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May 15, 1995

SALVATORE BACCHI, Petitioner, against DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Petitioner Salvatore Bacchi, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1991, upon a jury trial, of Rape in the First Degree and Sodomy in the First Degree. He is presently serving two concurrent prison terms of eight to sixteen years.

 Petitioner asserts the following claims in support of this application. First, he maintains that he was denied his constitutional right to a fair trial as a result of repeated prosecutorial misconduct. Specifically, he contends that the prosecutor allowed his witness to testify falsely, improperly impeached the testimony of the sole defense witness, and during summation, made inflammatory statements, and while on the verge of tears, begged the jury to convict the petitioner. Petitioner also contends that the trial court's missing witness charge included an incorrect statement of the law that unduly prejudiced him.

 The Court has carefully reviewed the submissions of the parties, as well as the full record of proceedings in the state courts. For the reasons discussed herein, the petition is denied in its entirety. *fn1"


 Bacchi then directed the complainant to drive her car at gunpoint to a warehouse located at 151 West Industry Court. Id. at 179. Upon arrival, Bacchi unlocked the premises, shoving the complainant inside, and raped and sodomized her. Id. at 186, 188, 190-93, 198-202. Shortly thereafter they dressed and departed the premises. En route to Phases, Bacchi threatened, "If you tell anybody about what happened here tonight, I'm going to have you killed. I know people in the Mafia." Id. at 207. Bacchi then asked for the complainant's phone number; she furnished an old disconnected number. Id. at 207-08. Back at the parking lot, the complainant asked Bacchi where his car was. Bacchi pointed out the bartender's car, the license plate number of which she noted on a matchbook once he exited her vehicle. Id. at 211. The complainant thereafter drove to a nearby gas station, and called 911. Id. at 212. Uniformed police officers responded and accompanied her to Phases; however, Bacchi was not inside. Id. at 215. The complainant was then taken to Good Samaritan Hospital in West Islip where she was examined and evidence for a Rape Kit was collected. Id. at 218. The police then escorted her to 151 West Industry Court where she identified the building in which she was raped. Id. at 404-05. At approximately 2:00 P.M. on December 29, 1989, Bacchi was arrested by Suffolk County Police detectives upon admitting to having had consensual sex, the previous evening, with a woman of the same first name as the complainant. Pretrial hearing [hereinafter PT] at 8-9. Bacchi was charged with one count of Rape in the First Degree (N.Y. Penal Law § 130.35) and one count of Sodomy in the First Degree (N.Y. Penal Law § 130.50). That evening, the complainant picked Bacchi, with his counsel present, out of two separate lineups, Tr. at 221-22, after failing to identify him in a photo array. PT at 18-19. Petitioner's criminal trial was held before a jury in the Suffolk County Court of the State of New York.

 Prior to trial, Wade, Huntley, and Sandavol hearings were held. The court determined at the Wade hearing that the identifications made with respect to the lineups were admissible. Tr. at 15. At the Huntley hearing, the court held that all pre- and post-Miranda statements made by the petitioner were admissible. Id. at 16-17. The court further determined that evidence of prior convictions would be admissible under a Sandavol compromise, whereby the petitioner upon taking the stand, could be asked only if he had ever been convicted of a felony. Id. at 7. The People's Molineaux application to introduce evidence of uncharged crimes was denied by the court. Id. at 14.

 At petitioner's trial, on direct examination by the prosecution, the complainant described the events as summarized above. On cross-examination by the defense, the complainant was questioned whether she knew Nicholas DeCicco, and whether she was at an attorney's home in Lindenhurst with him on March 17, 1990, almost three months after the rape. Id. at 327. Over the prosecution's objection, the complainant responded that she knew DeCicco, and that the location in question was the home of the defense attorney's partner. Id. at 327-28. Later in the questioning, the defense asked the complainant, "Who asked you to go there?" Id. at 342. With the court's permission, after warning that the answer was incriminatory, the complainant answered that she went there "to get a phone number of a woman that Nick told me . . . Sal put a gun to her head, and raped her." Id. at 342. At that point, the defense requested a mistrial; the court denied this request. Id. at 342-43. On redirect examination, the prosecution elicited the same information, and the defense repeated its motion for a mistrial. Id. at 348, 350. The court again denied the request, finding that the defense had "opened the door completely to this line of questioning . . . on cross-examination" and had adopted the witness as its own. Id. at 351.

