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United States District Court, Southern District of New York

January 4, 1991


The opinion of the court was delivered by: Sprizzo, District Judge:


Petitioner Anthony Peterson brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), challenging his state court conviction on rape, sodomy, robbery and kidnapping charges. Petitioner makes three claims: (1) that he was deprived of the right to testify on his own behalf by the state court's rulings on the admissibility of evidence of similar crimes for impeachment purposes; (2) that he was denied due process because the sentencing court considered similar crimes for which the prosecution asserted that petitioner was responsible in fixing his sentence; and (3) that he was denied due process by the trial court's questioning of witnesses. The matter was referred to Magistrate Sharon E. Grubin, who recommended that the petition be denied. The Court has reviewed the Magistrate's Report and Recommendation ("Report") and the objections thereto de novo, see 28 U.S.C. § 636(b) (1988), and for the reasons set forth below the petition is dismissed.


Petitioner was convicted, after a jury trial, of two counts of rape in the first degree, one count of sodomy in the first degree, two counts of robbery in the first degree and two counts of kidnapping in the second degree. He was sentenced on June 25, 1985 to consecutive terms of imprisonment of eight and one-third to twenty-five years on each rape count, the sodomy count and the robbery counts, and concurrent terms of eight and one-third years to twenty-five years on the kidnapping counts. The convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court on December 2, 1986, People v. Peterson, 125 A.D.2d 1014, 508 N.Y.S.2d 360 (1st Dep't 1986), and leave to appeal was denied by the New York Court of Appeals on May 13, 1987. People v. Peterson, 69 N.Y.2d 1008, 511 N.E.2d 101, 517 N.Y.S.2d 1042 (1987).

The convictions arose from an attack upon a teenage couple in Central Park on July 14, 1984. The evidence introduced at trial established that Micki McPherson and Carlos Guzman, both fourteen-years-old, were attacked by petitioner and another man while waiting for some friends. See Report at 2-3. The couple were taken into a secluded wooded area at knifepoint, where the boy was tied and blindfolded with his own clothes, and robbed. The assailants then took the young girl to another part of the woods where both of them raped her and petitioner sodomized her. She was also robbed. See Report at 3-4. The youths eventually managed to escape when petitioner left to get some friends. See Report at 5. Petitioner was apprehended on July 18, 1984. Thereafter, he was indicted on July 30, 1984, tried and convicted.*fn1


The State Court's Evidentiary Ruling

During petitioner's trial, the prosecution sought to introduce evidence of approximately a dozen similar crimes. These crimes were all attacks upon young couples in Central Park in 1983 and 1984 that occurred in the same vicinity as the incidents for which he was on trial. The prosecution also tried to introduce evidence of three 1978 rapes for which petitioner had been adjudicated a youthful offender.

The trial court barred the prosecution from introducing that evidence on its direct case, but ruled under People v. Sandoval, 34 N.Y.2d 371, 314 N.E.2d 413, 357 N.Y.S.2d 849 (1974), that if petitioner chose to testify, the prosecution could impeach his credibility by questioning him about three of the similar acts.*fn2 See Trial Transcript ("Tr.") at 410-11, 414, 422-23.*fn3 Petitioner did not testify.

Petitioner's assertion that he was deprived of the right to testify on his own behalf arises out of this ruling. He argues that the Court misapplied Sandoval in that it improperly focused upon the similarities between the alleged similar acts and the McPherson incident and thus did not balance the probative value of that evidence against its potentially prejudicial effect.*fn4

At the outset, the Court notes that there is a serious question as to whether the claim that the trial court misapplied Sandoval was sufficient to alert the state courts to the federal constitutional nature of the claim asserted. See 28 U.S.C. § 2254(b), (c) (1988). However, since it is clear that this claim must be dismissed on the merits because of petitioner's failure to testify at trial, the Court sees no need to resolve that issue. See Granberry v. Greer, 481 U.S. 129, 135, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987).

