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RIVERA v. BURGE

United States District Court, S.D. New York


June 10, 2004.

RAUL RIVERA, Petitioner, -v.- JOHN W. BURGE, Superintendent, Auburn Correctional Facility, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Raul Rivera, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Bronx County Supreme Court, Rivera was convicted of Assault in the Second Degree, Attempted Robbery in the Third Degree, and Escape in the Second Degree and was sentenced as a persistent violent felony offender to twelve years to life in state prison. Rivera is currently incarcerated at the Auburn Correctional Facility in Auburn, New York pursuant to that judgment. For the reasons stated below, Rivera's petition should be denied.

I. BACKGROUND

  A. Evidence at Trial

  At about 6:30 a.m. on August 27, 1996, Carlos Tavares got off the subway at 183rd Street and Grand Concourse in the Bronx. (Tavares: Tr. 62-64, 99). As he was walking on Grand Concourse towards 183rd Street, he saw a black man and a white man on some steps ahead of him. (Tavares: Tr. 64-66, 107). The black man, subsequently identified as Rivera, was sitting on the steps drinking beer and also vomiting. (Tavares: Tr. 66-68, 107). As Tavares passed by the men, Rivera hit Tavares on his head by his ear and Tavares fell to the ground. (Tavares: Tr. 65, 74-76, 108-09). As Tavares fell, his watch fell off. (Tavares: Tr. 75-80, 110). Rivera demanded a cigarette from Tavares and Tavares held out a cigarette and a lighter, which "they" snatched from him. (Tavares: Tr. 80-82, 109, 111-12, 125-26).

  Tavares then started running down the street. (Tavares: Tr. 78, 81-83). Tavares looked back as he ran, saw Rivera pick up his watch from the ground, and then saw both men following him. (Tavares: Tr. 83-84, 113-14, 124-25). Tavares flagged down the police and got into the patrol car to canvass the area looking for the perpetrators. (Tavares: Tr. 85; Farnan: Tr. 195-97, 206-07; Toro: Tr. 391, 402). About 20 minutes later, Tavares saw the two men near Union Hospital and identified them for the police. (Tavares: Tr. 85-91; Farnan: Tr. 196-97, 216; Toro: Tr. 404-05). An officer showed Tavares his watch. (Tavares: Tr. 99; Hibbert: Tr. 230-31). As a result of the incident, Tavares had scratches on his arm and hand which bled and took over a month to heal. (Tavares: Tr. 100-01).

  Around 7:00 a.m. that same morning, Sergio Torres left his house and walked towards his car to begin his day working as a cab driver. (Torres: Tr. 143-44, 161-62). He was carrying two radios in his hands. (Torres: Tr. 145). As he was crossing Valentine Avenue between 187th and 188th Streets, Torres noticed Rivera sitting on a step with another person. (Torres: Tr. 145-46, 162). After Torres passed the two men, Rivera grabbed Torres's neck "very hard" from behind and said to release the radios or else he was going to break Torres's neck. (Torres: Tr. 146, 164). Torres pretended to be "half fainted" and Rivera loosened his grip, allowing Torres to breathe. (Torres: Tr. 147). Torres hit Rivera three times in the stomach with his elbow and Rivera released him. (Torres: Tr. 147). Torres then used his hands to hit Rivera in the face. (Torres: Tr. 148). Rivera fell to the ground and Torres picked up his radio and said that he was going to contact the police. (Torres: Tr. 148-49).

  Torres ran towards 187th Street and Valentine and told officers in a police car there what had happened. (Torres: Tr. 149-50; Farnan: Tr. 197-98, 217; Toro: Tr. 392). He saw the two individuals near the emergency room entrance of Union Hospital and identified them for the police. (Torres: Tr. 151; Toro: Tr. 392). Because Torres had hit Rivera "too hard," Torres's left hand "opened" and "got swollen." (Torres: Tr. 148). Torres testified that as a result, the bone in his thumb hurt for over six months, although he never sought medical attention. (Torres: Tr. 148, 160, 171-72).

