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ELLIS v. PHILLIPS

United States District Court, S.D. New York


July 13, 2005.

ERICK ELLIS, Petitioner,
v.
WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.

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

REPORT AND RECOMMENDATION

To the Honorable Sidney H. Stein, United States District Judge:

Pro se petitioner Erick Ellis seeks a writ of habeas corpus from his May 4, 1999 conviction in Supreme Court, Bronx County, of first degree kidnapping, three counts of first degree rape, first degree sodomy, third degree assault, three counts of second degree criminal possession of a weapon and two counts of third degree criminal possession of a weapon, and sentence to an aggregate sentence of thirty five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.)

  Ellis' habeas petition raises six grounds concerning jury selection, duplicitous rape charges, consecutive sentences, and violation of his Confrontation Clause and Brady rights. (Pet. ¶¶ 13(1)-(6).) For the reasons set forth below, Ellis' habeas petition should be DENIED. FACTS

  Jury Selection

  On January 21, 1999, the trial judge began jury selection by informing defense counsel:

[M]y practice is generally not to ask defendants to waive their rights to anything if I can avoid it. And so with respect to jury selection, so I don't have people come up to the bench for any purpose during jury selection, it really isn't necessary. And all the times the jurors will approach is at the very beginning when I will ask them because of the length of the trial, the anticipated length being two weeks post-selection and mandatory sequestration, that will generally either result in many — I might as well throw into that the nature of the crime as well. That will probably result in self-selection out of a number of people.
None of those matters other than the nature of the crime, I don't even think would probably need the defendant. If there is a reason after that that the juror has to do that, we usually do it in the robing room with defendant present and everyone else. Unless there is some reason why you don't want to do that.
[ELLIS' DEFENSE COUNSEL]: I'll explain it to Mr. Ellis, Judge.
(Voir Dire 1: 1/21/99 Tr. 53-54.) After the court's statement and counsel's explanation to the defendant, neither counsel nor defendant objected. (See id. at 54-55.) Jury selection then ensued in the manner described by the judge: prospective jurors were questioned regarding their availability and the "nature of the crime." (See generally Voir Dire 1: 1/21/99 Tr. 61, 67-106.) Nineteen venirepersons approached the bench, had sidebar discussions out of Ellis' presence, and were excused for cause or peremptorily; none served as a juror. (See Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 5-8.) In addition to the sidebar issue, at issue are two venirepersons as to whom the judge denied defense counsel's for-cause challenges: Jesetty Paulino and Gabriela Taveras.

  Proceedings Regarding Ms. Paulino

  During jury selection on January 21, Ms. Paulino stated at sidebar that she could not serve on the jury because of her job. She explained: "I can't take off from work a couple of days because I'm a social worker in Family Court and I have to serve my cases which I have many at the end of the month." (Voir Dire 1: 1/21/99 Tr. 84.) The judge declined to excuse her. (Id.)

  Ms. Paulino, along with 23 additional venirepersons from the jury pool, were then called to sit in the jury box for voir dire. (Voir Dire 1: 1/21/99 Tr. at 115-19.) Ms. Paulino was potential juror number twelve. (Id. at 117.) The judge asked questions regarding prior jury service, relations to law enforcement personnel, victimization of crime, and entertained requests to speak at sidebar. Ms. Paulino again came to sidebar and stated:

Yes, first. It is regarding my job. As I said before, I work for the Family Court. I'm a social worker for foster care. I have cases where families have different problems from situations like rape to drugs and negligence. I can't say that it's gonna effect my professional manner here or in my job.
But regarding the other question about a criminal circumstances close to me, myself or any family member. I was raped on two occasions. When I was a little girl around seven by a family member, nothing happened there. And the second one was two years ago by an ex-boyfriend. He's in jail at this moment. That's it.
(Voir Dire 1: 1/21/99 Tr. 162-63.) The judge asked Ms. Paulino whether it was possible for her to sit on a case like this, and she replied: "I'm a professional at my job. I could be professional here too." (Id. at 163.) She further described how she encountered disturbing situations as a social worker but was always able to maintain her professionalism. (Id.) She confirmed that she would be fair to the defendants. (Id. at 164-65.) The judge, in explaining to the defense why Ms. Paulino was not excused, stated:
This is a woman who requested not to sit on this jury [because of work] and yet under all of the circumstances, when put to it, says my professionalism allows me to be fair and impartial. She didn't take the out that was clearly there for her . . . Based on what she said, she can be fair and impartial. For whatever her reasons may be, she has dealt with her own past. And if she deals with it right in terms of professionalism, that's the way she's due to operate. That does not make her a cause challenge, so that's why I did not automatically excuse her.
(Voir Dire 1: 1/21/99 Tr. 177; see also id. at 178-80.) The judge explained the following day when ruling on further challenges for cause that Ms. Paulino's "body language as well as her general demeanor says that she thinks that she can do this unobstructed by her own experience." (1/22/99 Tr. 260.)

  Defense counsel used a peremptory challenge against Ms. Paulino, juror number twelve. (Id. at 261.)

  Proceedings Regarding Ms. Taveras

  Ms. Taveras was called to sit in seat one on a subsequent voir dire panel. (See Voir Dire 3: 1/25/99 Tr. 50.) During the judge's initial questioning, Ms. Taveras revealed in open court that she was a school teacher and had previously served as a juror on a criminal case and reached a verdict in an endangering the life of a child case. (Voir Dire 3: 1/25/99 Tr. 71, 89.)

  Co-defendant Bogle's attorney reminded the panel about the importance of keeping an open mind and specifically addressed Ms. Taveras' serving as a juror on a criminal case. (Voir Dire 3: 1/27/99 Tr. 147.) Ms. Taveras stated she was not sure how she would react if someone started crying at trial and that "I'm a woman and you know, it's hard, you know, like say keep an open mind. I am going to try to keep an open mind, but . . . [y]ou don't know how you're going to react that day." (Id. at 148; see also id. at 148-52.)

  Ellis' counsel explained to the panel that Ellis was not required to testify and asked whether anyone would "say something" if accused of similar crimes. Ms. Taveras responded that she would "speak up" and that "[m]aybe because I don't understand the system that well . . . I would speak up if I feel strongly I didn't do something." (Id. at 160-61.) Nevertheless, Ms. Taveras noted that she would respect Ellis' decision not to testify "because that's what he chose." (Id. at 161.)

  Later, defense counsel asked the panel whether "just because someone swears to tell the truth doesn't necessarily mean that's what we are gonna hear?" (Id. at 165.) Ms. Taveras responded that "it makes you wonder why are they putting their hand under oath, you know, if they're not telling the truth." (Id.)

  Defense counsel challenged Ms. Taveras for cause on the ground that she "didn't know if she could keep an open mind." (Id. at 168-69.) The judge disagreed, stating that she only did not know how she would react if somebody started crying on the witness stand, and that there was no expectation that Ms. Taveras would "park her emotions outside." (Id. at 169.) The judge further noted that Ms. Taveras never stated that she would have a problem or that she could not be impartial. (Id.) Ellis' attorney also challenged Ms. Taveras for cause on the ground that she indicated she would testify if accused of a crime. (Id. at 172.) The judge responded that every prospective juror will say he/she would testify in such circumstances (id. at 172-73), and further noted that Ms. Taveras stated she would respect Ellis' decision not to testify (id. at 175).

  Counsel for co-defendant Bogle also challenged Ms. Taveras for cause on the ground that she may believe everything a witness says when she stated "why would [a] witness lie" after being sworn. (Id. at 170.) The judge denied this challenge, noting:

We presume someone, once sworn, is constrained to tell the truth. Cross-examination is there for the purpose of making sure that they are, in fact, telling the truth. But to explain that particular sequence to a jury, it's a hard thing to do. . . . So I don't think the fact that she anticipates that people are sworn to tell the truth will tell the truth is a bad thing. I think that's what we all expect.
(Id. at 171-72.)

  The defense used its last two peremptory challenges against Ms. Taveras and another potential juror. (Id. at 177-78.) The judge denied the defense's application for additional peremptory challenges beyond the twenty per side they were originally given. (Id. at 181.)

  The Prosecution Case at Trial

  On June 21, 1996, 27 year-old Neville Bethune was living in his mother's apartment on Whitehall Place in the Bronx. (Bethune: Trial Transcript ["Tr."] 7.) Bethune was home that evening at 10:00 p.m. with his seventeen-year old girlfriend, Catrena S.,*fn1 when Olive Richards ("Charm"), who lived in the basement apartment, knocked on the door. (Id. at 7-8; Catrena: Tr. 458-59, 502.) Charm told Bethune to come downstairs to her apartment because she wanted to show him something, so he got dressed and went downstairs. (Bethune: Tr. 8; Catrena: Tr. 459.)

