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November 29, 1996

JOSE LABOY, Petitioner, against JOSEPH A. DEMSKIE, Acting Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: SWEET


 Sweet, D.J.,

 Petitioner Jose Laboy ("Laboy") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, filed on April 23, 1996, Laboy contends that the state conviction must be set aside because the trial court improperly limited his cross-examination of government witnesses thereby violating his Sixth Amendment right to confrontation and his Due process right to present his defense. For the reasons set forth below, his petition will be denied.

 The Parties

 Laboy is currently confined at Woodbourne Correctional Facility (the "Facility"), New York, pursuant to a judgment of conviction of the Supreme Court of Bronx County.

 Respondent Joseph Demskie ("Demskie" or "the State") is the Superintendent of the Facility. Pursuant to an agreement between the Office of the Attorney General of the State of New York and the Office of the District Attorney of Bronx County, the Bronx District Attorney (the "District Attorney") represents Demskie.

 Prior Proceedings

 On October 23, 1992, Laboy was convicted of manslaughter in the first degree after a jury trial, and he was sentenced on November 17, 1992 to an indeterminate prison term of eight and one-third to twenty-four years. On March 22, 1994, the Appellate Division, First Department, affirmed the conviction in a brief opinion, and on July 6, 1994, leave to appeal that decision to the New York Court of Appeals was denied.

 I. Background

 Shortly after midnight on June 13, 1991, Augustine Anthony Arragones ("Arragones") and his live-in girlfriend of five years, Ronalda Blount ("Blount"), walked from their residence to the Patterson Housing Project in the Bronx to purchase crack cocaine. While on a pathway outside the Patterson Housing Project, Arragones was shot once in his left armpit area while Blount sat on a bench approximately twenty feet away from Arragones. After he was shot, Arragones ran towards where Blount was sitting, collapsed, and died. Police arrived shortly thereafter.

 In the hours following the shooting, Blount spoke with police five times. *fn1" According to Detective Taliaferro's Unusual Occurrence Report, Blount first described seeing a young black man wearing a gray sweatshirt approach her and Arragones on the pathway outside Patterson Housing Project; Blount told Detective Taliaferro that while Arragones talked with this man, she walked to and sat on a nearby bench. According to the report, Blount stated that while she sat on the bench paying no attention to Arragones, she heard a noise like a firecracker and saw out of the corner of her eye a person running towards her; then, she saw it was Arragones. Blount also described a second black man who approached her bench to retrieve what she assumed was crack cocaine from a bag on the bench; Blount stated that this second black man started to walk toward Arragones just prior to the shooting. However, Blount never placed Laboy or a person fitting Laboy's description on the scene in her first four interviews with the police.

 In her fifth interview with police, approximately eighteen hours after the shooting, Blount for the first time identified Laboy as being present on the scene along with the two black men she had already described. Blount told Detective Tebbens that she saw Laboy stand next to Arragones, put his right arm around Arragones, and place a black object against Arragones' left side as she heard a "bang" or firecracker noise. Blount also informed the detectives that she had known Laboy for approximately six months.

 Based on Blount's statement, the police on June 15, 1991 brought Laboy to the 48th Precinct Station House to conduct a line-up. After Blount identified Laboy in the line up, Laboy was arrested for the shooting of Arragones.

 II. The Trial

 Laboy was charged with murder in the second degree and manslaughter in the first degree. The state's case against Laboy rested primarily on Blount's eyewitness testimony. Consequently, the main issue at trial was Blount's identification of Laboy as the perpetrator, and Laboy's sole defense consisted of attacking the credibility of Blount's testimony. The state also presented forensic evidence that corroborated Blount's testimony that Arragones was shot in the left armpit. While this does not corroborate Blount's identification of Laboy as the perpetrator, it does corroborate Blount's account of the shooting.

 On direct examination, Blount testified that other individuals, in addition to Laboy, were in the vicinity of Arragones around the time of the shooting. Tr. at 28. Moreover, Blount admitted that she failed to mention Laboy and his role in the shooting to police in her initial statements, but she explained she didn't describe Laboy because she was "scared and . . . didn't know what was going to happen next." Tr. at 32.

 However, the trial court did not permit Laboy to elicit information about Blount's prior statements to police in which she stated that an unidentified black man wearing a gray sweatshirt was speaking to the victim immediately prior to the shooting, but did not include Laboy in her narrative of events. *fn2"

The trial court heard argument outside of the presence of the jury on the admissibility of the prior statements. Defense counsel argued that Blount's initial statements to police were inconsistent not only because she failed to place Laboy on the scene, but because she also arguably implicated the unidentified black man as the shooter; by placing this individual alone with the victim, Blount's statement may suggest that this individual was the shooter. However, the trial court concluded that this argument was "ludicrous" and "misleading." *fn3"

 Police officers who interviewed Blount after the shooting also testified. However, because defense counsel did not lay the foundation required by the trial court with respect to Blount's inconsistent statement about the black man, defense counsel was not permitted to ask these police officers about Blount's statements about the unidentified black man.

 In closing arguments, defense counsel aggressively attacked Blount's credibility. Defense counsel argued that Blount's perception of events was questionable because, among other things, she had smoked crack cocaine approximately five hours prior to the shooting, Tr. at 427, 433, her view was obstructed around the time of the shooting, Tr. at 437, and she may have been distracted by the large number of people in the vicinity at that time, see Tr. at 419. Defense counsel also argued that Blount's testimony simply was not credible because Blount "lied by omission at least four times" when she failed to identify Laboy to police in her earlier statements. Tr. at 424. Defense counsel also suggested that another person shot Arragones and that Blount, in fear of this shooter, accused Laboy. Tr. at 426. However, defense counsel never argued that Blount's prior statements to police were inconsistent because they suggested that somebody other than Laboy shot Arragones.

 After asking to have Blount's testimony reread three times, the jury found Laboy guilty of manslaughter in the first degree. Laboy appealed his judgment of conviction in the New York state courts raising ...

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