The opinion of the court was delivered by: Nina Gershon, United States District Judge
Pro se petitioner, Gary Rattray, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his March 12, 1997 conviction, after a jury trial, in New York State Supreme Court, Queens County (Fisher, J.), of one count each of Criminal Possession of Stolen Property in the Third Degree in violation of N.Y. Penal Law § 165.50, Grand Larceny in the Third Degree in violation of N.Y. Penal Law § 155.35, Criminal Mischief in the Fourth Degree in violation of N.Y. Penal Law § 145.00, and Possession of Burglar's Tools in violation of N.Y. Penal Law § 140.35. Petitioner was sentenced, as a second felony offender, to concurrent terms of imprisonment of three to six years on the criminal possession of stolen property and grand larceny counts, and one year on the criminal mischief and possession of burglar's tools counts.
Taken in the light most favorable to the People, the evidence at trial was as follows:
Police Officer Thomas Lyons testified that, on May 1, 1996, he and Officer Patrick Tompkins received a "radio run," a communication on their radio, that a male suspect had attempted to break into a dark colored car on 72nd Street just off of 31st Avenue in Queens. When they arrived at the scene they observed two dark colored cars, and one officer began to walk toward each car. Officer Lyons approached the black Mustang with Massachusetts license plates, and he noticed that the door lock cylinder was popped out. He saw a black male lying across the front seat with his hand on the rods attempting to start the car from under the broken steering column. The car started and lurched forward. Officer Tompkins took petitioner out of the car and recovered a screw driver, hacksaw, vice grips and other tools from the seat of the car and from petitioner. Later, while Officer Tompkins was trying to start the car, petitioner, sitting in the police vehicle, told the officer how to "pull the rods" to start the car.
In addition, the People called Mary Murphy, the driver of a black 1988 Mustang GT with Massachusetts license plates that she had borrowed from her brother-in-law while her car was being repaired. Ms. Murphy testified that, on May 1, 1996, she drove the car home and parked it on 72nd Street just off of 31st Avenue. She testified that, when she left the car it was in good condition, it had no damage to the door or steering column, and there were no tools in the car.
The People also called Thomas DiFiore, an auto damage appraiser. Mr. DiFiore testified that he had been assessing damaged autos for approximately two and one-half years and that he had national and on-the-job training and refresher courses. Over defense counsel's objections, Mr. DiFiore was deemed an expert in determining the fair market value of vehicles. Mr. DiFiore stated that he observed photos of the Mustang, but that he never actually inspected the car and that he did not know the actual mileage. Mr. DiFiore estimated the value of the car at $4,950.00 but acknowledged that, if the mileage of the car was over 100,000 miles, $100.00 should be deducted, making the value of the car $4,850.00.
After the People rested, defense counsel made an application to strike the testimony of the expert because the expert never actually examined the vehicle. That application was denied. Defense counsel also moved to dismiss the grand larceny in the third degree count on the ground that the evidence did not support the People's claim that the car was worth more than $3,000.00 or the claim that the car was actually "taken" by petitioner. The Court did not dismiss it.
Defense counsel requested that the court charge the jury with attempted grand larceny and the lesser-included offenses as they related to the value of the car. The court denied this request, finding that it would not be reasonable for a jury to find that a car, valued by an expert at $4,950.00, was actually worth less than $3,000.00, a difference of over $1,950.00. The court also found that it would be unreasonable for a jury to find Officer Lyon's testimony credible to the extent that he said the defendant was in the car trying to start it, but find incredible the officer's testimony that the engine was actually running and that the car lurched forward. The court found that there was no reasonable view of the evidence under which the jury could reach either one of those conclusions. Thus, the court denied the request to charge attempted grand larceny and the lesser-included offenses. Defense counsel also claimed a violation of People v. Rosario, 9 N.Y.2d 286, cert denied, 368 U.S. 886 (1961), based on the People's failure to turn over pictures of the Mustang to defense counsel until two days before trial. The court found that the People did commit a discovery violation because they did not disclose pictures of the Mustang, even though defense counsel had asked for pictures of the car. However, the court found that the People's violation did not warrant any sanctions.
The jury found petitioner guilty on all charges.
Petitioner appealed his conviction to the Appellate Division, Second Department, claiming that: (1) the evidence did not prove his guilt beyond a reasonable doubt because the evidence did not establish that the value of the Mustang was over $3,000.00; (2) the trial court's pre-trial ruling, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), deprived him of a fair trial; (3) petitioner's sentences on other convictions should have been set to run concurrently with each other and with the sentences in this case; (4) the trial court erred when it refused to charge lesser-included offenses; and (5) the trial court erred when, having found a Rosario violation, the court refused to order any sanctions against the People. By order dated March 8, 1999, the Appellate Division affirmed the judgment of conviction, finding that the evidence was legally sufficient to establish that the value of the stolen Mustang was over $3,000.00 and that, although the People erred in failing to disclose photographs of the stolen car in a more timely manner, exclusion of all the evidence related to the car was not warranted because the People did not act in bad faith. The court also found that petitioner's sentence was not excessive and that all of his other claims were without merit. People v. Rattray, 259 A.D.2d 569 (2d Dept. 1999).
Petitioner's counsel sought review of three claims in the New York Court of Appeals, namely, that: (1) the People failed to prove his guilt beyond a reasonable doubt because the expert who testified as to the value of the car had never actually inspected it; (2) the Appellate Division erred when it determined that the People's Rosario violation did not warrant reversal, because turning over the pictures late precluded the petitioner from obtaining his own valuation of the car; and (3) the sentences on all of petitioner's convictions should be modified to run concurrently. By order dated June 15, 1999. the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Rattray, 93 N.Y.2d 977 (1998).
On February 9, 2000, petitioner moved to vacate his judgment of conviction, pursuant to CPL § 440.10, in Supreme Court, Queens County. He claimed that he was denied effective assistance of trial counsel for counsel's failure to: (1) object to "prejudicial hearsay" testimony given by Officer Lyons, Mr. DiFiore, and Mary Murphy; (2) request a "missing witness" instruction; (3) object to the prosecutor's closing arguments; and (4) ask the court to retain an expert for petitioner to value the car. Petitioner also claimed that the trial court improperly instructed the jury as to the "taking" element of grand larceny; that the Court's denial of a lesser-included offense charge was erroneous; and, finally, that none of his claims should be procedurally barred because petitioner could not have raised them without the documentation ...