  The Kidnapping

  When Bethune arrived at Charm's apartment, he went into the back bedroom and immediately saw Ellis, Maxwell Bogle (Ellis' co-defendant), and a third man known as "Linky," all of whom were armed with guns. (Bethune: Tr. 8-9, 11, 14, 22, 133-34; Catrena: Tr. 461, 463.) Charm stated "[w]e got you. . . . We found out that you took — you got us robbed." (Bethune: Tr. 14.) When Bethune denied any wrongdoing, the three men proceeded to assault him, strike him with their guns, kick him, and demand money that they thought he had participated in robbing from them. (Id. at 14-19, 24; Catrena: Tr. 463-64, 507-10.)

  While the three men were assaulting Bethune, Charm returned to Bethune's apartment and told Catrena that Bethune wanted to see her downstairs. (Catrena: Tr. 460.) Catrena followed Charm downstairs to the backroom where Bethune was being held by the three men. (Catrena: Tr. 461-64; Bethune: Tr. 22.) The men continued to ask about money and assault Bethune in front of Catrena, using her to compel him to reveal information. (Bethune: Tr. 23-24.)

  The Rapes

  Ellis pointed his gun at Catrena and told her to go into the bathroom (Bethune: Tr. 27; Catrena: Tr. 464, 530-31), where Ellis demanded Catrena remove her pants and undergarments, and told her to "get up on the sink." (Catrena: Tr. 464). Ellis told her that she had to do what he said if she wanted to live. (Id.) At gunpoint, and with a condom, Ellis inserted his penis into Catrena's vagina. (Id.) When he finished raping her, Ellis told Catrena to put her clothes back on and return to the bedroom. (Id.)

  Catrena returned to the bedroom with Ellis, who gave Bogle a condom. (Bethune: Tr. 28-29, 31.) Bogle proceeded to orally and vaginally rape Catrena at gunpoint. (Catrena: Tr. 464-65.) After Bogle finished, Catrena got dressed and returned to the bedroom. (Id. at 465.)

  In the bedroom, Ellis pointed his gun at Catrena again and told her to return to the bathroom. (Catrena: Tr. 466.) Bogle took Bethune by the bathroom and forced him to witness Ellis orally and vaginally raping Catrena at gunpoint. (Bethune: Tr. 29-31.) After Ellis finished, Catrena returned to the bedroom on demand, where Bogle orally and vaginally raped her at gunpoint while Bethune was forced to watch again. (Catrena: Tr. 466-67.)

  After Bogle finished raping Catrena, Ellis proposed to take Catrena into the bathroom again, but realized there were no condoms left. (Bethune: Tr. 31) He gave Vivenne Bruce, who was present in the apartment, money and instructed her to go buy more condoms, which she did. (Bethune: Tr. 9, 31, 134-35, 183-84.) When she returned with more condoms, Ellis took Catrena back into the bathroom (id. at 31-32, 135), and vaginally raped her (Catrena: Tr. 468). When finished, Ellis told her to return to the bedroom. (Id.)

  Bogle took Catrena out into the hallway and vaginally raped her at gunpoint again. (Id.) Ellis demanded money from Bethune and forced him to watch Bogle rape Catrena, who after vaginally raping her, forced her to perform oral sex on him. (Id.) Bogle then took Catrena into the bedroom. (Id.) By this time, Catrena had been in the apartment "all night, into the morning" (id. at 469, 474), and was about to fall asleep when Ellis brought her to the bathroom and vaginally raped her one last time at gunpoint (id. at 469-70, 512).

  In total, Catrena testified to seven acts of rape. (Catrena: Tr. 511, 529-30, 544, 548.)

  The Police Arrive

  Bethune managed to escape from the apartment and called the police. (Bethune: Tr. 35-41.) The police arrived around 8:00 a.m. on June 22, 1996, apprehended Bogle and Ellis at the scene, and took Catrena to Our Lady of Mercy Hospital for treatment. (Catrena: Tr. 474, 476, 515-16; Bethune: Tr. 45-47; Shaw: Tr. 68-69; Schiffman: Tr. 691-93, 815.) At the hospital, Nurse Lydia Reidy was present when a doctor examined Catrena and collected samples for a rape kit. (Reidy: Tr. 233, 237-40; Catrena: Tr. 478.) The hospital retained hair and blood samples from Catrena and her underwear. (Catrena: Tr. 478)

  Meanwhile, Detective Stanley Schiffman obtained a search warrant and returned to Charm's apartment, where Detective Peter Boylan of the Crime Scene Unit recovered two condoms and a condom wrapper from the kitchen trash can. (Boylan: Tr. 667, 669-70, 674, 676-77; Schiffman: Tr. 703-04.)

  The police conducted two lineups, at which Catrena identified Ellis and Bogle. (Catrena: Tr. 482-86.) The DNA Evidence

  Four months later, on October 21, 1997, at Jacoby Hospital, Detective Schiffman observed a medical technician extract samples of Ellis' and Bogle's blood. (Schiffman: Tr. 709-10.) The samples were mailed to Danny Doucette, a case aid in the Bronx District Attorney's Office. (Doucette: Tr. 407, 414; Schiffman: Tr. 710.) A sample of Catrena's blood also was taken. (Schiffman: Tr. 711.) Doucette mailed the blood samples, Catrena's rape kit, and the condoms recovered by Detective Boylan to CBR Laboratories in Boston, Massachusetts. (Doucette: Tr: 414; Schiffman: Tr. 710.) CBR Laboratories, however, had closed by the time of trial. (Tr. 325, 337-38, 340-41.)

  Dr. Howard Baum, Assistant Director of the Forensic Biology Department of the Office of the Chief Medical Examiner, who the defense conceded was an expert in DNA examination and analysis (Baum: Tr. 305-06, 326), reviewed the lab notes, worksheets, photographs of the test strips, and the report generated by Dr. Bing of CBR Laboratories. (Baum: Tr. 302, 320, 572-75, 586-87.) Dr. Bing was not available to testify because he was suffering from brain cancer. (Tr. 338, 340.) When Dr. Baum first was called to the stand, the defense objected to him showing Dr. Bing's report or the charts attached to the report to the jury. (Id. at 322-57.) The Court ruled that the prosecution needed to lay a proper foundation for the charts and report with other witnesses, and perhaps Dr. Baum himself, if it wanted to put them into evidence. (Id. at 332-38, 340-53.) Prior to Dr. Baum being recalled, the prosecutor presented a verification from Susan Mitchell of CBR Laboratories that Dr. Bing's report was a true copy from CBR's records and had been made in the regular course of business. (Tr. 549-50, 578-79.) The defense again objected to the admission of Dr. Bing's report, because of the possibility of there having been tampering with the evidence. (Tr. 551-52.) The prosecution had presented evidence as to the chain of custody of the evidence and the judge responded that the tampering objection went to the weight of the evidence, not its admissibility. (Tr. 552, 563.) Defense counsel also argued that the report was hearsay. (Tr. 556-59.) The Court found that the foundation could have been better laid by the prosecution, but that it was sufficient, in light of the certification, to admit Dr. Bing's report as the type of document an expert like Dr. Baum could rely upon. (Tr. 566-67.)

  Dr. Baum testified that Dr. Bing's DNA testing and analysis involved four steps and six different loci. (Baum: Tr. 310-19.) Dr. Baum concluded that the DNA on the underwear and outside of both condoms was consistent with Catrena's DNA profile. (Baum: Tr. 594-96.) Dr. Baum concluded that the male DNA inside one of the condoms was consistent with Ellis' DNA profile, and that the female DNA found inside the condom was consistent with Catrena's DNA profile. (Id. at 596.) Furthermore, the mixture of Ellis' and Catrena's DNA inside the condom was consistent with Catrena's performing oral sex on Ellis prior to his putting on the condom. (Id. at 597, 600-02.) The male DNA on the vaginal swab and the other condom was consistent with Bogle's DNA profile. (Id. at 595-96.) Dr. Baum concluded that both Ellis and Bogle contributed to the DNA mixture on Catrena's underwear. (Id. at 598.)

  Though Dr. Bing's best statistical estimate with regard to Ellis' DNA was that one in 6,370 African Americans would have a similar DNA profile (id. at 603), Dr. Baum testified that only one in every 5,200 African Americans would be likely to match Ellis' DNA profile, while one in 28,000 would match Bogle's (id. at 604-05, 614).

