Initially, the Court is unconvinced that the complained of statements were improper. Most of the statements were fair response to arguments advanced by petitioner's counsel in his summation. As to petitioner's claim that the prosecutor was stating facts not in evidence during his summation, the Court finds that most of the comments were appropriate requests for the jury to draw inferences based upon facts in evidence. Moreover, even if the comments had a questionable evidentiary basis, any prejudice to petitioner was cured when the trial court instructed the jury that "the arguments, remarks and summations of counsel are not in evidence . . . . You must take the evidence from the mouths of the witnesses as you've heard them and from the exhibits." (T. at 1384-85).
In any case, even if the Court were to assume that the prosecutor's remarks were improper it does not follow that a constitutional violation has occurred. To constitute a constitutional violation, a prosecutor's comments must "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A criminal conviction will not be overturned on the basis of a prosecutor's remarks in an otherwise fair proceeding. United States v. Young, 470 U.S. 1, 11, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985). Prosecutorial misconduct during summation must cause "substantial prejudice" to the defendant in order for a court to grant reversal on that ground. United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir. 1989), cert. den., 493 U.S. 1081, 493 U.S. 1082, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990). Indeed, prosecutorial statements, even if improper or "universally condemned," usually are not enough to warrant granting a petition. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
In order to determine whether petitioner was substantially prejudiced by the prosecutor's comments, this Court must consider the prosecutor's conduct, what measures, if any, the trial court used to cure the prejudice, and whether conviction was certain absent the prejudicial conduct. See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. den., 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982).
Applying this standard to the instant case, the Court finds that the comments were not prejudicial to the defendant, that whatever prejudice was incurred was remedied by the Court's instructions, and that, as discussed above, it is certain beyond a reasonable doubt that petitioner would have been convicted absent the complained of statements. Accordingly, even if this claim was exhausted and not procedurally barred, the Court finds it to be without merit.
For the reasons stated above, the court finds that petitioner's claims are without merit and petitioner's application for a writ of habeas corpus is hereby DENIED.
Dated: Brooklyn, New York
April 21, 1992
Carol Bagley Amon
United States District Judge