Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

June 10, 2005.

RICARDO ROMAN, Petitioner,
GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Pro se petitioner Ricardo Roman seeks a writ of habeas corpus from his November 14, 2002 conviction in Supreme Court, Bronx County, of two counts of first degree robbery and sentence of eighteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Roman's habeas petition contends that: (1) Roman was deprived of due process and an impartial jury by prosecutorial misconduct during voir dire and summation, when the prosecutor asked the jurors to place themselves in the victim's shoes, improperly bolstered testimony with the prosecutor's opinions and conjecture, and denigrated the defense (Pet. ¶ 12(a)); (2) Roman was denied a fair trial by the improper admission of two pieces of hearsay evidence that bolstered the identification made by the single eyewitness (Pet. ¶ 12(b)); and (3) the verdict was against the "weight of the evidence" where the only evidence offered was that of a single unreliable eyewitness who gave inconsistent descriptions that did not match Roman's appearance (Pet. ¶ 12(c)).

For the reasons set forth below, Roman's petition should be DENIED.


  During voir dire, the prosecutor asked certain potential jurors to provide further information about situations in which they themselves had been victims of crimes. (E.g., Voir Dire 2:*fn1 Tr. 90; Voir Dire 3: Tr. 189.) The prosecutor asked the following type of questions directed at individual jurors:

Q: Has anyone here been in a situation where you've been in actual fear of your life? Ms. Maholmes, I know you raised your hand. Mr. Coplin and Espinol, would you care to — Ms. Espinol, would you share it.
(Voir Dire 3: Tr. 189; see also id. at 189-91.)*fn2 To another juror who had told the judge he had been robbed, the prosecutor asked, "Would you like to share a bit of what happened to you that day?" (Voir Dire 2: Tr. 90.) The judge, however, did not allow the juror to answer, saying: "I don't think we need each juror to go through their own individual experiences about being a crime victim." (Voir Dire 2: Tr. 90.) The prosecutor asked prospective jurors hypotheticals in which the prospective juror was placed in the role of a crime victim. (Id. at 92.) For example, the prosecutor engaged one prospective juror in the following exercise:
[A.D.A.] CORREA: I think, Mr. Sanchez, you had mentioned that you were the victim of an assault?
MS. CORREA: Some time ago. Let's say, hypothetically speaking, the person who assaulted you had been apprehended and I get that case and there was a situation where you were assaulted. There were people out there, but you're the only witness to that assault. That case lands on my desk. Should I prosecute that case with one witness?
MS. CORREA: And why do you think I should?
PROSPECTIVE JUROR: `Cause I was a victim.
(Voir Dire 2: Tr. 92; see also id. at 92-93, 95-97.) Defense counsel did not object. (Id.)

  The prosecutor also asked the potential jurors hypothetical questions designed to show that one could remember a stranger who did something bad to you if you saw him a few days later:

[A.D.A.] CORREA: All right. I have a quick question. Let's say, Mr. Lloyd — you look so cute today. Let's say you're on the train and you have these brand new spanking shoes on, your nice gray shoes, and someone happens to come and happens to spit on your brand new shoes and you're livid. You look down and there's like, you know, and you give that person a hard look and that person just smiles, walks away. You see that person in the next car maybe like five minutes later. You gonna remember that person's face? PROSPECTIVE JUROR: Yes.
MS. CORREA: Right. He just spit on your $450 shoes and you're livid, right?
MS. CORREA: How about the next day, you catch that same train again, you see that person. You think you're gonna remember that face?
PROSPECTIVE JUROR: I'm pretty sure I will.
MS. CORREA: How about a week later, you think you'll remember that person? That person over there spit on my shoes. You think you'll remember that under those circumstances?
MS. CORREA: What other circumstances do you guys think in order for an identification procedure to be made, and you might think — I expect you're going to be hearing some evidence of an identification procedure during my trial.
What factors do you think you would consider in determining whether or not the witness's identification is correct?
Miss Lloyd, what circumstances, what factors do you think you'd consider, would you take in consideration; for example, the lighting conditions?
* * * * *
MS. CORREA: If there's anything blocking the face, maybe the length of time, right? I mean, in our — since it happens, what, like 15, 20 seconds, a minute maybe. But she spit on your shoes, right? That's like some rough stuff, so you're gonna remember that, right? PROSPECTIVE JUROR: Yes.
MS. CORREA: You think like the circumstances under which something happens is gonna make you remember, too? Like if something, you know, like spitting on your shoes or you know, like maybe someone eats your sandwich that you left at your desk, you think you're gonna remember?
(Voir Dire 2: Tr. 97-100.) Again, there was no objection from defense counsel. (Id.)

  Defense counsel also asked prospective jurors to imagine that "something dramatic" had happened to them, would they be able to accurately describe it in the future? (Voir Dire 2: Tr. 111: "I want you to imagine that something really horrible happened to you. Take that back. Not necessarily. Just something dramatic, something happened. And imagine you were asked to describe that . . . in the future.") Defense counsel tied this into his theme that the victim was mistaken in identifying Roman as the robber. (Voir Dire 2: Tr. 112-14; see also Voir Dire 3: Tr. 132-34, 196-200.)

  The first two days of jury selection resulted in five jurors being selected. (See Voir Dire 3: Tr. 122-23.) Voir dire continued on September 17, 2002. The prosecutor gave the prospective jurors hypotheticals in which she, the prosecutor, had committed a crime against them and she asked them to describe her, i.e., describe the perpetrator:

[A.D.A.] CORREA: . . . Ms. Somayya, let's say I jump over [this] ledge and yank your chain off and run out of the door. How would you describe me to the police. PROSPECTIVE JUROR: Well, a young lady who stole — long hair, I'd give the color of [your] hair —
MS. CORREA: Describe me. I'm grabbing you, I'm running out of the door. The police come to take your report.
PROSPECTIVE JUROR: I would say she's tall and slim.
MS. CORREA: What's my height.
MS. CORREA: Weight.
PROSPECTIVE JUROR: Around 120, 125.
. . .
MS. CORREA: What's the color of my hair.
MS. CORREA: What would you tell the cops I was — my ethnicity.
PROSPECTIVE JUROR: She is more, a little — she looks Hispanic.
MS. CORREA: What's Hispanic.
MS. CORREA: Who's my next victim. Ms. Venero, how [about] you. I jump and grab your chain and run out of the door, cops come and take a report. How are you going to describe me.
PROSPECTIVE JUROR: Tall, like white Hispanic . . .
MS. CORREA: Describe my hair slowly.
PROSPECTIVE JUROR: Blonde hair with highlights. MS. CORREA: How tall am I.
MS. CORREA: Okay. Mr. Nicholson, how are you.
PROSPECTIVE JUROR: Six foot, late twenties, brownish, blondish hair.
(Voir Dire 3: Tr. 115-17.) The prosecutor summed up what her experiment showed:
MS. CORREA: Okay. So we have a whole range of descriptions. I have Caucasian, I have Hispanic, I have Asian. Does that mean you guys are talking about a different person or the same person.
Can you guys appreciate that people describe things in different ways. You said you really couldn't articulate, but you were able to see me on the corner eating a hot dog. And you guys saw me last Friday and last Thursday, you guys were sitting over here, and you didn't get a chance to look at me, but that doesn't mean you can't recognize me.
(Voir Dire 3: Tr. 118.)*fn3 Defense counsel did not object. (Id.)

  When the next round of prospective jurors was seated, the prosecutor repeated the same scenario, asking them to imagine that she jumped over the ledge and grabbed the prospective juror's purse (Voir Dire 3: Tr. 183):

[A.D.A.] CORREA: You guys are in the unenviable position of being the last group so you heard everything that I have to say. But there's one thing I want to stress is that I've been up here smiling, talking about hypotheticals, and joking a little bit but that doesn't mean there's no gunpoint robbery. It is a serious case, both to myself, the People and also to the defendant. I don't want to you think because I've been joking and talking about ledgers and descriptions that detracts from the seriousness of the case. Do you understand.
. . . .
MS. CORREA: How about my background.
MS. CORREA: How about you, Ms. Montero.
PROSPECTIVE JUROR: 5/10, long hair, Asian, skinny.
MS. CORREA: Ms. Eng is laughing. What's your description.
PROSPECTIVE JUROR: Of you. You told us part of it before. 5/10, 135, 140 pounds. That's why I'm laughing.
MS. CORREA: Can you all appreciate the different descriptions. I'm actually Puerto Rican, a lot of people don't believe me but we're talking about the same person, different descriptions, people look at things differently. Some people concentrate on hair or eyes but — or height.
It's a gun point robbery. It involves one witness and I know I talked a little about that earlier and also on Friday.
I'm going to take you to Ms. MacDonald's. If I jump over the ledge and grab your purse and run out the door you call the police, you guys go around the block looking for me, you see me. I don't have the purse anymore. Do you expect that I should have the purse on me.
MS. CORREA: Why not. PROSPECTIVE JUROR: You're going to get rid of the evidence. You know, it may turn out to be yes that you did it, just because you don't have it doesn't mean you didn't do it.
MS. CORREA: Everybody understands that concept. How about when you see me on the street.
PROSPECTIVE JUROR: I would recognize you right away.
MS. CORREA: You would recognize me. How about if you say that's her and that's her, the cops are like all right, where are your witnesses, Ms. McKegney. You're saying officer it's me telling you she did it. No, I can't report that, I need more than one witness. What do you think of that.
PROSPECTIVE JUROR: My word should be sufficient . . .
PROSPECTIVE JUROR: Because I was the victim.
MS. CORREA: You need more witnesses.
PROSPECTIVE JUROR: From my understanding, it happened to me, so you have to go from there, it's my word.
MS. CORREA: Your word is sufficient.
THE COURT: Your word is sufficient, if it's truthful.
PROSPECTIVE JUROR: It's truthful, if it happened to me.
THE COURT: You might be saying if you would say it would be truthful and it would be accurate that's the judgment you will have to make about the witness when you hear her, right.
PROSPECTIVE JUROR: Of course. MS. CORREA: So as you said, one witness, yourself, is sufficient and you will judge the sufficiency of the testimony if and when you are selected as a juror in this case.
(Voir Dire 3: Tr. 182-85.) Again, defense counsel did not object. (Id.)

