grant a jury's request for information. (Pet'r Mem. of Law of
8/26/99, at 20.) Here, the trial court did not deny the jury's
request, but simply asked for clarification. Pina has not
demonstrated that the trial court violated state law nor his
federal constitutional rights. Accordingly, this claim is
E. As to the Jury Charge
Pina asserts the trial court erred in its jury charge
regarding missing evidence — a videotape of the parking lot
outside the Green Acres Mall which the police allegedly lost or
destroyed. Pina does not challenge the substance of the trial
court's charge, but argues that the court should have given an
adverse inference instruction during the trial, rather than
during the jury charge. He claims that waiting until the end of
the trial to give the instruction caused him prejudice.
" `In order to obtain a writ of habeas corpus in federal court
on the ground of error in a state court's instructions to the
jury on matters of state law, the petitioner must show not only
that the instruction misstated state law but also that the error
violated a right guaranteed to him by federal law.'" Sams v.
Walker, 18 F.3d 167, 171 (2d Cir. 1994) (quoting Casillas v.
Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see also Estelle v.
McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396,
400-01, 38 L.Ed.2d 368 (1973).
Pina has failed to show that the trial court erred in its
instruction, and that the alleged error violated his federal
rights. Pina's trial counsel did not request an adverse
inference charge during the trial. However, Pina's attorney
cross-examined the police officer responsible for the videotape
and elicited information that the police officer had lost the
tape and was unable to produce it at trial. (See id. at
813-14.) Thus, the jury immediately discovered that the
videotape's absence was imputed to the prosecution.
Moreover, testimony concerning the videotape indicated that it
would not have been helpful or harmful to either party. Thus, it
is highly unlikely that Pina suffered any prejudice as a result
of the tape's absence. In any event, the curative instruction
that the trial court gave was sufficient to eliminate any
unfairness to Pina. Pina has not shown how the timing of the
instruction caused him prejudice. Accordingly, this claim is
F. As to the Alleged Prosecutorial Misconduct
Pina argues that the prosecutor committed misconduct during
summation because he referred to his testimony as "ridiculous"
"utter nonsense" and stated that "it makes no sense."
The standard for reviewing a claim of prosecutorial misconduct
is "`the narrow one of due process, and not the broad exercise
of supervisory power.'" Darden v. Wainwright, 477 U.S. 168,
181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868,
1871, 40 L.Ed.2d 431 (1974)). Habeas corpus relief is available
only where the prosecutor's remarks so infected the trial with
unfairness that the resulting conviction is a denial of due
process. Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. A federal
court must distinguish between "`ordinary trial error of a
prosecutor and that sort of egregious misconduct . . . amounting
to a denial of constitutional due process.'" Floyd v. Meachum,
907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S.
at 647-48, 94 S.Ct. 1868). In order to show a constitutional
violation, the petitioner must demonstrate that he suffered
actual prejudice from the
prosecutor's remarks. Salcedo v. Artuz, 107 F. Supp.2d 405, 416
The prosecution is entitled to rebut arguments raised during
defendant's summation, "`even to the extent of permitting the
prosecutor to inject his view of the facts to counter the
defense counsel's view of the facts.'" Readdon v. Senkowski,
1998 WL 720682 at *4 (S.D.N.Y. 1998) (quoting Orr v.
Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978)). "Where a
prosecutor's statement is responsive to comments made by defense
counsel, the prejudicial effect of such objectionable statements
is diminished." Pilgrim v. Keane, 2000 WL 1772653 at *3
(E.D.N.Y. Nov. 15, 2000).
The prosecutor's summation did not violate Pina's due process
rights. The prosecution's comments during closing argument were
made in response to defense counsel's closing remarks, and the
prosecution was entitled to rebut those arguments. Readdon,
1998 WL 720682, at *4.
In any event, Pina has not demonstrated that his trial was
infected with unfairness, or that the outcome of his trial would
have been different but for such error. Bacchi v. Senkowski,
884 F. Supp. 724, 733 (E.D.N.Y. 1995). In light of the evidence
against Pina, including eyewitness testimony, it is unlikely
that the prosecutor's comments affected the verdict.
Accordingly, this claim is denied.
For the foregoing reasons, Pina's petition for a writ of
habeas corpus is DENIED. Pursuant to Fed.R.App.Pro. 22(b) and
28 U.S.C. § 2253(c)(2), a certificate of appealability is
denied, as Pina has not made a substantial showing of a denial
of a constitutional right. Barefoot v. Estelle, 463 U.S. 880,
893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090; Lucidore v. New York
State Div. Of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
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