Opinion
9:98-CV-0627 (DNH)(GLS)
January 24, 2001
FOR THE PETITIONER: GURDA, GURDA LAW FIRM, OFFICE OF ROBERT N. ISSEKS, OF COUNSEL: ALEXANDER JOSEPH SMITH, ESQ., ROBERT N. ISSEKS, ESQ., Middletown, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, OF COUNSEL: SEAN M. SEELY, ESQ., Ass't Attorney General, Office of Attorney General, New York State Attorney General, Albany, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, Louis Grotto ("petitioner" or "Grotto") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 20, 1998. This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response. Docket No. 3. Respondent filed an answer and memorandum of law, requesting dismissal of Grotto's petition. Docket Nos. 6 and 7. By Order filed October 13, 1999, this matter was re-assigned from U.S. District Judge Lawrence E. Kahn to U.S. District Judge David N. Hurd. Docket No. 10.
II. Discussion
A. State-Court Proceedings
In Indictment No. 181-93, an Ulster County Grand Jury charged Grotto with first degree rape and sexual abuse, and incest and endangering the welfare of a child ("endangering count"). The top counts in the indictment arose out of an incident that occurred on August 22, 1992. On that day, Grotto was to take photographs for the wedding of his sister, Linda Grotto-Noe ("Linda"), to Kenneth Noe ("Kenneth"). The testimony revealed that Grotto took his daughter to Linda's home the morning of the wedding. Tr. at 79-80, 185. Amanda testified that after Linda and Kenneth left the Noe Townhouse, Grotto brought Amanda in the guest room of the house, took off her clothes and had sexual intercourse with her on the bed. Id. at 187. After cleaning her with a washcloth, the two went to the wedding. Id. at 190. Amanda's testimony was corroborated by Kimberly O'Brien ("O'Brien"), Grotto's live-in girlfriend of eight years, who testified that Amanda told O'Brien that Grotto had had intercourse with her the day of the wedding. Id. at 81. O'Brien also testified that on prior occasions, Grotto had dressed inappropriately around Amanda and Jessica Ann Cardinal, O'Brien's daughter by another man. Specifically, O'Brien testified that Grotto would dress in such a manner so that his genitals would be exposed to the children. Tr. at 67. One day, Grotto came out of the bathroom and dropped the towel that was covering his body in view of the children. When O'Brien complained about his conduct, she testified that Grotto would comment in ways such as he could do "whatever the F I want in this house and you can leave." Id. at 71. O'Brien also testified that one time when Amanda was about five years old, O'Brien noticed that Amanda was walking in pain. When O'Brien asked Amanda what was the matter, she stated that "it hurts," pointing toward her pubic region. Amanda stated that her father had done something to her, and when O'Brien looked at Amanda's vaginal area, she discovered a pubic hair. Id. at 72-73. On cross-examination, O'Brien testified that Amanda stated that she loved her father, but that she "[didn't] like the things that he does." Id. at 109.
At trial, this residence is referred to as both a townhouse and a condominium. The court will refer to this dwelling as the "Noe Townhouse."
O'Brien referred to Grotto as her "common-law husband." Tr. at 60-61.
Amanda told O'Brien that the day of the wedding, Grotto had "put his middle in her middle," pointing to her vaginal area. Id. at 81.
Edward Martinez of the New York State Police and Jody Bouyeo of the Ulster County Child Protective Services began a joint investigation into the above allegations. Id. at 232-33. This investigation revealed that O'Brien did not report the matter to authorities because Grotto had been physically abusive toward her, and she was afraid for the welfare of herself and her children. Id. at 237.
The Ulster County Assistant District Attorney ("District Attorney" or "prosecution") also introduced into evidence certain photographs taken the day of the wedding. People's Exhibit No. 11 was a strip of negatives containing exposures 9 — 12 from a roll of film. Tr. at 403-04. The evidence at trial indicated that the first three negatives on this strip reflected photographs taken at the Noe Townhouse where the rape occurred, however, exposure 12 was taken at the wedding ceremony. Id. at 417. People's Exhibit No. 12 contained exposures numbered 13 — 15, Tr. at 404, and were taken during the wedding ceremony. Id. Kenneth testified that Grotto took these photographs. Id. at 405.
