Thus, Gaiter's alleged absence from sidebar discussions - without more - raises no federal claim.
Gaiter's third claim - that she was denied the right to a fair trial because of prosecutorial misconduct in closing remarks - is without merit because the cited claim of errors did not impede the jury's task of rendering a fair and just decision. Gaiter claims that the prosector expressed her personal opinion in her summation to the jury, thereby presenting unsworn assertions to the jury. Gaiter, however, fails to provide any proof that the prosecutor asserted her personal beliefs during his summation to the jury.
The only claimed error that petitioner points to is that the prosecutor stated that the defendant committed the crimes with "malice aforethought."
See Mem. Supp. 1993 Mot. Vac. at 13. The record of summation, however, does not reveal that the prosecutor ever stated that Gaiter committed the crimes with malice aforethought. Even if the record did support Gaiter's claim, a criminal defendant is not denied a fair trial by a prosecutor's statement of law on summation. See People v. Hart, 176 A.D.2d 148, 149, 574 N.Y.S.2d 33, 34 (1st Dep't 1991) (defendant not denied a fair trial when prosecutor makes a correct statement of law on summation). At trial, Gaiter was charged with intentional murder. Tr. at 1140-41. Thus, the prosecutor was permitted to attempt to illustrate to the jury that the requisite mens rea was present for the crime of intentional murder.
The standard governing a federal court's review of habeas petitions based upon a claim of prosecutorial misconduct is whether the claimed errors are "ordinary trial error[s] of a prosecutor [or] that sort of egregious misconduct . . . amounting to a denial of constitutional due process." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974). Constitutional error exists only when the prosecutor's remarks "were so prejudicial that they rendered the trial in question fundamentally unfair." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Cobb v. Wainwright, 609 F.2d 754, 756 (5th Cir. 1980), cert. denied, 447 U.S. 907, 64 L. Ed. 2d 857, 100 S. Ct. 2991 (1980). Unlike Floyd, where the cumulative effect of the prosecutor's statements amounted to the type of egregious conduct that rendered Floyd's trial fundamentally unfair,
the brief and isolated errors claimed in Gaiter's case do not rise to the level of egregious conduct.
Furthermore, even if the prosector's statement that Gaiter committed the crime with malice aforethought was improper, Gaiter has failed to establish inherent or actual prejudice resulting from the alleged error. Garofolo, supra, 804 F.2d at 206. Not only has Gaiter failed to submit any proof that she was substantially prejudiced by the prosecutor's statement, but, in fact, Gaiter was acquitted of intentional murder, the only charge which required the people to establish malice aforethought.
Mem. Opp'n 1993 Mot. Vac. at 15-16. Thus, the alleged prosecutorial misconduct does not rise to the level of a constitutional error because the alleged misconduct clearly had no prejudicial effect on Gaiter's trial, and certainly did not render her trial fundamentally unfair.
Gaiter's fourth claim - that her consecutive sentences of imprisonment for felony murder constituted an abuse of discretion - is without merit because there were sufficient facts on the record to justify the imposition of consecutive terms of imprisonment for the two separate murders.
Gaiter claims that her felony murder sentences should run concurrently with each other because the two murders arose out of one act of robbery.
The sentencing court, however, had the discretion to direct that Gaiter's sentences run concurrently or consecutively. N.Y. Penal L. § 70.25(1) (McKinney 1987). Although the murders arose out of one act of robbery, Mr. and Mrs. Feit's deaths were the result of two separate acts. See People v. Brathwaite, 63 N.Y.2d 839, 843, 472 N.E.2d 29, 32, 482 N.Y.S.2d 253, 256 (1984) (where two deaths occurred during the course of one robbery, the deaths constituted separate "acts" which justified the imposition of consecutive sentences for two counts of felony murder). Thus, it was within the discretion of the sentencing court to view the two murders as separate acts within the course of the robbery justifying the imposition of consecutive sentences for the felony murder counts. But even if the murders did not constitute two separate acts, the issue whether Gaiter's sentence violated § 70.25(2) of the Penal Law is one of state law and thus not reviewable by a federal court.
Although Gaiter has not specifically alleged that her consecutive sentences for felony murder were constitutionally excessive, this Court will, nevertheless, for the sake of completeness and to avoid unnecessary future litigation, examine the issue. Haines, supra, 404 U.S. at 520-521. Gaiter was found guilty of two counts of felony murder, a class A-1 felony. See N.Y. Penal L. § 125.25 (McKinney 1987). In New York, the maximum term of incarceration for this level of offense is fifteen to twenty-five years. See N.Y. Penal L. § 70.00 (3) (a) (I). It was well within the sentencing judge's discretion to sentence Gaiter to the maximum terms of imprisonment. This determination can be overturned only if the sentence imposed was so "significantly disproportionate" to the crime committed as to constitute "cruel and unusual" punishment within the meaning of the Eighth Amendment. See Solem v. Helm, 463 U.S. 277, 295-303, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983).
In addition, given the deference that must be accorded to the state legislature and sentencing court, this Court must assume the penalty's validity and the burden rests with the petitioner to prove it is constitutionally infirm. See Solem, supra, 463 U.S. at 290; Carmona v. Ward, 576 F.2d 405, 410 (2d Cir. 1978), cert. denied, 439 U.S. 1091, 59 L. Ed. 2d 58, 99 S. Ct. 874 (1979). Here, the petitioner cannot sustain the burden.
The federal courts have consistently held sentences such as the one imposed, and even those which are more severe, are not violative of the Constitution.
Accordingly, Gaiter's sentence of fifty years to life for the deaths of Mr and Mrs. Feit does not violate the Eighth Amendment, and thus Gaiter's claim must be rejected.
For the reasons stated, the petition for a writ of habeas corpus is dismissed and a certificate of probable cause is denied.
Dated: Brooklyn, New York
February 6, 1996
David G. Trager
United States District Judge