United States District Court, E.D. New York
June 22, 2004.
RAMON DURAN, Petitioner,
DAVID MILLER, Superintendent, Eastern N.Y. Correctional Facility, Respondent.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Ramon Duran ("Duran" or "Petitioner"), appearing pro se,
petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons set forth below, the Court denies
Duran's petition in its entirety.
On January 22, 1998, at approximately 10:25am, Ramona Duran
("Ramona"), who is no relation to Petitioner Ramon Duran, was
feeding her baby in her apartment in Baldwin, New York, when she
heard a knock on her door. Thinking that her husband was coming
back, she opened the door and Ramon Duran and his four
accomplices pushed their way into her apartment, demanding money
from her at gunpoint. The assailants began to tie up Ramona with
duct tape as she screamed for her baby and for help from her
brother-in-law Anastacio Rodriguez ("Rodriguez").
Rodriguez came out of the rear bedroom dressed only in his
underwear. His attackers forced him back into the bedroom, bound
his hands with duct tape, and demanded money from him by pointing
a gun to his head. When Duran and his accomplices returned to the
main room and proceeded to pillage the apartment, Rodriguez
managed to free himself from the duct tape and escaped the
apartment from a rear exit. Rodriguez ran down the street in his
underwear and screamed for help. Upon noticing that Rodriguez was
missing, Duran and his accomplices fled the apartment with
approximately $900 in cash and several pieces of personal
From across the street, Kenneth Gasbarro ("Gasbarro") saw the
intruders running from the apartment and he decided to follow
them. He entered his car, dialed 911, and relayed to the police
the license plate numbers of the two cars in which the
perpetrators left. One of the licenses plates led police to Jose
Gutierrez ("Gutierrez"), who was one of the intruders. Gutierrez
confessed to the crimes and implicated Duran and the others.
After being identified by Gutierrez, Duran was approached by
detectives who inquired about his name and informed him that he
"had a problem . . . a couple of weeks ago with Jose and his
car." Resp't Br. to App. Div. at 6 (citing Hearing Tr. at 43,
243). Duran responded that he owned the car and that he had
recently purchased the car from Gutierrez. Insisting that "it's
my car, it's my car, I bought it" Id., Duran showed detectives
the car. Matching the car to the one used in the robbery, the
police arrested Duran.
After being advised of and waiving his Miranda rights in
Spanish, Duran confessed in Spanish to his role and that of his
accomplices in entering Ramona's apartment by force and stealing
Ramona and Rodriguez's belongings. Detective Robert DePietro, a
native Portuguese speaker who was also served as a
Spanish/English Interpreter for the Nassau County Police
Department, "reduced to writing [Duran's] admission, translating
[Duran's] words, verbatim, from Spanish to English . . . [and]
then read the statement back to [Duran] in Spanish." Id. at 8.
Detective DePietro also read to Duran the following written
statement: "I have given this statement to Det. DePietro in
Spanish and he has written for me in English, Det. DePietro has
read it back to me in Spanish and it is the truth." Pet'r
Confession at 2. Duran signed his name after this statement and
again at the end of the confession. Detective DePietro also
signed the confession as a witness.
In addition, Detective DePietro showed victim Anastacio
Rodriguez "an array of six photographs, including Petitioner's,
depicting Hispanic men of similar age and appearance and asked
Rodriguez if he recognized anyone." Resp't Mem. at 7. Rodriguez
identified Duran as one of the intruders who pointed a gun at him
and demanded money.
Duran was charged with Robbery in the First Degree, Robbery in
the Second Degree, Burglary in the First Degree, Burglary in the
Second Degree, and Criminal Possession of a Weapon in the First
Degree in violation of New York Penal Law §§ 160.15,
160.10, 140.34, 140.25, and 265.09, respectively. He
moved to suppress his confession as involuntary, the recovered
"get away" car as illegally seized, and Rodriguez's
identification of Duran as his assailant as unduly suggestive.