  Dr. Baum admitted that he did not examine any of the physical evidence in the case. (E.g., id. at 608, 919-20.) The defense extensively cross-examined Dr. Baum. (Baum: Tr. 606-20, 917-68.)

  The Defense Case at Trial*fn2

  DNA Evidence

  The defense called Dr. Louis Levine, Professor of Biology at City College and an expert in "population genetics." (Levine: Tr. 1158, 1163, 1169.) Dr. Levine reviewed Dr. Bing's report and noted that Dr. Bing analyzed six genetic traits to determine the DNA matches found. (Levine: Tr. 1170-71, 1174, 1196.) Dr. Levine testified that the categories within each of these traits had not been sufficiently detailed, and that five of the six traits analyzed by Dr. Bing had more variations than the kit he used could detect. (Id. at 1176-77, 1179-82.) Dr. Levine also pointed to a "landmark paper" Dr. Bing wrote concerning how "by not carrying the [DNA] tests far enough[,] one ended up with the erroneous conclusion." (Id. at 1185.) Dr. Levine concluded that one in twelve to one in fourteen African Americans had a variation of the GYPA trait that the kit could not identify (id. at 1179-80), and that there could be no "scientifically defensible match" if the 19 specific genetic sub-categories were not known (id. at 1178). Nevertheless, on cross examination by the prosecution, Dr. Levine stated that Dr. Bing's test results did not exclude Ellis and Bogle. (Levine: Tr. 1204.)

  Vivenne Bruce

  The defense also called Vivenne Bruce, who testified that she arrived at Charm's apartment on June 21, 1996 between 5:00 p.m. and 7:00 p.m. and stayed for approximately two hours. (Bruce: Tr. 1307, 1322-24, 1327.)

  Ms. Bruce was arrested on January 22, 1999 for her participation in the incident after Bethune identified her in a photo array. (See Tr. 722, 727; Schiffman: Tr. 975, 977, 991-92, 1001; Bruce: Tr. 1303.) On January 22, 1999, during the jury selection of Ellis' trial, Detectives Schiffman and Rosario conducted two post-arrest interviews of Ms. Bruce (Tr. 739, 742-44, 747-48, 773, 786; Schiffman: Tr. 975-76, 979, 983; Bruce: Tr. 1304, 1310-12), during which she stated that she was present in the apartment on June 21 and June 22, 1996, but did not mention that Ellis was there, and did not witness the criminal activity described by the prosecution's witnesses (see Tr. 727-41, 759; Schiffman: Tr. 980, 984-85; Bruce: Tr. 1311-12, 1349-50, 1352-53). Detective Rosario later reduced Ms. Bruce's statement to writing which she signed. (Tr. 741-42, 745; Schiffman: Tr. 998.) Detectives Schiffman and Rosario later created DD5 Complaint Follow-up Reports reflecting the interviews. (See Tr. 727-41, 884-86; Schiffman: Tr. 995.) The defense only learned of Ms. Bruce's statements in the middle of the prosecution's case, and argued that the DD5s were Brady material. (E.g., Tr. 887-90.) The defense asked for a mistrial or that Ms. Bruce be located by the police. (Tr. 891-92.) The judge denied a mistrial but gave the parties time to find Ms. Bruce. (Tr. 892-99, 905-15.) Thereafter, Ms. Bruce was located, subpoenaed and appeared at trial as a witness for the defense.

  At trial, Ms. Bruce testified that during her time in the apartment, she did not see any guns or sexual assaults. (Bruce: Tr. 1307, 1319-21.) She conceded that Bogle and "two other guys" who she did not know were in another room arguing and fighting with another man about girls and a robbery. (Id. at 1326-27.) Ms. Bruce further testified that she saw Bogle hit the other man. (Id. at 1327.) Ms. Bruce denied ever urging anyone to kill Bethune or Catrena (id. at 1329, 1334-35) and also denied leaving Charm's apartment to purchase condoms. (Id. at 1321, 1335.) She did, however, admit that she pleaded guilty to kidnapping and rape, and taking part in the beating of Bethune. (Id. a 1324-25, 1329.)

  At the close of Ms. Bruce's testimony, the defense asked to recall Bethune and Catrena, but could not really tell the judge why they needed to do so. (Tr. 1371-86.) The prosecutor replied that there was no Brady violation but that if there was, it was "cured" when Ms. Bruce testified, and there was no need to bring Bethune and Catrena back. (Tr. 1385-86.) The judge agreed and so ruled. (Tr. 1386-87.)

  The defense rested, and the prosecution did not offer a rebuttal case. (Tr. 1395.) The Verdict

  The jury found Ellis guilty of first degree kidnapping, three counts of first degree rape, one count of first degree sodomy, three counts of second degree criminal possession of a weapon, two counts of third degree criminal possession of a weapon, and one count of third degree assault. (Verdict: Tr. 1782-89.) Ellis was found not guilty of second degree kidnapping, one count of first degree rape, one count of third degree criminal possession of a weapon, and second degree assault. (Id.)*fn3

  Sentencing

  The prosecution requested maximum sentences on all the convictions, with the rape, weapons possession, and kidnapping sentences to be served consecutive to each other. (Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 29-30.)*fn4 However, the prosecution asked for the rape sentences be concurrent to each other, as well as the weapon possession sentences to be concurrent to each other. (Id. at 30, citing Sentencing Transcript ["S."] 11-12.) Ellis' counsel requested a sentence of 15 years to life on the kidnapping conviction, with concurrent sentences on the rape and weapons possession charges. (Ellis 1st Dep't Br. at 30, citing S. 19-22.) The judge sentenced Ellis to 22½ years to life for kidnapping and 12½ to 25 years for each of the rape and sodomy charges. (Ellis 1st Dep't Br. at 30, citing S. 25-27.) The rape and sodomy sentences were imposed to run concurrently with one another but consecutive to the kidnapping sentence. (Id.) Ellis also was sentenced to lesser terms on the other charges. (Id) Ellis' sentence aggregated 35 years to life imprisonment. (Id.) See also People v. Ellis, 325 A.D.2d 208, 208, 761 N.Y.S.2d 11, 12 (1st Dep't 2003).*fn5

  Ellis' Direct Appeal

  Represented by counsel, Ellis appealed to the First Department, raising four claims: (1) denial of his challenge for cause to two jurors for bias violated his right to a fair trial (Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 31-36); (2) the judge's questioning of nineteen prospective jurors at sidebar in Ellis' absence about their ability to be fair violated his Sixth and Fourteenth Amendment rights to be present at trial (id. at 36-41); (3) where Ellis was charged with four counts of rape and the jury convicted him of only three, the failure to identify to the jury the particular act charged in each count rendered the rape counts duplicitous under the C.P.L. (id. at 41-44); and (4) under New York law, his sentence for the rape and sodomy convictions must run concurrently to his kidnapping conviction (id. at 44-46). Ellis filed a supplemental pro se brief to the First Department, raising two additional claims: (5) the prosecutor's failure to call Dr. Bing violated Ellis' confrontation rights and his due process right to a fair trial (A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 4-7); and (6) the prosecutor's failure to turn over police DD-5 reports about Ms. Bruce violated the Rosario and Brady rules and deprived Ellis of his due process right to a fair trial (id. at 8-14).

  On May 13, 2003, the First Department affirmed both Bogle's and Ellis' convictions. People v. Ellis, 305 A.D.2d 208, 761 N.Y.S.2d 11 (1st Dep't 2003). As to Ellis, the First Department held, in full:

The court properly denied defendants' challenges for cause to two prospective jurors. The first venireperson stated unequivocally that she could be impartial despite her prior experiences as a crime victim, and the remarks of the second venireperson did not raise a serious doubt about her ability to be impartial. The record does not establish that defendant Ellis was prevented from seeing and hearing any sidebar discussions with prospective jurors that would require his presence.
The rape charges were not duplicitous, either facially or in light of the trial evidence. Each of the four alleged rapes had a separate count, which complied with CPL 200.30(1) and 200.50(3) as well as comporting with the trial testimony.
The court properly imposed consecutive sentences for the first-degree kidnapping conviction under Penal Law § 135.25(1) and for the rape and sodomy convictions because the sex offenses were separate acts from the kidnapping, regardless of whether the crimes could be viewed as having a common motive (see Penal Law § 70.25[2]).
We have considered and rejected defendant's remaining claims, including those contained in defendant Ellis's pro se supplemental brief.
People v. Ellis, 305 A.D.2d at 208-09, 761 N.Y.S.2d at 12-13 (citations omitted).

