identification charge or to object to the charge as given.
1. Claim that Defense Counsel Failed to Object to Hearsay Statements
Petitioner claims that defense counsel improperly allowed into evidence hearsay statements which informed the jury that an orange station wagon fled the scene of the burglary. As noted, neither Bordies nor Wiesbecker testified to seeing the intruders leave the house immediately after the incident in an orange station wagon. On direct examination, Bordies testified: "I ran towards [Wiesbecker], seen if she was all right, and that's when my friend Derrick [Porter] walked up . . . and I told my friend Derrick [what happened], and Derrick said, "Yeah, I seen an orange station wagon leave." Tr. 34-35 (emphasis supplied). Petitioner argues that the defense counsel's failure to object to the admission of this hearsay evidence deprived him of effective assistance of counsel.
Errors made by defense counsel must be viewed in light of "all the circumstances and in view of counsel's perspective at the time of the alleged error." Shaw v. Scully, 654 F. Supp. 859 (S.D.N.Y. 1987) (citing Strickland, 466 U.S. at 688-89). Moreover, the Supreme Court has cautioned that "judicial scrutiny of counsel's performance must be highly deferential . . . [because] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689 (citation omitted).
Petitioner concedes that at the time the hearsay statement was made, trial counsel "probably surmised" that an objection to the hearsay would be fruitless because he could have reasonably believed that Porter was going to be called as a witness.
Appellant's Brief at 21. Petitioner also concedes that trial counsel's failure to object to the statements in question was "excusable." Id. The Court agrees with petitioner's characterization and finds that trial counsel's failure to object to the statements in question was not professionally unreasonable in light of his perspective at the time.
Even assuming, arguendo, that trial counsel's conduct was somehow deficient, petitioner does not demonstrate that, absent the errors, the jury would have had a reasonable doubt as to his guilt. See Strickland, 466 U.S. at 695. The evidence adduced at trial shows that the victims knew petitioner prior to the incident, immediately recognized him, and, that when petitioner returned later that evening to Bordies' house, he was carrying a ski mask. Defense counsel's failure to object to the "hearsay evidence" during Bordies' testimony and during the prosecutor's summation did not "prejudice" petitioner in any way that would cause this Court to conclude that counsel was ineffective. Thus, the Court determines that petitioner has not demonstrated that the admission of these statements affected the result of the proceedings.
2. Claim that Defense Counsel Failed to Request the Proper Jury Charge
Petitioner additionally asserts that defense counsel's failure to request an expanded identification charge and to object to the charge as given demonstrates counsel's lack of preparation. However, after an extensive review of the jury charge, this Court finds that the instructions were proper. See supra IIA.
In Strickland, the Supreme Court stated that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. In this case, trial counsel conducted a Huntley hearing which resulted in the suppression of statements made by petitioner. During trial, counsel cross-examined the prosecution's witnesses, attempted to weaken Bordies' testimony by establishing that he could have been mistaken in his identification of the petitioner, made numerous objections, made motions to dismiss, made a request to charge, and gave a closing address to the jury. The trial record clearly shows that defense counsel's conduct before and during trial comported with the adversarial nature of a criminal proceeding and that counsel provided adequate, effective, and meaningful assistance.
In sum, this Court finds that defense counsel provided petitioner with effective assistance of counsel as guaranteed by the Sixth Amendment. Accordingly, petitioner's argument that he was denied effective assistance of counsel is rejected.
D. Claim of Insufficiency of the Evidence
Petitioner asserts that the evidence adduced at trial was insufficient to prove him guilty beyond a reasonable doubt. Petitioner contends that the witnesses' observations were unreliable due to poor lighting, surprise, and fright. To bolster his argument, petitioner points out that on recross examination, Bordies admitted that he "could have been mistaken" that petitioner was the burglar. Tr. 56.
A federal court will not grant habeas relief to a state prisoner challenging his conviction for insufficient evidence if "after reviewing 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 v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781, 2789 (1979) (emphasis original) (citing Johnson v. Louisiana, 406 U.S. 356, 362, 32 L. Ed. 2d 152, 92 S. Ct. 1620, 1624-25 (1972)). Thus, once a jury has found a defendant guilty, a habeas court may "impinge upon 'jury' discretion only to the extent necessary to guarantee the fundamental principles of due process of law." Id. (footnote omitted).
A review of the record in this case supports the verdict and, moreover, clearly satisfies due process requirements. The primary evidence against petitioner was the victims' identification of petitioner's voice, build, and clothes. Indeed, Wiesbecker testified that she had seen him in the same clothing two weeks prior to the burglary. Tr. 67-68. Moreover, petitioner returned to the scene holding a ski mask identified as that worn by the intruder. It is also significant that a prosecutor's burden is to prove a defendant guilty beyond a reasonable doubt, not beyond all doubt. See N.Y. Crim. Pro. Law § 70.20 (McKinney 1981 & Supp. 1991).
Viewing the evidence under the standard enunciated by the Supreme Court, see Jackson, 443 U.S. at 319, see also Johnson, 406 U.S. at 362, the Court finds that petitioner was not denied due process of law and this claim is without merit.
E. Claim that A Threat Against Bordies of Prosecution for Perjury Casts Doubt Upon Petitioner's Conviction
Petitioner makes the unsupported allegation that, in a conversation outside the courtroom, the prosecutor threatened to charge Bordies with perjury if he testified that he could have been mistaken in identifying petitioner as the intruder.
Indeed, petitioner's counsel brought this issue to the trial judge's attention. The record clearly reflects that the prosecutor's remarks were properly limited to informing Bordies that he would be subject to perjury charges if he were to lie on the witness stand about his recollections. Tr. 59-62. In any event, petitioner can claim no harm since Bordies did testify, on recross examination, that he "could have been mistaken" in identifying petitioner. Tr. 56.
It is well settled that a habeas corpus petitioner has the burden of proof. Petitioner fails to sustain this burden. Johnson v. Zerbst, 304 U.S. 458, 468-69, 82 L. Ed. 1461, 58 S. Ct. 1019, 1024-25 (1938) (footnote omitted); Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991) (citation omitted). Therefore, habeas relief must be denied on this ground.
F. Claim of Cruel and Unusual Punishment
The petitioner asserts that his sentence was harsh and excessive. The concurrent sentences of eight to sixteen years imposed by the trial court are within the maximum allowed by state law. The imposition of a sentence within the permissible range prescribed by law does not "present a constitutional question necessary for habeas corpus reversal." Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988) (citations omitted), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 107 L. Ed. 2d 79, 110 S. Ct. 117 (1989); United States ex rel Miller v. LaVallee, 320 F. Supp. 452, 455 (E.D.N.Y.), aff'd on other grounds, 436 F.2d 875 (2d Cir. 1970) (per curiam), cert. denied, 402 U.S. 914, 91 S. Ct. 1367, 28 L. Ed. 2d 657 (1971); see also Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252, 1255 (1948).
For the aforementioned reasons, petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
February 26, 1992