886 N.Y.S.2d 97 (2009). His conviction therefore became final ninety days later, on November 9, 2009. He thus had until November 9, 2009 to file his petition, and the petition, dated October 3, 2009, is clearly timely.

Respondent opposes the petition. He contends that petitioner's legal-sufficiency claim is partially procedurally barred and, regardless, meritless. He further argues that the evidentiary claim is meritless and the Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976). With respect to petitioner's courtroom-closure claim, he argues that the claim is procedurally barred but also meritless. Petitioner's jury note claim and perjured testimony claim, he argues, are also meritless. And lastly, he contends that the claim concerning the differing shield numbers is unexhausted, procedurally barred, and frivolous. (See generally Resp't's Opp'n Mem. of Law ("Resp't's Opp'n")).

For the reasons that follow, we recommend that the writ be denied and the petition dismissed with prejudice.

BACKGROUND

Petitioner's conviction stems from his alleged participation in a sale of narcotics on January 7, 2006. On that date, in the vicinity of 110^th Street and Lexington Avenue in Manhattan, a team of New York City Police Department ("NYPD") officers from the Manhattan North Narcotics Unit ("MNN") conducted a "buy and bust" operation -- an operation in which an undercover officer attempts to purchase narcotics from a suspect and a team of other officers apprehends the individual involved if the officer is successful. (See Tr. I 307-09, 327-28)². The team included two undercover ("UC") officers -- UC 5550, who was assigned to attempt to purchase narcotics, and UC 2772, who was assigned to be the operation's "ghost," monitoring UC 5550 for his safety. (Tr. I 331; see also Traverse³ ¶ 13). Shortly before 10:00 a.m., UC 5550 was in the vicinity of 1760 Lexington Avenue, and petitioner walked into the building. (Tr. I 340, 402). UC 5550 approached Cotto and asked him for heroin. (Tr. I 340). Cotto stated that he had run out but would return with more. UC 5550 then left the building and crossed the street, and after about fifteen minutes, the officer observed Cotto also exit the building. (Tr. I 345, 347). Cotto made eye contact with UC 5550 and pointed to a pouch around his waist, but then he stopped and said "hold on . . . there is a cop across the street." (Tr. I 348; see also Resp't's Opp'n at 5-6). Cotto then entered a van stationed at the southwest corner of 110^th Street and Lexington Avenue. (See Tr. I 348; Resp't's Opp'n at 5-6).

2 "Tr. I" refers to the first volume of the trial transcript and "Tr. II" refers to the second volume.

3 The "Traverse" is petitioner's reply in support of his petition.

UC 5550 was then approached by another individual -- Benito Acevedo, petitioner's co-defendant -- who asked him if he was looking to purchase narcotics. (See Resp't's Opp'n at 6; Tr. I 349, 353). Acevedo said he needed to "re-up" -- meaning restock -- and then went over the van that Cotto had entered. Cotto handed an object to Acevedo through the lowered window. Acevedo then sold UC 5550 two glassines of heroin, and the officer paid Acevedo $20 for them in "prerecorded buy money". (See Tr. I 353-57; Resp't's Opp'n at 6-7). The field team of police officers arrested Acevedo while UC 5550 pretended to escape, and other officers simultaneously arrested Cotto. UC 5550 then returned to identify both Acevedo and Cotto. The arresting officers recovered eight more glassines of heroin from Acevedo as well as the prerecorded buy money. From Cotto they recovered $146 in unmarked bills. (See Tr. I 360-61; Tr. II 31-32, 39, 98-99; Resp't's Opp'n at 7-8).

On January 13, 2006, a New York County grand jury indicted Cotto and Acevedo on one count of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Sale of a Controlled Substance in the Third Degree. (See Resp't's Opp'n at 3).

PROCEDURAL HISTORY

I. Pretrial Proceedings

Before trial, Cotto moved to suppress the $146 seized from him incident to his arrest, arguing the it was the fruit of an illegal search, as the arresting officer did not have probable cause to arrest him. (Oct. 17, 2006 Tr. ("Mapp Tr.") 122-26).

At a Mapp ⁴ hearing held October 16-17, 2006, Justice Rena K. Uviller of New York Supreme Court heard testimony from two NYPD officers -- Detectives Fleming and Briecke -- regarding the circumstances of the "buy and bust" operation, Acevedo's arrest, Cotto's arrest and the search incident to Cotto's arrest. (Mapp Tr. 2-140). The court found, based on the testimony provided, that the officers had had probable cause to arrest Cotto based on radio transmissions to them from UC 2772 about a positive buy and that the $146 seized from Cotto was seized incident to his lawful arrest. (Mapp Tr. 135-39). Accordingly, the court denied suppression of the $146 recovered from Cotto. (Mapp Tr. 139).

4 A Mapp hearing allows a defendant to challenge evidence recovered by police as having been obtained as the result of an illegal search and seizure. See Mapp v. Ohio, 367 U.S. 643 (1961).

The court also ruled on a request by defense counsel pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), to prohibit the prosecution from inquiring into facts surrounding any of petitioner's prior sales or attempted sales convictions. Petitioner had eight prior convictions for the sale or attempted sale of controlled substances, several of which the prosecution wished to inquire about should Cotto choose to testify. (Oct. 18, 2006 Tr. ("Sandoval Tr.") 17-22). The court ruled that the prosecutor would be permitted to bring out the fact that Cotto had eight prior felony convictions in total and that the last three of those convictions were for sales or attempted sales of controlled substances. (Sandoval Tr. 26).

Lastly, just prior to the start of trial, the court held a Hinton ⁵ hearing on October 19, 2006, ruling that the courtroom would close for the testimony of the two undercover officers. (Tr. I 164). At the hearing, both UC 5550 and UC 2772 testified as to the risks undercover agents face by testifying in open court (see, e.g., Tr. I 140, 153-54), threats they had received in their capacity as undercover officers (see, e.g., Tr. I 138, 150-51) and the precautions needed to prevent discovery of their true profession. (See, e.g., Tr. I 142, 155). Petitioner's counsel opposed the prosecution's application for a closed courtroom and for the undercover officers to testify under their badge numbers instead of their names. In support of this position, he argued that UC 2772 had already been identified by Cotto during the "buy and bust" operation and yet the officer had received no threats and had not been subjected to any interference with his work. (Tr. I 162-63). Petitioner's counsel reasoned further that the application for closure, based on the "generalities and assumptions and presumptions" that UC 2772 had made, applied to other people but not to Cotto. (Tr. I 163). As a result of this, he argued, the officers faced no threat from Cotto and the courtroom should not be closed. (Tr. I 163). Counsel also requested that if the court was inclined to close the courtroom, Cotto's girlfriend should be permitted to stay. (Tr. I 163). The Court ruled that it would close for the testimony of the two undercover officers on the basis that they both had open cases with "lost subjects"⁶, continuing investigations in the area in which Cotto was arrested, and subjects out on bench warrants. (Tr. I 164). However, the Court made an exception for the significant others of both defendants as well as an additional Legal Aid attorney. (Tr. I 165).

5 Pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885 (1972), the court at a Hinton hearing determines whether the closure of the courtroom is appropriate during the presentation of certain testimony. See People v. Reece, 204 A.D. 495, 495, 612 N.Y.S.2d 61, 62 (2d Dep't 2994) (citing Hinton).

6 UC 2772 explained that a "lost subject" is an individual who was a subject of buy-and-bust operation but who the officers were unable to apprehend at the time of the buy. (See Tr. I 147-48).

II. Trial Proceedings

Trial commenced on October 19, 2006, and the prosecution brought forth -- primarily through the testimony of the two undercover officers and the two arresting detectives -- evidence detailing the circumstances that had led to Cotto's arrest, the arrest itself, and the search incident to Cotto's arrest. (See, e.g., Tr. I 339-41, 347-51, 353-61; Tr. II 134-50). The prosecution also submitted as evidence various photographs of the neighborhood where Cotto had been arrested, the narcotics seized from Acevedo at the time of his arrest, the $20 of prerecorded buy money seized from Acevedo, and the $146 seized from Cotto at the time of his arrest (Tr. I 343, 346, 351-52, 363; Tr. II 32-33, 43-46, 51).

A. Witness Testimony

The first witness, UC 5550, described his role as the undercover officer responsible for attempting to purchase drugs in the vicinity of 110^th Street and Lexington Avenue in Manhattan on the day of Cotto's arrest. He explained his experience and training, and, for the benefit of the court, what prerecorded buy money is and how the various radio devices used during the "buy and bust" operation transmit messages to the rest of the field team. (Tr. I 331-35).

Specifically with regard to January 7, 2006, UC 5550 initially described arriving at 1760 Lexington Avenue around 9:30 a.m. (Tr. I 338). He characterized that area as being "heavily saturated with heroin". (Tr. I 339). UC 5550 went into 1760 Lexington Avenue and had conversations with other people also in the lobby. (Tr. I 339-40). After "not too long," UC 5550 observed Cotto, in a grey sweatshirt and blue sweatpants, enter the building (Tr. I 340); Cotto told the group waiting inside, including UC 5550, that he had run out of heroin and that they should return in an hour. (Tr. I 341). After a number of people complained, Cotto said that he would return in half an hour. (Tr. I 341). When UC 5550 and the group started leaving, UC 5550 said that he would just go somewhere else, indicating that he would purchase drugs from another seller; to this, Cotto responded "give me fifteen," indicating that he would return with more drugs to sell, (Tr. I 341-42).

UC 5550 testified that he then left the lobby of the building and walked across Lexington Avenue to wait in front of a Dunkin' Donuts restaurant. (Tr. I 343). He waited there for approximately fifteen to twenty minutes, at which point Cotto exited 1760 Lexington Avenue, began looking around, made eye contact with UC 5550, and pointed to a fanny pack around his waist. (Tr. I 347-48). As UC 5550 moved across the street to meet Cotto, Cotto said "hold on a second. Hold on, there is a cop across the street," presumably referring to UC 2772. (Tr. I 348). UC 5550 returned to the Dunkin' Donuts and, according to UC 5550's testimony, Cotto entered a van on the Southwest corner of 110^th Street and Lexington Avenue. (Tr. I 348).

After waiting for a few minutes, UC 5550 decided to leave the area and started moving north on Lexington Avenue, at which point he was approached by an individual Cotto's codefendant, Acevedo -- who asked "what it was that [he] needed." (Tr. I 349). Acevedo was wearing a black leather jacket, a black ski hat and blue jeans. (Tr. I 349). Acevedo asked UC 5550 whether he was the one looking for "Diesel", to which UC 5550 responded that he was. (Tr. I 353). Acevedo said he could "hook [UC 5550] up with Diesel" if he would wait for a minute, as he needed to "re-up" -- which, UC 5550 explained, means to "restock" with heroin. (Tr. I 353). Acevedo proceeded to cross the street and approach the driver's side window of the van that UC 5550 had witnessed Cotto enter shortly before. (Tr. I 353-54). UC 5550 testified that he saw Cotto lower the window, converse briefly with Acevedo, and hand Acevedo an object. (Tr. I 354). Acevedo turned around and began to remove rubber bands from the object, and to walk toward UC 5550. (Tr. I 354-55). UC 5550 testified that the object in Acevedo's hand was a "bundle", or a set of glassines of heroin. (Tr. I 355).

Once Acevedo reached UC 5550, he instructed the officer to "walk with him" northbound on Lexington Avenue, and as they walked he told the officer that there was a high police presence in the area. (Tr. I 356). Acevedo asked the officer how many glassines he wanted, and UC 5550 replied that he wanted two. Acevedo gave him two, which UC 5550 testified were stamped with a brand name, which was "Porsche", and had picture of a Porsche. (Tr. I 356), The glassines were $10 each, and UC 5550 gave Acevedo $20 in prerecorded buy money. (Tr. I 357).

After UC 5550 completed the purchase, the two walked toward 112^th Street, and UC 5550 gave the positive buy sign to UC 2772, who was nearby, to let him know that narcotics had been purchased. (Tr. I 357-58). At this point, the MNN field team approached UC 5550 and Acevedo and arrested Acevedo while UC 5550 pretended to escape the scene. (Tr. I 359-60). After looping around the neighborhood, UC 5550 returned to the area to make a positive identification of both Acevedo and Cotto -- who had also been arrested. (Tr. I 360).

Under cross-examination, UC 5550 clarified the testimony he had given before the grand jury a number of months earlier. Cotto's counsel pointed out that during the grand jury proceedings, UC 5550 had testified that he was inside the lobby of 1760 at 9:30 a.m. (Tr. I 399-400). However, at trial, UC 5550 testified that he was in the vicinity of 1760 Lexington Avenue. Under cross-examination, the officer clarified that he was not inside the lobby of 1760 Lexington Avenue, but instead in front of the building. (Tr. I 399-402). He was, however, inside the lobby when he had his initial conversation with Cotto. (Tr. I 402). He also clarified that when Cotto had spotted UC 2772, Cotto had directed UC 5550 and others to go back inside 1760, and that while in his grand jury testimony he had stated that he did go back inside, he in fact did not return to the building, but only to the steps of the building. (Tr. I 412-15).

Detective Fleming and Detective Briecke also testified at trial. Detective Fleming, the assigned arresting officer for the bust-and-buy operation, testified as to his role in the operation and how the radio transmitters that they used generally function. (Tr. II 18-21). He also described prerecorded buy money, and how it is photocopied before being given to an undercover officer. (Tr. II 21-22). Detective Fleming arrived at an area on Lexington Avenue just north of 112^th Street at approximately 10:00 a.m. on January 7, 2006. (Tr. II 22). He testified that he had received radio transmissions from UC 2772. The first radio transmission indicated that UC 5550 was on the corner of 110^th Street and Lexington Avenue and that he was mingling with other users looking to purchase drugs. (Tr. II 24-25). There were no descriptions provided of those with whom UC 5550 was interacting. (Tr. II 25). The second radio transmission indicated that UC 5550 was in communication with a Hispanic man wearing a black leather jacket and a black ski cap. (Tr. II 26). The third radio transmission received from UC 2772 indicated that there had been a buy, that UC 5550 was walking with the Hispanic man in the black leather jacket and black ski cap, and that another Hispanic man in blue sweatpants and a gray sweatshirt was also involved. (Tr. II 28).

