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United States District Court, E.D. New York

VICTOR HERBERT, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner David Policano (also known as "Tippy," and who will be referred to here as "Policano"), an inmate at the Shawangunk Correctional Facility,*fn1 seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on March 26, 2004 and again on July 2, 2004. The petition places in clear relief the need for extreme care on the part of the prosecutor when a murder case goes to the jury in a New York courtroom. It is typical in such cases for the defendant to be charged with both intentional murder and "depraved indifference" murder, i.e., reckless conduct creating a grave risk of death, engaged in under circumstances evincing a depraved indifference to human life, which results in death. The New York Court of Appeals has made it clear that depraved indifference murder is not a lesser offense included within the offense of intentional murder. They are different, mutually exclusive crimes. When both offenses are submitted to a jury, they must be submitted in the alternative. A defendant may not be found guilty of both based on the same murder.

  Frequently, the facts of a case permit a rational jury to convict a defendant of either crime. For example, if a defendant fires a shot from his apartment window, killing a person in the street, the evidence may well support both an inference that he intended to kill the victim by shooting him and an inference that he intended only to shoot in his direction, consciously disregarding the known risk that the bullet would kill him, and thus evincing a depraved indifference to human life. In such a case, both offenses may properly be submitted to the jury, which then has three choices: guilty of intentional murder, guilty of depraved indifference murder, or not guilty.

  However, the facts of some cases leave only two rational choices for a jury: the defendant either intentionally killed the victim or the defendant has not been proved guilty. Such cases do not include evidence from which a jury can infer that the murder was the result of reckless conduct. Accordingly, prosecutors must be very careful not to allow both charges to be submitted to the jury. If they are, a conviction for depraved indifference murder must be set aside on insufficiency grounds. Since double jeopardy principles preclude a retrial on the intentional murder charge, the killer walks free.

  Unfortunately, that must be the outcome here. At Policano's trial, the trial judge inquired of the prosecutor as to whether the depraved indifference charge should be submitted to the jury. The prosecutor should have agreed to dismiss it. Instead, she argued, apparently off-the-cuff, that the evidence of intentional murder — numerous shots fired at point-blank range — could be construed as evidencing recklessness as well. That is not indefensible logic, but the New York Court of Appeals has explicitly rejected it in multiple cases. The disregard for human life inherent in every intentional murder does not establish the recklessness necessary for a depraved indifference conviction.

  The trial court, persuaded by the prosecutor's incorrect argument, submitted both charges to the jury, which convicted Policano of depraved indifference murder. As a result, and as explained more fully below, I am constrained to order the release of Policano because he was convicted of recklessly causing a murder that, according to the evidence, he intentionally committed if he committed it at all.


  At approximately 8:50 p.m. on January 27, 1997, at the corner of Carlton and Myrtle Avenues in Brooklyn, New York, Policano shot Terry Phillips three times in the back of the head from three to five feet away. When Phillips fell, Policano shot him again in the leg. Policano was charged with two counts of murder in the second degree, and one count each of criminal possession of a weapon in the second and third degrees. One of the murder counts alleged intentional murder, in violation of New York Penal Law § 125.25(1); the other alleged depraved indifference murder, in violation of New York Penal Law § 125.25(2). On March 16, 1998, after a jury trial, Policano was acquitted of intentional murder but convicted of depraved indifference murder, and was sentenced as a second felony offender to a term of imprisonment of twenty-five years to life.

  In his appeal to the Appellate Division, Second Department, Policano claimed that (1) there was insufficient evidence to prove his guilt of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) the prosecutor improperly impeached the credibility of a defense witness based on that witness's failure to come forward with exculpatory testimony; (4) the prosecutor's summation denied Policano a fair trial; and (5) the trial court improperly allowed the prosecutor to introduce a statement attributed to Policano without providing notice of intent to offer the statement into evidence.

  The Appellate Division unanimously affirmed Policano's judgment of conviction on November 13, 2000, stating:

Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's remaining contentions are without merit.
People v. Policano, 715 N.Y.S.2d 880, 881 (2d Dep't 2000) (citations omitted). Policano was denied leave to appeal on March 30, 2001. People v. Policano, 96 N.Y.2d 786 (2001) (Smith, J.).