  On July 15 and 25, 2003, the New York Court of Appeals denied leave to appeal. People v. Ellis, 100 N.Y.2d 580, 764 N.Y.S.2d 390 (2003); People v. Bogle, 100 N.Y.2d 579, 764 N.Y.S.2d 389 (2003). Ellis' Federal Habeas Corpus Petition

  Ellis' federal habeas corpus petition raises the same six grounds raised on appeal before the First Department: (1) he was denied his right to due process and a fair trial when the court denied his challenges for cause of two prospective jurors who manifested bias (Dkt. No. 1: Pet. ¶ 13(1)); (2) he was denied his right to due process and a fair trial when the court conducted sidebar conferences with prospective jurors in his absence (Pet. ¶ 13(2)); (3) when the trial judge failed to instruct the jury to specifically identify the separate acts of rape that were charged in each count of the indictment, the rape charges were duplicitous (Pet. ¶ 13(3)); (4) his rape and sodomy sentences should have run concurrently instead of consecutively with his kidnapping sentence (Pet. ¶ 13(4)); (5) he was deprived of his Confrontation Clause rights when the prosecutor failed to call Dr. David Bing to testify about the DNA tests he performed (Pet. ¶ 13(5)); and (6) he was denied his Brady and Rosario rights when the prosecutor failed to turn over police reports which contained Ms. Bruce's statements (Pet. ¶ 13(6)).

  For the reasons set forth below, Ellis' habeas corpus petition should be DENIED. ANALYSIS

  I. THE AEDPA REVIEW STANDARD*fn6 Before the Court can determine whether Ellis 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).*fn7 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.*fn8 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.*fn9 "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.*fn10

  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.*fn11 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.*fn12 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.*fn13 "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)).*fn14 "[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.*fn15

  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.*fn16 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.").*fn17 "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).*fn18 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. ELLIS' TWO CLAIMS CONCERNING JURY SELECTION SHOULD BE DENIED

  A. Ellis' Claim That He Was Denied a Fair Trial by Denial of His For-Cause Challenges to Two Potential Jurors Does Not Provide a Basis for Habeas Relief

  Ellis alleges that two juror challenges for cause were wrongly denied, violating his constitutional right to due process and a fair trial. (Dkt. No. 1: Pet. ¶ 13(1); see Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 31-36.) The two venirepersons in question, Ms. Paulino and Ms. Taveras, were peremptorily excused by the defense when their for cause challenge was denied. (See pages 2-6 above.)

  In order to successfully claim a constitutional violation based on a trial court's erroneous denial of for-cause challenges, a habeas petitioner must do more than show that he exercised peremptory challenges to remove jurors who should have been excused for cause and that he eventually used up his allotted peremptories. E.g., United States v. Martinez-Salazar, 528 U.S. 304, 305, 120 S. Ct. 774, 776 (2000) (neither Sixth Amendment nor due process violated where defendant peremptorily challenged juror who should have been excused for cause and thereafter exhausted peremptories); Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988) (no Sixth Amendment violation unless jury that was ultimately seated was unfair; "We have long recognized that peremptory challenges are not of constitutional dimension. . . . So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.").*fn19 Ellis has not alleged here or before the State Court that the jury that was chosen was in any way unfair or not impartial. Thus, as a matter of federal habeas law, his for cause juror challenge claim should be DENIED.

  B. Ellis' Claim That He Was Denied Due Process and a Fair Trial When the Court Questioned Prospective Jurors During Voir Dire at Sidebar in His Absence Should Be Denied Because There Is No Federal Constitutional Right to Be Present at Sidebar During Voir Dire

  Ellis alleges that voir dire sidebar discussions were conducted in his absence, violating his constitutional right to be present at all material stages of trial. (Dkt. No. 1: Pet. ¶ 13(2); Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 36-41.)

  A defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975).*fn20 Further, "[i]t is well-established that the impaneling of the jury is one such stage." Tankleff v. Senkowski, 135 F. 3d 235, 246 (2d Cir. 1998); accord, e.g., Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002), cert. denied, 537 U.S. 1117, 123 S. Ct. 879 (2003); Sanchez v. Duncan, 282 F.3d 78, 81 (2d Cir.), cert. denied, No. 01-10399, 2002 WL 1174739 (U.S. Oct. 7, 2002).*fn21

  Under New York law, a defendant is entitled to be present at sidebar discussions when the merits of the case are discussed or where "prospective jurors' backgrounds and their ability to weigh the evidence objectively" are discussed. People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992).*fn22 However, "`[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'" McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)); accord, e.g., Dickens v. Filion, 2002 WL 31477701 at *9; Bryant v. Bennett, 2001 WL 286776 at *3. "Indeed, the Federal Constitution generally `does not require a defendant's presence at sidebar conferences.'" McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord, 917 F. Supp. at 152); accord, e.g., Cameron v. Geiner, No. 03-2569, 119 Fed. Appx. 340, 342-43, 2005 WL 78780 at *2-3 (2d Cir. Jan. 11, 2005); United States v. Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (noting that the Court has found no case "in which an appellate court has found a structural defect where a defendant was present throughout but unable to hear a circumscribed portion of voir dire, and whose counsel was allowed to consult with him about the limited questioning outside his hearing."), cert. denied, 532 U.S. 943, 121 S. Ct. 1405, 1406 (2001); Sanchez v. Burge, 04 Civ. 2622, 2005 WL 659195 at *3 (S.D.N.Y. Mar. 22, 2005) ("Here, petitioner fails to cite to any federal statute or Supreme Court precedent holding that a petitioner has a right to be present at sidebar conferences during voir dire. Antommarchi is a state law rule and does not entitle petitioner to federal habeas corpus relief."); Perez v. Greiner, 00 Civ. 5504, 2005 WL 613183 at *5-6 (S.D.N.Y. Mar. 14, 2005) ("Although the pre-screening and impaneling of jurors is a material stage of trial at which a defendant has a constitutional right to be present, there is no clear Supreme Court precedent supporting a claim that absence from a sidebar conference during voir dire violates the Sixth Amendment. Therefore, the Appellate Division's adjudication of this claim is not contrary to, or an unreasonable application of, that law.") (citations omitted); Diaz v. Herbert, 317 F. Supp. 2d 462, 473 (S.D.N.Y. 2004) ("[E]ven if [petitioner's] rights under Antommarchi were violated, it does not rise to the level of a federal constitutional violation. Therefore, any alleged violation of these rights is not cognizable on habeas review."); Dickens v. Filion, 2002 WL 31477701 at *9; Persaud v. Mantello, 99 CV 1861, 2002 WL 1447484 at *2 (E.D.N.Y. July 2, 2002) ("district courts in this circuit have held that there is no right to be present at a sidebar conference during voir dire") (citing cases); Johnson v. McGinnis, 99 Civ. 11231, 2001 WL 740727 at *3 (S.D.N.Y. June 29, 2001) ("The right to be present at sidebar during voir dire derives from New York state statutory law. Since a federal court on habeas review is limited to considering only violations of the federal Constitution or federal statutory law, I am procedurally barred from considering this claim.") (citations omitted); Bryant v. Bennett, 2001 WL 286776 at *3 (the federal constitution does not require a defendant's presence at a voir dire sidebar); Benitez v. Senkowski, 1998 WL 668079 at *8 ("However, there is no Constitutional right to appear at sidebar conferencing for peremptory challenges; at most, there is a more limited right to presence during the formal exercise, in open court, of peremptory jury challenges.") (citing cases), cited with approval in Cohen v. Senkowski, 290 F.3d at 490; James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *8 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. & Peck, M.J.) ("`there is not now and never has been a right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire.'").*fn23 In any event, even if a federal right to be present at sidebar during jury selection existed, it is subject to waiver, so long as the waiver is knowing and voluntary. E.g., Cohen v. Senkowski, 290 F.3d at 491; Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991).*fn24 The waiver may be made by the defendant or by defense counsel. See, e.g., Polizzi v. United States, 926 F.2d at 1322; Dickens v. Filion, 2002 WL 31477701 at *9; Giles v. Kuhlmann, 2002 WL 1751401 at *5; Persaud v. Mantello, 2002 WL 1447484 at *2; Moe v. Walker, 1998 WL 872417 at *3. Waiver also may be found through the defendant's conduct, such as his failure to object to the sidebar procedure. E.g., Cohen v. Senkowski, 290 F.3d at 491, 492 ("when a defendant is fully apprised of the nature of the [sidebar] procedure, makes no objection to the procedure, and has counsel present for the duration of the [sidebar procedure], a knowing waiver of the right to be present occurs.") (citing cases); United States v. Torres, No. 98-1075, 98-1115, 98-1372, 199 F.3d 1324 (table), 1999 WL 1022488 at *2 (2d Cir. Oct. 25, 1999), cert. denied, 531 U.S. 1170, 121 S. Ct. 1137 (2001); Perez v. Greiner, 2005 WL 613183 at *5-6 ("[E]ven if counsel for the defendant did not waive the defendant's right to be present, if the defendant was present in the courtroom during sidebar conferences and knew that the conferences were taking place, his failure to assert his right to be present at the time amounts to a waiver."); Pellington v. Greiner, 307 F. Supp. 2d. 601, 605 (S.D.N.Y. 2004) ("a waiver [to be present at any stage of the criminal proceeding] may be implied by a defendant's conduct."); Pounce v. McLaughlin, 2004 WL 2360037 at *7 ("Moreover, the right to be present is `clearly waivable under both the Federal and [New York] State Constitutions.' There is no rule requiring `a defendant's personal statement in court to bring about a constitutionally valid waiver of his right to [be] present.' `The waiver must be knowing and voluntary, but it can be implied from the defendant's conduct.'") (citations omitted); Rodriguez v. Herbert, No. 02-CV-895, 2004 WL 1125431 at *6 (E.D.N.Y. May 20, 2004) ("Although trial courts must vigorously safeguard a criminal defendant's right to be present, a defendant may expressly or effectively waive the right. . . . Tellingly, [petitioner] did not object when the sidebar conference occurred outside his presence. Therefore, as it is reasonable to conclude that Rodriguez understood what was going on and that he had a right under New York law to be present at sidebar, the likely explanation for his absence is that he and his lawyer ? did not think it was important for him to be present at the sidebar conference.") (citations & quotation marks omitted); Dickens v. Filion, 2002 WL 31477701 at *9; Giles v. Kuhlmann, 2002 WL 1751401 at *5 (petitioner's conduct can supply the evidence that a waiver was knowing and voluntary); Moe v. Walker, 1998 WL 872417 at *3 ("The right may impliedly be waived when the defendant fails to invoke the right to be present at a [voir dire sidebar] conference that he knows is taking place.").