In his defense, Grotto denied ever touching Amanda in a sexual way. Id. at 461, 464-465. As to the incident that occurred when Amanda was five, Grotto testified that Amanda initially accused him of assaulting her, but then stated that she injured herself while masturbating on a bed post. Id. at 463. Grotto testified that he did not go to the Noe Townhouse the morning of the wedding, Id. at 472, and instead went directly to the wedding ceremony in New Paltz when he left his home at approximately 9:30 that morning. Id. at 466, 469. With respect to the photographs taken at the Noe Townhouse, Grotto claims that they were taken by someone else. After his testimony, the defense rested, and court adjourned on November 3, 1994, scheduling summations for the next day.
On the morning of November 4th, Grotto's counsel, James W. Winslow, Esq. ("Attorney Winslow") requested permission to reopen the case in light of what he claimed was newly discovered evidence. In his request, counsel argued that the backs of certain photographs that the jury was led to believe were taken by Grotto (and placed him at the Noe Townhouse the day of the rape) demonstrated that these photographs were in fact taken by Grotto's brother, Ralph Grotto ("Ralph"). Attorney Winslow argued that while looking through a family album, photographs that bore the handwriting of Ralph's wife, Rochelle Grotto ("Rochelle") were discovered, and that this indicated that Ralph, not Grotto, took these photographs. Tr. at 530-35. The Hon. Edward Sheridan ("Judge Sheridan") denied the motion for a continuance, and closing statements were given by defense counsel and the prosecution. The jury found Grotto guilty on all counts. Tr. at 678-79.
Prior to sentencing, Grotto's counsel moved to vacate the conviction pursuant to § 330.30 of the N.Y.Crim.Proc. Law ("CPL") (the "330 motion" or "330 application"). This motion argued that, in responding to the prosecution's request for, inter alia, all photographs taken by Grotto the day of the wedding, petitioner's counsel wrongfully provided the District Attorney with copies of some photographs taken by Grotto and others that were taken by his brother Ralph (which were developed on paper different than that used for Grotto's photographs). The motion also contended that Grotto's trial counsel did not adequately prepare his witnesses for trial, and as a result, they failed to provide helpful testimony concerning the photographs and negatives introduced at trial. This motion was accompanied by affidavits signed by Linda, Kenneth, Ralph, Grotto and others which gave further support for Grotto's alibi that he was not at the Noe Townhouse on the day in question. Judge Sheridan denied the motion in a decision read into the record. Sentencing Tr. at 28-42. Grotto was then sentenced to six to eighteen years imprisonment on the rape conviction, and lesser, concurrent sentences on the other convictions. Id. at 53-54.
This section provides, in part, that "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
* * *
3.That new evidence has been discovered since the trial which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.
CPL § 330.30(1), (3).
Among these photographs were the photographs taken at the Noe Townhouse that the defense now claimed bore the handwriting of Ralph's wife and were taken by Ralph.
In his appeal to the Appellate Division, Third Department ("Appellate Division"), Grotto contended that the trial court wrongfully refused defense counsel's request to re-open the case prior to summations. Grotto next claimed that he received ineffective assistance of counsel. Grotto further asserted evidentiary error, arguing that the trial court improperly admitted evidence of prior uncharged rapes, testimony from a school psychologist, and speculative, hearsay and unfairly prejudicial testimony. The Appellate Division unanimously affirmed the conviction, People v. Grotto, 223 A.D.2d 758 (3rd Dept. 1996), and the Court of Appeals denied Grotto leave to appeal. People v. Grotto, 87 N.Y.2d 1020 (1996).
By notice of motion dated May 16, 1996, Grotto moved pursuant to CPL § 440.10 to vacate the judgment ("440 motion" or "440 application"). The motion was accompanied by a telephone record for a business line in Grotto's home. Grotto claimed that this evidence demonstrated he was at his home until at least 9:17 the morning of the rape, and not at the Noe Townhouse. In addition to the telephone record and Grotto's affidavit, the motion was accompanied by affidavits from other individuals who claimed they spoke to an individual the morning of August 22, 1992, regarding pest control services, and affidavits from Grotto's neighbors, who stated that Grotto had gone to their house the morning of the rape. See attachments to 440 motion. Judge Sheridan denied the motion in a written decision dated August 13, 1996, and the Appellate Division affirmed this order. People v. Grotto, 241 A.D.2d 785 (3rd Dep't 1997). The Court of Appeals denied Grotto leave to appeal. People v. Grotto, 90 N.Y.2d 940 (1997).
The business line related to a pest control business owned by Grotto.