Detective Fleming testified that based on the third radio transmission, he arrested Acevedo. Acevedo initially refused to put his hands up, but when the officer began to handcuff him, he opened his left hand and released eight glassines of heroin. (Tr. II 31). The $20 of prerecorded buy money was also recovered from Acevedo's person. (Tr. II 32). Detective Fleming testified that they had then proceeded down to 110^th Street and Lexington Avenue, where Detective Brickie arrested Cotto. (Tr. II 35).

The prosecution next called Detective Briecke, who testified that on the day of Cotto's arrest, he was assigned the "chase vehicle" role in the buy-and-bust operation, which meant that he was tasked with picking up anyone who was to be arrested. (Tr. II 88). Briecke, stationed in an unmarked police vehicle with Detective James Gallagher, also testified as to the three radio transmissions received from UC 2772. (Tr. II 92-95). Briecke testified that within one to two minutes of receiving the third radio transmission confirming UC 5550's positive buy, he drove to 110^th Street and Lexington Avenue, approached the passenger side door of the van described by UC 2772, and opened the door to find a man matching the description of Cotto in blue sweatpants and a gray sweatshirt. (Tr. II 96-98). Briecke apprehended Cotto, patted him down, removed him from the van, and conducted a more extensive search of his person. (Tr. II 99). From this search, Briecke recovered $146 of U.S. currency in five- and one-dollar bills from Cotto's pants pocket. (Tr. II 101). Briecke further testified to searching the brown fanny pack seen by UC 5550, which was found in the van, and that no contraband was found in it. (Tr. II 101-02, 117).

The last officer to testify was UC 2772, who related the events of January 7, 2006 from his perspective as the "ghost" of the operation. UC 2772's testimony on observing UC 5550's movements and actions essentially mirrored that provided by UC 5550 regarding his own movements and actions, with a few exceptions. One discrepancy between UC 5550's and UC 2772's versions of events related to whether or not UC 5550 had gone inside 1760 Lexington Avenue. While UC 5550 testified that he had gone into the lobby, UC 2772 testified that he had observed his partner only outside the building, in the vestibule area. (Tr. II 185-86). There were also some inconsistencies between the two officers' testimony as to whether Acevedo had approached the driver-side door or the passenger-side door of the van in which Cotto was sitting. (See, e.g., Tr. I 354; Tr. II 143, 145).

The prosecution's final witness was NYPD chemist Filomena Almonte, offered as an expert witness in the area of chemical analysis of controlled substances. (Tr. II 196-98). Ms. Almonte testified that she had performed analyses on the eight glassine envelopes recovered from Acevedo and that they contained heroin. (Tr. II 201-04).

Neither Acevedo nor Cotto presented any evidence at trial. (See Tr. II 211-12).

B. Deliberations and Verdict

During deliberations, the court received two notes from the jury, one requesting to see several of the exhibits, and the other stating, "We the jury request if Cotto intended to sell the drugs to Acevedo, but did not intend or know that Acevedo would then sell them to a third party, is that sufficient to find the intent element to convict Cotto?" (Oct. 25, 2006 Tr. ("Oct. 25 Tr.") 136-37)⁷. In a discussion with the court, Cotto's attorney stated that he thought the note meant that the jury was asking, "if Mr. Cotto does not know what Mr. Acevedo intends to do with the heroin, if they're assuming that he received it from Mr. Cotto, if Mr. Cotto could be convicted of either of the charges." (Oct. 25 Tr. 138). Counsel further stated that he thought the answer was "no" because "[Cotto] is not being charged with making a sale to Mr. Acevedo." (Oct. 25 Tr. 138). Counsel thus believed the jury to be asking a question relating to Count One, Criminal Sale of a Controlled Substance in the Third Degree. The court noted that there was confusion as to what the jury was asking, and indicated that it would advise the jury of the uncertainty and then either would reiterate the charges or elements again, or ask the jury to rephrase the question. (Oct. 25 Tr. 139). The jury rephrased the note, asking the court to simply "reread the charges and elements of each charge". (Oct. 25 Tr. 141). The court then reiterated to the jury the criminal charges against the defendants along with the elements of each charge. (Oct. 25 Tr. 142-48).

7 The trial transcript begins renumbering pages at the summations.

C. Conviction, Sentencing, and Appeals

On October 25, 2006, the jury found petitioner guilty of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. (Oct. 25 Tr. 150-53). On November 28, 2006, the court sentenced Cotto to concurrent sentences of six years with three years post- release supervision. (Sentencing Tr. 9-10).⁸

8 Acevedo was also found guilty on both counts (Oct. 25 Tr. 150) and on November 14, 2006 was sentenced to determinate sentences of six years, with three years post-release supervision. (Resp't's Opp'n at 9 n.5; Litsky Decl. Ex. H (Acevedo App. Br.) at 1-2). Acevedo's and Cotto's appeals were heard together, and Acevedo's conviction was upheld by the Appellate Divison. See People v. Acevedo, 62 A.D.3d 464, 878 N.Y.S.2d 327 (1st Dep't 2009).

Petitioner, still represented by counsel, appealed his conviction to the Appellate Division, First Department. His counsel argued that: (1) the evidence was legally insufficient to establish his guilt beyond a reasonable doubt (Litsky Opp'n Decl. Ex. A (Pet'r's App. Div. Br. at 14-22)), and (2) Cotto had been denied due process by the trial court's evidentiary ruling permitting the money that the police had recovered from Cotto to be admitted into evidence. (Id. at 22-26).

Cotto also filed a supplemental pro se brief in the Appellate Division. He argued that: (1) the trial court should have dismissed the charges against him sua sponte because of perjured testimony by UC 5550; (2) the police did not have probable cause to arrest him; (3) the trial court did not respond meaningfully to a jury note seeking clarification of the acting-in-concert theory; and (4) he was denied due process when the trial court permitted the courtroom to be closed and the two undercover officers to testify anonymously. (See Litsky Opp'n Decl. Ex. B (Pet'r's Pro Se Br.) at 8-29).

On May 7, 2009, the Appellate Division affirmed petitioner's conviction. See People v. Acevedo, 62 A.D.3d 464, 878 N.Y.S.2d 327 (1st Dep't 2009). In doing so, the panel rejected Cotto's evidentiary-sufficiency claim, observing that there was "no basis for disturbing the jury's determinations concerning credibility." Id. at 465, 878 N.Y.S.2d at 329-30. Specifically, the court found that his argument that the evidence only established that he had sold drugs to Acevedo, and that Acevedo's sale to the officer was separate, was unpreserved. Id. at 465, 878 N.Y.S.2d at 330. However, the court also rejected the claim on the merits, holding that "the chain of events, viewed as a whole, warrants the inference that Cotto and Acevedo had acted as a team to sell drugs to the officer," and that they thus had jointly possessed, with intent to sell, the eight glassines of heroin found on Acevedo. Id.

The appellate court also rejected Cotto's evidentiary claim regarding the $146, noting that the evidence was "highly probative" of Cotto's intent to sell drugs and thus was admissible. Id. at 465-66, 878 N.Y.S.2d at 330.

With respect to Cotto's due-process claim regarding the closure of the courtroom and the anonymity of the undercover officers, the Appellate Division first rejected the claim as unpreserved and declined to review it in the interest of justice. Id. at 464-65, 878 N.Y.S.2d at 329. However, "[a]s an alternative holding", the court also rejected it on the merits, holding that the State had demonstrated "an overriding interest" that justified both the partial closure of the courtroom and maintaining the officers' anonymity. Id.

Finally, the court addressed only briefly Cotto's pro se claims regarding the hearing court's suppression ruling and the trial court's response to the jury note, noting that it had "considered and rejected" those claims. Id. at 466, 878 N.Y.S.2d at 330.

On May 28, 2009, Cotto, through his counsel, applied for leave to appeal to the New York State Court of Appeals. (See Litsky Opp'n Decl. Ex. E (Leave Application)). He sought review of all issues raised in his counsel's brief and in his pro se brief submitted to the Appellate Division. (See id.). The District Attorney opposed that application, and on August 10, 2009, the Court of Appeals denied Cotto leave to appeal. See People v. Cotto, 13 N.Y.3d 743, 886 N.Y.S.2d 97 (2009).

Cotto filed his petition for a writ of habeas corpus with this court on October 3, 2009.

ANALYSIS

Petitioner asserts seven claims in his current petition. He argues that: (1) the evidence used to convict him was not legally sufficient to convict him for the crimes charged (Pet. 5); (2) the admission of the $146 seized from his pants pocket after his arrest should have been suppressed, as the detective did not have probable cause to arrest him and thus the subsequent search was unlawful (Pet. 5); (3) the use of allegedly perjured testimony by witnesses should have led to a sua sponte dismissal of the case; (4) Detective Briecke did not have probable cause to arrest him based on UC 2772's radio transmissions (Pet. 6); (5) the trial court erroneously closed the courtroom during the testimony of UC 5550 and UC 2772, and the officers should not have been permitted to testify anonymously (Pet. 6(i)); (6) the court's unclear response to a jury note deprived petitioner of his right to due process (Pet. (6)(i)); and (7) the failure of the prosecution to clarify with the court a change in two officers' badge numbers violated his right to due process. (Pet. 6-6(i)). We first summarize the statutory limits on the scope of the habeas court's review of challenged state-court decisions and address the issues of exhaustion and procedural bar. We then turn to the merits of petitioner's claims.

I. Standard of Review

The stringency of federal habeas review turns on whether the state courts have passed on the merits of a petitioner's claim, that is, whether the decision of the highest state court to consider the claim is "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (discussing 28 U.S.C. § 2254(d)). If the state court has addressed the merits, the petitioner may obtain relief only if the state court's ruling

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). See, e.g., Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring); Besser v. Walsh, 601 F.3d 163, 178 (2d Cir. 2010), vacated on other grounds sub nom. Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010) (en banc); Howard v. Walker, 406 F.3d 114, 121-22 (2d Cir. 2005); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002).

Clearly established federal law "'refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision.'" Howard, 406 F.3d at 122 (quoting Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002)). "[A] 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 decided a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'" Id. (quoting Williams, 529 U.S. at 413).

What constitutes an "unreasonable application" of settled law is a somewhat murkier proposition. "'A federal court may not grant habeas simply because, in its independent judgment, the "relevant state-court decision applied clearly established federal law erroneously or incorrectly."'" Id. (quoting Fuller v. Gorczyk, 273 F.3d 212, 219 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411)). The Supreme Court observed in Williams that "unreasonable" did not mean "incorrect" or "erroneous," noting that the writ could issue under the "unreasonable application" provision only "if the state court identifies the correct governing legal principle from this Court's decisions [and] unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 410-13. As implied by this language, "'[s]ome increment of incorrectness beyond error is required . . . [H]owever, . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions "so far off the mark as to suggest judicial incompetence."'" Monroe v. Kuhlman, 433 F.3d 236, 246 (2d Cir. 2006) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord Richard S. v. Carpinello, 589 F.3d 75, 80 (2d Cir. 2009).

Under the Supreme Court's most recent, and arguably more stringent, interpretation of the statutory language, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. Under this more recent interpretation, a federal habeas court has "authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Id. In other words, to demonstrate an 'unreasonable' application of Supreme Court law, the habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.

As for the state courts' factual findings, under the habeas statute "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Richard S., 589 F.3d at 80-81; McKinney v. Artuz, 326 F.3d 87, 101 (2d Cir. 2003); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006).

II. Exhaustion

A. Legal Standards

The writ may not be granted unless a petitioner has exhausted all available state-court remedies for each claim. See 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that the factual and legal basis for each claim was "fairly presented to the highest available state court and that the petitioner utilize[d] all available mechanisms to secure appellate review of the denial of that claim." Gruyair v. Lee, 2011 WL 4549627, *6 (S.D.N.Y. Oct. 3, 2011) (citing, inter alia, Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005); Torres v. McGrath, 407 F. Supp.2d 551, 557 (S.D.N.Y. 2006); Mayen v. Artist, 2008 WL 2201464, *4 (S.D.N.Y. May 23, 2008)) (internal quotation marks omitted); see also 28 U.S.C. § 2254(c).

A petitioner is not required to cite "book and verse on the federal constitution". Picard v. Connor, 404 U.S. 270, 278 (1971) (citation omitted). However, a state court "should not have to guess that a constitutional claim is involved." Gruyair, 2011 WL 4549627, at *6; see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (holding that a state high court does not have "a duty to look for a needle in a paper haystack") (citation omitted). Thus, a petitioner may alert the state court as to the constitutional nature of a claim by

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so

particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Ramirez v. Att'y Gen. of N.Y., 280 F.3d 87, 95 (2d Cir. 2001) (quoting Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)).

B. Analysis

Respondent concedes that petitioner has exhausted some of his claims. Specifically, he notes that petitioner has exhausted his legal-sufficiency claim by raising the claim in constitutional terms on direct appeal to the Appellate Division and then in his application for leave to appeal to the Court of Appeals. (Resp't's Opp'n at 14). Similarly, he exhausted his claim that he was denied due process by the trial court's ruling admitting the $146 found on him in order to establish his intent to sell (id. at 14-15) as well as his claim that his constitutional rights were violated by the closure of the courtroom and the anonymity of the two undercover officers. (Id. at 15). Further, respondent agrees, petitioner exhausted his perjury claim and his claim that the court failed to respond properly to the jury's note. (Id. at 16). Thus respondent concedes that five of petitioner's seven claims are exhausted. With respect to Cotto's claim that the officers testified under different shield numbers at the grand jury and at trial, respondent argues that this claim is not exhausted because petitioner did not raise it on direct appeal. (Id. at 17). Respondent does not address here petitioner's remaining claim, regarding probable cause, but instead argues that it is barred from review under Stone v. Powell, 428 U.S. 465 (1976). (Id. at 29-32).

