The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT
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
Respondent opposes the petitioner's application. For the
reasons set forth below, I recommend that the petition be denied.
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
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
[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
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
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 ...