United States District Court, S.D. New York
January 22, 2004.
MICHAEL PANZARINO, Petitioner, -v.- W. PHILLIPS, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
Michael Panzarino brings this petition for writ of habeas corpus
pro se pursuant to 28 U.S.C. § 2254. Following a jury trial
in New York County Supreme Court, Panzarino was convicted of Robbery in
the First and Second Degrees, Burglary in the Second Degree, Bail Jumping
in the First Degree, Tampering with a Witness in the Third Degree, and
Intimidating a Witness in the Third Degree. Panzarino was sentenced as a
persistent violent felony offender to an aggregate term of imprisonment
of 30 1/2 years to life. He is currently incarcerated pursuant to that
judgment at Green Haven Correctional Facility in Stormville, New York.
For the reasons below, the petition should be denied.
A. Pretrial Hearing
Prior to the trial in this case, a hearing was held to determine
whether there was probable
cause to arrest Panzarino and whether certain physical evidence and
identification testimony should be suppressed.*fn1
On April 8, 1992, at about 10:00 a.m., Detective Joseph Redican
interviewed Iris Rohrlick, who had just been the victim of a robbery.
(Redican: Hr'g Tr. 10-11). Rohrlick told the detective that she had been
working alone that morning in the office of Harvey's Bazaar on the 7th
Floor of 155 West 72nd Street. (Redican: Hr'g Tr. 10-11). She left her
office to go to the bathroom and noticed a white man near the elevators.
(Redican: Hr'g Tr. 11). When she returned to the office, someone knocked
on the door and said, "Vincent sent me." (Redican: Hr'g Tr. 11-12). When
she opened the door, three men entered the office. (Redican: Hr'g Tr.
12). One of them whom Rohrlick described as white, 30 years old,
approximately 5'9", 140 pounds, clean shaven, and with a blue trench coat
had a handgun. (Redican: Hr'g Tr. 12, 46). The second man was
white, 30 years old, about 6'0", 160 pounds, and was wearing a beige
jacket. (Redican: Hr'g Tr. 12, 47). The third man was Hispanic, 30 years
of age, about 5'9", slim, had a mustache, and was wearing a brown coat
and carrying a briefcase. (Redican: Hr'g Tr. 12, 47).
The first man demanded the payroll and threatened to shoot Rohrlick in
the leg. (Redican: Hr'g Tr. 12-13). The second man tied her up with cord
and tape, and then the three men fled, taking approximately $5000 of
payroll money which was on a table in the middle of the office. (Redican:
Hr'g Tr. 13). When the police responded to the scene, they found tape and
electrical cord, which had been used to tie Rohrlick's hands, and a pair
of rubber gloves. (Redican: Hr'g Tr. 14).
Detective Redican later had a telephone conversation with Police
Officer James Triola. (Redican: Hr'g Tr. 14). Triola had interviewed Jack
Parra, who worked a few doors down from where the robbery took place.
(Redican: Hr'g Tr. 14-15). Parra had seen three men walking "very
hurriedly" from the direction of 155 West 72nd Street at about 9:30 a.m.
on the morning of April 8. (Redican: Hr'g Tr. 15-16). Parra gave the
following descriptions of the three men: (1) white male, approximately 40
years old, about 5.9", wearing a long dark coat; (2) white male,
approximately 40 years old, taller than the first, about 6.0", wearing a
light jacket; (3) black male with light skin. (Redican: Hr'g Tr. 16).
Parra reported that the three men got into a white car bearing New York
license plate number 3GF346 and that the right rear passenger window of
the car was covered with plastic and tape. (Redican: Hr'g Tr. 15-16). The
taller white man was driving. (Redican: Hr'g Tr. 16-17). Detective
Redican learned from the Department of Motor Vehicles that the car with
that license plate number was registered to Ramon Gonzalez of 400 East
161st Street in the Bronx. (Redican: Hr'g Tr. 17, 69-70).
On April 12th, Detective Redican spoke to Parra, who confirmed the
information he had previously given to Officer Triola. (Redican: Hr'g Tr.
17-18, 55-67). On April 13th, Detective Redican and his partner,
Detective Stephen Kuspiel, drove to 400 East 161st Street in the Bronx in
an unmarked car. (Redican: Hr'g Tr. 18-19; Kuspiel: Hr'g Tr. 145). When
they reached the address, they saw a white hatchback with the license
plate number 3GF346 and a broken right rear window covered with plastic
and tape going in the opposite direction. (Redican: Hr'g Tr. 19, 22-23;
Kuspiel: Hr'g Tr. 146). They made a U-turn and followed the car for a few
blocks before pulling it over. (Redican: Hr'g Tr. 20, 73; Kuspiel: Hr'g
Tr. 146). Detective Redican described Panzarino, the sole occupant of the
car, as a white male, between 30 and 40 years old,
about 6'0", 190 to 200 pounds, with long light hair and a
moustache. (Redican: Hr'g Tr. 74-75, 109). Detective Redican believed
that Panzarino's appearance matched the victim's description of one of
the robbers contained in the complaint report prepared by the officer who
first responded to the crime scene, which described a 6'0" white male,
approximately 20 to 30 years old, about 200 pounds, with short light
brown hair and no facial hair. (Redican: Hr'g Tr. 73-75, 107-09).
Detective Kuspiel approached the car with his gun drawn and ordered
Panzarino to get out of the car. (Kuspiel: Hr'g Tr. 147, 160-61). The
detectives handcuffed Panzarino and frisked him for weapons, finding
none. (Redican: Hr'g Tr. 77; Kuspiel: Hr'g Tr. 147). When asked if he had
a driver's license or the vehicle registration, Panzarino indicated that
the registration was in his wallet. (Kuspiel: Hr'g Tr. 149). One of the
detectives removed Panzarino's wallet from his pocket and took out the
registration. (Kuspiel: Hr'g Tr. 147-49, 161-62). Panzarino stated that
the car belonged to his friend, Raymond Gonzalez, who had been in jail
for approximately six months and had allowed Panzarino and his wife to
use the car during that time. (Redican: Hr'g Tr. 21-22; Kuspiel: Hr'g Tr.
148). Detective Kuspiel testified that he believed he had probable cause
to arrest Panzarino when he handcuffed him because he was driving the car
Parra described as the getaway car and because Panzarino's appearance
matched the description of one of the perpetrators given in the complaint
report. (Kuspiel: Hr'g Tr. 159-60). Detective Kuspiel testified that he
also took into account Panzarino's statement that he and his wife had
been driving the car for the past six months and the fact that Panzarino
did not have a driver's license, although he gained this information
after Panzarino was handcuffed. (Kuspiel: Hr'g Tr. 160-62, 168).
The detectives took Panzarino and the car to the precinct in Manhattan.
(Redican: Hr'g Tr. 23, 75-76; Kuspiel: Hr'g Tr. 150-51, 162). On the way,
Detective Redican told Panzarino that the car was used in a crime
somewhere on the Lower East Side of Manhattan and Panzarino responded
that he had not been in Manhattan in about a year. (Redican: Hr'g Tr.
23-24, 79-80). As they approached the west side of Manhattan, Detective
Redican told Panzarino that the crime had actually occurred in the 20th
Precinct. Panzarino thereupon became more "worried" and "inquisitive"
about the crime. (Redican: Hr'g Tr. 24-25).
After arriving at the precinct, Detective Redican was unable to contact
Iris Rohrlick. (Redican: Hr'g Tr. 25-26). In the course of processing
Panzarino, Detective Michael Rooney found a civil court judgment in
Panzarino's wallet. The judgment was in the amount of approximately $3600
and included a notice that Panzarino would be evicted on April 8, 1992
unless the judgment was paid. (Redican: Hr'g Tr. 26-27; Kuspiel: Hr'g Tr.