  The trial judge here made Ellis and his counsel aware of his state Antommarchi right to be present at a voir dire sidebar. (See page 2 above.) Before voir dire began, the judge acknowledged to counsel that defendant's presence would be required "when the nature of the crime was discussed." (Id.) Ellis' attorney responded, "I'll explain it to Mr. Ellis, Judge." (Id.) The defense did not object in advance to the procedure, nor did it object when venirepersons were called up to sidebar, or after any particular venireperson's sidebar discussion. (Id.) Thus, Ellis waived his right to be present at the preliminary sidebars.

  Finally, none of the nineteen venirepersons who participated in sidebar discussions actually served on the jury: eighteen were excused for cause and one was peremptorily challenged by the defense. (See Ellis 1st Dep't Br. at 5-8.) Thus, any error in Ellis' non-participation at sidebar would be harmless. See, e.g., Sanchez v. Duncan, 282 F.3d at 82-83 (defendant's absence from sidebar not prejudicial where none of the venirepersons who participated in bench conferences served on the jury); United States v. Feliciano, 223 F.3d at 112; Diaz v. Herbert, 317 F. Supp. 2d at 475-76 (sidebar claim not cognizable but even if it were, absence from sidebar discussions harmless error where venirepersons did not serve on the jury); Rodriguez v. Herbert, 2004 WL 1125431 at *5 ("[A]ny error in precluding petitioner from the sidebar conference was harmless in light of Sanchez, which is directly on point. Though petitioner may not have been invited to sidebar on the occasion at issue, he was unquestionably present during voir dire. . . . Finally, the juror questioned during the sidebar conference was excused."); Giles v. Kuhlmann, No. 98-CV-7368, 2002 WL 1751401 at *4-5 (E.D.N.Y. July 11, 2002) ("[D]istrict courts in [the Second] circuit have held that there is no right to be present at a sidebar conference during voir dire. . . . [T]he Court of Appeals for the Second Circuit has held that, if the right to be present at sidebar conferences during voir dire exists, it is subject to harmless error analysis.").

  Ellis' claim that he was denied his constitutional right to be present during a voir dire sidebar is not cognizable on federal habeas review and, even if it were cognizable, is without merit. Ellis' voir dire sidebar habeas claim should be DENIED.

  III. ELLIS' CLAIM THAT THE RAPE CONVICTIONS WERE DUPLICITOUS SHOULD BE DENIED BECAUSE IT IS UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED

  Ellis' third habeas claim challenges the four rape charges as duplicitous: "Where petitioner was charged with four acts of rape and the state trial court charged the jury with four acts of rape, but the jury only convicted him on three counts, the failure after counsel's request to identify to the jury the particular act charged in each count rendered the rape counts duplicitous." (Dkt. No. 1: Pet. ¶ 13(3).)

  The First Department held that "the rape charges were not duplicitous, either facially or in light of the trial evidence. Each of the four alleged rapes had a separate count, which complied with CPL 200.30(1) and 200.50(3), as well as comporting with the trial testimony." People v. Ellis, 305 A.D.2d 208, 209, 761 N.Y.S.2d 11, 12 (1st Dep't 2003).*fn25

  Ellis' brief to the First Department raised this issue solely on state law grounds; there is not even any vague reference to "due process" or a "fair trial" or any similar claim; no federal cases are cited. (See Ellis 1st Dep't Br. at 41-44.) Accordingly, he did not raise any federal constitutional claim before the state courts (nor, for that matter, has he asserted this claim in federal terms in his habeas petition). As such, the claim is unexhausted, but deemed exhausted and procedurally barred. A. The Exhaustion Doctrine: Background*fn26

  Section 2254 codifies the exhaustion requirement, providing that "[a]n 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 unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A).*fn27 As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S. Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732.

  The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S. Ct. at 1732-34.

  "The exhaustion requirement is not satisfied unless the federal claim has been `fairly presented' to the state courts." Daye v. Attorney Gen., 696 F.2d at 191.*fn28 The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated: [T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

 Daye v. Attorney Gen., 696 F.2d at 194.*fn29

  B. Ellis' Duplicitous Rape Conviction Claim Raised In His Appeal Brief To The First Department Is Unexhausted and Procedurally Barred

  Ellis' duplicitous rape conviction claim did not fairly present any federal constitutional issue in state court. Ellis did not cite to the Constitution nor refer to "due process," "fair trial" or similar constitutional phrases; Ellis cited no federal cases nor state cases employing constitutional analysis. (See Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 41-44; id. Ex. 6: 6/17/03 Letter to N.Y. Court of Appeals at 4 n. 4.) Ellis claimed that the court "erred in failing to require the jury to deliberate as to specifically identified rape charges and thereby assuring that any conviction on any of the rape counts was linked to a particular act to which the deliberating jurors and anyone reviewing the verdict could refer." (Ellis 1st Dep't Br. at 43.) Ellis' argument on his state appeal did not assert a claim so particular as to call to mind a specific right protected by the Constitution, nor did it set forth a pattern of facts within the mainstream of constitutional litigation. Thus, Ellis' claim is unexhausted.

  "`For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9 (1989))).*fn30 "In such a case, a petitioner no longer has `remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002); Ramirez v. Attorney Gen., 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S. Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.*fn31 In this case, it is clear that Ellis is now barred from raising this claim in federal terms in state court because it could have been raised on direct appeal, but was not.*fn32 As the Second Circuit explained in Washington v. James:

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
. . . .
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.
996 F.2d at 446-47.*fn33

  To avoid such a procedural default, Ellis would have to "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,"' i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. at 262, 109 S. Ct. at 1043 (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S. Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).*fn34 Here, Ellis has not alleged cause and prejudice nor has he made a showing of actual innocence. The duplicitous rape conviction claim in Ellis' First Department brief rested solely on state law. Thus, habeas review of this claim is procedurally barred.