Petitioner asserts five Grounds in support of the petition. He initially contends that the trial court erred when it: (i) refused to grant the continuation prior to summation; and, (ii) denied the 330 and 440 applications without a hearing. The Second Ground argues that Grotto received ineffective assistance of trial counsel. The Third Ground claims that Judge Sheridan wrongfully admitted evidence of prior rapes into the record. The Fourth Ground contends that the trial court wrongfully allowed a school psychologist to testify at trial, and the final Ground argues that, cumulatively, the errors that occurred at trial "fatally infected [Grotto's] trial" warranting the granting of the petition. Docket No. 2 at 37.
B. Merits of Petition
1. Ground One
In this Ground, petitioner argues that the trial court wrongfully refused to re-open the case after the defense had rested, but before summations began. Petitioner also argues that the trial court's refusal to hold hearings on, and its denials of, the 330 and 440 motions constituted error in light of the evidence presented in support of these applications.
Respondent argues that petitioner has no federal or constitutional right to post-conviction motions to set aside a verdict, and therefore, the manner in which the trial court ruled upon these motions does not afford Grotto a basis for habeas review.
"[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Diaz v. Greiner, 110 F. Supp.2d 225 (S.D.N.Y. 2000) (unsupported assertion that the trial court denied petitioner's third CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review) (quoting Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999)). Thus, the mere fact that the trial court did not hold hearings does not afford this court a basis upon which it may grant the relief requested. However, in light of the fact that Grotto also contends that the trial court's denial of these requests "violated petitioner's due process rights to present a case and prove himself actually innocent," Docket No. 2 at 20, the court considers the substance of these claims.
A. Denial of Request for Continuance
A trial court has broad discretion in deciding whether to grant a request for a continuance. Morris v. Slappy, 461 U.S. 1, 11 (1983). As now-Chief Judge Scullin has stated:
To obtain relief, a habeas petitioner must thus demonstrate both that the trial court abused its discretion by unreasonably and arbitrarily denying a "justifiable request for delay," [Morris, 461 U.S.] at 11-12, and that the denial substantially impaired the petitioner's defense. United States v. King, 762 F.2d 232, 235 (2d Cir. 1985), cert. denied, 475 U.S. 1018 (1986). In determining whether the trial court abused its discretion and violated due process, a reviewing court does not apply a mechanical test, but looks at the circumstances surrounding the request for a continuance. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
Beverly v. Walker, 899 F. Supp. 900 (N.D.N.Y. 1996), aff'd, 118 F.3d 900 (2nd Cir.), cert. denied, 522 U.S. 883 (1997). Under the circumstances of this case, the trial court did not abuse its discretion in denying the request for a continuance. Grotto's counsel claimed that certain photographs that he wished to introduce after the defense rested constituted "newly discovered evidence." Tr. at 532. However, "[n]ewly discovered evidence is, by definition, incapable of discovery through counsel's due diligence before or during trial." United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir. 2000). "Evidence in existence at an earlier date, though perhaps unknown to a petitioner, cannot later be described as newly discovered." Hector v. Greiner, 2000 WL 1240010, at *1 (E.D.N.Y. Aug. 29, 2000) (citation omitted). Since the photographs that formed the basis for the requested continuance were not newly discovered, the trial court acted within its discretion in denying the request.
Of course, counsel's failure to offer these photographs into evidence may support a claim of ineffective assistance of counsel. This argument is addressed infra at PP. 16-19.
B. Denial of 330 Application
Where a court is able to make a 330 determination on the basis of the motion papers, it is not required to hold any hearing. People v. Gibson, 260 A.D.2d 399 (2nd Dep't), leave to appeal denied, 93 N.Y.2d 924 (1999). Moreover, Judge Sheridan properly denied the application on substantive grounds.
In his motion, Grotto provided the court with various photographic evidence he claimed was taken by Ralph on the day of the rape. Grotto argued that the jury was, "through sheer confusion . . . given the impression that the photographs were taken by defendant." 330 motion at ¶ 12 (emphasis in original). Grotto contends that the only reason the identity of the individual who took the photographs was in dispute, was the failure of Grotto's trial counsel to carefully review all photographs taken the day of the wedding and prepare his witnesses for trial. Grotto also stated in his application that Rochelle was prepared to testify that Ralph took the photographs at the Noe Townhouse and that she had written comments on the back of some of them.
