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November 17, 1993

JAMES M. DIGIOIA, Petitioner,
DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility; HON. ROBERT ABRAMS, Attorney General of State of New York, Respondents.

The opinion of the court was delivered by: NEAL P. MCCURN



 On January 30, 1989, after a jury found him guilty of three counts of sodomy in the first degree, *fn1" James M. Di Gioia was convicted in Rensselaer County Court. The Appellate Division, Third Department affirmed that conviction, People v. Di Gioia, 168 A.D.2d 865, 564 N.Y.S.2d 533 (3d Dep't 1990), and the Court of Appeals denied leave to appeal. People v. Di Gioia, 77 N.Y.2d 994, 571 N.Y.S.2d 920, 575 N.E.2d 406, reconsid. denied, 78 N.Y.2d 965, 574 N.Y.S.2d 944 (1991). Di Gioia was sentenced to three concurrent terms of five to fifteen years imprisonment and is currently incarcerated in New York State. On June 17, 1992, Di Gioia filed with this court a habeas corpus petition under 28 U.S.C. § 2254. In that petition, Di Gioia sets forth seven separate grounds which he believes require that his conviction and resultant sentence be vacated.

 Pursuant to 28 U.S.C. § 636 (b)(1)(B), Di Gioia's petition was referred to Magistrate Judge Ralph W. Smith, Jr. ("the Magistrate") for a report and recommendation. Finding none of petitioner's seven challenges meritorious, the Magistrate recommended that the habeas corpus petition be dismissed in its entirety. The petitioner timely filed objections to the Report-Recommendation, although he objects to only four of the seven findings made by the Magistrate. Specifically, he objects to the following findings: (1) that the definition of "forcible compulsion" found in section 130.00-8(b) of the New York Penal Law is not unconstitutionally vague; (2) that based upon the evidence before the trial court, "any rational trier of fact could have found that an implied threat existed and that the requisite element of forcible compulsion was proven[;]" *fn2" (3) that there was no basis for a finding of prosecutorial misconduct amounting to a denial of petitioner's right to a fair trial; and (4) that petitioner was not denied his constitutional right to confrontation. The state defendants did not file any objections. Therefore, the court will limit its review of the Magistrate's Report-Recommendation to the four objections now raised by the petitioner. See Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988) (failure to timely file objections to report-recommendation deemed waiver of any further judicial review).


 I. Standard of Review

 The timely filing of objections has been recognized as triggering de novo review under 28 U.S.C. § 636(b)(1). *fn3" Therefore, in light of petitioner's timely filed objections, the court will apply a de novo standard of review. Under this standard, the court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636 (b)(1) (West Supp. 1993). Before going on to consider the petitioner's objections, the court notes that none of the facts set forth by the Magistrate are disputed, although in one instance the interpretation of those facts is at issue. *fn4" In any event, because the parties do not dispute the facts contained in the Report-Recommendation, the court hereby accepts those facts and considers petitioner's objections against that factual background.

 II. Vagueness

 As to petitioner's vagueness challenge, the Magistrate concluded that the statutory definition of forcible compulsion, found in section 130.00(8)(b) of the New York Penal Law, is not unconstitutionally vague because it gave "petitioner sufficient notice that his conduct would constitute a class B felony." Report-Recommendation at 7. The Magistrate further found that petitioner's conduct was forbidden under section 130.00(8)(b). Id. at 8. In reaching that conclusion, the Magistrate explained that section 130.00(8)(b) includes within the definition of forcible compulsion an implied threat, which is defined as a threat "which places a person in fear of immediate death or physical injury to himself, herself or another person. . . ."

 Id. (citing N.Y. Penal Law § 130.00(8)(b) (McKinney 1987)).

 The Magistrate went on to reason that an implied threat can be conveyed, among other ways, indirectly through an oral statement; and that petitioner's oral statements could have been interpreted as "an implied threat that the victim would suffer physical injury[.]" Id. at 8-9. At this point, the Magistrate did not specify to which oral statements he was referring. Earlier in the Report-Recommendation, however, the Magistrate noted that after the complainant accepted a ride home from the petitioner, he proceeded to go in another direction - away from her home. When the complainant advised the petitioner that they were going the wrong way, the "petitioner replied that they were going for a little ride, at which point she began crying and asking repeatedly to be taken home." Id. at 3. In addition, in response to petitioner's inquiry as to whether "she gave head," complainant responded, "No." Id. (citing Record at 196). At that point, petitioner advised the complainant, "well, you have a problem." Id. After that, petitioner got out of the car, walked around to where the complainant was and ordered her out of the car. Id. at 3-4. When the complainant responded "No" to petitioner's inquiry as to whether she had any drugs, he grabbed the complainant's purse, telling her, "Don't move. Stay there or you are going to be in trouble." Id. at 4 (citing Record at 197). Further details of this incident are recounted at pages four through five of the Report-Recommendation. Eventually, following three acts of sodomy, and after leaving the complainant several miles from her home at approximately 3:30 a.m., the petitioner told the victim "that he could be very violent and that he could track her down if she said anything to anyone." Id. at 5. Presumably it is that evidence, in combination, to which the Magistrate was referring when he concluded that petitioner's oral statements could have been interpreted as an implied threat as that term is used in § 130.00(8)(b).

 The Magistrate bolstered his finding that the definition of forcible compulsion is not unconstitutionally vague by noting that "the highest court of New York State has aided in the prevention of arbitrary and discriminatory enforcement of this statute by establishing clear guidelines for the trier of fact." Id. at 9. The Magistrate went on to note that in People v. Thompson, 72 N.Y.2d 410, 534 N.Y.S.2d 132, 530 N.E.2d 839 (1988), the Court of Appeals held that the "proper focus" in determining whether threats amount to forcible compulsion "is on the state of mind produced in the victim by the defendant's conduct, . . . ." Id. at 416, 534 N.Y.S.2d at 134. The Court of Appeals thus explained, "the inquiry required in determining whether threats amount to forcible compulsion is not what the defendant would or could have done, 'but rather what the victim observing [the defendant's] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands[.]" Id. (quoting People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 187, 369 N.E.2d 742 (1977)). The Court of Appeals then explained that this is the proper focus "because the sine qua non for criminal liability for sex offenses under our Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent. . . ." Id. (citing Penal Law § 130.05).

 The petitioner strenuously objects to the Magistrate's finding that New York's definition of "forcible compulsion" passes constitutional muster. Petitioner offers a two-pronged challenge to § 130.00(8)(b)'s definition of "forcible compulsion." First, he asserts that that statute "is void for vagueness as construed by the Court of Appeals since no potential defendant can ascertain the subjective state of mind of the potential complainant before, during or after a sexual act; . . . ." Objections at 3 (emphasis added). Second, the petitioner contends "that he was denied due process of law in how this statute was applied to him since the People never produced any evidence of a threat of physical injury, either express or implied." Id. (emphasis added). As presented, petitioner is making both a "facial" and an "as-applied" challenge to section 130.00(8)(b), although in analyzing these two separate challenges, petitioner confuses the scope of proper inquiry under each. Likewise, the Magistrate did not clearly distinguish between a facial and as-applied challenge. ...

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