  The Prosecution Case at Trial

  April 4, 2002

  On a sunny April 4, 2002, at approximately 3 p.m., Kelly Martinez was robbed at gunpoint of approximately nine hundred dollars at the corner of Union Avenue and East 161st Street in the Bronx. (Martinez: Trial Transcript ["Tr."] 89, 92-95, 98-99.) On that day, Martinez, a resident of Fox Street*fn4 in the Bronx (Martinez: Tr. 85-86), was returning from work and walked from the train station to a check cashing store across the street from the train station, between 160th Street and Prospect Avenue. (Id. at 90-92.) Martinez cashed a $309 child support check and put that money in her purse along with $600 of rent money, and other personal items such as her credit cards, her key, and her identification. (Id. at 92-93.)

  On her way to pick up her son at day care with her black pocketbook strap over her left shoulder, on the corner of 161st Street and Union Avenue, a man grabbed her elbow and hit her on the head with a hard object. (Id. at 94-95, 171.) Martinez testified:

Everything happened so fast. I know as I was walking suddenly I heard like foot step, keep walking, suddenly somebody grabbed me through my elbow. I felt like someone — like something fell on my — like — I felt like a big rock or something really hard on my head and then I looked back to see.
(Id. at 171.) In fact, it was a gun that hit her in the head. (Id. at 170.)

  Martinez turned around and Roman pointed a gun in her face. (Id. at 95, 97-98, 172 (she saw "[t]he defendant wearing a black leather jacket with a gunpoint had [sic] at me.").)

  Martinez testified that the man was "my size"*fn5 (id. at 99, 281), that he was wearing a baseball cap and sunglasses (id. at 97, 99) and that the person was the defendant, Ricardo Roman. (Id. at 97-98, 172.) Martinez further testified that nothing had obstructed her view of Roman. (Id. at 98.)

  The robber told Martinez to let go of her purse and she complied. (Id. at 99.) After she dropped her purse to the ground, the robber struck her again with his gun. (Id. at 99-100, 170.) As Martinez was dropping to the floor, he struck her a third time with his gun to make sure she dropped completely to the floor. (Id. at 100, 170.) Martinez testified:

When he hit me the first time, I turn around, turn around and then he said let go of the purse. I let go of my purse. When he hit me the second time on my head right here, okay, I was going — I was going on the floor in one knee and then he hit me as I was falling, as I was falling because I was — the second time I was in almost on one knee, I fell down on one knee and as I was falling he hit me again the third time and I was on the floor. That's what happened.
(Id. at 280-82; see also id. at 170, 216.)

  Martinez stated that from the time that she was hit on the back of her head until the time she was on the ground and the robber ran away took ten or fifteen seconds. (Id. at 228.) Martinez further testified that she was on the ground for approximately three seconds (id. at 229), people helped her up (id. at 100, 229, 267), and that she chased the robber (id. at 102, 267). She said to the people who helped her up, "let me go" and she "start running." (Id. at 100, 230.) Martinez ran after the robber for a bit and the robber turned around "seconds, no[t] minutes" after she got up and started chasing him.*fn6 (Id. at 102, 237, 271.) He was no longer wearing sunglasses. (Id. at 102.) Martinez testified that nothing was blocking her view of his face at that point. (Id. at 103, 233-34.) Martinez could see that the robber had dark brown eyes, a small black mustache, and wore "black pants, a black leather jacket, with an Indian on the back," and tan Timberland boots. (Id. at 103, 105, 107-08.) David Soler, a superintendent on 161st Street, saw a Hispanic man, about 5'6½" tall, wearing a baseball cap and a leather jacket with an Indian on it, running toward 160th Street with a gun in one hand and a purse in the other. (Soler: Tr. 355-58.) Jeremes Cortez, who also was working in the area, saw a Hispanic man in dark blue clothing running toward 160th Street with an object resembling a gun in his hand. (Cortez: Tr. 400-02.)

  Martinez described what happened after that:

And then the group of persons, a group of people came to me start hugging me. You bleed, you cannot, a guy, you bleeding a lot you need to stop, that's money, forget it. We called the ambulance, you bleeding a lot. You need to calm yourself down. I said no, leave me alone, leave me alone . . . I told those men, I want to — please let me go . . . I wanted — I want to catch that man.
But I didn't — they didn't want me to do it. They said, I said please go inside, I will pay anything, I want to catch that guy. They said no, they start holding me, we're going to take you across the street. We called the ambulance, we're going to call the police calm yourself down, calm yourself down.
(Martinez: Tr. 102-03.)

  Emergency Medical Technician ["E.M.T."] Mario Maldonado, who arrived at the scene to treat Martinez for her physical injuries, testified that she was "upset" and "bleeding profusely from the top of her head." (Maldonado: Tr. 52-54, 56, 59, 63.) On cross-examination Maldonado explained that head wounds tend to bleed more profusely than an equivalent cut to another part of the body. (Id. at 66-67.)

  Martinez was still bleeding when the first police car arrived. (Martinez: Tr. 275.) She testified that she was crying while she was talking to the police officers: "I was crying because I was shock and I thought this man was going to kill me because he hit me three times on my head. I was thinking about my kids." (Id. at 276.)

  Martinez was transported to Lincoln Hospital (Maldonado: Tr. 64; Martinez: Tr. 110) where she remained for seven to eight hours and "they did a C.T. scan because I have a lot of laceration on the head and it was bleeding a lot." (Martinez: Tr. 169-70.)

  Detective Mark Davis interviewed Martinez at Lincoln Hospital approximately two hours after the robbery. (Davis: Tr. 364, 366; Martinez: Tr. 110, 204.) Detective Davis testified that Martinez described the robber as being "a male Hispanic, approximately 30 years of age" who was "short [with a] small frame." (Davis: Tr. 368; see also Martinez: Tr. 111-12.)

  April 10, 2002

  Six days later, on April 10, 2002, which was Martinez's daughter's birthday (Martinez: Tr. 112: "it was my daughter's birthday, that's why I . . . could never forget it."), Martinez was on her way to work at 8 a.m. and saw the man who had robbed her, Roman. (Id. at 113-15, 139.) Martinez was walking down East 161st Street, turned right onto Prospect Avenue, was walking down Prospect Avenue towards East 160th Street, the Prospect Avenue train station, and as she was approaching the steps of the train station, she saw the robber.*fn7 (Id. at 113-15.) Martinez testified: "Next to the stairs, I see a man looking towards me and I looking at him and I say, oh, God this is the man that took my purse." (Id. at 113.) Martinez immediately recognized Roman and "[h]e open his eyes, he was — he was like in shock that I recognized him." (Id. at 115.) Martinez chased him again and that "I see him running towards the same place that he was running when he took my purse." (Id. at 116.) Martinez called the police on her cellular phone and said, "I was robbed on April 4th, please send a cop I seen the guy who did it." (Id.)

  Martinez testified further:

What I did, I hide myself since I was going, then there was a kid, a guy asked me, are you okay because I was crying. And I say, sir, I was robbed five or six — something like that and I just saw the man. Do you see a man that's wearing a black jacket, black pants, and yes, this man is running . . .
I stay up there waiting for the police to come. But once, that there was a moment that when I look I couldn't see him. And I say, God, I cannot let go — I cannot let this man disappear on me. I cannot let this man disappear on me. So what I did was, I went downstairs again, okay. And I saw, I saw him again . . .
Right there on Prospect and 160, in the same area that he was talking to his friends, he was talking to a woman. . . . Same area when I saw him. When I saw him, I panicked and what he did, he start running towards Prospect and Montefiore. And then I start looking, I said why the police are not here and what I did, I saw marshals across the street that was going to take a car away and I went to them. And I told them please help me, I was robbed and I showed them a piece of paper that [Detective] Davis gave me and I showed them that I was robbed and I had — I have seen the guy who did it, please help me, please call the police.
(Id. at 117, 120.)

  The marshals used Martinez's cell phone to call the police. (Id. at 121.) Martinez testified that the robber started running (id. at 122) and the marshals:

tell me relax, stay next to me, they're going to come . . . Since the cop, they was not coming, they told me to go inside. They told me to go inside the van with . . . the marshal. Once I was inside, inside the van with him, someone call on the walkie talkie and say that the cops are back, you know, the officer arrive and they are — he told me to, that they there.

  Police Officers Shando Lowrance and Moises Feliz responded to a radio call from a police dispatcher and arrived at the scene approximately five minutes after receiving the call. (Lowrance: Tr. 290-92, 311.) Martinez got in their vehicle and they "look[ed] around for [the] suspect" for "approximately 8 to 10 minutes." (Lowrance: Tr. 292-93, 310; see also Martinez: Tr. 122-23.) Martinez testified:

The cops told me I'm sorry we cannot see him, we didn't see him. So they left me in the same place that, the same street for the train station that I saw Mr. Roman. And I told them please don't let me here, because maybe he's hiding and he's maybe capable of to do something to me.
(Martinez: Tr. 123; see Lowrance: Tr. 293, 310.)

