Opinion
02-CV-6001P.
July 14, 2004
DECISION ORDER
INTRODUCTION
Petitioner, Douglas Little ("Little"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of criminal sale of a controlled substance. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, the petition is denied.
By Order dated April 14, 2003, this case was reassigned to the undersigned consistent with the terms of the original Order, which referred the matter to former United States Magistrate Judge William G. Bauer for further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c) and the consent of the parties. (Docket #7). At the time this case was filed, I served as Assistant Attorney General In Charge of the New York State Attorney General's Rochester Regional Office. At that time, petitioner was held in custody in New York State's Clinton Correctional Facility, and respondent served as the Superintendent of that facility. As the person having custody of petitioner, Superintendent Senkowski was the properly-named respondent in this action. See 28 U.S.C. § 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained").
By statute, the New York State Attorney General's Office represents New York State employees in state and federal court civil actions and proceedings arising out of acts occurring within the scope of their employment. N.Y. Pub. Off. Law § 17; N.Y. Exec. Law § 63. For this reason, and consistent with 28 U.S.C. § 2252, the Court's original Order in this case required the Clerk of the Court to serve both respondent and myself, as Assistant Attorney General In Charge. (Docket #3). This Order also required the Clerk to mail a copy of the Order to the District Attorney of Monroe County, whose office had prosecuted the petitioner on the charges of which he was convicted and which petitioner now challenges in this collateral proceeding. (Docket #3).
The Advisory Committee Notes to Rule 4 of the Rules Governing § 2254 Cases provide, "Although the attorney general is served, he is not required to answer if it is more appropriate for some other agent to do so." Pursuant to my usual practice, I advised the District Attorney's Office in writing of the pending habeas petition and requested that office to appear and represent respondent in this matter. The District Attorney's Office, consistent with its customary practice, agreed, and answered and appeared on behalf of respondent. See Docket #2. As the docket sheet reflects, the Attorney General's Office did not appear in this matter.
Accordingly, because I neither personally participated in, nor supervised, the defense of this action, I do not believe my disqualification from this case is required. See 28 U.S.C. § 455(b)(3). In Muench v. Israel, 524 F. Supp. 1115, 1119 (E.D. Wis. 1981), the district judge determined that disqualification was not warranted under circumstances similar to this case. There, the judge, who had previously served as Attorney General for the State of Wisconsin, declined to disqualify himself from a federal habeas proceeding brought by a prisoner who had previously filed a direct appeal of his conviction in state court that had been handled by the Attorney General's Office during the time in which the judge had served as Attorney General. As the Court noted, "As Attorney General for the State of Wisconsin, this Court was obligated to formally represent the State in all matters before the Wisconsin Supreme Court. The substance of its participation, however, was principally formal, confined to having its name as Attorney General printed on the State's brief to the Wisconsin Supreme Court." Muench, 524 F. Supp. at 1118. See also Laird v. Tatum, 409 U.S. 824, 828, 837 (1972) (Supreme Court Justice's disqualification not necessary or authorized where he "never participated, either of record or in any advisory capacity, in . . . the case;" "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified") (citations omitted); United States v. Feldman, 1985 WL 4525, *2 (N.D. Ill. 1985) ("Arguably the United States Attorney, having supervision over the entire office, served `as counsel' on all cases handled by the Office during his tenure. However, even in that circumstance, recusal may be unnecessary if the judge did not participate in the case and his relationship to it was purely formal.").
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A Monroe County Grand Jury indicted Little on April 24, 1997, charging him with one count of Criminal Sale of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.41(1)) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1) (2)). All three counts of the indictment were related to Little's alleged possession and sale of one-half ounce of cocaine on February 28, 1997.
Little was tried before a jury in Monroe County Court (Sirkin, J.). Officer Myron Moses ("Moses") of the Rochester Police Department testified that on February 28, 1997, while working in an undercover capacity, he planned to attempt to buy one ounce of cocaine. Wearing a body wire, he drove to 560 Conkey Avenue at about 12:44 a.m. in search of an individual known by the name of "Nine One." After pulling into the driveway at 560 Conkey Avenue, Moses sounded the car horn, causing a man whom he later identified as Little to look out an upstairs window and ask who was there. Moses replied, "It's Tony," and proceeded into the dwelling where he met Little, who was carrying a black handgun, in the stairwell. Moses requested an ounce of cocaine; Little informed him that it would cost $900. The two men then completed the transaction.
