trial part; defense memo of law concedes People's readiness (Sentencing Tr. at 20-21; Respts.' Ex. 4, ADJ 11-30-81; Respts.' Ex. 11 Def.'s Mem. at 6)
November 30, 1981 Both sides appear at trial part; adjourned by court due to court congestion (Respts.' Ex. 4, ADJ 11-30-81; Parness, J., at 2)
December 7, 1981 Adjourned by court due to congestion (Respts.' Ex. 4, ADJ 12-7-81, at 3-4)
December 14, 1981 Adjourned to another trial part (Respts.' Ex. 4, ADJ 12-14-81, at 4)
January 4, 1982 Adjourned by court (Respts.' Ex. 4, ADJ 1-4-82, at 2)
January 5, 1982 Prosecutor engaged; both sides absent (Respts.' Ex. 4, ADJ 1-5-82, at 2)
January 6, 1982 Both sides absent; Petitioner files pro se motion based on deprivation of speedy trial (Respts.' Ex. 4, ADJ 1-6-82, at 2-4)
January 29, 1982 Trial commences
February 16, 1982 Guilty verdict rendered (Trial Tr. at 419)
October 29, 1982 After delay to obtain minutes of various adjournments, motion based on deprivation of speedy trial denied; Petitioner sentenced (Sentencing Tr. at 21; 42-43)
A thorough review of the sentencing transcript supports Judge Sullivan's detailed analysis which utilized a formula beneficial to Bentley in conformance with the Supreme Court's holding in United States v. Mauro, 436 U.S. 340, 357, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978) (holding formula most beneficial to defendant ought to be used in computing speedy trial motions). (Sentencing Tr. at 15.)
Between January 25 and March 28, 1980, Bentley's counsel requested several adjournments for motions, discovery and a conference. The next delay occurred because, due to his arrest in Florida, the Petitioner failed to appear and a bench warrant was issued. Petitioner was then sentenced to federal charges on August 15, 1980 and the Bronx District Attorney's Office began extradition procedures whereupon the Petitioner was returned to New York on April 2, 1981. From that point onward, the majority of the adjournments were either on consent or upon the request of defense counsel. At one point, the defense counsel lost the defense file, resulting in an additional delay for its duplication. Subsequently defense counsel failed to appear on several more occasions, whereupon counsel was sanctioned by the trial court.
As much of the delay was the result of the Bentley's "fugitivity," and in the absence of a showing of prejudice that such a delay might have had upon his defense, it is evident that the trial court's determination that no speedy trial violation occurred, pursuant to N.Y. Crim. Proc. Law § 30.30 (McKinney's 1992), was appropriate in this case. See Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (holding defendant's "lack of serious interest in a speedy prosecution of the charges against him, as shown by his fugitivity, together with the absence of a showing of prejudice to his defense militate against finding that he suffered a deprivation of his sixth amendment right."), cert. denied, 488 U.S. 1032, 102 L. Ed. 2d 974, 109 S. Ct. 842 (1989). Further, as it is evident that the length of the delay does not violate the 180 day rule, as set forth in N.Y. Crim. Proc. Law § 30.30 (McKinney's 1992), this Court need not engage in a full analysis of the four factor analysis as set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
Petitioner's second speedy trial claim, the alleged violation of the IAD, is not properly before the Court. The Second Circuit, in Reilly v. Warden, 947 F.2d 43, 44 (2d Cir. 1991), cert. denied, 112 S. Ct. 1227 (1992), has determined that violations of the time limitations set forth in the Interstate Agreement on Detainers are not cognizable in habeas corpus proceeding commenced by state prisoners pursuant to 28 U.S.C. § 2254. Cf. Edwards v. United States, 564 F.2d 652, 653 (2d Cir. 1977) (holding that IAD claim is not a cognizable claim under 28 U.S.C. § 2255). Accordingly, Petitioner's speedy trial claim under the IAD is denied.
For the reasons set forth above, Bentley's claim for habeas relief, on a theory that he was denied his right to a speedy trial is denied.
II. Bentley's Fair Trial Claims
A. The Prosecutor's Improper Summation
Bentley alleges that the prejudicial nature of the prosecutor's summation denied him the right to a fair trial. In his summation, the prosecutor made the following statements which intimated that Bentley's guilt could be inferred from the fact that he was on the telephone with his lawyer at the moment the police sought entry into the apartment:
And then he [Bentley] realized how stupid and he runs upstairs and that's when the thinking starts setting in. Remember the testimony Joseph [Bunyarko] said that one of them was on the phone to the lawyer about not searching the apartment. Very smart.
Did you notice that the gun, the nine [millimeter] had no powder residue, no discharge? He cleaned it. Very smart. . . . The other two guns are dirty. Yet this one particular gun is cleaned. That's another thing I thought counsel might hit on. How do you know this gun was fired? It was recovered fully loaded, therefore it couldn't have been fired? Surprised he didn't mention that. Roosevelt had a lot of nine millimeter ammunition. He reloaded the gun. So when it was found it was no evidence of discharge. There was no round of ammunition missing.