It is well-settled that a petitioner's failure to testify is fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling because in the absence of such testimony the Court has no adequate non-speculative basis upon which to assess the merits of that claim even when the issue is raised on direct appeal. See Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (1984). It follows that where, as here, a similar claim is raised by a petition for a writ of habeas corpus, the same result must obtain. See Carroll v. Hoke, 695 F. Supp. 1435, 1439-40 (E.D.N.Y. 1988), aff'd mem., 880 F.2d 1318 (2d Cir. 1989); Underwood v. Kelly, 692 F. Supp. 146, 151 (E.D.N.Y. 1988), aff'd mem. 875 F.2d 857 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 117, 107 L.Ed.2d 79 (1989); Carrasquillo v. Kirk, 677 F. Supp. 193, 194-95 (S.D.N.Y. 1988).

The Sentencing Claim

Petitioner's second claim stems from the state court's comments at sentencing which indicate that the court imposed the maximum possible sentence upon petitioner because, in the court's view, he was responsible for the series of identical assaults referred to above, for which petitioner had not been tried or convicted.*fn5 See Transcript of Sentencing ("Sent.Tr.") at 17-20. Additionally, he contends that because the Court failed to hold a hearing on the issue of whether petitioner actually committed those crimes it had no factual basis to believe that he did. These claims lack merit.*fn6

It is clear that a sentencing court can consider a wide range of information in fixing an appropriate sentence for a criminal defendant. See, e.g., United States v. Grayson, 438 U.S. 41, 49-50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 250-51 & n. 15, 69 S.Ct. 1079, 1084-85 & n. 15, 93 L.Ed. 1337 (1949); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987); United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986). Among the information which a court may properly consider is other criminal conduct that may fairly be attributed to the defendant, including matters for which he has not been charged or convicted, so long as there is a factual basis for reliance upon such matters. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987); Lee, supra, 818 F.2d at 1055; Vargas v. Hoke, 664 F. Supp. 808, 812 (S.D.N.Y. 1987).

In this case, there was clearly a sufficient factual basis for the state court to believe that petitioner was in fact guilty of the additional rapes that it considered in fixing his sentence.*fn7 The prosecution represented at sentencing, and during the trial, that it possessed sufficient information to connect petitioner to a series of rapes that were committed in the same part of Central Park. See Tr. at 250-51; Sent.Tr. at 6-12. These cases involved a virtually identical modus operandi, i.e., a teenage couple was attacked, they were taken to a wooded area, the boy was tied up with his own clothes, the girl was raped and sodomized, they were both robbed; all of the incidents occurred in the same area in Central Park; and the description of the perpetrator in several of those incidents matched that of petitioner. See Tr. at 250-51; 411-14; Sent.Tr. 6-12. Indeed, in at least one case, the victim, who subsequently refused to cooperate in the prosecution, identified a photograph of petitioner as her attacker. See Tr. at 412; Sent.Tr. at 10-11. Moreover, petitioner had pled guilty as a youthful offender to rape and sexual abuse for three assaults that took place in the same section of Central Park in 1978.*fn8 See Sent.Tr. at 8-9.

The court rejects petitioner's argument that he was denied due process by the state court's failure to hold a hearing before it considered these matters in imposing sentence. There is no constitutional right to an evidentiary hearing to challenge disputed factual matters at sentencing. See Romano, supra, 825 F.2d at 728-29. Since the Constitution permits the sentencing court broad discretion in assessing a defendant's challenge to pre-sentence information, the court may resolve such disputes on the basis of written submissions, arguments at sentencing, or an evidentiary hearing as it sees fit. See id.

Moreover, although throughout the trial and at the sentencing hearing, the prosecution set forth in detail the facts it had that connected petitioner to these crimes, other than making a general claim that he was innocent of those crimes, petitioner did not request a hearing to contest those issues. See Sent.Tr. at 14-16. Given that circumstance, his assertion that his constitutional rights were violated by the court's reliance on those matters at sentence borders on the frivolous.*fn9 See Lee, supra, 818 F.2d at 1057; Pardo v. Leonard, 1989 WL 38325, 1989 U.S.Dist. LEXIS 4336 (E.D.N.Y. April 6, 1989) (88 CV 2072).

The Trial Court's Questioning of Witnesses

The Court has reviewed the entire trial transcript and agrees fully with the Magistrate's conclusion that the trial judge's actions were not in any way improper, did not prejudice petitioner, and certainly did not deprive him of a fundamentally fair trial.


For the reasons set forth above, the petition for a writ of habeas corpus is dismissed and the Clerk of the Court is directed to close the above-captioned action.

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