 The prosecution offered into evidence the Rape Kit, and the testimony of Nurse Walker, who assisted the treating physician in examining the complainant, and had prepared the kit in the emergency room at Good Samaritan Hospital. Id. at 436-39. Testimony was proffered from Leonard Gold, an employee of Finch Realty, who managed the premises located at 151 West Industry Court. The premises lease was placed into evidence, after the foundation therefor was established through Gold's testimony that the petitioner was present when the lease was executed in the names of Matthew and Salvatore Bacchi. Id. at 473. The People also called Charles Wagner, a forensic serologist and crime-scene analyst employed by the Suffolk County Crime Laboratory. Mr. Wagner testified that he performed tests on blood samples taken from the petitioner and the complainant, and from sample cuttings of the panties the complainant wore on December 28, 1989. Id. at 495-98. The test results, based on PGM characteristics, were consistent with Salvatore Bacchi's blood grouping and eliminated 96 percent of the male caucasian population. Id. at 497-502. On cross-examination, it was adduced that Mr. Wagner performed these tests one week prior to trial, id. at 503, and that his co-worker Linda Sherlock, also a forensic serologist, had performed similar tests in September 1990, id. at 504-05, which excluded the petitioner as a possible semen donor. Id. at 512-13. On redirect examination, Wagner indicated that the two test results did not differ; rather, it was the interpretation of the results that differed. Id. at 556. Sherlock further testified on redirect examination that she had made a mistake in her interpretation of the September 1990 PGM test, and that she now concurred with Wagner's interpretation. Id. at 595, 600, 604.

 The defense presented Henry Wrieth as its sole witness. Mr. Wrieth was tending bar in Phases on December 28, 1989, the date of the incident in question. Wrieth testified that he served Bacchi and the complainant that evening, and observed that they were acting cordial to each other, and departed together. Id. at 671-73. On cross-examination, Wrieth testified that just prior to leaving, the complainant mentioned to him twice that she would be back, and that he told Detective Simonetti that he found that rather odd. Id. at 686.

 In his summation, the prosecutor addressed a juror by name, id. at 750, referred to the jurors' fear of guns, id. at 751, and characterized the petitioner as a "sick man." Id. at 758. Defense counsel, after specifically objecting to these statements, called for a mistrial based on the totality of the prosecutor's conduct on summation, asserting that among other things, the prosecutor was on the verge of tears, begging the jury to convict. Id. at 806. This request was denied by the court.

 Defense counsel requested a jury charge striking from the record any and all testimony regarding Nick DeCicco, and any alleged statements he made to the complainant. Id. at 701. The court charged these statements as hearsay, not offered for the truth of the matters asserted, but rather offered only for the fact that the statement was made by Mr. DeCicco to the complainant. Id. at 782. The court denied the defense's request for a missing witness charge for the treating physician. Id. at 706. In addition, the court gave the following missing witness charge with respect to Detective Simonetti.

During cross examination, statements attributed to Mr. Wrieth that were made to Detective Simonetti were elicited by the prosecution. If he had been called as a witness by the People, Detective Simonetti's testimony could possibly have been of material help and assistance to the jury in determining the credibility of Henry Wrieth's testimony. You may not, under the law, speculate or guess as to what or how Detective Simonetti would have testified, if called. However, from the failure of the People to call Detective Simonetti, the law permits but does not require you to infer, if you believe it proper to do so, that if Detective Simonetti had been called by the People, and had testified, such testimony would not support or would even contradict the testimony of Henry Wrieth.

 Id. at 791-92.

 Petitioner was convicted on February 23, 1991 of Rape in the First Degree and Sodomy in the First Degree. Prior to sentencing, the petitioner moved for an order, pursuant to New York Criminal Procedure Law [CPL] §§ 290.10 and 330.30, to set aside the verdict and dismiss the indictment. The § 290.10 motion was predicated on a lack of legally sufficient evidence for the jury to have convicted the petitioner. The § 330.30 motion was grounded on the alleged failure of the People to provide all Rosario and Brady material. See People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961) (requiring production of prior statements of prosecution witnesses); Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) (requiring disclosure to the defense of exculpatory materials). The trial judge denied the motion in its entirety. See Resp't Br. to the Appellate Division, Ex. A, at 2. The petitioner then moved for an order to vacate the judgment of conviction pursuant to CPL § 440.10, based upon the failure of the ...

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