  As the police car stopped at a red light, Martinez spotted Roman standing on the corner of 160th Street and Prospect Avenue, approximately five feet or less from the steps leading up to the train station. (Martinez: Tr. 123-24; Lowrance: Tr. 310-12.) Martinez testified:

They said okay we're going to take you to — I'm going to take you to a new train station . . . [T]here was a red light there. As I remember, something like my instinct to look back, I was inside the car, with the officer and something told me to look back the same area that he was hanging out with his friend because there was a group of people still there and when I look back I seen someone like really next to the, against the . . . wall from the stairs that had the same boots, the same black pants the same black jacket. And I screamed to the officer, that's the man. And then the officer got off and then I got off and then when they have him in the wall, I look at his face and I said, yes, that's the man who did it, that's the man.
(Martinez: Tr. 123-24.)

  The police arrested Roman, who was 5'6", 135 pounds, and 37 years old. (Lowrance: Tr. 290-91, 294, 299-300, 309-10.)

  Martinez testified that she had no difficulty seeing the defendant's face that day, that she had never seen him before April 4th, and that she had only seen him on April 4th and April 10th. (Martinez: Tr. 134-35.) When cross examined about whether she could have been mistaken regarding whether Roman was or was not the perpetrator, Martinez responded, "I'm sure a hundred percent . . . I'm sure he did it." (Id. at 173.) On redirect examination, the prosecutor asked Martinez again:

Q. Is there any doubt in your mind that this is the man who robbed you?
A. No, that's the man who did that to me, that's the man.
(Id. at 285.)

  Martinez explained to the jury how this incident has affected her:

Now that I'm waiting in the bus stop with my kid or even with myself anyone that come close to me or a group of guys I have to be looking back and always make sure what they have on and everything, like thinking that they're going to do anything to me. Anybody is running, you see me looking back or see what color and then when I have a lot of my money in my bag I take a cab. In one day this man have changed my life, not just me my kids, too.
(Id. at 286.) The 911 Tape

  A 911 call tape from April 10, 2002 was admitted into evidence as an excited utterance, and played for the jury. (Tr. 134; see also Tr. 125-31.) The portion of the 911 tape that was played for the jury was where the city marshal relayed Martinez's description of the man she had just seen. (Tr. 128.) The judge admitted it as an excited utterance, ruling that it was not the product of the excitement of the crime but of the excitement of recognizing a person who had committed a past crime. (Tr. 128, 130.)

  Defense counsel objected that this was well after the crime itself and that since Martinez was standing right next to city marshals, she had no reason to be afraid and therefore it did not meet the excited utterance standard. (Tr. 129, 131.) The judge responded:

I'm ruling that that is a product of the excitement not the robbery six days earlier, [not] at all. It's a product of the excitement of April 10th, seeing her assailant. Case law of excited utterance does not have to be produced by viewing a criminal event. It's been admitted in negligence cases where somebody saw a car go through a red light and a person yelled out oh, my God, he ran the red light.
So here the event which is stimulating her recollection is recognizing the person on April 10th who robbed her several days earlier.
(Tr. 130.)

  Martinez's Disputed Description of Roman

  The judge allowed Detective Davis, who interviewed Martinez at the hospital two hours after the robbery, to testify about the description Martinez had given him, although Martinez herself already had testified to this description. (Tr. 342-52; see page 14 above for a summary of Davis' testimony.) The prosecution offered Detective Davis's statement under People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444 (1990), for the purpose of demonstrating that Martinez was able to form a mental impression of her assailant and provide a verbal description. (Tr. 326, 342-43, 346.) Defense counsel opposed the admission of this testimony as improper hearsay, observing that the complainant had already testified to this description and that other, more immediate descriptions were going to be brought in through the testimony of other officers. (Tr. 343-45.)

  The defense argued that Huertas does not envision multiple immediate descriptions. (Tr. 345.) The prosecutor argued that she was not offering it to bolster the testimony and stated that it is not a prior inconsistent statement but that it was offered to show that Martinez was able to accurately identify her assailant and was able to accurately describe the assailant's appearance. (Tr. 345-46.) The prosecutor continued to say that defense's whole line of cross-examination was based upon the argument that Martinez was unreliable as a witness because she was going through the stress of the attack and she was not able to form an accurate mental impression of Roman, and the prosecution was offering Detective Davis' testimony to show that that was not true, not to bolster her testimony as to Roman's description. (Tr. 346.) The defense argued that the prosecutor was offering it for the accuracy of the statement made to Detective Davis, which Huertas holds is not allowed. (Id.)

  The judge ruled:

[The Court in Huertas] said that particularly in a case where identification is the principle issue and where the defense challenges that the witness was mistaken, not has falsely identified her assailant but is mistaken in identifying the defendant as her assailant, that evidence concerning the description given shortly after the crime enables the jury to compare the defendant's appearance at that time with the description given and determine, whether or not the complainant had an ability to perceive her assailant to perform a mental image of her assailant and to transfer the mental image of the corporeal identification made six days earlier.
Ultimately yes, that does go to the fact of whether her identification is accurate. That's the issue in the case is her identification reliable, is it accurate. So the People's use of the concept of accuracy does not take it outside of the purview of Huertas.
(Tr. 347-48.)

  After Detective Davis' direct testimony (summarized on page 14 above) the judge instructed the jury:

[Detective Davis'] testimony was permitted . . . for a limited purpose that is in your evaluating whether Ms. Martinez had the capacity to observe her assailant and to remember the physical characteristic of her assailant you may consider the description that she gave to any police officers shortly after the commission of the crime.
You may consider that description in comparing it with the appearance of the defendant as he appeared at about that time, back in April of 2002. Because you may consider that if . . . the description that she gave does not match the physical characteristic of the defendant as he appeared at that time that is a factor that you may consider in determining whether the witness had the capacity and abilities to observe and remember the physical features of her assailant.
Likewise, if the description she gave does match the physical characteristics of the defendant as he appeared at that time that is a factor again which you may assess, which you may consider in assessing the witness the capacity to have observed the assailant and to remember the features of her assailant.
(Tr. 370-71.) The Defense Case at Trial*fn8

  Officer Zajo Hoti, one of the responding officers on April 4, testified that Martinez told him that the perpetrator of the robbery was 5'9", 190 pounds, and about 20 years old. (Hoti: Tr. 436.) Sgt. Murphy testified that Martinez told him that the robber was 5'10" to 6' tall. (Murphy: Tr. 425.)

  On cross-examination, the prosecutor tried to explain the discrepancies in Martinez's descriptions by pointing out that Martinez was crying when she was talking to Officer Hoti, that he questioned her while she was crying and being treated by E.M.S., that he doesn't speak Spanish (Martinez's native language), and that Martinez did not check the complaint report for accuracy or mistakes or sign the complaint report to confirm that it was accurate.*fn9 (Hoti: Tr. 439-40.) Martinez's height description to Sgt. Murphy was given when he and another officer were seated in a patrol car with her, and what she said was the robber's height was between the height of Sgt. Murphy and the other officer. (Murphy: Tr. 427-28.)

  The judge allowed Roman himself to be "published" to the jury by the defense without actually testifying. (Tr. 444; see also Tr. 416-19.) The judge explained to the jury: THE COURT: By publish, he wants you to be able to view the defendant, okay. Please stand in front of the jury.

  (Whereupon, the defendant is published to the jury.)


THE COURT: Since there has been testimony and cross-examination concerning the issues of height and weight and builds of persons, you're being permitted to view the defendant. Okay. And age. You can return to your seat.
(Tr. 444.) The defense rested after this. (Tr. 444.)*fn10

  The Defense Summation

  Defense counsel stated in summation that a simple question was involved — did Martinez "accurately identify the person who had robbed her. That's it." (Defense Summation: Tr. 476.) Defense counsel argued that Martinez made a mistake because of her anger and fear: "This is a case of anger and fear. And that anger and fear led to mistake." (Defense Summation: Tr. 477.) Defense counsel went on to state that Martinez had a fear of strangers and interactions, she does not socialize, and that she has a fear of banks. (Id.) He also stated, "Anger plus fear equal[s] a mistake." (Id. at 480; see also id. at 491.) Defense counsel also implied that Martinez may have "rehearsed" her testimony. (Id. at 478.) Defense counsel reviewed at length the testimony about conflicting descriptions of the robber, arguing mistaken identity. (Id. at 479-89, 491, 494-95.)

  The Prosecution Summation

  The prosecutor's summation took about thirty pages of transcript. (Prosecution Summation: Tr. 498-527.) The first words out of the prosecutor's mouth took defense counsel's "anger and fear" argument and turned it onto Roman, stating:

MS. CORREA: Good morning, ladies and gentlemen. You know, [defense counsel] Mr. Sterman is absolutely correct that anger plus fear equals mistake. But in this case it is not Ms. Martinez' anger or fear, it's the defendant's anger. The defendant obviously has pent up anger issues, if he has a reason to hit a woman three times on the head.
(Prosecution Summation: Tr. 498.) She said Roman's mistake was thinking Martinez was an "easy target," but she got up and chased after him. (Id.) Defense counsel did not object. (Id.)

  The prosecutor also said that Roman's running away from Martinez on April 10 was a sign of his guilt: "Why is a man who she's never seen before running away from this small woman. I submit to you, that he's running away because he's the one who robbed her six days ago. . . . [H]e's doing like Spider Man, he's looking around to see if cop cars are coming. Come on, does that not show the defendant's guilt." (Id. at 504-05.) Defense counsel did not object. (Id.)