Petitioner's legal-sufficiency claim and his claim regarding the admission of the $146 into evidence were raised on direct appeal to the Appellate Division (see Pet'r's App. Div. Br. at 14-22, 22-26 (citing, inter alia, U.S. Const. amend. XIV) and his application for leave to appeal to the Court of Appeals. (See Leave Application). His claims regarding perjured testimony, the failure of the court to respond properly to a jury note, and the closure of the courtroom were all also raised in the Appellate Division (see Pet'r's Pro Se Br. at 8-14, 20-28, 28-29 (invoking due-process right)) and in his leave application. (See Leave Application).

In addition, petitioner alleged several of his claims in clear constitutional terms. For his legal-sufficiency claim and his evidentiary claim regarding the $146, he invoked the Fourteenth Amendment. In his courtroom-closure claim, he invoked a due-process right and referred to Supreme Court caselaw on the Sixth Amendment. Thus these claims were fairly presented to the highest available court in such a manner as to alert the state court as to the constitutional nature of the claim, and they are exhausted.

For his perjured-testimony and jury-note claims, petitioner did not specifically invoke a federal constitutional provision or federal caselaw. This does not mean that they do not raise a federal constitutional claim, because, as noted, there are other ways in which a petitioner may alert the court to the federal nature of a claim. See Ramirez, 280 F.3d at 95. Thus we cannot say that, based on petitioner's failure to cite federal caselaw or invoke a federal constitutional provision, these claims are unexhausted. However, under 28 U.S.C. § 2254(b)(2), a habeas petition "may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State," and in this case we find no need to undertake the complex analysis of whether petitioner has in some way alerted the state court to his constitutional claims. See, e.g., Greiner v. Wells, 417 F.3d 305, 317 n.14 (2d Cir. 2005) (noting that, based on the application of § 2254(b)(2), the court need not consider the issue of exhaustion). Rather, for reasons stated below, we conclude that both of these claims are without merit.

With respect to petitioner's claim that Officers Brieke and Fleming testified under different shield numbers before the grand jury and at trial without clarifying any change, petitioner previously raised either the same claim or a similar claim in the Appellate Division, albeit within his courtroom-closure/Confrontation Clause claim. There, he alleged that an officer "was allowed to give sworn testimony under a different ba [d] ge number than he had used earlier in the case, without the people ever having advised the court of this fact." (Pet'r's Pro Se Br. at 29). However, it is not clear from petitioner's assertions whether in that brief he is only discussing the two undercover officers, or other, named officers as well. In his Traverse, submitted in response to respondent's opposition to his petition, petitioner states that "one of the undercover officers . . . was allowed to testify under a badge number that was different from the badge number that he was using previously in this case, without the People ever having brought this fact to the Court [or] the Petitioner's attention." (Traverse ¶ 61).

Because petitioner in his current petition specifically names only Officers Brieke and Fleming, we are not certain that petitioner has in fact previously raised this claim. Given this uncertainty, we do not, as respondent urges, find the claim unexhausted, but rather turn again to 28 U.S.C. § 2254(b)(2), under which we may deny the petition on the merits regardless of whether a petitioner has exhausted his state-court remedies. For reasons stated below, we find petitioner's claim to be meritless.

Petitioner's Fourth Amendment claim must be analyzed under the standard of Stone v. Powell, and we therefore address it separately, but we also note that it is exhausted. Petitioner raised this claim in constitutional terms in the Appellate Division (see Pet'r's Pro Se Br. at 14-19) and in his application for leave to appeal to the Court of Appeals. (See Leave Application at 2). The claim is therefore exhausted.

Having found that petitioner's claims are either exhausted or appropriately addressed pursuant to 28 U.S.C. § 2254(b)(2), we turn to the issue of procedural bar.

III. Procedural Bar

Respondent argues that three of petitioner's claims are subject to procedural-bar rules. First, he asserts that petitioner's claim regarding Officers Brieke and Fleming testifying under different shield numbers is unexhausted because petitioner did not raise it in his direct appeal, and since he cannot now return to state court to raise it, it should be deemed exhausted but procedurally barred. (Resp't's Opp'n at 57). In addition, he argues that Cotto's legal-sufficiency claim is procedurally barred because, as the Appellate Division ruled, he failed to preserve the claim for appellate review. (Id. at 21). Lastly, he argues that petitioner's courtroom-closure claim is procedurally barred because the Appellate Division found it to be unpreserved, as petitioner only stated his opposition to the courtroom's closure at trial in a "perfunctory" manner. (Id. at 43 (quoting Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 329)).

Cotto argues that his claims should not be subject to procedural bar, as he "perfectly complied with the requirements of [New York Criminal Procedural Law] § 470.05(2)", and so the trial court "had the opportunity to consider [] the claims and objections raised, but refused to do so." (Traverse ¶ 81). Furthermore, petitioner asserts that his claims should not be barred because "Respondent caused the Appellate Division and the trial [c]ourt to have erroneously invoked the Contemporaneous [] Objection Rule as an adequate and independent ground in denying federal review [of] the Petitioner's claims" and that therefore, "for all practical purposes, the Petitioner has met the preservation requirement". (Id. ¶ 83). He asserts that protests were in fact made by the parties, as well as rulings by the trial court, on issues that were raised on appeal. (Id.). Cotto therefore urges the court to "disturb the state appellate court's ruling" that petitioner's trial objections were insufficient to preserve his claims. (Id. ¶ 85).

A. Legal Standard

If the highest state court to address a federal-law claim disposes of it on a "state law ground that is "independent of the federal question and adequate to support the judgment'", a federal habeas court may not review that claim unless the petitioner demonstrates both cause for his default and prejudice or else establishes that a failure to address the claim would constitute a fundamental miscarriage of justice. See, e.g., Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)); see also Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006) (citing Harris v. Reed, 489 U.S. 255, 260 (1989)). A state procedural rule can qualify as an adequate and independent state-law ground. See Harris, 489 U.S. at 260-61.

To be independent, a state-law holding must rest on state law that is not "'interwoven with the federal law.'" Jimenez, 458 F.3d at 137 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Since it can be "'difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference,' . . . reliance on state law must be 'clear from the face of the opinion.'" Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (quoting Coleman, 501 U.S. at 732, 735). When determining whether we may entertain a claim, we "apply a presumption against finding a state procedural bar and 'ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'" Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)).

In this regard, even if the appellate court rejects the claim as unpreserved and then, in the alternative, notes that if it had reviewed the merits it would have rejected the claim, the ruling is deemed, for this purpose, to have rested on the state-law procedural ground. See Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) ("Even where the state court has ruled on the merits of a federal claim 'in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default." (citation omitted)); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005); cf., e.g., Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (state court's "contingent observation" is not an "adjudication on the merits" for purposes of habeas review).

As for the requirement of adequacy, the state procedural rule must be "'firmly established and regularly followed by the state in question' in the specific circumstances presented in the instant case." Murden, 497 F.3d at 192 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)); see Lee v. Kemna, 534 U.S. 362, 376 (2002); Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (citing Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999)). However, principles of comity caution against categorizing a state procedural rule as inadequate "lightly or without clear support in state law." Garcia, 188 F.3d at 77 (internal quotation marks omitted).

Once respondent has demonstrated that the state court relied on an independent and adequate ground, it is incumbent upon petitioner to meet one of the two recognized exceptions noted above. Under procedural-bar rules, we may not review the merits of the claim unless petitioner can overcome his procedural default by either "demonstrat[ing] cause for the default and actual prejudice as a result of the alleged violation of federal law, or [establishing] . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Fama, 235 F.3d at 809.

To demonstrate cause, petitioner must establish that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," for example, by showing that the factual or legal basis for a claim was not reasonably available to counsel or that "some interference by officials . . . made compliance impracticable." Murray v. Carrier, 477 U.S. 478, 488 (1986) (citing Reed v. Ross, 468 U.S. 1, 16 (1984), and quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). A petitioner may also satisfy the cause requirement by demonstrating that the failure of his attorney to comply with state procedural rules denied him constitutionally adequate representation. See Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999). He cannot invoke this ground, however, unless he first asserted an equivalent Sixth Amendment claim in state court and exhausted his state-court remedies with respect to that claim. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). In any event, it bears emphasis that "[a] defense counsel's ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when the counsel's ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel." Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001).

The second exception -- that failure to review petitioner's claims would result in a fundamental miscarriage of justice -- is reserved for the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496; accord Sawyer v. Whitley, 505 U.S. 333, 339 n.6 (1992). To establish "actual innocence", petitioner must demonstrate that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)) (internal quotation marks omitted). In this context, "actual innocence means factual innocence, not mere legal insufficiency." Id. at 623. Furthermore, the petitioner must support his claim "'with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial.'" Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (quoting Schlup, 513 U.S. at 324); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).

B. Analysis

1. Testifying under Different Shield Numbers

We first address the argument by respondent that petitioner's claim that Officers Briecke and Fleming testified under differing shield numbers is procedurally barred. Respondent argues that this claim is unexhausted, and that because petitioner cannot now go back to state court and raise it there, the claim should be deemed exhausted but procedurally barred. (Resp't's Opp'n at 57-58). As noted, it is not clear whether or not petitioner did previously assert this claim, as he included similar allegations in his prior appeal papers, but without specifically mentioning either Briecke or Fleming. Because we may reach the merits of this claims regardless of the issue of exhaustion, we decline to find petitioner's claim procedurally barred.

2. The Legal-Sufficiency Claim

Petitioner's legal-sufficiency claim is procedurally barred. The Appellate Division -- the highest state court to address Cotto's claims -- rejected Cotto's legal-sufficiency claim on an adequate and independent state-law ground. Specifically, the court held that "[Cotto's] argument that the evidence only established that he sold drugs to defendant Acevedo, who then made a separate sale to an undercover officer, is unpreserved", and the court declined to review it "in the interest of justice." Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330. This holding is based on New York's "contemporaneous objection" rule, which states that:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

N.Y. Crim. Proc. Law § 470.05(2).

The contemporaneous-objection rule is purely a matter of state law, and is thus an independent state-law ground. See, e.g., Velazquez v. Murray, 2002 WL 1788022, *9-10 (S.D.N.Y. Aug. 2, 2002) (citing, inter alia, Garcia, 188 F.3d at 79) ("[W]e have observed and deferred to New York's consistent application of its contemporaneous objection rules."); see also Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir. 1996) (the Appellate Division's finding that petitioner's claim was not preserved constituted an adequate and independent state-law ground for rejection of his claim). The Appellate Division in this case explicitly relied on the state-law procedural rule, and only "[a]s an alternative holding" rejected petitioner's claims on the merits. See Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330.

The cited rule is also adequate to sustain the state court's conclusion that Cotto did not preserve his ground for appeal. The contemporaneous-objection rule is "firmly established and regularly followed by state courts." Breland v. Artus, 2006 WL 845474, *7 (E.D.N.Y. Mar. 29, 2006) (citing Garcia, 188 F.3d at 79). More specifically, the rule has been applied repeatedly by New York courts to bar claims by defendants who did not raise objections to the sufficiency of the evidence at trial. See People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 646 (2001) ("[A]n insufficiency argument may not be addressed unless it has been properly preserved for review during trial."); see, e.g., People v. Carncross, 14 N.Y.3d 319, 324-25, 901 N.Y.S.2d 112, 114-15 (2010) (finding defendant's claim that the evidence was legally insufficient to prove that he acted with the requisite mens rea to be unpreserved because he failed to argue it with particularity in his motion at trial); People v. Inesti, 95 A.D.3d 690, 691, 944 N.Y.S.2d 148, 149 (1st Dep't 2012) (finding defendant's challenges to the sufficiency of the evidence to be unpreserved). Courts have emphasized that in order to preserve a legal-sufficiency claim, the argument must be raised at trial and must be "specifically directed" toward the particular alleged error. See People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 399 (2008); People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995).

Furthermore, New York's contemporaneous-objection rule does not run afoul of the three criteria, announced in Lee v. Kemna, 534 U.S. 362 (2002), for determining when state procedural rules are inadequate to block federal review. The first consideration is whether perfect compliance with the procedural rule -- in Lee, a state rule requiring written, instead of oral, continuance motions -- would have affected the trial court's decision and whether the court actually relied on the procedural violation. Id. at 372, 381; accord Cotto, 331 F.3d at 240. The second is whether published caselaw directs perfect compliance with the law in the "unique circumstances" presented by the case. Lee, 534 U.S. at 382. In Lee, these circumstances involved the "sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial's last day." Id. The third consideration asks whether the defendant "substantially complied" with the procedural rule, given the "realities of trial." Id.; accord Cotto, 331 F.3d at 240.

The application of the contemporaneous-objection rule in this case satisfies Lee's criteria. Petitioner made a pro forma motion for dismissal at the close of the evidence, urging that, based on the fact that no narcotics had been recovered from Cotto, the State had failed to make out a prima facie case against him with respect to the possession-with-intent-to-sell count. (Tr. II 216-17). The court denied the motion based on the acting-in-concert theory (Tr. II 219), and counsel made no other objections. Had petitioner raised the specific objections that he raises here -- objections that focus on the inconsistent testimony of the undercover officers -- the trial court could have considered and ruled upon those objections.⁹ Moreover, the failure to preserve his claim was specifically relied upon by the Appellate Division in rejecting his claim. As noted above, it is well settled that New York law requires compliance with the contemporaneous-objection rule in challenging the sufficiency of the evidence, including that the challenge be specifically directed at the alleged error. Petitioner has not offered any excuse for his failure to comply with the rule in this case. Lastly, Cotto never raised during trial the claim he now brings -- that because the officers' testimony was inconsistent, the evidence was insufficient to establish anything beyond that he "may have participated in the sale of drugs to his codefendant". (Pet. 5). Therefore we find that Cotto did not substantially comply with the contemporaneous-objection rule and his legal-sufficiency claim is procedurally barred.

