United States District Court, S.D. New York
May 27, 2004.
JAMES E. BLUE, Petitioner, -v.- GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
On May 11, 2000, in the New York State Supreme Court, Westchester
County, petitioner James E. Blue was convicted after a jury trial of two
counts of Criminal Sale of a Controlled Substance in the Third Degree,
two counts of Criminal Possession of a Controlled Substance in the Third
Degree, one count of Criminal Sale of a Controlled Substance in the Fifth
Degree, and one count of Criminal Possession of a Controlled Substance in
the Fifth Degree. He was sentenced on September 6, 2000 as a second
felony offender to a term of imprisonment of six to twelve years for each
third-degree count and three to six years for each fifth-degree count,
with the terms to run concurrently.
Blue, who is currently in prison serving his sentence, has petitioned
this Court pro se under 28 U.S.C. § 2254 for a writ of habeas corpus. For
the reasons stated below, his petition should be denied. I. BACKGROUND
The evidence presented at trial for the most part has no relevance to
the disposition of this petition. Nonetheless, a brief summary is
presented here to provide some context for Blue's claims.
1. The People's Case
On April 22, 1999, at approximately 7:50 p.m., Police Officer
Christopher Kelly drove to the corner of Nepperhan Avenue and Orchard
Street in Yonkers, New York in an unmarked police vehicle as part of a
long-term undercover narcotics operation. (Kelly: Tr. 459-61). Blue was
standing on the corner and, after some conversation, Officer Kelly
informed Blue that he wanted two "dimes" of "base" referring to crack
cocaine. (Kelly: Tr. 461-62). Blue handed him two clear, plastic Ziploc
bags containing crack cocaine in exchange for $20.00. (Kelly: Tr.
463-64; Saladin: Tr. 683).
At Blue's request, Officer Kelly drove him to a park on Lake Avenue.
(Kelly: Tr. 464). Once Blue left the car, Officer Kelly radioed his
back-up team, consisting of Detectives Robin Martin and Vincent
Antonecchia. (Kelly: Tr. 460, 466-67; Antonecchia: Tr. 587-88; Martin:
Tr. 631). Officer Kelly told them about the sale, provided a description
of Blue, and informed them of the location he had dropped Blue off.
(Kelly: Tr. 466-67, 558; Antonecchia: Tr. 588-89). After receiving
Officer Kelly's call, Detectives Martin and Antonecchia drove to the park
in an unmarked police vehicle and spotted Blue, based on Officer Kelly's
description. (Antonecchia: Tr. 587, 589-90; Martin: Tr. 632-33).
At approximately 9:45 p.m. that evening, Detectives Antonecchia and
Martin and Police Officers Thomas Powrie and Maria O'Donnell saw Blue in the area of
Orchard Street and Orchard Place. (Antonecchia: Tr. 590-91; Powrie: Tr.
608-09; Martin: Tr. 633-34; O'Donnell: Tr. 651-52). Officers Powrie and
O'Donnell approached Blue on foot, with their police shields displayed.
(Powrie: Tr. 609, 614; O'Donnell: Tr. 652-53, 660). Blue had a bottle of
beer in his hand, which the officers informed him was a violation of an
open container ordinance. (Powrie: Tr. 609; O'Donnell: Tr. 653, 662). The
officers then asked Blue for his name, date of birth, address, and social
security number. (Powrie: Tr. 610; O'Donnell: Tr. 653). Blue produced his
Social Services benefit card, which contained personal identification
information. (O'Donnell: Tr. 664). The officers asked Blue to leave the
area and then drove away. (Powrie: Tr. 616, 619; O'Donnell: Tr. 654).
After this encounter between Blue and the officers, Detective
Antonecchia went to police headquarters, where he obtained a photograph
of Blue. (Antonecchia: Tr. 603). When the detective gave this testimony
on cross-examination, Blue moved for a mistrial, arguing that Detective
Antonecchia should not have "made reference to obtaining a photograph."
(Tr. 604). The court denied his motion. (Tr. 604).
