A review of the record shows that the trial court was presented
with ample evidence in this non-jury case. (Trial Transcript of
February 21, 1995 at 152-154). This Court also notes that the
trial court denies making a promise to give a sentence of
probation in exchange for the waiver of a trial by a jury.
(See Ex. 10 at 5, supra). Additionally, the trial court
comments on the record that Gonzalez's counsel was "extremely
competent" in performing his duties at trial. (Trial Transcript
of Feb 21, 1995 at 153). In sum, Gonzalez has not demonstrated
any deficient performance by trial counsel nor that he was
prejudiced by any of his contentions. The claim of ineffective
representation must be denied on this basis.
Moreover, New York law bars the consideration via collateral
attack of an issue that could have been raised on direct appeal.
See People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903
(2d Dep't 1996) ("Pursuant to CPL. 440.10(2)(c) a court must
deny a post judgement motion to vacate a conviction when
sufficient facts appear in the record so that the issue may be
adequately reviewed on a direct appeal and the defendant
unjustifiably failed to raise claim on appeal."). Thus, there is
an adequate and independent finding that Gonzalez had
procedurally defaulted on this claim. He has failed to show
cause and prejudice, or that a fundamental miscarriage of
justice would result if the claim is not addressed. Therefore,
Gonzalez's second claim is barred from federal habeas review.
C. Claim 3: Denial of Fair Trial
Gonzalez also contends that he was denied a fair trial through
misconduct of the prosecution and the trial court. The Appellate
Division, Second Department, rejected this contention, holding
in part that: "The defendant failed to preserve for appellate
review his contention that he was deprived of a fair trial
because the trial court had acquired information during a
pretrial hearing about an investigation of the defendant with
respect to an unrelated matter." People v. Gonzalez,
246 A.D.2d 667, 666 N.Y.S.2d 950 (2d Dept. 1998). As such, there is
an adequate and independent finding by the Appellate Department
that petitioner is procedurally barred from raising this claim.
He has made no attempt to show cause and prejudice or that a
fundamental miscarriage of justice would result if the claim is
not addressed. Thus, review of Gonzalez's third claim is
In any event, Gonzalez's position that he was denied a fair
trial due to the trial court having knowledge of "prior bad
acts" lacks merit. The trial court ruled that the alleged
possession of 38 stolen checks by Gonzalez was inadmissible in
his non-jury trial. It is well settled that in a non-jury case
the trial judge is presumed to be able to exclude any
incompetent evidence, absent a showing of substantial prejudice
by the defendant. Stephens v. LeFevre, 467 F. Supp. 1026, 1030
(S.D.N.Y. 1979) (citing cases). No such showing of substantial
prejudice has been made. Thus, Gonzalez's third claim for habeas
relief is procedurally barred.
IV. Claims 4 and 5 are not cognizable
A. Claim 4: Insufficient Evidence
A federal court may entertain a state prisoner's habeas corpus
petition only to the extent that the petition alleges custody in
violation of the constitution, law, or treaties of the United
States. Beverly v. Walker, 899 F. Supp. 900, 908 (N.D.N.Y.
1995). Accordingly, federal habeas review of state court rulings
is limited to determining whether the alleged error rose to the
level of a Constitutional violation. Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). "A claim
of insufficiency of evidence is essentially a question of state
law, and does not
rise to the level of a federal constitutional claim absent a
record so totally devoid of evidentiary support that a due
process issue is raised." Bossett v. Walker, 41 F.3d 825, 830
(2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436,
131 L.Ed.2d 316 (1995). When reviewing a claim of sufficiency of
the evidence in the context of a habeas corpus petition, the
relevant question is 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. Jackson v. Virginia, 443 U.S. 307, 318, 99
S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Generally, rulings by
state courts on evidentiary issues, even if erroneous, do not
rise to the level of a Constitutional violation. Roberts v.
Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1995), aff'd,
71 F.3d 406 (2d Cir. 1995).
Here, a review of the record in the light most favorable to
the prosecution shows that a rational fact finder could find
Gonzalez guilty beyond a reasonable doubt of grand larceny in
the second degree under New York law. Gonzalez asserts that
insufficient evidence was produced at trial to prove the
larcenous intent element of grand larceny in the second degree.
This Court is in agreement with the Appellate Division's finding
that the evidence adduced at trial was sufficient to prove all
the elements of the defendant's guilt beyond a reasonable doubt.
The Appellate Division reasoned that the evidence at trial
sufficed to establish larcenous intent, "since that element may
be `satisfied by a showing that the thief exercised dominion and
control over the property for a period of time, however
temporary, in a manner wholly inconsistent with the owner's
continued rights.'" See People v. Gonzales, 91 N.Y.2d 973,
695 N.E.2d 721, 672 N.Y.S.2d 852 (N.Y., Apr. 10, 1998) (Bellacosa,
J.). Further, a review of the record shows that there was ample
evidence for a rational trier of fact to reasonably conclude
that the evidence supported Gonzalez's guilt beyond a reasonable
doubt for grand larceny in the second degree. Thus, Gonzalez's
claim of insufficient evidence of larcenous intent is not
cognizable for habeas relief.
B. Claim 5: Harsh and Excessive Sentence
"It is well established that, when a sentence falls within the
range prescribed by state law, the length of the sentence may
not be raised as grounds for federal habeas relief." Thomas v.
Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) (citations
omitted). "[N]o federal constitutional issue is presented where,
as here, the sentence is within the range prescribed by state
law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Gonzalez was convicted of grand larceny in the second degree
and sentenced to three and one-third (3 1/3) to ten (10) years
imprisonment. This sentence is within the statutory range.
N.Y.Penal Law § 155.40 (grand larceny in the second degree is a
Class C felony); N.Y.Penal Law § 70.00 (maximum sentence of ten
years for Class C felony). Therefore, Gonzalez's contention that
his sentence was excessive and harsh is not a cognizable habeas
For the reasons set forth above, it is respectfully
recommended that the instant petition for writ of habeas corpus
be denied in its entirety.
Pursuant to 28 U.S.C. § 636(1)(B) and Rule 8(b)(3) of the
Rules governing § 2254 proceedings, the parties shall have ten
(10) days from receipt of this Report to serve and file written
objections to this Report and recommendation. If copies of this
Report are served upon the parties by mail, the parties shall
have thirteen (13)
days from receipt of this Report to file and serve written
objections. See Rule 11 of the Rules governing § 2254
proceedings; Fed.R.Civ.P. 6(e). Such objection, if any shall be
filed with the Clerk of the Court, with extra copies delivered
to the chambers of The Honorable Barrington D. Parker, at the
United States District Court, Southern District of New York,
United States Court House, 300 Quarropas Street, White Plains,
New York, 10601, and to the Chambers of the undersigned at said
Failure to file timely objections to this Report and
Recommendation will produce later appellate review of any order
of judgement that will be entered. See Small v. Secretary of
H.H.S., 892 F.2d 15, 16 (2nd Cir. 1989).
Requests for extension of time to file objections must be made
to the Honorable Barrington D. Parker and not to the
October 12, 2000.