  The prosecutor told the jury, in reference to defense counsel, that "it's a shame that a person with a law degree feels the need to twist the complainant's testimony. . . ." (Id. at 502.) The defense's objection was implicitly overruled at the time. (Tr. 502.) Outside the jury's presence, after the end of summations, the judge stated that this comment "would have been better left unsaid" (Tr. 539) but also stated: "but I don't see any prejudice to the defendant from that assertion." (Id. at 539-40.)

  Regarding the credibility of Martinez's testimony, the prosecutor stated, "Ms. Martinez, certainly could not have rehearsed the anguish, the emotion, the torment that you saw her going through as she sat in this chair and relived what she went through on April 4, 2002." (Id. at 500.) Defense counsel did not object. (Id.) The prosecutor summarized Martinez's identification testimony. (Tr. 500-01, 503-04.) When Martinez is hit on the head, "[s]he turns around, that's the first identification." (Tr. 500-01.) "He's arms length from her, she sees his face." (Tr. 501.) The prosecutor referred to the fact that the robber was wearing sunglasses, and sarcastically commented: "We've been here for two weeks. If I put on sunglasses you guys don't recognize me." (Tr. 501.) The defense's objection to that last remark was overruled. (Id.) The prosecutor also said that Martinez's identification of Roman was verified by his recognition of Martinez, reminding the jurors of Martinez's testimony that when Roman saw her, his eyes widened and he ran away: Roman "recognized her as clearly as she recognized him." (Tr. 507.) Defense counsel did not object. (Id.)

  The prosecutor told the jury that Martinez is "a hard working woman with three young kids." (Id. at 508.) The prosecutor added:

I submit the most important thing wasn't talking to Officer Hoti and filling out countless police documents.
  The most important thing on her mind was getting to her son who was waiting at the day care center. So I submit to you, ladies and gentlemen, that she was crying, that she was nervous, that she was maybe upset, bleeding, thinking of her son. . . . I submit Officer Hoti made a mistake. (Tr. 510-11.) Once again, defense counsel did not object. (Id.) The prosecutor, in referring to Officer Hoti's mistake, likened it to a mistake in filling an order at McDonalds (Tr. 510-12), referring to a theme she had utilized during voir dire.

  Referring to a comment by Detective Davis in his testimony which referred to Martinez's getting up and chasing her robber, to which an objection had been raised and sustained, the prosecutor said, "I'm glad that Det. Davis said it was bold, because it was bold." (Id. at 505.) Once again, defense counsel did not object. (Id.) The judge later stated that this comment was improper but "not prejudicial," since "[a]nybody would say that" about "somebody who's been threatened with a gun, beaten over the head three times with a gun and robbed to get up and chase after their assailant . . . either the person is reckless with abandon or they are bold." (Tr. 532.)

  When describing the description of the robber which Martinez gave to Detective Davis, the prosecutor said:

When Det. Davis is in the hospital in a more relaxed environment after Ms. Martinez has already digested the fact that she got robbed and I'm going to have [to] make due without the hundreds, after she digested the fact I have to go to my son, and is treated for injuries, more steadily she is able to tell Det. Davis the description, which I submit she gave at the scene . . . Are we getting closer to the defendant's description, ladies and gentlemen. Taking away the stress, the crying, the anguish of thinking oh, my God, how am I going to pay the rent. The anguish of thinking who's going to pick up my kid. I'm bleeding over my jacket.
(Summation: Tr. 512.) Once again, defense counsel did not object. (Id.)

  The prosecutor said that Martinez's identification at the train station was like a "built in lineup" (id. at 503), since "it's not like the defendant was the only man sitting on the corner and standing on the corner, and she points to him. She points to that man out of a group of other men." (Id. at 504.) Once again, defense counsel did not object. (Id.)

  The prosecutor referred back to the potential jurors' different descriptions of her during voir dire and argued that "[d]escriptions are subjective. What is not subjective here is the recognition that Ms. Martinez had when she saw the defendant on April 10, 2002." (Id. at 522.)

  At the end of her summation, the prosecutor said that while Martinez onlysaw Roman for a short time, "where you're staring face to face with the man that you believe is taking you away from your three young kids, face to face from the man you believe is going to be responsible for it being your last day on earth," the person is "forever seared into Ms. Martinez' mind." (Tr. 523.) The prosecutor added that the "question is not whether [Martinez] remembers the defendant's face. The question you should consider is whether you would ever forget that face." (Id. at 523.) Once again, defense counsel did not object. (Id.)

  The Defense Motion for a Mistrial

  Immediately following the prosecutor's summation, defense counsel moved for a mistrial, claiming prosecutorial misconduct. (Tr. 529-30.) Defense counsel objected to the prosecutor's misstatements of trial testimony, improper denigration of the defense, and improper statements concerning Martinez's actions. (Id.) The judge pointed out that defense counsel did not object (id. at 530-31), to which defense counsel responded that "if [he] did not object, it was an error but nonetheless . . ." (id. at 531). The judge denied the mistrial motion on all grounds. (Id. at 540; see also id. at 531-40.) The judge agreed to give several curative jury instructions. In response to the prosecutor's statement about defense counsel, the trial judge instructed the jury that if "you think [an attorney] misstated the evidence or they have improperly analyzed the evidence, then don't hold it against the attorney. Just simply reject the argument." (Id. at 546.) The judge also instructed the jury that "[i]f any argument was made in summation about some portion of the evidence which I had ordered to be stricken . . . you disregard that argument." (Id. at 548; see also id. at 531-32.) Defense counsel explicitly declined a more specific jury instruction referencing the prosecutor's summation reference to Detective Davis' struck testimony that Martinez was "bold." (Id. at 532.)

  Verdict and Sentence

  On September 24, 2002, the jury found Roman guilty of two counts of first degree robbery. (Tr. 598, 601-03.) On November 14, 2002, the judge sentenced Roman, as a second violent felony offender, to concurrent terms of 18 years imprisonment. See People v. Roman, 5 A.D.3d 311, 311, 773 N.Y.S.2d 551, 551 (1st Dep't 2004).

  Direct Appeal

  On December 31, 2003, represented by the Office of the Appellate Defender, Roman appealed to the First Department, claiming that: (1) "the prosecutor engaged in substantial misconduct during both voir dire and summation by directly asking the jurors to place themselves in the shoes of the victim, improperly bolstering testimony with her own opinions and conjecture, and denigrating the defense, thus depriving Mr. Roman of the core constitutional guarantees of due process and an impartial jury" (Dkt. No. 5: Killian Aff. Ex. 1: Roman 1st Dep't Br. at 22; see also id. at 22-35; Killian Aff. Ex. 3: Roman 1st Dep't Reply Br. at 3-12); (2) "Mr. Roman was denied a fair trial by the improper admission of two pieces of hearsay evidence that the prosecution relied upon to bolster the identification made by the single witness and used to suggest to the jury that there was more impressive evidence than there in fact was" (Roman 1st Dep't Br. at 36), to wit, the admission of (a) testimony of Detective Davis regarding the description provided by the victim, and (b) the admission of part of a 911 tape as the excited utterance of Martinez (id. at 36-43; see also Roman 1st Dep't Reply Br. at 19-22); (3) the verdict was against the weight of the evidence (Roman 1st Dep't Br. a 44-49; Roman 1st Dep't Reply Br. at 23-29); and (4) petitioner's sentence was excessive and should be reduced in the interest of justice (Roman 1st Dep't Br. at 50-51).

  The First Department unanimously affirmed Roman's conviction, holding:

The verdict was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification and credibility. The purported inconsistencies in the victim's description of the robber are readily explainable, and the evidence warrants the conclusion that she provided a consistent description that closely matched defendant's characteristics.
The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motion made after the summation. Although, as the People concede, the prosecutor should not have made a comment directed at defense counsel, the court's curative instruction prevented this isolated remark from causing any prejudice. The other challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made in response to defense arguments.
The court properly admitted testimony about the victim's description of her assailant to a detective, since this evidence provided the jury with an opportunity to compare defendant's appearance with a description provided shortly after the crime.
The court properly admitted a portion of a 911 tape as an excited utterance. The record establishes that the victim was operating under the influence of a startling event and had no time for studied reflection. Moreover, there was an added assurance of reliability since the victim was subject to cross-examination.
We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
People v. Roman, 5 A.D.3d 311, 311-12, 773 N.Y.S.2d 551, 551-52 (1st Dep't 2004) (citations omitted).

  The New York Court of Appeals denied leave to appeal on July 1, 2004. People v. Roman, 3 N.Y.3d 662, 782 N.Y.S.2d 704 (2004).

  Roman's Instant Habeas Petition

  Roman's federal habeas petition renewed the arguments made in his First Department appeal brief (except his excessive sentence claim). (Dkt. No. 1: Pet.; see also Dkt. No. 7: Traverse.)


  I. THE AEDPA REVIEW STANDARD*fn11 Before the Court can determine whether Yapor is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

  In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that 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 proceeding.
28 U.S.C. § 2254(d)(1)-(2).*fn12

  The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519.*fn13 Both, however, "restrict? the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.*fn14 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.*fn15

  In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.*fn16 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn17 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.*fn18 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn19 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S. Ct. at 2149.*fn20

  Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn21 Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 125 S. Ct. at 853.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

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.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "`without merit.'" "Such a summary determination, even absent citation of federal case law, is a `determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn22 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn23 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. ROMAN'S CLAIM THAT THE PROSECUTION'S CLOSING ARGUMENT VIOLATED HIS RIGHT TO A FAIR TRIAL SHOULD BE DENIED

  Roman claims that the prosecutor unfairly prejudiced the jury during her summation by denigrating Roman and his defense counsel, misstating evidence, and appealing to the sympathies and fears of the jury. (Dkt. No. 1: Pet. at pp. 6-12.)