After a pre-trial hearing, the court denied Duran's motion.
On October 13, 1998, following a jury trial in Nassau County
Court (Kowtna, J.), Ramon Duran was convicted of all the counts
in the indictment. On April 28, 1999, Duran was sentenced to
three concurrent terms of incarceration of twelve to twenty-four
years for his convictions for first degree robbery, burglary, and
criminal possession of a weapon. He was also sentenced to serve
concurrently seven and one half to fifteen years for each of his
second degree robbery and burglary convictions.
Duran directly appealed his convictions, arguing that: "(1)
[his] statement was obtained in violation of his constitutional
rights because although he was read his rights in Spanish, his
statement was written in English, which he could not read; (2)
the court erred in not permitting [him] to call Anastacio
Rodriguez as a witness at the pre-trial hearing so that he could
be questioned about his identification of [Duran] from a photo
array; (3) [he] was denied the effective assistance of trial
counsel because counsel failed to move to preclude, for lack of
notice, an oral statement [Duran] made [about ownership of the
getaway car] to the police prior to the arrest; (4) inflammatory
remarks made by the prosecutor during his opening, summation, and
cross-examination of a defense witness denied [Duran] a fair
trial; (5) [his] guilt was not proven beyond a reasonable doubt
and the verdict was against the weight of the evidence; and (6)
[his] sentence was unduly harsh and should be reduced in the
interest of justice." Resp't Aff. at 4.
On November 13, 2001, the Appellate Division, Second
Department, affirmed Duran's convictions. People v. Duran,
288 A.D.2d 319, 734 N.Y.S.2d 451 (2d Dept. 2001). Specifically, the
Appellate Division held that Duran's written confession in
English was properly admitted into evidence at the trial. By a
letter dated November 29, 2001, Duran sought leave to appeal to
the New York Court of Appeals and he raised all six arguments
from his direct appeal. On January 24, 2002, the New York Court
of Appeals denied Duran leave to appeal his convictions. People
v. Duran, 97 N.Y.2d 704, 739 N.Y.S.2d 104 (2002). Duran did not
seek certiorari review before the United States Supreme Court or
file any post-conviction motions.
On January 17, 2003, Duran filed the instant petition with this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
arguing: (1) the court erred in failing to suppress his
confession and that his confession was involuntary because it was
written in English and he could not verify its accuracy as he
only read Spanish; (2) the court improperly denied his motion to
call victim Anastacio Rodriguez to testify at the pre-trial
Wade hearing as to his identification of Petitioner; (3) he was
denied the effective assistance of trial counsel because counsel
did not make a pre-trial motion to preclude the People's use of
his oral statements about owning the car identified to be the one
used in the robbery and counsel did not effectively cross-examine
the detective about these statements; and (4) the prosecutor
engaged in misconduct by making inflammatory remarks and deprived
Petitioner of his right to a fair trial. Because Duran's petition
is timely under the Anti-terrorism and Effective Death Penalty
Act of 1996 ("AEDPA") and all of Petitioner's claims have been
exhausted in state court, the Court will address the merits of
Petitioner filed this action after the April 24, 1996, the
effective date of AEDPA and therefore, its provisions apply to
his case. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1479,
146 L.Ed.2d 389 (2000).
Under the provisions of 28 U.S.C. § 2254(d), a habeas corpus
application must be denied unless the state court's adjudication
of the claim on the merits either "resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court," or "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).
A decision is "contrary to" established federal law if it
either "applies a rule that contradicts the governing law set
forth in [a Supreme Court case], or confronts a set of facts that
are materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from their
precedent." Penry v. Johnson, 532 U.S. 782, 792,
121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (citing Williams, 529 U.S. at
405-406). A decision is an "unreasonable application of" clearly
established Supreme Court precedent if it "correctly identifies
the governing legal rule but applies it unreasonably to the facts
of a particular prisoner's case." Penry, 532 U.S. at 792
(citing Williams, 529 U.S. at 407-408).
