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ALVAREZ v. SCULLY

June 3, 1993

CAESAR ALVAREZ, Petitioner,
v.
CHARLES SCULLY, Respondent.



The opinion of the court was delivered by: SHARON E. GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE MARY JOHNSON LOWE

 SHARON E. GRUBIN, United States Magistrate Judge:

 Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction, entered upon a jury verdict on October 30, 1984 in the New York State Supreme Court, New York County (Cropper, J.), of two counts of burglary in the first degree, see N.Y. Penal Law §§ 140.30(2), 140.30(3) (McKinney 1988), and one count of assault in the second degree, see N.Y. Penal Law § 120.05 (McKinney 1975). Petitioner was sentenced on December 3, 1984 as a predicate felon to concurrent prison terms of 11 to 22 years on the burglary counts and 3-1/2 to 7 years on the assault count. On June 11, 1987 the Appellate Division, First Department, affirmed the judgment of conviction without opinion, People v. Alvarez, 131 A.D.2d 980, 516 N.Y.S.2d 567, and on August 21, 1987 the New York State Court of Appeals denied leave to appeal, People v. Alvarez, 70 N.Y.2d 708, 519 N.Y.S.2d 1043.

 Viewing the facts in the light most favorable to the state (see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986)), the evidence at trial established that during the year and a half prior to March 1984, Linda and Virgil Williams lived in an apartment at 381 East 8th Street and paid "rent" to Mrs. Lee Lewis, believing that she was the owner of the building. In late February 1984, the New York City Department of Housing Preservation and Development ("HPD") instructed Mr. and Mrs. Williams not to pay further rent because the building was owned by the city and was officially vacant. On March 11 and 12, 1984, petitioner, who lived with Lewis in an adjoining apartment, came to the Williamses' apartment demanding the "rent." After Mr. and Mrs. Williams explained what they had been told, petitioner told them they would have to leave if they did not pay him. On March 13, 1984, sometime after 11:30 a.m. while Mrs. Williams was not at home, petitioner returned to the apartment, pounded on the door and told Mr. Williams he had two hours to get out or be thrown out. At about 5:00 p.m., after Mrs. Williams had returned to the apartment, petitioner again pounded on the door and demanded payment. After the Williamses refused to open the door, petitioner broke into the Williamses' apartment through a side door that joined their kitchen to petitioner's apartment. Petitioner shoved aside the refrigerator, which had been blocking that door, and brandished a foot-long silver crowbar. He pushed the 72-year-old Mr. Williams to the floor and threw a chair at him. He then attacked Mrs. Williams with the crowbar, repeatedly striking her on the head and upper body, and continued to demand the money. After petitioner left Mrs. Williams telephoned the police and her minister. The police later that day recovered the blood-stained crowbar from the floor of petitioner's apartment.

 At petitioner's trial Mr. and Mrs. Williams each testified as to his various demands for payment of "rent," his forced entry into their apartment and his assault on Mrs. Williams. The police officer who arrested petitioner testified regarding the Williamses' physical condition upon his arrival at their apartment, the signs of forced entry from the adjoining apartment, his search of that apartment and his discovery there of the crowbar. Mrs. Williams' minister testified that, after he arrived on the scene and confronted petitioner in his apartment, he also saw the crowbar there.

 The petition herein presents essentially the same four claims that were presented to the Appellate Division. They are: (1) Petitioner's right to confrontation was violated by the trial court's refusal either to sign a subpoena for the Family Court records or to inspect them in camera to determine whether they were material to Mrs. Williams' credibility at trial; (2) Petitioner's rights to due process of law and a fair trial were violated by the trial court's jury instructions on the element of intent for the crime of burglary; (3) Petitioner's rights to due process of law and a fair trial were also violated by the trial court's failure to instruct the jury on a "mistake of fact" defense to burglary; (4) Petitioner's sentence was "harsh and excessive." *fn2"

 DISCUSSION

 Ground (1)