At approximately 10:05 p.m. that evening, Officer Kelly returned in his
unmarked police car to Nepperhan Avenue and Orchard Street where he saw
Blue standing on the corner. (Kelly: Tr. 467, 560-61). Blue approached
the vehicle and Officer Kelly said that he wanted "two more." (Kelly: Tr.
467). Blue handed Officer Kelly two black-tinted Ziploc bags containing
crack cocaine in exchange for $20.00. (Kelly: Tr. 467; Saladin: Tr. 683).
Thereafter, Officer Kelly worked in the area of Nepperhan Avenue and
Orchard Street and saw Blue from time to time. (Kelly: Tr. 475, 521-22).
On August 25, 1999, at approximately 4:50 p.m., Officer Kelly was in his undercover police
car and saw Blue standing near the intersection of Orchard Place and
Orchard Street. (Kelly: Tr. 470-71). Officer Kelly asked him for a "dime"
of "leak," which is a street term for PCP. (Kelly: Tr. 471). At Blue's
request, Officer Kelly drove him to Locust Hill Avenue, where Blue exited
the car, walked to a location out of the officer's sight, and then
returned with a red-tinted Ziploc bag containing PCP. (Kelly: Tr. 471-73,
573-74; Jacobs-Shulman: Tr. 737-38). Officer Kelly took the bag and gave
Blue $15.00 in exchange. (Kelly: Tr. 473).
Blue was arrested sometime in November 1999, after the undercover
operation had concluded. (Antonecchia: Tr. 605-06).
2. Proceedings Between the Close of the People's Case and the
Beginning of Blue's Case
At the close of the prosecution's case, Blue moved to dismiss all of
the felony counts against him, arguing that the People had not supported
them with legally sufficient evidence. (Tr. 765-67). The trial court
denied Blue's motion. (Tr. 767). However, over defense counsel's
objection, the court dismissed three misdemeanor counts of Criminal
Possession of a Controlled Substance in the Seventh Degree that had been
included in the original indictment. (Tr. 767-68, 771).
3. Blue's Case
Blue was the only witness called by the defense at trial. Blue
contended that he was a user of crack cocaine but that he never used PCP
or sold any drug. (Blue: Tr. 778, 780-81, 786-87, 794-97, 804, 806-07,
810, 812, 821, 825-28, 830, 838, 841, 848). He testified that he did not
remember much of what happened in his life during 1999 due to his
addition to crack cocaine. (Blue: Tr. 778, 794-95, 804). He also contended that PCP was not a
drug that was available in Yonkers. (Blue: Tr. 797, 820).
B. Pre-Trial Wade/Sandoval Hearing
Prior to trial, a combined Wade and Sandoval hearing was held in the
trial court. See generally United States v. Wade, 388 U.S. 218 (1967);
People v. Sandoval, 34 N.Y.2d 371 (1974).
1. Wade Portion
As to the Wade portion of the hearing, Blue contended that the police
identification of him should be suppressed because it was based on an
unduly suggestive single-photograph identification with no independent
source. (See Hr'g Tr. 124-35). At the hearing, the People called Officer
Kelly and Detective Antonecchia. Officer Kelly testified as to the
circumstances surrounding his purchases from Blue of the crack cocaine on
April 22, 1999 and the PCP on August 25, 1999. (Kelly: Hr'g Tr. 13-19,
25-28). He also testified that, when he returned to police headquarters
on the evening of April 22, Detective Antonecchia showed him a police
photograph of an individual whom he recognized to be Blue. (Kelly: Hr'g
Detective Antonecchia testified as to what he did on April 22, 1999
after receiving the radio call from Officer Kelly. (Antonecchia: Hr'g Tr.
86-92). He also testified that he obtained the photograph, which was a
police photograph of Blue from a prior arrest, from the identification
unit of the Yonkers Police Department shortly after Officers Powrie and
O'Donnell obtained Blue's name on the evening of April 22. (Antonecchia:
Hr'g Tr. 92, 103-04).