  In his instant petition for a writ of habeas corpus, filed March 5, 2002, Policano claims that (1) there was insufficient evidence to prove his guilt of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) the prosecutor improperly impeached the credibility of a defense witness based on that witness's failure to come forward with exculpatory testimony; and (4) the prosecutor's summation denied Policano a fair trial. By order dated February 7, 2003, the Honorable Lois Bloom, United States Magistrate Judge, stayed the petition to allow Policano to exhaust an ineffective assistance of appellate counsel claim through an application in state court for a writ of error coram nobis. Judge Bloom's order deemed the instant habeas petition to include this additional claim.

  On September 10, 2003, Policano filed a pro se application in the Appellate Division seeking a writ of error coram nobis on that ground. On December 2, 2002, the Appellate Division denied Policano's application, holding, "The appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Policano, 751 N.Y.S.2d 744 (2d Dep't 2002). Leave to appeal to the Court of Appeals was denied. People v. Policano, 99 N.Y.2d 618 (2003) (Smith, J.). Policano subsequently submitted this claim in his amended petition.

  After hearing argument on March 26, 2004, I appointed counsel and asked the parties to brief a series of questions regarding Policano's insufficiency claim and the recent New York Court of Appeals decision, People v. Gonzalez, 1 N.Y.3d 464 (2004). After receiving supplemental briefing, I heard further argument on July 2, 2004.


  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."*fn2 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)). However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.

  Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable": [T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

 Alvarado, 124 S. Ct. at 2149.

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). B. Sufficiency of the Evidence: Depraved Indifference Murder*fn3

  Policano claims that the evidence adduced at trial could only support a conviction for intentional murder, as the government's sole contention at trial was that Policano intentionally shot Phillips in the head three times at close range, and then once more in the leg as Phillips lay on the ground. Policano argues that the government introduced no evidence of recklessness, the mens rea necessary to a finding of depraved indifference murder.

  A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).

  In considering the sufficiency of the evidence of a state conviction, I must "`look to state law to determine the elements of the crime.'" Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)). As in Fama, Policano's jury was instructed on both intentional murder and depraved indifference murder. Under § 125.25(2) of the New York Penal Law, "[a] person is guilty of murder in the second degree when: . . . Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." "Recklessly" is defined as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
N.Y. Penal Law § 15.05(3).

  "[U]nder New York law, intentional murder and depraved indifference murder are mutually exclusive." Fama, 235 F.3d at 812. To be convicted of intentional murder under New York Penal Law § 125.25(1), the government must prove beyond a reasonable doubt that the defendant acted with the intent to murder. See also Fama, 235 F.3d at 812. Depraved indifference murder under § 125.25(2), by contrast, requires a different mens rea: recklessness. Id. The New York Court of Appeals has cast this distinction in sharp relief: "One who acts intentionally in shooting a person to death — that is, with the conscious objective of bringing about that result — cannot at the same time act recklessly — that is, with conscious disregard of a substantial and unjustifiable risk that such a result will occur. The act is either intended or not intended; it cannot simultaneously be both."

 Id. (citations omitted) (quoting People v. Gallagher, 69 N.Y.2d 525, 529 (1987)). The New York Court of Appeals recently reaffirmed this holding in People v. Gonzalez: "Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct." 1 N.Y.3d 464, 467 (2004); see also id. at 468 ("`The act is either intended or not intended; it cannot simultaneously be both.'" (quoting Gallagher, 69 N.Y.2d at 529)).

  Depraved indifference may exist where "a defendant is indifferent to whether death will likely result from his or her conduct — including with respect to a single victim." Id. at 476. However, "where . . . a defendant's conduct is specifically designed to cause the death of the victim, it simply cannot be said that the defendant is indifferent to the consequences of his or her conduct." Id.


Depraved indifference murder is exemplified by a defendant — unconcerned with the consequences — who fires into a crowd; drives an automobile down a crowded sidewalk at high speed; shoots a partially loaded gun at a person's chest during a game of Russian roulette; abandons a helplessly intoxicated person on a snowy highway at night; or repeatedly beats a young child over a period of several days.
Id. (citations omitted).

  The Gonzalez court made clear that "[d]epraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs." Id. at 468. "[T]he wanton disregard for human life inherent in every intentional homicide" cannot "convert such a killing into a reckless one." Id. at 469.