152). Detective Rooney copied these papers and returned the originals to
where he found them without telling Panzarino. (Redican: Hr'g Tr. 85-86).
Detective Redican removed the tape and plastic from the window of the car
and took photos of Panzarino and of the car. (Redican: Hr'g Tr. 27-28,
87-88). Detective Redican took Panzarino to Central Booking. (Redican:
Hr'g Tr. 113). The District Attorney's Office, however, declined
prosecution of the case and Panzarino was released. (Redican: Hr'g Tr.
27, 82-84, 88).
On April 23, 1992, Detective Redican showed Jack Parra the photo of the
car and a photo array of six photos, including the April 13th photo of
Panzarino. (Redican: Hr'g Tr. 28-30, 100-01). Parra identified the car as
the one he had seen in front of the store on April 8th, the day of the
robbery, but could not identify anyone from the photo array. (Redican:
Hr'g Tr. 28-29, 89-90, 100-01).
On May 6th, Detective Redican showed the same photo array to
Rohrlick, who identified Panzarino as the robber who had tied her up.
(Redican: Hr'g Tr. 29-33, 39, 114-16). She was not told ahead of time
that any of the robbers' photographs were in the array; nor was she told
that she had correctly identified a suspect. (Redican: Hr'g Tr. 29,
Following Panzarino's release on April 13th, Detective Redican spoke to
him on the telephone several times regarding scheduling a lineup.
(Redican: Hr'g Tr. 117). On May 13, 1992, in response to a call from
Detective Redican, Panzarino voluntarily came to the precinct to
participate in a prearranged lineup. (Redican: Hr'g Tr. 33, 116, 118-19;
Kuspiel: Hr'g Tr. 166). That day, Panzarino had a full beard. (Redican:
Hr'g Tr. 33-34). Detective Redican asked Panzarino to sit in the lineup
room with the "fillers." (Redican: Hr'g Tr. 34-35, 119). Rohrlick viewed
the lineup and recognized Panzarino, noting that he did not have a beard
on the day of the robbery. (Redican: Hr'g Tr. 36, 121-23).
The defense presented Detective Michael Rooney as their sole witness at
the pretrial hearing. He testified that on April 8, 1992, Officer Triola
called him and conveyed the information he had received from Parra,
including Parra's description of the three males and the car they were
driving. (Rooney: Hr'g II Tr. 5-6). Detective Rooney passed this
information along to Detective Redican, who was at the scene of the crime
when Officer Triola's call came in. (Rooney: Hr'g II Tr. 5-7). On April
13, Detective Rooney assisted with processing Panzarino. (Rooney: Hr'g II
Tr. 7-8). He asked Panzarino for identification and Panzarino handed him
a civil court judgment for $3800. (Rooney: Hr'g n Tr. 8-9, 13). Panzarino
told Detective Rooney that the money was due on April 8 and "that's where
[he] was that day."
(Rooney: Hr'g II Tr. 10-12). Detective Rooney had the judgment
copied and returned the original to Panzarino. (Rooney: Hr'g II Tr.
On October 21, 1994, the court issued an oral decision, finding as
I draw the following conclusions: First, on the
issue of probable cause, I find that the police
did have probable cause for the arrest for
defendant. They had received information
concerning the robbery. They had descri[ptions of]
the participants. They had interviewed a witness
who had also described the persons fleeing from
the scene. They had received a description of the
car used and most importantly, they had received
the license plate number of the car. Some days
later when they went to the place where the car
was the registered owner lived, they saw
the car and they saw a person who fit the
I find coupled with the information that the
police received, couple[d] with what they saw on
161st Street was sufficient to constitute probable
cause. . . .
As to the physical evidence, that taken from the
car, that taken from the defendant's person were
all taken subsequent to an arrest with probable
cause and instant to the arrest.
Brief for Defendant-Appellant, dated January 2000 ("Pet. App. Div.
Brief) (reproduced as Ex. A to Declaration of Jennifer K. Danburg, filed
October 1, 2003 (Docket #8) ("Danburg Decl.")), at 9 (quoting Decision at
7-10); see also Memorandum of Law in Opposition to Petition for
a Writ of Habeas Corpus, filed October 1, 2003 (Docket #9) ("Resp.
Mem."), at 9-10. The court denied Panzarino's suppression motion with
respect to the physical evidence recovered and the subsequent
identifications. The court did, however, grant the motion to suppress
with regard to Panzarino's post-arrest statements. See Pet.
App. Div. Brief at 9; Resp. Mem. at 9-10.
The following evidence was presented at trial:
1. The People's Case
a. The Robbery and Burglary Charges. Rohrlick worked as
bookkeeper for Soll Pullman, the owner of Harvey's Bazaar and Mark Albert
beauty salons. (Pullman: Tr. 57, 59; Rohrlick:
Tr. 82-83). Rohrlick only worked one day a week at a business
office located at 155 West 72nd Street, 7th Floor, where she prepared the
payroll for the two salons. (Pullman: Tr. 59-61; Rohrlick: Tr. 83-84).
On the morning of Wednesday, April 8, 1992, Rohrlick was alone in the
office. (Rohrlick: Tr. 87-88, 90). At approximately 9:30 a.m., she left
the office to go to the ladies' room and saw a man with a navy blue
overcoat pressing the button for the elevator. (Rohrlick: Tr. 90-93,
141-42). The man was about 5'5", with very white skin and thick black
hair. (Rohrlick: Tr. 92, 168-69). The hallway was empty when she returned
to her office. (Rohrlick: Tr. 92). Someone then knocked on the door and
said "Vincent sent me" when she asked who was there. (Rohrlick: Tr.
93-95, 170). Vincent was a manager of the beauty salon. (Rohrlick: Tr.
95). Rohrlick answered the door and was confronted by three men standing
one behind the other: the first was the man she had seen at the elevator,
still wearing the blue coat (Rohrlick: Tr. 95, 167, 170-72); the second
man was the tallest of the three, white, with sandy brown hair, no facial
hair, and a beige jacket (Rohrlick: Tr. 95-96, 98, 182-83); and the third
was shorter, "hispanic looking," and was carrying a briefcase (Rohrlick:
Tr. 95, 109). In court, Rohrlick identified Panzarino as "the second
man," meaning the tallest man who wore a beige jacket. (Rohrlick: Tr.
The men forced themselves into the office and the man in the blue coat
demanded the payroll money. (Rohrlick: Tr. 97, 99-101, 173, 177). The man
in the blue coat then took a black gun from his coat pocket and aimed it
at Rohrlick's legs. (Rohrlick: Tr. 104-05, 152-53, 178-79). She told the
men that the money was on top of a desk in the office and she was then
ordered to lay face down on the floor. (Rohrlick: Tr. 105-07, 179-80).
Her arms were tied behind her
back and her ankles bound with electrical wire. (Rohrlick: Tr.
107-11, 122-25). She saw the second, tallest man with the beige jacket
working an item into a ball an item she later found out was her
leather glove. (Rohrlick: Tr. 108, 111-14, 149-51, 154-55, 192-93,
216-17). The balled-up glove was then forced into her mouth and two-inch
wide tape was placed over it. (Rohrlick: Tr. 108, 112, 114-17). Rohrlick
testified that the only tape kept in the office was scotch tape.
(Rohrlick: Tr. 116). The three men then left the office. (Rohrlick: Tr.
