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BLUE v. DUNCAN

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

  A. Trial

  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 Tr. 19-21).

  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 sales.
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 court held:

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[2]; 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." Id.

  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, counsel stated:

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 (2002).

  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 courts.

 III. DISCUSSION

  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 below.

  A. Claims as to Charging an Agency Defense and the Lesser Misdemeanor Counts

  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 Division briefs.

  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 claims.

  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 leave?
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 that point?
A. Correct.
Q. Okay.
[Blue's counsel]: Your Honor, could I approach side bar?
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 on this.
(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 determination:

(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 given).

  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.

 Conclusion

 

For the foregoing reasons, Blue's petition should be denied. 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. 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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