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June 22, 2004.

JOSE OSLAN, Petitioner,

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Before the Court is Jose Oslan's ("Oslan") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Oslan contends that his confinement by New York state is unlawful because: (1) the trial court erred by permitting the prosecution to examine petitioner, in the event that he testified, about a prior conviction; (2) the evidence presented at trial was insufficient to permit a jury to return a verdict of guilty for the crime of robbery in the third degree; and (3) the sentence imposed on him by the trial court involved an abuse of discretion.

  Respondent opposes the petitioner's application. For the reasons set forth below, I recommend that the petition be denied.


  On May 17, 1997, at 12:23 in the morning, Sezquiel Navarro ("Navarro") was walking in the vicinity of the Grand Concourse in Bronx County, New York, when he was approached by Oslan, who was riding a blue, mountain-style bicycle. Oslan identified himself as a police officer and displayed what appeared to be a police officer's shield. Navarro stated that he was going to call 911. Oslan then struck Navarro in the face, shouted an obscenity at him, and ripped a gold chain from Navarro's neck.

  Navarro's brothers, Saul and Mauricio Navarro, were walking ahead of him on the Grand Concourse. Saul Navarro heard the shouting and, turning around, saw Oslan reaching for Navarro's neck. Saul Navarro ran toward his brother; as he did so, he saw Oslan attempt to flee on his bicycle. Saul Navarro seized Oslan but was unable to hold him.

  At the time of the incident, New York City Police Sergeants Joseph Luongo and Sean Flynn were driving south on the Grand Concourse when they saw several people chasing a man on a bicycle. Sgt. Luongo and Sgt. Flynn seized the petitioner. Thereafter, Navarro informed them that petitioner had pretended to be a police officer and had struck him and stolen his gold chain. Sgt. Luongo observed a rash on Navarro's neck which appeared to have been caused by "someone pulling or grabbing him." Navarro did not seek medical attention for his injuries. A search of petitioner following his arrest yielded a gold chain, a replica of a police shield and a blue, mountain-style bicycle.

  Petitioner was given a pretrial Sandoval*fn1 hearing. At the conclusion of the hearing, the trial court ruled that, should the petitioner testify at trial, the prosecution could ask him whether he had been convicted for the crime of manslaughter in the first degree. The case then proceeded to a trial by jury in New York State Supreme Court, Bronx County. Petitioner did not testify during the trial. On July 30, 1998, the jury found petitioner guilty for robbery in the third degree. See N.Y. Penal Law § 160.05. Petitioner was sentenced, as a second felony offender, to an indeterminate term of imprisonment of three and one-half to seven years.

  Oslan appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. Oslan urged the appellate court to upset his conviction on the grounds that: (1) the trial court, at the Sandoval hearing, abused its discretion and deprived Oslan of his due process right to a fair trial by permitting the prosecution to ask him, should he testify at trial, about his prior conviction for manslaughter in the first degree; (2) his guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; and (3) his sentence was unduly harsh and excessive and should be reduced. On January 4, 2001, the Appellate Division affirmed petitioner's conviction unanimously. See People v. Oslan, 279 A.D.2d 266, 719 N.Y.S.2d 845 (App. Div. 1st Dep't 2001). Petitioner applied for leave to appeal to the New York Court of Appeals. On May 10, 2001, that application was denied. See People v. Oslan, 96 N.Y.2d 832, 729 N.Y.S.2d 453 (2001).

  The instant application for a writ of habeas corpus followed.


  Standard of Review

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a ...

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