Rohrlick managed to get her legs free and she tried to call for help
but the phone receiver was missing. (Rohrlick: Tr. 117-18). She noticed
that the payroll envelopes were missing and the contents of her purse
were spilled out on the floor. (Rohrlick: Tr. 118-19). She went to
another office on the floor where someone untied her hands and called
911. (Rohrlick: Tr. 119-24; Schulman: Tr. 232-34).
Meanwhile, Jack Parra, who worked at a home improvement store two doors
west of 155 West 72nd Street, was helping a customer load paint into his
car. (Parra: Tr. 263-66, 295). He noticed three men approaching from the
direction of 155 West 72nd Street: the tallest of the three had a long
nose, was white, about 6'0", weighed approximately 170 pounds, wore a
beige corduroy jacket with lapels, and was carrying a briefcase (Parra:
Tr. 268-69, 303-04); the second man was white and shorter than the first
(Parra: Tr. 268-69); and the third was black and wore a brown jacket
(Parra: Tr. 269). The three men got into a white, four-door car which was
parked right in front of Parra's store. (Parra: Tr. 270-72). Parra found
these individuals to be "suspicious" based on their dress and the kind of
car they were driving, which had a broken rear window covered with
plastic. (Parra: Tr. 265-66, 271-72). Parra memorized the license plate
number of the car 3GF346. (Parra: Tr. 272-73). The taller
white man in the light colored jacket was driving. (Parra: Tr. 270-73,
Police Officer Donna Kearney and Sergeant David Moreno responded to the
911 call. (Kearney: Tr. 546-47; Moreno: Tr. 574-75). Rohrlick still had
plastic-coated wire on one of her wrists, which Sergeant Moreno cut off
and vouchered as evidence. (Kearney: Tr. 548-50; Moreno: Tr. 586-88,
592). Sergeant Moreno also vouchered a pair of rubber surgical gloves and
a roll of packing tape they found in Rohrlick's office. (Kearney: Tr.
550-51, 555-59, 562-71; Moreno: Tr. 585-88, 599-601). Sergeant Moreno
sent the gloves and roll of tape to the lab for fingerprint analysis but
no prints were found. (Moreno: Tr. 592-96). The gloves and the tape were
marked as "investigatory evidence" because they were recovered before
anyone was arrested for the crime. (Musillo: Tr. 616-18). The police
department routinely destroys "investigatory evidence" after storing it
for one year. (Musillo: Tr. 618-23). Thus, the gloves and tape were
destroyed on May 13, 1993, because the police department had not received
notice that the property should be retained. (Musillo: Tr. 618-23).
Rohrlick described the three perpetrators to Officer Kearney: the first
man was white, 20 to 30 years old, about 5'8", with dark hair and a long
blue coat; the second man was white, 20 to 30 years old, about 6'0", with
light brown hair and a beige jacket; and the third was Hispanic, 20 to 30
years old, about 5'10", with a brown tweed jacket and a briefcase.
(Kearney: Tr. 551-52, 562). Sergeant Moreno called the 20th Precinct
Detective Squad with these descriptions (Kearney: Tr. 558; Moreno: Tr.
578-79) and Detectives Joseph Redican and Steven Kuspiel responded to the
scene and interviewed Rohrlick (Redican: Tr. 358-61; Kuspiel: Tr.
Later that morning, the detectives took Rohrlick to the 20th
Precinct where she looked at some photographs but made no
identifications. (Rohrlick: Tr. 156-57; Redican: Tr. 369).
Also later that morning, Police Officer James Triola, who was on foot
patrol on West 72nd Street canvassing the area as part of an
investigation into the robbery, spoke with Jack Parra. (Triola: Tr.
328-32). Officer Triola testified that he approached Parra, who was
standing in front of the store where he worked. (Triola: Tr. 329-31).
Parra testified that he approached Officer Triola. (Parra: Tr. 294,
311-12). Parra told Officer Triola what he had seen. (Parra: Tr. 293-94).
Officer Triola telephoned the detectives at the 20th Precinct. (Triola:
Tr. 329). After contacting the Department of Motor Vehicles, Detective
Redican found out that the registered owner of the car was Ramon Gonzalez
of 400 East 161st Street in the Bronx. (Redican: Tr. 371, 441-42). On
April 12th, Detective Redican spoke to Parra on the phone. (Redican: Tr.
372, 385, 435-36, 487-88, 497-99).
On April 13th, Detectives Redican and Kuspiel drove to 400 East 161st
Street and as they approached they saw a car going the opposite direction
matching Parra's description: specifically, a small, white hatchback with
a broken rear window covered with tape and plastic, with license plate
3GF346. (Redican: Tr. 385-87; Kuspiel: Tr. 513-15). They followed the car
for a few blocks and then pulled it over. (Redican: Tr. 387, 447-48).
Both detectives approached the car with their guns drawn. (Redican: Tr.
447-48; Kuspiel: Tr. 516). Panzarino was the driver and sole occupant of
the car. (Redican: Tr. 387-88; Kuspiel: Tr. 516-17). Panzarino was a
white male, in his thirties, with light colored hair and a "slight growth
on his face," including a "slight mustache." (Redican: Tr. 388, 405,
460). Panzarino got out of the car as directed, whereupon the detectives
handcuffed him. (Redican: Tr. 388-89, 449; Kuspiel: Tr. 517). Detective
testified that Panzarino fit the description given by Iris
Rohrlick, except that he was heavier than she had described. (Redican:
Tr. 449-51). Panzarino was not as tall or as thin as Parra had reported.
(Redican: Tr. 452-55). The car registration, in the name of Ramon, or
Raymond, Gonzalez, was in Panzarino's wallet. (Redican: Tr. 391-94;
Kuspiel: Tr. 517-18). Panzarino told the detectives that Gonzalez had
been in jail for about six months and that during that time Gonzalez had
allowed Panzarino and his wife to use the car. (Redican: Tr. 390-91;
Kuspiel: Tr. 519). Panzarino also said that he and his wife were the only
two people who had driven the car while Gonzalez was in jail. (Redican:
Tr. 391; Kuspiel: Tr. 519).
The detectives took Panzarino and the car to the 20th Precinct in
Manhattan. (Redican: Tr. 395; Kuspiel: Tr. 519-20). They were unable to
contact Rohrlick so no identification procedures could be conducted that
day. (Redican: Tr. 394, 409, 455-56). Detective Redican took photos of
Panzarino which were introduced into evidence. (Redican: Tr. 406-08).
While processing Panzarino's arrest, another detective found a housing
court judgment against Panzarino in the amount of $3640 and a notice that
Panzarino would be evicted from 1739 Lurting Avenue in the Bronx if the
amount of the judgment was not paid by April 8, 1992, the date of the
robbery. (Redican: Tr. 410, 414-19, 465-70; Kuspiel: Tr. 521-24, 536-37).
Later that day, Detective Redican took Panzarino to Central Booking.
(Redican: Tr. 419). The District Attorney's Office declined prosecution
of the case and Panzarino was released. (Redican: Tr. 457-58).