  The facts of Gonzalez were as follows: The defendant entered a barber shop, pulled a gun from his belt, and shot the victim in the chest from a distance of six to seven feet. Id. at 465. As the victim fell to the floor, Gonzalez shot him again in the head. Id. Finally, Gonzalez leaned over the victim's body and fired eight more shots into the victim's back and head. Id. Gonzalez made a statement to police officers that he had "blanked out" as a result of fear and could not recall the shooting. Id. at 466 (quotation marks omitted). Later, when asked by an officer if he was having nightmares because he had shot the victim, Gonzalez responded, "Of course I shot him." Id. (quotation marks omitted). At trial, the jury acquitted Gonzalez of intentional murder, but convicted him of, inter alia, depraved indifference murder.

  In overturning the conviction, the Court of Appeals held that "[f]rom this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder." Id. at 467-68 (quotation marks omitted). Gonzalez, the court held, "was not recklessly creating a grave risk of death, but was creating a virtual certainty of death born of an intent to kill." Id. at 468. "[F]iring 10 times did not establish extremely reckless homicide under Penal Law § 125.25(2). Rather, it confirmed the intent to kill." Id. The court concluded that Gonzalez's "was a quintessentially intentional attack directed solely at the victim." Id. at 469.

  People v. Sanchez, 98 N.Y.2d 373 (2002), upon which the government relies, is not to the contrary. There, the defendant reached "around [a] door, . . . pointed the gun in the direction of the victim who was standing behind the door," and pulled the trigger. Id. at 386; see also Gonzalez, 1 N.Y.3d at 468 ("In Sanchez, depraved indifference murder was established by `the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury.'" (quoting People v. Hafeez, 100 N.Y.2d 253, 259 (2003))). In distinguishing Sanchez on that basis, the Gonzalez court wrote that Sanchez's "conduct in firing from behind a partly closed door established his indifference to the grave risk of death posed by his actions." Id. In contrast, the only reasonable conclusion in Gonzalez "was that the defendant shot to kill his intended victim." Id.

  The government also relies on Fama. In that case, the evidence at trial showed that the victim and his three friends, all black and not from the neighborhood, were accosted by a mob of white men in the Bensonhurst section of Brooklyn. 235 F.3d 804, 806 (2d Cir. 2000). As the mob was threatening the four friends, Fama "begg[ed] another member of the crowd to give him a gun so that he could `just . . . shoot one of them.'" Id. at 807 (ellipsis in original). In holding that the evidence was sufficient to support a theory of depraved indifference murder, the court emphasized the following facts:

The prosecution's evidence showed that Fama was part of a mob intent on intimidating and harming the black youths who had inadvertently entered their predominantly white neighborhood. It showed also that Fama requested a gun from a friend, stating, "Babe, please, I just want to shoot one of them." Other members of the mob discussed wanting to "club" and "shoot" Hawkins [i.e., the victim] and his friends. Witnesses described seeing Fama shoot Hawkins and seeing Hawkins fall to the ground wounded.
Id. at 812 (quotation marks omitted). Based on this evidence, the court concluded: This evidence demonstrates that Fama intended to shoot Hawkins, but it does not necessarily show that he intended to kill him. Unless it was persuaded that Fama's intention was to take Hawkins' life, a jury could have concluded that Fama intended to cause bodily harm to Hawkins with a reckless disregard of the ultimate result of the harm.


  The evidence at Policano's trial established the following facts. On January 21, 1997, six days prior to the shooting, Policano and his victim, Phillips, had an argument that resulted in Phillips striking Policano on the head with a pipe. (Tr. at 121, 127, 248.) While being treated at the hospital for this injury — which required fifteen stitches — Policano told an investigating detective that he would "take care of this" matter himself. (Id. at 240, 248, 251.) On January 27, 1997, Phillips and Lonny Stagg, who testified for the prosecution at trial, arrived at a bus stop together around 8:45 p.m. (Id. at 71-73.) Phillips stood on the street corner and Stagg stood underneath the bus shelter, reading the schedule, about five to seven feet away from Phillips. (Id. at 74, 87.) The street was "pretty well lit," and there was neither automobile nor pedestrian traffic.*fn4 (Id. at 73; see also id. at 80 (Stagg testifying again that there were no pedestrians on the street).)