I. As to Whether Petitioner's Confession Was Involuntary
Petitioner claims that the state court erred in failing to
suppress his confession and that his confession was "involuntary"
under the standards set forth in Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However,
Petitioner's case differs from traditional Miranda cases
because Petitioner does not attack his decision to speak to the
police or his waiver of his Miranda rights. See Pet. at 8;
Pet'r Mem. at 16-17.
Rather, Petitioner challenges the accuracy of Detective Robert
DePietro's translation of his confession from Spanish to English
and Detective DePietro's ability to translate because he was a
native Portuguese speaker and was serving a "dual role as
inquisitor and interpreter." Pet'r Mem. at 18. Petitioner claims
that the confession "can not be deemed voluntary" because he
could not speak English and could not personally read the
confession to verify the accuracy of his statements. Pet. at 8.
As to the alleged inaccuracies, Petitioner notes two errors:
Detective DePietro initialed a corrected misspelling of the word
"Hispanic" and the date of the crime was noted as January 1997,
The "ultimate question whether, under the totality of the
circumstances, the challenged confession was obtained in a manner
compatible with the requirements of the Constitution is a matter
for independent federal determination." Miller v. Fenton,
474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985); see also
Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997). In the
context of federal habeas review, a state court's determination
of factual matters, "such as the length and circumstances of the
interrogation, the defendant's prior experience with the legal
process, and familiarity with the Miranda warnings," is
entitled to a presumption of correctness under
28 U.S.C. § 2254(d), provided that such matters are fairly supported in the
record. Miller, 474 U.S. at 117.
The "admission of a voluntary, translated confession, in the
proper factual circumstances . . . is neither contrary to nor an
unreasonable application of Supreme Court law." Ventura v.
Artuz, No. 99 Civ. 12025 (AJP), 2000 WL 995497 at *7 (S.D.N.Y.
July 19, 2000). In Ventura, the court found that that detective
was able to speak both Spanish and English and "literally
translated [the petitioner's] sentences in English as [the
petitioner] spoke." Id. at *7. The petitioner "signed the
English version of his translated statement after listening to it
read in Spanish and declining to make any changes." Id. The
Ventura court denied the habeas petition and held that the
state court's admission of the translated confession was not an
"unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." Id. at *7 (quoting
28 U.S.C. § 2254(d)(2)).
The facts in this case are similar to those in Ventura.
Detective DePietro was also able to speak both English and
Spanish. In fact, Detective DePietro attended a course for
Spanish interpretation and was an official Spanish/English
Interpreter for the Nassau County Police Department. Detective
DePietro translated Petitioner's confession "in a contemporaneous
fashion" into English by writing Petitioner's "words, verbatim,
from Spanish to English." Resp. Br. to App. Div. at 8. He then
read the statement back to the Petitioner in Spanish and gave him
"an opportunity to indicate any lack of understanding or indicate
any disagreement with the statement" prior to Petitioner signing
The Petitioner declined to make any changes to his statement
and he did not contest the accuracy of Detective DePietro's
translation at the time of his confession. He signed the
confession and made the following statement: "I have given this
statement to Det. DePietro in Spanish and he has written for me
in English, Det. DePietro has read it back to me in Spanish and
it is the truth." Pet'r Confession at 2. As to the misspelled
word "Hispanic," the Court notes that Detective DePietro and the
Petitioner both initialed next to the correct spelling. The Court
also believes that the date of January 1997, instead of 1998, was
an unintentional mistake and does not detract from the accuracy
of the Petitioner's other statements in the confession. The
Petitioner presents no other evidence that the translation was
otherwise inaccurate or "subject to serious errors and mistakes."
