all of the claims were alleged on direct appeal. However, as to the legal
bases, petitioner claims that the state courts had a fair opportunity to
assess the constitutional nature of the claims on his motion to reargue
the direct appeal, made pursuant to § 470.50 of the New York Criminal
On his motion to reargue, which was denied by the appellate division,
petitioner cited pertinent federal cases for each of these claims, each of
which in turn employed some constitutional analysis. Therefore, pursuant
to Daye, petitioner has fairly presented the constitutional nature of
these claims to the highest state court possible. See Daye, 696 F.2d at
194. Since the order which denied reargument is not appealable, People
v. Shorts, 33 A.D.2d 1040, 308 N.Y.S.2d 810 (2d Dep't 1970), petitioner
has exhausted his state remedies with respect to these claims.
C. The § 440 Motion
Petitioner's remaining claim is that the conviction was predicated upon
perjured testimony, a claim first asserted in petitioner's § 440
motion. Within this motion petitioner cited specific federal cases
employing constitutional analysis, and also specifically alleged a
violation of the fourteenth amendment. The New York Supreme Court,
Special Term, denied the motion, and thereafter the appellate division
denied leave to appeal. No appeal lies to the court of appeals from an
order denying a motion for leave to appeal made to the appellate
division. N.Y.Crim.Proc.Law § 450.15 (McKinney 1983); see also,
Sanders v. Sullivan, 701 F. Supp. 996, 997 n. 1 (S.D.N.Y. 1987). Thus,
petitioner has exhausted his state remedies with respect to this claim.
For the reasons stated above, this Court concludes that petitioner has
exhausted his state remedies with respect to the six grounds urged in the
petition. Accordingly, the Court now turns to address the claims on their
II. THE MERITS OF PETITIONER'S CLAIMS
A. Involuntary Confession Claim
The ultimate issue with respect to the voluntariness of petitioner's
confession requires independent federal consideration in a federal habeas
corpus proceeding. Miller v. Fenton, 474 U.S. 104, 110-12, 106 S.Ct.
445, 449-51, 88 L.Ed.2d 405 (1985). Although a federal court is in a
better position to determine whether the confession was obtained in a
manner consistent with the Constitution, "state-court findings [of fact]
are conclusive on the habeas court if fairly supported in the record."
Id. at 117, 106 S.Ct. at 453.
The specific findings of fact which indicate that the confession was
obtained voluntarily in the case at bar can be found in the minutes of
the Dunaway and Huntley hearings. According to the record, petitioner
voluntarily accompanied a Detective Rodriguez to the police station. Tr.
863.*fn2 Prior to being interrogated, he was advised in Spanish of his
constitutional rights, consistent with Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record also reflects that at
this time, petitioner was free to leave, having been neither under arrest
nor restricted in any manner. Tr. 876. After agreeing to answer questions
without an attorney present, petitioner confessed that he was present the
night of the murder, and that he had cut the victim on the arm.
It is to be noted that not all seizures invoke the protection of the
fourth amendment. See Terry v. Ohio, 392 U.S. 1, 8-11, 88 S.Ct. 1868,
1872-75, 20 L.Ed.2d 889 (1968). In the case at bar, it appears that a
seizure ultimately occurred at the point when petitioner was not free to
leave. See Florida v. Royer, 460 U.S. 491, 497-500, 103 S.Ct. 1319,
1323-1326, 75 L.Ed.2d 229 (1983). That point occurred during petitioner's
interrogation, at which time he placed himself at the scene of the
murder, simultaneously giving the detective probable cause to hold him
for further questioning. Although it has been established that
one may not be held for interrogation when probable cause does not
exist, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824
(1979), the fact that petitioner voluntarily accompanied the detectives
and thereafter confessed to being at the scene of the murder negates any
possibility that the police detained him unconstitutionally. People v.
Morales, 42 N.Y.2d 129, 397 N.Y. So.2d 587, 590-92, 366 N.E.2d 248, 250-53
(1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 765
Although, as noted above, the ultimate issue of voluntariness is a
legal question requiring an independent federal determination, in this
case the state's findings of fact are clearly supported in the record.
Furthermore, petitioner has failed to establish a constitutional
violation. Consequently, this Court can find no reason to deviate from
the state court's determination. Accordingly, this Court holds that
petitioner's first claim is without merit.