  IV. ELLIS' CLAIM THAT HIS RAPE AND SODOMY SENTENCES SHOULD RUN CONCURRENTLY NOT CONSECUTIVELY TO HIS KIDNAPPING SENTENCE SHOULD BE DENIED

  Ellis' fourth habeas claim asserts that his sentences for rape and sodomy should have been ordered to run concurrently rather than consecutivelywith his kidnapping sentence because "the acts of rape and sodomy were part of and a material element of the act of kidnapping." (Dkt. No. 1: Pet. ¶ 13(4); see Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 44.). Ellis further claims that "[t]he acts of rape and sodomy were part of an alleged pattern of coercion to influence [Bethune] — who was forced to witness them — to comply with the defendants' demands." (Ellis 1st Dep't Br. at 44-45.) As with Ellis' third habeas claim, this claim was raised below solely as an issue of state law, and thus any federal claim is unexhausted but deemed exhausted and procedurally barred. (See Point III above.) In any event, even as a matter of state law, because the actus reus elements for kidnapping and rape/sodomy are neither the same, nor is one a material element of the other, this claim should be denied.

  New York Penal Law § 70.25(2) bars the imposition of consecutive sentences "on a person for two or more offenses committed through a single act or omission."*fn35 The New York Court of Appeals in People v. Laureano analyzed Penal Law § 70.25(2) as follows:

Because both prongs of Penal Law § 70.25(2) refer to the "act or omission," that is, the "actus reus" that constitutes the offense the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required. If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the "acts or omissions" committed by defendant were separate and distinct acts.
People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 152 (1996) (citations omitted). For example, if a shooter injures two victims with a single bullet, the two offenses are considered to be "committed through a single act." Penal Law § 70.25(2).*fn36 If, however, the two victims were hit by separate bullets, consecutive sentences are appropriate under New York law, even if the shooter's intent was to hit only one of the victims. See People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 256 (1984) (consecutive sentences upheld; "although the two deaths may be said to have occurred in the course of a single extended transaction, the robbery, it was separate `acts' which caused the two deaths (i.e., there is no contention that it was the firing of the same gunshot that killed both of the two nonparticipants), and neither was a material element of the other.").*fn37 Ellis was charged with, and convicted of first degree kidnapping for "abduct[ing] Catrena [S.] with intent to compel another [i.e., Bethune] to engage in particular conduct." (Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 9: Indictment, Count 1; see also pages 7, 15-16 above.) Penal Law § 135.25 defines first degree kidnapping: "A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) his intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct. . . ." The actus reus for first-degree kidnapping is abduction, which Penal Law § 135.00(2) defines as a restraining of "a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force."

  By contrast, according to Penal Law §§ 130.35(1) and 130.50(1), the actus reus elements for first degree rape and sodomy charges which Ellis was convicted of are sexual intercourse and deviate sexual intercourse by forcible compulsion. Further, Penal Law § 130.00(8) defines "forcible compulsion" as "to compel by either: (a) use of physical force; or (b) a threat . . . which places a person in fear of immediate death or physical injury to himself, herself or another person. . . ."

  Ellis committed first degree kidnaping when he restrained Catrena in Charm's apartment using a gun, in order to compel Bethune to return the money he believed Bethune had helped rob from the apartment. (See page 7 above.) Ellis' rape of Catrena was not a necessary element of the kidnapping charge. Similarly, by having forced intercourse and oral sex with Catrena at gunpoint, Ellis committed the crimes of rape and sodomy, without regard to any effort to compel Bethune to talk. The acts of rape were not a material element of the kidnapping charge, nor was the kidnapping and rape committed through a single act. See Penal Law § 70.25(2). Therefore, the imposition of consecutive sentences was appropriate under New York law. See, e.g., Staton v. Berbary, No. 01-CV-4352, 2004 WL 1730336 at *9 (E.D.N.Y. Feb. 23, 2004) (upholding defendant's kidnapping conviction because "the evidence at trial established that Staton's commission of the robbery . . . was separate and apart from the acts that constituted the unlawful imprisonment."); Duncan v. Greiner, 97 Civ. 8754, 1999 WL 20890 at *8 (S.D.N.Y. Jan. 19, 1999) ("The crimes of kidnapping and robbery each require proof of an element that is not required to prove the other."); People v. Gonzales, 80 N.Y.2d 146, 153, 589 N.Y.S.2d 833, 838 (1992) ("The guiding principle is whether the restraint was "so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them.' . . . [W]e have no difficulty concluding that the lengthy abduction here, accomplished with a deadly weapon, is the sort of behavior the Legislature intended to proscribe as second degree kidnapping. Indeed, the victim was `subjected . . . to a prolonged episode of unremitting terror and physical brutality.' The abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted. The restraint was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. It was a crime in itself.") (citations omitted); People v. Sceravino, 193 A.D. 2d 824, 825, 598 N.Y.S.2d 296, 298 (2d Dep't 1993) ("[T]he defendant committed the acts constituting unlawful imprisonment before he formed an intent to commit the sexual offenses so that the merger doctrine should not be applied to the unlawful imprisonment conviction. . . . [T]he imposition of consecutive sentences was appropriate because the defendant's separate and distinct acts violated more than one section of the Penal Law, notwithstanding that his acts were part of a `continuous course of activity.' Where, as here, `the acts constituting unlawful imprisonment were separate and distinct from the sexual offenses, the consecutive sentence for unlawful imprisonment was proper.'") (citations omitted).

  Because the actus reus elements for kidnapping and rape/sodomy are neither the same, nor is one a material element of the other, the sentences were properly ordered to run consecutively as a matter of New York law. In any event, the claim does not raise a federal constitutional claim. Ellis' consecutive sentence habeas claim should be DENIED.

  V. ELLIS' CLAIM THAT HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES WAS VIOLATED BY THE TRIAL JUDGE'S ALLOWING DR. BAUM TO REPLACE DR. BING AS THE PROSECUTION'S DNA EXPERT WITNESS SHOULD BE DENIED

   Ellis claims that his Confrontation Clause rights were violated when the prosecution failed to call as a witness Dr. Bing, the DNA expert who actually performed the DNA analysis. (Dkt. No. 1: Pet. ¶ 13(5); see also Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 4-6.) After Dr. Bing issued his expert report, he became ill with cancer and was unable to testify. (See page 10 above.) The prosecution replaced Dr. Bing with Dr. Baum in order to testify about the report and DNA evidence in general. (See pages 10-12 above.) Ellis' counsel extensively cross-examined Dr. Baum, and also called the defense's own DNA expert to testify. (Id.) The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359 (2004); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965).*fn38 The primary purpose of the Confrontation Clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S. Ct. at 1076-77; see, e.g., Crawford v. Washington, 124 S. Ct. at 1373-69.*fn39 A. Dr. Bing's Report Was Found To Be A Business Record

   It is unclear exactly what Ellis is claiming. To the extent he is asserting a Confrontation Clause claim for the prosecution's failure to call Dr. Bing to testify at trial, such a claim is frivolous, since Dr. Bing did not testify for the prosecution. See, e.g., Jamme v. Cockrell, No. 01-CV-1370, 2002 WL 1878403 at *8 (N.D. Tex. Aug. 12, 2002) ("the state was under no obligation to call [complainant] as a witness just so petitioner could cross-examine her. Petitioner could have subpoenaed this witness if he wanted her testimony. Under these circumstances, there was no confrontation clause violation."). The four pages on this issue in Ellis' pro se supplemental brief to the First Department largely seemed to challenge the "chain of custody" of the evidence that was subjected to the DNA testing, but various police and prosecutorial personnel testified at trial — and were extensively cross-examined — as to the chain of custody issues. Reading Ellis' pro se habeas petition liberally, however, as the Court is required to, the Court assumes that his Confrontation Clause claim goes to the admission into evidence of Dr. Bing's report, showing that the DNA on the condoms and Catrena's underwear came from Ellis and Bogle. (See pages 10-12 above.)

   Dr. Bing's expert report was admitted into evidence through a certification by Susan E. Mitchell, a supervisor in the Molecular Biology Department of CBR Laboratories. (See pages 10-11 above.) Dr. Baum provided some additional foundation for the expert report (Baum: Tr. 579), testifying that he was familiar with Dr. Bing's work and CBR Laboratories (id. at 572-73). Dr. Baum further explained how DNA testing is performed (id. at 310-19), and drew his expert conclusions after reviewing the laboratory protocol and Dr. Bing's report, lab notes, worksheets, and photographs (id. at 573-75, 586).

