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 denied.
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 denied.
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 (S.D.N.Y. 2000).
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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