  Rivera was arrested inside Union Hospital. (Farnan: Tr. 198-99, 221-23). Police Officer Kenton Hibbert searched the second suspect and recovered Tavares's watch from the suspect's front right pocket. (Hibbert: Tr. 229-30, 239-40).

  At around noon that day, Police Officer Karl Toone escorted Rivera from the central booking area in criminal court to Lincoln Hospital because Rivera was complaining of nausea and vomiting. (Toone: Tr. 271-73, 291-92, 297). At one point, Rivera was handcuffed to a chair in the emergency room and he vomited. (Toone: Tr. 274, 301). Officer Toone went to another part of the emergency room to get something to wipe Rivera's mouth. (Toone: Tr. 274-75, 305-07, 330-31). When he returned, Rivera was not there. (Toone: Tr. 275).

  At approximately 3:30 p.m., Police Officer Nigma Sulaimen was on routine patrol on her bicycle when she saw a crowd running westbound on 183rd Street. (Sulaimen: Tr. 332, 334). There was one individual running in front of the crowd. (Sulaimen: Tr. 334-35). Officer Sulaimen stopped the person in the front at the corner and pulled his hands out of his pockets. (Sulaimen: Tr. 335, 379-84). The person had a pair of handcuffs hanging off of his left wrist. (Sulaimen: Tr. 335). Officer Sulaimen placed the individual, who was later identified as Rivera, under arrest. (Sulaimen: Tr. 333-34).

  The defense presented no witnesses.

  B. Juror Five

  After Tavares testified, a court officer advised the court that a member of the jury may have a relationship to Rivera. (Tr. 130). The juror in question was Juror 5 — Hector Camacho. (Tr. 131). Camacho explained that he had received a voicemail message from his son saying that Rivera is the brother of Camacho's ex-wife's boyfriend. (Tr. 131-34, 181). Camacho expressed surprise that his son had left him a message with this information because he had not told his son that he was on jury duty. (Tr. 132-33). Camacho stated that he did not recognize Rivera and did not know if the information was true. (Tr. 132-33). He said that he did not speak to his ex-wife too often and did not feel that the information would have any bearing on his judging the case. (Tr. 132-33). Defense counsel pointed out that there could be many people named Raul Rivera. (Tr. 133). The court instructed Camacho to call his son, who lived with Camacho's ex-wife, and "find out [how] he knows what he believes he knows about the defendant in this case and his relationship to your ex-wife" and the name of the ex-wife's boyfriend. (Tr. 132, 134).

  Camacho returned after speaking with his son and reported that the name of the person in question, who was supposedly Rivera's brother, was "Percente," which the court reporter noted was a phonetic spelling. (Tr. 135). Defense counsel asserted that Rivera did not have a brother named Percente and that Rivera's brothers were named Alberto, Alfredo, and Eliso. (Tr. 135-36). Camacho's son did not know the last name of his mother's boyfriend. (Tr. 136). Defense counsel again expressed concern that there was only a speculative connection between the juror and Rivera and stated, "I don't want to disqualify a juror on speculation." (Tr. 135-36). The court responded that it was "a potentially very dangerous situation because this juror apparently believes it to be so, that is the concern I have." (Tr. 136). The prosecutor indicated that he felt Camacho was not qualified to serve on the jury. (Tr. 137). Defense counsel's position was that Camacho should remain on the jury. (Tr. 140). The judge determined that a hearing needed to be held but that the trial should continue in the meantime. (Tr. 140-41). The judge instructed Camacho not to discuss the matter with any of his fellow jurors and testimony resumed. (Tr. 140-42).

