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United States District Court, N.D. New York

February 18, 2004.

GORDON J. SMITH, Petitioner,
WAYNE BARKLEY, Superintendent of Riverview Correctional Facility, Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge


I. Background

  A. State Court Proceedings

  According to the testimony adduced at trial, in the early morning hours of February 20, 1996, Robert Crawford, who was in a crowded bar in Colonie, New York, brushed up against a woman who was also in the bar at the time. See Transcript of Trial of Gordon J. Smith (11/19/96) ("Tr.") at PP. 98-99.*fn1 Crawford and his fiance, Corleen Andrews, left the bar approximately two hours later (Tr. at PP. 97, 99). As the two were in the parking lot of the tavern, petitioner, pro se Gordon J. Smith approached them and stated to Crawford "don't disrespect my girlfriend" (Tr. at P. 100). When Crawford indicated to Smith that Crawford did not know what he was talking about, Smith punched Crawford in the face (Tr. at PP. 100-01). Crawford asked Andrews to go to her car to avoid being injured (Tr. at P. 101), and as she began walking toward her car, she felt someone grab her by her hair (Tr. at P. 68). Andrews turned around and recognized Smith as the individual who had pulled her hair (Id.). Smith proceeded to pick Andrews up and throw her, head first, through the glass hatchback of her Page 3 automobile (Tr. at PP. 68-69).*fn2

  On April 16, 1996, an Albany County grand jury charged Smith with first and second degree assault and third degree criminal mischief. See Indictment No. SU960200 (reproduced in Record on Appeal at PP. R3-5).

  Smith was tried before a jury on the above charges in a trial that commenced on November 19, 1996, with Albany County Court Judge Joseph C. Teresi presiding. Smith testified in his own defense at the trial and claimed that Andrews' injuries were the result of an accident (Tr. at P. 200). At the conclusion of the trial, the jury convicted Smith of second degree assault but acquitted him of first degree assault and the criminal mischief charge (Tr. at PP. 274-75). On December 23, 1996, Judge Teresi sentenced Smith as a predicate felon to a determinate term of seven years imprisonment on the conviction. See Sentencing Tr. (12/23/96) at P. 8.

  Smith appealed the conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. On appeal, appellate counsel argued that: i) comments made by Assistant District Attorney Renee Zirpolo ("ADA Zirpolo") during the prosecution's summation Page 4 denied Smith his right to a fair trial; and, ii) Judge Teresi's failure to charge the jury with the lesser included offense of third degree assault deprived Smith of his right to a fair trial. See Appellate Br. The Appellate Division affirmed, People v. Smith, 246 A.D.2d 852 (3d Dept. 1998), and the Court of Appeals denied Smith leave to appeal. People v. Smith, 91 N.Y.2d 977 (1998). Smith did not file any other state court challenges to his conviction. Pet. at ¶ 10.

  B. This Action

  Smith commenced this action on February 22, 1999. See Pet. In his petition, Smith claims that he is entitled to habeas relief due to: i) prosecutorial misconduct (Pet. at Grounds One, Two); and, ii) Judge Teresi's charge to the jury which Smith claims was constitutionally defective (Pet. at Ground Three). In an order dated April 15, 1999, the Hon. Lawrence E. Kahn, United States District Judge, directed Smith to pay the filing fee due in this action (Dkt. No. 6). Smith paid that fee, and the Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed an answer and memorandum of law in opposition to the petition, and provided the court with various records associated with the relevant state court proceedings (Dkt. Nos. 13-14). On Page 5 November 15, 1999, Smith's request for permission to file a traverse in further support of his petition was granted by this court (Dkt. No. 17), however, Smith never filed any additional documents in support of his application.

 III. Discussion

  A. Standards of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim:

that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
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); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed Page 6 to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, Page 7 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.

  B. Substance of Petition

  1. Grounds One and Two

  The first two grounds in the petition allege that Smith was denied his right to a fair trial due to prosecutorial misconduct. Specifically, he claims that during summation, the prosecution improperly suggested to the jury that Smith's testimony was not credible and that he was required to provide additional evidence in his defense of the charges against him (Pet. at Ground One). Smith additionally argues that the prosecution's reference to the phrase "serious physical injury" in its summation deprived Smith of his right to a fair trial (Pet. at Ground Two).