B. Prosecutorial Misconduct
A prosecutor's conduct results in a denial of due process when his
improper statements cause substantial prejudice to the defendant. See
United States v. Bivona, 487 F.2d 443, 444 (2d Cir. 1973); United States
v. Modica, 663 F.2d 1173, 1181 (D.C.Cir. 1981), cert. denied,
456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). The court must weigh
several factors when determining whether the prosecutor's conduct resulted
in substantial prejudice, including: (a) the severity of the misconduct;
(b) the measures adopted to cure the misconduct; and (c) the certainty of
conviction absent the improper statements. United States v. Parker,
903 F.2d 91, 98 (2d Cir. 1990) (citations omitted); Modica, 663 F.2d at
It is well-established that a prosecutor should refrain from injecting
personal expressions of opinion, or vouch for a witness' credibility, at
trial. See Bivona, 487 F.2d at 445-7; United States v. Santana,
485 F.2d 365, 370-371 (2d Cir. 1973), cert. denied, 415 U.S. 931,
94 S.Ct. 1444, 39 L.Ed.2d 490 (1974); United States v. Drummond,
481 F.2d 62, 63-64 (2d Cir. 1973). The record appears to suggest that
the prosecutor may have acted improperly during his summation. The
prosecutor referred to the petitioner as a "nasty drunk", improperly
suggested that an indictment had factual validity, and vouched for a
detective's truthfulness. Tr. 1470-78.
Despite these arguably improper statements, the record indicates that
the trial court made every effort to cure the effects of the remarks. The
trial court sustained objections made by defense counsel, and the record
further suggests that the jury would have convicted petitioner even if
the improper statements had not been made, in light of the overwhelming
evidence against petitioner. Numerous witnesses testified, and
petitioner's confession not only placed him at the scene of the murder,
but additionally detailed his involvement. Therefore, petitioner is
unable to demonstrate that the prosecutor's conduct during summation
resulted in substantial prejudice. Consequently, this Court holds that
petitioner is unable to prove that this conduct denied him of a fair
C. Admission of Hearsay Testimony
Since "[n]ot every admission of inadmissible statements can be
considered reversible error, " this Court must determine whether the
hearsay testimony admitted into evidence constituted prejudicial error.
United States v. Reynolds, 715 F.2d 99, 104 (3d Cir. 1983). As the Second
Circuit has noted, "the erroneous introduction of evidence can be
prejudicial even though . . . there was other sufficient evidence to
sustain the conviction." United States v. Ruffin, 575 F.2d 346, 359-60
(2d Cir. 1978). The critical inquiry is whether the error influenced the
jury's verdict. Id. at 360.
According to the record, on direct examination Detective Rodriguez
testified that a third party had informed him that petitioner had been
asked to leave his prior residence due to problems regarding alcohol
consumption. Tr. 848. The trial court denied the defense counsel's
objection and motion to strike as untimely, but sustained as to any
further testimony. Tr. 850. It is
petitioner's contention that the admissibility of such testimony denied
him a fair trial.
In light of the fact that petitioner admitted to being intoxicated on
the night of the murder, this Court cannot find that the erroneously
admitted testimony influenced the jury's verdict. Although the testimony
may have led the jury to infer that petitioner had an alcohol problem,
such an inference could easily have been drawn based on the prior
testimony. Thus, this Court holds that the testimony at issue did not
deny petitioner a fair trial.
D. Insufficiency of the Evidence
A federal habeas court must consider whether there was sufficient
evidence to justify a trier of fact to find guilt beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 313-20, 99 S.Ct. 2781,
2785-90, 61 L.Ed.2d 560 (1979). The relevant inquiry is whether, "after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson, 307 U.S. at 319, 99 S.Ct. at
2789 (citing Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620,
1624-25, 32 L.Ed.2d 152 (1972)).