Over the next month, Panzarino and Detective Redican remained in
contact. (Redican: Tr. 422, 458-59). On May 13, 1992, Detective Redican
arranged to have Panzarino come to the precinct to participate in a
lineup and also arranged for Rohrlick to come to view it. (Redican:
Tr. 421-27, 461; Kuspiel: Tr. 526-30). The lineup consisted of five
"fillers" and Panzarino. (Redican: Tr. 423). Rohrlick viewed the lineup
and recognized Panzarino "right away" as the man who was wearing a beige
jacket during the robbery; she noted that he had grown a beard and had
been clean shaven on the day of the robbery. (Rohrlick: Tr. 159). At
trial, she again identified Panzarino, at which time she noted that
Panzarino now had a moustache and a beard, that he was heavier at the
time of the crime, and that she did not remembering him having a part in
the center of his hair as he did at trial. (Rohrlick: Tr. 184-86,
b. The Bail Jumping Charge. According to court records,
Panzarino was originally released on $7500 bail. (Honohan: Tr. 636-39,
643). After Panzarino's arraignment in Supreme Court, his bail was raised
to $30,000, which was posted on September 16, 1992. (Honohan: Tr. 640-41,
643-45). Panzarino thereafter made several court appearances. (Honohan:
Tr. 641; Ratner: Tr. 683). On October 21, 1992, the People answered ready
for trial but the case was adjourned until December 2, 1992 because of a
death in defense counsel's family. (Honohan: Tr. 641; Bonello: Tr. 677;
Ratner: Tr. 683-87). When Panzarino failed to appear in court on December
2nd, his bail was revoked and a bench warrant was issued. (Honohan: Tr.
642; Ratner: Tr. 688-89).
Detective Michael J. McCaffrey of the Bronx Warrant Squad visited
Panzarino's address, 400 East 161st in the Bronx, on February 2, 1993 and
on a subsequent occasion but was not able to locate Panzarino.
(McCaffrey: Tr. 697, 700, 702). On August 15, 1993, Detective McCaffrey
saw Panzarino on the corner of East 160th Street and Melrose in the
Bronx, one block away from Panzarino's home. He arrested him and returned
him to court on August 16, 1993. (Honohan: Tr. 642; McCaffrey: Tr.
c. The Witness Intimidation and Tampering Charges. On
September 21, 1994, Ms Rohrlick and Soll Pullman were at work in the
business office of Harvey's Bazaar. (Rohrlick: Tr. 161-62; Pullman: Tr.
71-72, 74). At about 11:30 a.m., the phone rang and Rohrlick answered it.
(Rohrlick: Tr. 162-63; Pullman: Tr. 73-74). A computerized voice said
"please hold" or "please wait" and then a male voice asked for "Iris."
(Rohrlick: Tr. 163). When she responded "this is she," the male caller
said "if you go to court you're dead." (Rohrlick: Tr. 163). The Advanced
Inmate Call Management System records the date, time, caller, number
called, and length of call for every call placed by an inmate. (O'Connor:
Tr. 762, 768). According to system records, Panzarino placed a
fourteen-second call to 212-595-7265 the phone number in the
Harvey's Bazaar office at 11:22 a.m. on September 21, 1994.
(Rohrlick: Tr. 162; O'Connor: Tr. 771-82).
2. Defense Case
Frank Ferony, Panzarino's former landlord at 1739 Lurting Avenue in the
Bronx, testified that Panzarino did not pay him $3640 by April 8, 1992,
as he had agreed in a stipulation. (Ferony: Tr. 810-11). Ferony did not
know when Panzarino vacated that apartment. (Ferony: Tr. 813). In
addition, the defense recalled Sergeant David Moreno to testify regarding
the police department's handling of the tape that was found at the
premises. (Moreno: Tr. 816-23). Howard Jaffee, an attorney, testified
briefly regarding Panzarino's attendance at court on October 21, 1992.
(Jaffee: Tr. 849-58). Jaffe also testified that he tried to called
Panzarino about six times after meeting him in court but was only able to
reach his family members and Panzarino never returned his calls. (Jaffe:
Tr. 855-56). The defense also called Detective Michael Rooney to testify
regarding how he obtained the civil court judgment from Panzarino.
testified that Panzarino handed it to him while he was assisting
with processing Panzarino's arrest but he did not recall the exact
circumstances. (Rooney: Tr. 993-98).
Michael Panzarino was the only remaining witness called by the defense.
He testified as follows:
a. The Robbery and Burglary Charges. Panzarino testified that
Raymond Gonzalez was the husband of his cousin, Rose Donohue, and that he
had used Gonzalez's car about 10 to 20 times while Gonzalez was in
prison. (Panzarino: Tr. 837, 911-12). He testified that a number of
Gonzalez's friends also used the car but he did not know who they were.
(Panzarino: Tr. 837-38, 912-13, 917). Panzarino asked Donohue if he could
use the car on April 6, 1992 to move out of his apartment but Donohue had
lent it to someone else. (Panzarino: Tr. 837). Panzarino testified that
he did not have the car on April 8, 1992. (Panzarino: Tr. 837).
Panzarino testified that he woke up in his apartment on Lurting Avenue
on April 8, 1992. (Panzarino: Tr. 898). That morning, Panzarino, his
wife, and his mother packed up his family's belongings and, at
approximately 10:30 or 11:00 a.m., they moved the belongings to
Panzarino's mother's apartment at 400 East 161st Street using a truck
owned by William Viera, a friend of Panzarino's brother, finishing by
12:00 or 12:30 p.m. (Panzarino: Tr. 831, 899-905). After moving,
Panzarino stayed at his mother's house the rest of the day with his
father and brothers. His mother, wife, and daughter arrived later that
afternoon. (Panzarino: Tr. 906-09). Panzarino testified that he had never
owned a beige jacket or sport coat. (Panzarino: Tr. 832). On the date he
was first arrested, April 13, 1992, Panzarino was on his way to rent a
truck to move the larger items from the apartment. (Panzarino: Tr. 904).
Panzarino contacted Donohue after her car was impounded by the police
on April 13th but he never asked her who had used the car on the day of
the robbery. (Panzarino: Tr. 943-48). He testified that he was not
interested in who committed the robbery "[b]ecause I knew it wasn't me."
(Panzarino: Tr. 947).
b. The Bail Jumping Charge. Panzarino's wife obtained the
$30,000 she posted for Panzarino's bail on September 16, 1992 from a
settlement in a malpractice case. (Panzarino: Tr. 830, 838-39, 861, 865).
On October 21, 1992, Panzarino came to court but waited outside the
courtroom to talk to Howard Jaffe, an attorney who had been asked to look
into the case. (Panzarino: Tr. 839-40; Jaffe: Tr. 850-55). Jaffe went
inside the courtroom and then came out to tell Panzarino that he could
not be substituted for Panzarino's Legal Aid attorney that day because
the attorney was not present due to a death in his family. (Panzarino:
Tr. 840, 869; Jaffe: Tr. 851). Panzarino then left without entering the
courtroom. (Panzarino: Tr. 840, 867). On a later unspecified date,
Panzarino called the Legal Aid Society and was told that his attorney had
left for private practice. (Panzarino: Tr. 840-41).
Panzarino testified that the reason he did not show up at the
subsequent court date was because he "was nervous" and "had all that
money [from his wife's settlement] and [he] got a little crazy," going to
Hawaii for two weeks in December 1992. (Panzarino: Tr. 873, 934). He
admitted knowing that if he did not appear in court, his bail would be
forfeited and a warrant would be issued for his arrest. (Panzarino: Tr.
c. The Witness Intimidation and Tampering Charges. According
to Panzarino, he called Harvey's Bazaar beauty salon about ten times
since August 1993 trying to talk to Iris Rohrlick. (Panzarino: Tr.
841-42, 886-93). He had spoken to someone named Vincent on several
occasions. (Panzarino: Tr. 841-42, 886). Panzarino obtained the
phone number for the office where Rohrlick worked from the papers turned
over by the District Attorney's Office. (Panzarino: Tr. 842). And, at a
pretrial hearing, he learned that Rohrlick worked in the office on
Wednesdays. (Panzarino: Tr. 842). Using that information, he called
Rohrlick directly, although he could not remember the exact date.