In addition, the Petitioner cannot claim, in hindsight, that
Detective DePietro was unable to translate his confession because
he was a native Portuguese speaker. The Petitioner had a full and
fair opportunity to litigate this claim in state court and
challenge Detective DePietro's ability to translate his
confession. This Court must attach a presumption of correctness
to the state court's factual findings that Detective DePietro's
translation was accurate. Also, the Petitioner's contention that
he had a constitutional right to have the "opportunity to write
his own statement in Spanish," Pet'r Mem. at 30, is without
Moreover, the Petitioner acknowledges that he waived his
Miranda rights. He contests only the accuracy of his translated
confession, not whether his statement was voluntarily given in
Spanish to Detective DePietro. See People v. Duran, 288 A.D.2d 319,
734 N.Y.S.2d 451 (2d Dept. 2001) (holding that "the fact
that the statement was translated from Spanish into English by a
detective affects only the weight to be given to the statement by
the jury, and is not relevant to the County Court's determination
that the statement was voluntarily given") (citations omitted);
People v. Montero, 273 A.D.2d 128, 709 N.Y.S.2d 552 (1st
Dept. 2000) (finding that "the fact that defendant understood no
English did not render the confession inadmissible, since the
detective translated the statement verbatim, into Spanish for
defendant before defendant adopted it as his own statement by
signing it . . . [and] the accuracy of the detective's recording
and translation of the statement were factual issues for the
jury"). The Court also notes that defense counsel argued in his
summation that the transcript was not accurate, stating: "would
you sign a contract that you couldn't read?" Trial Transcript
("Tr.") at 478. Counsel also emphasized that it was "the police
department's responsibility to take an accurate statement." Tr.
Therefore, this Court finds that Petitioner voluntarily gave
his confession and the state court's denial of his motion to
suppress his statement was not an "unreasonable application" of
clearly established federal law. Accordingly, the Court denies
the Petitioner's claim that the state court erred in failing to
suppress his confession.
II. As to Petitioner's Motion to Call the Complainant as a
Witness at the Wade Hearing
The Petitioner claims that he was "denied the right to
challenge the constitutionality of the identification procedure
for any hints' subterfuges, or undue suggestiveness" when the
trial court denied his Chipp application to call victim
Anastacio Rodriguez to testify at the pre-trial suppression
hearing. The Petitioner asserts that Rodriguez's testimony was
necessary because "Detective DePietro conducted the photo pack
procedure only with the victim Anastacio Rodriguez, never
call[ed] the other victim Ramona Duran, and the procedure was
conducted without the presence of any other police personnel."
Pet'r Mem. at 20.
In People v. Chipp, 75 N.Y.2d 327, 337, 553 N.Y.S.2d 72,
cert. denied, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70
(1990) the New York Court of Appeals held that a defendant does
not have "an absolute right to compulsory process" at a Wade
hearing. Citing policy concerns, the Court noted that affording
such a right "would enable defendants to harass identifying
witnesses and to transform the hearing into a discovery
proceeding neither authorized nor contemplated by the
Legislature." Id. at 337. Therefore, "absent some indication
that the pre-trial identification procedure employed was
suggestive, a hearing judge may properly preclude a defendant
from demanding the appearance and testimony of a witness at the
Wade hearing." Rivalta v. Artuz, No. 96 Civ. 8043 (SAS), 1997
WL 401819 at *3 (S.D.N.Y. July 16, 1997).
As such, the state court's denial of the Petitioner's Chipp
application did not deprive him of a federal constitutional right
or address a matter of clearly established federal law as
required for habeas review. See Mitchell v. Fischer, No.
02-CV-6336 (JBW), 2003 WL 22952851 at *6 (E.D.N.Y. Oct. 20, 2003)
(holding that a defendant does not have an absolute right to have
a complainant produced at a Wade hearing); Heron v. People of
the State of New York, No. 98 Civ. 7941 (SAS), 1999 WL 1125059
at *10 (S.D.N.Y. Dec. 8, 1999) (finding that "under New York law,
it is well-settled that there is no absolute rule which requires
the identifying witness to appear at a Wade hearing when the
suggestiveness of the identification procedure is called into
question"). "Generally, the discretionary exclusion of an
identifying witness by a trial judge at a pre-trial hearing does
not rise to the level of constitutional error." Sorenson v.
