The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
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
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 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.
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 ...