9 We acknowledge that petitioner in his counsel's Appellate Division brief did note that no narcotics were found on his person (Pet'r's App. Div. Br. at 21), but his primary claim both there and in this court is that "irreconcilably and contradictory testimony and speculative assumptions" were insufficient to establish that Cotto acted in concert with Acevedo in the sale or possession of the drugs (see Pet'r's App. Div. Br. at 14; Pet. 5), an argument not raised at trial.

Furthermore, petitioner fails to meet the standards required by the cause-and-prejudice exception to overcome the procedural bar. He fails to establish any cause for his failure to articulate at trial the legal-sufficiency argument he pressed on appeal. He argues that the procedural bar should not apply, but gives no explanation for any failure to make the specific objections required. Furthermore, he makes no allegation that his counsel was ineffective and never pursued such a Sixth Amendment claim in state court. Moreover, as we also find petitioner's claim to be meritless, see infra pp. 58-68, Cotto cannot show that he was prejudiced by the court's rulings.

Petitioner is also unable to show that a failure here to address his legal-sufficiency claim would result in a fundamental miscarriage of justice. The evidence offered at petitioner's trial was ample and does not suggest innocence. Petitioner was observed handing an object to his codefendant Acevedo through the open window of a van. Acevedo immediately sold a part of that package, which turned out to be heroin, to UC 5550. In addition, before the transaction took place, Cotto represented to UC 5550 that he could supply him with drugs. Furthermore, Cotto has offered no new proof that he is in fact innocent. He therefore fails to satisfy the demanding standard required to show that a failure to address his legal-sufficiency claim would result in a fundamental miscarriage of justice.

3. Courtroom-Closure/Officer-Anonymity Claim

Petitioner's courtroom-closure claim is also procedurally barred. In order to raise an objection to courtroom closure, the challenge should be specific and not perfunctory. See Brown v. Kuhlmann, 142 F.3d 529, 542 (2d Cir. 1998) ("Just as reversal without prejudice serves no purpose where the closure is inadvertent, it likewise serves little purpose when the defendant makes no more than a perfunctory effort to prevent closure. On the contrary . . . [the public interest in fair trials] is best served by requiring a defendant to press his argument in a forceful and persuasive way rather than by awarding a windfall to a defendant whose only concern may have been to preserve the record for an appeal from an error that caused him no harm."). Furthermore, as with legal-sufficiency claims, New York's contemporaneous-objection rule has been applied to bar claims where defendants failed to object to the closure of a courtroom for the purpose of undercover officers to testify anonymously, see, e.g., People v. Chestnut, 83 A.D.3d 441, 442-43, 920 N.Y.S.2d 344, 346 (1st Dep't 2011) (finding defendant's argument that the court improperly permitted an undercover officer to testify anonymously unpreserved, as a Confrontation Clause argument "requires a specific contemporaneous objection"); People v. Vincente, 50 A.D.3d 387, 388, 858 N.Y.S.2d 7, 8 (1st Dep't 2008) (finding defendant failed to preserve any objection to the closure of the courtroom or to preserve his argument that an undercover officer should not have been permitted to testify anonymously under his shield number); People v. Lanhorn, 283 A.D.2d 254, 254, 724 N.Y.S.2d 608, 608 (1st Dep't 2001) (finding that after a Hinton hearing, defendant "clearly acquiesced in the court's determination to close the courtroom during the uncover officers' testimony" and that therefore his challenge to the ruling was unpreserved); People v. James, 47 A.D.3d 947, 948, 849 N.Y.S.2d 670, 671 (2d Dep't 2008) (Hinton hearing was held, but the court found defendant's courtroom-closure claim to be unpreserved). But see People v. Sanabria, 301 A.D.2d 307, 311 750 N.Y.S.2d 603, 608 (1st Dep't 2002) (finding courtroom-closure claim preserved where defense counsel made an "explicit objection" to closure and insisted on a Hinton hearing).

The prosecution in this case asked for a Hinton hearing (Tr. I 34) and requested both that the courtroom close during the testimony of the undercover officers and that they also be allowed to testify under their shield numbers. (Tr. I 161). At the Hinton hearing, Cotto's attorney did say that he thought that courtroom closure was unnecessary with respect to his client, because Cotto had identified UC 2772 as an undercover officer at the time of the events in the case, and yet no threats had been made against the officer as a result. He nonetheless stated that if the court was inclined to close the courtroom, he "[didn't] really have much issue with that." (Tr. I 163). He only requested that should the courtroom close, Cotto's girlfriend still be permitted to attend (Tr. I 163), a request the court granted. (Tr. I 164-65). He expressed no objection to the request that the officers be permitted to testify under their shield numbers.

The Appellate Division found that Cotto's courtroom-closure/anonymity claim was unpreserved because at the Hinton hearing petitioner expressed "at most, a perfunctory opposition to concealment of the officers' names." Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 329. Furthermore, the panel noted that the defendants did not assert "any need to know the officers' names for purposes of impeachment or investigation" and thus their constitutional arguments were unpreserved. Id.

The application of the contemporaneous-objection rule here satisfies Lee's criteria. Had petitioner raised more than the "perfunctory" opposition described above, the trial court could have considered and rule upon those objections. The Appellate Division relied on this failure to make specific objections in holding that Cotto's courtroom-closure and anonymity claims were unpreserved. Furthermore, as noted above, it is well settled that New York law requires compliance with the contemporaneous-objection rule in challenging the court's decision to close the courtroom or permit undercover officers to testify anonymously. Petitioner has not offered any excuse for his failure to comply with the rule in this case. Lastly, save for the "perfunctory" objection to the anonymity of the undercover officers, Cotto never raised during trial the claim he now brings -- that he was denied due process and the right to confront witnesses against him by the court's decision to close the courtroom and permit the two undercover officers to testify under their shield numbers. We thus find that Cotto did not substantially comply with the contemporaneous-objection rule. The Appellate Division's decision is thus supported by an adequate and independent state-law ground, and this claim is procedurally barred.

As with his legal-sufficiency claim, petitioner here also fails to establish any cause for his failure to object to the closure of the courtroom and the anonymity of the undercover officers. Furthermore he makes no allegation that his counsel was ineffective and never pursued such a Sixth Amendment claim in state court. In addition, as we find petitioner's claims to be meritless, see infra pp. 81-95, Cotto cannot show that he was prejudiced by the court's rulings.

Petitioner is similarly unable to show that a failure to address his courtroom-closure and anonymity claims would result in a fundamental miscarriage of justice. The evidence offered at petitioner's trial was ample and does not suggest innocence, and Cotto has offered no new proof that he is in fact innocent. He therefore fails to satisfy the demanding standard required to show that a failure to address his courtroom-closure and anonymity claims would result in a fundamental miscarriage of justice.

Petitioner thus fails to overcome the procedural bar for either his legal-sufficiency claim or his courtroom-closure and anonymity claims and they are barred from review. In the alternative, for reasons set forth below, we also find them to be meritless.

IV. Merits

Having found two of petitioner's claims to be procedurally barred, and the remainder to be either exhausted or appropriately addressed on the merits pursuant to 28 U.S.C. § 2254(b)(2), we turn to a merits-based analysis of petitioner's claims. We begin by discussing the applicable standard of review and then address petitioner's Fourth Amendment claim, which we find is barred from review. We then address the remainder of petitioner's claims in the order in which he presents them. We find them all to be meritless.

A. Legal Standard

Under AEDPA, if, in the state court proceeding, the state court adjudicated a petitioner's claim "on the merits", federal habeas review considers only whether the state court ruling was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States", or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding". 28 U.S.C. § 2254(d). If the decision was not "on the merits", review is de novo. The standard of review for a habeas petitioner's claims therefore depends on whether the state court adjudicated the claim "on the merits" in the state court proceeding. An "adjudication on the merits" is one that "(1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312 (internal quotation marks omitted). Furthermore, the decision "need not mention a particular argument or explain the reasons for rejecting" the claim. See Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004) (citation omitted).

Even when a court rules in the alternative on the merits, such a holding constitutes an "adjudication on the merits" for purposes of section 2254(d). See, e.g., Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004) (per curiam) (applying deferential AEDPA review when the Appellate Division found petitioner's claim to be unpreserved and "in any event, without merit"); Brown v. Laclaire, 2010 WL 1221878, *8 (S.D.N.Y. Mar. 29, 2010) ("[T]he fact that a state court rules in the alternative on the merits of a claim does not deprive that ruling of AEDPA's deferential standard of review."). On the other hand, where the state court decision makes a contingent observation that it would reject the claim, such a finding is not "on the merits" for purposes of federal habeas review. See, e.g., Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (applying de novo review where the state court decision stated that "if the merits were reached, the result would be the same" (emphasis in original)).

B. Fourth Amendment Claim

We turn first to petitioner's Fourth Amendment claim. Petitioner asserts that Detective Briecke did not have probable cause to arrest and search him based on the information relayed in UC 2772's radio transmissions. (Pet'r's Pro Se Br. at 14-19). Cotto's Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976).

In Cotto's pro se supplemental brief to the Appellate Division, he asserts that the arresting detective did not have the proper confirmatory identification of Cotto to have probable cause to arrest him. (Pet'r's Pro Se Br. at 14). He argues that only UC 5550 knew the circumstances, if any, of his interaction with Cotto and that UC 2772 did not have probable cause to transmit confirmatory identification of him. (Id. at 14-15, 18).

Fourth Amendment claims are not ordinarily subject to review in federal habeas court proceedings. See, e.g., Holmes v. Scully, 706 F. Supp. 195, 200-01 (E.D.N.Y. 1989). Under Stone v. Powell, a federal habeas court may not review the merits of a Fourth Amendment claim if the state has provided an adequate method for litigating such claims. See 428 U.S. at 489-95; accord, e.g., Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986); see also Reddick v. Yelich, 2011 WL 7004396, *4 (Aug. 3, 2011), adopted, 2012 WL 94562 (S.D.N.Y. Jan. 12, 2012). The only exceptions to this rule are in the rare cases in which a petitioner shows that either "(1) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations, or (2) the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an 'unconscionable breakdown' in the underlying process." Reddick, 2011 WL 7004396, at *4 (citing, inter alia, Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)). Petitioner cannot meet the requirements for either exception here.

The Second Circuit has long held that Article 710 of the New York Criminal Procedure Law provides a facially adequate mechanism for adjudicating Fourth Amendment claims in criminal proceedings. See, e.g., Capellan, 975 F.2d at 70 n.1; Daily v. New York, 388 F. Supp.2d 238, 249 (S.D.N.Y. 2005) ("The State of New York clearly has provided defendants . . . with the necessary corrective procedure through Section 710 of the New York Criminal Procedure Law."); see also Singh v. Miller, 104 Fed. App'x 770, 772 (2d Cir. 2004); McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983); Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977); Baker v. Bennett, 235 F. Supp. 2d 298, 307 (S.D.N.Y. 2002); Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987). Here, Cotto took advantage of the state-provided opportunity by moving for, and receiving, a Mapp hearing to establish whether the MNN squad had probable cause to arrest him. The trial judge rendered a decision with adequate findings and the Appellate Division reviewed that decision on appeal. Thus, Cotto cannot satisfy the first prong of the Stone v. Powell exception. Cf. Ramirez v. Phillips, 2007 WL 3195158, *7 (S.D.N.Y. Oct. 30, 2007); Bradley v. LaClair, 599 F. Supp.2d 395, 409 (W.D.N.Y. 2009) (describing adequacy of Article 710 and noting that the defendant "took advantage of the opportunity to challenge the legality of his arrest, asserting the probable cause claim at the pre-trial suppression hearing").

Petitioner also cannot demonstrate an "unconscionable breakdown" in state procedure in his case. According to the Second Circuit, the "unconscionable breakdown" exception is extremely narrow, reserved for situations in which the state's corrective mechanism was "claimed to be meaningless [because] the totality of state procedures . . . did not provide rational conditions for inquiry into federal-law . . . questions." Capellan, 975 F.2d at 70 (citation omitted). To meet this stringent standard, the violation of due process must be extreme. Thus, an unconscionable breakdown of the underlying process:

is defined to encompass substantial failures in the process, such as the 'ambush[ing of the defendant] by unanticipated and unforeseeable application of a state court procedural rule at a time when it can no longer be complied with,' . . . or still more extreme circumstances, including bribery of a judge, use of torture, or use of perjured testimony.

Poole v. New York, 2009 WL 3009356, *6 (S.D.N.Y. Sept. 21, 2009) (citation omitted); see also Capellan, 975 F.2d at 70 (referring to "mob intimidation of the jury" as a circumstance that could be considered an unconscionable breakdown of the state inquiry process). Thus, to qualify for federal habeas review, an unconscionable breakdown in process must be one that "calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society." Cappiello v. Hoke, 698 F. Supp. 1042, 1050 (E.D.N.Y. 1988), aff'd, 852 F.2d 59 (2d Cir. 1988).

Given this standard, Cotto cannot demonstrate an unconscionable breakdown of available procedures. In substance, he only reiterates his illegal-search-and-seizure arguments, his belief that the police officers lacked probable cause to arrest him, and his belief that the trial court's refusal to suppress the $146 was erroneous. None of these arguments demonstrates an "unconscionable breakdown" of process. See, e.g., White v. West, 2010 WL 5300526, *13 (E.D.N.Y. Dec. 6, 2010) ("An unconscionable breakdown is not based on potentially erroneous analysis . . . ."); see also Mercado v. Lemke, 2011 WL 5223604, *15 (S.D.N.Y. July 25, 2011) (citing Capellan, 975 F.2d at 70 ("where state courts have corrective appellate or collateral procedure in place, judicial error does not constitute an unconscionable breakdown")).

