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PANZARINO v. PHILLIPS

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

REPORT AND RECOMMENDATION
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.

I. BACKGROUND

  A. Pretrial Hearing

  Prior to the trial in this case, a hearing was held to determine whether there was probable Page 2 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). Page 3

  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, Page 4 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). Page 5

  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). Page 6 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, 32-33, 116).

  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." Page 7 (Rooney: Hr'g II Tr. 10-12). Detective Rooney had the judgment copied and returned the original to Panzarino. (Rooney: Hr'g II Tr. 10-11, 14-15).

  On October 21, 1994, the court issued an oral decision, finding as follows:

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 description.
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.

  B. Trial

  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: Page 8 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. 96-97).

  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 Page 9 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. 117).

  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 Page 10 number of the car — 3GF346. (Parra: Tr. 272-73). The taller white man in the light colored jacket was driving. (Parra: Tr. 270-73, 290).

  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. 509-12). Page 11 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 Redican Page 12 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: Page 13 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, 193-94).

  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. 703-05). Page 14

  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. Detective Rooney Page 15 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). Page 16

  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. 869, 876-77).

  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 Page 17 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 evidence concerning Page 18 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 Page 19 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) Page 20 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. Page 21

 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); accord, e.g., Page 22 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). Page 23

  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.
(Tr. 1140-41). Page 24

  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 Page 25 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. Id.

  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 1999) (defendant Page 26 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 challenge.

  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 Page 27 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 without merit.

  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 referred to Page 28 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 jacket?
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?
A: Both.
Court: No.
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 occurrence, defendants —
A: No. But the defendant's record — I don't know if the Judge wants me to go into —
Court: No.
A: There are other reasons I won't go into, unless the Judge directs me to.
(Ratner: Tr. 692-93). Page 29

  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?
A: Okay.
Defense counsel: Objection, on the basis of relevance.
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 parole officer.
(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 Panzarino. (Tr. Page 30 711). 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 Sandoval Ruling

  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: Page 31

 

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?
A: Yes.
Q: The gun that is not license[d]?
A: Yes.
Q: But you keep loaded?
A: Yes.
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? Page 32

  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. (Tr. 975).

  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).

  3. Discussion

  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. Page 33 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 127.

  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 criminal record Page 34 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 Page 35 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.

  Conclusion

   For the foregoing reasons, Panzarino's petition should be denied.*fn3 Page 36

  

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 (1985).


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