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October 4, 1990


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


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.


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 established.

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 that location.

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 ...

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