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BIDO v. MILLER

July 2, 2004.

JOSE BIDO A/K/A DAVID BIDO, Petitioner,
v.
DAVID L. MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, Respondent.



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

REPORT AND RECOMMENDATION

TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Before the Court is Jose Bido's ("Bido") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Bido contends that his confinement by New York state is unlawful because: (1) the trial court erred by permitting testimony concerning his involvement in the sale of drugs to be introduced at trial, thereby depriving him of his constitutional right to a fair trial; (2) the trial court deprived him of his right to a fair trial when it advised prospective jurors, during voir dire, that Bido was able, although not obligated, to testify at trial; and (3) the sentence imposed on him by the trial court was harsh and excessive.

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

  II. BACKGROUND

  On the morning of November 10, 1996, Bido and a companion, Hector Castro ("Castro"), knocked on the door of Apartment 41, 75 Cabrini Boulevard, New York, New York. Bido lived next door, in Apartment 42. The door to Apartment 41 was opened by Bido's neighbor, Mark Luna ("Luna"). Bido and Castro drew guns and forced Luna into the apartment; they then accused him of stealing money from them and threatened to kill him. When Luna denied having stolen any money, Castro assaulted him with his hand and his gun, a .375-caliber revolver. Luna's mother and sister, who also were in the apartment at the time, were prevented by Castro and Bido from leaving the premises or seeking assistance. During the incident, which occurred over a period of approximately 45 minutes, Castro punched and kicked Luna repeatedly and hit him with his gun. Castro then fired a shot at Luna and wounded him in the foot. Castro and Bido then fled from the apartment. Luna sought treatment for his gunshot wound immediately at a nearby hospital.

  Bido and Castro were arrested later the same day. Police obtained statements from both men. On the following day, November 11, 1996, in separate line-up proceedings conducted at the 34th police precinct, Luna's mother and sister identified Bido and Castro as the individuals who had assaulted Luna.

  By New York County Indictment Number 10071/96, Bido and Castro each were charged with three counts of burglary in the first degree, two counts of assault in the first degree and three counts of unlawful imprisonment in the first degree.*fn1 At a pretrial hearing held on May 15, 1997, the trial judge ruled that testimonial evidence concerning petitioner's involvement in the sale of drugs was admissible at trial because it contributed in an essential way to an understanding of the events that took place in Luna's apartment on November 10, 1996.

  After the hearing, the trial judge adjourned the proceedings so that petitioner and Castro might consult with their respective attorneys regarding a plea offer. At some point during the consultation period, both men absconded. The trial judge, determining that Bido and Castro had forfeited their right to appear at trial, directed that the trial proceed in their absence.

  At the beginning of the jury selection process, on May 16, 1997, the trial judge advised the jury panel as follows: "The defendants are not here. No inference may be drawn from that just as no inference may be drawn from their not testifying." Thereafter, a prospective juror, responding to an inquiry concerning his ability to be fair and impartial in the event he was selected to serve on the jury, stated that he "ha[d] a problem" with "the defendant[s] not being able to speak or testify." The trial judge responded that the defendants were "able to" testify. Subsequently, another prospective juror stated that he, too, "ha[d] a problem" with the defendants' absence from the courtroom during trial. Following further discussion, both prospective jurors were excused from serving on the jury. After jury selection was completed, counsel to the petitioner moved for a mistrial based on the trial judge's statement that the defendants were "able to" testify. Counsel to the petitioner argued that the statement was prejudicial to his client. The motion was denied.

  The case proceeded to a trial by jury in New York State Supreme Court, New York County. The petitioner and Castro were tried in absentia. At the trial, the following exchange took place during the prosecution's direct examination of Luna:
[Prosecutor]: And what did he say to you at this time? [Luna]: He told me that I better get the money or else he's going to kill me. [Prosecutor]: What did he say — did David Bido say anything about whose money this was or where the money came from? [Counsel]: Objection, Judge. The Court: You may answer the question [Luna]: He said the money came from a lot of drugs that he sells. [Counsel]: Objection, Judge. The Court: Overruled. [Prosecutor]: Sorry, continue. What were you saying? [Luna]: He said the money came from a lot of drugs that he sells.
  On June 27, 1997, the jury found petitioner guilty for assault in the first degree, see N.Y. Penal Law § 120.10, and three counts of unlawful imprisonment in the first degree, see N.Y. Penal Law § 135.10. Petitioner was sentenced to an indeterminate term of imprisonment of ten to twenty years for the assault conviction, to be served concurrently with three consecutive terms of imprisonment of one year each for the convictions for unlawful imprisonment.

  Bido appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. Bido urged the appellate court to upset his conviction on the grounds that: (1) his due process right to a fair trial was violated when the trial court ruled, at a pretrial evidentiary hearing, that evidence of his involvement in drug dealing was admissible at trial; (2) his due process right to a fair trial was violated when the trial court informed prospective jurors, during the jury selection process, that petitioner was "able to" testify at trial; and (3) his sentence was unduly harsh and excessive. On May 25, 2000, the Appellate Division affirmed petitioner's conviction unanimously. See People v. Bido, 272 A.D.2d 249, 709 N.Y.S.2d 172 (App. Div. 1st ...


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