The trial court afforded Cotto a full Mapp hearing on whether probable cause existed for Detective Briecke to arrest Cotto and on whether the $146 was admissible. As evidenced by her many clarifying questions during witness testimony, Justice Uviller carefully considered the facts presented in the case and heard the relevant arguments presented by the prosecution, Acevedo's counsel, and Cotto's counsel. After evaluating the evidence presented to the court, she delivered a detailed explanation of her ruling. (Mapp Tr. 135-140). In finding that there was probable cause to arrest Cotto, Justice Uviller considered the experience level of the arresting narcotics detectives, the narcotics-prone reputation of the neighborhood, the radio transmissions describing both Cotto and Acevedo and the positive buy, and Detective Briecke's testimony that the ghost officer had specifically identified Eddie Cotto as an individual involved in the sale, and that Detective Briecke knew who Eddie Cotto was and thus identified him easily in the van. (Mapp Tr. 135-40). Based on these findings, Justice Uviller concluded that there was probable cause to arrest Cotto and that the search was incident to his lawful arrest. (Mapp Tr. 138-39).

Cotto also had the opportunity, of which he availed himself, to seek further review of the trial court's finding of probable cause and subsequent refusal to suppress the physical evidence. In his pro se supplemental brief, Cotto raised the probable cause challenge before the Appellate Division. (Pet'r's Pro Se Br. at 14-19). The First Department considered the claim before rejecting it as meritless. Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330. Petitioner also raised his Fourth Amendment claim in his pro se application for leave to appeal to the Court of Appeals, which was denied. (See Leave Application; Certificate Denying Leave). Thus, petitioner made full use of the statutory mechanism provided to him to litigate his Fourth Amendment claim.

The state court's decision that there was probable cause to arrest Cotto and its refusal to suppress the money evidence after a Mapp hearing is not an unconscionable breakdown just because probable cause was found and the suppression motion was denied. See, e.g., Capellan, 975 F.2d at 72 ("[A] mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process."). Even where a petitioner has been denied a hearing courts have not found an unconscionable breakdown. See, e.g., Harrison v. Smith, 2011 WL 3370391, *10 (S.D.N.Y. July 14, 2011) (denial of motions to suppress without a hearing not an "unconscionable breakdown"). Petitioner therefore cannot meet the requirement of the second exception to Stone's bar.

In sum, Cotto was afforded the opportunity to litigate his Fourth Amendment claim and he fully capitalized on that opportunity. Accordingly, this claim is not subject to reexamination on his habeas petition.

C. The Legal-Sufficiency Claim

Petitioner asserts that the evidence at trial "was insufficient to show that petitioner sold a controlled substance to an undercover officer." (Pet. 5). Specifically, he argues that the evidence "did not establish beyond a reasonable doubt that petitioner acted in concert in the sale or possession of a controlled substance" and that at the most, all it showed was that he "may have participated in the sale of drugs to his codefendant, but not in the charged sale to police." (Id.). The Appellate Division found this claim to be unpreserved and "[a]s an alternative holding", also rejected it "on the merits". Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 329. Since the decision clearly states that the rejection on the merits was an alternative holding, we review the Appellate Division's determination of that claim under the standard of review dictated by AEDPA. We find this claim to be meritless.

In the face of a challenge to the sufficiency of the evidence, a federal habeas court may grant relief only if, after viewing the evidence in the light most favorable to the prosecution, "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam) ("A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury."). In addressing such a claim, the habeas court's review is "sharply limited". Wright v. West, 505 U.S. 277, 296 (1992). As the Supreme Court has repeatedly emphasized, "[f]ederal courts are not forums in which to relitigate state trials," Herrera v. Collins, 506 U.S. 390, 401 (1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)), and the habeas court consequently "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Id. at 402 (emphasis in original). Moreover, a habeas court faced with an evidentiary record "that supports conflicting inferences must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright, 505 U.S. at 296-97 (quoting Jackson, 443 U.S. at 326). Credibility determinations and assessments regarding the weight of the evidence are made by the trier of fact, not a federal habeas court. See, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); Archer v. Fischer, 2009 WL 1011591, *9 (E.D.N.Y. Apr. 13, 2009). "[T]hese principles apply whether the evidence being received is direct or circumstantial," United States v. Nelson, 277 F.3d 164, 195 (2d Cir. 2002) (quoting United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998)), and indeed it is well established that guilt beyond a reasonable doubt may be determined based entirely on circumstantial evidence. See, e.g., Maldonado, 86 F.3d at 35.

The Supreme Court recently emphasized that while the habeas court must look to state law for the substantive elements of a crime, "the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Johnson, 132 S.Ct. at 2064 (holding, with respect to a legal-sufficiency claim, that it was error for the Court of Appeals to have looked to Pennsylvania state law in determining what distinguished a "reasoned inference from "mere speculation'"). A habeas court "may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because [it] disagrees with the state court." Id. at 2062 (quoting Cavazos v. Smith, 565 U.S. 1, ___, 132 S.Ct. 2, 4 (2011) (per curiam)). Indeed, the analysis of what inferences a jury may draw is guided first and foremost by Jackson, not by state law, which under Johnson may be essentially "irrelevant". See Santone v. Fischer, ___ F.3d ___, 2012 WL 3326419, * 19 (2d Cir. Aug. 7, 2012) (Pooler, J., concurring) (after discussing New York State law, observing that the state court was wrong in upholding the jury's decision, but that "its determination . . did not fall below the threshold of bare rationality"). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors "draw reasonable inferences from basic facts to ultimate facts.'" Johnson, 132 S.Ct. at 2064 (quoting Jackson, 443 U.S. at 319); accord Santone, 2012 WL 3326419, at *8. Accordingly, review of a jury's decision does not permit "fine- grained factual parsing" but rather asks for an ultimate determination of whether the jury's finding "was so insupportable as to fall below the threshold of bare rationality." Johnson, 132 S.Ct. at 2064, 2065.

Under this standard it is clear that the trial record contained sufficient evidence to support Cotto's convictions of both Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree. We begin by briefly reviewing the elements of the crimes as defined by state law. See Johnson, 132 S.Ct. at 2064; Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) ("A federal court must look to state law to determine the elements of the crime.").

New York Penal Law section 220.39 provides that a person is guilty of Criminal Sale of a Controlled Substance in the Third Degree when he "knowingly and unlawfully sells . . . a narcotic drug." N.Y. Penal Law § 220.39(1). Under New York law, "to sell" is defined as to "sell, exchange, give or dispose of to another, or to offer or agree to do the same", N.Y. Penal Law § 220.00(1), and heroin is classified as a controlled substance. See N.Y. Pub. Health Law § 3306, Schedule I(c)(11). Under section 220.16 of the Penal Law, a person is guilty of Criminal Possession of a Controlled Substance in the third degree if he "knowingly and unlawfully possesses . . . a narcotic drug with intent to sell it." N.Y. Penal Law § 220.16(1).

Under New York law, even if the defendant is not the principal guilty of the crime, he is equally liable for a crime if he solicits, requests, intentionally aids in, or commands the crime. See Butler v. Wilkerson, 1999 WL 167712, *3 (E.D.N.Y. Jan. 14, 1999); see also People v. Manini, 79 N.Y.2d 561, 569, 584 N.Y.S.2d 282, 285-86 (1992) (citing People v. Flayhart, 72 N.Y.2d 737, 741, 536 N.Y.S.2d 727, 727 (1988)). Thus, "to establish accomplice liability for criminal sale of a controlled substance in the third degree . . . the prosecution has the burden of proving that the defendant acted in concert with another who actually carried out the sale." Torres v. Leonardo, 2000 WL 1459816, *2 (S.D.N.Y. Sept. 29, 2000). The prosecution must demonstrate that the petitioner "shared the intent to complete the crime and aided in its completion." Id. (citing People v. Kaplan, 76 N.Y.2d 140, 146-47, 556 N.Y.S.2d 976, 979 (1990)).

The Appellate Division held that petitioner's legal-sufficiency claim was meritless because "[t]he chain of events, viewed as a whole, warrants the inference that Cotto and Acevedo had acted as a team to sell drugs to the officer, and that they jointly possessed, with intent to sell, the eight additional glassine envelopes of heroin recovered from Acevedo." Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330. We agree with the Appellate Division.

Viewing the evidence in the light most favorable to the prosecution, a rational fact-finder could have found Cotto guilty beyond a reasonable doubt on both counts. First, UC 5550 testified to interacting with Cotto, both in the vicinity of 1760 Lexington Avenue, where Cotto indicated that he would have drugs to sell in fifteen minutes, and on the street, where Cotto broke off a conversation after making eye contact with UC 5550 and gesturing to the pack around his waist. (Tr. I 340, 348). The two undercover officers then reported seeing Acevedo approach Cotto, who was sitting in the van, and seeing Cotto hand something through the window to Acevedo. Acevedo then shortly thereafter, and without interacting with anyone else, proceeded to sell the contents of that package, which turned out to be a bundle of heroin, to UC 5550. Furthermore, before approaching Cotto in the van, Acevedo had conveyed to UC 5550 that he was out of heroin and needed to "re-up", or replenish his stash. (Tr. I 353). Lastly, Cotto was found with $146 on his person when he was arrested.

Given this evidence, the jury's determination was certainly not irrational. With respect to the sale count, a reasonable juror could have found that Cotto shared in Acevedo's intent to sell the heroin to UC 5550 and thus was guilty on that count. While we recognize that we are not guided by state law with respect to examining the inference drawn by the jury, we do note that such evidence as was presented here has been held a sufficient basis for the jury to conclude that the a defendant had the requisite intent to aid in the sale of drugs for a theory of accomplice liability. See, e.g., People v. Roman, 83 N.Y.2d 866, 611 N.Y.S.2d 829 (1994) (an undercover officer approached a man to buy drugs; that man then walked to a car where the defendant handed several packets of heroin to him through the window, and the man then sold one to the undercover officer). With respect with the possession-with-intent-to-sell count, we similarly conclude that a reasonable juror could find that Cotto jointly possessed the heroin with Acevedo with the intent to sell it. The Appellate Division specifically noted in its decision with respect to the $146 that the money was "highly probative of Cotto's intent to sell the drugs recovered from Acevedo." Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330.

Petitioner argues that inconsistencies in the officers' testimony regarding the events of January 7, 2006 demonstrate the insufficiency of the evidence to convict him beyond a reasonable doubt. (Pet'r App. Div. Br. at 14). Specifically, he asserts that: (1) UC 2772 and UC 5550 proffered irreconcilable testimony on whether UC 5550 actually entered the lobby of 1760 Lexington Avenue on the day of the "buy and bust" operation and thus whether UC 5550 interacted with Cotto inside the building; (2) UC 2772 and UC 5550 disagreed in their testimony on when, and under what circumstances, Cotto entered the van; and (3) UC 55 50 contradicted his own grand jury testimony at trial by changing his account of his actions after Cotto entered the van. (Pet'r's App. Div. Br. at 15-18; see also Traverse ¶ 32).

Even though there were minor discrepancies in the officers' testimony, the officers were questioned about their responses, and UC 5550 clarified his answers. See supra pp. 13-14. Moreover, such discrepancies purely relate to witness credibility, which is a matter for the jury to weigh. See Roman v. Filion, 2005 WL 1383167, *32 (S.D.N.Y. June 10, 2005) (citing United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)). A federal habeas court is "'not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (quoting Anderson v. Senkowski, 1992 WL 225576, *3 (E.D.N.Y. Sept. 3, 1992)). A jury is entitled to credit the prosecution's witnesses despite any inconsistencies, and it is not the role of the habeas court to question a jury's credibility finding. See, e.g., Gutierrez v. Ricks, 2002 WL 31360417, *8 (S.D.N.Y. Oct. 21, 2002) (finding that a rational fact-finder could have found defendant guilty beyond a reasonable doubt despite inconsistencies in the prosecution witnesses' testimony) (citing cases).

Petitioner also argued in the Appellate Division that because no drugs were found on his person, there was no evidentiary basis to indicate that he intended to sell drugs to a police officer. (Pet'r's App. Div. Br. at 21). However, the witness testimony laid out above and the $146 found on Cotto certainly support a rational conclusion that Cotto was a participant in the sale of narcotics to the undercover officer. Cf. People v. Bligen, 35 A.D.3d 171, 171, 826 N.Y.S.2d 30, 30 (1st Dep't 2006); People v. Styles, 188 A.D.2d 568, *1-2, 591 N.Y.S.2d 366, 366 (2d Dep't 1992).

Construing all presented facts in favor of the prosecution, a rational jury could have found that Cotto acted in concert with Acevedo in selling heroin to UC 5550, and that he was guilty of both Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. Certainly, such findings were not "so insupportable as to fall below the threshold of bare rationality." Johnson, 132 S.Ct. at 2065. We therefore find that the Appellate Division's decision rejecting Cotto's legal-sufficiency claim was not contrary to, nor an unreasonable application of, Supreme Court precedent, nor an unreasonable determination of the facts in light of the evidence presented.

D. Admission of the $146 Found on Petitioner

Petitioner argues that the trial court's admission of the $146 found on his person when he was arrested was erroneous and constituted a denial of due process. He argues that he was denied a fair trial because there was no other proof that he participated in other drug sales or used the money in other drug sales. (Pet'r's App. Div. Br. at 22). He thus contends that the $146 was not relevant and did not speak to his intent to sell. (Id. at 22-24). He further asserts that the $146, consisting entirely of $1 and $5 bills, was prejudicial in that it suggested that he was involved in other criminal activity and had a propensity for crimes. (Id. at 22).

The Appellate Division found that the $146 found on Cotto was "highly probative of Cotto's intent to sell" and that to the extent Cotto was arguing that he did not act in concert with Acevedo and that the money was therefore irrelevant, "the jury could properly resolve that issue against Cotto." Acevedo, 62 A.D.3d at 465-66, 878 N.Y.S.2d at 330. This decision was clearly on the merits and therefore we review it under the deferential AEDPA standard. For the reasons that follow, we find this claim to be meritless.

State-court decisions concerning the admissibility of evidence generally do not pose issues of constitutional dimension, and, as such, are not ordinarily subject to federal habeas review. See, e.g., Estelle, 502 U.S. at 67-70; McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed. App'x 69, 72-73 (2d Cir. 2011); Delesline v. Conway, 755 F. Supp.2d 487, 498 (S.D.N.Y. 2010). However, a ruling that permits the introduction of evidence against a criminal defendant may violate the defendant's due-process rights if the decision is erroneous and the evidence is "so extremely unfair that its admission violates fundamental conceptions of justice." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)), abrogated on other grounds by Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716 (2012); accord Moses v. Ercole, 2011 WL 5222914, *3 (S.D.N.Y. Oct. 31, 2011). To demonstrate such a due-process violation, the petitioner must show that the evidence admitted was both unfairly prejudicial and "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan, 137 F.3d at 125 (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)).