The factual description of the trial is based upon a review of the trial transcript (hereinafter referred to as "Tr.").
Little briefly reentered his apartment to get his pager number; when he returned, he was carrying four or five small ziplock bags containing a white, rocky substance that he offered to sell Moses for $100. Upon hearing that Moses had no more money, Little said, "Give me fifty." Moses repeated that he had no money, and Little handed the officer one bag and said, "Well, you owe me $50.00." Little then handed the second bag to Moses, along with his pager number. The audiotape of the February 28th drug sale was introduced into evidence at trial.
Moses testified that February 28th was not the first time that he had met Little. Granting the prosecution's motion to introduce such evidence, the court permitted Moses to testify that he had purchased narcotics from Little at approximately 7:27 p.m. on February 10, 1997, at 560 Conkey Avenue.
The defense introduced an alibi witness, Marilyn Pritchett, who testified that Little had been acting as a disc jockey at a party she was hosting on the night of February 28th. The prosecutor confronted Pritchett with her prior statement to an investigator from the district attorney's office, in which she stated that she was not with Little on February 27th or February 28th. On redirect, Pritchett explained that she had told the investigator that she was not with Little on February 28th because she did not want to become involved in Little's criminal proceeding.
The jury returned a verdict convicting Little of the criminal sale count of the indictment. He was sentenced as a second felony offender to an indeterminate term of incarceration of twelve and one-half years to life.
Little appealed his conviction to the Appellate Division, Fourth Department, which unanimously affirmed the judgment against him on December 27, 2000. People v. Little, 278 A.D.2d 863 (N.Y.App.Div. 2000). Proceeding pro se, Little sought leave to appeal from the New York Court of Appeals. This request was denied on April 16, 2001. People v. Little, 96 N.Y.2d 802 (2001).
On November 8, 1999, Little filed a motion to vacate his conviction under New York Criminal Procedure Law § 440.10, arguing that he should have received a hearing regarding the reliability of the prosecution's identification evidence. The trial court denied his § 440.10 motion by letter order dated December 1, 1999. The Fourth Department denied leave to appeal on April 6, 2000.
Little asserts that on August 20, 2001, he also applied for a writ of error coram nobis alleging that his appellate counsel was ineffective. On November 9, 2001, the Fourth Department issued a summary order denying Little's coram nobis application without comment.
This habeas petition, filed on January 2, 2002, followed. Respondent answered on March 13, 2002, stating that he "make[s] no claim that petitioner has failed to exhaust state remedies." (Docket #4 at 4). On June 13, 2002, the Court granted Little's request to hold his petition in abeyance because Little apparently believed that one of his grounds for habeas relief had not been fully exhausted. (Docket # 10). By order dated June 17, 2003, Little was directed to advise the Court by July 21, 2003, what steps, if any, he had taken to exhaust his claim in state court; failure to do so, he was advised, would result in the vacation of the stay. (Docket # 20).
On June 27, 2003, Little wrote to the Court requesting that the stay be lifted. (Docket # 21). The Court lifted the stay by order dated August 12, 2003, and directed Little to file any response to respondent's answer by September 15, 2003. (Docket # 22). No response was filed. Accordingly, this Court deems this matter fully submitted.
DISCUSSION
Little argues that the following grounds entitle him to collateral relief: (1) appellate counsel failed to raise on appeal a claim relating to Little's right to be tried by a fair cross-section of the community; (2) appellate counsel was ineffective for failing to raise a Batson argument on direct appeal; (3) Little was deprived of his right to conflict-free counsel because he was represented by the same attorney at trial and on appeal; and (4) prejudicial evidence of an uncharged crime was admitted at his trial. (Docket #1 at 5A).
A. Exhaustion
A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack on his conviction before he may seek habeas relief in federal court. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)), cert. denied, 531 U.S. 819 (2000). A claim is properly exhausted when the state court is fairly apprised of the claim's federal constitutional nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
Little's evidentiary claim is plainly exhausted because Little raised it on direct appeal, the result of which he sought leave to appeal. With respect to the ineffective assistance of counsel claims, this Court has been unable to compare those claims with the ineffective assistance claims raised in his coram nobis application because neither side has located a copy of that application. However, Little represents that he raised all of his current ineffective assistance of counsel claims in his coram nobis application, and respondent does not argue to the contrary. Under these circumstances, the Court finds that the ineffective assistance of appellate counsel claims are fully exhausted and are thus properly before this Court.
B. Standard of Review
Under the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(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).