 Under the law of New York, a determination of the admissibility of evidence for purposes of impeachment is entrusted to the discretion of the trial court. See, e.g., People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 837-38, 385 N.E.2d 572 (1978), cert. denied, 442 U.S. 910 (1979). Federal courts have no supervisory authority over state courts, Chandler v. Florida, 449 U.S. 560, 570, 582-83, 66 L. Ed. 2d 740, 101 S. Ct. 802 (1981), and federal habeas corpus review of state criminal proceedings under 28 U.S.C. § 2254 is limited to errors of constitutional magnitude. See, e.g., Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982); Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); Cupp v. Naughten, 414 U.S. 141, 146, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973); Petrucelli v. Coombe, 735 F.2d 684 (2d Cir. 1984); Mapp v. Warden, 531 F.2d 1167, 1173 (2d Cir.), cert. denied, 429 U.S. 982, 50 L. Ed. 2d 592, 97 S. Ct. 498 (1976). Discretionary state court evidentiary rulings normally do not rise to a constitutional level so as to be cognizable in a federal habeas corpus proceeding absent a showing that the challenged rulings violated a specific constitutional right. Underwood v. Kelly, 692 F. Supp. 146, 150 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 107 L. Ed. 2d 79, 110 S. Ct. 117 (1989). See also Vargas v. Hoke, 664 F. Supp. 808, 812 (S.D.N.Y. 1987); Collins v. Scully, 582 F. Supp. 1100, 1104-05 (S.D.N.Y. 1984), aff'd, 755 F.2d 16 (2d Cir. 1985); McCormack v. Walters, 550 F. Supp. 80, 81 (S.D.N.Y. 1982); Mitchell v. Smith, 481 F. Supp. 22, 25 (E.D.N.Y. 1979), aff'd on other grounds, 633 F.2d 1009 (2d Cir. 1980), cert. denied, 449 U.S. 1088, 66 L. Ed. 2d 814, 101 S. Ct. 879 (1981). An erroneous evidentiary ruling could rise to the level of a constitutional claim cognizable on a habeas petition if it were shown that the error so infected the proceedings as to have rendered a petitioner's trial fundamentally unfair. Collins v. Scully, 755 F.2d 16 (2d Cir. 1985); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 78 L. Ed. 2d 694, 104 S. Ct. 503 (1983); Baker v. Reid, 482 F. Supp. 470, 471 n.2 (S.D.N.Y. 1979). In this case, however, there is not even a threshold showing that the trial court's ruling was erroneous since it was not unreasonable for the trial court to conclude that the Family Court records pertaining to Mrs. Williams' neglect proceeding would not bear on her truthfulness as a witness, however much they might bear on other elements of her character. Moreover, even without Mrs. Williams' testimony, the testimony of Mr. Williams and the arresting officer provided overwhelming evidence of petitioner's guilt. In sum, Ground (1) of the petition must be rejected.

 Ground (2)

 Under New York law, a person is guilty of burglary in the first degree when, among other things, "he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein. . . ." N.Y. Penal Law § 140.30 (McKinney 1988). *fn3" Although intent may be inferred from the circumstances of the case, see People v. Mackey, 49 N.Y.2d 274, 279-80, 425 N.Y.S.2d 288, 291, 401 N.E.2d 398 (1980), and the prosecution need not establish the particular crime the intruder intended to commit, see id., 425 N.Y.S.2d at 290-91, the prosecution must prove that such intent existed at the time the intruder unlawfully entered or remained and not merely after he did so, see People v. Gaines, 74 N.Y.2d 358, 359-60, 363, 547 N.Y.S.2d 620, 621, 622-23, 546 N.E.2d 913 (1989).

 In its main charge, the trial court repeatedly tracked the "enters or remains" language of the burglary statute. Thus, the court instructed the jury that

 
. . . it must be proved that at the time of his unlawful entry or when he was on -- or when he unlawfully remained within the dwelling, the defendant intended ...

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