Superintendent, No. 97 Civ. 3498 (NG), 1998 WL 474149 at *4
(E.D.N.Y. Aug. 7, 1998).
Moreover, this Court believes that the state court properly
acted within its discretion in denying the Petitioner's motion
and concluding that the identification procedure was not unduly
suggestive. The Court held that "the photographic displays . . .
were similarly composed of photographs of persons substantially
similar in age, having fairly comparable features and physical
characteristics so as to ensure fairness and reliability during
the course of the viewing process." Tr. at 306-307. Also, asking
only one of the two victims for an identification and having no
other police personnel supervise the procedure does not render
the identification "so suggestive as to raise `a very substantial
likelihood of irreparable misidentification.'" Mitchell, 2003
WL 22952851 at *5 (citing Jackson v. Fogg, 589 F.2d 1808, 111
(2d Cir. 1978)). In addition, both Anastacio Rodriguez, the
identifying witness, and Ramona Duran, the other victim,
testified at the trial and the Petitioner's counsel had ample
opportunity to cross examine them.
Accordingly, the Court denies this claim in that there is a
failure to raise a federal constitutional issue. See Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991) (federal habeas corpus relief does not lie for mere errors
of state law).
III. As to the Ineffective Assistance of Counsel Claim
Petitioner argues that he was denied his right to the effective
assistance of counsel when trial counsel did not make a pre-trial
motion to preclude his oral statements about owning the car which
was identified as the car used in the robbery. He claims that, at
the pre-trial hearing, counsel should have raised the People's
failure to notify him of its intent to use his oral statements,
pursuant to New York Criminal Procedure Law § 710.30. At the
trial, counsel did object to the introduction of these statements
during the testimony of Detective Carl Re. However, the trial
court held that the Petitioner had forfeited this claim by not
raising it at the pre-trial hearing.
The Respondent concedes that the People did not properly notify
Petitioner of its intent to use these statements under Section
710.30. Nevertheless, the Respondent argues that counsel was not
deficient because he appropriately objected at the trial. Rather,
the Respondent claims that the trial court erred in denying
counsel's motion and admitting Duran's oral statements.
To prevail on an ineffective assistance of counsel claim, a
petitioner must show that counsel performed deficiently and that
the deficiency caused actual prejudice to his or her defense.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). A petitioner may prove the deficiency prong by
establishing that defense counsel's conduct fell "outside the
wide range of professionally competent assistance," Strickland,
466 U.S. at 690, and may establish prejudice by showing a
"reasonable probability" exists that, but for the deficiency,
"the result of the proceeding would have been different." Id.
at 694. "A reasonable probability is one sufficient to undermine
confidence in the outcome of the trial or appeal." Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Strickland,
466 U.S. at 694).
Although the test for ineffective assistance of counsel
contains two prongs, the Supreme Court specifically noted that
federal district courts need not address both components if a
petitioner fails to establish either one. Strickland, 466 U.S.
at 697. In particular, "a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697.
This Court does not need to reach the issue of whether counsel
was deficient because Petitioner failed to prove that counsel's
actions actually prejudiced him. Petitioner's ownership of the
car was otherwise established by testimony that he led police to
his car and showed them his car keys. Petitioner also admitted
that he owned the "get away" car in his written statement to the
police. In addition, there was overwhelming evidence of
Petitioner's guilt, including Petitioner's written confession,
Rodriguez's identification of him as his attacker, and Gasbarro's
testimony that he saw Petitioner fleeing from the apartment after
the robbery. In light of this other testimony, the Court does not
believe that the admission of these oral statements caused the
Petitioner actual prejudice. Accordingly, the Court denies this
ineffective assistance of counsel claim.
