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January 27, 1997

RICHARD HIDALGO, Petitioner, against ROBERT KUHLMAN, Superintendent, Sullivan Correctional Facility, Respondent.

The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Petitioner Richard Hidalgo seeks habeas corpus relief under 28 U.S.C. § 2254 from a conviction of one count of murder in the second degree (N.Y. Penal Law § 125.25[3]) and two counts of assault in the second degree (N.Y. Penal Law § 120.05[6]) entered by the New York State Supreme Court, Kings County, on January 19, 1979. Petitioner was sentenced to serve an indeterminate term of twenty years to life on the murder count and an indeterminate sentence with a maximum term of seven years on each of the assault counts, all sentences to run concurrently. Petitioner's sole contention before this court is that the admission at trial of the statements of his two co-defendants, Robert Morales and Ventura Rodriguez, who were tried with Petitioner and who did not testify at the trial, violated his rights under the Sixth Amendment's Confrontation Clause.


 Petitioner appealed his conviction to the Appellate Division, Second Department. At that time, counsel for Petitioner failed to argue that the admission of the statements of Petitioner's co-defendants violated Petitioner's constitutional rights. *fn1" On March 30, 1981, the Appellate Division affirmed Petitioner's conviction without opinion. People v. Hidalgo, 80 A.D.2d 1001, 438 N.Y.S.2d 665 (2d Dep't 1981). Leave to appeal to the New York Court of Appeals was denied on May 29, 1981.

 On December 15, 1987, Petitioner filed a petition for a writ of error coram nobis with the Appellate Division, claiming that his appellate counsel was ineffective for failing to argue that the admission of incriminating statements by Petitioner's co-defendants constituted constitutional error. On June 10, 1988, the Appellate Division denied the petition.

 Petitioner then filed a motion to vacate his sentence pursuant to New York Criminal Procedure Law § 440.10, arguing that the admission of his co-defendants' statements violated his rights under the Confrontation Clause. The motion was denied without a hearing in November, 1988, and leave to appeal was denied.

 "In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b) (1994), federal courts will not consider a constitutional challenge that has not first been 'fairly presented' to the state courts." Ayala v. Speckard, 89 F.3d 91, 94 (2d Cir. 1996). Here, it is clear that Petitioner presented the factual allegations and constitutional legal doctrine underlying his Confrontation Clause claim to the state courts. See Daye v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984). Accordingly, Petitioner's claim has been exhausted. *fn2"


 A. The People's Case

 1. Key Witnesses

 In the early morning hours of November 15, 1977, the apartment building complex at 247 Grove Street, home of brothers Stanley and Avon Green, burned to the ground, killing an eight-year-old child and injuring other residents of the building. In connection with that fire, Petitioner and his co-defendants were charged with murder in the second degree, two counts of assault in the second degree, arson in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree. Neither Petitioner nor his co-defendants moved for a severance.

 At the trial, the prosecution presented the following evidence linking Petitioner to the fire: Darryl Jones testified that approximately two weeks before the fire, he, Petitioner, Morales, Stanley Green, Avon Green, and "a couple of other Puerto Ricans" took pipes from an abandoned building near 247 Grove Street and hid them in the basement at 247 Grove Street with the intention of later selling the pipes. The following day, according to Jones, Petitioner and his co-defendants had an altercation with the Green brothers and others, in part over the division of the proceeds from the sale of the pipes. During that dispute, Petitioner and the co-defendants threatened to burn down the Greens' building the following week. *fn3"

 Francisco Salaman, a young teenager, testified that in the early morning of November 15, 1977, he saw Petitioner, the co-defendants, and one other man on a street corner near Grove Street. Salaman stated that he overheard Petitioner say, "The niggers on Grove owe me one, and they're going to pay." The group of four then walked toward Grove Street, and Salaman followed them. According to Salaman's testimony, Petitioner and Morales approached an apartment building on Grove, while Rodriguez and the other participant stood lookout at the corner of the block. Petitioner then took out a coke bottle with yellow liquid inside and a rag on top, lit the rag on fire, and threw the lit bottle into the apartment building through the building's front door, which Morales held open.

 Salaman testified that, within seconds after Petitioner threw the bottle, the first floor of the apartment building caught fire. Petitioner and his companions fled, and Salaman set off the fire alarm on the corner of the block. When the fire fighters and police officers arrived at the building, Salaman informed New York City Police Detective Jerry Magliolo that he knew the names of the people who started the fire. On direct examination, Salaman conceded that, after cooperating with the police, and before the trial, he had told both Rodriguez's father and Rodriguez's lawyer that ...

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