Blue did not call any witnesses. The trial judge ruled from the bench,
finding that Officer Kelly's viewing of the photograph was confirmatory
and thus proper. (Hr'g Tr. 143-44 (citing People v. Rodriguez, 79 N.Y.2d 445 (1992); People v. Waring. 183 A.D.2d 271
(2d Dep't 1992))). As to the additional in-person identifications of
Blue, such as the one by Officers Powrie and O'Donnell in the area of
Orchard Street and Orchard Place, the court also ruled that they were
confirmatory and not unduly suggestive. (Hr'g Tr. 144-45). Accordingly,
the court denied Blue's motion to suppress the identification evidence.
(Hr'g Tr. 145).
2. Sandoval Portion
The issue at the Sandoval portion of the hearing was the admissibility
of Blue's prior drug convictions and his convictions for resisting arrest
and criminal trespass. (See Hr'g Tr. 146-49). After hearing argument, the
court precluded cross-examination as to all of the convictions, except
that it permitted examination as to the fact that Blue was previously
convicted of a misdemeanor possession charge and a felony sale charge,
the dates of those convictions, and the length of the felony sentence.
(Hr'g Tr. 146-49, 157).
C. Jury Verdict and Sentence
On May 11, 2000, the jury convicted Blue of two counts of Criminal Sale
of a Controlled Substance in the Third Degree, two counts of Criminal
Possession of a Controlled Substance in the Third Degree, one count of
Criminal Sale of a Controlled Substance in the Fifth Degree, and one
count of Criminal Possession of a Controlled Substance in the Fifth
Degree. (Tr. 926-27). He was sentenced on September 6, 2000 as a second
felony offender to a term of imprisonment of six to twelve years for each
third-degree count and three to six years for each fifth-degree count,
with the terms to run concurrently. (Sentencing Tr. 4, 14-16). D. Direct Appeal
Represented by new counsel, Blue appealed his conviction to the
Appellate Division, Second Department. In his brief, he raised the
following two issues:
POINT ONE: A back-up team member [Detective
Antonecchia] improperly testified that he obtained
[Blue's] photograph from police headquarters. Although
this unfairly prejudiced the defense, the court denied
counsel's application for a mistrial. Additionally,
the prosecution in numerous instances elicited hearsay
testimony from police witnesses thereby intensifying
the prejudice of the improper photograph testimony and
unfairly bolstering the testimony of the undercover
officer [Officer Kelly], the only witness to the
POINT TWO: Since evidence regarding the PCP sale
showed that Blue acted as an agent of the buyer
[Officer Kelly] the court erred in refusing to
charge agency. Since the evidence supported an
agency charge, there also existed a reasonable
view that [Blue] merely possessed PCP. Therefore,
the court improperly denied counsel's request to
submit the possession count to the jury.
Brief for Defendant-Appellant James Blue, dated October 9, 2001 ("Pet.
App. Div. Brief) (reproduced in Memorandum of Law and Respondent's
Exhibits, filed October 8, 2003 (Docket #15) ("Resp. Mem.")), at 8, 14.
On May 20, 2002, the Appellate Division affirmed Blue's conviction.
People v. Blue. 294 A.D.2d 512 (2d Dep't 2002). On the first issue, the
Contrary to [Blue's] contention, the trial court
providently exercised its discretion in denying his
motion for a mistrial after [Detective Antonecchia]
testified on cross-examination that he had obtained a
photograph of [Blue] prior to his arrest. [Blue's]
claim that this testimony amounted to improper
bolstering of [Officer Kelly's] identification of
[Blue] in violation of People v. Trowbridge (
305 N.Y. 471), is unpreserved for appellate review
(see CPL 470.05; People v. Anderson, 260 A.D.2d 387;
People v. Higgins. 216 A.D.2d 487).
Id. at 512. The court went on to indicate that, "[i]n any event, the
claim is without merit, as there was no testimony by [Detective
Antonecchia] that a witness used the photograph to identify [Blue] on a
prior occasion." Id. (citations omitted). With respect to the second
issue, the court held that the claim was "unpreserved for appellate review" but that,
"[i]n any event, this claim is also without merit, as no reasonable view
of the evidence supported the theory that [Blue] was acting solely on
behalf of [Officer Kelly]." Id. at 513 (citation omitted). The court
concluded that "[Blue's] remaining contentions [were] without merit."