(Panzarino: Tr. 842-43, 893-98). He testified that he did not threaten
her but that he merely said his name and she immediately hung up.
(Panzarino: Tr. 841, 894-98).
3. Verdict and Sentence
On November 16, 1994, the jury found Panzarino guilty of Robbery in the
First and Second Degrees, Burglary in the Second Degree, Bail Jumping in
the First Degree, Tampering with a Witness in the Third Degree, and
Intimidating a Witness in the Third Degree. (Tr. 1206-11). On November
30, 1994, Panzarino was sentenced to an aggregate term of 30 1/2 years to
life. See Petition for Writ of Habeas Corpus, filed April 11,
2003 (Docket #1) ("Petition"), at 2; Resp. Mem. at 1-2, 22.
C. Panzarino's Direct Appeal
With the assistance of appointed counsel, Panzarino appealed his
conviction to the Appellate Division, First Department, raising the
following three points in his appellate brief:
1. Whether since the street witness's descriptions
of the three men leaving the general vicinity of
the crime in a specific car did not match the
complainant's descriptions of her three
assailants, the police lacked probable cause to
arrest appellant when they saw him driving that
car five days later. U.S. Const., Amends. IV, XIV;
N.Y. Const., Art. I, § 12.
2. Whether the court deprived appellant of his due
process right to a fair trial by refusing to
preclude the prosecutor from eliciting testimonial
the tape recovered from the crime scene which
the police later destroyed deliberately. U.S.
Const., Amend. XIV; N.Y. Const., Art. I, § 6.
3. Whether appellant's due process right to a fair
trial was violated by (a) the People's witnesses'
revelation of his criminal record and (b) the
prosecutor's violation of the court's
Sandoval ruling. U.S. Const., Amend.
XIV; N.Y. Const., Art. I, § 6.
Pet. App. Div. Brief at 2. On April 17, 2001 the Appellate Division
unanimously affirmed Panzarino's conviction. People v.
Panzarino, 282 A.D.2d 292
(1st Dep't 2001). The court held that: (1)
the police had reasonable suspicion to stop Panzarino when they saw him
driving a car that fit the description of the one used in the robbery and
they had probable cause to arrest him when he admitted that he had been
driving the car for the past six months; (2) Panzarino waived his right
to demand production of the roll of tape recovered from the scene by
never asking to inspect it and by his own bail jumping, which caused the
time lapse leading to the tape's destruction; and (3) two fleeting
references to Panzarino's criminal record did not cause prejudice and the
court properly exercised its discretion in denying a mistrial based on
the prosecutor's attempt to circumvent the Sandoval ruling.
Id. at 292-93.
Thereafter, Panzarino sought leave to appeal to the New York Court of
Appeals, requesting the court to consider and review all of the issues
raised in his brief to the Appellate Division. Letter to the Honorable
Judith S. Kaye from Harold V. Ferguson, Jr., dated April 23, 2001
(reproduced as Ex. D to Danburg Decl.), at 2. Leave was denied on August
20, 2001. People v. Panzarino, 96 N.Y.2d 922 (2001).
D. The Instant Habeas Petition
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a habeas petition must be filed in federal court within one
year of the date on which the petitioner's state
criminal conviction became final. See
28 U.S.C. § 2244(d)(1). The Court of Appeals denied Panzarino leave to
appeal on August 20, 2001, giving him until November 18, 2002 to file a
habeas petition. Although Panzarino's petition is dated May 13, 2002, it was
not received by the Eastern District of New York until December 13, 2002.
See Petition at 2, 7.*fn2 In response to the Court's April 11,
2003 Order, Panzarino submitted an affirmation stating that he mailed his
petition on November 9, 2002. Petitioner's Affirmation, filed April 28,
2003 (Docket #3), at 1-2. He attached a copy of the disbursement form
from his inmate account which reflects that the postage was paid on
November 9, 2002. Under the "prison mailbox" rule, a petition is deemed
filed on the day a pro se prisoner gives it to prison officials
for mailing to the court clerk. Noble V. Kelly, 246 F.3d 93,
97-98 (2d Cir.), cert. denied, 534 U.S. 886 (2001). Based on
this rule, the petition is timely for the purposes of
28 U.S.C. § 2244(d)(1).
Panzarino's habeas petition raises the same three grounds raised before
the Appellate Division. See Petition at 3A. As the respondent
concedes, see Resp. Mem. at 26, Panzarino has properly
exhausted his state law remedies inasmuch as he has fairly presented the
federal constitutional nature of his claims to each level of the New York
State courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92
(2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
II. STANDARD OF REVIEW
A petition for writ of habeas corpus may not be granted with respect to
any claim that has been "adjudicated on the merits" in the state courts
unless the state court's adjudication: "(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d). The Second Circuit has held that the term
"adjudicated on the merits" requires only that the state court base its
decision on "the substance of the claim advanced, rather than on a
procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303,
311 (2d Cir. 2001). It is not necessary for the state court to refer to
any federal claim or to any federal law for AEDPA's deferential standard
to apply. Id. at 312. Moreover, a state court determination of
a factual issue is "presumed to be correct" and that presumption may be
rebutted only "by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, the Supreme Court held that a state
court decision is "contrary to" clearly established federal law only "if
the state court applies a rule that contradicts the governing law set
forth" in Supreme Court precedent or "if the state court confronts a set
of facts that are materially indistinguishable from a decision [of the
Supreme Court] and nevertheless arrives" at a different result.
529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is
available under the "unreasonable application" clause only "if the state
court identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts
of the prisoner's case." Id. at 413. A federal court may not
grant relief "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly." Id. at
411. Rather, the state court's application must have been "objectively
unreasonable." Id. at 409.
III. MERITS OF PANZARINO'S CLAIMS
A. Probable Cause to Arrest
Panzarino's first contention is that he was arrested on April 13, 1992
without probable cause, in violation of the Fourth Amendment. Petition at
3A, 5A. He argues that Iris Rohrlick's descriptions of the three men who
robbed her did not match Jack Parra's descriptions of the three men he
saw driving away from the area. Id. at 5A. On direct appeal to
the Appellate Division, Panzarino argued that the hearing court erred in
holding that there was probable cause to arrest him on April 13th and
that the items seized from his person as well as the subsequent photo and
lineup identifications should have been suppressed as the fruits of an
unlawful arrest. Pet. App. Div. Brief at 33-34. The Appellate Division
rejected the claim on the merits:
Defendant's suppression motion was properly
denied. The victim's description of her three
assailants, including their estimated age, height,
weight, attire and accouterments was sufficiently
similar to the description, provided by a
bystander, of three men hurriedly leaving the
vicinity only moments after the robbery to warrant
a belief that they were the same men, and any
discrepancies were so minor as to not affect that
conclusion (see. [People v.
Johnson, 245 A.D.2d 112 (1997), Iv.
denied, 91 N.Y.2d 1008 (1998)]). Under these
circumstances, the possibility that the two
witnesses observed two different trios was highly
remote. Accordingly, the police had reasonable
suspicion to stop and detain defendant when they
saw him several days later, since he matched those
descriptions and was driving a car which had the
same license plate number and taped-over window as
the one the bystander had seen the three men drive
away in; when defendant admitted that he had been
driving the car for the past six months, the
police had probable cause to arrest him.
Panzarino, 282 A.D.2d at 292.
