The opinion of the court was delivered by: Hellerstein, District Judge.
MEMORANDUM AND ORDER DENYING PETITION FOR HABEAS CORPUS
Petitioner Ramon Padro, pursuant to 28 U.S.C. § 2254, petitions
for a writ of habeas corpus, seeking relief from a judgment of
conviction, rendered November 29, 1993, in the New York County
Supreme Court (Alvin Schlesinger, J.) for the crimes of sodomy in
the first degree (two counts), rape in the first degree and
burglary in the first degree. Finding no grounds for which relief
can be granted, I deny the petition.
The charges giving rise to the instant petition stem from an
incident that occurred on the night of November 12, 1992. On that
night a woman was attacked by a man while entering her apartment.
During the attack the man put a knife to her throat and told her
to open the door or he would kill her. The attacker then raped
and sodomized the woman.
Petitioner was charged with committing the attack. After a
trial by jury, Petitioner was convicted of two counts of sodomy
in the first degree, one count of rape in the first degree and
one count of burglary in the first degree. Petitioner was
sentenced on January 6, 1994 to concurrent terms of eight and
one-third to twenty-five years for the rape and sodomy charges
and to a consecutive term of two to six years for the burglary
charge. Petitioner sought review in the Supreme Court of the
State of New York, Appellate Division, First Department. By
Decision and Order dated February 6, 1997, the Appellate Division
affirmed Petitioner's judgment of conviction. See People v.
Padro, 236 A.D.2d 223, 654 N.Y.S.2d 287 (App. Div. 1997). Leave
to appeal was denied on May 19, 1997. See People v. Padro,
89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993 (1997).
Petitioner claims that subsequently he learned, through a
police complaint follow-up report, that there was an existing set
of video surveillance tapes of the street in question, and that
these tapes were known to the District Attorney prior to
commencement of trial. Petitioner then sought to vacate the
judgment of conviction, pursuant to N.Y.C.P.L.R. 440.10(1)(g), on
the grounds that the prosecution violated People v. Rosario,
9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied,
368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961) and Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). By
Decision and Order dated October 12, 1998, the Supreme Court of
New York County denied Petitioner's motion. On February 4, 1999,
the Appellate Division denied Petitioner's application for leave
to appeal. On May 18, 1999, the New York Court of Appeals
dismissed Petitioner's application for a certificate to appeal
because the Order of the Appellate Division dated February 4,
1999 was not appealable under Criminal Procedure Law, Section
Petitioner filed the instant petition for a writ of habeas
corpus on July 9, 1999, claiming that the weight of evidence did
not support a verdict of guilt beyond a reasonable doubt and that
the prosecution had violated Rosario and Brady. Because I
find that neither ground has merit, the petition is denied.
Petitioner first claims his state conviction should be reversed
because the weight of the evidence did not support a verdict of
guilt beyond a reasonable doubt. A petitioner, challenging a
conviction brought under 28 U.S.C. § 2254 based on an alleged
insufficiency of evidence necessary to convict, is entitled to
habeas corpus relief only "if it is found that upon the record
evidence adduced at the trial no rational trier of fact could
have found proof of guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). The federal court reviewing the conviction must determine
whether, "after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
Id. at 319, 99 S.Ct. 2781. While under Jackson, the federal
court must assess state court findings of guilt under the "proof
beyond a reasonable doubt" standard, factual determinations of
the state trial court are entitled to a "presumption of
correctness." Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct.
1303, 71 L.Ed.2d 480 (1982) (per curiam).
Petitioner contends that the accuracy of the victim's
identification and testimony was discounted by a lack of
corroboration and by forensic findings which, according to
Petitioner, effectively eliminate him as the rapist. However, the
victim's detailed description of Petitioner identifying him as
the rapist and her credible testimony at trial provided the jury
with more than sufficient evidence upon which to base its
verdict. In a review of sufficiency of the evidence, the
credibility of a witness is for the jury to decide. People v.
Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364
cert. denied, 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264
(1984); People v. Mosley, 112 A.D.2d 812, 813-14, 492 N.Y.S.2d 403
(1st Dept. 1985), aff'd, 67 N.Y.2d 985, 502 N.Y.S.2d 993,
494 N.E.2d 98 (1986). The forensic evidence included four usable
latent fingerprints — two from the victim and two from her
co-worker who called the police from the scene — and hair
samples, none of which conclusively matched Petitioner. Although
the forensic evidence was inconclusive in relation to
Petitioner's identity, it did not eliminate Petitioner as the
rapist. A federal court in a habeas review must ask itself
whether "any reasonable trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,"
Jackson, 443 U.S. at 307, 99 S.Ct. 2781, not "whether it
believes that the evidence brought at trial established guilt
beyond a reasonable doubt." Id. at 318-19, 99 S.Ct. 2781. In
the present case, where a detailed description, identification
and credible testimony were present, this Court cannot conclude
that no rational trier of fact could have found proof of guilt
beyond a reasonable doubt. Under the Jackson standard,
Petitioner's claim of insufficient evidence necessary to convict
is without merit.
Petitioner also claims that the prosecution violated the
requirements of Rosario and Brady in failing to provide the
defense with surveillance videotapes which, he maintains, were in
the possession of the prosecution at the time of trial. Federal
courts generally do not look at evidentiary errors unless they
rise to a constitutional level. Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Moreover, it is
not the province of federal habeas corpus courts to examine state
court determinations about state law questions. Id. The
Rosario rule is a creation of New York common law. Morrison v.
McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995). As the court in
Morrison stated, "[a]ny error under Rosario at trial would be
a violation of state law, and thus, not subject to review under a
petition for a writ of habeas corpus." Id. Therefore,
petitioner's claim that the prosecution's failure to provide
defense counsel with the surveillance tapes
was a violation of his Rosario rights is not cognizable under
federal review and is dismissed.
Petitioner also alleges that the prosecution's failure to
provide the defense with the surveillance videotapes constituted
a federal Brady violation. In criminal trials, "the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution." Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Ross v.
McCoy, No. 00 Civ. 804, 2001 WL 30451, *5 (S.D.N.Y. Jan. 10,
2001). Evidence is considered material "only if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S. 667, 682, 105
S.Ct. 3375, 87 L.Ed.2d 481 (1985). A "reasonable probability" is
a probability "sufficient to undermine confidence in the
outcome." Id. Petitioner claims that the surveillance
videotapes, from video cameras placed across the street from the
victim's apartment, would have provided exculpatory information
since the victim claims the attacker walked across the street
before the attack and Petitioner claims he does not appear on the
Petitioner has failed to produce evidence sufficient to
demonstrate that a Brady violation occurred. The trial
prosecutor disclosed the existence of the tapes to Petitioner
prior to commencement of trial, yet Petitioner never asked for
the tapes, never raised his claims before the trial judge, and
never sought to litigate his claims on direct appeal in state
court. More significantly, on the merits, the tapes could not be
construed as Brady material. The tapes pertained to
surveillance of a commercial building on the opposite side of the
street from the victim's apartment. The surveillance cameras that
generated the tapes had been focused on that commercial
building's door and periphery. The absence of Petitioner's image
from the videotapes was not exculpatory since the cameras were
focused on the doorways of the building and the absence of his
image from the tapes should not have had an impact on the jury's
verdict. The tapes indicate nothing about whether, for example,
Petitioner was on the other side of the street in the vicinity of
the victim's building, or whether he crossed the street from a
point not in the vicinity of the commercial building doorways.
Accordingly, Petitioner is not entitled to relief on his Brady
Accordingly, for the reasons stated, the petition is dismissed.
Because Petitioner has failed to make a substantial showing of
the denial of a Constitutional right, see
28 U.S.C. § 2253(c)(2), Petitioner is not entitled to a certificate of
appealability, and no certificate will be issued.
The Clerk of the Court is directed to mark this ...