By letter application from counsel dated June 14, 2002, Blue sought
leave to appeal to the Court of Appeals of New York. See Letter from
Jacqueline F. Oliva, Senior Staff Attorney, The Legal Aid Society of
Westchester County, to the Hon. Judith S. Kaye, dated June 14, 2002
("Leave Application") (reproduced in Resp. Mem.), at 1. In that letter,
We request this Court to review the appellate
division's rejection of our contention that the
inferences to be drawn from testimony can violate
constitutional and statutory provisions as surely as
illegal direct testimony and did so in this case.
People v. Holt, 67 N.Y.2d 819, 821 (1986). In this
case, the illegal bolstering constituted such a major
part of the proof as to have merited a mistrial; it
merits reversal for violation of the state and federal
constitutional guarantees of due process.
Id. at 2. Enclosed with this two-page letter were copies of the parties'
briefs in the Appellate Division. See id. at 1.
On July 31, 2002, leave was denied. People v. Blue. 98 N.Y.2d 694
E. The Instant Habeas Corpus Petition
Blue filed a petition for writ of habeas corpus on February 24, 2003.
He filed an amended petition on April 22, 2003. In it, he raises three
issues that correspond to the two issues he raised on appeal to the
Appellate Division, one of which has been split into two separate issues
in his amended petition. Compare Pet. App. Div. Brief at 8-17 with
Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody, filed April 22, 2003 (Docket #5) ("Petition"),
¶ 13. Respondent has filed papers in opposition to the petition. See Affidavit of Joseph M. Latino in Opposition to Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2254, filed October 8, 2003 (Docket #16);
Resp. Mem. Blue has submitted two sets of reply papers. See Reply:
Affidavit in Opposition to Petition for Habeas Corpus Pursuant to
28 U.S.C. § 2254, dated November 14, 2003; Reply: Affidavit in Opposition
to Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2254, dated
February 11, 2004.
II. LAW RELATING TO THE EXHAUSTION REQUIREMENT
The federal habeas corpus statute provides:
[A] district court shall entertain an application
for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a). Before a federal court may consider the merits of a
habeas claim, however, a petitioner is first required to exhaust his
available state court remedies. See id. § 2254(b)(1) ("An application for
a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that
. . . the applicant has exhausted the remedies available in the courts of
the State. . . . "); Dave v. Attorney Gen., 696 F.2d 186
, 190 (2d Cir.
1982) (en banc) ("[A] state prisoner seeking federal habeas review of his
conviction ordinarily must first exhaust available state remedies."),
cert. denied. 464 U.S. 1048
(1984). To exhaust a habeas claim, a
petitioner is required to have fairly presented the federal constitutional
nature of each claim to all levels of the state courts. See, e.g.,
O'Sullivan v. Boerckel. 526 U.S. 838
, 845 (1999); Picard v. Connor.
404 U.S. 270
, 275-76 (1971); Dave. 696 F.2dat 191.
Respondent argues generally that Blue failed to present his claims in
federal constitutional terms to the state courts. See Resp. Mem. at 3-4. While
respondent incorrectly asserts that Blue's brief to the Appellate
Division did not make reference to or cite any federal law, see Pet.