As to the aspect of the 330 motion that alleges ineffective assistance of counsel, this issue is addressed at PP.16-19. of this Report-Recommendation.
Judge Sheridan correctly noted that the testimony at trial revealed that the witnesses were unable to determine precisely who took what photographs, and that the evidence presented in support of the motion was not "newly discovered." Additionally, the testimony in the affidavits submitted along with the 330 application contradicted the trial testimony. For example, in their affidavits, Ralph and Kenneth both stated that Ralph took the photographs at the Noe Townhouse.10 At trial, Ralph stated that he did not know who took the photographs; Kenneth stated that he believed Grotto had taken them. Linda similarly stated in her 330 affidavit that Grotto did not take the photographs at the Noe Townhouse, however, at trial she was unable to state who took them. All of these individuals claimed that they were more reliable than their trial testimony because after the trial, they saw the photographs and examined the paper on which it was printed, as well as the writing contained on the back of some of the photographs. However, the trial judge was in the best position to compare the witnesses' earlier testimony with their newer versions presented in affidavits. May v. Collins, 955 F.2d 299, 314-15 (5th Cir.), cert. denied, 504 U.S. 901 (1992) (trial court's findings of fact concerning such issues are "entitled to a presumption of correctness in . . . federal habeas proceeding"); see e.g., Cockrum by Welch v. Johnson, 934 F. Supp. 1417, 1425 (E.D.Tex. 1996) (trial judge's first hand observations of the witnesses on the stand provide a legitimate basis for rejecting recanting affidavits), rev'd on other grounds Cockrum v. Johnson, 119 F.3d 297 (5th Cir. 1997).
In denying the 330 motion, Judge Sheridan noted that the case presented "sharp issue[s] of credibility." Sentencing Tr. at 31. The victim testified in detail regarding the rape and the surrounding circumstances, including the fact that the rape occurred at the Noe Townhouse. In addition to this clear testimony, O'Brien unequivocally testified that Grotto left their home at approximately 7:00 the morning of the wedding, and that he was going to the Noe Townhouse to take pictures. Tr. at 79-80, 114. Judge Sheridan was in the best position to determine the credibility of this evidence and that provided in the 330 application. Moreover, even if, as Grotto suggests in his 330 motion, certain photographs were taken by Ralph and not Grotto, this fact would not, in any way demonstrate that Grotto was not at the Noe Townhouse that day, it would only demonstrate that Grotto did not physically take the photographs.
Nor can this court find fault with Judge Sheridan's failure to grant the 330 application (or a continuance) based upon the proposed testimony of Rochelle; this individual was on the defense witness list submitted prior to trial but did not testify. Sentencing Tr. at 16-17. Additionally, as noted above, the photographs about which Rochelle was to testify were not newly discovered evidence. In light of the foregoing, the court finds that Judge Sheridan properly denied the 330 application without a hearing.
C. Denial of 440 Motion
Petitioner also contends that his petition should be granted, or at the very least, an evidentiary hearing held in this matter, because the trial court denied his 440 motion, and did so without a hearing. Petitioner contends that "the affidavits accompanying the 440. motion make clear that these affidavits provided solid circumstantial evidence that Grotto is actually innocent of the felonies for which he was convicted." Docket No. 2 at 20.
See attachments to 330 motion.
The 440 application was accompanied by an affidavit of a private investigator, who stated that he obtained a telephone record relating to a business line in Grotto's residence, which demonstrated that Grotto was at home until at least 9:17 a.m. the morning of the incident. Attached to the motion was this telephone record, affidavits from people that utilized Grotto's pest control service the day of the wedding, Grotto's neighbors, a co-worker, Linda and Grotto himself.
Judge Sheridan denied the motion, finding that the affidavits submitted in support of the motion did not constitute newly discovered evidence, and that the grounds asserted in the application had either been previously denied by himself on the merits or by the Appellate Division in its decision affirming the conviction. See decision of Hon. Edward A. Sheridan (8/13/96) at 1-2.
The 440 motion was properly denied by Judge Sheridan without a hearing. The motion was presumably based upon CPL 440.10(g) which authorizes the trial court to vacate a judgment of conviction upon the ground that new evidence was discovered since the entry of a judgment which "is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant." Id. However, as with the evidence submitted in support of the motion for a continuance and the 330 application, the evidence presented along with the 440 motion was not "newly discovered." Middlemiss, 217 F.3d at 122; Hector, 2000 WL 1240010, at *1.