   The trial court allowed Dr. Bing's certified DNA report into evidence under the business-record exception to the hearsay rule despite Dr. Bing's unavailability to testify at trial, and as a report that an expert like Dr. Baum could rely upon, and at least under the peculiar facts of this case, the ruling was not erroneous. See Fed.R. Evid. 803(6); C.P.L.R. § 4518.*fn40 In Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S. Ct. 439 (1988), the Supreme Court acknowledged that the business records exception expands to "encompass documents such as medical diagnoses and test results." Beech Aircraft Corp. v. Rainey, 488 U.S. at 163 n. 8., 109 S. Ct. at 446 n. 8; see, e.g., United States v. Johnson, 297 F.3d 845, 864 n. 14 (9th Cir. 2002) (noting that the Confrontation Clause was not violated by admission of certain documents because "the sales orders, tapes, and bank records fell within the business records exception."); United States v. Roulette, 75 F.3d 418, 422 (8th Cir. 1996) (laboratory reports identifying substance as cocaine held admissible under business records exception); United States v. Copeland, No. 94-1709, 122 F.3d 1058 (Table), 1995 WL 595054 at *2 (2d Cir. Sept. 11, 1995) (concerning monthly charge card statement and sales receipts showing defendant's purchase of masks and walkie-talkies which he used in the robbery of a Post Office and assault of a postal worker, the Court "adopted a generous view of the business records exception to the rule against hearsay, favoring the admission of such evidence if it has probative value."); United States v. Rosa, 11 F.3d 315, 332 (2d Cir. 1993) (autopsy report, whose author was unavailable, admissible under business records exception sufficient to satisfy the Confrontation Clause); Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) ("[T]he autopsy report presented in this case possessed sufficient particularized guarantees of trustworthiness that its admission in the absence of live testimony by its preparer did not offend the Confrontation Clause."); Manning v. Strack, No. 99-CV-3874, 2002 WL 31780175 at *6 (E.D.N.Y. Oct. 11, 2002) (Raggi, D.J.) (petitioner was not denied a fair trial by the receipt into evidence of an unavailable medical examiner's autopsy report); Tucker v. Bennett, 219 F. Supp. 2d 260, 266-67 (E.D.N.Y. 2002); Natalie v. Barnett, No. Civ. A. 97-1291, 1998 WL 175890 at *2 (E.D. Pa. Apr. 2, 1998) ("It is this element of trustworthiness that serves in place the safeguards of confrontation and cross-examination usually afforded under the business records exception to the hearsay rule. There was no need to call before the jury each and every technician associated with the plaintiff's blood alcohol test to explain this routine and reliable procedure."); Montgomery v. Fogg, 479 F. Supp. 363, 370-72 (S.D.N.Y. 1979) (Weinfeld, D.J.) ("[A]n autopsy report made and kept pursuant to statute . . . is admissible under the official records exception to the rule against hearsay and does not offend the confrontation clause of the New York State Constitution" and the U.S. Constitution.).*fn41

   Additionally, in light of Ohio v. Roberts, 448 U.S. 56, 66 n. 8, 100 S. Ct. 2531, 2533 n. 8 (1980),*fn42 the business records exception to the hearsay rule is "firmly rooted," and Dr. Bing's DNA report bore "particularized guarantees of trustworthiness."*fn43 Dr. Bing's report had particular guarantees of trustworthiness as illustrated by Dr. Baum's detailed testimony describing Dr. Bing's protocol and scientific methods in conducting the DNA analysis. (See pages 10-12 above.) It is not uncommon for an expert who did not perform certain tests to testify to the results of scientific tests performed by others in an organization. See, e.g., People v. Miller, 91 N.Y.2d 372, 379-80, 670 N.Y.S.2d 978, 982 (1998) (permitting a forensic pathologist to render her expert opinion based on the facts in the record including autopsy report "despite the fact that she had not personally examined the corpus delicti or performed the autopsy"); Sherman v. Scott, 62 F.3d 136, 141-42 (5th Cir. 1995) (admission of laboratory analysis did not violate the Confrontation Clause when only the supervisor of the chemists who prepared the report testified where report had particularized guarantees of trustworthiness), cert. denied, 516 U.S. 1093, 116 S. Ct. 816 (1996); Minner v. Kerby, 30 F.3d 1311, 1315 (10th Cir. 1994) (allowing an expert substitution when the original expert became unavailable and the substitution expert testified as to standard laboratory procedures in relation to the original expert's analysis); Reardon v. Manson, 806 F.2d 39, 41 (2d Cir. 1986) (finding that a chemist's report admitted through the testimony of a supervisor did not violate the Confrontation Clause since it was unlikely chemist who performed the tests would remember the actual tests but rather would rely on their notes and general lab practices that supervisor could testify to), cert. denied, 481 U.S. 1020, 107 S. Ct. 1903 (1987); People v. Atkins, 273 A.D.2d 11, 12, 709 N.Y.S.2d 39, 40 (1st Dep't) ("Confrontation of the absent chemist would have had little or no utility, since the chemist-witness was subject to cross-examination as to all relevant matters concerning the reliability of the tests . . . and since `[i]t is unlikely that a chemist would remember every particular piece of evidence [s]he tested.'"), appeal denied, 95 N.Y.2d 960, 722 N.Y.S.2d 477 (2000); People v. Driscoll, 251 A.D. 2d 759, 760, 675 N.Y.S.2d 151, 153 (3d Dep't) (finding unavailability is not a prerequisite for the admission of business records, and further, that defendant's confrontation right was not abridged when the chemist-expert was found unavailable because the defendant had the opportunity to cross-examine the expert's colleague on her laboratory notes), appeal denied, 92 N.Y.2d 949, 681 N.Y.S.2d 479 (1998).

   Due to the fact that a qualified expert performed the DNA analysis in this case by following an accepted protocol to arrive at a scientifically recognized result and memorialized those results in a report considered to be a business record with particularized guarantees of trustworthiness, Dr. Bing's expert report was properly admitted through Dr. Baum, who was extensively cross-examined by the defense. Ellis' Confrontation Clause right was not violated.*fn44 B. The Confrontation Clause and Harmless Error Analysis

   Even if the trial court erred in allowing Dr. Bing's report to be admitted as a business record through Dr. Baum's testimony, on the facts of this case the error was harmless.

   It is settled law that "violations of the confrontation clause may, in an appropriate case, be declared harmless" error. Klein v. Harris, 667 F.2d 274, 290 (2d Cir. 1981), overruled on other grounds by Daye v. Attorney Gen., 696 F.2d 186, 195 (2d Cir. 1982) (en banc), cert. denied, 474 U.S. 1048, 104 S. Ct. 723 (1984); accord, e.g., Lilly v. Virginia, 527 U.S. 116, 139-40, 119 S. Ct. 1887, 1901 (1999) (remanding case to state court "to consider in the first instance whether this Sixth Amendment [Confrontation Clause] error was harmless beyond a reasonable doubt."); Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct. 2798, 2803 (1988) (holding that denial of face-to-face confrontation is subject to harmless error review); United States v. Bermudez, No. 02-1699, 2005 WL 1540193 at *2 (2d Cir. June 29, 2005) (Confrontation Clause "violation `does not necessitate a new trial as long as the government can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'"); United States v. Kiltinivichious, No. 03-1577, 2005 WL 1316998 at *1-2 (2d Cir. June 1, 2005) (admission of co-defendants' plea allocutions was harmless error); United States v. Foster, No. 03-1471, 127 Fed. Appx. 537, 539, 2005 WL 758205 at *1 (2d Cir. Apr. 4, 2005) ("`It is well established that violations of the Confrontation Clause, if preserved for appellate review, are subject to harmless error review, however, and Crawford does not suggest otherwise.'") (quoting United States v. McClain, 377 F.3d 219, 221-22 (2d Cir. 2004)); United States v. Tropeano, 252 F.3d 653, 659 (2d Cir. 2001) ("[H]armless error analysis applies to evidentiary errors and to violations of the Confrontation Clause."); United States v. Lee., 02 Cr. 602, 2005 WL 476189 at *2 (S.D.N.Y. Feb. 25, 2005) ("Assuming the admission of [a] statement was a violation of defendant's Sixth Amendment Confrontation Clause rights, however, I must consider whether the admission was harmless error. . . ."); United States v. Hundley, 02 Cr. 441, 2004 WL 2414038 at *8 (S.D.N.Y. Oct. 28, 2004) ("Admission of evidence in violation of the confrontation clause is not a structural error automatically requiring a new trial but rather is subject to harmless error review."); Haymon v. New York, 332 F. Supp. 2d 550, 558-59 (W.D.N.Y. Aug. 11, 2004); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *19 (S.D.N.Y. July 21, 2004) (Peck, M.J.).*fn45 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] In conducting a Confrontation Clause harmless error analysis, the Supreme Court and the Second Circuit have set forth the appropriate factors to consider:

