The opinion of the court was delivered by: SPRIZZO
Petitioner, Sammie Hill, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). he alleges six grounds in support of his application. Because three of those six grounds are unexhausted, this Court must dismiss his entire petition pursuant to Rose v. Lundy, 455 U.S. 509, 520-22, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).
On September 4, 1979, a jury found petitioner guilty of grand larceny in the second degree, N.Y. Penal Law § 155.35 (McKinney 1975), and fraudulent accosting, id. § 165.30. Prior to sentencing, he moved to vacate the jury verdict and for a new trial. That motion was denied. On November 7, 1979, a judgment of conviction was rendered by the Supreme Court, New York County, and Hill was sentenced to concurrent prison terms of three and one half to seven years on the grand larceny count and one year on the fraudulent accosting count. His conviction was unanimously affirmed on direct appeal to the Appellate Division, First Department, on November 24, 1981, and leave to appeal to the New York Court of Appeals was denied on January 18, 1982.
Petitioner was convicted of participating in a "handkerchief switch" confidence game. The complaining witness, Solomon Seales, was an eighty-two year old man. He testified that he was approached by two men on the street (one who claimed to be a "sailor" and the other whom Seales later identified as petitioner). The "sailor" claimed that he had just come off a ship and had a large amount of money in his possession but was afraid to entrust it to a bank. The two men ascertained that the complainant had no money with him and thenwalked him across the street to their parked car, where a woman accomplice was seated. All four persons then drove to Seales' apartment and went inside.
After Seales denied having any money at home, the two men went into the bathroom and emerged with a handkerchief with something tied up in it. The "sailor" claimed that it contained his money and asked Seales to keep it for him until he returned to reclaim it.Complainant then took the handkerchief into his bedroom and placed it in his bureau drawer; the woman observed him doing so. Seales kept his own money in a plastic bag in the same drawer. After complainant returned to the living room, the woman went into the bedroom and then quickly left the apartment, carrying what appeared to be a plastic bag. Seales went into the bedroom and saw that his life savings of $5,170 were missing. He ran down the street in pursuit of the two men and the woman, but they drove off in their car and he was unable to catch them. Mr. Seales then returned to his apartment, confirmed that his money was gone, and removed the handkerchief from the drawer; it was stuffed with newspaper.
Hill alleges the following grounds in support of his petition for a writ of habeas corpus:
(1) that he was denied due process of law when the trial court permitted a detective to testify as an expert witness regarding the modus operandi of the handkerchief switch confidence game;
(2) that he was denied a fair trial because the expert characterized the handkerchief switch as "basically a Black confidence game," Trial Transcript ("Tr.") at 76;
(3) that he was denied due process when the trial court, after bothsides had rested, refused to permit the defense to admit exhibits that it had inadvertently failed to admit sooner;
(4) that the trial court erred in not disregarding the testimony of the complaining witness because Seales was initially unable to identify petitioner at trial;
(5) that he was denied due process of law because he was convicted through the use of fraudulent evidence;