The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
Petitioner Pedro Hernandez brings this habeas corpus petition under 28 U.S.C. § 2254, seeking to have his New York state murder conviction vacated. For the reasons set forth below, his petition is denied.
On June 23, 1987, petitioner was convicted on two counts of second-degree murder (New York Penal Law §§ 125.25, ) following a jury trial. He thereafter received a sentence of two concurrent terms of incarceration of twenty-five years to life. Petitioner, who has exhausted his state appeals, alleges that "the prosecutor's misconduct during his sarcastic cross examination of appellant, including his false insinuation that appellant had an unspecified prior criminal record, deprived appellant of a fair trial." Petition P 12(A).
At trial, the prosecution introduced extensive evidence that petitioner, acting with an uncharged accomplice (Sonny Rodriguez), had lured petitioner's landlord (Miguel Rubio) to petitioner's apartment in order to rob him of rent money, and that the two men had then murdered Rubio. According to the testimony of Detective Samuel McCalvin, a New York City police officer, petitioner became a suspect from the moment Rubio's body was found in petitioner's apartment. (Tr. 203-04) After tracking petitioner to Florida, McCalvin conducted an interview on March 1, 1986 in which petitioner provided two separate statements (at 7:40 and 9:30 p.m.) admitting that he had lured Rubio to his apartment and assisted in his murder. (Tr. 219-34) At 10:30 p.m. that same day, petitioner made a tape-recorded statement reciting essentially the same version of events. (Tr. 234-45, 304-07) An authenticated duplicate of the original taped confession was admitted into evidence. (Tr. 244)
Petitioner testified in his own defense at trial. He asserted initially that on the evening of the murder, he simply gave Rodriguez a set of keys to his apartment (Tr. 384-85) and left shortly thereafter (Tr. 385-87). Later during direct examination, however, petitioner admitted being present in the apartment when Rubio was killed. (Tr. 395-96) Petitioner testified that Rodriguez, who appeared to be on drugs, killed Rubio despite petitioner's unsuccessful intervention., (Tr. 396, 409) He also denied the truth of the tape-recorded statements, and asserted that (with the exception of one sentence) the entire tape consisted of someone impersonating him. (Tr. 429-37)
On cross-examination, petitioner and the prosecuting attorney engaged in a series of sharp exchanges. The first of those objected in the petition are found at pages 383-84 of the transcript:
Q: Isn't it true that Sonny Rodriguez and you discussed robbing Mr. Rubio in your apartment on the afternoon of February 17th, 1987?
A: Of course not. I never been incarcerated for robbery. Sonny is doing time for robbery right now.
Q: Been incarcerated for other things, haven't you Mr. Hernandez?
MR. JACOBS [defense counsel]: Objection, your Honor.
[bench conference off the record]
THE COURT: I am going to sustain the objection for that last question and strongly urge the jury to disregard that.
A: Of course not. Didn't Mr. Ishmael Rivera [sic] that day on the stand say to the jury that he never seen me call Mr. Rubio down to the apartment?
Didn't he state he never seen me in the hallway? Didn't he state he never seen me in the building, but down the block? He never seen me call anyone.
Q: You're talking about Ishmael Sanchez?
A: Of course, he made himself very clear ...