App. Div. Brief at 16 n.32 (citing Guichard v. Smith. 471 F. Supp. 784
(E.D.N.Y. 1979)), it is unnecessary to consider this argument because all
of Blue's claims may be disposed of either on the ground that he did not
present the claim in any terms to the Court of Appeals of New York or on
the ground that the claim was procedurally defaulted in the state
Blue's habeas petition raises the following three grounds for relief:
(1) the trial court erred in refusing to charge an agency defense; (2)
the trial court improperly denied Blue's request to submit to the jury
the lesser misdemeanor counts of Criminal Possession of a Controlled
Substance in the Seventh Degree; and (3) the trial court erred in denying
Blue's motion for a mistrial based upon Detective Antonecchia's testimony
concerning the photograph of Blue he obtained at police headquarters on
the evening of April 22, 1999. Petition ¶ 13. Each claim is discussed
A. Claims as to Charging an Agency Defense and the Lesser Misdemeanor
Blue's letter application to the Court of Appeals for leave to appeal
raised only one claim for which he sought review: whether the trial court
erred in denying his motion for a mistrial based upon the alleged
bolstering effect of Detective Antonecchia's testimony concerning the
photograph. See Leave Application at 2. The letter application did not
raise the remaining arguments he had made to the Appellate Division
that is, his argument that it was error for the trial judge to refuse to
charge an agency defense or his argument that the trial court improperly
failed to charge the jury as to the lesser misdemeanor counts of Criminal
Possession of a Controlled Substance in the Seventh Degree. See id. at 1-2.
While the letter application stated that the Appellate Division briefs
were enclosed, see id at 1, the mere inclusion of appellate briefs does
not fairly present a petitioner's constitutional claims for purposes of
the exhaustion requirement. See, e.g., Jordan v. Lefevre, 206 F.3d 196,
198-99 (2d Cir. 2000); see also N.Y. Court Rules § 500.10(a) (requiring
counsel to "identify the issues on which the application is based").
Indeed, the inclusion of appellate briefs is of no particular
significance because such briefs must be enclosed in all applications for
leave to appeal. See Alston v. Senkowski, 210 F. Supp.2d 413, 418
(S.D.N.Y. 2002) (citing N.Y. Court Rules § 500.10(a)). Moreover, by
stating in the letter application that Blue was raising just one
particular issue the denial of his motion for a mistrial based upon
Detective Antonecchia's alleged bolstering testimony the Court of
Appeals would necessarily conclude that only that single issue was being
raised and not any of the other issues contained in the Appellate
These circumstances are virtually identical to those in Grey v. Hoke,
933 F.2d 117 (2d Cir. 1991). In Grey, the petitioner identified one claim
in his leave to appeal letter to the Court of Appeals and also attached
his Appellate Division brief, which raised three issues including the one
specified in the letter. Id. at 119-20. The leave to appeal letter made no
mention of the other two issues raised in the brief. Id. at 120. The
Second Circuit held that the claims raised in the brief were not
exhausted, except for the one claim identified in the leave to appeal
letter. Id.; accord Jordan. 206 F.3d at 198-99 ("[A]rguing one claim in
[petitioner's] letter while attaching an appellate brief without
explicitly alerting the state court to each claim raised does not fairly
present such claims for purposes of the exhaustion requirement underlying
federal habeas jurisdiction."). Accordingly, Blue has not exhausted either of these
As discussed in Bossett v. Walker. 41 F.3d 825, 829 (2d Cir. 1994).
cert. denied. 514 U.S. 1054 (1995), Blue is now barred from making any
additional leave application because one has already been denied by the
Court of Appeals. See N.Y. Court Rules § 500.10(a) (only one leave
application available). He is also foreclosed from bringing these claims
in the state courts as a collateral attack on his conviction because the
claims were raised and determined on the merits on his direct appeal to
the Appellate Division. See N.Y. Crim. Proc. Law ("CPL") § 440.10(2)(a).
Therefore, the claims are procedurally defaulted.
Because Blue no longer has remedies available in state court, his
claims are "deem[ed]" exhausted. Bossett. 41 F.3d at 829. But because
these same claims are procedurally defaulted, habeas review is barred
unless Blue can establish cause and prejudice for the default or
demonstrate that failing to consider his claims will result in a
"fundamental miscarriage of justice," see, e.g., Harris v. Reed.
489 U.S. 255, 262 (1989), which requires a showing of "actual innocence,"
see, e.g., Herrera v. Collins. 506 U.S. 390, 404 (1993); Dunham v.