  A. Federal Habeas Review Standard for Prosecutorial Misconduct Claims*fn24

  Prosecutorial misconduct violates a defendant's due process rights only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 3109 (1987); accord, e.g., United States v. Muja, No. 02-1175, 102 Fed. Appx. 212, 216, 2004 WL 1406312 at *3 (2d Cir. June 23, 2004) ("`It is a rare case in which improper comments in a prosecutor's summation are so prejudicial that a new trial is required.'"); United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (Even on direct federal appeal, "[b]efore a conviction will be reversed, a prosecutor's comments on summation must `so infect? the trial with unfairness as to make the resulting conviction a denial of due process.' The defendant must point to `egregious misconduct.'") (quoting Donnelly v. DeChristofaro, 416 U.S. 637, 643, 647, 94 S. Ct. 1868, 1871, 1873 (1974)); United States v. Elias, 285 F.3d 183, 190 (2d Cir.) ("To warrant reversal, the prosecutorial misconduct must cause the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.") (internal quotations omitted), cert. denied, 537 U.S. 988, 123 S. Ct. 430 (2002); United States v. McCarthy, 54 F.3d 51, 55 (2d Cir. 1995), cert. denied, 516 U.S. 880, 116 S. Ct. 214 (1995); Blisset v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S. Ct. 158 (1991).*fn25 Stated another way, "the law is settled that `federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S. Ct. 230 (1994).*fn26 To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blisset v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S. Ct. at 3109 ("it is important `as an initial matter to place th[e] remar[k] in context'"); United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S. Ct. 104 (1986).*fn27

  B. Application of the Standard to Roman's Prosecutorial Summation Misconduct Claim

  Under New York law, statements during summation are permissible if they constitute a "fair comment on the evidence" at trial and reasonable inference therefrom, or a "fair response to remarks made by the defense counsel during summation." People v. Perez, 794 N.Y.S.2d 439, 440 (2d Dep't 2005); see also, e.g., People v. Seit, 86 N.Y.2d 92, 99, 629 N.Y.S.2d 998, 1001 (1995) (Prosecutor's comments did not warrant reversal when made in "fair response to defense counsel's summation"); People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 381 (1993) ("[T]he prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response."); People v. Nazario, 4 A.D.3d 183, 184, 771 N.Y.S.2d 649, 649-50 (1st Dep't 2004); People v. Parrella, 4 A.D.3d 132, 132, 771 N.Y.S.2d 511, 512 (1st Dep't), appeal denied, 2 N.Y.3d 804, 781 N.Y.S.2d 303 (2004).

  Here, Roman claims the prosecutor "offer[ed] conjecture about thoughts, emotions, and actions" of the complainant. (Pet. at p. 9.) The record supports the First Department's holding that most of the challenged remarks were a "fair comment on the evidence, and reasonable inferences . . . drawn therefrom, made in response to defense arguments." See People v. Roman, 511 A.D.3d 311, 311, 773 N.Y.S.2d 552, 552 (1st Dep't 2004).

  First, Martinez's trial testimony (Tr. 275-76) fully supported the prosecutor's comments that Martinez was "a hard working woman with three young kids" who was "crying, . . . nervous . . . [and] thinking of her son" while giving the initial description of her assailant (Tr. 507). Second, the prosecutor's argument during summation that Martinez was in a less confused state when she gave a statement to Detective Davis at the hospital than when she spoke to Officer Hoti directly after the crime constituted a reasonable inference based on Martinez's testimony and the two hours that had passed between the first and second statements. (See page 14 above.) Moreover, these statements responded directly to the defense's theory of mistaken identity by referencing Martinez's mental state at the time of the assault to explain why her later description of the assailant was more accurate than the initial police report. (See pages 22-23 above.) Even if the statements also appealed to the fears and sympathies of the jury, "the over-all effect . . . was within the range of acceptability." People v. D'Alessandro, 184 A.D.2d 114, 119, 591 N.Y.S.2d 1001, 1005 (1st Dep't 1992) (prosecutor's comments appealing to sympathies and fears of the jury were not grounds for reversal when summation generally fell within the range of acceptable rhetoric), appeal denied, 81 N.Y.2d 884, 597 N.Y.S.2d 945 (1993).

  Third, the prosecutor's colorful description of Martinez's pursuit of Roman on April 10, 2002, in which she stated Roman was "doing like Spider Man" and looking over his shoulder, also qualified as a fair comment on Martinez's testimony regarding the pursuit. (Tr. 504-05). The trial court had permitted testimony regarding Roman's flight (id. at 113-16), and the prosecutor's characterization was a direct inference from that testimony. See, e.g., People v. Johnson, 287 A.D.2d 651, 651, 732 N.Y.S.2d 22, 23 (2d Dep't 2001) ("[E]vidence of flight may be admitted to raise an inference of guilt even where it is ambiguous and does not exclude every possible innocent motive."), appeal denied, 97 N.Y.2d 706, 739 N.Y.S.2d 106 (2002).

  Fourth, Roman claims the prosecution mischaracterized Detective Davis' testimony by stating that he testified the assailant was described as 5' 6" tall. (Pet. at 18.) Roman's claim that Davis actually testified that the assailant was 5' 9" is mistaken; in fact he testified that Martinez described the assailant as "a little bit larger than [Martinez and] not my size, height 5' 9." (Davis: Tr. 367.) Because defense counsel failed to object when the prosecutor's summation statement was made (Tr. 512), and the referenced trial testimony was sufficiently ambiguous to be susceptible to multiple interpretations, this Court accepts the trial court's finding that the statement was proper. See, e.g., United States v. Robinson, 485 U.S. 25, 31, 108 S. Ct. 864, 868 (1988) (deferring to the trial court's interpretation of ambiguous language when such interpretation justified prosecution's challenged closing statement and defense counsel did not object during summation). Even if this statement had misinterpreted trial testimony, a single inaccurate comment during summation is not grounds for habeas relief. See, e.g., Tankleff v. Senkowski, 135 F.3d 235, 251-53 (2d Cir. 1998) (even a "particularly troubling" misstatement of a witness' pretrial testimony during summation is not grounds for habeas relief when it was short and fleeting); United States v. Simons, No. 96-1730, 129 F.3d 114 (table), 1997 WL 701369 at *2 (2d Cir. Nov. 10, 1997) ("It is a rare case in which improper comments in the prosecutor's summation are so prejudicial that a new trial is required.") (internal quotations omitted), cert. denied, 523 U.S. 1110, 118 S. Ct. 1683 (1998).

  The prosecutor's other challenged statements were appropriate rebuttals to defense arguments. The prosecutor argued that Martinez would not have been able to rehearse the emotion present in her testimony in response to the defense's suggestion (Tr. 478) that Martinez had in fact rehearsed her testimony. See, e.g., People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572, 579-80 (1st Dep't 1997) ("Faced with defense counsel's focused attack on their [witness'] credibility, the prosecutor was clearly entitled to respond by arguing that the witnesses had, in fact, been credible."), appeal denied, 91 N.Y.2d 976, 672 N.Y.S.2d 855 (1998); see also, e.g., People v. Ruiz, 8 A.D.3d 831, 832, 778 N.Y.S.2d 559, 559 (3d Dep't) (prosecution's summation may respond to attacks on credibility of prosecution witnesses), appeal denied, 3 N.Y.3d 711, 785 N.Y.S.2d 39 (2004).*fn28 Similarly, the prosecutor, in analogizing Officer Hoti's possible error when taking Martinez's statement to that of a McDonald's employee, attempted to demonstrate that despite the defense's contentions to the contrary, Officer Hoti had made a mistake even though he was trained to record descriptions of suspects. (Tr. 510-12.) The prosecutor's statement that Roman "must have pent up anger issues" was likewise a permissible response to the defense's theme (Tr. 477) that "fear and anger" motivated Martinez's testimony. See, e.g., People v. Overlee, 126 A.D.2d at 143, 666 N.Y.S.2d at 579 (prosecution's summation impugning defendant's character fell "within the bounds of permissible rhetorical comment" when responding to similar defense attacks on prosecution witnesses.)

  Although most of the prosecutor's statements discussed above fell within the "wide bounds of rhetorical argument comment permitted in closing arguments," People v. Shelton, 307 A.D.2d 370, 372, 763 N.Y.S.2d 79, 82 (2d Dep't 2003), aff'd, 1 N.Y.3d 614, 777 N.Y.S.2d 9 (2004), two remarks crossed the line into impropriety. Neither, however, violated Roman's due process right to a fair trial. First, the prosecutor stated that "it's a shame that a person with a law degree feels the need to twist the complainant's testimony." (Tr. 502.) "It is improper for a prosecutor to impugn defense counsel's integrity." People v. LaPorte, 306 A.D.2d 93, 95, 762 N.Y.S.2d 55, 57 (1st Dep't 2003) (prosecutor crossed the "well-defined limits of proper rhetorical comment" with summation comments suggesting the defense spoke "mumbo jumbo" and that it believed "the moon is made of green cheese"); see also, e.g., People v. Pagan, 2 A.D.3d 879, 880-81, 769 N.Y.S.2d 741, 742 (2d Dep't 2003) (prosecutor improperly stated during summation that defense counsel had tried to confuse the complainant and mislead the jury); People v. Goldstein, 196 Misc. 2d 741, 744, 763 N.Y.S.2d 390, 393 (Sup.Ct. App. Term 2003) (prosecutor improperly denigrated defense counsel by stating he tried to confuse the complainant during cross examination and mislead the jury during summation). Indeed, the prosecution conceded before the First Department that this was an improper statement by the prosecutor. See People v. Roman, 5 A.D.3d at 311, 773 N.Y.S.2d at 552 (quoted at page 28 above).