Moreover, an analysis of this evidence fails to establish that the trial court erred. As to the telephone record itself, it was not authenticated in any way and was therefore of no evidentiary value. Foster v. AlliedSignal Inc., 98 F. Supp.2d 1261, 1265-66 (D.Kan. 2000). Even assuming, arguendo, that the record had been authenticated, it did not establish who placed the calls in question. Moreover, the affidavits submitted by individuals that are claimed to have used Grotto's pest control service on the date in question cannot properly be characterized as "solid circumstantial evidence that Grotto is actually innocent." See affidavit of Lynette Burneson (4/8/96) at ¶ 5 ("[a]lthough I am not positive, I believe I spoke to a man when I called the pest service that day"); affidavit of Bernadette Wrafter (4/1/96) (provides telephone number that, according to the telephone record was not placed until 11:11 a.m.; Grotto testified he returned home prior to going to the wedding reception). The affidavits of Grotto's neighbors likewise do not afford Grotto any support. In their affidavits, they testify that Grotto was "dressed up" on his way to his sister's wedding when he went to their house. Affidavit of Edward Smith (5/8/96) at ¶ 5; Affidavit of Victoria Smith (5/8/96) at ¶ 4. Grotto testified at trial that when he left his house in the morning, he was dressed casually, in jeans and a white pull-over shirt. Tr. at 466. Since the Smiths' affidavits impeach Grotto's own trial testimony, their evidence could hardly be characterized as "solid evidence" of Grotto's innocence. Paul Cuchelo, who worked for Grotto for a period of time, stated that he called Grotto in "the early part of the morning." Since the trial testimony revealed that Grotto left for the Noe Townhouse at approximately 7:00 a.m., this individual could well have spoken to petitioner before he left his house. As to Grotto's 440 affidavit, his assertions directly contradicted his own trial testimony. Compare Affidavit of Louis Grotto (4/12/96) at ¶ 10 (stating that Grotto drove to the Smiths the morning of August 22 before going to ceremony) with Tr. at 466, 469 (testifying that, other than his own home, he had not been anywhere else the morning of the wedding before arriving at the ceremony to take photographs).
Grotto did not supply affidavits from the other three individuals that, according to the telephone record, called this pest control service that morning.
Since the evidence presented in support of the 440 motion: (i) was not newly discovered; and, (ii) in any event, was not of such character as to create a probability that had it been received at the trial, the verdict would have been more favorable to the defendant, Judge Sheridan properly denied the application. Thus, this court finds that the claims asserted in Ground One do not entitle Grotto to the relief he seeks.
2. Ground Two
This Ground alleges that Grotto received ineffective assistance of trial counsel. Specifically, petitioner contends that Attorney Winslow's failure to: (i) introduce the photographic evidence that Grotto claims was exculpatory; (ii) prepare defense witnesses for the trial; (iii) perform an adequate investigation concerning an alibi for defendant the morning of August 22nd; and, (iv) object to proposed testimony of a school psychologist, demonstrate ineffective assistance of counsel.
Respondent contends that petitioner cannot establish that but-for counsel's alleged errors, he would have been acquitted.
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: "(1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and, (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
Even assuming, arguendo, that counsel's representation fell below an objective standard of reasonableness, in the areas cited by petitioner, Grotto has failed to establish the second prong of his ineffectiveness claim, i.e., that his attorney's deficient performance prejudiced the defense. Strickland, 466 U.S. at 692-93; Thomas v. Scully, 854 F. Supp. 944, 961-62 (E.D.N.Y. 1994). A petitioner cannot establish prejudice simply by demonstrating that counsel's errors only had some "conceivable effect" on the outcome of the case. Strickland, 466 U.S. at 693. Rather, a petitioner must show that absent counsel's errors, the result would likely have been different, considering the totality of the evidence. Id. at 694; Alvarez v. Keane, 92 F. Supp.2d 137, 147 (E.D.N.Y. 2000). Moreover, as the Supreme Court has noted, a criminal defendant alleging prejudice must show "that counsel's errors were so serious as to deprive the defendant of a fair trial." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (citing Strickland, 466 U.S. at 687). The Lockhart Court continued:
Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.
Id. at 369-70 (citation and footnote omitted); see also, Sinclair v. Sullivan, 1989 WL 25156, at *5 (S.D.N.Y. Mar. 10, 1989) (citing Strickland).