It is well-established that a federal habeas court may not review a
Fourth Amendment claim arising out of a state criminal proceeding unless
the state denied the petitioner a full and fair opportunity to litigate
the claim. Stone v. Powell, 428 U.S. 465, 481-82 (1976);
Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992). In
light of Powell, the Second Circuit has held that review of
Fourth Amendment claims in habeas corpus petitions may only be undertaken
in two circumstances: (1) "[i]f the state provides no corrective
procedures at all to redress Fourth Amendment violations" or (2) "where
the state provides the process but in fact the defendant is precluded
from utilizing it by reason of an unconscionable breakdown in that
process." Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)
(en banc), cert. denied, 434 U.S. 1038 (1978); accord
Capellan, 975 F.2d at 70.
Neither circumstance applies here. First, New York State has a
procedure for litigating Fourth Amendment claims. See N.Y.
Crim. Proc. Law §§ 710.10-.80. Second, Panzarino actually "utiliz[ed]
it" both through his participation in the pretrial suppression hearing
and on direct appeal. Accordingly, Panzarino's Fourth Amendment claim
cannot be reviewed by this Court. See, e.g., Graham v.
Costello, 299 F.3d 129, 134 (2d Cir. 2002) ("[O]nce it is
established that a petitioner has had an opportunity to litigate his or
her Fourth Amendment claim (whether or not he or she took advantage of
the state's procedure), the [state] court's denial of the claim is a
conclusive determination that the claim will never present a valid basis
for federal habeas relief."); Capellan, 975 F.2d at 70 n.1
("`[F]ederal courts have approved New York's procedure for litigating
Fourth Amendment claims . . . as being facially adequate.'" (quoting
Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989))):
Valtin v. Hollins, 248 F. Supp.2d 311, 316-17 (S.D.N.Y. 2003)
(where trial court held a pretrial hearing concerning the circumstances
of petitioner's arrest and Appellate Division affirmed, petitioner's
claim that he was arrested without probable cause is unreviewable);
Senor v. Greiner, 2002 WL 31102612, at *10-*11 (E.D.N.Y. Sept.
18, 2002) (same).
B. Testimony Regarding Tape Destroyed by Police
Panzarino's second claim is that he was denied due process by the trial
court's refusal to preclude testimony regarding the roll of tape that was
recovered from the crime scene and later destroyed by the police.
Petition at 3A, 5B. He argues that preclusion was the appropriate remedy
because the destruction was "deliberate." Id. at 5B.
At trial, the police officers who responded to the 911 call testified
that they recovered a roll of tape from the office where the robbery took
place. (Kearney: Tr. 554-55, 557-59, 563; Moreno: Tr. 586-88, 596-601).
Also, Detective Redican testified that he removed tape that was holding a
piece of plastic in place from the rear window of the white car.
(Redican: Tr. 400-02). Testimony at trial showed that the roll of tape
from the crime scene was destroyed by the police department as a matter
of routine housekeeping because the tape was classified as "investigatory
evidence" and was never reclassified as "arrest evidence." (Musillo: Tr.
616-23). Officer Kearney testified that the tape recovered from the car
was "similar" to the tape recovered from the crime scene (Kearney: Tr.
559) and Sergeant Moreno testified that the tape from the car was
"exactly like" the tape from the crime scene (Moreno: Tr. 597).
As part of its jury instructions, the trial court stated as follows:
Now, there was testimony in this case that
certain tape was recovered at the scene of a crime
and has been destroyed and is no longer available.
From the failure of the People to preserve this
evidence the law permits, but does not require,
you to infer that if you believe it proper to do
so, that if such item was preserved and made
available to the jury it would not support or
would even [contradict] the testimony of the
People's witnesses on the issues to which it
pertains. Whether you wish to draw that inference
is something for you to decide in the light of all
of the evidence that you heard in this case.
The relevant timeline, as set forth in the respondent's brief on
appeal, see Brief for the Respondent, dated October 2000
(reproduced as Ex. B to Danburg Decl.), at 36-37, is as follows: Sergeant
Moreno vouchered the roll of tape found in Iris Rohrlick's office on the
day of the crime, April 8, 1992. Panzarino was first arrested on April
13, 1992 but was released the same day. On May 13, 1992, Panzarino was
identified in a lineup and arrested again. On May 20, 1992, the
prosecution served a Voluntary Disclosure Form on Panzarino, which
identified the roll of tape as evidence it intended to present at trial.
On July 9, 1992, Panzarino filed an Omnibus Motion in which he requested
the opportunity to examine any physical evidence and the People
responded, on July 25, 1992, that he could make an appointment to inspect
the evidence. On December 2, 1992, Panzarino failed to appear in court
and was not returned to court until August 15, 1993. In the interim, on
May 13, 1993, the roll of tape was destroyed. The trial began on November
3, 1994 and shortly thereafter the destruction was discovered. At no time
prior to trial did Panzarino demand production of any physical evidence
to be introduced at trial.
Before the Appellate Division, Panzarino claimed that testimony
regarding the roll of tape was material to his defense because it was the
only evidence directly connecting the white car with the robbery.
See Pet. App. Div. Brief at 42-43. The Appellate Division
rejected this argument, holding that Panzarino "waived his right to
demand production of a roll of tape. . . .Defendant never availed
himself of the opportunity to inspect it, and his own criminal act of
bail jumping caused the time lapse which led to the destruction of the
evidence in the usual course." Panzarino, 282 A.D.2d at 292
(citing, inter alia, People v. Allgood, 70 N.Y.2d 812
(1987)). Accordingly, the Appellate Division determined that Panzarino's
motion for a mistrial and
preclusion of testimony regarding the tape was properly denied.
Id. The court went on to state that the trial court's adverse
inference charge prevented any possible prejudice to Panzarino.
Panzarino now argues that he was denied due process by the trial
court's refusal to preclude testimony regarding the roll of tape.
Petition at 5B. He contends that without the actual physical tape, "the
jury was forced to rely on unverifiable police testimony" to determine
whether the tape found at the crime scene was "identical" or "similar" to
the tape used on the window of the white car. Id. In response,
the respondent argues that the state court's rejection of this claim on
waiver grounds operates as a procedural bar to federal habeas review.
See Resp. Mem. at 29. Additionally, respondent attacks the
merits of Panzarino's claim, arguing that he has failed to show either
that the roll of tape was material to his defense or that it was
destroyed in bad faith. Id. at 31-33.
With respect to the respondent's first contention, there is certainly a
strong basis for concluding that the Appellate Division's finding of a
procedural bar for this claim constitutes an "adequate and independent"
state ground precluding federal habeas review, Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991), because it was actually
relied on by the Appellate Division and the bar is "`firmly established
and regularly followed' by the state in question," Garcia v.
Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v.
Georgia, 498 U.S. 411, 423-24 (1991)). See, e.g.,
Allgood, 70 N.Y.2d at 813 (defendant forfeited his right to
demand production of a rape kit that had been vouchered as investigatory
evidence and subsequently destroyed where defendant was aware of the
existence of the rape kit prior to its destruction but never sought its
production); People v. Gonzalez, 266 A.D.2d 30, 30 (1st Dep't
deemed to have waived any right to demand production of evidence
where defendant never availed himself of the opportunity to inspect the
evidence and absconded for two years).
The Court need not reach this question, however, because Panzarino
could not prevail even on the merits. The Supreme Court has held that in
order to establish a due process violation based on lost or destroyed
evidence, a defendant must show both "bad faith on the part of the
police," Arizona v. Youngblood, 488 U.S. 51, 58 (1988), and
that the evidence would have played "a significant role in [his]
defense," California v. Trombetta, 467 U.S. 479, 488-89 (1984).