  In a federal habeas petition, improper conduct by the prosecution during summation must be considered in light of any curative instruction from the trial court, the severity of the comment, and the likelihood of conviction if the statement had not been made. In this context, the prosecutor's denigrating defense counsel did not deprive Roman of a fair trial. See, e.g., United States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004) ("[E]ven if the [prosecutor's] comments were improper, they did not cause [the defendant] substantial prejudice. . . . The alleged misconduct, if any, was not severe in this case[, the district judge] provided an immediate curative instruction [and] . . . it is highly likely [the defendant] would have been convicted even in the absence of the prosecutor's remarks."); United States v. Drescher, No. 01-1705, 77 Fed. Appx. 45, 48, 2003 WL 22299681 at *2 (2d Cir. Oct. 8, 2003) (despite improper remark by prosecution in its rebuttal summation, given the "innocuous interpretation drawn by the district judge, the strength of the evidence against [the defendant], and the district court's instructions to the jury, which insured the jury's proper understanding of the defendant's rights, we find that the incident was harmless beyond a reasonable doubt and had no effect on the jury's deliberations."); United States v. Gambina, Nos. 00-1545, 02-1076, 51 Fed. Appx. 40, 42, 2002 WL 31558029 at *1 (2d Cir. Nov. 19, 2002) ("[T]he prosecutor's remarks did not cause `substantial prejudice.' While some of the? comments were inappropriate, none were severe or egregious. Moreover, the challenged remarks were substantially mitigated by defense counsel's objections, the trial court's instructions, and the prosecutor's clarifications. Finally, there was overwhelming evidence of [the defendant's] guilt."); United States v. Elias, 285 F.3d at 190-92 (prosecution comments during summation that "grossly mis-characterized [the defense's argument] and said that the defense was . . . insulting [a] battered victim" do not require a new trial when they constitute "an aberration in an otherwise fair proceeding," the trial judge issued a curative jury instruction and the defendant "most likely would have been convicted even without the improper remarks."), Rao v. Artuz, No. 97-2703, 199 F.3d 1323 (table), 1999 WL 980947 at *2-3 (2d Cir. Oct. 22, 1999) ("strength of the evidence against the petitioner" was enough to "bar? the conclusion that he suffered actual prejudice as a result of the prosecutor's remarks"); Tankleff v. Senkowski, 135 F.3d at 253 ("[S]everity of the prosecutor's misconduct . . . was mitigated by the brevity and fleeting nature of the improper comments" and "the evidence was [not] so closely balanced that the prosecutor's comments were likely to have had a substantial effect on the jury"); Herrera v. Lacy, No. 95-2800, 112 F.3d 504 (table), 1996 WL 560760 at *2 (2d Cir. Oct. 3, 1996) ("While some improper statements were made . . ., the misconduct was not so severe that it was not rendered harmless by the court's curative instruction and the substantial evidence of [petitioner's] guilt."); Bentley v. Scully, 41 F.3d 818, 824-25 (2d Cir. 1994) (denying prosecutorial misconduct claim where prosecution presented "compelling evidence" against petitioner and alleged misconduct was both brief and isolated), cert. denied, 516 U.S. 1152, 116 S. Ct. 1024 (1996); United States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (court's instructions to jury obviated any prosecutorial error); Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (although prosecutor made improper statements during summation, no prejudice to defendant where trial court instructed jury that the summations were not evidence and case against defendant was strong); Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir. 1991) (no violation where "cumulative effect of the prosecutor's alleged misconduct was not so severe as to amount to the denial of a fair trial [and] absent the alleged misconduct, . . . overwhelming evidence" existed against petitioner); Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990) ("clear evidence of guilt demonstrates that [petitioner] was not prejudiced by the prosecutor's" misconduct), cert. denied, 501 U.S. 1221, 111 S. Ct. 2835 (1991); United States v. Parker, 903 F.2d 91, 98-99 (2d Cir.) (even where prosecutor acted improperly, no claim for misconduct where "transgression was isolated, the trial court took swift and clear steps to correct [improper conduct], and the evidence against the defendant was strong"), cert. denied, 498 U.S. 872, 111 S. Ct. 196 (1990); United States v. Coffey, 823 F.2d 25, 28 (2d Cir. 1987) (no constitutional violation where alleged misconduct was isolated and not intentional, the trial court provided curative instructions and trial evidence demonstrated defendant's guilt); United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam) ("the existence of substantial prejudice turns upon the strength of the government's case: if proof of guilt is strong, then the prejudicial effect of the [misconduct] tends to be deemed insubstantial . . ."), cert. denied, 456 U.S. 989, 102 S. Ct. 2269 (1982); James v. Artus, 2005 WL 859245 at *12.*fn29

  Here, Martinez identified Roman both outside a crowded train station on April 10, 2002 and during the trial. (Tr. 113, 285; see pages 14, 17 above.) Moreover, the trial court issued a curative instruction directing the jury not to fault attorneys for making arguments on behalf of their clients. (Tr. 540-41, 545.) The jury is presumed to obey a court's curative instruction. See, e.g., Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S. Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . ., unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709 (1987) ("juries are presumed to follow their instructions"); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S. Ct. 488, 463 (1962) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it.").*fn30 Finally, the attack on defense counsel consisted of a single comment within the context of a summation spanning twenty-nine pages. In this context, the trial court reasonably concluded the statement was unlikely to have prejudiced the jury to an extent requiring a mistrial. See, e.g., People v. Robinson, 16 A.D.3d 768, 790, N.Y.S.2d 586, 588-89 (3d Dep't 2005) (Prosecutor's improper statements during summation, including denigration of defense counsel, is not grounds for reversal where "it did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process."); People v. Wright, 269 A.D.2d 831, 831, 703 N.Y.S.2d 782, 782 (4th Dep't) ("Although we agree that the prosecutor improperly impugned the defense, those comments did not constitute `a pervasive pattern of misconduct sufficient to deny defendant due process of law.'"), appeal denied, 94 N.Y.2d 950, 710 N.Y.S.2d 7 (2000).

  The prosecutor's second improper statement, a single reference to Detective Davis' stricken testimony that Martinez must have been "bold" to pursue her attacker, also constitutes harmless error. (See Pet. at p. 18.) See, e.g., People v. Cain, 16 A.D.3d 288, 288, 792 N.Y.S.2d 60, 61 (1st Dep't 2005) ("The prosecutor's brief and isolated summation reference to testimony that had been stricken from the record does not warrant reversal."); People v. Simpson, 262 A.D.2d 177, 178, 692 N.Y.S.2d 525, 526 (1st Dep't) (references to stricken testimony do not warrant reversal absent a pattern of improper or inflammatory language during summation), appeal denied, 94 N.Y.2d 829, 702 N.Y.S.2d 600 (1999). Defense counsel failed to object to the remark during summation and the trial court later reasonably found it not prejudicial. (Tr. 532). See People v. LaValle, 3 N.Y.3d 88, 116, 783 N.Y.S.2d 485, 500 (2004) (citing People v. Cahill, 2 N.Y.3d 14, 14 & n. 45, 777 N.Y.S.2d 332, 365 & n. 45 (2003) (prosecutor's references to victim's beauty and courage during summation did not provide grounds for reversal)). Further, the trial judge issued a curative charge, instructing the jury to disregard any arguments based on stricken testimony. (Tr. 548-49.) Again, considering the isolated nature of the remark, the trial judge's corrective jury instruction, and the strength of the evidence supporting the jury's verdict, this Court cannot say that the First Department's decision was erroneous, much less find error under the AEDPA review standard.*fn31


  Roman claims the prosecution prejudiced the jurors with demonstrations and hypothetical questions posed during voir dire. (Dkt. No. 1: Pet. at pp. 4-6.) Specifically, he claims the prosecutor appealed to the fears and sympathies of the jury by improperly asking them to think of themselves as crime victims while gauging their general attitudes towards the accuracy of eyewitness identifications. (Id.)

   A. Adequate and Independent State Ground Doctrine*fn32

   The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations & internal quotations omitted).*fn33

   "[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must `clearly and expressly state ? that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").*fn34 Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10.

   B. Roman's Claim Of Prosecutorial Misconduct During Voir Dire is Procedurally Barred

   After addressing certain of Roman's appeal claims, the First Department held that "[d]efendant's remaining contentions are unpreserved and we decline to review them in the interest of justice." People v. Roman, 5 A.D.3d 311, 312, 773 N.Y.S.2d 551, 552 (1st Dept 2004) (quoted more fully at page 29 above). These "remaining contentions" include Roman's voir dire claim since it was not otherwise specifically addressed by the First Department.

   State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559 (1991).

   Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,*fn35 here the First Department explicitly stated that it found all of Roman's claims not specifically addressed to be "unpreserved," 5 A.D.3d at 312, 773 N.Y.S.2d at 552, and the fact that the First Department also stated the conclusion it would reach on the merits "[w]ere [it] to review these claims," id., does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 & n. 4 (2d Cir. 2000) ("where a state court says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 & n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed meritsrested on adequate and independent state grounds); Yapor v. Mazzuca, 04 Civ. 7966, 2005 WL 894918 at *22 (S.D.N.Y. Apr. 19, 2005) (Peck, M.J.) (declining to review challenge to jury instruction when state court ruled the claim was unpreserved); James v. Ricks, No. 01 CV 4106, 2003 WL 21142989 at *12 & n. 8 (E.D.N.Y. Mar. 6, 2003) (state decision which "found the petitioner's ineffective assistance of counsel claim was procedurally barred and without merit" rested on adequate and independent state grounds.); Campos v. Portuondo, 193 F. Supp. 2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be `either meritless or unpreserved.' Unlike the conjunctive `and,' the use of the disjunctive `or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir.), cert. denied, 540 U.S. 958, 124 S. Ct. 415 (2003); Jones v. Duncan, 162 F. Supp. 2d 204, 211 (S.D.N.Y. 2001) (Peck, M.J.) ("The First Department's use of the conjunctive `and' rather than the disjunctive `or' clearly shows that the First Department found these claims to be unpreserved.").*fn36 Thus, the First Department's decision here unambiguously rested on a state procedural ground.*fn37

   Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn38 In order to preserve his prosecutorial misconduct during voir dire claim for appellate review, Roman was required to object at the time of the voir dire. See, e.g., C.P.L. § 470.05(2); People v. Wright, 5 A.D.3d 873, 875, 773 N.Y.S.2d 486, 490 (1st Dep't) (prosecutor's remarks during voir dire were unpreserved for appellate review when defense counsel did not object), appeal denied, 3 N.Y.3d 651, 782 N.Y.S.2d 422 (2004); People v. Koury, 268 A.D.2d 896, 898, 701 N.Y.S.2d 749, 752 (3d Dep't) (failure to object during voir dire renders the issue "unpreserved for appellate review"), appeal denied, 94 N.Y.2d 949, 710 N.Y.S.2d 6 (2000); People v. Sedney, 254 A.D.2d 376, 376, 678 N.Y.S.2d 534, 534 (2d Dep't 1998) ("The defendant's current contentions with respect to . . . voir dire are unpreserved for appellate review. The defendant did not object during jury selection . . ."), appeal denied, 92 N.Y.2d 1053, 685 N.Y.S.2d 432 (1999); People v. Amaro, 216 A.D.2d 172, 172-73, 629 N.Y.S.2d 208, 209 (1st Dep't) ("Defendant's claim that he was deprived of a fair trial by the court's restrictions on his questioning of prospective jurors about their attitudes toward police officers . . . is unpreserved for appellate review as a matter of law, no objection having been made to the manner in which the court conducted the voir die. . . ."), appeal denied, 87 N.Y.2d 843, 638 N.Y.S.2d 602 (1995); see also, e.g., Lora v. West, 04 Civ. 1902, 2005 WL 372295 at *11 (S.D.N.Y. Feb. 17, 2005); Yapor v. Mazzuca, 2005 WL 894918 at *22; Larrea v. Bennett, 2002 WL 1172564 at *9; Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 372-73 (S.D.N.Y. 1999) (Patterson, D.J. & Peck, M.J.); Liner v. Keane, 1996 WL 33990 at *7; People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 909 (1990); People v. Jackson, 76 N.Y.2d 908, 99, 563 N.Y.S.2d 42, 43 (1990); People v. Cadorette, 56 N.Y.2d 1007, 1009, 453 N.Y.S.2d 638, 638 (1982). Defense counsel never once objected during the prosecution's demonstrations and questions to the jury. (Voir Dire 2: Tr. 92-93, 95-100; Voir Dire 3: Tr. 118, 182-85; see pages 2-10 above.)

   Failure to object at trial (including during voir dire) when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground for the purposes of habeas review. E.g., Lora v. West, 2005 WL 372295 at *10 (defense's failure to object during voir dire bars habeas review when First Department ruled the issue was unpreserved); Francis v. Duncan, 03 Civ. 4959, 2004 WL 1878796 at *14 (S.D.N.Y. 2004) (petitioner's voir dire challenge found by First Department to be unpreserved, providing an independent and adequate state ground precluding habeas review); see, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S. Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S. Ct. at 2644-48, 2650 (same); Franco v. Walsh, No. 02-2377, 73 Fed. Appx. 517, 518, 2003 WL 22056234 at *2 (2d Cir. Sept. 4, 2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because "[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved."); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S. Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground).*fn39 Because there is an adequate and independent finding by the First Department that Roman procedurally defaulted on his prosecutorial misconduct during voir dire claim, Roman would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S. Ct. at 2565.*fn40 Roman does not allege cause, prejudice or a fundamental miscarriage of justice. Thus, Roman's claim of prosecutorial misconduct during voir dire is procedurally barred, and this Court need not, and will not, reach the merits of this claim.


   Roman claims he was denied a fair trial because the trial court improperly admitted two pieces of hearsay evidence: (1) testimony from a police detective about Martinez's description of Roman; and (2) a 911 call placed by a city marshal. (Dkt. No. 1: Pet. ¶ 12(b), at pp. 12-16.)*fn41 A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings*fn42

   "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'").*fn43 Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S. Ct. 503 (1983); see also, e.g., Vega v. Portuondo, No. 03-2856, 120 Fed. Appx. 380, 382, 2005 WL 78786 at *1 (2d Cir. Jan. 10, 2005) ("Even assuming, for the sake of argument, that petitioner is correct to assert that admission of [the evidence] was erroneous as a matter of [state] law, this alone would not suffice to merit federal habeas relief. . . . `The introduction of unfairly prejudicial evidence against a defendant in a criminal trial . . . does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice.'") (citations omitted). That is a "heavy burden, for `generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).*fn44

   The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.*fn45 See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp. 2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).*fn46 Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purelystate evidentiary errors not cognizable in the federal system.*fn47 Here, Roman asserts that his due process rights and right to a fair trial were violated by the state court's evidentiary rulings. (Pet. ¶ 12(b), pp. 12-16.) Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "`where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).*fn48 The test for "fundamental fairness" is whether the excluded evidence, "`evaluated in the context of the entire record,'"*fn49 "`create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S. Ct. at 2401-02).*fn50

   The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been `sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp. 2d at 276.*fn51

   The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21.

   In sum, for Roman to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

   B. Application of the Standard to Detective Davis's Testimony

   The trial court permitted Detective Davis to testify about Martinez's description of her assailant when she was interviewed by him at the hospital (Tr. 347-48), under the hearsay exception established in People v. Huertas, 75 N.Y.2d 487, 493, 554 N.Y.S.2d 444, 448 (1990). Huertas permitted the complainant herself to testify to a description of her assailant, since identity was contested by the defense, explaining that "evidence that assists the jury in evaluating the witness's opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification . . . was properly admitted for this nonhearsay purpose." 75 N.Y.2d at 493, 554 N.Y.S.2d at 448. Subsequent cases have extended the Huertas rule to other persons who testify in support of the complainant's accurate identification. See, e.g., People v. Ayala, 298 A.D.2d 397, 398, 751 N.Y.S.2d 223, 224 (2d Dep' t) ("The police officers' testimony recounting descriptions of the perpetrator given to them by eyewitnesses to the murder was properly admitted because it was for a nonhearsay purpose. It was admitted to assist the jury in evaluating the witnesses' respective opportunities to observe at the time of the crime, and the reliability of their memories at the time of the identification.") (citing Huertas), appeal denied, 99 N.Y.2d 555, 754 N.Y.S.2d 206 (2002); People v. Gonzalez, 298 A.D.2d 133, 134, 747 N.Y.S.2d 761, 762 (1st Dep't 2002) (testimony about police radio conversations recounting undercover detective's radio communications admissible to support the accuracy of his challenged description of defendant), appeal denied, 99 N.Y.2d 614, 757 N.Y.S.2d 825 (2003); People v. Read, 228 A.D.2d 304, 305, 644 N.Y.S.2d 201, 202 (1st Dep't) ("The fact that the victim's description of defendant was elicited from the officer and not from the victim does not affect its admissibility because the purpose of description testimony is to afford a basis for assessing the credibility of an identification."), appeal denied, 88 N.Y.2d 1071, 651 N.Y.S.2d 415 (1996); People v. Messier, 191 A.D.2d 819, 821, 594 N.Y.S.2d 453, 455-56 (3d Dep't) (police sergeant's testimony about assault victim's initial description of assailant permissible to assist jury in evaluating the accuracy of victim's identification), appeal denied, 81 N.Y.2d 1017, 600 N.Y.S.2d 205 (1993).

   Evidence properly admitted under the Huertas exception does not support a federal habeas claim. See Huber v. Schriver, 140 F. Supp. 2d 265, 279 (E.D.N.Y. 2001) (rejecting hearsay claim in habeas petition when victim's initial description of assailant given to police was admitted under Huertas).

