The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
MEMORANDUM DECISION AND ORDER
Petitioner Louis Rafael Ayala, proceeding pro se, filed a
Petition for a Writ of Habeas Corpus dated April 14, 1997
challenging his conviction on First Degree Criminal Sale and
First Degree Criminal Possession of a Controlled Substance. See
28 U.S.C. § 2254.
Following a trial in Westchester County Court where he was
convicted of these
charges, Ayala was sentenced on September 21, 1988 to two
consecutive terms of imprisonment of 15 years to life. Ayala
timely appealed his conviction to the Appellate Division, Second
Department, which unanimously affirmed on September 24, 1990.
See People v. Ayala, 165 A.D.2d 878, 560 N.Y.S.2d 656 (2d Dep't
1990). Ayala's motion to the Appellate Division to reargue was
denied on September 7, 1990 and the New York Court of Appeals
denied leave to appeal on March 4, 1991. See People v. Ayala,
77 N.Y.2d 903, 569 N.Y.S.2d 935, 572 N.E.2d 618 (1991). On March
3, 1998, this Court dismissed Ayala's Petition as untimely.
Following the Court of Appeals decision in Ross v. Artuz,
150 F.3d 97 (2d Cir. 1998), this Court, on January 20, 1999, vacated
its March 1998 order and proceeded to consider the Petition on
The Petition was referred to the Honorable George A. Yanthis,
United States Magistrate Judge, for a Report and Recommendation.
Judge Yanthis filed a Report and Recommendation dated October 14,
1999 recommending that the Petition be denied in its entirety.
The Petitioner timely objected to the Report and Recommendation.
Consequently this Court reviews the matter de novo. Familiarity
with the Report is assumed.
Ayala essentially raises two claims. Ayala was charged with
aiding and abetting Ralph Bernstein in the sale of cocaine to
Agent Patrick Cardiello of the Drug Enforcement Agency on July
27, 1987. Ayala's first claim is that the trial court improperly
limited his cross examination of Cardiello. Essentially, Ayala
claims that his counsel was improperly prevented on cross
examination from questioning Cardiello concerning the
relationship between Ayala and Bernstein.
On cross examination, Ayala's counsel was permitted to adduce
the fact that Bernstein had been arrested for another drug sale,
not involving Ayala, and that Bernstein had attempted to arrange
a narcotic's purchase from Ayala which was never consummated. On
redirect examination, the prosecution further questioned
Cardiello concerning Bernstein's statements to him about Ayala.
Ayala's objections to this lien of questioning were overruled and
Cardiello testified that Bernstein had advised him that Ayala was
the cocaine supplier for the transaction charged in the
indictment. Cardiello also testified that Bernstein said that
Ayala was responsible for substantial, additional, uncharged
sales of cocaine and that he had been arrested for attempted
Judge Yanthis concluded, as do we, that no improper
restrictions on cross examination were imposed. The challenged
testimony was admissible because either defense counsel had
opened the door, see People v. Melendez, 55 N.Y.2d 445,
449 N.Y.S.2d 946, 434 N.E.2d 1324 (1982); see also People v.
Peoples, 143 A.D.2d 780, 533 N.Y.S.2d 311 (2d Dep't 1988), or
the challenged testimony was proper rebuttal testimony. See
People v. Ramos, 139 A.D.2d 775, 527 N.Y.S.2d 521 (2d Dep't
Trial courts have substantial latitude concerning the nature
and extent of redirect and cross examinations. United States v.
Rahman, 189 F.3d 88, 132 (2d Cir. 1999). Here, the record
discloses no improper conduct by the prosecution that could be
said to implicate basic constitutional rights. As previously
noted, the challenged questioning was allowed by the trial court
because Ayala's counsel explored the subject matter. In any
event, in the context of the trial, this questioning, even if it
were said to have somehow been improper, constituted harmless
error since it could not be said to have had a "substantial and
injurious effect on influence in determining the jury's verdict."
See Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct.
1239, 90 L.Ed. 1557 (1946); see also Brecht v. Abrahamson,
507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). As Judge
Yanthis correctly noted, much of the proof against Ayala was
based on his own admissions to law enforcement officers
concerning his drug sales. This activity was confirmed by eye
In any event, Ayala was afforded the opportunity to cross and
re-cross examine Cardiello. He was not, however, afforded the
opportunity to ask every question that he wanted, an opportunity
that the right to cross examine does not include. See Delaware
v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15
Ayala also challenges the trial court's admission of uncharged
crimes evidence. The decision to admit such evidence is committed
to the sound discretion of the trial court and will not be
disturbed unless its rulings were "arbitrary and irrational."
United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998). Judge
Yanthis concluded, as do we, that once Ayala had made an issue of
Bernstein's candor, the trial court was within its discretion in
allowing the cross examination and rebuttal testimony in
question. In view of the overwhelming evidence of Ayala's guilt,
this evidence cannot even if it had been erroneously admitted, be
said to have denied Ayala a fair trial. See Collins v. Scully,
755 F.2d 16 (2d Cir. 1985).
Ayala's final objections are to the remarks of the prosecutor
during summation. Those statements amounted to a reasonable
comment on the evidence and did not exceed the bounds of
permissible adversarial rhetoric. In any event, they largely
constituted responses to Ayala's own counsel's summation. See
Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978). We have
reviewed Ayala's other objections and find them to be without
The Report and Recommendation of the Magistrate is adopted. The
objections to that Report are overruled. Ayala has not made a
substantial showing of the violation of his constitutional
rights; consequently a Certificate of Appealability will not
issue. See 18 U.S.C. § 2253, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996. See generally Lozada v.
United States, 107 F.3d 1011 (2d Cir. 1997). This Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order would not be taken in good faith and this Court would
deny in forma pauperis status. The Petition is dismissed. The
Clerk of the Court is ordered to enter a final judgment in favor
of the Respondent.
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