Thus, federal habeas courts have rejected efforts to find constitutional
error based on the admission of testimony regarding lost or destroyed
evidence that did not meet these criteria. See, e.g.,
Feliciano v. Berbary, 2003 WL 22832638, at *4 (S.D.N.Y. Nov.
25, 2003); Scott v. Senkowski, 2002 WL 31051592, at *6-*7
(E.D.N.Y. Aug. 15, 2002); Gonzalez v. Fischer, 2002 WL
31422882, at *6 (S.D.N.Y. Feb. 26, 2002) (Report and Recommendation
adopted by Order. 01 Civ. 2177 (SHS), filed March 22, 2002).
With respect to the "bad faith" requirement, the state court determined
that the destruction of the roll of tape was "inadvertent."
Panzarino, 282 A.D.2d at 292. This finding represents a factual
determination, which is "presumed to be correct" unless rebutted by
"clear and convincing evidence," 28 U.S.C. § 2254(e)(1). Panzarino
has submitted no evidence at all let alone clear and convincing
evidence showing that the destruction of the tape was anything
other than inadvertent. Thus, there is no basis for finding that the
police acted in bad faith. This fact alone bars any due process
In addition, there is no basis for concluding that the roll of tape
would have played "a significant role" in Panzarino's defense at trial.
It was hardly necessary for the prosecution to
prove that the tape on the car window matched the tape found in
Rohrlick's office. Even if the tapes did not match, other evidence
such as Jack Parra's description of the white car, including the
license plate, as it left the vicinity of the robbery linked the
car to the crime.
Thus, Panzarino's claim that he was denied due process by the trial
court's refusal to preclude testimony regarding the roll of tape is
C. Remaining Due Process Claims
Prior to trial, a hearing was held to determine the permissible scope
of the prosecutor's cross-examination of Panzarino regarding his prior
criminal record and bad acts should he choose to testify. See People
v. Sandoval, 34 N.Y.2d 371 (1974). Panzarino was convicted in 1974
of Robbery in the Second Degree (Sandoval Hr'g: Tr. 17), in 1983 of
Criminal Possession of a Weapon and Reckless Endangerment (Sandoval Hr'g:
Tr. 13-15, 18), and in 1985 of Attempted Bribery of a Public Official
(Sandoval Hr'g: Tr. 15-16). All three incidents involved the use or
possession of a gun. (Sandoval Hr'g: Tr. 13-15, 17-18; Tr. 745-47). The
trial court precluded cross-examination concerning the 1974 conviction as
it was too remote but held that questioning would be permitted regarding
the circumstances surrounding the 1983 and 1985 convictions. (Sandoval
Hr'g: Tr. 19-20; Tr. 744, 750-51).
Panzarino's final claim is that his due process rights were "violated
by (a) the People's witnesses [sic] revelation of [his] criminal record
and (b) the Prosecutor's violation of the Court's Sandoval
ruling." Petition at 3A, 5C. The specific background of each claim is
discussed in turn, followed by a discussion applicable to both.
1. Disclosure of Panzarino's Criminal Record
At trial, two prosecution witnesses made statements that potentially
Panzarino's criminal background. The first reference was made by
James Ratner, a court clerk who testified regarding Panzarino's bail
jumping, during the following questioning by defense counsel:
Q: And you recall whether Mr. Panzarino himself
appeared on the 5th of October?
A: He did appear.
Q: And you're relying on the notes in the file
A: No. I'm relying on my memory. I remember one of
my jobs is to remember strike that
is to note and to tell the Judge whether or not
somebody appeared, the non-appearances of somebody
is a big event, especially in a case like this.
And it was such an event for me.
Q: "A case like this," meaning a case where
robbery in the first degree, is alleged or a case
where there is a thirty thousand dollar bond?
Prosecutor: Judge, may we approach?
Q: So, is it your testimony that a robbery, in the
first degree, is a rare occurrence for you to come
across in this courthouse?
Prosecutor: Your Honor, may we approach?
Court: I'll let him answer. Is that a rare
A: No. But the defendant's record I don't
know if the Judge wants me to go into
A: There are other reasons I won't go into, unless
the Judge directs me to.
(Ratner: Tr. 692-93).
The second comment was made during the direct examination of Detective
McCaffrey, the warrant squad officer assigned to Panzarino's case. The
prosecutor was inquiring into the steps Detective McCaffrey took to
attempt to locate Panzarino after he did not appear in court and a
warrant was issued:
Q: And what other steps did you take?
Defense counsel: Objection, on the basis of
Court: I'll allow it. Go ahead.
A: Okay. Driver's license check, a I check
the court papers for any additional and I
contacted the computer to see if he had any
further information about the location of the
defendant and I also contacted the defendant's
(McCaffrey: Tr. 700-01). Defense counsel objected to this reference
to Panzarino's parole officer and moved for it to be stricken. (Tr. 701).
The court responded "Yes" and, following an off-the-record sidebar,
testimony resumed. (Tr. 701-02).
When McCaffrey's testimony concluded, defense counsel moved for a
mistrial on the basis of these two statements. (Tr. 707-09). Defense
counsel argued that the possibility of a fair trial was destroyed:
It seems to me either my client doesn't testify at
this point and lets the jury speculate as to the
mysterious nature of his record, as Mr. Ratner put
it, or else he's forced to testify and face the
consequences of the Court's Sandoval
ruling and have the jury learn various elements of
his record, as a result of these two witnesses
blurting out these two statements.
(Tr. 708-09). He stated that "there is no curative instruct[ion]
that will undue the harm." (Tr. 709). The prosecutor suggested the
possibility of the court instructing the jury to disregard the references
in their entirety as improper evidence in order to avoid prejudice to
711). The trial court denied the motion for a mistrial, noting that
Ratner's comment was made in response to an appropriate question by
defense counsel and that McCaffrey's reference to a parole officer was
not specific enough to lead the jury to speculate as to Panzarino's prior
history. (Tr. 711-12). The trial court decided that a curative
instruction would only "highlight the issues." (Tr. 712).
The Appellate Division considered Panzarino's claim that these
references to his criminal history denied him a fair trial:
The two fleeting references to defendant's
"record" and "parole" officer, one of which
comments defense counsel invited through a line of
cross-examination directed at a witness's ability
to remember this case, and the other of which was
inadvertently blurted out, were so vague and brief
that they could not have prejudiced defendant.
Accordingly, the court properly exercised its
discretion in denying the drastic remedy of a
mistrial, which was the only relief requested.
Panzarino, 282 A.D.2d at 293 (citing People v.
Young, 48 N.Y.2d 995, 996 (1980)).
2. Prosecutor's Alleged Violation of the
Panzarino's 1983 conviction of Criminal Possession of a Weapon and
Reckless Endangerment involved Panzarino's shooting at two insurance
company employees who were attempting to repossess a car. (Sandoval Hr'g:
Tr. 13-14). When Panzarino was arrested for this incident, the police
found a Smith & Wesson. 9 millimeter semi-automatic gun and a loaded
Raven. 25 caliber semi-automatic gun in his bedroom; a sawed-off Stevens.
20 gauge shotgun and a cleaning kit of a. 38 caliber pistol in his
kitchen cabinet; and a two-shot Darringer and numerous rounds of live
ammunition in his living room. (Sandoval Hr'g: Tr. 14-16). During the
Sandoval hearing that was held prior to Panzarino's trial, the
court held as follows with respect to this incident:
I will permit the District Attorney to inquire
about the as far as the 10/1/83 incident,
I will permit the District Attorney to inquire
without going into all of the guns that were found
in his possession, in his apartment. Just the fact
that those were incidents, whatever he was charged
with, and whether he did the acts that involved
reckless endangerment and the possession of a
weapon without going into what they found in his
apartment. . . .