  Later that afternoon, the judge remarked that "at this point I'm satisfied that the issue is sufficiently noted as not to present a problem" because "[t]his juror is sufficiently conscious of his obligations to have brought this to our attention." (Tr. 176). The attorneys indicated a desire to ask Camacho a few additional questions, which the court allowed. (Tr. 176-77). Camacho confirmed that he did not know whether or not Rivera was in fact the brother of his ex-wife's current boyfriend. (Tr. 178). The court instructed him again not to speak to any other jurors or his son about this issue. (Tr. 178-79). Camacho said that the only person he had told about the message was the officer who had immediately alerted the court. (Tr. 180). He stated that the last time he saw his ex-wife's boyfriend was ten or twelve years ago (Tr. 180) and verified that he had never seen Rivera before (Tr. 183). Camacho also maintained that his judgment would not be affected and that he felt comfortable continuing to serve as a juror. (Tr. 182-84). Camacho was directed to inform the court if his son contacted him again. (Tr. 184-85). Defense counsel asserted no objection to Camacho's remaining on the jury and Camacho was not discharged. C. Request for Second Interpreter

  Prior to any witnesses being called, defense counsel made an application for a second interpreter to be provided during the testimony of the two complaining witnesses, Tavares and Torres. (Tr. 45-46). The basis for the application was that Tavares and Torres would both testify in Spanish and therefore Rivera, a Spanish speaker, would understand their testimony. (Tr. 45). The jury, however, would be instructed to rely on the interpreter's English translation of the witnesses' testimony rather than on what the witnesses were actually saying in Spanish. Thus, Rivera would not have the benefit of understanding the testimony as it was being conveyed to the jury. (Tr. 45-46). In other words, defense counsel argued that a second interpreter was needed to translate what the first interpreter said in English to the jury back again into Spanish for Rivera. (Tr. 46).

  The trial court granted the application to the extent that an additional interpreter was available. (Tr. 46). The court noted that since Rivera would understand the testimony of the Spanish-speaking witnesses directly, not having a second interpreter "may not be the kind of fundamental derogation" of Rivera's rights to confront witnesses and to due process which defense counsel had suggested. (Tr. 46-47). Defense counsel responded that his concern was that Rivera would have no way of knowing if the interpreter incorrectly translated the testimony for the jury. (Tr. 47). The court replied, "If that happens, counsel, the problem is a lot more fundamental than what your client knows or doesn't know. The problem is then that the jury is being [misled] inadvertently by an interpreter." (Tr. 47).

  Both Taveres and Torres testified without Rivera being provided a second interpreter. (See Tr. 61-62, 142). The next day, defense counsel placed on the record his objections to a second interpreter not being provided. (Tr. 187). He argued that his client was deprived of hearing the testimony that was given to the jury and took exception to the court's "ruling" on the issue. (Tr. 187). The judge then stated,

It wasn't a ruling, what it was [was] the unavailability of an interpreter. I ruled in [Rivera's] favor. I said subject to an interpreter being available.
I called downstairs and I said give me another interpreter. They said, there is not another interpreter in the building.
(Tr. 187-88). Defense counsel restated his objections on due process and confrontation grounds and proposed that the proper relief would be "to hold off any testimony until such time as an interpreter is available." (Tr. 188-89). The prosecutor noted his objection to the request for a second interpreter, stating, "If we accept the interpreter's interpretation [as accurate] we do not need a second interpreter." (Tr. 189-90).

  D. Verdict, Motion to Set Aside the Verdict, and Sentencing

  On March 24, 1998 the jury returned a verdict, finding Rivera not guilty of Robbery in the Second Degree (relating to the incident involving Tavares); guilty of Attempted Robbery in the Third Degree and Assault in the Second Degree (relating to the incident involving Torres); and guilty of Escape in the Second Degree. (Tr. 623-24; see also Tr. 518, 523).

  After the verdict but prior to sentencing, Rivera brought a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30. See Notice of Motion, dated May 10, 1998 (reproduced as Ex. 3 to Affidavit in Opposition, filed July 3, 2003 (Docket #6) ("Opp. Aff.")). Rivera argued that he had been deprived of a fair trial by an impartial jury because he had recently obtained information indicating that Camacho was biased against him. See Affirmation in Support of Motion, dated May 10, 1998 ("Motion to Set Aside Affirm.") (reproduced as Ex. 3 to Opp. Aff.), at 2-3. In an affirmation from defense counsel, counsel stated that Rivera had "conferred with his mother and his recollection was refreshed." Id. at 2. Specifically, Rivera recollected that he had worked for Camacho many years prior to his trial and had known Camacho since 1978. Id. The affirmation claimed that Rivera did not recognize Camacho because Camacho had gained weight over the years since Rivera had last seen him. Id. Defense counsel affirmed that Camacho was in fact the ex-husband of Rivera's brother's girlfriend. Id. The brother's name was said to be "Vincent," id., although no explanation was provided as to why this was not one of the names of Rivera's brothers as supplied by Rivera during the trial (see Tr. 135-36). Also, Rivera had apparently learned from his mother that Camacho had previously threatened Rivera's brother with a gun. Motion to Set Aside Affirm, at 2-3. Based on these facts, Rivera argued that Camacho withheld information in his answers to questions from the court and counsel, was biased against Rivera, and had used his bias to persuade the other jurors to convict. Id at 3. Counsel asserted that, had this information been known by Rivera during trial, he would have sought to have Camacho disqualified. Id.

