The opinion of the court was delivered by: VICTOR Marrero, United States District Judge
Petitioner, Alton Cottrel ("Cottrel") moves for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is DENIED.
On January 23, 1998, Cottrel was convicted in New York State Supreme Court, Bronx County, after a jury trial, of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree. On January 23, 1998, Cottrel was sentenced as a predicate felon and the trial court imposed a sentence of five to ten years imprisonment on each of the two counts of criminal activity for which he was convicted.
In his appeal to the New York State Supreme Court, Appellate Division, First Department, ("the Appellate Division") Cottrel challenged: (i) the trial court's alleged failure to read back testimony that the jury had requested; (ii) the trial court's alleged failure to instruct the jury that the state had the burden of proving each of the elements of the crimes charged beyond a reasonable doubt; (iii) the trial court's alleged marshaling of the evidence in its jury instructions; (iv) the police stop and arrest for lack of probable cause, thus requiring suppression of all evidence seized; and (v) the verdict, on the grounds that it was against the weight of the evidence. On September 26, 2000, the Appellate Division issued its ruling affirming the trial court's decision in all respects. People v. Cottrel, 713 N.Y.S.2d 328 (App. Div. 1st Dep't 2000). Leave to appeal to the New York Court of Appeals was denied on January 30, 2001. People v. Cottrel, 745 N.E.2d 1023 (N.Y. 2001).
In the instant petition, Cottrel raises four of the five grounds for reversal that were presented on his direct appeal: that he was denied his due process right to a fair trial because of the failure of the trial court to read back trial testimony, deficient jury instructions, improper marshaling of the evidence, and that the verdict was against the weight of the evidence.
A. READ-BACK OF TRIAL TESTIMONY
Respondents argue that Cottrel's claim that the trial court erred in failing to read back trial testimony is procedurally barred for federal habeas review because it was not raised on federal constitutional grounds in his state court appeal. The standard for exhaustion of federal claims is that a federal claim must be "fairly presented to the state courts" before a federal court may consider the merits of the petition. Picard v. Connor, 404 U.S. 270, 275 (1971); accord Duncan v. Henry, 513 U.S. 364, 365-367 (1995) (per curiam) (Souter J., concurring). In his state court appellate brief, Cottrel did indicate in the "Questions Presented" section that each claim asserted was alleged to violate both federal and state law. However, in arguing the read-back claim, Cottrel does not make reference to federal law or indicate explicitly that the trial court's conduct violated the United States Constitution. In any event, given that Cottrel's state and federal claims relating to the read-back issue are based on the same basic principles of law, and that the federal basis was included in his appeal, albeit obliquely, the Court deems Cottrel's challenge of the trial court's failure to read back testimony, as well as all other claims brought before the Appellate Division, sufficiently exhausted for purposes of ruling on this petition.*fn1
Considered on the merits, Cottrel's challenge to the trial court's actions does not rise to the level of a federal constitutional violation. During deliberations, the jury sent a note to the trial court requesting to see "all the physical evidence, testimony from both officers, defense witness testimony concerning how many people were in the van and what he saw pulled out on [the] car." (Transcript of the trial conducted on Nov. 14, 1997 — Nov. 20, 1997 ("Tr. Trans.") at 304.) This note was sent to the trial court at a quarter to five in the afternoon. All of the physical evidence was provided to the jury. Id.
As to the testimonial evidence, the trial court expressed concern about the broadness of the request: "Basically, you have asked for the recitation of the entire trial. I always worry about [sic] when I get a note like that . . ." Therefore, he suggested that the jury adjourn for the day, given the late hour, and that the following morning they attempt to narrow the request for a read-back of testimonial evidence: "We're going to recess at this point, you're going to go home . . . I want you to think about the testimony that you heard on Monday and today and try and pinpoint, I've talked to the court reporter and he estimated that it would run about three hours." (Tr. Trans. 305-306). In the end, the trial court ensured the jury that if that is truly what they wanted, a three-hour read-back of the testimony, "we will do it, that is not a problem, not a problem at all."
The following day, defense counsel noted his objection to the trial court's instruction to the jury to narrow the request for a read-back of trial testimony and requested that the trial court comply with the jury's request in its entirety. (See Tr. Trans. at 309-310.) The trial court contested defense counsel's characterization of the court's instructions to the jury to the extent that the defense counsel argued that the trial court did not comply with the jury request. (Id.) The trial court underscored the court's instruction that if the jury did in fact want the a three-hour read-back of testimony, the court was willing to comply, and noted that the court asked the jury to narrow the request if possible and to the extent a more narrowed request was more in line with the jury's original intent. (Id.).
That morning, the jury sent another note to the trial court narrowing their request for a read-back of trial testimony to "the testimony concerning what the arresting officer said about the money, $68.00, recovered and where and when he recovered the money from." (Id. at 317.) Before having this brief excerpt read, the trial court again elaborated on his instruction concerning the previous day's note:
Now, that was left unanswered yesterday mostly
because of the time, it was five o'clock, I didn't
want to keep you here listening to testimony until
late in the day since we were going to recess at
that point . . . So that if you want any of that
testimony, we'll be happy to give it to you, and
provide you with it. . . . If at any time it should
change and you need to refer back to that testimony
or any other portion of it, ...