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August 23, 1995

GARY PERFETTO, Petitioner, against ROBERT HOKE, Respondent.

The opinion of the court was delivered by: JOANNA SEYBERT

 Petitioner Gary Perfetto seeks a writ of habeas corpus from this Court pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1984 of murder in the second degree and robbery in the first degree. He is presently serving a concurrent sentence of 20 years to life for murder and 8-1/3 to 25 years for robbery.

 In his application for collateral relief, petitioner asserts three claims. In his first claim, he contends that his Sixth Amendment rights to confrontation and cross-examination were violated by the admission into evidence of a memorandum prepared shortly after the murder by a deceased night watchman. In his second and third claims, petitioner alleges that he was denied his Sixth Amendment right to present a defense due to the exclusion from evidence of police reports documenting interviews with the night watchman and a prosecution witness.

 Having reviewed the submissions of both parties and the complete record of the state court proceedings, the Court hereby denies the petition in its entirety, for the reasons discussed below.


 At petitioner's trial, held in February and March 1985, the prosecution introduced evidence to show the following: In the early morning of Saturday, July 19, 1980, Sheldon Horowitz, an independent retail distributor for Tropicana Products Inc., was bludgeoned to death on the premises of the Tropicana Plant in Whitestone, Queens. Patrick McKenna, the night watchman at the plant, discovered his body later that evening at approximately 12:45 a.m. (Tr. at 85-88.) *fn1" Petitioner Gary Perfetto, a "loader" at the plant, was the subject of the initial investigation because (1) McKenna had seen him on the plant premises immediately prior to the murder when he was not authorized to be there (Tr. at 223); (2) when McKenna asked Perfetto what he was doing there, he responded by saying he had been helping Dave Weber, another distributor, but Weber had not requested assistance that evening (Tr. at 223); and (3) though Perfetto was scheduled to work the next Sunday evening, he failed to appear for work (Tr. at 611).

 As an independent Tropicana distributor, Horowitz would bring his truck to the Whitestone plant nightly where employees, known as "loaders," would load the truck. He would return the next morning, take the loaded truck and distribute the Tropicana products on his route. After completing the route, Horowitz would drive the truck back to the plant for reloading, carrying the cash and checks collected on his route in a brown paper bag. (Tr. at 181-86, 193.)

 Joyce Horowitz Camm, Sheldon Horowitz's wife, who kept the books for their business, testified that her husband would have had approximately $ 2,900 upon completion of his route on July 19, 1980. (Tr. at 703.) He was found with only $ 395 in cash, $ 900 in checks, and $ 380 in credit card charge slips on his person. (Tr. at 704.) Using the figures provided by Camm, monies in the amount of approximately $ 1,600 were missing from Horowitz's possession.

 The prosecution also introduced evidence showing that Perfetto had confided to friends, shortly after the incident, that he had become involved in an altercation at work, that he had killed a man and that he needed money. Christine Reilly, to whose home petitioner arrived in the morning following the murder, testified that upon his arrival, petitioner appeared pale and upset and that he said, "that he had hurt somebody ... and it was to do with the piping, it was to do with the money." (Tr. at 384-85.) She later indicated that Perfetto had told her that the amount of money involved was $ 1500. (Tr. at 389.) She also testified that petitioner mentioned a discussion he had with his father in which the father had told petitioner to turn himself in to the police. (Tr. at 387.)

 Vitacco's husband testified that he drove Perfetto to New York City from Long Island and that during the drive, Perfetto stated that "he had gotten into some trouble. He was going home to turn himself into the police. He had called his father and his father said to come home. And the following day he's going to turn himself in . . . I had a fight on my job. I hurt someone, and I can face what I have to face." (Tr. at 1053.)

 In addition to the alleged admissions made by Perfetto, the prosecution also sought to introduce at trial a memorandum prepared by Patrick McKenna (hereinafter "McKenna Memorandum"). At a pre-trial suppression hearing, the prosecution indicated that three days after the killing, McKenna had prepared the handwritten memorandum for his supervisor at Tropicana concerning the circumstances surrounding Horowitz's murder. This memorandum recounted seeing "Gary in his car [at the plant]. I asked him, what he was doing here at this time of night. He said he had went [sic] around with one route man. I asked him if he had seen Horowitz. He said no, he was with Dave Weber." (Tr. at 223.) The prosecution also revealed that McKenna would be unable to testify since he had died before trial of unrelated causes. Petitioner's counsel moved to suppress the memorandum as hearsay.

 To show that the McKenna Memorandum constituted a business record under N.Y. Civ. Prac. L. § 4518(a), and therefore was admissible as an exception to the rule against hearsay evidence, Rudy Wishner, a vice president at the Whitestone plant, testified regarding the routine nature of the McKenna Memorandum. He stated that the night watchmen were required to keep a log of vehicles and people entering and leaving the plant and to file reports whenever anything "unusual" occurred which could require the plant manager's attention. (H. at 7; Tr. at 295.) During the months of June and July 1980, three such reports were filed, one concerning a fire, the second concerning a loss of telephone service, and the third concerning Horowitz's murder. (H. at 68.) On the basis of the third report prepared by McKenna, Tropicana implemented numerous security improvements. (Tr. at 219-21.) Based on Wishner's testimony, the trial court ruled that the report had been made in the ordinary course of business, that McKenna was required to prepare it under company policy, that it was contemporaneously written, and that therefore, the McKenna Memorandum did fall within the business records exception to the hearsay rule and was admissible. (H. at 128-134.)

 Petitioner was convicted at trial of felony murder in the second degree and robbery in the first degree. This conviction was affirmed on appeal to the Appellate Division, which found, inter alia, that the trial court was correct in admitting the McKenna Memorandum under the business records exception to the hearsay rule. See People v. Perfetto, 133 A.D.2d 127, 128-29, 518 N.Y.S.2d 662 (1987). The Appellate Division did not consider the claims that petitioner has now raised with respect to the two police reports that were excluded from evidence, one of which detailed a conversation with McKenna and another a conversation with Laura Vitacco, a prosecution witness.

 The procedural history of this case having been set forth above, the Court now turns to address whether it may reach the merits of petitioner's claims.


 I. Exhaustion

 Under 28 U.S.C. § 2254, a federal court may not review the substantive merits of an applicant's claim for collateral relief unless "the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b) (1988); see Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Picard v. Connor, 404 U.S. 270, 275-76, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This requirement is not a jurisdictional limitation, but is predicated on principles of judicial comity, and is "designed to protect the state courts' role in the enforcement of federal law and [to] prevent [the] disruption of state judicial proceedings." Rose, 455 U.S. at 518.

 The Second Circuit Court of Appeals has set forth a two-prong test for determining whether a petitioner seeking federal habeas relief has exhausted his or her state remedies. First, an applicant must have "fairly presented" his federal claim to the state courts. See Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). To satisfy this requirement, the petitioner must demonstrate that he has informed the state courts of both the factual and ...

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