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June 16, 2004.

MARVIN PEAKES, Petitioner,
ELIOT SPITZER, New York State Attorney General, & J. ALLARD, Superintendent, Franklin Correctional Facility, Respondents.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Richard M. Berman, United States District Judge:

Pro se petitioner Marvin Peakes*fn1 seeks a writ of habeas corpus from his June 5, 2000 conviction of second degree robbery and sentence of fifteen years imprisonment (Dkt. No. 1: Pet. ¶¶ 1-4), which was reduced by the First Department to ten years imprisonment, People v. Peaks, 297 A.D.2d 578, 578-79, 747 N.Y.S.2d 170, 170 (1st Dep't 2002).

  Peakes' habeas petition raises three grounds: (a) the trial court's refusal to instruct the jury on the lesser included offense of third degree robbery denied Peakes his due process right to a fair trial (Pet. ¶ 12(A)); (b) the fifteen-year sentence was harsh and excessive given Peakes' non-violent criminal history and the fact that the complainants suffered no injuries (Pet. ¶ 12(B)); and (c) the prosecutor's cumulative misconduct during summation deprived Peakes of a fair trial (Pet. ¶ 12(C)).

  For the reasons set forth below, Peakes' habeas petition should be DENIED.


  The Prosecution Case at Trial

  On the morning of December 20, 1998, complainants Francisco and Jean Tabone, a middle-aged married couple from Long Island, were walking south on Seventh Avenue in Manhattan toward Penn Station, when petitioner Peakes approached Mrs. Tabone, who was walking several paces ahead of her husband (J. Tabone: Trial Transcript ["Tr."] 168-69, 179-80; F. Tabone: Tr. 197, 198-99, 209.) Peakes said to Mrs. Tabone, "`I have a gun. Give me your money. I'm going to shoot.'" (J. Tabone: Tr. 169-70, 183-85.) Peakes had his hand in his pocket, which led Mrs. Tabone to believe that he actually did have a gun, although she never saw it. (J. Tabone: Tr. 169-70, 187-88.) Terrified, Mrs. Tabone turned to her husband and screamed: "`He's got a gun. He's going to shoot. Give him your money.'" (J. Tabone: Tr. 171, 185-86.) At that point, Peakes approached Mr. Tabone, pushed him up against the side of a building, and said, "`I have a gun in my pocket. If you don't hand over your money, I'm going to kill you.'" (F. Tabone: Tr. 200-01; J. Tabone: Tr. 171-72, 189, 193-94.) Peakes jabbed Mr. Tabone in the stomach with what Mr. Tabone assumed was a gun in Peakes' pocket. (F. Tabone: Tr. 201-03, 208, 211, 214-15.) Mr. Tabone gave Peakes the money from his wallet, about $80 to $100. (F. Tabone: Tr. 203-04, 213.) Peakes took the money with the other hand than the one in which he was pretending to hold the gun. (F. Tabone: Tr. 208.) After taking the money, Peakes walked uptown. (F. Tabone: Tr. 213.)

  The Tabones located Police Officer Michael Pfeffer outside of Macy's and informed him of what had happened. (J. Tabone: Tr. 173-74; F. Tabone: Tr. 204; Pfeffer: Tr. 253-54.) Officer Pfeffer relayed the Tabones' description of Peakes by radio to police in the area. (F. Tabone: Tr. 205; Pfeffer: Tr. 254.) Officers James Wojcik and Ronald Weintraub apprehended Peakes. (Wojcik: Tr. 218-23, 228.) Officer Thomas Davis drove to Officer Pfeffer's post, picked up the Tabones, and brought them to where Peakes was being held. (J. Tabone: Tr. 174-75; F. Tabone: Tr. 206; Davis: Tr. 238-39, 244; Pfeffer: Tr. 255; Stelmok: Tr. 265-67.) The Tabones positively identified Peakes from the police car. (J. Tabone: Tr. 175-76; F. Tabone: Tr. 206-07; Davis: Tr. 241.) The officers took Peakes into custody, and at the precinct searched him and recovered $118 from his jacket pockets, but no gun. (Wojcik: Tr. 227; Stelmok: Tr. 265, 268-70.) The parties stipulated that "the person who approached the Tabones and the person who was stopped by the police are both the defendant in this case, Mr. Marvin Peakes." (Tr. 246.)

  Both Mr. and Mrs. Tabone identified Peakes at trial as the robber. (J. Tabone: Tr. 172-73; F. Tabone: Tr. 205-07.)

