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December 1, 2004.

CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Petitioner Israel Rodriguez brought this habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge his conviction for one count of murder in the second degree, one count of robbery in the first degree, two counts of robbery in the second degree, and one count each of grand larceny in the third degree and in the fourth degree. Petitioner is now serving a sentence of 37 years to life. His petition asserts that (1) the admission of videotapes and photographs into evidence over his objection violated his right to due process; and (2) his rights under Batson v. Kentucky, 476 U.S. 79 (1986), were violated when the trial court ruled that petitioner failed to establish a prima facie case in support of his Batson challenge.

Magistrate Judge Debra Freeman issued a Report and Recommendation dated December 9, 2002 (the "Report"), recommending that the petition be denied in its entirety. With respect to petitioner's evidentiary claim, Judge Freeman found that the trial court properly admitted the videotapes and photographs into evidence. (Report at 14-17.) Petitioner has not objected nor requested an extension to file any objections to that evidentiary finding. With respect to petitioner's Batson claim, Judge Freeman recommended that the petition be dismissed on the grounds that (1) the record contains no evidence — apart from certain potential jurors' surnames — as to which potential jurors actually were, or were not, Hispanic; and (2) assuming that surnames were sufficient to establish ethnicity, petitioner failed to develop the record at trial with respect to all relevant statistical facts, including the ethnic composition of the venire panel and the jury, once jury selection had been completed. (Report at 31-31; 32-35.) Petitioner specifically objected to these findings, asserting that the Second Circuit has never held that reliance upon juror surnames to establish ethnicity was impermissible. Additionally, petitioner contends that, the statistics regarding ethnicity that were proposed by respondent in opposing the habeas petition establishes a prima facie Batson violation regardless of any purported omissions in the trial record. (Petitioner's Objections to the Report ("P. Objections") at 3-11.)

  Subject to the clarifications set forth below, the Court adopts Judge Freeman's Report and dismisses the petition for a writ of habeas corpus in its entirety.


  Rodriguez was tried on multiple counts before a jury in the Supreme Court of New York, (New York County) between July 1, 1997 through July 15, 1997, with State Supreme Court Justice Rena K. Uviller presiding. (Report at 8-9.)

  Jury selection was conducted in three rounds. (See Tr. IV at 67.)*fn1 In the first round of jury selection, the trial court seated 16 potential jurors. (Id. at 66-67.) After voir dire by the trial court and counsel, and after one potential juror had been excused for cause and replaced,*fn2 the trial court asked whether counsel had objections to the first twelve potential jurors then seated, who were as follows:
Juror No. 1 (Delia Delisser)
Juror No. 2 (Norma Ramos) (believed by both parties to be Hispanic)*fn3
Juror No. 3 (Donald Bonham)
Juror No. 4 (Aurora Faya) (believed by respondent to be Hispanic)
Juror No. 5 (Tricia Gross)
Juror No. 6 (Jennifer West)
Juror No. 7 (Alan Washkowitz)
Juror No. 8 (Howard Bowser)
Juror No. 9 (Suzanne Williams)
Juror No. 10 (Patty Mats)
Juror No. 11 (Joe Mobley)
Juror No. 12 (James West)
(Id. at 67, 160.) With respect to these potential jurors, the prosecution exercised four peremptory challenges against Ramos, West, Mats, and Mobley. (Id. at 160-61.) The defense exercised peremptory challenges against Delisser, Gross and Washkowitz. (Id. at 161-162.) Accordingly, the trial court seated Bonham, Faya, Bowser, Williams, and West as the first five jurors on the jury. (Id. at 164.)
  The trial court then asked whether counsel had objections to the next four potential jurors, who were as follows:
Juror No. 13 (Donna Stickles)
Juror No. 14 (Julia Ewell)*fn4
Juror No. 15 (Karen Dunn)
  Juror No. 16 (Ronald Meador) (believed by respondent to be Hispanic) (Id. at 67, 161.) Of these potential jurors, Stickles was excused for cause, and the court did not seat a replacement juror. (Id. at 162.) The prosecution then exercised two peremptory challenges, against Ewell and Dunn. (Id. at 162.) The defense exercised one peremptory challenge to excuse Meador. (Id.) Therefore, none of these four potential jurors were seated on the jury.
  In the second round, the trial court seated sixteen more potential jurors. (Id. at 166; 166-246.) After voir dire, and after one juror was excused for cause, the trial court asked the parties whether there were any challenges to the first seven jurors then seated in the new group. (Id. at 247.) These potential jurors were as follows:
Juror No. 1 (Daniel Riesel)*fn5
Juror No. 2 (Dale Velasquez) (believed by both parties to be Hispanic)
Juror No. 3 (Jaime Ortiz) (believed by both parties to be Hispanic)
Juror No. 4 (Robert Laufer)
Juror No. 5 (Linda Kettering)
Juror No. 6 (Cara Familet)
Juror No. 7 (Cedonir Crncovic)
(Id. at 166, 187, 247.) The trial court excused both Riesel and Crncovic for cause, and did not seat replacement jurors. (Id. at 247-48.) The prosecution then exercised two peremptory challenges to excuse Velasquez and Ortiz. (Id. at 248.) The defense exercised three peremptory challenges to excuse Laufer, Kettering, and Familet. (Id.) Accordingly, none of these potential jurors were seated on the jury.
  The trial court then considered the next nine jurors, who were as follows:
Juror No. 8 (David Chu)
Juror No. 9 (Anne D. Richter)
Juror No. 10 (Bernadette Reed)
Juror No. 11 (Daisy Vasquez) (believed by both parties to be Hispanic)
Juror No. 12 (Thomas Lyng)
Juror No. 13 (Robert Manning)
Juror No. 14 (Barbara Reeves) (believed by both parties to be Hispanic) Juror No. 15 (Leslie Peyton)
Juror No. 16 (Edna Law)
(Id. at 166, 248, 252.) The trial court excused Chu from service for personal reasons.