  Without holding a hearing, the trial court denied the motion in a written decision on the grounds that: (1) the juror expressly stated that his relationship, if any, to Rivera's brother was inconsequential and would have no bearing on his ability to judge the case impartially; (2) Rivera, after being fully apprised of the possible relationship, and after being given the option to have the juror removed, expressly stated that he wanted Camacho to remain on the jury; (3) there was no evidence of any misconduct by this juror; and (4) the assertions contained in Rivera's moving papers were "speculative," "incredible," and "specious" given that one ordinarily does not need to be reminded of facts such as those contained in Rivera's papers. See Decision, dated June 3, 1998 ("330.30 Decision") (reproduced as Ex. 4 to Opp. Aff.), at 1-2.

  Thereafter, Rivera was sentenced to concurrent prison terms of twelve years to life for the assault, two to four years for the attempted robbery, and two to four years for the escape. See Opp. Aff., ¶ 10.

  E. Rivera's Direct Appeal

  In December 2001, Rivera appealed his conviction to the Appellate Division, First Department, presenting the following questions:

1. Whether the evidence failed to establish the physical injury element of the second-degree assault charge. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § [6]; [N.Y. Penal Law] § 10.00(09).
2. Whether the court's failure to order an evidentiary hearing after it was revealed that the juror whose ex-wife lived with [Rivera's] brother had threatened [Rivera's] brother and had lied about the amount of enmity between himself and [Rivera's] family deprived [Rivera] of his right to trial by an impartial jury. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, § 6.
3. Whether [Rivera] was deprived of his rights to confront the witnesses against him, to be present at his trial, and to the effective assistance of counsel when, although the court granted his request for an interpreter, it did so only to the extent one was "available," improperly delegating this decision to the court interpreters' office, and refused to grant an adjournment when there was no interpreter available. N.Y. Const., Art. I, § 6; U.S. Const. Amends. VI, XIV; [N.Y.] Judiciary Law § 387.
Brief for Defendant-Appellant, dated December 2001 ("Pet. App. Brief) (reproduced as Ex. 6 to Opp. Aff.), at 2.

  On October 1, 2002, the Appellate Division unanimously affirmed Rivera's conviction. People v. Rivera, 298 A.D.2d 120 (1st Dep't 2002). The Appellate Division held that the evidence supporting Rivera's assault conviction was legally sufficient, that the court properly declined to hold a hearing on Rivera's motion to set aside the verdict, and that the court was not required to provide a second interpreter. Id. at 120.

  On December 23, 2002, the New York Court of Appeals denied Rivera's application for leave to appeal. People v. Rivera, 99 N.Y.2d 563 (2002).

  F. Instant Habeas Petition

  Rivera timely filed the instant habeas petition by submitting it to the Court's Pro Se Office on March 18, 2003. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed April 14, 2003 (Docket #1) ("Petition"). He seeks relief on the same three grounds that were raised on direct appeal. See id. at 4; Memorandum of Law, dated March 9, 2003 ("Pet. Mem.") (annexed to Petition), at 1-5. As he presented the federal constitutional nature of his claims to each available level of the state courts, Rivera has properly exhausted his state law remedies. See generally Dave v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).