Travis. 313 F.3d 724, 730 (2d Cir. 2002). Even construing his pro se
petition and reply papers liberally, see Haines v. Kerner. 404 U.S. 519,
520-21 (1972) (per curiam), Blue has made no showing of cause for his
default or "actual innocence." Therefore, these claims may not be
considered on federal habeas review.
B. Claim as to the Denial of Blue's Motion for a Mistrial Based
upon Alleged Bolstering Testimony
Where a state court rejects a petitioner's claim because the petitioner
failed to comply with a state procedural rule, the procedural default
constitutes an "independent and adequate" ground for the state court decision. See, e.g., Coleman v. Thompson.
501 U.S. 722, 729-30 (1991). Although procedurally defaulted claims are
deemed exhausted for habeas purposes, a procedural default will "bar
federal habeas review of the federal claim, unless the habeas petitioner
can show `cause' for the default and `prejudice attributable thereto,' or
demonstrate that failure to consider the federal claim will result in a
`fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (citation
omitted): accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr.
Servs., 235 F.3d 804, 809 (2d Cir. 2000): see also Harris. 489 U.S. at
264 n.10 ("[A]s long as the state court explicitly invokes a state
procedural bar rule as a separate basis for decision," the independent and
adequate state ground doctrine "curtails reconsideration of the federal
issue on federal habeas.").
Blue's third claim is that the trial court erred "in denying [his]
request for a mistrial based upon photograph testimony that unfairly
bolstered the only eyewitness's identification of [Blue]." Petition ¶
13. He argues in his petition copied verbatim from his Appellate
Division brief-that Detective Antonecchia "improperly testified that he
obtained [Blue's] photograph from police headquarters. Although this
unfairly prejudiced the defense, the court denied [Blue's] application
for a mistrial. Additionally, the prosecution in numerous instances
elicited hearsay testimony from police witnesses thereby intensifying the
prejudice of the improper photograph testimony and unfairly bolstering
the testimony of [Officer Kelly], the only witness." Id
As indicated, federal habeas review of a claim is prohibited if a state
court rests its judgment on an "independent" and "adequate" state
ground. See, e.g., Coleman, 501 U.S. at 729-30. We deal with each element
in turn. 1. The "Independent" Requirement
Here, the Appellate Division rejected Blue's bolstering claim on an
"independent" state law ground. In the trial court, Detective Antonecchia
testified on cross-examination that, after Officers Powrie and O'Donnell
obtained identification information from Blue after observing him
drinking beer on the street, Detective Antonecchia obtained a photograph
of Blue from police headquarters. (Antonecchia: Tr. 603). The relevant
testimony is as follows:
Q. And, after that whole process happened, as far
as you could recall, did [Officers Powrie and
O'Donnell] just get back in their vehicle and
A. Yes, they did.
Q. They left, and that was it as far as he was
concerned. Did you stay in that area or did you go
to Yonkers [police] headquarters?
A. I joined up with them, exchanged information
and then obtained a photograph.
Q. So, there was no attempt to arrest [Blue] at
[Blue's counsel]: Your Honor, could I approach
The Court: Yes.
[Blue's counsel]: Judge, I'll have to move for a
mistrial. I don't understand why this witness made
reference to obtaining a photograph.
The Court: Application for a mistrial is denied.
You asked him what did he do. He answered you.
[Blue's counsel]: He must have been instructed by
the prosecution. [Prosecutor]: I didn't instruct him.
[Blue's counsel]: Somebody should have.
The Court: We are No, we are not going any further
(Tr. 603-04). As this excerpt reflects, Blue did not in any way alert the
trial court to the issue raised in the Appellate Division, in the Court
of Appeals, and in this Court: whether a mistrial was warranted because
this photograph testimony improperly bolstered the identification
testimony of Officer Kelly.
As a result, the People argued on appeal that Blue's claim was not
preserved for appellate review because in making Blue's application for a
mistrial defense counsel "did not make any kind of impermissible
bolstering Trowbridge argument." Brief for Respondent, undated
(reproduced in Resp. Mem.), at 13-14 (citing People v. West. 56 N.Y.2d 662
(1982); People v. Anderson, 260 A.D.2d 387 (2d Dep't 1999)); see People
v. Trowbridge, 305 N.Y. 471, 475-77 (1953) (barring a witness from
testifying merely that an identification by another witness did occur).