The Appellate Division held that the trial court had properly denied Cotto's motion to exclude the $146, because the evidence was "highly probative of Cotto's intent to sell the drugs recovered from Acevedo." Acevedo, 62 A.D.3d at 465, 878 N.Y.S.2d at 330. The court also held that to the extent that Cotto was arguing that the evidence was irrelevant because he did not act in concert with Acevedo in possessing the drugs, such a question was for the jury, which could resolve it against Cotto. Id. at 465-66, 878 N.Y.S.2d at 330.

Evidence is relevant and admissible if it has "any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence." People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 86 (1988). Under New York law, evidence should be suppressed by the trial court only where "its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury." Scarola, 71 N.Y.2d at 777, 530 N.Y.S.2d at 86; see also People v. Massey, 49 A.D.3d 462, 462, 856 N.Y.S.2d 44, 46 (1st Dep't 2008); People v. Castaneda, 173 A.D.2d 349, 350, 569 N.Y.S.2d 719, 720 (1st Dep't 1991).

Moreover, New York courts have consistently held that currency recovered from a defendant at the time of his arrest is properly admissible as relevant to the defendant's intent to sell. See, e.g., People v. Bligen, 35 A.D.3d 171, 171, 826 N.Y.S.2d 30, 30 (1st Dep't 2006) ($187 recovered from defendant properly admitted as relevant to intent to sell); People v. Nieves, 290 A.D.2d 371, 371, 737 N.Y.S.2d 73, 74 (1st Dep't 2002) (non-prerecorded money recovered from defendant properly admitted as relevant to the charge of possession with intent to sell); People v. White, 257 A.D.2d 548, 548-49, 685 N.Y.S.2d 171, 171 (1st Dep't 1999) ($59 recovered from defendant admissible on the issue of defendant's intent to sell); People v. Summers, 176 A.D.2d 905, 906, 575 N.Y.S.2d 369, 370 (2d Dep't 1991) (money found on defendant upon a search after his arrest admissible to prove intent to sell). Furthermore, such evidence has been held admissible even in cases in which the money might be viewed as evidence of other, uncharged crimes. See, e.g., People v. Milom, 75 A.D.2d 68, 71-72, 428 N.Y.S.2d 678, 678 (1st Dep't 1980).

Prior to the start of trial, the court determined that the money evidence -- consisting of seventy-one $1 bills and fifteen $5 bills -- would support the possession-with-intent-to-sell charge (Tr. I 285-86), and that the case law was "clear" that "money recovered from the defendant can be used as part of the evidence in the case" with respect to a charge for intent to sell. (Tr. I 298). The court specified that the evidence was relevant only to the charge of criminal possession of a controlled substance in the third degree; the prosecution was not permitted to refer to it for the sale count. (Tr. I 297).

Given that the prosecution in this case was required to prove intent to sell for the possession charge, as well as the abundance of caselaw holding that money recovered from a defendant is admissible to show such intent, see, e.g., Bligen, 35 A.D.3d at 171, 826 N.Y.S.2d at 30; Nieves, 290 A.D.2d at 371, 737 N.Y.S.2d at 74; White, 257 A.D.2d at 548-49, 685 N.Y.S.2d at 171; Summers, 176 A.D.2d at 906, 575 N.Y.S.2d at 370, we cannot say that the trial court's ruling was erroneous under state law. Moreover, in view of the remaining evidence against Cotto, any prejudicial impact caused by the admission of the $146 was outweighed by its probative value.

Even if the court's ruling was in error, "[t]o warrant habeas relief, an evidentiary ruling must be more than merely erroneous; it must be sufficiently egregious to rise to the level of a constitutional error," Byrd v. Brown, 2010 WL 6764702, *10 (Oct. 25, 2010), adopted, 2011 WL 2162140 (S.D.N.Y. June 1, 2011), and there is a "substantial distinction between a merely erroneous ruling and one that impinges upon the due process rights of the accused." Id. Given the substantial evidence of Cotto's guilt presented at trial, including UC 5550's conversation with Cotto, Cotto's indication to UC 5550 that he had drugs in his fanny pack, Cotto's unwillingness to interact with UC 5550 in police presence, UC 5550's and UC 2772's observation of Acevedo receiving an object from Cotto, and Acevedo subsequently selling that object to UC 5550, there was compelling direct and circumstantial evidence of Cotto's guilt. Petitioner therefore cannot show that the $146 was the jury's basis for the conviction or that a reasonable doubt would have existed without it. Any error by the trial court in admitting that evidence did not rise to the level of a constitutional violation.

Furthermore, even assuming that any error was of constitutional dimension, a petitioner is entitled to relief only if the constitutional error at trial was not harmless. Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004). Thus, habeas relief is not warranted unless the error had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The burden is on the petitioner to establish "actual prejudice". Id.; see also Wood v. Ercole, 644 F.3d 83, 93 (2d Cir. 2011) ("'[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht . . . whether or not the state appellate court recognized the error and reviewed it for harmlessness.'" (quoting Fry v. Pliler, 551 U.S. 12, 121-22 (2007))).¹⁰ In making this assessment, we consider "the importance of the . . . wrongly admitted [evidence], and the overall strength of the prosecution's case," Wood, 644 F.3d at 94 (citation omitted) (alterations in original). As above, there was ample evidence against petitioner, even without the $146. Thus the prosecution's case was a strong one, and even if the admission of the $146 was in error, such error was harmless.

10 The Second Circuit has also recognized a standard of "harmless beyond a reasonable doubt". See Jean v. Greene, 2011 WL 6376718, *5 (S.D.N.Y. Dec. 15, 2011) (citing Perkins v. Herbert, 596 F.3d 161, 175 (2d Cir. 2010)). Under that approach -- derived from the test generally used on direct review under Chapman v. California, 386 U.S. 18 (1967) -- the reviewing court must "assess whether the state appellate court acted reasonably in determining that the error was 'harmless . . . beyond a reasonable doubt.'" Perkins, 596 F.3d at 175 (quoting Mitchell v. Esparza, 540 U.S. 12, 17-19 (2003) (per curiam)). Accordingly, "in reviewing a state court's harmless error determination, [a court] may only reverse determinations that are objectively unreasonable." See Zappulla v. New York, 391 F.3d 462, 467 (2d Cir. 2004) (citing Mitchell, 540 U.S. at 17-18). In Perkins, the Second Circuit declined to decide whether to apply both tests, or only the Brecht "actual prejudice" test, when the error is harmless under both tests, see Perkins, 596 F.3d at 176-77, but that question appears to have been resolved by Fry v. Pliler, which held, as articulated in Wood, that under § 2254 proceedings, the Brecht standard applies whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard laid out in Chapman. See Fry, 551 U.S. at 121-22.

For the foregoing reasons, we find that the Appellate Division's ruling was neither contrary to, nor an unreasonable application, of clearly established federal law as determined by the Supreme Court, nor an unreasonable application of the facts in light of the evidence presented in the state court.

E. The Perjured-Testimony Claim

Petitioner bases his next claim for relief on the allegation that inconsistencies in the undercover officers' testimony -- particularly that of UC 5550 between the grand jury and the trial -- constituted perjurious testimony. (Pet'r's Pro Se Br. at 8-14; Traverse ¶ 34). Respondent argues that petitioner's perjurious-testimony claim is vague, conclusory and meritless, as he does not specify the alleged perjury adequately and the alleged perjury was not of such a nature as to trigger a constitutional violation. (Resp't's Opp'n at 59-60, 63-65). The Appellate Division failed to address this claim, and we therefore review it de novo. See, e.g., Bonilla v. Giambruno, 2009 WL 2762266, *12-13 & n.6 (W.D.N.Y. Aug. 26, 2009) (addressing a perjured-testimony claim on a habeas petition de novo, because the state court failed to address it on the merits) (citing Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003)). For the reasons that follow, we find it to be meritless.

A conviction based on perjured testimony is analyzed under the Due Process Clause of the Fourteenth Amendment. Drake v. Portuondo, 321 F.3d 338, 344-45 (2d Cir. 2003). The Supreme Court has recognized that the use of a witness's false testimony can violate a defendant's due process rights. See Napue v. Illinois, 360 U.S. 264, 267-69 (1959). A petitioner's conviction must be set aside only if (1) the prosecution knew or should have known that the testimony was perjured and (2) there is a reasonable likelihood that the use of the perjured testimony affected the judgment of the jury. See Drake v. Portuondo, 553 F.3d 230, 241 (2d Cir. 2009); Smith v. Herbert, 275 F. Supp.2d 361, 367 (E.D.N.Y. 2003); see also Napue, 360 U.S. at 271. The "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.'" Giglio v. United States, 405 U.S. 150, 153 (1972); see also Pyle v. Kansas, 317 U.S. 213, 215-16 (1942); Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam).

"A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory." United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). "Simple inaccuracies or inconsistencies in testimony do not give rise to the level of perjury." Id.; see also Pucci v. Smith, 2010 WL 2869480, * 10 (W.D.N.Y. July 20, 2010) ("The mere existence of inconsistencies in witness testimony is insufficient to establish that perjury was committed."); cf. Bonilla, 2009 WL 2762266, at *12 ("An inconsistency between [an officer's] arrest report and [the officer's] testimony at trial does not render [the officer's] testimony perjurious."). Similarly, "[p]erjury is not demonstrated by showing that the testimony of a witness is inconsistent with the statements of another witness." United States v. Nazario, 2006 WL 3375391, *4 (S.D.N.Y. Nov. 17, 2006) (citing United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995)), aff'd, 374 Fed. App'x 63 (2d Cir. 2010).

Petitioner asserts that UC 5550's grand jury testimony and trial testimony were inconsistent and "mendacious." (Pet'r's Pro Se Br. at 8; see also Traverse ¶ 61 (alleging that one of the undercover officers testified falsely before the grand jury)). The crux of petitioner's argument lies in the inconsistent testimony given by UC 5550 as to whether, on the morning of January 7, 2006, he mingled with other users seeking to buy drugs and first interacted with Cotto in the lobby of 1760 Lexington Avenue or on the street outside of 1760 Lexington Avenue. (Pet'r's Pro Se Br. at 8). During his grand jury testimony and under direct examination at trial, UC 5550 testified that he was in the lobby of the building, whereas under cross-examination, it was clarified that he was in the vicinity of 1760 Lexington Avenue, "working" or mingling with the users. (Tr. I 398-402). Petitioner claims that UC 5550 "fabricated a scenario which did not occur and exacerbated it by testifying that during that scenario which never happened he had a conversation with the appellant which did not take place . . . ." (Pet'r's Pro Se Br. at 13). He also asserts that there was "no reason for UC #5550 to have approached [him]" and that he "did not have any conversation with UC #5550 regarding the possession or sale of any drugs, or any other matter." (Traverse ¶ 17). He asserts that the officers arrested him not because he had committed a crime, but rather because he had previously been arrested by MNN officers but the charges had been dismissed. (Id. ¶¶ 26-27). Thus, he concludes, they "had reason to fabricate false charges against him" in this case. (Id. ¶ 27).

Here, although there were inconsistencies in UC 5550's grand jury and trial testimony under direct examination, these inconsistencies were clarified by Cotto's counsel under cross-examination. Furthermore, the only testimony that petitioner takes issue with are these small discrepancies, which we cannot find rise to the level of perjury. To give rise to a valid claim, as noted, the false testimony must relate to a material matter and the falsity must be willful.

Even if the undercover officers' testimony was perjurious, the Second Circuit has determined that in order for the perjurious testimony to "trigger a due process violation[, it] must be of an extraordinary nature." Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988). "It must leave the court with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Id. In essence, in order for habeas relief to be granted, "perjured testimony must be shown to be 'material in the sense that its suppression undermines confidence in the outcome of the trial.'" Chamberlain v. Mantello, 954 F. Supp. 499, 507 (N.D.N.Y. 1997) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). The petitioner must demonstrate not only that the witness committed perjury, but also prove that the jury "'probably would have acquitted in the absence of the false testimony.'" United States v. McCourty, 562 F.3d 458, 476 (2d Cir. 2009) (quoting United States v. Sanchez, 969 F.2d 1409, 1413-14 (2d Cir. 1992)).

Here, the inconsistencies in UC 5550 and UC 2772's testimony between the grand jury and the trial are minor and hardly so extraordinary as to impact petitioner's conviction. Despite the inconsistencies, a clear picture of the circumstances of the drug sale is evident from the totality of the testimony offered. Further, the testimony that Acevedo picked up a package from the van in which Cotto sat and sold its contents -- determined to be heroin -- to UC 5550 is not inconsistent or arguably perjured. Thus, without the inconsistent testimony, the jury could still reasonably have convicted Cotto. The witnesses were effectively cross-examined by Cotto's counsel and discrepancies were clarified during the trial; as the trier of fact, the jury was free to make determinations as to the credibility of the witnesses. See, e.g., Herbert, 275 F. Supp.2d at 368. Lastly, petitioner has not shown that the prosecution knew or should have known of any alleged perjury.

In sum, we find no indication that either officer committed perjury, and there is no evidence demonstrating that any allegedly perjured testimony would have altered the jury's decision with respect to Cotto's guilt. Thus, even if the inconsistencies were considered perjured testimony, they were not of such an extraordinary nature as to warrant a violation of the petitioner's due-process rights. We therefore find petitioner's perjured-testimony claim to be meritless.

F. The Courtroom-Closure and Officer-Anonymity Claims

Petitioner contends that he was denied due process by the trial court's closure of the courtroom and by the court's ruling permitting the undercover officers to testify anonymously, in violation of his Sixth Amendment right to a public trial and to confront witnesses against him, respectively. (Pet'r's Pro Se Br. at 28-29; see also Acevedo App. Br. at 17-26; Traverse ¶ 60). Because the rights invoked are analyzed under different standards, we address them separately. We find both claims to be meritless.