  Shortly after arriving at the bus stop, Stagg saw Policano approaching Phillips from about twenty feet away, coming up from behind Phillips. (Id. at 75, 77, 88.) Stagg turned away to continue reading the bus schedule and seconds later heard a gunshot. (Id. at 77.) Stagg immediately ran about fifty feet, turned, and saw Phillips trying to protect himself by holding his arm in front of his face. (Id. at 77-78, 90.) After running a few more feet, Stagg turned again and heard a second shot. (Id. at 78.) At that point, Phillips was still on his feet "he looked like . . . he didn't know where he was turning." (Id.; see also id. at 79 ("That was the second shot, when I seen [Phillips] turning.").) Stagg ran further, turned, heard a third shot, and at that point saw Phillips on the ground. (Id.) Stagg testified that Policano was three to five feet away from Phillips during the shooting. (Id. at 107-08.)

  The medical examiner testified that the autopsy revealed "one gunshot wound near the top of the head in the back," a second "in the left rear of the head," a third "on the right rear of the neck," and finally, an "in and out" gunshot wound on the "back of the right thigh." (Id. at 210.) The bullet shot into the back of Phillips's neck "ended up in the face near . . . the right eye." (Id. at 213.) As for the gunshot to the leg, the medical examiner opined that Phillips had already fallen when the shot was fired, and that Policano would have been standing near his head, aiming towards his feet. (Id. at 215.)

  This case is largely indistinguishable from Gonzalez. There, as described in more detail above, the defendant initially shot the victim in the chest from a distance of six to seven feet. 1 N.Y.3d 464, 465 (2004). As the victim fell to the floor, Gonzalez shot him again in the head. Id. Finally, Gonzalez leaned over the victim's body and fired eight more shots into the victim's back and head. Id. Here, Policano's first three shots were to the back of Phillips's head from a distance of only three to five feet. Policano shot Phillips again in the leg after Phillips had fallen to the ground. See also People v. Ochoa, 531 N.Y.S.2d 124, 125 (2d Dep't 1988) ("At bar, the defendant deliberately and repeatedly fired a gun into the victim's upper body from close range. Such conduct precluded a reasonable jury from finding that the defendant had acted recklessly."). Respondent argues that multiple gunshots into the victim's head from three to five feet away could cause "a rational trier of fact to conclude [Policano] went to scare him as opposed to kill him." (July 2, 2004 Oral Argument Tr. at 6.) That would not have been a rational inference. Rather, "[w]hen defendant shot his victim at close range, he was not recklessly creating a grave risk of death, but was creating a virtual certainty of death born of an intent to kill." Gonzalez, 1 N.Y.3d at 468.

  This is not a case like Sanchez, in which the defendant reached around a partly closed door and fired his gun at the victim and towards a room where children were playing. 98 N.Y.2d 373, 386 (2002); see also Gonzalez, 1 N.Y.3d at 468. Nor is it like Fama, where the facts permitted the jury to infer an intent to shoot, but not kill, the victim, and a reckless disregard of the consequences. 235 F.3d 804, 807, 812 (2d Cir. 2000). Rather, the only reasonable inference from the evidence at Policano's trial — i.e., his firing three shots at close range to the back of Phillip's head (and a fourth into his prone body) one week after telling a detective he would retaliate against Phillips — is that Policano intended to kill. For these reasons, the Appellate Division's holding that the evidence at trial was sufficient to establish Policano's guilt beyond a reasonable doubt was an unreasonable application of the principle clearly established by such Supreme Court caselaw as In re Winship, 397 U.S. 358 (1970), which holds that the government must prove all elements of a crime beyond a reasonable doubt. Therefore, I must grant Policano's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1).

  C. Policano's Other Claims

  I briefly address Policano's other claims, all of which are without merit. 1. Sufficiency of the Evidence: Identity

  Policano makes much of the fact that various witnesses at the scene described the perpetrator as a black, not white, male.*fn5 At trial, Stagg testified that just before the murder, he noticed Policano — who was wearing a blue or navy jacket with two white diagonal stripes on the sleeve extending from shoulder to wrist — about twenty feet away, walking across Carlton Avenue. (Id. at 75, 77, 78-79, 103-04.) Stagg had known Policano for five years and saw him often. (Id. at 76.) Without acknowledging Policano, Stagg went back to reading the bus schedule, facing away from Phillips. (Id. at 77.) A few seconds later, Stagg heard a gunshot and ran about fifty feet away. (Id. at 77, 79.) Stagg then turned around and saw Phillips holding his arm in front of his face. (Id. at 78.) Stagg saw a nine-millimeter gun in the hand of someone wearing a jacket with white stripes on the sleeve,*fn6 and testified that "[i]t had to be [Policano]." (Id. at 79.)