  i. Clearly Established Supreme Court Precedent

  A criminal defendant's right to a fair trial is mandated by the Due Process Clause of the Fifth Amendment to the Constitution. Albright v. Oliver, 510 U.S. 266, 273 n.6 (1994) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)). For habeas relief to be granted based on a claim of Page 8 prosecutorial misconduct, however, the alleged misconduct must have "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In considering such a claim, courts are to focus on "the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).*fn3

  ii. Contrary to. or Unreasonable Application of, Supreme Court Precedent

  In rejecting Smith's claim that he was deprived of a fair trial due to prosecutorial misconduct, the Appellate Division held:

  we reject defendant's contention that the People committed reversible error when, during summation, the prosecutor commented upon defendant's failure to produce a witness. Inasmuch as defendant testified on his own behalf, the People were entitled to bring to the jurors' attention defendant's failure to call a material witness who might be expected to testify favorably on his behalf. We also find no error in the People's limited reference to the definition of "serious physical injury" in order to give meaning to the facts referenced in the summation. Moreover, any error in this regard was obviated when Supreme Court instructed the jury that it must Page 9 accept the law as given to it by the court.

 Smith, 246 A.D.2d at 852 (citation omitted). Thus, this court must determine whether this decision was contrary to, or represented an unreasonable application of, the Supreme Court precedent noted above.

  During its summation, after briefly describing the charge contained in the first count of the indictment, the following exchange occurred:

ADA Zirpolo: And the Judge is going to tell you what serious physical injury means; injury which creates a substantial risk of death or which causes —
Counsel: Objection.
The Court: Sustained. I will charge the jury as to the law.
Tr. at P. 216.

  Later on its summation, after briefly summarizing Smith's theory of the case, the following colloquy occurred:

ADA Zirpolo: And so that was the defendant's version. So I have a couple of questions in addition to what I've already said.
Where is Lisa? Consider the —
  Counsel: Objection. Page 10

  The Court: Sustained.


  Counsel: Can we approach, Judge?

  The Court: Continue. Sustained.

  ADA Zirpolo: Where is —


The Court: Stay away from that and get on to something else.
Tr. at P. 227.

  In determining whether the prosecution's conduct deprived a criminal defendant of his right to a fair trial, courts must look to the severity of the prosecutor's conduct; the measures, if any, that the trial court took to remedy any prejudice; and the certainty of conviction absent the prosecutor's remarks. Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990); Palmer v. Senkowski, 99 CIV. 9634, 2002 WL 54608, at *4 (S.D.N.Y. Jan 15, 2002) (citations omitted); see also, Darden, 477 U.S. at 181-83; Donnelly, 416 U.S. at 644-47. Therefore, this court considers whether either of the instances cited by Smith relating to the prosecution's summation necessitates the granting of habeas relief. Page 11

  a. Comment Regarding Failure to Call Witness

  Smith initially claims that in its summation, the prosecutor improperly requested that the jury consider his failure to buttress his trial testimony with the testimony of another witness (Pet. at Ground One). This aspect of the petition appears to be based upon the well established principle that the prosecution may not "suggest that the defendant has any burden of proof or any obligation to adduce any evidence whatever." See United States v. Parker, 903 F.2d 91, 98 (2d Cir. 1990). However, this aspect of Smith's petition fails to acknowledge the fact that "[o]nce a defendant comes forward with evidence, the prosecutor may usually comment on his failure to call an available material witness." Diaz v. Mantello, 99CIV12275, 2002 WL 2031615, at *1 (S.D.N.Y. Sept. 4, 2002) (citing Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir. 1998); see also Quinones v. Miller, 01CIV.10752, 2003 WL 21276429, at *55 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citations omitted). At his trial, Smith repeatedly referred to his girlfriend, Lisa, as an individual who accompanied Smith on February 20, 1996, and could therefore corroborate his version of what transpired on the night Andrews was attacked (Tr. at PP. 182-87). Thus, ADA Zirpolo's comment regarding Smith's failure to call his girlfriend as a witness was not Page 12 inappropriate in light of Smith's testimony. See Diaz, 2002 WL 2031615, at *1. Moreover, Judge Teresi sustained defense counsel's objection to this portion of the closing argument, and when it appeared that the prosecutor was contemplating a similar statement, the trial court advised the prosecutor to "[s]tay away from that and get on to something else." Tr. at P. 227. Finally, in light of the substantial evidence presented at trial implicating Smith in the crime of which he was convicted as discussed above, his conviction on the charge appears to this court to have been certain absent the prosecutor's remarks.

  b. Comment Regarding Serious Physical Injury

  Smith's second ground contends that the prosecution improperly provided the jury with the legal definition of "serious physical injury" in its closing argument (Pet. at Ground Two).