  The Defense Case at Trial

  Marvin Peakes' testimony in his own defense was markedly different from the Tabones' in four respects. First, Peakes testified that he did not rob the Tabones but merely asked them for change for a twenty-dollar bill, since he had been propositioned by a prostitute who offered to charge him $10 or $15. (Peakes: Tr. 286-88, 298, 306-07, 325.) Second, Peakes testified that he never had his hands in his pockets, except to retrieve the twenty-dollar bill to give to Mr. Tabone, and never expressly said or intimated that he had a gun. (Peakes: Tr. 291, 305, 309, 311-12, 314, 325-28.) Third, Peakes testified that he possessed forty dollars before even approaching the Tabones and assumed that Mr. Tabone had mistakenly given him seventy-eight dollars out of sympathy, believing Peakes to be a "bum or derelict." (Peakes: Tr. 288-89, 297-98, 309-10.) Finally, Peakes testified that he did not push Mr. Tabone up against a wall or touch him in any way. (Peakes: Tr. 311-12, 330-31.) He also testified that while Mr. Tabone might have thought he was going to rob him because he (Peakes) is black, he had no reason to rob Mr. Tabone, since he had $16,000 in the bank, owned a house, and earned over $500 per week at his job. (Peakes: Tr. 331-32.)

  The Charge Conference

  At the charge conference outside the jury's presence, defense counsel requested instruction of the lesser included offense of third degree robbery. (Tr. 336.) The prosecutor argued that "[a]ccording to the defendant's own testimony, it would be [the prosecution's] position that it's really robbery in the second degree or nothing." (Tr. 336.) The judge initially agreed with the prosecutor but then asked for defense counsel's rationale. (Tr. 336.) Defense counsel argued that the jury could accept the Tabones' testimony that they felt "threatened [and] coerced" but reject the Tabones' testimony about the "simulated weapon." (Tr. 336.) The judge asked what evidence there was to show "use or threat of an immediate use of physical force," if the jury disbelieved the Tabones' testimony "about the gun." (Tr. 337.) Defense counsel cited Mr. Tabone's testimony of being "pushed up against the wall and touched at some point" and feeling "scared and . . . threatened." (Tr. 337) The prosecutor countered that any threat or coercion was due to Peakes' use of a simulated weapon, arguing that "it was the gun that actually put [Mr. Tabone] up against the wall." (Tr. 337.) Defense counsel responded that Mr. Tabone's testimony was unclear and inconsistent with his grand jury testimony regarding whether he could tell "if there was anything in the pocket or he thought there was a gun." (Tr. 337-38.) Defense counsel offered to look for case law supporting the defense's position. (Tr. 338.) The judge allowed defense counsel to conduct her research, and told both attorneys his "standard instruction" for robbery in the second degree:
[W]hat I plan on saying is, the Penal Law speaks about what appears to be a pistol. This means to display anything that appears to be such, though held inside a coat or otherwise obscured. Covered by this section of the Penal Law the defendant does consciously display something which could reasonably be conceived as a firearm, or for the purpose of defending or overcoming resistance. This must be witnessed in some manner by the victim. For example, it must appear to the victim that he is threatened by the firearm by sight, threat or sound.
(Tr. 339.) The following day, immediately prior to closing arguments, the judge asked defense counsel if she had found any case law on the lesser included offense charge; defense counsel answered "[n]o," and "rest[ed] on the record." (Tr. 341.) The judge ruled that he would give the jury only "the top count . . . [t]he only count," second degree robbery. (Tr. 341.)

  The Defense Summation

  Defense counsel's closing argument addressed the Tabones' credibility. (Def. Summation: Tr. 356-66) Defense counsel described Mrs. Tabone as an "out-of-towner[]" on an "excursion" who, because she was not accustomed to being solicited for money, ultimately became "hysterical," "overreacted," and "jumped to the wrong conclusion." (Def. Summation: Tr. 356-60.) Defense counsel argued that "maybe [Mr. Tabone was] a little embarrassed he gave his money over right away," and perhaps he did feel threatened and as if he were being robbed, but, in fact, it was merely an incident that "got blown out of proportion" and "was something it never was." (Def. Summation: Tr. 362-63, 366.) Defense counsel described the incident:
. . . [T]he Tabones, let's be fair, they're here on a nice weekend. They just saw a nice show and went to a nice dinner. They're having a good time. They don't want this. They don't need this. They were approached by a guy[,] they felt threatened and frightened and they wanted him to go away. Maybe they thought they were being robbed and they gave the money and they looked at each other, what happened? We were robbed and we better talk to the police. [The Tabones] knew they never voluntarily would turn over seventy, eighty dollars, so they spoke with the police and the police said, "Was there a weapon"? Well, maybe, there might have been and this snowball starts rolling down the hill out of control.
(Def. Summation: Tr. 363-64.)

