Opinion
01 Civ. 8046 (GEL)
March 25, 2002
OPINION AND ORDER
Petitioner Joseph McKee seeks a writ of habeas corpus, challenging his conviction in New York County Supreme Court for various crimes including kidnaping, burglary and robbery, and his resulting sentences of sixteen to thirty-two years in prison. The convictions stem from a botched home invasion in 1991, when two men and a woman broke into a cocaine dealer's Greenwich Village apartment seeking money and drugs. The crime was thwarted by the quick arrival of police called by an alert doorman, and the woman was captured trying to escape the scene. (She died of a drug overdose before petitioner's trial.) The two men, however, broke into a second apartment, held two women hostage for several hours, and then took their prisoners out of the building and into a taxi to cover their escape.
Several years later, McKee and a co-defendant, Paul Prosano, were charged with these crimes. The two hostages and the doorman selected McKee and Prosano from carefully-conducted lineups, and identified both men in court as the criminals. Though the drug dealer refused to cooperate with police, his girlfriend, who had only seen one of the attackers, similarly identified Prosano. McKee and Prosano generally fit the description given by the victims at the time. The identifications were further linked and corroborated by the fact that McKee and Prosano had been arrested together in an unrelated incident, and found in possession of guns and a police badge, which were identified by the victims as similar or identical to those displayed by their attackers.
At trial, McKee and Prosano vigorously contested their identification as the robbers. Though all the witnesses had excellent opportunities to observe the perpetrators, there was a gap of nearly five years between the offenses and the identifications. Fingerprints taken from the hostages' apartment did not match those of McKee, Prosano, or the apartment's residents. Moreover, three of the witnesses had earlier selected a different suspect from a photo spread as the robber later identified as Prosano — though all four witnesses had then definitively rejected that suspect in lineups.
The jury found McKee guilty; his convictions were affirmed by the Appellate Division, People v. McKee, 707 N.Y.S.2d 317 (1st Dep't 2000); and leave to appeal to the Court of Appeals was denied, People v. McKee, 95 N.Y.2d 868 (2000). McKee then timely filed the instant petition, raising the same claims he unsuccessfully pursued on his state appeal. The claims are without merit, and the petition will be denied.
Prosano was also convicted. His conviction is not at issue in this petition.
I
McKee's first claim is that his guilt was not proved beyond a reasonable doubt. Essentially, he reargues the supposed weaknesses in the prosecution's identification testimony. But the role of a federal court on habeas is not to second-guess a jury's credibility determinations. "[A] habeas court must defer to the assessments of the weight of the evidence and credibility of the witnesses that were made by the jury and may not substitute its view of the evidence for that of the jury by determining the credibility of conflicting eyewitnesses." Frazier v. New York, 2002 WL 109534 at *6 (S.D.N.Y. Jan. 28, 2002). citing Herrera v. Collins, 506 U.S. 390, 401 (1993). The only issue is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational finder of fact could have found the essential elements of the crimes beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, with the well-corroborated identification testimony of two victims (who were held hostage by the unmasked perpetrators at close quarters for several hours) and another eyewitness, this standard is amply met. The Appellate Division, with a broader mandate for review, found the jury's guilty verdict not only "based on legally sufficient evidence," but also "not against the weight of the evidence." McKee, 707 N.Y.S.2d at 318. There is no disputing that conclusion; any question about the correctness of the witnesses' identifications was for the jury.
In making his sufficiency argument, McKee points out, among other things, that the original fingerprint evidence was destroyed by the Police Department before trial, and that the jury heard possibly prejudicial testimony about his and Prosano's other arrest. McKee does not identify these issues as separate constitutional claims. In light of his pro se status however, his claims should be interpreted liberally, and in an excess of caution, the Court has considered whether these issues present any possible violation of petitioner's rights.
It is not entirely certain that McKee is entitled to the generous reading given to pro se claims. Although he is unrepresented on this petition, his statement of grounds for relief copies verbatim the point headings of his brief to the Appellate Division, which was prepared by counsel, and which petitioner incorporates by reference. Compare Petition at 5 with App. Div. Brief, Fleischman Aff., Ex. A at 21, 28.
These arguments, however, afford petitioner no relief. Not having been presented to the Appellate division as distinct constitutional issues, they remain unexhausted. They are also likely procedurally defaulted, the Appellate Division having specifically noted that they were "not argued to be independent bases for reversal," id., and declined to address them as such. But at any rate, they identify no constitutional error. While the bad faith destruction of potentially exculpatory evidence by the authorities violates the Constitution's guarantee of due process of law,Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the record here, which was extensively developed at trial, conclusively refutes any claim of bad faith. Moreover, the defendants had the benefit of the principal exculpatory value of the missing evidence, as it was stipulated that the fingerprints at the crime scene did not match theirs, and they received the additional benefits of a full airing before the jury of the facts concerning the destruction of the evidence, and of an instruction to the jury permitting the jurors to draw an adverse inference against the prosecution from the loss of the original evidence. (Tr. 867-68). There was thus no prejudice to their defense.
Nor was there any error, let alone constitutional unfairness, in the admission of the highly probative evidence about defendants' other arrest. The evidence was relevant because of the identification of items in their possession at the time of the arrest and because their arrest together demonstrated the association between the two defendants. Given that the reasons for the arrest were excluded, and defendants specifically requested that no limiting instruction be given, the trial court's exercise of discretion to admit this evidence cannot be faulted.
II
McKee's second claim is that the trial court erred in limiting his cross-examination of a police detective concerning alleged pressure on him, at the time of defendants' arrests, to solve an unrelated murder in which Prosano may have been implicated. But "restrictions on a criminal defendant's right to confront adverse witnesses and to present evidence" are unconstitutional only if they are "arbitrary or disproportionate to the purposes they are designed to serve." Michigan v. Lewis, 500 U.S. 145, 151 (1991). "Trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitious or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
To say the very least, the trial judge's exercise of his discretion here was not an "unreasonable application" of these principles. 28 U.S.C. § 2254 (d)(1). As the Appellate Division correctly observed, the testimony of the detective was hardly central to the case, and the theory that defendants were framed for their crime to compensate for the failure to make a different case against Prosano was "purely speculative and without a good faith basis." McKee, 707 N.Y.S.2d at 318. Moreover, exploration of the progress of a completely separate investigation would have resulted in juror confusion and waste of time, and could have prejudiced Prosano by connecting him to an even worse crime than those at issue. Precluding cross-examination on these issues was entirely reasonable.
CONCLUSION
Petitioner had a fair trial, and the jury found him guilty. His claims of constitutional error are without merit. Accordingly, the petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.