(Sandoval Hr'g: Tr. 20). The court repeated this ruling before
Panzarino took the stand. (Tr. 744, 750-51).
On cross-examination, the prosecutor elicited testimony from Panzarino
regarding this 1983 incident. (Panzarino: Tr. 950-55). Panzarino
testified that when he saw people trying to take his friend's car, he
went to the roof of his building with a. 9 millimeter semi-automatic gun.
(Panzarino: Tr. 951-52). He stated that he shot in the direction of the
two people, but not at them, adding, "If I shot at them I would have shot
them." (Panzarino: Tr. 952). They were both injured, though not by the
bullets directly. (Panzarino: Tr. 952-53). He explained that he was a
"very good shot" because he practiced in the wooded area outside his
house. (Panzarino: Tr. 953-54). Then the prosecutor asked him about the
gun he used to practice:
Q: And that's the gun that you keep in the house?
Q: The gun that is not license[d]?
Q: But you keep loaded?
Q: And that's not the [only] gun you had at that
time, is it?
A: I think I had a couple of others.
Q: How many others?
Defense counsel: Objection.
Court: Objection sustained.
(Panzarino: Tr. 954). Thereafter, defense counsel moved for a
mistrial based on the prosecutor's "flagrant and intentional flaunting of
the Court's [Sandoval] ruling." (Tr. 972-73). The prosecutor
stated that her understanding of the court's ruling was that she was not
allowed to "go into the specifics of the guns that were found in the
apartment" but that her question was not specifically about the guns
found in the apartment or any of the details of those guns. (Tr. 973-75).
Although the trial judge characterized the prosecutor's understanding of
his ruling as "absurd," the motion for a mistrial was nonetheless denied.
On appeal, Panzarino argued that "there is a reasonable probability
that this uncharged crimes evidence was outcome-determinative." Pet. App.
Div. Brief at 52. The Appellate Division ruled that "[t]he court properly
exercised its discretion in denying a mistrial motion based on the
prosecutor's single-question attempt to circumvent the court's
Sandoval ruling, to which the court sustained an immediate
objection." Panzarino, 282 A.D.2d at 293 (citing People v.
Terry, 219 A.D.2d 529 (1st Dep't 1995).
Federal habeas review of state court convictions is limited to
determining whether there was a violation of federal law. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 68 (1991). Rulings by state trial
courts on evidentiary matters are generally a matter of state law and
pose no federal constitutional issue, Roberts v. Scully,
875 F. Supp. 182, 189 (S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995),
unless the evidence "`is so extremely unfair that its admission violates
fundamental conceptions of justice,'" Dunnigan v. Keane,
137 F.3d 117, 125 (2d Cir.) (quoting Dowling v.
United States, 493 U.S. 342, 352 (1990)), cert.
denied, 525 U.S. 840 (1998). In addition, to establish a
constitutional violation based on the erroneous admission of evidence, a
petitioner must demonstrate that such evidence, "viewed objectively in
light of the entire record before the jury, was sufficiently material to
provide the basis for conviction or to remove a reasonable doubt that
would have existed on the record without it." Collins v.
Scully, 755 F.2d 16, 19 (2d Cir. 1985); accord Dunnigan,
137 F.3d at 125; Witt v. Fisher, 2002 WL 1905946, at *5
(S.D.N.Y. Aug. 19, 2002).
In Dunnigan, the petitioner's parole officer testified at
trial that he was the petitioner's parole officer, that he supervised
convicted felons, and that the petitioner had been incarcerated at Attica
Correctional Facility. 137 F.3d at 122, 126. The Second Circuit held that
the two brief references to "felons" and "Attica" did not deprive
petitioner of fundamental fairness. Id. at 126. The
Dunnigan court also held that the state trial court's failure
to give a limiting instruction as to the relevance of the officer's
relationship with petitioner was not so egregious as to amount to a
denial of due process. Id. at 126-27. In making this
determination, the Second Circuit relied on the fact that the petitioner
did not remind the court to give such an instruction. Id. at
Even assuming that it was error under state law to admit testimony that
Panzarino had a "record," had a "parole officer," and possessed "a couple
of other [guns]" in 1983, the relevant question for this Court is only
whether the admission of such evidence amounted to a violation of
Panzarino's due process rights. In each of the three instances at issue,
the trial court did not allow further testimony on the objectionable
subject. (Tr. 693, 701, 954). At the end of the trial, the jurors were
given a limiting instruction that testimony regarding Panzarino's
could only be used to evaluate Panzarino's credibility and was not
to be used as evidence of his guilt. (Tr. 1139-40). Counsel sought no
other limiting instructions.
The first two references made in Panzarino's case were much more vague
than those to "convicted felons" and "Attica" in Dunnigan, see
137 F.3d at 122, 126. Ratner's reference to Panzarino's "record" was not
an explicit reference to his criminal record at all. Nor did McCaffrey's
reference to Panzarino's "parole officer" give any direct indication to
the untutored juror that Panzarino had a felony conviction. As was true
in Dunnigan, "we cannot conclude that the brief mention of
these two facts denied [Panzarino] that fundamental fairness which is
essential to the concept of justice," id. at 126.
Panzarino also argues that the court's refusal to give a curative
instruction as to Ratner's and McCaffrey's comments forced him to testify
so that the jury would not speculate as to the nature of his record. Tr.
708-09; Pet. App. Div. Brief at 45, 49. But the record shows no refusal
by the trial court to give such an instruction. Rather, defense counsel
never requested the instruction. (Tr. 707-12). See Dunnigan,
137 F.3d at 126-27 (refusing to permit habeas relief where counsel failed
to request a limiting instruction after the court said that it would give
such an instruction).
With regard to the prosecutor's eliciting the testimony regarding
Panzarino's possession of guns (Tr. 954), again, the issue is not whether
the prosecutor complied with the Sandoval ruling but whether
the admission of evidence of Panzarino's possession of guns violated the
federal Constitution. To prevail on such a claim, Panzarino would have to
show that "the erroneously admitted evidence, viewed objectively in light
of the entire record before the jury, was sufficiently material to
provide the basis for conviction or to remove a reasonable doubt that
would have existed on the record without it. In short it must have
been `crucial, critical, [and] highly significant,'" Collins,
755 F.2d at 19 (quoting Nettles v. Wainwright, 677 F.2d 410,
414-15 (5th Cir. 1982)). The brief reference to Panzarino's possession of
weapons assuming it even rose to the level of constitutional
error cannot meet such an exacting standard in light of the other
evidence of Panzarino's guilt. See also, e.g., Witt, 2002 WL
1905946, at *6 ("[B]ecause the record contains overwhelming proof of
Witt's guilt, the admission of [all eighteen] of his prior convictions
did not dictate the outcome of his trial."). Certainly Panzarino has not
shown that the decision not to grant a mistrial based on this testimony
was "contrary to" or involved an "unreasonable application of Supreme
Court law. Thus, habeas relief must be denied on this ground.
For the foregoing reasons, Panzarino's petition should be denied.*fn3
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with copies sent
to the Hon. P. Kevin Castel, 500 Pearl Street, New York, New York 10007,
and to the undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be directed to
Judge Castel. If a party fails to file timely objections, that party will
not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Am, 474 U.S. 140