IV. As to the Prosecutorial Misconduct Claim
Petitioner claims that the prosecutor's inflammatory remarks
deprived him of his right to a fair trial. Specifically, the
Petitioner refers to the following comments: (1) the prosecutor's
opening remark that "the victims [had] the American dream and
[Duran had] a twisted version of the American dream;" (2) the
prosecutor's description of the victim running down the street in
his underwear on a "nice and warm" day in January; and (3) the
prosecutor's alleged ridicule of the tee-shirt that the
Petitioner's girlfriend wore during her testimony. Further, he
asserts that the prosecutor "unfairly vouched for the police
officers" and "permeated [his comments] with sarcasm and
derogatory undertone" and the trial court continuously had to
reprimand the prosecutor for being argumentative.
In reviewing a claim of prosecutorial misconduct with regard to
a writ of habeas corpus, the appropriate standard of review is "a
narrow one of due process, and not the broad exercise of
supervisory power." Floyd v. Meachum, 907 F.2d 347, 353 (2d
Cir. 1990) (citing Darden v. Wainwright, 477 U.S. 168, 181,
106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). The alleged prosecutorial
misconduct must have caused the defendant "substantial prejudice"
so that it infected the entire trial with fundamental unfairness
and the resulting conviction was a denial of due process. United
States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999). A
prosecutor's remarks do not become a denial of due process
"unless they constitute `egregious misconduct.'" Id. (citing
Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868,
40 L.Ed.2d 431 (1974)).
In order to assess the impact of the prosecutor's comments, the
reviewing court must consider the totality of the circumstances.
United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038,
84 L.Ed.2d 1 (1985) (noting that the court must also review the
defense counsel's summation to see if the defendant "invited"
such a response); Fero v. Kerby, 39 F.3d 1462, 1474 (10th
Cir. 1994) (noting that the court should "look first at the
strength of the evidence against the defendant and decide whether
the prosecutor's statements plausibly `could have tipped the
scales in favor of the prosecution'") (internal quotations
omitted). Generally, inappropriate prosecutorial comments,
standing alone, are insufficient to reverse a conviction.
Young, 470 U.S. at 11.
This Court does not need to reach the issue of whether the
prosecutor demonstrated egregious conduct because the Petitioner
failed to establish that he suffered substantial prejudice as a
result of the prosecutor's comments. Assuming arguendo that the
prosecutor's remarks were inappropriate, there was overwhelming
evidence of Petitioner's guilt so that such comments would not
"have tipped the scales in favor of the prosecution." Fero, 39
F.3d at 1474. The Petitioner gave a written statement confessing
to committing these crimes; he admitted owning the "get away" car
used in the robbery; Kenneth Gasbarro saw Petitioner fleeing from
the robbery in the subject car; and the victims identified
Petitioner as their assailant. Moreover, the Court notes that the
trial court admonished the prosecutor in front of the jury when
he stated that the Petitioner had a "twisted American dream" and
the trial court instructed the jury to disregard that comment.
Tr. at 137.
As to his supporting the testimony of the police officers, the
prosecutor's comments were an appropriate response to the defense
counsel's remarks that Detective DePietro's conduct in
translating Petitioner's confession "was duplicitious, it's
misdirected, it was dangerous and it was unconstitutional. When
the interrogator becomes your interpreter, there is little hope
for justice." Tr. at 489.
Accordingly, the Petitioner failed to prove that the
prosecutor's comments were so prejudicial as to infect his entire
trial with fundamental unfairness. Accordingly, this claim of
prosecutorial misconduct is also denied.
For the reasons stated above, Duran's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its
entirety. Pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 2253(c)(2), a certificate of
appealability is denied, as Petitioner has not made a substantial
showing of a denial of a constitutional right. Miller-El v.
Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003); Luciadore v. New York State Div. of Parole,
209 F.3d 107, 112 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
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