  The respondent filed his initial papers in opposition to the Petition on July 3, 2003. After filing the trial transcript, the respondent submitted a Supplemental Affidavit in Opposition, filed January 27, 2004 (Docket #14), annexing a Revised Memorandum of Law, undated. Rivera thereafter submitted his Traverse, filed April 19, 2004 (Docket #16) ("Traverse").

  II. STANDARD OF REVIEW

  A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Second Circuit has held that the term "adjudicated on the merits" requires only that the state court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to any federal claim or to any federal law for the statute's deferential standard to apply. Id. at 312. Moreover, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

  III. MERITS OF RIVERA'S CLAIMS

  A. Sufficiency of the Evidence of Physical Injury

  Rivera's first claim for relief is based on the sufficiency of the evidence with respect to physical injury, an element of Assault in the Second Degree. See Petition at 4; Pet. Mem. at 1-2; see also Traverse at 2-3. Under New York law, a person is guilty of Assault in the Second Degree when "[i]n the course of and in furtherance of the commission or attempted commission of a felony, . . . he . . . causes physical injury to a person other than one of the participants." N.Y. Penal Law § 120.05(6). "Physical injury" is defined as "impairment of physical condition or substantial pain." Id. § 10.00(9). Rivera contends that the harm suffered by Torres did not constitute "physical injury." Pet. Mem. at 1.

  Rivera raised this claim on direct appeal and the Appellate Division held:

The evidence supporting the assault conviction was legally sufficient to establish that defendant caused the victim to suffer physical injury. The testimony of the victim that the injury to his hand had hurt "a lot" and had caused swelling that had lasted a week was accompanied by evidence that the injury continued to cause him pain for six months (see People v. Guidice, [83 N.Y.2d 630, 636 (1994)]; People v. Arroyo, [279 A.D.2d 386, 387 (1st Dep't 2001), rev'd on other grounds, 98 N.Y.2d 101 (2002)]). Furthermore, the injury was clearly suffered by the victim in the course of defending himself from defendant's attack, and thus was caused by defendant.
Rivera, 298 A.D.2d at 120. Rivera is entitled to relief under 28 U.S.C. § 2254(d) only if this decision was "contrary to" or "an unreasonable application of clearly established federal law.

  It is well-settled that a habeas petitioner challenging the sufficiency of the evidence underlying his conviction bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citation omitted), cert. denied, 515 U.S. 1136 (1995). To prevail, the petitioner must show that "upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307. 324 (1979): accord Ponnapula v. Spitzer, 297 F.3d 172. 179 (2d Cir. 2002). In conducting this inquiry, all of the evidence and all possible inferences that may be drawn from the evidence are to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319: accord Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35: accord Rosa v. Herbert, 277 F. Supp.2d 342, 347 (S.D.N.Y. 2003) ("the court must defer to the jury's assessments of the weight of the evidence and the credibility of witnesses"); Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is not free to make credibility judgments about the testimony . . . or to weigh conflicting testimony" (citing cases)).

  When considering the sufficiency of the evidence supporting a state conviction, "`[a] federal court must look to state law to determine the elements of the crime.'" Ponnapula, 297 F.3d at 179 (alteration in original) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). cert. denied, 528 U.S. 1170 (2000)); accord Jackson, 443 U.S. at 324 n.16; DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004). There will be no federal constitutional violation "where petitioner's real complaint is with the [state] courts' interpretation of the definition of the [crime charged]." Jackson v. Bennett, 2002 WL 1770781, at *7 (S.D.N.Y. July 31, 2002); accord Ponnapula, 297 F.3d at 182 ("Our federal constitution does not dictate to the state courts precisely how to interpret their own criminal statutes."); Marsh v. Ricks, 2003 WL 145564, at *4 (S.D.N.Y. Jan. 17, 2003) ("It is well established that it is within the realm of the state court to define the conduct that constitutes one specific offense as opposed to another, and what punishment is merited for such conduct." (internal quotation marks and citations omitted)). A petitioner challenging a state courts' interpretation of a state criminal statute will be entitled to relief only if that interpretation was so novel that it was not clear at the time of the relevant conduct that the conduct was criminal, in violation of the "fair notice" aspect of the Due Process Clause. See Ponnapula, 297 F.3d at 183-84: accord United States v. Lainier, 520 U.S. 259. 266-67 (1997) ("the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal")