Pursuant to the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The writ may not issue, however, simply on the basis of the court's independent judgment that the state court's application of clearly established federal law was erroneous or incorrect. Id. at 411. In order to grant the writ, the reviewing court must find "some increment of incorrectness beyond error," although "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
C. Merits of the Petition 1. Ineffective Assistance of Appellate Counsel
A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993)), cert. denied, 513 U.S. 820 (1994). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal and that absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; see also Smith v. Robbins, 528 U.S. 259, 285 (2000). A habeas petitioner may ground an ineffective assistance claim on an omission of either federal or state law. Mayo, 13 F.3d at 533; Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001).
Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745, 750-54 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy") (citations omitted). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appellate issues. Jones, 463 U.S. at 754; see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533.
(a) Failure to preserve defendant's right to be tried by cross-section of the community
Little asserts that "appellate counsel was ineffective . . . because: petitioner's [sic] entitled to be tried by a fair cross section of the community[.]" (Docket # 1 at 5A). This statement is the sum total of Little's argument on this point. Little provides no information from which a constitutional violation possibly might be discerned. On this record, this claim is hopelessly vague and is not a proper ground for habeas relief. (b) Batson claim
To the extent that this claim is synonymous with his Batson claim, it is dismissed for the reasons discussed below.
Little argues that appellate counsel was ineffective because a " Batson violation should have been argued on direct state appeal." (Docket #1 at 5A). Again, this is the full extent of Little's argument on this point.
As respondent notes, defense counsel made a Batson challenge during voir dire. With regard to one of the venire members, a black woman named Ms. Newport, defense counsel stated, "This is the first black juror [who] has not been removed for cause, but certainly Miss Newport has not given any information that she could not comply with the law, and, frankly, could not be a fair and impartial juror." (Tr. at 143). The prosecutor responded as follows:
Batson v. Kentucky, 476 U.S. 79 (1986).
First of all, I submit there is no pattern that's been used as a perempt [sic] here. Secondly, she was talking about how she's seen cocaine, how her friends use cocaine as a matter of course. I've been taking off everybody that has seen and has friends that use cocaine. I have done that with white jurors as well as — this is the first black juror I've kicked off. I kicked them off because they know people using cocaine and I believe it's my right to use a perempt [sic] on them. In addition, she was very vocal when asked if police officers could lie. She spoke up and she was very loud on that and that caused me concern also.
(Tr. at 143-44). The trial court denied defense counsel's Batson challenge.
In Batson, the Supreme Court established a three-pronged test to evaluate a claim that a peremptory strike was race-based. Batson, 476 U.S. 79, 96-98 (1986). First, the defendant must make a prima facie case that the challenge is based on race. Id.; Hernandez v. New York, 500 U.S. 352, 358 (1991). Next, the prosecutor must articulate a race-neutral reason for the challenge. Batson, 476 U.S. at 97-98; Hernandez, 500 U.S. at 358-59. Finally, the trial court must determine whether the defendant has met his burden of demonstrating by a preponderance of the evidence that the government's articulated reason was pretextual and that the challenge at issue was in fact motivated by race. Batson, 476 U.S. at 96, 98; Hernandez, 500 U.S. at 359. See also United States v. Brown, 352 F.3d 654, 660-61 (2d Cir. 2003).
Even assuming that Little has demonstrated a prima facie case that the challenge to Ms. Newport was based on race, his claim fails nonetheless. Although the trial court did not require him to do so, the prosecutor articulated a race-neutral explanation for his decision to excuse the juror — that is, the venire member had indicated that she was familiar with cocaine and that she had a friend who had used it in the past. According to the prosecutor, as with other venire members who responded similarly, he exercised a peremptory challenge on this basis. The proffered reason certainly was sufficient to fulfill the prosecution's obligation at the second stage of the Batson inquiry. See Purkett v. Elem, 514 U.S. 765, 768 (1995) ( per curiam).
On this record, this Court cannot conclude that the trial court erred in finding that defendant failed to satisfy his burden of demonstrating that the prosecutor purposefully discriminated against the excused black juror. Thus, because Little did not have a meritorious Batson argument, appellate counsel was not ineffective for failing to raise this claim on appeal. (c) Conflict of interest
The record discloses that there were two black members of the venire. One was Ms. Newport; the other was excused for cause with the consent of both parties. (Tr. at 177).