In conducting this analysis, we must consider (1) how important the witness' testimony was to the prosecution's case, (2) whether the testimony was cumulative, (3) whether other evidence in the record corroborated or contradicted the witness on relevant matters, (4) whether other cross-examination of the witness was permitted and the extent of it, and (5) what effect the testimony would have on proof of defendant's guilt. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438.
Tinsley v. Kuhlmann, 973 F.2d at 166.*fn46 "[T]he weight of the prosecution's case against the defendant is the most significant" factor in determining whether a trial error is harmless. Samuels v. Mann, 13 F.3d at 526, 527 ("In order to find the [Confrontation Clause] error in this case to be harmless, we need not conclude that the evidence against Samuels was overwhelming. Indeed, in Brecht, the Court found the evidence of the petitioner's guilt to be `if not overwhelming, certainly weighty.'").*fn47

   The evidence against Ellis was at least weighty. The jury heard Bethune and Catrena identify Ellis and Bogle as the men who repeatedly raped and sodomized Catrena, and further describe the rapes in detail. (See pages 7-9 above). Detectives Shaw and Schiffman described on the stand how Ellis and Bogle both ran away from the scene of the crime as the police arrived but were arrested at the scene. (See Shaw: Tr. 68-71; Schiffman: Tr. 690-92.) Catrena identified Ellis and Bogle at lineups. (See page 9 above.) The DNA evidence — extensively cross-examined and further examined through the defense witness (see pages 10-12 above) — was at most confirmation of Bethune's and particularly Catrena's strong and unshaken testimony. Thus, even if the trial judge erred in admitting Dr. Bing's DNA report through Dr. Baum, any error was harmless.

   Ellis' Confrontation Clause habeas claim should be DENIED. VI. ELLIS' CLAIM THAT HE WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE THE PROSECUTION COMMITTED BRADY AND ROSARIO VIOLATIONS WHEN THEY FAILED TO TURN OVER A POLICE REPORT IS WITHOUT MERIT

   Ellis claims in his habeas petition, as he did on appeal before the First Department, that the prosecution did not timely disclose a DD5 Complaint Follow-Up Report prepared by Detective Stanley Schiffman on January 22, 1999, and that this should have resulted in a mistrial pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). (Dkt. No. 1: Pet. ¶ 13(6); Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 8-14; Dkt. No. 8: Ellis Traverse at 8-9.)

   A. The Brady v. Maryland Standard*fn48

   Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material either to guilt or to punishment. See, e.g., Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963).*fn49 The Brady rule also encompasses evidence known only to the police: "In order to comply with Brady, therefore, `the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.'" Strickler v. Greene, 527 U.S. at 281, 119 S. Ct. at 1948 (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995)).

   The Brady rule does not require a prosecutor to "deliver his entire file to defense counsel," but only to disclose those items which are material to the defendant's guilt or punishment. United States v. Bagley, 473 U.S. at 675, 105 S. Ct. at 3380; accord, e.g., Kyles v. Whitley, 514 U.S. at 437, 115 S. Ct. at 1567 ("We have never held that the Constitution demands on open file policy."); United States v. Agurs, 427 U.S. at 108-09, 96 S. Ct. at 2400.*fn50

   "There are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued." Strickler v. Greene, 527 U.S. at 281-82, 119 S. Ct. at 1948.*fn51 B. Application of the Brady Standard to Ellis' Claim

   The Court need not examine the first two prongs (that the evidence was favorable and suppressed by the State), because Ellis has not satisfied the third Brady prong, prejudice. (See page 64 above.)

   The defensewas aware that the complainants had identified Ms. Bruce as having been in the apartment at the time of the rapes. (See page 8 above.) After the defense learned of Ms. Bruce's statements to the police during the prosecution's case, the defense was able to subpoena Ms. Bruce and she testified for the defense at trial, giving substantially the same testimony as was recorded in the DD5s. (See pages 13-14 above.) Thus, the defense obtained the advantage of Ms. Bruce's testimony at trial.*fn52

   Since the jury received the information contained in Ms. Bruce's DD5 statement via her in-court testimony, there is no reasonable possibility that a more timely disclosure of the DD5 might "have affected the outcome of the trial." United States v. Agurs, 427 U.S. at 104, 96 S. Ct. at 2398; see also Banks v. Dretke, 540 U.S. at 698, 124 S. Ct. at 1276 ("Kyles instructed that the materiality standard for Brady claims is met when `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'") (quoting Kyles v. Whitley, 514 U.S. at 434-35, 115 S. Ct. at 1566). Given these facts, there can be little doubt that Ellis was properly convicted, and that the untimely disclosure of the DD5 was not prejudicial. See e.g., Cheng v. Greiner, 02 Civ. 4804, 2003 WL 22801348 at *5 (S.D.N.Y. Nov. 25, 2003) (finding no Brady violation where, "even assuming the statements constituted Brady material, they were disclosed in time for [petitioner's] counsel to use them if he so desired."); Bynum v. Duncan, 02 Civ. 2124, 2003 WL 296563 at *10 (S.D.N.Y. Feb. 12, 2003) ("[T]he First Department's finding that the delay [in turning over DD5s] did not present a reasonable probability that the result of the proceeding would have been different is not contrary to clearly established federal law, and the Brady claim must be rejected."); Steele v. Walter, 11 F. Supp. 2d 252, 258 (W.D.N.Y. 1998) ("A petitioner cannot establish a Brady violation when defense counsel ultimately received the materials and had an opportunity to prepare for cross-examination using those materials."); Edkin v. Travis, 969 F. Supp. 139, 143 (W.D.N.Y. 1997) ("Brady is not violated, however, when defense counsel ultimately receives the materials and has an opportunity to cross-examine the witness using the withheld documents.") (citing Forrest v. Mitchell, 91 Civ. 7922, 1992 WL 367039 at *3 (S.D.N.Y. Dec. 2, 1992), aff'd, 22 F.3d 1092 (2d Cir. 1994)); Robinson v. Smith, 530 F. Supp. 1386, 1391 (W.D.N.Y. 1982) ("Inasmuch as the [allegedly withheld] exculpatory evidence in question was fully presented to the jury, petitioner's Brady claim is without merit.").*fn53 The state courts' dismissal of Ellis' Brady claim was not erroneous, much less an unreasonable application of Brady and its progeny. Therefore, Ellis' Brady habeas claim is DENIED.

   C. Ellis' Rosario Claim

   Ellis' sixth habeas claim also asserts a violation of New York's Rosario rule*fn54 when the prosecution did not timely disclose Detective Schiffman's DD5. (Dkt. No. 1: Pet. ¶ 13(6); Dkt. No. 8: Ellis Traverse at 8-9; see Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 8-14.) The Rosario claim, however, is a state law claim that is not cognizable on habeas review.

   While the federal Brady rule that due process requires prosecutors to provide materially exculpatory evidence to the defense and New York's Rosario rule, requiring disclosure of witness statements in criminal cases, overlap considerably, they are not identical, and Rosario (as opposed to Brady) claims are not cognizable on habeas review. See, e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at *1 (2d Cir. Mar. 9, 1998) (Rosario obligations arise solely under state law); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *27 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Pena v. Fischer, 00 Civ. 5984, 2003 WL 1990331 at *10 (S.D.N.Y. Apr. 30, 2003) ("`[F]ederal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they arise exclusively under state law."); Bynum v. Duncan, 02 Civ. 2124, 2003 WL 296563 at *9 n. 5 (S.D.N.Y. Feb. 12, 2003) (Rosario claims are not cognizable on habeas review); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *6 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.) (& cases cited therein); Sutherland v. Walker, 97 Civ. 4432, 1999 WL 1140870 at *9 (S.D.N.Y. Dec. 10, 1999) (a prosecutor's failure to turn over "Rosario material," unlike failure to provide Brady material, is not reviewable by a federal habeas court); Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998) ("[F]ailure to turn over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of a state law"); Bernard v. Stinson, 97 Civ. 1873, 1998 WL 40201 at *4 (S.D.N.Y. Jan. 30, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at *4 (S.D.N.Y. Oct. 22, 1997) (Rosario violation does not establish a constitutional violation); Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at trial would be a violation of state law, and, thus, not subject to review under a petition for a writ of habeas corpus.").

   Accordingly, Ellis' sixth habeas claim asserting Brady and Rosario violations should be DENIED.

   CONCLUSION

   For the reasons set forth above, Ellis' habeas petition should be DENIED in its entirety.

   FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

   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 Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. 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).


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