  When Stagg spoke to a police officer after the shooting, he said that Policano was white, but that Policano considered himself to be black and was known in the neighborhood as being black. (Id. at 106, 115.) Detective Gershwin Samuel testified that "from the moment we got on the scene, we had people telling us that `he's a black guy. But don't look for a black guy, look for a white guy.'" (Id. at 165.) Samuel testified that others told him that the perpetrator was white, but looked black. (Id. at 166.) Sawn Harden, a defense witness and good friend of Policano (id. at 330), testified that he witnessed the shooting. Harden testified to seeing a black man shoot another black man at the bus stop. (Id. at 293.) He further described the shooter as being about six feet tall and 190 pounds, and twenty-one or twenty-two years old.*fn7 (Id. at 295, 297.) John Nelson, who lived across the street from the bus stop where the shooting occurred, and did not know Policano, testified to seeing a tall, thin, black man about twenty years old, wearing a black coat extending halfway down his legs, running away from the bus stop into the projects. (Id. at 589, 591, 596, 607, 609.)

  All of this evidence was presented to the jury, which clearly resolved the various discrepancies against Policano and credited Stagg's testimony, as it was permitted to do. The state court's implicit deference to the jury's findings was not an unreasonable application of federal law. See, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) ("[A]ssessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues.") Accordingly, this claim does not justify issuance of the writ.

  2. Improper Impeachment of a Defense Witness

  Policano claims that he was denied a fair trial because the prosecutor improperly impeached Harden's exculpatory testimony. Specifically, Policano complains that the prosecutor impeached Harden based on Harden's failure to come forward sooner with his version of the shooting. Harden testified at trial that he had witnessed the shooting and that the shooter was a black man. (Tr. at 293-95.) After Harden's direct testimony, the court held a hearing, outside the presence of the jury, during which the prosecutor inquired into when Harden became aware that Policano had been charged for the crime and when Harden had come forward with the exculpatory information:

Q Mr. Harden, when did you become aware that Mr. P[o]licano was the subject of this particular case?
. . . .
A When I got arrested and I seen him inside the jail I was in.
Q And when was that?
A Around November.
Q Of what year?
A '97.
Q Was that the first time you had spoken to Mr. Policano?
A Yes.
. . . .
Q Is that when you became aware that Mr. P[o]licano faced murder charges with respect to the incident that occurred on Carlton and Myrtle Avenue, on January 27th, 1997?
A Yes.
Q Did you have a conversation with him with respect to that incident?
A No.
Q Did you speak to him about the case?
A He told me what he was in for, and I, I told him that I know he ain't do it because I seen it.
Q So, in November of 1997, you realized or you had information that based on your own observations that it was a tall thin black man who actually committed the shooting, is that correct?
A Correct.
Q And you had a case pending during that time, is that correct?
A Yes.
Q And you had a defense attorney, is that right?
A Yes.
Q And, in fact, you made numerous appearances before Judge Silverman [note: this is not the same judge who presided over Policano's trial], is that correct?
A Yes. . . . .
Q And at no time during those repeated occasions before the Court did you tell anyone with respect to the information you had about the thin male black shooter on January 27th, 1997, is that correct?
A No. It's correct, but I didn't tell no one.
Q You didn't tell anyone?
A Correct.
. . . .
Q [Y]ou realized that you could have conveyed that information to the prosecutor in court, is that correct?
. . . .
A Yes.
. . . .
Q You never contacted the police with respect from January 27th, 1997, until . . . November when you wrote those letters to [defense counsel] with respect to what you observed, is that right?
A Yes, because I didn't want to get involved, but I know what happened, and I seen my friend in jail for something I seen and know he didn't done, so I told him I would be a witness on his case.
Q But, you never came forward to either the detectives in the 88 Precinct, []or to the District Attorney's office on those occasions when you appeared in court, is that correct?
A No [sic: no, he did not come forward].
(Id. at 298-304.)