Having found that appellate counsel did not act unreasonably in failing to raise a Batson claim, this Court need not consider whether Little suffered any prejudice as a result. Any claim of prejudice would be belied, in any event, by the baseless nature of Little's Batson claim. See Mayo, 13 F.3d at 534 ("To establish prejudice in the appellate context, a petitioner must demonstrate that `there was a "reasonable probability" that [his] claim would have been successful.'") (alteration in original) (quoting Claudio v. Scully, 982 F.2d at 803).
Little asserts that he was denied "conflict-free counsel on appeal." Little's sole reason for believing that his appellate counsel had a conflict of interest is that Little "was assigned [the] same counsel on appeal as on trial." (Docket #1 at 5A). It is perfectly acceptable, not to mention common, for a defendant to be represented by the same assigned counsel at trial as well as on appeal. In his petition, Little has not articulated the barest hint of a conflict of interest arising from the public defender's representation of him both at trial and on direct appeal. Accordingly, this claim is dismissed.
Indeed, the record before this Court shows that different attorneys from the public defender's office represented Little at trial and on appeal. As stated above, even had he been represented by the same attorney, the claim still would lack merit.
2. Improper admission of evidence of an uncharged crime
Finally, Little argues in his petition that "[e]vidence of uncharged crimes was so prejudicial as to violate due process." (Docket #1 at 5A). On direct appeal, Little argued that the trial court improperly allowed the prosecutor to introduce evidence of a prior, uncharged drug sale allegedly made by Little to Moses at the same location less than three weeks earlier. Little conceded that Moses' testimony was relevant to the issue of identification, but argued that the trial court committed reversible error in not limiting the officer's testimony only to Little's identity.
At trial, outside of the presence of the jury, the prosecutor sought leave of the court to ask Moses if he had met the defendant prior to the drug sale at issue. (Tr. at 177-78). The prosecutor also requested permission to ask the officer if he had purchased cocaine from Little at that time, arguing that such evidence was relevant to the issue of identity. (Tr. at 178). Defense counsel opposed the application, arguing that Little's involvement in a prior drug sale was unduly prejudicial. The trial judge ruled that because the defense theory was based on a lack of proof of identity, the evidence could be introduced with "appropriate limiting instructions." (Tr. at 179).
The prosecutor made his application under People v. Molineux, 168 N.Y. 264 (1901), which holds that the prosecution may present evidence of a defendant's prior uncharged criminal or immoral acts for limited purposes, including to prove motive, identity, and intent. The federal analog to the Molineux rule is codified in Rule 404(b) of the Federal Rules of Evidence. Brown v. Williams, 820 F. Supp. 64, 69 (W.D.N.Y. 1993).
During the People's case-in-chief, Moses was allowed to testify, "I purchased narcotics from [Little] on that date [February 10, 1997] also." (Tr. at 215). As promised, the trial court gave the following limiting instruction:
Ladies and gentlemen, I am going to interrupt for a second and advise you as a matter of law that I have allowed the People to introduce evidence that on another occasion, I believe it was February 10th, this Defendant may have committed another bad act. The fact that this Defendant may have committed a bad act or crime on February 10th is no proof that he possessed any propensity or disposition to commit the crime charged in this indictment or any other crimes and it is not offered by the District Attorney for that purpose. The People offer the evidence of the February 10th matter solely for the purpose of establishing the Defendant's identity. I charge you that this evidence may be considered by you only for that limited purpose.
(Tr. at 215-16). The trial court issued the same charge to the jury during its final instructions. (Tr. at 343).
On direct appeal, the Appellate Division held as follows:
Supreme Court properly permitted an undercover officer to testify that he had met with defendant on a prior occasion; that testimony was relevant with respect to the limited issue of identification. We agree with defendant, however, that the court erred in permitting the officer to testify concerning the purpose of the prior meeting. That testimony was not relevant to the issue of identification and was highly prejudicial. The admission of the officer's testimony concerning the purpose of the prior meeting is harmless error, however, because the evidence of defendant's guilt is overwhelming and there is no significant probability that defendant otherwise would have been acquitted.People v. Little, 278 A.D.2d at 863 (citations omitted).
A writ of habeas corpus will not issue to redress mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). The Due Process Clause nevertheless requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), cert. denied, 525 U.S. 840 (1998). Only errors of state law that rise to the level of constitutional violations may result in habeas relief.
Evidence that a defendant committed similar uncharged crimes is generally excluded under New York law "because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past." People v. Alvino, 71 N.Y.2d 233, 241-42 (1987). The trial court may admit such evidence, however, "if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule." Id. ("[E]vidence of uncharged crimes may be relevant to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant. The list, of course, is not exhaustive."). The evidence will be allowed so long as its probative value outweighs the potential for prejudice to the defendant. Id. at 242; see also United States v. Sappe, 898 F.2d 878, 880 (2d Cir. 1990).