The evidence, the law and the facts of this case, viewed in totality, reveal that Grotto was not prejudiced by the cited errors. O'Brien testified that Grotto left their house the morning of August 22nd at approximately 7:00 a.m. with Amanda. Tr. at 79. When asked by O'Brien as to why he was leaving so early, O'Brien testified that Grotto stated "[h]e was going to go to the condo and then they were going over to the judge and he was going to take pictures." Id. at 80. O'Brien further testified that:
[Amanda] said that her and her father went to Aunt Linda's condo and saw Ralph and Rochelle and Lou's parent's, Linda, Ken, and then she said he — they left and he stayed back with her. I don't know what reason. This is just what she said. And he took her back to Linda's guest bedroom and he laid on top of her and put his middle in her middle, something like that.
Id. at 81. Moreover, the victim herself, whom the trial judge specifically found "assesse[d] sufficient intelligence and capacity to justify the receipt of her testimony," Id. at 167, testified that the morning of the wedding, her father drove her to Linda's house and raped her. Id. at 184-189. On cross-examination, the victim reiterated that when she left her house the morning of the wedding, the first place she and her father went was Linda's house. Id. at 202-03. She also unequivocally stated that, other than her father, no one had ever touched her "middle." Id. at 209.
In light of this compelling testimony, petitioner has failed to prove that either the evidence submitted: (i) in support of the present petition; or, (ii) to the state court in support of the challenges addressed in Ground one above, either separately or collectively, demonstrate that the outcome of the proceeding would have been different had this evidence been presented to the jury, or that an evidentiary hearing relating to these matters is necessary. Moreover, the court finds that the errors petitioner contends were made by his counsel did not render his trial fundamentally unfair or unreliable. Therefore, the court recommends that Ground Two of the petition be denied.
3. Ground Three
Petitioner next contends that the trial court improperly admitted into evidence two uncharged rapes so that the District Attorney could establish the endangering count in the indictment. Petitioner contends that this ruling deprived Grotto of a fair trial and due process. Grotto further contends that his rights were violated because the prosecutor failed to provide pre-trial notice that the rapes would be introduced as proof that petitioner endangered the welfare of Amanda, and failed to respond adequately to Grotto's request for a bill of particulars.
"A writ of habeas corpus will issue only in the rare case where the petitioner can demonstrate that the erroneous evidentiary ruling deprived him or her of a fundamentally fair trial." DeLeon v. Hanslmaier, 1996 WL 31232 (E.D.N.Y. Jan. 19, 1996) (citing Taylor v. Curry, 708 F.2d 886 (2nd Cir.), cert. denied, 464 U.S. 1000 (1983)) (other citation omitted); see also, Richter v. Artuz, 77 F. Supp.2d 385, 392 (S.D.N.Y. 1999). To meet this burden, a petitioner must show that the ruling "'had a substantial and injurious effect or influence in determining the jury's verdict.'" Senor v. Senkowski, 1999 WL 689477, at *12 (E.D.N.Y. Aug. 31, 1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (other citations omitted). With respect to evidence of uncharged crimes, the law in New York provides that such evidence is admissible where its probative value outweighs the risk of undue prejudice to the defendant. People v. Philbert, 270 A.D.2d 210 (1st Dep't), leave to appeal denied 95 N.Y.2d 856 (2000) (citing People v. Molineux, 168 N.Y. 264 (1901)). Thus, a trial court may admit into evidence uncharged crimes when such evidence is relevant to a pertinent issue in the case other than defendant's criminal propensity to commit the crime charged. People v. Davis, 259 A.D.2d 706 (2nd Dep't) (citation omitted), leave to appeal denied, 93 N.Y.2d 1016 (1999).
The endangering count was Count Four of the Indictment. N.Y. Penal Law § 260.10 provides that a person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. In this case, the prior rapes admitted into evidence established this count in the Indictment. The court finds that the trial court did not abuse its discretion in allowing this evidence into trial, or that this ruling had a substantial and injurious effect or influence in determining the jury's verdict. Therefore, this theory does not afford petitioner a basis for relief.
