The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION
This Court has received and reviewed the report and
recommendation issued by Magistrate Sharon E. Grubin on September
12, 1990 in the above-captioned action. No timely objections to
the Report and Recommendation have been received from the parties
in this action. The Court has considered the report and agrees
with its recommendations. Accordingly, it is hereby
ORDERED that the Report and Recommendation issued
by Magistrate Grubin on September 12, 1990 is
accepted in accordance with 28 U.S.C. § 636(b).
Accordingly, it is further
ORDERED that for the reasons outlined in Magistrate
Grubin's Report and Recommendation the petition for
habeas corpus is denied.
REPORT AND RECOMMENDATION TO THE HONORABLE ROBERT P. PATTERSON,
Petitioner pro se seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his March 28, 1985 conviction after
a jury trial in the New York State Supreme Court, Bronx County,
of murder in the second degree (N.Y.Penal Law § 125.25(3) (felony
murder)). He was sentenced to an indeterminate prison term of
twenty years to life. The Appellate Division, First Department,
affirmed the conviction without opinion on June 17, 1986, People
v. Martin, 121 A.D.2d 849, 503 N.Y.S.2d 470, and the New York
Court of Appeals denied leave to appeal on September 30, 1986,
68 N.Y.2d 815, 507 N.Y.S.2d 1032, 499 N.E.2d 881. The petition
pleads the following two issues which were also presented in the
Appellate Division brief: (1) whether the evidence was sufficient
to prove petitioner's guilt beyond a reasonable doubt; and (2)
whether certain comments of the prosecutor during summation
denied petitioner a fair trial.
Petitioner's conviction arises from the death of Pasquale
Ferrara, who developed peritonitis following surgery for stab
wounds to the arm, leg and abdomen. The police discovered his
body in an automobile in the middle of the intersection of
Kingsbridge Road and Jerome Avenue in the Bronx on the morning of
January 1, 1984. He was taken to Jacobi Hospital where he died on
January 8, 1984. Construing the evidence at trial in the light
most favorable to the state, see, e.g., Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied,
488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v.
Warden, 795 F.2d 5, 6 (2d Cir. 1986), the following was
The victim's father, Tony Ferrara, testified that on December
31, 1983 his son told him that he was going to a New Year's Eve
party with co-workers. When he left the family's Bronx residence
to go to the party, he was driving his Cadillac automobile and
was wearing his father's diamond-studded wristwatch, a bracelet
and his mother's chain necklace.
Co-worker John Carbone also attended the party, which was held
at the Chateau Pelham in the Bronx. Ferrara was at the party when
Carbone and his wife arrived and they sat at the same table.
Carbone also testified that Ferrara was wearing a diamond watch,
a bracelet and a rope chain necklace. At about 2:30 a.m. they
left the party. Both men were "high" from alcohol, but not
intoxicated. In the restaurant parking lot Ferrara mentioned that
he was going downtown and then walked toward his automobile.
Apparently Ferrara then drove to Zippers, a bar in New
Rochelle. Robert Starke, a bartender at Zippers, testified that
the bar was one frequented by homosexuals and that Ferrara
entered some time between 2:30 and 3:00 a.m. He was wearing a
black suit jacket with a red feather in the lapel, dark pants, a
necklace and a wristwatch. He ordered two bottles of champagne
which he shared with other patrons and paid for with money from a
large roll of bills he took out of his pocket. Starke testified
that he talked with Ferrara until 4:30 a.m. at which time Ferrara
said he was heading downtown.
At about 7:50 a.m. the same morning, while on routine motor
patrol, two police officers, Christopher Arborn and Desmond
Jones, discovered Ferrara bleeding and slumped over the steering
wheel of his car. The car, with its passenger-side tires slashed,
was stopped at a traffic light across the street from the men's
shelter located in the West Kingsbridge Armory. The gear shift
was in drive and the motor was running. Blood stains were
noticeable inside and outside the car. Ferrara was wearing an
unbuttoned dress shirt and dark trousers, opened in a manner
revealing his undergarments. He was not wearing a wristwatch or
any jewelry. A dark suit jacket with a feather in the lapel and a
wallet were recovered from the floor in the rear of the car on
the passenger side. The officers called for emergency assistance,
and Officer Jones testified that before the ambulance arrived,
Ferrara identified himself and told Jones that in the bar's
parking lot a short, male Hispanic with dark hair and a Van Dyke
beard had forced him at knifepoint to enter his car and drive to
Witness Alsears Young, a resident at the Kingsbridge Armory
men's shelter, testified that at the shelter on the evening of
December 31, 1983 at some time between 8:00 and midnight, he
overheard a conversation between petitioner and Robert Irizarry
who also lived at the shelter.*fn2 Petitioner said he "was going
to get himself a victim;" in response, Irizarry said,
"[s]omething like, `not starting the new year's off broke without
no money.'" Tr. 340. At some point petitioner and Irizarry left,
and Young next saw them in the morning (see below).
Between 7:30 and 8:00 a.m. on January 1st witness Ciji Adams
was inside the men's shelter visiting friends and met petitioner,
whom he knew, as petitioner was entering the building. Just a few
minutes previously, Adams had heard a gunshot from outside the
armory. Petitioner and Adams had a conversation during which
petitioner gave Adams $20 in repayment of a loan made three
months previously and $20 interest. Adams testified that
petitioner, who appeared intoxicated and whose eyes were
bloodshot, gave him the $40 from a roll of money he took from his
pocket. The money was rolled up with two rubber bands. Adams
asked where petitioner had obtained the money, and petitioner
responded that he and a friend just "took off" an Italian man
they had met up by Bronxwood Avenue in the Bronx. Adams further
testified that petitioner had stated that "where they took him
off" was "right down the block." Tr. 143. Petitioner also
described to Adams his accomplice in the deed as a "Puerto Rican
guy" with "a tail in the back of his head." Tr. 148.
When Adams expressed disbelief at petitioner's admission to
this crime, petitioner told him to go outside. Once there Adams
saw an ambulance, a paramedic and two patrol cars but did not go
over to them to find out what had happened. Prior to Adams' going
outside, petitioner handed him a gun, which Adams identified was
a .32 caliber, from the left side of the waistband of his pants.
Adams testified that he smelled gun powder. He opened the barrel,
and saw that five of the chambers contained shells and one
chamber contained the casing but no bullet.
About seven minutes later, Adams, who had resided at the armory
previously, returned to the inside of the armory. He testified
that two police officers walked in and that petitioner went to
hide in a dark area in the back of the armory. The officers
turned on a light but did not search the armory. Adams did not
see petitioner after the officers left.
Alsears Young testified that later that same morning, some time
between 9:00 and 10:30, he saw petitioner and Irizarry enter the
armory. Petitioner asked if Young knew a place where he could get
some money for jewelry, and he specifically mentioned a chain.
Young, who had some idea of what had happened, said he told
petitioner that he did not want to be bothered with that type of
thing. Young also testified that he overheard Irizarry ...