  Based on this testimony, the court allowed the prosecutor to cross-examine Harden, before the jury, on his failure to come forward. (Id. at 306.) On cross-examination, Harden testified as follows, in pertinent part:

Q Mr. Harden, on January 27th, 1997, when you made those observations [i.e., witnessed the shooting], you did not call the police that day, is that right?
A Yes.
Q You saw the police arrive at the scene, right after the shooting, is that right?
A Yes.
. . . .
Q You didn't approach the police officers, did you?
A No. Q You didn't tell them what you observed, did you?
A No.
Q You didn't tell them that it was a thin six-foot black male who you observed do the shooting, did you?
A No.
Q When did you become aware that Mr. P[o]licano was the individual facing charges in this particular case?
A When I seen him.
Q When was that?
A In around November.
Q So, November of what year?
A '97.
Q So, from January 27th until November of 1997, you did not call the police with respect to this information that you had, is that correct?
A Yes.
. . . .
Q But you realized that you had information that could have possibly led to the capture of the individual who did the shooting, is that right?
A A little.
Q That's not right?
A No.
(Id. at 307-10.) Policano claims that it was error to admit this testimony because Harden was not aware that his friend (Policano) had been charged with the murder until November 1997.

  Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, Policano bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).

  Here, the fact that Harden waited approximately ten months before coming forward with the exculpatory information was fair ground for cross-examination even if Harden did not know Policano had been charged. To be sure, the impeachment value of Harden's silence would have been stronger if he had known Policano had been charged, but whether Harden had information that would help the police solve a murder and withheld it was still relevant to his credibility and appropriately inquired into. See United States v. Carr, 584 F.2d 612, 617-18 (2d Cir. 1978).

  Furthermore, in its final jury charge, the court instructed the jurors: "[Y]ou heard testimony that the witness . . . S[]awn Harden did not speak with law enforcement officials at any time before testifying at trial. I charge you that no person has a civic or moral obligation to voluntarily exculpate [sic] information to law enforcement authorities." (Tr. at 556.) If there was any unfairly prejudicial effect of the challenged aspect of Harden's cross-examination — and I perceive none — this instruction no doubt cured it. Therefore, this claim does not justify issuance of the writ.*fn8 3. Prosecutorial Misconduct

  Policano claims that the prosecutor's summation denied him a fair trial in that it (1) "denigrated the defense" by arguing that Policano lied on the stand and otherwise tailored his testimony after hearing the government's case; and (2) misrepresented the law by arguing that reasonable doubt does not arise from a lack of evidence.

  Habeas relief based on a claim of prosecutorial misconduct during summation is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Pimentel v. Walsh, No. 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). Policano "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). In making this determination, the habeas court should consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See id.

  a. The Prosecutor's Argument That Policano Had an Opportunity to Hear the Witnesses and Tailor His Testimony

  In her summation, the prosecutor argued, in pertinent part:

The defendant's testimony is not only riddled with inconsistencies, but half truths and outright lies. The recent fabrication has been tailored to the evidence he has heard throughout the course of this trial, and he is the only witness who has had the opportunity to hear all of the testimony before his own.
The defendant is an interested witness. He has the most to lose and the most to gain in the outcome of this trial. The Judge will instruct you that as a matter of law this defendant is an interested witness.
(Tr. at 534-35.)

  The Appellate Division's decision denying this claim was not unreasonable in light of Portuondo v. Agard, 529 U.S. 61 (2000), where the Supreme Court held that a prosecutor's comments that the defendant had had an opportunity to hear other witnesses before testifying and to tailor his testimony accordingly did not violate the defendant's constitutional rights. Therefore, this claim does not justify issuance of the writ.

  b. The Prosecutor's Argument That Reasonable Doubt Does Not Arise from a Lack of Evidence

  The prosecutor also stated in summation:

Let's consider the lack of scientific evidence. [Defense counsel] says there aren't any fingerprints on the bullet case or any powder test conducted on the defendant's face or hands. But Detective Gannallo told you that when he — up to a thousand degrees when that trigger is pulled, and that gun is fired through the barrel obliterates any evidence of fingerprints and that the reliability of the soot or powder test is questionable.
. . . .
Reasonable doubt does not come from a lack of fingerprints or soot residue or testimony from real people.
Ladies and gentlemen, this is real life with real people. And when the judge reads to you the elements of the crime, you will never hear that this must be proven through fingerprints.
. . . .
Reasonable doubt does not come from human witnesses, a missing gun, a lack of fingerprints or gun powder or photographs of the defendant actually showing him shooting the gun into Terry Phil[l]ips. It's real life. And you've had the opportunity to see the spectrum of real people. Proof beyond all doubt happens when only all 12 of you are standing on the corner of Carlton and Myrtle avenues with Lonnie Stagg on January 27, 2997, witness it for yourself with horror as the bullets seared through Terry Phil[l]ips' brain causing a puddle of blood.
(Tr. at 525-26, 543-44.)