Applying the standard as set forth in Jackson to the specific facts of
the instant case, this Court cannot accept petitioner's contention. A
review of the record in a light most favorable to the prosecution reveals
that a rational jury could have found petitioner guilty of murder in the
second degree beyond a reasonable doubt. See N.Y. Penal Law § 125.25
According to the testimony of Dr. Dubey, the chief serologist in the
Suffolk County Crime Laboratory, the wound petitioner confessed to have
caused could not have been inflicted while the deceased was lying on the
floor, but rather as the victim was being physically held up after having
tried to escape his attackers. Tr. 709-711. Evidence of petitioner's
intent was also supported by the testimony of Dr. Graverholz, the deputy
medical examiner and pathologist, who testified that the victim's wounds
were consistent with a scenario involving two assailants rather than
one. Tr. 173-174, 215.
According to the evidence discussed above, this Court holds that a
rational trier of fact could have reasonably found, beyond a reasonable
doubt, that the petitioner had "intent to kill." Therefore, petitioner's
contention that there was insufficient evidence to support his conviction
is without merit.
E. Improper Jury Instruction
Petitioner contends that the trial court declined to charge the jury on
circumstantial evidence, and that such error caused the jury to make
unwarranted inferences from the evidence. This Court finds such a
contention to be without merit.
Absent clear error by the trial court in its instructions, failure to
make a timely request for, or object to, the jury instructions waives
objection to the charge given. See People v. Cadorette, 56 N.Y.2d 1007,
453 N.Y.S.2d 638, 439 N.E.2d 353 (1982); Edwards v. Jones, 720 F.2d 751,
753 (2d Cir. 1983). According to the record, petitioner's trial counsel
affirmatively indicated that he was not requesting a circumstantial
evidence charge, and it is to be noted that he did not object to the
charge given. Tr. 1612. The record also indicates that this was done with
the complete knowledge and acquiescence of petitioner. Thus, the issue
not having been raised previously, it was not preserved for review. See
Cadorette, 453 N.Y.S.2d at 638, 439 N.E.2d at 353-54.
Petitioner's contention that the jury instruction on accessorial
liability was confusing and erroneous is also without merit. According to
the record, the court charged the jury that "the law requires that the
people prove beyond a reasonable doubt that there was, in fact a common
purpose, an enterprise." Tr. 1613. Thereafter, the jury requested a
definition of "acting in concert," and the court provided one which
incorporated trial counsel's request for language concerning a common
scheme or plan. Tr. 1630. This Court
finds that the language used in the instructions was proper,
furthermore, there is no evidence in the record to support the contention
that the instructions were confusing to the jury.
F. Perjured Testimony
Petitioner contends that his conviction was predicated upon the
perjured testimony of an expert witness. More specifically, petitioner
alleges that Dr. Dubey, then chief serologist in the Suffolk County Crime
Laboratory, falsely stated his credentials during the trial. Petitioner
argues that this contention is supported by the fact that five years
after petitioner's conviction, Dubey pled guilty to falsely stating his
credentials during numerous other trials.
In deciding whether there are legitimate grounds for a new trial this
Court must determine whether it can be said, in view of the overwhelming
evidence of guilt, that disclosure of the witness' true credentials would
give rise to a reasonable probability that the result would have been
different. United States v. Bagley, 473 U.S. 667, 678-82, 105 S.Ct.
3375, 3381-84, 87 L.Ed.2d 481 (1985). According to the record, Dubey
testified that he had attended Rensselaer Polytechnic Institute and Long
Island University in obtaining a bachelor's degree in biology, and the
City University of New York for a masters degree in forensic science.
After pleading guilty to the perjury counts, Dubey acknowledged both
that he did not receive a bachelor's degree from Rensselaer, and that he
did not have a master's degree. However, it was disclosed that Dubey had
in fact attended Rensselaer, although in actual fact he received his
bachelor's degree from Long Island University. Furthermore, it was
revealed that Dubey had completed the course work for his masters, but
had not finished his thesis. Thus, although Dubey's testimony concerning
his credentials was misleading, it was not completely untrue.
In view of all the other evidence of guilt, this Court cannot find that
disclosure of Dubey's true credentials would give rise to a reasonable
probability that the jury's verdict would have been different. See id.
Although Dubey's testimony was misleading, it did not impermissibly
influence the jury's decision, and thus the admissibility of such
testimony does not constitute ground for a new trial.
For the reasons set forth above this Court finds that each of
petitioner's claims in support of the petition are without merit.
Accordingly, petitioner's application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is denied.