   At trial, Roman relied extensively on a theory of mistaken identity (Tr. 476) and repeatedly challenged the accuracy of Martinez's identification (see, e.g., Tr. 477, 479-89, 491, 494-95). "In a case — like this one — where identification is the only contested issue[,] . . . [a c]omparison of the verbal description . . . with the actual features of the person later corporeally identified can assist the jury in evaluating the degree to which the later physical identification may or may not have been the product of intervening memory failure or suggestion." People v. Huertas, 75 N.Y.2d at 492-93, 554 N.Y.S.2d at 447. Roman claims Huertas applies only to descriptions given immediately after the crime and not to situations where multiple witnesses offer testimony about the veracity of an eyewitness account. (Pet. at p. 13.) The First Department has not limited the Huertas exception in such a manner. See, e.g., People v. Ayala, 298 A.D.2d 397, 398, 751 N.Y.S.2d 223, 224 (2d Dep't 2002) ("The police officers' testimony recounting descriptions of the perpetrator given to them by eyewitnesses . . . was properly admitted because it was for a non-hearsay purpose. It was admitted to assist the jury in evaluating the witnesses' respective opportunities to observe at the time of the crime, and the reliability of their memories at the time of the identification."); People v. Griffin, 173 A.D.2d 216, 216, 569 N.Y.S.2d 97, 98 (1st Dep't) (testimonial reference by both the victim and a detective to victim's "fuller" description of her assailant given "several hours after the crime" is admissible under Huertas, even when earlier description was testified to), appeal denied, 78 N.Y.2d 1076, 577 N.Y.S.2d 239 (1991). Martinez gave a description of Roman to Detective Davis at the hospital less than two hours after the assault, and the trial judge acted within his discretion in ruling that the description was "given shortly after the crime." (Tr. 347-48.) Furthermore, as the trial court noted, the conflicting accounts regarding the accuracy of Martinez's identification raised the very question of fact that Detective Davis's testimony was admitted to help resolve. (Id.) Moreover, the trial court specifically instructed the jury that Detective Davis' testimony "was permitted for a limited purpose [of] evaluating whether Martinez had the capacity to observe her assailant and remember the physical characteristics of her assailant." (Tr. 370-71.) Limiting instructions have been found to militate against a finding of constitutional error. See, e.g., Yapor v. Mazzuca, 2005 WL 894918 at * 15 (trial judge's instruction that jury consider testimony only for a narrow purpose reduces risk of prejudice); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16, 2004) ("The jury is presumed to obey a court's curative instruction."); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *16 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (admission of prior crimes evidence did not deprive petitioner of a fair trial in light of, inter alia, judge's limiting instructions); Kanani v. Phillips, 2004 WL 2296128 at *19 (denying petitioner's habeas petition where "trial judge gave a very specific limiting charge to the jury to ensure that jurors considered information about the uncharged crimes only for appropriate purposes, and not on [petitioner's] guilt or innocence of the crimes charged in the indictment."); Cruz v. Greiner, 98 Civ. 7839, 1999 WL 1043961 at *31 & n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (rejecting petitioner's argument that "if you throw a skunk into the jury box, you can't instruct the jury not to smell it" and finding that the court's instruction to disregard inadmissible evidence rendered harmless any prosecutorial misconduct) (& cases cited therein). The jury is presumed to obey a court's curative instruction. (See cases cited at page 48-49 above.) Finally, because Martinez testified at trial and was extensively cross-examined by the defense, Detective Davis' testimony at most "bolstered" her testimony, and as noted above, bolstering claims are not cognizable on habeas review. Because the trial judge reasonably admitted the evidence under the Huertas exception, Roman's hearsay habeas claim about Detective Davis' testimony should be denied.

   C. Application of This Standard to the 911 Call

   Roman claims a tape of a 911 call on which a city marshal repeated Martinez's description of Roman during the April 10, 2002 pursuit constituted impermissible hearsay evidence and deprived him of a fair trial. (Dkt. No. 1: Pet. at pp. 14-16.)

   The trial judge admitted the tape as an excited utterance. (See page 18 above.) Under New York law, an excited utterance is admissible if "the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection." People v. Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 840 (1987); see also, e.g., People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 702 (1996) ("`Excited utterances' are the product of the declarant's exposure to a startling or upsetting event that is sufficiently powerful to render the observer's normal reflective processes inoperative."); People v. Muhammad, 13 A.D.3d 120, 121, 787 N.Y.S.2d 8, 9 (1st Dep't 2004) (excited utterance exception requires "evidence of the agitated or stressed condition of the declarant"), appeal denied, 4 N.Y.3d 801 (2005); People v. Veeraswamy, 11 A.D.3d 345, 345, 784 N.Y.S.2d 488, 488 (1st Dep't) (trial court properly admitted 911 call under excited utterance exception when call was made "immediately after the crime while [the caller was] still under the stress and excitement resulting from the incident."), appeal denied, 4 N.Y.3d 749, 790 N.Y.S.2d 662 (2004).

   The excited utterance hearsay exception is also firmly rooted under federal law. See, e.g., Lilly v. Virginia, 527 U.S. 116, 126, 119 S. Ct. 1887, 1895 (1999) ("spontaneous declarations" hearsay exception is "firmly rooted" in legal tradition); White v. Illinois, 502 U.S. 346, 350 n. 1, 355 n. 8, 112 S. Ct. 736, 740 n. 1, 742-43 n. 8 (1992) (hearsay exception for "spontaneous declarations" is "`firmly rooted'" and "is currently recognized under Federal Rule of Evidence 803(2), and in nearly four-fifths of the States," and "carries sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause." Exception was properly applied to testimony by witnesses to statements made by victim one to four hours after assault.); Brown v. Keane, 355 F.3d 82, 89-90 (2d Cir. 2004) (excited utterance exception is firmly rooted but does not apply to anonymous 911 call); West v. Greiner, No. 01 CV 1267, 2004 WL 315247 at *6 (E.D.N.Y. 2004) ("An excited utterance is therefore recognized as a traditional exception to the hearsay rule under both New York and federal law" for the purposes of habeas review).

   Neither New York nor federal courts require that an excited utterance occur within a specific time period after the event. "Under New York's rule, `an excited utterance occurs . . . during . . . a period which is not measured in minutes or seconds but rather is measured by facts.'" Mungo v. Duncan, 393 F.3d 327, 331 (2d Cir. 2004), cert. denied, 125 S. Ct. 1936 (2005). Rather, the utterance must simply occur "in a moment of excitement — without the opportunity to reflect on the consequences of one's exclamation." White v. Illinois, 502 U.S. at 356, 112 S. Ct. at 742. A statement meeting the requirements for an excited utterance may occur even hours after the startling event. See e.g. People v. Brown, 70 N.Y.2d at 521, 522 N.Y.S.2d at 841 ("[a] lapse of 30 minutes, is not, as a matter of law, too long" for the excited utterance exception to apply); People v. Hasan, 2005 WL 845378 at *2 (2d Dep't Apr. 11, 2005) (statement made 10 minutes after incident was an excited utterance within the exception); People v. Hiraldo, 284 A.D.2d 258, 258, 726 N.Y.S.2d 558, 558 (1st Dep't) (excited utterance exception applies to statement made while victim was being treated at the hospital), appeal denied, 96 N.Y.2d 919, 732 N.Y.S.2d 636 (2001); see also, e.g., White v. Illinois, 502 U.S. a 349-50, 112 S. Ct. at 739 (statements by victim to police 45 minutes after sexual assault and to medical personnel at hospital four hours after assault held to be excited utterances); United States v. Tocco, 135 F.3d 116, 127-28 (2d Cir. 1998) (record "amply supports" admission of a statement made three hours after an arson when the defendant was still "`all hyped' and `nervous.'"); United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990) (statement made after delay of five to six hours is an excited utterance when witness is still under "the stress of excitement").

   Here, Roman contends that the 911 call is inadmissible because too much time passed between Martinez's initial recognition of Roman and the call. (Pet. at p. 15.) Although the record does not establish the precise amount of time elapsed between Martinez's recognition of Roman and the 911 call, at the time of the call Martinez was still actively pursuing a man who had recently assaulted her. (See page 18 above.)*fn52 Furthermore, her testimony amply supports the trial judge's determination that she was in an excited state at the time the call was made: Martinez testified she was crying during the pursuit (Tr. 117), and the city marshals attempted to get her to relax after making the call (Tr. 122). Roman's additional claim that the tape is inadmissible because Martinez "didn't panic" (Pet. at 15) is likewise without merit. When trial testimony and the established circumstances reasonably support the conclusion the statements were made in an excited state, a specific condition of panic or fear is not required by any New York or federal case law.

   Because the state level judge properly admitted the 911 tape under the state law hearsay exception for excited utterances and Roman raises no independent constitutional challenge, Roman's habeas claim of improper admission of hearsay should be denied.*fn53


   A. A Weight Of The Evidence Claim Is Not Cognizable On Habeas Review*fn54

   A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he `weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).*fn55

   It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence . . ."), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S. Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a `weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) ("`weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments 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, Roman's weight of the evidence habeas claim should be denied. B. The Evidence Was Sufficient To Convict Roman of First Degree Robbery

   1. Legal Principles Governing Sufficiency of the Evidence Habeas Claims*fn56

   "`[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.*fn57

   Petitioner Roman bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 2457 (1983).*fn58


The habeas court's review of the jury's findings is limited: [T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2789 (citations omitted).*fn59

   The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S. Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

   2. Application of the Standard to Roman's Claim

   Roman argues the verdict should be reversed because "[t]he only evidence offered was that of a single unreliable witness, who gave inconsistent descriptions that did not match [Roman's] appearance." (Dkt. No. 1: Pet. at p. 16.) Roman's argument is without merit.

   The jury chose to credit Martinez's testimony and convicted Roman of robbing her. "[T]he jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3164 (1989)).*fn60

   This Court may not reassess the jury's finding of credibility: "`[f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Peck, M.J.) (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).*fn61

   Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). The fact that Martinez was the only eyewitness and her testimony was the primary evidence against Roman, and/or that there may have been some inconsistencies between Martinez's testimony and her prior statements, does not change the result. See, e.g., Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S. Ct. 2179 (1979) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was `not a case in which the sole witness was uncertain of his identification . . . [n]or is it one of testimony incredible as a matter of law.'"); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in Mendez's description of Means's earring and facial hair are insufficient to undermine Mendez's testimony.").*fn62 Finally, the Court notes that the AEDPA has further limited this Court's role in determining sufficiency of the evidence habeas petitions. (See Point I above.) This Court cannot say that the First Department's decision that the evidence was sufficient to convict Roman of robbery was contrary to established federal law or was based on an unreasonable determination of the facts.*fn63

   Roman's insufficient evidence habeas claim should be denied.


   For the reasons discussed above, Roman's habeas petition should be denied and a certificate of appealability should not issue.


   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.