  In determining whether the government has proved a defendant's guilt beyond a reasonable doubt, a jury may properly consider both the evidence and the lack of evidence. However, it is clear from the context of the challenged comments that the prosecutor was responding to the defense summation by trying, however inarticulately, to disabuse the jury of the notion that the absence of such physical evidence as fingerprints or gun-powder residue necessitated an acquittal. However, even if I were to adopt Policano's interpretation of these remarks, the trial court's instructions properly informed the jury of the definition of reasonable doubt, guided the jury in its application, and emphasized that the jury was to take the law as stated only by the judge — instructions I presume the jury followed, see, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). The court's definition of "reasonable doubt" emphasized that the jury was to consider "all the evidence," including "lack or insufficiency of the evidence," in determining whether the government had carried its burden. (Tr. at 564-65.)

  Thus, even assuming the challenged comments were addressed to the absence of evidence generally — as opposed to the lack of specified forensic evidence in this case — any harm caused by the summation was remedied by the trial court's direction that the jury could indeed reach a reasonable doubt based on a lack of evidence. Accordingly, this claim does not justify issuance of the writ. 4. Ineffective Assistance of Appellate Counsel

  Policano, who claims to have been absent during a pretrial hearing, argues that his appellate counsel provided ineffective assistance in failing to raise the claim that Policano was denied his right to be present at a material stage of his trial.

  The Supreme Court has established the following standard for ineffective assistance claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Policano must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citation omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

  Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533 (citing Lockhart, 506 U.S. at 372); see also Jones, 463 U.S. at 754 ("For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy. . . ."). A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").

  Here, Policano contends that his appellate attorney should have claimed that Policano's right to be present was violated. Specifically, Policano asserts that his trial attorney improperly waived Policano's right to be present at a pretrial hearing. In holding that Policano had "failed to establish that he was denied the effective assistance of appellate counsel," Policano, 751 N.Y.S.2d at 744, the Appellate Division correctly cited Jones.

  A criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5 (1975). However, "the right to be present is not absolute: it is triggered only when the defendant's `presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).

  Policano was present at the suppression hearing and at the conclusion of the hearing where both sides rested and declined the opportunity to make closing arguments. (Feb. 19, 1998 Hr'g Tr. at 23.) During the hearing, defense counsel requested that the testifying witness, a police officer, produce the original document that he had prepared, rather than a copy. (Id.) The court directed the officer to bring the original document (a "DD-5") that was at issue. (Id.) The court reconvened later that day, at which time defense counsel waived Policano's presence. (Id. at 25.) The prosecutor, defense counsel, and court then discussed the original DD-5 and the officer's efforts to locate it. (Id.) This discussion segued into a discussion regarding the admissibility of the identification procedure (id. at 28-32), followed by a defense request for a specific item that he considered Brady material (id. at 33-37). Defense counsel then asked for clarification of a supplemental report he had recently received (id. at 37-39) and requested that an incarcerated witness be housed at Rikers Island (id. at 39).

  Under New York law, while a defendant has a right to be present at ancillary proceedings involving factual matters about which he or she may have useful knowledge, see, e.g., People v. Dokes, 79 N.Y.2d 656, 659-60 (1992), a defendant's absence from proceedings involving only questions of law or procedure does not violate his right to be present, see, e.g., id. at 660. The relevant question is "whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position." Id. In light of established New York law and the fact that purely legal matters were discussed in Policano's absence, the Appellate Division was not unreasonable in concluding that Policano had failed to establish that his appellate attorney provided ineffective assistance by failing to raise this issue on direct appeal. Therefore, this claim does not justify issuance of the writ.


  For the foregoing reasons, the petition is granted based on Policano's insufficiency of the evidence claim, and the government is ordered either to commence further proceedings against Policano or release him within sixty days of this order. Though I do not stay this order pending appeal, that sixty days will allow respondent to seek a stay in the court of appeals. As Policano has failed to make a substantial showing of a denial of a constitutional right with regard to his other claims, no certificate of appealability shall issue.

  So Ordered.

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