  The testimony in this case was that Torres's hand was "swollen," that it hurt "a lot," that the pain continued for six months, and that the swelling lasted a week. (Torres: Tr. 148, 160). The Appellate Division's holding that this was sufficient to constitute "physical injury," Rivera, 298 A.D.2d at 120, cannot be characterized as unexpected or novel given previous New York decisions finding similar injuries to fall within the definition of physical injury. See, e.g., People v. Smith, 283 A.D.2d 208, 208 (1st Dep't 2001) (sore bump and bruise and pain when eating for a week); People v. Pope, 174 A.D.2d 319, 321-22 (1st Dep't 1991) (throbbing pain in pinky finger for about a week); People v. Chesebro, 94 A.D.2d 897, 897-98 (3d Dep't 1983) (nose bleeds, tenderness, and soreness for three or four days); cf. In re Philip A., 49 N.Y.2d 198, 200 (1980) ("evidence that complainant was hit, that it caused him pain, the degree of which was not spelled out, caused him to cry and caused a red mark" insufficient to establish "substantial pain"). That Torres did not seek medical attention is not, as Rivera suggests, see Pet. Mem. at 2, dispositive under New York law. See, e.g., People v. Guidice, 83 N.Y.2d 630, 636 (1994) ("Lack of medical treatment is but a factor to consider. . . ."); see also Reid v. Miller, 2003 WL 22383097, at *6 (S.D.N.Y. Oct. 20, 2003) ("While [the victim's] injuries were not severe enough to require medical attention, a rational trier of fact could have believed there was sufficient evidence to prove beyond a reasonable doubt that [the victim] suffered physical injury.").

  In his appellate brief, Rivera cited various cases to support his argument that Torres's injuries were insufficient. Pet. App. Brief at 23-24. None of these cases suggest that Rivera did not have "fair notice" that his conduct was criminal. For example, Rivera cited cases in which the victim did not indicate the degree or duration of the pain suffered, People v. Cheeks, 161 A.D.2d 657, 657 (2d Dep't 1990); the victim waited two days to seek medical treatment and then was treated for a preexisting condition, People v. Anderson, 143 A.D.2d 760, 761 (2d Dep't 1988); and the victim was only "slightly bruised," "bleeding a little bit," and "[a] little sore, that's all," People v. Thomas, 160 A.D.2d 968, 969 (2d Dep't 1990). In contrast, Torres testified that his hand hurt "a lot," was swollen for a week, and continued to hurt for six months. (Torres: Tr. 160). Thus, the statute placed Rivera on notice that his conduct was criminal. In addition, viewing the evidence in the light most favorable to the prosecution, a rational jury in this case could have found that the prosecution proved "physical injury" within the meaning of the statute.

  B. Partiality of Juror Five

  As detailed above, juror Hector Camacho brought to the trial court's attention a message from his son indicating that he may have had an indirect relationship to Rivera. (Tr. 130-42). After full inquiry, defense counsel maintained that Camacho should remain on the jury. (Tr. 140). Following the verdict, Rivera brought a motion seeking to set aside the verdict based on further information regarding his relationship with Camacho. See Motion to Set Aside Affirm. The trial court denied the motion without holding a hearing. See 330.30 Decision.

  On appeal, Rivera argued that this failure to hold an additional evidentiary hearing violated his Sixth and Fourteenth Amendment rights. See Pet. App. Brief at 28-36. The Appellate Division disagreed, holding:

The court properly declined to hold a hearing on defendant's motion to set aside the verdict made on the ground of allegedly improper behavior of a juror. Defendant's factual averments did not support the claim that the juror was biased, since, even accepting defendant's self-serving and patently incredible claims regarding his postverdict enhanced recollection of his relationship with the juror, he provided no basis to believe that the juror similarly remembered the alleged relationship. We note that, during the trial, the juror raised the possibility of an indirect relationship with defendant, but defendant objected to the juror's removal.
Rivera, 298 A.D.2d at 120.

