The opinion of the court was delivered by: SPRIZZO
Pursuant to 28 U.S.C. § 2254, Thomas D. Clancy brings the above-captioned petition against the Commissioner of Correctional Services of the State of New York challenging his state court conviction on due process and equal protection grounds arguing that (1) the trial judge improperly failed to excuse a juror for bias; (2) the prosecution acted improperly before the Grand Jury, during cross-examination of witnesses and during summation at trial, and by adducing false evidence at trial; (3) the trial court failed to record side bar discussions; and (4) there was insufficient evidence in the record to support his conviction. For the reasons set forth in Magistrate Judge James C. Francis IV's Report and Recommendation (the "Report"), and that follow, Clancy's claims are denied and his petition is dismissed.
On January 19, 1990, Thomas D. Clancy was working as a freight elevator operator on a construction site in New York City. See Trial Transcript dated May 21-29, 1992 ("Tr.") at 635.
On the same day, John O'Shea was working as a carpenter. Tr. at 167. At approximately 12:30 p.m., O'Shea pressed the call button for the elevator operated by Clancy on his way back to work on the 43rd floor. Tr. at 172, 174. Descriptions of the ensuing altercation vary and are outlined briefly herein.
Defense counsel elicited a contrary version of events. O'Shea entered the elevator on the 30th floor and began to complain about how long he had to wait. Tr. at 641. During the assent, the two men began to exchange a series of verbal attacks which escalated into a heated argument. Tr. at 641-42. As the doors opened on the 43rd floor, O'Shea punched Clancy in the head. Tr. at 643. Certain defense witnesses, including Clancy, disputed that Clancy kicked O'Shea and testified that Clancy was wearing sneakers, not construction boots. Tr. at 643, 636.
Immediately following the altercation, O'Shea was taken by ambulance to Roosevelt Hospital's emergency room for treatment, where he was advised to go home and rest, but to return to a hospital should he feel dizzy and nauseous. Tr. at 182, 189. That evening, O'Shea experienced severe headaches, dizziness and nausea, and went to Nyack Hospital, was re-examined, and released. Tr. at 190. Because O'Shea's symptoms persisted, he returned to Nyack Hospital a week later to undergo additional medical examinations. Tr. at 191. A CAT scan revealed that a pre-existing congenital cyst in O'Shea's brain was no longer draining, requiring two brain operations to drain the excess fluid. Tr. at 199, 394-95.
O'Shea testified that he continued to suffer from the effects of the beating and subsequent surgery for almost a year. He had trouble balancing, concentrating, and focusing, and had to learn to read and work with numbers again. Tr. at 201, 204-06. Following his last operation he went to a rehabilitation center for two months. Tr. at 200-03.
On January 26, 1990, Clancy was arrested and charged with assault in the first degree, in violation of New York Penal Law § 120.10(1)
, and assault in the second degree, in violation of New York Penal Law § 120.05(1). See Rec. at 42a, Indictment No. 6142/91.
On October 18, 1991, Clancy moved to dismiss the Indictment, alleging prosecutorial misconduct before the Grand Jury. See Rec. at 131a, Notice of Motion. Justice Stephen Crane heard argument and denied Clancy's motion. See Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus at 3.
On May 21-29, 1992, a jury trial was held before Justice Charles Tejada.
On May 29, 1992, the jury found Clancy guilty of assault in the first and second degrees. Tr. at 1003.
On June 29, 1992, Clancy moved to set aside the verdict and to dismiss the Indictment or grant a new trial, alleging that (1) he was denied a fair trial; (2) the summation and other conduct of the prosecution was so prejudicial, inflammatory and outrageous as to preclude the possibility of a fair trial; (3) a substantial portion of the trial, over his objection, was conducted off the record; and (4) he was not permitted to make motions or ask for rulings on the record until substantially after disputed events. See Rec. at 160a, Motion to Set Aside Verdict and for Dismissal of the Indictment or a New Trial Based Upon Trial Errors and a New Trial Based Upon Newly Discovered Evidence.
At trial, Carroll testified that he had known Clancy's father for several years and that on the day of the incident, he visited the job site in his capacity as a Union Local Number 1 elevator safety representative, rode in the elevator that Clancy was operating, and witnessed the altercation. Tr. at 503-510. Carroll further testified that O'Shea, upon entering the elevator, "started verbally abusing [Clancy]." Tr. at 507. Shortly thereafter, Clancy and O'Shea "were in a bear hug" and "fell out the door onto the floor." Tr. at 508, 551. Carroll also testified that he could not recall whether Clancy was wearing construction boots. Tr. at 550.
To impeach Carroll's testimony, the prosecution elicited testimony from Jeffrey Kruman, the financial comptroller for Nastasi & White, a construction firm at the site, that Kruman's payroll records for the job site showed a "Carroll, Willia" employed by Nastasi & White beginning on January 20, 1990, not January 19th, the day of the incident. The prosecution introduced a page of those payroll records that contained the name "Carroll, Willia" and an activity number. See Tr. at 720; People's Exhibit 6 ("Exhibit 6").
On surrebuttal the next day, defense counsel recalled Carroll, and elicited the following direct examination testimony:
Q. On the 20th of January, 1990, were you employed by Nastasi & White, Incorporated at 1301 Sixth Avenue?
A. Nastasi & White, can you clarify what that is, Nastasi & White is?
Q. Nastasi & White is a company that did certain, I think, carpenters work at the site at 1301 Sixth Avenue.
A. This is supposed to be me?
Q. That is what the Prosecution is offering it for.
A. I am trying to answer a question here. Let's get to the facts.
The Court: Were you working that day?
Q. You were not working that day?
Q. Sir, does you name appear on any payroll at 1301 Sixth Avenue for the 19th of January, 1990?
A. Because I wasn't working there.
A. At the job site that day?
A. I went in to inspect the job, speak to the Otis men that were working on the job. As a safety committee man, that's my duties of Local Number 1. That's why I was on the job that day.
Q. Was this the only job site that you visit (sic) for that purpose?
A. No, I visit jobs all over the City of New York.
Q. Is that part of your job?
A. Safety committee for Local Number 1.
Q. Is your testimony now you have no recollection of having been employed by Nastasi & White as a carpenter on the 20th of January, 1990?
Q. Have you ever worked as a carpenter in ...