I agree with the Appellate Division that the trial court erred in admitting evidence as to the nature of Little's prior dealings with Moses, rather than in limiting it to testimony that Moses recently had met Little. See United States v. Carrillo, 981 F.2d 772 (5th Cir. 1993) (reversing trial court's decision to admit evidence of defendant's involvement in prior drug transactions to prove identity of defendant charged with narcotics offense); Manning v. Walker, 2001 WL 25637 (E.D.N.Y. 2001) (affirming, on collateral review, trial court's decision to allow prosecution to introduce evidence at trial that defendant had engaged in other "transactions," but precluding government from offering testimony that the previous transactions were drug transactions, in order to prove defendant's identity). Even accepting that the trial court's ruling was error, this Court must determine whether such error was harmless or not.
The Supreme Court has articulated two different standards to be used in determining whether an error may be overlooked by reason of its harmlessness. In Brecht v. Abrahamson, the Court held that on collateral review, an error is harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). In Chapman v. California, which involved the direct review of a state conviction, the Court held that an error is not cause for reversal if it is "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967).
The Second Circuit has noted on several occasions that it remains "an open question in this circuit whether, following the passage of AEDPA, the applicable test on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination `whether the state court's decision was contrary to, or involved an unreasonable application of Chapman.'" Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004) (quoting Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.), cert. denied, 534 U.S. 886 (2001) and citing Parsad v. Greiner, 337 F.3d 175, 185 n. 5 (2d Cir.), cert. denied, 124 S.Ct. 962 (2003); Cotto v. Herbert, 331 F.3d 217, 253-54 (2d Cir. 2003); Ryan v. Miller, 303 F.3d 231, 253-54 (2d Cir. 2002); Fuller v. Gorczyk, 273 F.3d 212, 220-21 (2d Cir. 2001); Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d Cir. 2001); Santana-Madera v. United States, 260 F.3d 133, 140 (2d Cir. 2001), cert. denied, 534 U.S. 1083 (2002)). In each of the foregoing cases, the Court declined to resolve the question, concluding instead that the result was the same under either test. Likewise, in this case, this Court finds that the admission of the prior undercover drug sale by Little was harmless under either standard.
"In making a determination of harmless error, the court looks to the record as a whole, considering the overall strength of the prosecution's case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial." Brown v. Keane, 355 F.3d at 92 (citing Raheem v. Kelly, 257 F.3d 122, 142 (2d Cir. 2001), cert. denied, 534 U.S. 1118 (2002); Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)). Here, Moses testified that on February 28, 1997, he went to 560 Conkey Avenue to purchase cocaine, Little came downstairs and the two men stood in the hallway and conducted the drug sale. Even though it was nighttime, the corridor was well-lit, and Moses had ample time to observe Little and recognize him. Indeed, Moses wore a wire during the February 28th drug transaction, which was played for the jury. In addition, Moses described the person from whom he bought drugs as having gold teeth; as the jury learned at trial, Little has several gold teeth in the front of his mouth. In his report, Moses referred to the person from whom he bought the cocaine as "Nine One," a nickname that Little's friend, Marilyn Pritchett, testified Little uses. Furthermore, on March 8, 1997, Little told another officer from the Rochester Police Department that he and his girlfriend lived at 560 Conkey Avenue. In view of this evidence, the strength of the prosecution's case against Little was compelling, even in the absence of the evidence relating to the prior sale.
The second factor in the balancing test, the importance of the improperly admitted evidence, weighs in Little's favor; evidence that Little previously had sold drugs to Moses plainly was prejudicial, especially considering that Little was on trial for selling cocaine. This prejudice was lessened by the court's two limiting instructions to the jury, which cautioned them that the fact that Little may have committed a crime on February 10th could be considered only to prove Little's identity.
In sum, as the Appellate Division correctly concluded on direct appeal, the trial court erred in allowing the prosecutor to elicit the purpose of Little's first meeting with Officer Moses. The prejudicial effect of this evidence was blunted by the compelling nature of the case against Little, as well as the court's two limiting instructions to the jury. The Court thus cannot find that the admission of the prior uncharged crime had a substantial and injurious effect on the verdict, or was an unreasonable application of, or contrary to, the holding of Chapman v. California.