  Rivera has not shown that the decision not to hold a hearing on his motion to set aside the verdict was "contrary to" or "an unreasonable application of clearly established federal law. It is true that the Supreme Court "has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. 209, 215 (1982): accord Remmer v. United States, 347 U.S. 227, 229-30 (1954) ("The trial court . . . should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate."). However, a court is not required to hold a hearing in every instance in which juror impartiality is alleged. See, e.g., United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) ("The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality." (internal quotation marks and citations omitted)); see also Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994) (trial judge accorded "broad discretion" in treating charges of juror misconduct), cert. denied, 514 U.S. 1066 (1995).

  In this case, the trial court actually held a hearing as soon as Camacho brought his potential relationship with Rivera to the court's attention. (Tr. 130-34). The court questioned the juror as to his ability to continue to serve on the jury and instructed him to gather additional information. (Tr. 132-34). The court was assured that Rivera knew nothing about the possible connection. (Tr. 133-36, 178, 183). Defense counsel insisted that Camacho should remain on the jury, even when confronted with the judge's and the prosecutor's expressed concerns. (Tr. 135-40). The trial court provided both sides the opportunity to question Camacho directly and was satisfied that there was no need to remove him from the jury. (Tr. 176-85). Thus, Rivera was afforded the opportunity to closely examine the potential relationship and to establish Camacho's bias in accord with Phillips, 455 U.S. at 215, and other relevant Supreme Court precedent.

  Having provided Rivera this opportunity to challenge Camacho's impartiality, there was no need for the court to hold an additional hearing after Rivera came forward with his "refreshed" recollection of his relationship with Camacho. As the Appellate Division stated, even if all of Rivera's claims in his motion to set aside the verdict were accepted as true, there was still no reason to believe that Camacho was biased. Rivera, 298 A.D.2d at 120. This finding is entitled to a presumption of correctness that may be overcome only by "clear and convincing" evidence. 28 U.S.C. § 2254(e)(1): see Rushen v. Spain, 464 U.S. 114, 120 (1983) (per curiam) ("The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to [a] presumption [of correctness]."); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 813 (2d Cir. 2000) ("On § 2254 review, the state trial court is entitled to a presumption of correctness with respect to its conclusion that the jury was impartial."); see also Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984) ("[W]hether a juror can in fact [be impartial] is a determination to which habeas courts owe special deference." (citations omitted)). Even accepting all of Rivera's allegations as true, Rivera has not shown by clear and convincing evidence that the finding of impartiality was incorrect. This is particularly so given Camacho's statements that he did not recognize Rivera (Tr. 132, 183), did not know the name of his ex-wife's boyfriend (Tr. 133), had not seen the boyfriend in ten to twelve years (Tr. 180), and that any relationship would not affect his judgment (Tr. 132, 182-84). It is also reasonable to view as patently incredible that Rivera — having been told of the precise alleged relationship between himself and Camacho — would have determined only after the verdict that he in fact remembered Camacho.

  C. Second Interpreter

  Rivera's final claim is that the trial court's failure to provide him with a second interpreter during the testimony of the Spanish-speaking witnesses deprived him of his right to confront witnesses, his right to be present at trial, and his right to effective assistance of counsel. Petition at 4; Pet. Mem. at 4-5; see also Traverse at 5-6. He also maintains that granting the request only to the extent an interpreter was available was an improper delegation of judicial authority. Pet. Mem. at 4-5; Traverse at 5. On appeal, the Appellate Division held that "[t]here is no basis on this record to find that the court was required to provide a second Spanish interpreter for defendant during the testimony of Spanish-speaking witnesses." Rivera, 298 A.D.2d at 120 (citing People v. Cinero, 243 A.D.2d 330, 331 (1st Dep't 1997); People v. Marrero, 156 A.D.2d 141, 142 (1st Dep't 1989)).