  The Prosecution Summation

  In his closing argument, the prosecutor argued that the jury needed to decide whether Peakes was telling the truth:
[A.D.A.] O'ROURKE: [W]hat does this trial come down to? Well, we always have to prove our case beyond a reasonable doubt. That is the People['s] burden. But when the defendant takes the stand and testifies and says, no, it didn't happen that way, the job of the jury becomes very crystal clear as fact finders, who is being truthful, and whose story fits and makes sense?
[DEFENSE COUNSEL]: Judge, that's not the standard.
THE COURT: Overruled.
(State Summation: Tr. 369.)

  The prosecutor attacked Peakes' credibility by pointing out the lack of corroborating evidence to support Peakes' testimony that he owned a house, possessed a bank account, and that he had a relative that he claimed was the reason he had come into New York from New Jersey: [A.D.A.] O'ROURKE: . . . There's no evidence besides the defendant's words about owning a house. They have no burden, but there's no evidence to support —

  [DEFENSE COUNSEL]: Objection.

  THE COURT: Overruled.

[A.D.A.] O'ROURKE: — there's no evidence to support these things he said to you. . . .
(State Summation: Tr. 369-70.)
[A.D.A.] O'ROURKE: [Peakes] needs to explain a lot of different things to you to try to come across as credible. That's what he needs to do. So he has to explain first why he's in Manhattan, okay? It's Christmas season. I was bringing Christmas presents up to my cousin early in the morning. A cousin, I believe, he's still in touch with. A cousin who could easily have been here.
THE COURT: Overruled.
. . .
[A.D.A.] O'ROURKE: [Peakes] gives you all of these explanations. That he's trying to explain all this stuff. Why would I want to do a robbery? I got money. There's no evidence of that.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: He has no burden. But wouldn't it be important, couldn't you bring in a bank statement? There's no evidence of that. It's nonsense.
(State Summation: Tr. 377-79.) The prosecutor attempted to undermine the significance of Peakes' sworn testimony:
[A.D.A.] O'ROURKE: [T]he defendant is a convicted felon. What can you do with that? Well, no one is asking anybody to say because somebody is convicted of a crime that they would ever commit another crime. Nobody is asking that. But what does it mean? It means that this person when it's good for him Marvin Peak[e]s is willing to put all of his interests above the rest of a community, above the rest of society. An oath, an affirmation, swearing to tell the truth is not something that's going to put Mr. Peak[e]s on that stand and say well, you know I did target Mrs. Tabone. I saw her alone. I saw her probably going towards Macy's. I figured she had a pocketful of money and that's why I went to take her off. I went to rob her. I never expected the husband to come on, but when he did I had to react to that and you know what? I'm sorry. That's not what happens in every day life. That's what happens on TV. That's what happens in scripts. In movies. I have been doing this for nearly five years —
THE COURT: Overruled.
[A.D.A.] O'ROURKE: Never once have I ever seen in any courtroom somebody come and breakdown during cross-examination, during the cross-examination —
THE COURT: Overruled.
[A.D.A.] O'ROURKE: — and say, okay, you got me. I actually did rob him. I had the gun. They don't do that and don't expect that.
(State Summation: Tr. 385-87.)

  The prosecutor continued by arguing for the Tabones' credibility: I submit to you, [the Tabones are] honest, careful and they're thoughtful about their testimony and it makes sense.

 (State Summation: Tr. 375.)

[A.D.A.] O'ROURKE: [Defendant's case] means that the Tabones are liars. . . . They didn't misunderstand . . . Mr. Tabone worked for the Sanitation Department for 35 years. There's not some clash of cultures. Mr. Tabone is just a hard working regular guy.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: And this clash of cultures [the defense goes] into is turning into a gun-point robbery? . . . You just don't get there from the Tabones' testimony.
(State Summation: Tr. 380-81.) The prosecutor also commented on the disinterestedness of the Tabones. (State Summation: Tr. 383: "[T]here is no motive ...

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