The Appellate Division agreed that the issue was "unpreserved for
appellate review." Blue. 294 A.D.2d at 512 (citing New York's
contemporaneous objection rule, CPL § 470.05(2); Anderson, 260 A.D.2d at
387; People v. Higgins, 216 A.D.2d 487 (2d Dep't 1995)).
The Court of Appeals has made clear that a claim as to the admission of
improper bolstering testimony is preserved for appeal only where a timely
objection alerts the trial court to that specific basis for the
objection. See, e.g., West. 56 N.Y.2d at 663 ("Defendant contends that
reversible error occurred when the trial court permitted two witnesses to
bolster the victim's prior identification of the defendant. Although a
general protest was raised against this testimony, defendant at no time
objected to this testimony on the specific ground that it constituted
improper bolstering. Thus, defendant has failed to preserve this issue for
appellate review." (citing, inter alia. People v. Gonzalez, 55 N.Y.2d 720,
722 (1981), cert denied, 456 U.S. 1010 (1982); People v. Vidal.
26 N.Y.2d 249, 254 (1970))); accord People v. Butler. 2 A.D.3d 1457, 1458
(4th Dep't 2003); People v. Jacque, 2 A.D.3d 1362, 1363 (4th Dep't
2003); People v. Read. 228 A.D.2d 304, 305 (1st Dep't 1996); People v.
Saladana, 208 A.D.2d 872, 872-73 (2d Dep't 1994); People v. Alston.
163 A.D.2d 398, 398-99 (2d Dep't 1990). As the Court of Appeals explained
in a related context:
A general objection, in the usual course, is to no
avail when overruled if not followed by a specific
objection directing the court, and the adversary, to
the particular infirmity of the evidence.
The function of the specific objection is not only
to cure formal defects. The requirement of the
specific objection is also intended to serve and
serves judicial economy by eliminating the need for
new trials where a proper objection would have alerted
the Judge or even elicited a concession from opposing
counsel by withdrawal of the offending matter.
Vidal, 26 N.Y.2d at 254 (citations omitted).
While the Appellate Division did not specifically state the basis for
its holding that the issue was not preserved, its terse statement that
the issue was "unpreserved for appellate review" is sufficient to show
that it was relying on a procedural bar. See, e.g., Harris. 489 U.S. at
265 n. 12. In addition, the procedural bar is preserved even where, as
here, the court proceeds to rule on the merits in an alternative
holding. See, e.g., id. at 264 n. 10; Velasquez v. Leonardo. 898 F.2d 7,
9 (2d Cir. 1990) (per curiam).
Finally, that the Court of Appeals issued a summary denial of leave to
appeal is of no moment because where "the last reasoned opinion on the
claim explicitly imposes a procedural default" as is true of the Appellate Division's decision in this case
a federal habeas court "will presume that a later decision
rejecting the claim did not silently disregard that bar and
consider the merits." Ylst v. Nunnemaker. 501 U.S. 797, 803
(1991): accord Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126
(2d Cir. 1995) (federal habeas court looks to Appellate Division's
reliance on procedural bar where Court of Appeals issues summary
denial of leave to appeal). Thus, the procedural default relied
upon by the Appellate Division constituted an "independent" state
law ground for the decision. 2. The "Adequate" Requirement
The remaining question is "whether the state ground relied upon is
`adequate' to preclude federal habeas review." Garcia v. Lewis.
188 F.3d 71, 77 (2d Cir. 1999). A procedural bar is "adequate" if it is
based on a rule that is "`firmly established and regularly followed' by
the state in question." Id (quoting Ford v. Georgia. 498 U.S. 411, 423-24
(1991)). Whether application of the procedural rule is "firmly
established and regularly followed" must be judged in the context of "the
specific circumstances presented in the case, an inquiry that includes an
evaluation of the asserted state interest in applying the procedural rule
in such circumstances." Cotto v. Herbert. 331 F.3d 217, 240 (2d Cir.