  The prosecution appears to have impermissibly begun providing the jury with a legal definition of the phrase "serious physical injury" during its summation (Tr. at P. 216). However, Judge Teresi promptly sustained Smith's counsel's objection to this aspect of the summation, and informed ADA Zirpolo that the court, and not the prosecution, was charged with the duty of instructing the jury as to the applicable law (Id.). Following the Page 13 summations of the parties, Judge Teresi: i) specifically informed the jury that "all arguments on questions of law . . . raised by Counsel must be disregarded" in its deliberations (Tr. at P. 231); and, ii) provided the jury with the legal definition of serious physical injury (Tr. at PP. 247-48).*fn4 Although the prosecution appears to have engaged in misconduct during this aspect of its summation, Judge Teresi immediately took corrective action following ADA Zirpolo's statement, and subsequently instructed the jury that only the trial court could instruct the jury on the law applicable to the case, which necessarily included the definition of serious physical injury provided to the jury by Judge Teresi. As to the final factor this court must consider when evaluating this claim, the certainty of Smith's conviction absent the prosecutor's remarks, the court notes that Smith was acquitted of the first count in the indictment, first degree assault (Tr. at PP. 274-75). That count was the only charge in the indictment for which the jury was required to consider whether the victim had sustained serious physical injury. Compare Jr. at PP. 247-49 (discussing elements of first degree assault) with Jr. at PP. 249-52 (discussing elements of second degree Page 14 assault). It is unclear how comments by the prosecution which were only germane to a charge of which Smith was ultimately acquitted could properly be viewed as having deprived Smith of a fair trial.

  After reviewing the trial transcript relating to Smith's conviction, this court finds that he has failed to establish that the Appellate Division's denial of the aspect of his appeal based upon the prosecution's summation was either contrary to, or represented an unreasonable application of, the Supreme Court precedent referenced above. Therefore, the court denies the first and second grounds in the petition. See e.g., Miranda, 322 F.3d at 180 (claims alleging prosecutorial misconduct must be assessed "in the context of the entire trial"); Fletcher v. Mann, 956 F. Supp. 168, 173 (N.D.N.Y. 1997) (Scullin, J.) (denying habeas claim alleging prosecutorial misconduct), aff'd, 165 F.3d 13 (2d Cir. 1998).

  2. Ground Three

  Smith's third and final claim argues that Judge Teresi improperly failed to charge the jury with the lesser included offense of third degree assault and that by refusing to so charge the jury, Smith was denied his right to a fair trial (Pet. at Ground Three). Page 15

  i. Clearly Established Supreme Court Precedent

  Before a federal court may overturn a conviction due to an allegedly erroneous jury instruction, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (footnote omitted). Moreover, "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than is an actual misstatement of the law." Id., 431 U.S. at 155.

  ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent

  The Third Department, in rejecting this aspect of Smith's appeal, opined that Judge Teresi: "properly declined to charge assault in the third degree as a lesser included offense inasmuch as no fair view of the evidence would have supported such a finding." Smith, 246 A.D.2d at 852. Therefore, this decision is entitled to deference under the AEDPA. Page 16

  The Supreme Court has not determined whether due process requires that a trial court charge a jury with a lesser included offense in a non-capital case. Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980). In considering this issue in the context of a claim that a state trial court improperly failed to charge the jury with the lesser included offense of second degree manslaughter in a prosecution for felony-murder, the Second Circuit, in Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996), reasoned that "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule." Id., 86 F.3d at 48. Since that practice is prohibited under Teague v. Lane, 489 U.S. 288 (1989), the Jones court affirmed the denial of the petitioner's habeas corpus application based upon the trial court's failure to charge the jury with a lesser included offense. Jones, 86 F.3d at 48.*fn5

  Since no clearly established Supreme Court precedent required an instruction to the jury as to the lesser included offense of third degree assault, Smith is unable to establish that the Third Department's decision Page 17 denying this aspect of his appeal was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See e.g., Barnes v. Giambruno, 01 CIV. 8965, 2002 WL 850020, at *8 (S.D.N.Y. May 2, 2002) (denying petitioner's claim relating to trial court's refusal to charge jury with lesser included offense; county court's decision was not "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") (citing 28 U.S.C. § 2254(d); Beck, 447 U.S. at 639, n. 14).

  Moreover, Smith has not presented any evidence that the Third Department's decision regarding this issue was contrary to, or an unreasonable application of, Cupp or Henderson*fn6 Therefore, the third ground in the petition is denied.

  WHEREFORE, based upon the above, it is hereby

  ORDERED, that Smith's petition is DENIED and DISMISSED; and it is further Page 18

  ORDERED, that the Clerk serve a copy of this Decision and Order upon the parties by regular mail; and it is further

  ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).


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