As to petitioner's claim that the District Attorney failed to provide Grotto with pre-trial notice that the rapes would be offered as proof of the endangering count, Judge Foley of this District observed: "[t]he prosecution is not required to disclose every detail of its proposed evidence and trial strategy." United States v. Gordon, 493 F. Supp. 814, 817 (N.D.N.Y. 1980), aff'd, 655 F.2d 478 (2d Cir. 1981). The disputed evidence directly established the endangering count which charged that "during the period of January 1, 1990, through May 8, 1993, [Grotto] knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." The court finds that the indictment adequately informed Grotto of the nature and cause of the accusation against him, and therefore, petitioner is not entitled to relief on this theory. People v. Morris, 61 N.Y.2d 290, 294-95 (1984) (citations omitted).
Turning to petitioner's contention that the District Attorney's failure to particularize the two uncharged rapes as evidence of the endangering count warrants habeas relief, the court notes that in Beverly, now-Chief Judge Scullin noted:
A federal court may entertain a state prisoner's habeas corpus petition only to the extent that the petition alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Accordingly, federal habeas corpus relief does not lie for errors of state law that do not rise to the level of federal constitutional violations. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Beverly, 899 F. Supp. at 908 (dismissing claim that alleged prosecution wrongfully denied petitioner's request for a bill of particulars). Since a prosecutor's failure to provide a bill of particulars does not rise to the level of federal constitutional violation, this theory does not offer Grotto a basis for relief.
In light of the foregoing, the court recommends that Ground Three of the petition be denied.
4. Ground Four
This Ground argues that the trial court's decision to permit a school psychologist to testify as to her method of determining the veracity of a child's allegation of abuse, and whether to report such an allegation to authorities, "was nothing more than inflammatory bolstering of Amanda's accusations." Docket No. 2 at 33. However, petitioner concedes that defense counsel did not object to this proposed testimony and therefore, any objection to the testimony was not preserved for appellate review. Id. at 33, 34 n. 46.
In this case, petitioner failed to follow prescribed state procedures in the trial court by failing to object to the proposed testimony of the psychologist. He then attempted to raise this issue to the Appellate Division. See Appellate Br. at Point 4. The District Attorney objected to this argument because Grotto failed to properly preserve the issue. See Resp. Br. at P. 23. In its decision affirming the conviction, the Appellate Division did not specifically discuss the merits of this claim, and instead held that the "remaining contentions have been considered and found to be either meritless or unpreserved for our review." People v. Grotto, 223 A.D.2d at 759. In such circumstances, "the federal habeas corpus court should normally interpret the state appellate court's ruling as one based on the procedural default." Stepney v. Lopes, 760 F.2d 40, 44 (2nd Cir. 1985) (citations omitted). Thus, federal habeas review of this claim is precluded unless petitioner can show both cause and prejudice for his default. Id. (citations omitted). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
To establish "cause," petitioner must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992). However, "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
In this case, there is no evidence before the court that demonstrates any cause for Attorney Winslow's failure to object to the testimony of the school psychologist. Since petitioner cannot establish cause for his procedural default, the court need not decide whether the petitioner suffered actual prejudice because federal habeas relief is unavailable unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
Finally, the court cannot find that failure to consider the merits of petitioner's claims would result in a fundamental miscarriage of justice which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). Therefore, Grotto is not entitled to habeas relief on this theory.
5. Ground Five
Petitioner's final Ground alleges that "cumulatively, the above constitutional errors "so fatally infected [Grotto's] trial that they violated fundamental fairness." Docket No. 2 at 37.
In light of the fact that all of the theories advanced by Grotto in support of his petition are without merit, his claim that the cumulative effect of these errors deprived him of a fair trial must also fail. White v. U.S., 2000 WL 546426, at *6 (S.D.N.Y. May 4, 2000) ("[[p]etitioner] further maintains that the cumulative effect of the errors asserted above deprived him of a fair trial. Because all of [petitioner's] earlier points have been rejected, this point must be rejected as well"; see also, U.S. v. Wiggins, 971 F. Supp. 660, 667-68 (N.D.N.Y. 1997) (McAvoy, C.J.). Moreover, consideration of the record as a whole demonstrates that petitioner received a fundamentally fair trial. Styles v. Zandt, 1995 WL 326445 (S.D.N.Y.), at *11 (finding petitioner failed to establish cumulative effect of claimed errors, some of which were not subject to federal habeas review due to petitioner's procedural default, deprived petitioner of fair trial), aff'd without op., 101 F.3d 684 (2d Cir. 1996), cert. denied, 519 U.S. 936 (1996). Thus, the court recommends that this Ground for relief be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Grotto's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.