  (Id. at 248-49.) The prosecution exercised two peremptory challenged against Vasquez and Reeves. (Id.)

  At that point, defense counsel raised a Batson challenge, leading to the following exchange:
MR. CHECKMAN (defense counsel): At this point I'm going to have to lodge a Batson challenge based upon the fact that my client is Hispanic, and just in the course of this round alone Mr. Nuzzi [the prosecutor] has challenged peremptorily every Hispanic that remained on the panel.
THE COURT: Is that the extent of what you're stating?
MR. CHECKMAN: Yes, I don't think — basically, I think that 90 percent of these people qualify. They were not asked any questions whatsoever by the People, nor did they answer in any way, shape, or form anything that would cause distress. Mr. Velasquez and Mr. Ortiz, I can't image [sic] what's wrong with them as jurors. I can't image [sic] what's wrong with any of them as jurors, the possibility of Ms. Vasquez having expressed a concern about work.
THE COURT: I do not believe you've made out a prima facie case on this. Also unless Mr. Nuzzi you feel excelled [sic] to respond.
MR. NUZZI: I also don't think a prima facie case has been made. Just to preserve the record, Ms. Vasquez, in addition to her work concerns, has concerns about — I'm sorry. She works for a not-for-profit pro bono group; I believe, also has worked pro bono for the Bar Association. She's very active in other civic groups. I don't remember the name of the organization she works for, but I think it was a social work-type position.
It's our position that those type of jurors who do that type of work, a social worker, are never good jurors for the prosecution. With respect to Ms. Reeves, she stated at the bench a number of times, although she later said it wasn't an issue, she has a husband facing Federal prosecution as a defendant. She expressed her concerns about her ability to be fair. She expressed hostility to the prosecutor in that case. Because of that I don't think she'd be a good juror. In addition, she also works in a social work-type of position for the Department of Homeless Services. With respect to Mr. Ortiz, he's unemployed, doesn't work at the present time, used to work in security. He's very young. I don't think someone like that would be a good juror for the prosecution in the case involving such serious issues.
Again, with Mr. Velasquez and Mr. Ortiz, they really answered no questions. They had nothing to respond to. They looked away at me during jury selection. They really were, neither of them, fully active in participating in any of the jury inquiries or questions. They just really didn't answer questions and had nothing to volunteer. I don't think they'd get along well with other jurors that have been selected on this case. For those reasons, I challenge them.
THE COURT: All right. Let's move along.
MR. NUZZI: Also, finally, judge — that's all the record I wish to make.
(Id. at 249-52.) The defense then exercised four peremptory challenges, against Richter, Reed, Lyng and Peyton. (Id. at 252.) The trial court seated Manning and Law as the sixth and seventh jurors on the jury. (Id.)

  In the third and final round of jury selection, five additional jurors, as well as four alternates, were chosen out of 12 potential jurors. (Id. at 255-381.) The prosecution exercised one peremptory challenge in this round, and the defense exercised two peremptory challenges. (Id. at 294.) Petitioner did not renew his Batson challenge at the conclusion of jury selection. Nor did petitioner take any further steps to develop before the trial court a record regarding the ethnic composition of the jury venire as a whole or of the jury either at the end of the second round or upon the completion of voir dire.

  Petitioner now claims that at the end of the second round, based on surnames, five out of 28 potential jurors were Hispanic and all were challenged. (Report at 24.) Respondent claims that at the end of the second round there were seven venire members with Hispanic names, five of whom were struck by respondent. Since none of these statistics were presented to the trial court, there is no record of the trial court's view of the ethnicity of the venire or the jury at any time during the proceedings. On June 24, 1997, the jury found petitioner guilty on all charges except one count of first degree robbery and one count of second degree robbery. (Tr. VII at 2-7.) ...

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