  While the Supreme Court has not directly spoken on the issue, case law is clear that a non-English-speaking defendant has a constitutional right to a court-appointed interpreter. This right has been grounded in several areas of Supreme Court jurisprudence, including the right to cross-examine witnesses, Pointer v. Texas, 380 U.S. 400, 404-05 (1965); the right to consult with counsel, Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"); and the right to "stand[] equal before the law," Gideon v. Wainwright, 372 U.S. 335, 344 (1963). See United States ex rel. Negron v. New York, 434 F.2d 386, 389-91 (2d Cir. 1970). In Negron, the Second Circuit held that a defendant has a constitutional right to an interpreter, indicating that the failure to provide an interpreter to a criminal defendant also constitutes a denial of the defendant's right to be present at trial:

[T]he right that was denied Negron seems to us even more consequential than the right of confrontation. Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial, see, e.g., Lewis v. United States, 146 U.S. 370, 372 (1892), unless by his conduct he waives that right. See, e.g., Illinois v. Alien, 397 U.S. 337 (1968).
Not only for the sake of effective cross-examination, however, but as a matter of simple humaneness, Negron deserved more than to sit in total incomprehension as the trial proceeded.
434 F.2d at 389-90: see also Sin v. Fischer, 2002 WL 1751351, at *2 (S.D.N.Y. July 26, 2002) ("It would be an `unreasonable application' of [Supreme Court law] if a court, absent compelling necessity, denied a non-English speaking defendant the right to understand the proceedings against him, or to consult with counsel during his trial.").

  In this case, Rivera attempts to analogize his situation to that in Negron by asserting that the failure to provide him with a second interpreter during the testimony of the Spanish-speaking witnesses left him "isolated" and limited his role at trial "to an uncomprehending spectator." Pet. Mem. at 5. However, the two situations are completely different. In Negron, the interpreter's assistance in pre-trial preparation and in the trial was "spasmodic and irregular." 434 F.2d at 388. When the interpreter — who was employed by the prosecution — was present she would only summarize the testimony of English-speaking witnesses for the defendant after-the-fact. Id. The defendant was never provided with simultaneous translation of court proceedings. Id. During Rivera's trial, an interpreter was present at all times. When witnesses spoke in English, the interpreter translated for Rivera. When witnesses spoke in Spanish, the interpreter translated for the court, counsel, and the jury. It is undisputed that Rivera understood the testimony given in Spanish without the aid of the interpreter. (See Tr. 45). On at least one occasion, the interpreter asked for permission to translate the court's instructions for Rivera (Tavares: Tr. 98-99), indicating that the interpreter remained available to assist Rivera in understanding the court or communicating with his attorney while translating the testimony of Spanish-speaking witnesses. During the trial, neither Rivera nor his counsel complained of an inability to communicate or an inability to understand the court proceedings.

  Rivera has pointed to no case law suggesting that there is any federal constitutional requirement of a second interpreter in this situation and the court is aware of none. A number of courts have specifically rejected the claim that a criminal defendant has a constitutional right to the assistance of a second interpreter for the purpose of facilitating communication with counsel. See, e.g., United States v. Johnson, 248 F.3d 655, 663-64 (7th Cir. 2001); United States v. Bennett, 848 F.2d 1134, 1140-41 (11th Cir. 1988): Sin. 2002 WE 1751351. at *3: Suarez v. Stinson, 1999 WE 335373, at *6-*7 (S.D.N.Y. May 26, 1999).

  During his trial, Rivera did not even complain that he needed an additional interpreter to communicate with counsel but rather complained that he needed one to check the accuracy of the court-appointed interpreter (Tr. 47). Apart from the fatal lack of federal constitutional support for Rivera's claim, it suffers from a logical flaw inasmuch as it implicitly attacks the premise — accepted universally in the court system and in case law — that a court-appointed interpreter is capable of providing an accurate translation. No evidence or even argument having been adduced in support of the attack on this underlying premise, Rivera's claim must fail.

  Finally, in light of the conclusion that Rivera had no federal constitutional right to a second interpreter, his claim that the court improperly delegated judicial duties by granting his request only to the extent an interpreter was available, see Pet. App. Brief at 39-41, raises only an issue of state law and thus presents no federal claim reviewable by this Court, see, e.g., 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

  Conclusion

  For the foregoing reasons, Rivera'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. P. Kevin Castel, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Castel. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

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