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March 10, 2004.

HOWARD PELLINGTON, Petitioner against CHARLES GREINER, Respondent

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Petitioner Howard Pellington ("Pellington") was convicted of murder in the second degree after trial in the Supreme Court of the State of New York, Bronx County (the "State Court") in 1998, and is now serving an indeterminate term of imprisonment of between twenty years to life. During jury deliberations at the conclusion of the trial, the judge met privately with the jury forewoman, at the juror's request, to discuss the behavior of another juror. A court reporter and the attorneys for both sides were present at the meeting, but Pellington was not. In this petition for a writ of habeas corpus, Pellington argues that the judge's discussion with the juror in Pellington's absence deprived Pellington of his constitutional right to be present at all material states of proceedings against him. For the reasons set forth below, the Court denies Pellington's petition.


  Pellington was convicted for the murder of Michael Cruz on the night of January 3, 1995 in the Bronx. His conviction Page 2 was based primarily on the testimony of the single witness to the incident, Eddie Aviles ("Aviles"). Aviles testified that he observed an argument between three men on a street corner and saw one of the men shoot the victim and then begin running in his direction. According to Aviles, when the shooter was approximately 20 feet away, Aviles recognized him as Pellington. Aviles stated that he knew Pellington because Pellington worked for a drug dealer from whom Aviles regularly purchased cocaine, and Aviles had seen Pellington almost daily in the month before the shooting. Much of the trial focused on Aviles's credibility due to his history of drug abuse, the possibly poor lighting at the scene, and Aviles's nine-month delay in coming forward to identify Pellington as the shooter.

  At the conclusion of the first afternoon of jury deliberations, after the jury had been dismissed from the courtroom, the judge informed the parties in open court that the jury foreperson had told a court officer that she wanted to speak with the judge "about something that she didn't want to put into a note." (Trial transcript (Tr.), People v. Pellington, Ind. # 7708/95, N.Y. Sup. Ct., Bronx Cty, Crim. Term Part 27, April 1, 1998, at 630.) The court then stated, "[s]o what we have agreed, Mr. Katz,*fn1 am I correct, that we will talk to her in private with just the court reporter, Page 3 court officer obviously and the attorneys, is that correct?" (Tr. 630.) Pellington's counsel replied "[f]ine." (Id.)

  The court then held a private, on-the-record conference with the jury forewoman and the above-named individuals. Pellington did not attend the conference. At the meeting, the forewoman informed the court:
Eleven of us [have] all come to a conclusion, there is one upstairs that he's taking it personally. He's not following the law that you gave us to go by. He's not listening to that. He's dismissing all this stuff you told us and a lot of facts that's there he's dismissing, everything. So a lot of jurors upstairs [are] getting upset because all 11 of us [are] agreeing except for him. I felt I needed to tell you that he's not really listening to what you said.
(Tr. 631-32.)
  In response, the court asked the forewoman not to reveal the results of the deliberations and then stated:
My thought is that I would take you all, send you to the hotel for the night that would give everybody an opportunity to step back from the case. Maybe I will try to address it in some fashion tomorrow, but it should be through a note, I believe.
(Tr. 632.)
  The court gave both attorneys an opportunity to weigh in on the appropriate response to the forewoman's statement. Pellington's counsel said that "the best thing is since they are planning on going to the hotel at this moment anyway that we allow the jury to go to the hotel. There's nothing to be Page 4 accomplished at this point anyway[.]" (Id.) Before the meeting concluded, the forewoman repeated:
One more thing. . . .it's personal with [the juror in question], he's not going by the law you gave us to go by, that is not what he's going by. It makes it very hard for us to come to a conclusion because everybody is there, we have it all, it's just him, it's personal.
(Tr. 634.)

  The court replied " [w]e will work on that tomorrow." (Id.)

  The next morning, on the record and with Pellington present but outside the presence of the jury, the court referred to the meeting with the forewoman the previous evening:
We had a conference with one of the jurors in the robing room, and I'm not going to repeat the substance of that conversation, but the lawyers and I have discussed that just a few minutes ago and decided that at this point we're not going to respond to the things that she told us, and we'll wait and see how things develop; is that correct [?]
(Tr. 636.)

  Both attorneys confirmed this plan.

  The jury deliberated over the next three days. The deliberations included several readbacks of testimony, requests for clarification of charges, two reports of deadlock, and two Allen charges*fn2 from the court. The jury ultimately convicted Pellington of murder in the second Page 5 degree.

  Pellington appealed his conviction to the Supreme Court of New York, Appellate Division, First Department (the "Appellate Division"). He argued that the government had failed to prove his guilt beyond a reasonable doubt; that the government's use of peremptory challenges was pretextual and violated his right to equal protection; and that the meeting between the court, the jury forewoman, and counsel for both sides outside of Pellington's presence denied Pellington his right to be present at all stages of the proceedings against him. The Appellate Division affirmed the judgment. See People v. Pellington, 741 N.Y.S.2d 694 (App. Div. 1st Dept. 2002). The New York Court of Appeals denied Pellington leave to appeal. See People v. Pellington, 98 N.Y.2d 771 (2002). ...

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