We first note, however, that the Appellate Division found petitioner's courtroom closure and anonymity claims to be unpreserved, stating that the opposition at trial was only "perfunctory" and that petitioner had not asserted any need to know the officers' names. Acevdeo, 62 A.D.3d at 464-65, 878 N.Y.S.2d at 329. "As an alternative holding", the court also rejected petitioner's arguments "on the merits". Id. Because the rejection on the merits was an alternative holding, we review the Appellate Division's determination under the standard of review dictated by the AEDPA.

1. The Courtroom-Closure Claim

The Sixth Amendment affords all criminal defendants the right to a "speedy and public trial". U.S. Const. amend. VI; see Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968); In re Oliver, 333 U.S. 257, 266-74 (1948). A "public" trial includes the right for criminal defendants to be tried in a courtroom "whose doors are open to any members of the public inclined to observe the trial." Bowden v. Keane, 237 F.3d 125, 129 (2d Cir. 2001). The requirement of a public trial "'is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions ...'" In re Oliver, 333 U.S. at 270, n.25 (quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 647 (8th ed. 1927)). This right to a "public" trial applies "not only to the evidence phase of a criminal trial . . . but also to other adversary proceedings, such as a pretrial suppression hearing." Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 379 (1979); Waller v. Georgia, 467 U.S. 39, 43 (1984)).

However, in certain circumstances, a court may close a courtroom in a criminal trial without violating the defendant's Sixth Amendment rights. See Torres v. Leonardo, 2000 WL 1459816, *1 (S.D.N.Y. Sept. 29, 2000); see also, e.g., Waller v. Georgia, 467 U.S. 39, 48 (1984); Ayala, 131 F.3d at 69. In order to close a courtroom, either partially or fully, the court must apply the four-factor test set forth in Waller:

[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,

[2] the closure must be no broader than necessary to protect that interest,

[3] the trial court must consider reasonable alternatives to closing the proceeding, and

[4] it must make findings adequate to support the closure.

Ayala, 131 F.3d at 69 (citing Waller, 467 U.S. at 48). Courts have upheld the closure of courtrooms in cases with facts akin to those here. See, e.g., Witt v. Fisher, 2002 WL 1905946, *7 (S.D.N.Y. Aug. 19, 2002) (finding courtroom closure was appropriate during the testimony of two undercover officers where the closure was limited to those two witnesses and was designed to protect the officers' safety, and certain interested parties were permitted entry).

a. Interests Justifying Closure

The Second Circuit has held that in the assessment of the first prong of the Waller test, partial closures are subject to a lower level of scrutiny than complete courtroom closures. See Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992). Only a "substantial reason," rather than an overriding interest, is needed to justify partial closure of the courtroom. See id.; see also United States v. Smith, 426 F.3d 567, 571 (2d Cir. 2005). The trial court should "recognize that open trials are strongly favored," must require "persuasive evidence of serious risk to an important interest in ordering any closure, and should consider that "the more extensive the closure requested, the greater must be the gravity of the required interest." Ayala, 131 F.3d at 70.

In this case, the prosecution successfully demonstrated an "over-riding interest" in the closure of the courtroom. The Second Circuit has recognized that the safety and effectiveness of undercover officers constitutes an overriding interest and thus also a substantial reason for courtroom closure. See, e.g., Rodriguez v. Miller, 537 F.3d 102, 110 (2d Cir. 2008) ("It is clear that the State has an 'overriding interest' in protecting the identity of its undercover officers."); Brown v. Artuz, 283 F.3d 492, 501 (2d Cir. 2002) ("The safety of a police officer working undercover surely constitutes an overriding interest.); Ayala, 131 F.3d at 72 ("The state interest in maintaining the continued effectiveness of an undercover officer is an extremely substantial interest, and the trial judge . . . was amply justified in concluding that this interest would be seriously prejudiced by requiring the officer to testify in an open courtroom."). Here, both UC 5550 and UC 2772 testified that they would imminently be returning to work in the neighborhood of Acevedo's and Cotto's arrest. (Tr. I 136, 146-50). The state's overriding interest in protecting their identities warranted closure of the courtroom. See, e.g., Ayala, 131 F.3d at 72 (courtroom closure warranted where officers would soon be returning to work as undercovers in the area where the defendants were arrested).

Further, both UC 5550 and UC 2772 testified to having open and ongoing investigations and "lost subjects," -- individuals involved in narcotics activity who remain unapprehended -- and to having received threats in the past as a result of their undercover positions. Specifically, UC 5550 testified to having approximately fifteen open cases pending in Manhattan courts, all of which were narcotics-related. (Tr. I 133). He also testified to having approximately seventeen "lost subjects," as well as subjects connected with his work as an undercover officer roaming free despite bench warrants. (Tr. I 134-35). UC 5550 testified that he worked frequently in the specific neighborhood in which Cotto was arrested and that he would return to work in that neighborhood potentially within twenty-four hours of the hearing. (Tr. I 136). Lastly, UC 5550 testified as to the dangers faced and precautions taken as a result of being an undercover officer; he stated that he had been threatened, sometimes with a firearm, on approximately ten occasions, and that when coming to the courthouse to testify, he travels in an unmarked vehicle and avoids contact with other police officers. (Tr. I 139). UC 5550 affirmatively stated that he fears testifying in open court against Acevedo and Cotto because of the potential impact on his safety and his field team's safety. (Tr. I 140).

UC 2772 testified to similar circumstances regarding lost subjects, persons out on bench warrants, threats, and fear of testifying in open court. (Tr. I 146-56). He indicated that he had approximately five or six open cases pending in Manhattan courts and approximately four lost subjects. (Tr. I 148). He also indicated that he has already been accused of being an undercover officer by Eddie Cotto and that testifying in open court would "make [his] job even harder [] being an undercover." (Tr. I 154). All of these factors regarding UC 5550's and UC 2772's safety and effectiveness as undercover officers weigh significantly in favor of the government's overriding interest in courtroom closure.

b. Breadth of Closure

Several factors are considered when evaluating the second prong of Waller, including the duration of the closure, whether transcripts were made public, whether the witnesses who testified during the closure were pivotal to the proceedings, and whether only selected members of the public were barred from the courtroom or the entire public. See Bowden, 237 F.3d at 129-30.

Here, the partial closure of the courtroom encompassed the testimony of only the two undercover officers in question, and the two undercover officers were the only two officers to testify exclusively under their shield number. Further, the court allowed not only an additional Legal Aid attorney to be present in the courtroom, but also the wife of Cotto's codefendant Acevedo and Cotto's girlfriend. In addition, the trial transcript, at least in this court, was not filed under seal. We do recognize that the testimony of the two officers was crucial to the case, but given the balance of factors, the courtroom closure was not unnecessarily broad in the circumstances. See, e.g., Brown, 142 F.3d at 538; McCarthy v. Portuondo, 2001 WL 826702, *7 (E.D.N.Y. May 25, 2001) (finding closure was narrow where the courtroom was closed only during the testimony of one undercover officer, the transcript was publically available, and the defendant's mother and girlfriend were permitted to remain in the courtroom).

c. Reasonable Alternatives

As to the third Waller prong, "'once a trial judge has determined that limited closure is warranted as an alternative to complete closure, the judge . . . [need not] sua sponte consider further alternatives.'" Bowden, 237 F.3d at 131 (quoting Ayala, 131 F.3d at 71). Thus, because the courtroom was only partially closed in the case at hand and the prosecution accepted the option to have three individuals remain in the courtroom, the trial court judge had no obligation to assess other options to closure. Further, there is no indication that Cotto's attorney requested an alternative to courtroom closure. Although petitioner's counsel contested the courtroom-closure application, he merely requested, in the face of the court's inclination to close the courtroom for the undercover officers' testimony, that petitioner's girlfriend be allowed to remain. (Tr. I 163). This request was subsequently granted. (Tr. I 163-64). Furthermore, when the court made its ruling in the Hinton hearing, petitioner's counsel did not make any further applications to the court for alternatives to partial closure, and the court was under no obligation to consider any alternatives sua sponte. Accord, e.g., Bowden, 237 F.3d at 131; Kuhlmann, 142 F.3d at 538.

d. The Court's Findings

As to the fourth prong of Waller, the trial court made findings sufficient to support courtroom closure. Under this prong, "the factual record must 'adequate[ly]' support the particular courtroom closing ordered by the trial judge." Bowden, 237 F.3d at 131 (quoting Waller, 467 U.S. at 48) (alterations original). The sort of evidence that would support the closure of a courtroom is specific to the facts of each case. See id. at 131-32 (citing Kuhlmann, 142 F.3d at 538). After the Hinton hearing, the court explicitly stated its reasons for partially closing the courtroom. Justice Renee White explained that, based on the testimony from the two undercover officers, the court would close the courtroom during their testimony for the following reasons: (1) both undercover officers were presently working in the vicinity in which Cotto was arrested; (2) both undercover offices had open cases and continuing investigations; (3) both undercover officers had "lost subjects' and subjects out on bench warrants; (4) both undercover officers had been threatened in the past; and (5) both undercover officers own property or credit cards under their real names and could be traced on the Internet by someone using their names. (Tr. I 164). These justifications for courtroom closure are sufficient findings by the court to fulfill Waller's fourth prong. See, e.g., Bright v. Cook, 2011 WL 4406348, *4 (S.D.N.Y. Sept. 21, 2011) (fourth Waller factor satisfied by the trial court's evaluation of the undercover officer's testimony); Cadilla v. Johnson, 119 F. Supp.2d 366, 379 (S.D.N.Y. 2000) (trial court's findings, including the circumstances regarding the officer's continuing undercover work, were sufficient to allow the reviewing court to confirm that closure was appropriate); see also Brown v. Kuhlmann, 142 F.3d at 539) (trial judge's finding as to the officer's fear for his safety adequate to support closure).

In sum, the trial court appropriately applied the test set forth in Waller to the prosecution's application for courtroom closure. The Appellate Division's decision upholding the closure was not contrary to, nor an unreasonable application of, Supreme Court precedent.

2. The Confrontation Clause Claim

Under the same ground as his courtroom-closure claim, petitioner argues that his due-process rights were violated by the undercover officers testifying anonymously under their shield numbers. We interpret this argument to be a claim of a violation of petitioner's Sixth Amendment right to confront witnesses against him, and we find this claim to be without merit.

The right to confront witnesses is separate from the right to a public trial. The Sixth Amendment's Confrontation Clause guarantees the right of an accused "to be confronted with the witnesses against him." U.S. Const. amend. VI. That right is not satisfied merely by the physical presence of the witness, but rather "a defendant must have the opportunity to cross-examine an individual who testifies against him." Washington v. Walsh, 2010 WL 423056, *6 (S.D.N.Y. Feb. 5, 2010) (citing Davis v. Alaska, 415 U.S. 308, 315 (1974)). However, the confrontation right is not absolute, and in certain circumstances it may give way to "'accommodate other legitimate interests in the criminal process.'" Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). For example, trial judges have "wide latitude . . . to impose reasonable limits" on cross-examination where there are concerns about a witness's safety. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Such a restriction, however, may be unconstitutional "if it is 'arbitrary or disproportionate to the purposes [the restriction is] designed to serve.'" Martinez v. Brown, 2009 WL 1585546, *4 (June 8, 2009), adopted, 2009 WL 2223533 (S.D.N.Y. July 27, 2009) (quoting Michigan v. Lucas, 500 U.S. 145, 151 (1991)). The burden is on the prosecution to establish a legitimate reason for the restriction of cross-examination. Washington, 2010 WL 423056, at *6.

The Appellate Division found that "[t]he People's showing of an overriding interest justifying partial closure of the courtroom also satisfied their burden, under People v. Waver, [3 N.Y.3d 748, 788 N.Y.S.2d 630 (2004)]. . . of establishing a need for the officers' anonymity." Acevedo, 62 A.D.3d at 465, 8787 N.Y.S.2d at 329. The court further noted that both officers had offered "particularized explanations" of their fear of testifying under their true names, and that the defendants had not established that knowing the officers' names would have aided the defense with regard to any impeachment or investigation of the officers. Id.

Petitioner relies on Smith v. Illinois, 390 U.S. 129 (1968), in which the Supreme Court held that, absent adequate justification shown by the prosecution, the defendant had a right to cross-examine the witness regarding his true name and address. 390 U.S. at 131-33. That rule, however, does not prohibit per se a witness from testifying anonymously. See Washington, 2010 WL 423056, at *7 (discussing Smith v. Illinois); see also Alvarado v. Burge, 2006 WL 1840020, *2 (S.D.N.Y. June 30, 2006) ("Testifying by giving an identifying number rather than a name does not necessarily curtail any trial rights.").

Courts addressing cases similar to Cotto's have found no Confrontation Clause violation. In Washington, the prosecution's justifications included: the undercover officers were still engaged in undercover work in areas near to the buy-and-bust operation that had led to the defendant's arrest; they had been threatened during their careers and knew of threats to fellow officers; they had lost subjects at large; and they both took precautions on a regular basis to keep their true identities a secret. 2010 WL 423056, at *7. The trial court in that case permitted the officers to testify anonymously, and the habeas court found there to be no Confrontation Clause violation. Id. at *7-9; see also Martinez, 2009 WL 1585546, at *5-7 (denying habeas relief on Confrontation Clause claim where the trial court had found that the prosecution offered a reasonable basis for determining that the officer's safety would be at risk if he testified under his own name and the reason given by defendant for needing to know his name was unpersuasive); Nelson v. Crowley, 2009 WL 498909, *4-6 (S.D.N.Y. Feb. 23, 2009) (undercover officer permitted to testify anonymously where the prosecution had asserted that the witness's safety was at stake, and the defendant "failed to articulate a reason why the Undercover's name was relevant to developing evidence of specific bias regarding the events leading to Petitioner's arrest and prosecution" stemming from a buy-and-bust operation).