2003) (citing Lee v. Kemna. 534 U.S. 362, 386-87 (2002)). The Second
Circuit has set forth the following "guideposts" for making this
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state
caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented; and
(3) whether petitioner had "substantially complied"
with the rule given "the realities of trial," and,
therefore, whether demanding perfect compliance with
the rule would serve a legitimate governmental
interest. Id. (citing Lee. 534 U.S. at 381-85).
Application of these considerations to Blue's case leads to the
conclusion that the procedural bar relied upon by the Appellate Division
is one that is "firmly established and regularly followed" and thus
"adequate." With respect to the first guidepost, Blue's failure to argue
that his motion for a mistrial should have been granted specifically
because of the admission of Detective Antonecchia's alleged bolstering
testimony was "actually relied on" by the trial court in the sense that
the trial court was never given an opportunity to consider and
conceivably cure by granting the motion or by striking the allegedly
improper bolstering testimony the specific problem. Cf. id. at 243
(while "the likely impact of a timely objection involves a certain degree
of speculation," it is possible that "the trial court may well have come
to a different conclusion" had the reasons for the objection been
As for the second consideration, it is well-settled under New York law
(as discussed above) that the failure to alert a trial court to the
specific basis for an objection as to trial testimony precludes later use
of that objection as a vehicle for creating a question of law on appeal.
See, e.g., West. 56 N.Y.2d at 663; Butler. 2 A.D.3d at 1458; Jacque, 2
A.D.3d at 1363; Read. 228 A.D.2d at 305; Saladana, 208 A.D.2d at 872-73;
Alston. 163 A.D.2d at 398-99. Thus, state case law indicates that
"compliance with the rule was demanded in the specific circumstances
presented." Cotto, 331 F.3d at 240.
The final guidepost likewise fails to help Blue for there is no
argument that he "substantially complied" with the state procedural rule
CPL § 470.05 through his motion for a mistrial. The trial court was
not in any way alerted that a basis for this motion was Detective
Antonecchia's alleged bolstering testimony. Rather, counsel stated only
that he did not "understand why [Detective Antonecchia] made reference to obtaining
a photograph." (Tr. 604). Such a statement was obviously insufficient to
"ma[ke] his position . . . known to the court," CPL § 470.05(2).
In sum, analysis of the Cotto "guideposts" demonstrates that the
Appellate Division's reliance on the state procedural rule in this
situation constitutes both an "independent" and an "adequate" ground for
the state court decision. Blue's claim is thus procedurally defaulted.
Consistent with this conclusion, federal habeas courts have routinely
refused to consider claims rejected as unpreserved by the New York State
courts on the ground that the defendant failed to alert the trial court
to the specific issue being raised for review. See, e.g., Wilson v.
Tracy, 2003 WL 22952836, at *5 (E.D.N.Y. Nov. 3, 2003); Ocean v.
Cunningham, 2003 WL 23185750, at *12 (E.D.N.Y. Oct. 28, 2003); Guzman v.
Lacy, 1998 WL 512954, at *6 (S.D.N.Y. Aug. 17, 1998): Vega v. Strack,
1995 WL 326522, at *3-*4 (S.D.N.Y. June 1, 1995): see also Garcia, 188
F.3d at 79-82 (CPL § 470.05(2) constitutes an "adequate" state ground
precluding habeas review).
Even under a liberal construction of his pro se petition and reply
papers, see Haines, 404 U.S. at 520-21, Blue makes no claim of
circumstances constituting cause for the procedural default. Nor has he
provided evidence of "actual innocence." Thus, the procedural default
cannot be excused and federal habeas review of the claim is barred.
For the foregoing reasons, Blue's petition should be denied. PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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. Laura T.
Swain, 40 Centre Street, New York, New York 10007, and to the undersigned
at the same address. Any request for an extension of time to file
objections must be directed to Judge Swain. 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.
Arn, 474 U.S. 140(1985).
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