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GAITER v. LORD

February 6, 1996

VALERIE GAITER, Petitioner, against ELAINE A. LORD, Superintendent, Bedford Hills Correctional Facility, CHARLES J. HYNES, District Attorney, County of Kings, DENNIS VACCO, Attorney General of the State of New York, Respondents.


The opinion of the court was delivered by: TRAGER

 Trager, District Judge:

 Background

 On August 21, 1979, Detective Thomas Milana responded to a phone call reporting a robbery and double homicide in the Midwood section of Brooklyn, New York. Tr. at 8-9. After he entered apartment 4J at 755 Ocean Avenue, Detective Milana found the bodies of an elderly couple, Roz and Louis Feit, with multiple stab wounds. Tr. at 9. The building's porter, Abdul Rasheed, told Detective Milana that two young girls, Valerie Gaiter and the Feit's seventeen-year-old neighbor, co-defendant Roslyn Smith, robbed him at about midnight on August 20, 1979. *fn1" Tr. at 9-12, 375-380. Smith's parents told Detective Milana that Smith and Gaiter had returned to the apartment on the evening of August 20, 1979, for a change of clothes, and did not return to the apartment that night. Tr. at 12-13.

 While being questioned by police detectives on August 21, 1979, Gaiter and Smith admitted their involvement in the Feits' murders. At trial, Gaiter testified that Smith rang the Feits' doorbell and persuaded Mrs. Feit to open the door by stating that her parents were fighting and she needed to use the Feits' phone to call the police. Tr. at 945. Gaiter claimed that once they were inside the apartment, Smith grabbed Mrs. Feit, found a knife in a drawer and stabbed her repeatedly. Tr. at 949. Smith then handed Gaiter the knife, and Gaiter stabbed Mrs. Feit approximately three times. Tr. at 950, 951. Gaiter claimed that while she went into the bathroom to wash the blood off of her hands, Smith stabbed the bedridden Mr. Feit several times. *fn2" Tr. at 952. Gaiter claimed that she placed a pillow over Mr. Feit's face while Smith stabbed him because he was "making little noises." Tr. at 980. Subsequently Gaiter and Smith searched the apartment for money. Tr. at 953. Gaiter and Smith then left the apartment and spent the remainder of the night in a neighborhood park. Tr. at 955.

 At trial, however, Smith testified that Gaiter initiated the knocking on the Feits' door and persuading Mrs. Feit to allow her into the apartment. Tr. at 816. Smith claimed that she did not enter the apartment, but stood in the hall waiting for Gaiter. Tr. at 889. Smith claimed that Gaiter remained in the apartment for approximately ten minutes, and after exiting the apartment, Gaiter told her "I got some money from the bitch. Come on. Let's go." Tr. at 818. Smith claimed that she and Gaiter then left the building, bought marijuana and rum and spent the remainder of the night outside. Tr. at 818.

 Gaiter and Smith were charged by Kings County Indictment Number 3050/79 with four counts of Murder in the Second Degree, N.Y. Penal Law § 125.25[1], [3] and two counts of Robbery in the First Degree, N.Y. Penal L. § 160.15[3]. Pet'r Appeal Brf. at 3. On July 9, 1980, Gaiter was convicted after a joint jury trial of two counts of murder in the second degree and two counts of robbery in the first degree. *fn3" Tr. at 1140. Gaiter was subsequently sentenced to two consecutive indeterminate terms of imprisonment of twenty-five years to life for the felony murder charges to run consecutively with the two consecutive indeterminate terms of imprisonment of eight and one-third to twenty-five years for the robbery charges. Pet'r Appeal Brf. at 26.

 Gaiter appealed her conviction to the Appellate Division, Second Department. On appeal, Gaiter argued that the trial court: 1) erred in admitting Gaiter's statements to the police and to the assistant district attorney in violation of Miranda; 2) failed to properly instruct the jury with regard to Miranda warnings; 3) improperly convicted Gaiter for felony-murder where the underlying felony did not require a finding of specific intent; 4) erred in imposing consecutive sentences where there was but a single act; and 5) imposed excessive sentences. Pet'r App. Br. at i-ii. The Appellate Division affirmed Gaiter's conviction, but modified her robbery sentences to run concurrently, rather than consecutively, to the murder sentences. People v. Smith and Gaiter, 89 A.D.2d 881, 881-82, 453 N.Y.S.2d 226, 228 (2d Dep't 1982). The Appellate Division found the remainder of Gaiter's claims without merit. Id. at 882, 453 N.Y.S.2d at 228.

 On May 24, 1993, Gaiter filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure L. § 40.10. Gaiter argued that: 1) her confession was obtained in violation of the Federal and State Constitutions; 2) her accomplice's statements were not sufficiently corroborated at trial; 3) the introduction of co-defendant's statement into evidence violated Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); 4) her absence from jury voir dire and sidebar discussions during trial deprived her of a fair trial; 5) the prosecutor's closing remarks deprived her of a fair trial; and 6) defendant's sentences constituted an abuse of discretion. The first and sixth claims were identical to those raised on direct appeal. The Supreme Court, Kings County, denied Gaiter's application on all grounds finding them either procedurally barred or without merit. New York v. Gaiter, No. 3050/79 (N.Y. Sup. Ct. Aug. 19, 1993). On October 28, 1993, the Appellate Division, Second Department denied Gaiter's application for leave to appeal the Supreme Court's denial of her motion to vacate the judgment. Subsequently, the New York Court of Appeals denied Gaiter's request for leave to appeal from the decision of the Appellate Division.

 Discussion

 (1)

 Gaiter filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on grounds identical to that raising four of the six claims she had made in her motion to vacate her judgment of conviction. Specifically, Gaiter argues that: (1) she was denied a fair trial because her accomplice's statements were not sufficiently corroborated at trial; (2) she was denied a fair trial because she was absent from jury voir dire and sidebar discussions during trial; (3) she was denied the right to a fair trial because of prosecutorial misconduct in closing remarks; and (4) her sentences constituted an abuse of discretion. See Pet. at 5-6; Pet'r Mem. Supp. Hab. Corpus at 12. Gaiter's petition must be dismissed because an independent and adequate ...


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