The findings made by the trial court in this case with respect to the closure of the courtroom are also adequate here to support the anonymity of the officers. New York courts have approached the analysis by way of a three-step inquiry. First, the prosecution must "'come forward with some showing of why the witness should be excused from answering the question'" such as by showing that the question will "'harass, annoy, humiliate or endanger the witness.'" People v. Waver, 3 N.Y.3d 748, 750, 788 N.Y.S.2d 630, 631 (2004) (quoting People v. Stanard, 42 N.Y.2d 74, 84, 396 N.Y.S.2d 825, 831. (1977)). The burden then shifts to the defendant to "'demonstrate the materiality of the requested information to the issue of guilt or innocence.'" Id. (quoting Stanard, 42 N.Y.2d at 84, 396 N.Y.S.2d at 831). Lastly, the court "must balance the defendant's right to cross-examination with the witness's interest in some degree of anonymity." Id.; see also People v. Waite, 52 A.D.3d 237, 238, 859 N.Y.S.2d 162, 163-64 (1st Dep't 2008). The trial court determined that both of the undercover officers were continuing to work in the vicinity in which Cotto was arrested; both had open cases and continuing investigations; both had lost subjects and subjects out on bench warrants; both had been threatened in the past; and both undercover officers owned property or credit cards under their real names and could be traced on the Internet by someone using their names. (See Tr. I 164).

Based on these determinations, we find that the trial court did not err in permitting the officers to testify under their shield numbers, and that petitioner's Sixth Amendment right was not violated. Therefore, the Appellate Division's alternative decision rejecting this claim on the merits was neither contrary to, nor an unreasonable application of, Supreme Court precedent.

G. Improper Response to the Jury Note

Petitioner's next claimed ground for relief is an assertion that the trial court failed to respond meaningfully to the jury note seeking clarification of the 'acting-in-concert' theory and that this failure unfairly prejudiced petitioner. (See Pet'r's Pro Se Br. at 20-28). The Appellate Division rejected this claim on the merits. See Acevedo, 62 A.D.3d at 466, 878 N.Y.S.2d at 330. We review this claim under the deferential AEDPA standard and find it to be meritless.

The jury note, submitted to the court during deliberations, read as follows:

We the jury request if Cotto intended to sell the drugs to Acevedo, but did not intend or know that Acevedo would then sell to a third party, is that sufficient to find the intent element to convict Cotto?

(Oct. 25 Tr. 136-37).

It is well established that jury instructions are generally a matter of state law, and, as such, only give rise to habeas relief where an erroneous instruction "'so infected the entire trial that the resulting conviction violates due process.'" Smith v. Graham, 2012 WL 248913, *15 (S.D.N.Y. May 7, 2012) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Thus, the standard for establishing a due-process violation based on a jury instruction is rigorous; a petitioner must demonstrate not only that the instruction was erroneous, but also that the error "'violated a right guaranteed to him by federal law.'" Rincon v. Burge, 2010 WL 6789121, *12 (Sept. 8, 2010), adopted, 2011 WL 2436799 (S.D.N.Y. June 16, 2011).

As with any challenged jury instruction, the legal sufficiency of supplemental jury instructions is assessed in light of the jury instructions as a whole. See Gibbons v. Ercole, 2008 WL 8049268, *31 (Sept. 24, 2008), adopted, 2010 WL 3199869 (S.D.N.Y. Aug. 12, 2010) (citing, inter alia, Cupp, 414 U.S. at 146-47; Manson v. Haponik, 2007 WL 2077895, *6 (E.D.N.Y. July 18, 2007)); see also United States v. Gengo, 808 F.2d 1, 4 (2d Cir. 1986). In the case of supplemental jury instructions, "'[t]he district court must exercise special care to see that inaccuracy or imbalance in supplemental instructions do[es] not poison an otherwise healthy trial.'" United States v. Van Putten, 282 Fed. App'x 950, 952 (2d Cir. 2008) (quoting Tart v. McGann, 697 F.2d 75, 77 (2d Cir. 1982)). In particular, when responding to a question from the jury, "the trial court has broad discretion in fashioning its response as 'the court deems proper . . . so long as the answer given does not deprive a defendant of a constitutional right.'" Gibbons, 2008 WL 8049268, at *31 (quoting McShall v. Henderson, 256 F. Supp. 158, 161 (S.D.N.Y. 1981)).

New York Criminal Procedure Law section 310.30 provides that "[a]t any time during its deliberation, the jury may request the court for further instruction or information" and that upon receipt of such a request, the court "must give such requested information or instruction as the court deems proper". N.Y. Crim. P. Law § 310.30. The court is required to "respond meaningfully to the jury's request". Gaskin v. Graham, 2009 WL 5214498, *19 (E.D.N.Y. Dec. 30, 2009) (citing People v. Gonzalez, 293 N.Y. 259, 261-62, 56 N.E.2d 574, 576 (1944)). However, as noted, a court is vested with discretion in determining the appropriate response. Id.; see also People v. Santi, 3 N.Y.3d 234, 248, 785 N.Y.S.2d 405, 414 (2004) ("[W]hile a trial court is without discretion in deciding whether to respond [to a jury note], the court does have discretion as to the substance of the response."). Furthermore, it is well established that the re-reading of an original instruction may constitute a sufficient response. See, e.g., Gaskin, 2009 WL 5214498, at *19 (citing People v. Malloy, 55 N.Y.2d 296, 302 449 N.Y.S.2d 168, 171 (1982)); Santi, 3 N.Y.3d at 248, 785 N.Y.S.2d at 414; People v. Leon, 48 A.D.3d 701, 701, 852 N.Y.S.2d 331, 331 (2d Dep't 2008); People v. Kirk, 16 A.D.3d 230, 230, 790 N.Y.S.2d 669, 670 (1st Dep't 2005).

Upon receiving the jury note in this case, the court solicited comments from counsel. (Oct. 25 Tr. 137). The prosecution was not certain as to what the jury was actually requesting, whether they were looking to be reinstructed on the law, or something else. The prosecution's recommendation was for the court to reiterate to them the intent element of the possession charge. (Oct. 25 Tr. 137). Petitioner's counsel interpreted the note as asking "if they find that Cotto made a transaction with Mr. Acevedo, would that transaction with Mr. Acevedo . . . be sufficient to prove the charge of possession with intent to sell[?]" (Oct. 25 Tr. 137-38). Petitioner's counsel proffered a response to that question as no, "because they're being charged with acting in concert and making a sale to an undercover officer." (Oct. 25 Tr. 138). Petitioner's counsel therefore believed that the note referred to the sale charge, but the court noted that under the possession-with-intent-to-sell count, no buyer was indicated. (Oct. 25 Tr. 138). After an off-the-record discussion, the court decided that it would "advise [the jury] that we're not really certain what the request calls for but if they wish to hear again the charges or the elements of each charge read to them, that the court will do that or ask them to rephrase the request in another form." (Oct. 25 Tr. 139). Petitioner's counsel did not object to this response, and the jurors opted for another reading of the charges and the elements of each charge. (Oct. 25 Tr. 139-49).

Petitioner argues that instead of responding meaningfully, the court "gave no information about [the jury's] clear question of law that they were unable to reconcile with the facts as they found them." (Traverse ¶ 48). He asserts that the jury clearly "was unable to reconcile with the statutory definition of 'acting in concert' and sought the Court's guidance and clarification" (id. ¶ 47), and that the court should have conducted research to assist the jurors. (Id. ¶ 51). Thus he claims that the re-reading of the charge "did not address the jury's request and need for additional instructions" and that he was prejudiced "because the jury was left to its own devices and unfettered course of procedure." (Id. ¶ 50). Respondent contends that petitioner's jury-note claim is meritless. Specifically, he argues that the original charge regarding accomplice liability was proper, and that petitioner did not object when the court advised the jury that the note was unclear. Nor did he object when the jury clarified that it wished to have the charges reread, or when the court reread the charges. (Resp't's Opp'n at 52-54).

Factors that a court may consider in determining the adequacy of a response to a jury note include "'the form of the jury's question, the particular issue, the substance of the supplemental instruction and the presence or absence of prejudice to defendant.'" Gaskin, 2009 WL 5214498, at *19 (quoting People v. Cataldo, 260 A.D.2d 662, 664 688 N.Y.S.2d 265, 267 (3rd Dep't 1999)). Here, the re-reading of the charge was entirely appropriate. As has been noted, a court has discretion in determining an appropriate response to a jury note, and the re-reading of charges can be an adequate response. See, e.g., Santi, 3 N.Y.3d at 248, 785 N.Y.S.2d at 414; Malloy, 55 N.Y.2d at 303-04, 449 N.Y.S.2d at 171-72; Leon, 48 A.D.3d at 701, 852 N.Y.S.2d at 331; Kirk, 16 A.D.3d at 230, 790 N.Y.S.2d at 670; see also Gaskin, 2009 WL 5214498, at *19. The court first discussed with counsel the initial jury note, and then asked the jury for clarification. (Oct. 25 Tr. 136-41). The jury requested that the charges be re-read, and accordingly, the court reiterated the charges. (Oct. 25 Tr. 141-49). We note that no objection was made that the court's original articulation of the charges (or the repetition of it) lacked clarity. The jury did not request any further clarification from the court but rather returned a verdict less than an hour later. (Oct. 25 Tr. 141, 149).

Moreover, even if the trial court did err by simply rereading the charge, as noted, petitioner bears the burden of showing that the instruction "so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. A habeas petitioner must establish "not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Hearns v. Artus, 2010 WL 2653380, *8 (E.D.N.Y. June 23, 2010) (citation and internal quotations omitted). Here, given that the reiteration of the charge was just that -- a repetition of the initial charge -- as well as the substantial evidence against petitioner relating to both charges, the decision by the trial court to re-read the charge as opposed to offering a different response did not "so infect" the trial as to violate petitioner's rights. See, e.g., id. at *8 (noting that the proposed response by defense counsel to a note had the potential to create confusion and that "[t]he trial judge's decision to reread the original charge was reasonable and did not violate Petitioners' due process rights").

Cotto does not challenge the initial jury instructions, and the supplemental jury instruction was not in plain error. We therefore find that there was no due-process violation. Furthermore, even if the court did err, the re-reading of the charge certainly did not "so infect" the entire trial as to violate petitioner's constitutional rights. Accordingly, the Appellate Division's decision was neither contrary to, nor an unreasonable application of, Supreme Court precedent.

H. Incongruous Badge Numbers

Petitioner also complains in his current petition that there was a failure of the prosecution to alert the trial court that Detectives Briecke and Fleming were testifying at trial under different badge numbers from those attached to them during the grand jury proceedings. (Pet. 6(i)). Because this claim was not specifically raised in state court with respect to these particular officers and the Appellate Division therefore did not address it, we review it de novo.¹¹ See, e.g., Felts v. Tennis, 2008 WL 2954660, *3 (E.D.Pa. July 30, 2008) ("[I]f Petitioner fairly presented a claim to the state court (i.e. exhausted it), but the state court completely failed to address it, or refused to consider it because of an inadequate procedural bar, we review the claim de novo.") (citing Jacobs v. Horn, 395 F.3d 92, 100 (3rd Cir. 2005)); cf. Battee v. Phillips, 2010 WL 2026443, *9 (E.D.N.Y. May 20, 2010) (finding that because the Appellate Division incorrectly invoked the procedural bar in rejecting the defendant's claim, that claim was to be reviewed on the merits by the habeas court). We therefore review this claim de novo, and, for reasons below, we find it to be meritless.

11 We reiterate that this claim may be unexhausted and thus procedurally barred, but we nonetheless reject it on the merits. 28 U.S.C. § 2254(b)(2).

First, Cotto does not explicitly attach a constitutional label to this claim. In order for this court to review claims in a habeas petition, the petitioner must articulate a federal-law violation by the trial court that resulted in his conviction and detention. See, e.g., Coleman, 501 U.S. at 729-30. Although "[t]he court remains mindful of this Circuit's firmly established practice of liberally interpreting pro se submissions 'to raise the strongest arguments that they suggest,'" Gomez v. Brown, 655 F. Supp. 2d 332, 342 (S.D.N.Y. 2009) (citation omitted), no liberal reading can rescue this claim. Cotto offers no legal support for the proposition that the failure of the prosecution to clarify the change in badge numbers to the court constitutes a constitutional violation or any other violation. Most importantly, petitioner alleges no harm resulting from the use of different badge numbers, nor can he demonstrate any.

Second, even if it was error for the use of different badge numbers to go unannounced, petitioner cannot show that the failure to do so resulted in any prejudice to him. As respondent notes, defense counsel could have questioned both officers about any change in their badge numbers. There were no challenges made at the time to the use of a different badge number, Cotto made no arguments alleging prejudice or harm from the use of different badge numbers at the time, and there was no reason to glean from the circumstances that any harm would result from permitting the use of different badge numbers, despite the lack of clarification from the prosecution. And we reiterate that given the substantial evidence against petitioner, the recognition by the court that the officers testified under different badge numbers would not have affected the outcome of the trial. See Brecht, 507 U.S. at 637. Accordingly, we find his claim to be meritless.

CONCLUSION

For the reasons noted, we conclude that the petition of Eddie Cotto for a writ of habeas corpus should be rejected. Accordingly, we recommend that the writ be denied and the petition dismissed with prejudice. In the absence of any issue meriting appellate review, we further recommend that the court deny a certificate of appealability. 28 U.S.C. § 2253(c).

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Shira A. Scheindlin, Room 1620, 500 Pearl Street, New York, New York, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(d). DATED: New York, New York

August 23, 2012

RESPECTFULLY SUBMITTED,

/s/_________

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Report and Recommendation have been mailed this date to: Thomas Benjamin Litsky, Esq.
New York State Office of the Attorney General
120 Broadway
New York, NY 10271 Mr. Eddie Cotto
1626 Lexington Avenue #3A
New York, NY 10029 Mr. Eddie Cotto
06-R-5209
Ulster Correctional Facility
750 Berme Road
P.O. Box 800
Viapanoch, NY 12458