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August 4, 2005.

SCOTT CARLSEN, Superintendent, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Before the Court is the petition of Curtis Crayton ("Crayton") for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Crayton alleges that his confinement by the state of New York is unlawful because his right to a fair trial was violated when: (1) the trial court participated excessively in the examinations of Crayton and of prosecution witnesses, with the goals of rehabilitating the testimony of prosecution witnesses and casting doubt on the credibility of Crayton's testimony; (2) during its closing statement to the jury at Crayton's trial, the prosecution made a factual statement that was not supported by the evidence; and (3) the trial court did not instruct the jury properly about accessorial liability.

  The respondent opposes the petitioner's application for habeas corpus relief on the grounds that all of the petitioner's claims are procedurally forfeited and lack merit.


  Crayton was arrested on August 9, 1998, as part of a "buy and bust" operation conducted by undercover police officers in the vicinity of 129th Street and Fifth Avenue in Manhattan. An undercover officer approached Carmen Hernandez ("Hernandez") and asked where he could find some "nicks," referring to five-dollar amounts of crack cocaine. Hernandez directed the officer to James Breddock ("Breddock"), who was standing astride a bicycle on the corner of 132nd Street and Fifth Avenue. According to the officer, Crayton was also standing astride a bicycle, next to Breddock. The officer testified that Crayton gave the officer two purple-topped vials of crack cocaine in exchange for ten dollars. Shortly thereafter, police officers placed Crayton under arrest. At the time of his arrest, Crayton was in possession of five purple-topped vials of crack cocaine.

  A New York County grand jury returned an indictment charging Crayton with: one count of criminal sale of a controlled substance in the third degree (N.Y. Penal Law § 220.39) and one count of criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16).

  Crayton proceeded to trial before a jury in New York State Supreme Court, New York County. Crayton conceded that he was in possession of five vials of crack cocaine at the time of his arrest. He claimed that they were for his personal use and that he was not involved in the sale of illegal drugs. Crayton maintained that Breddock, not Crayton, sold the two vials of crack cocaine to the undercover officer. In his trial testimony, the undercover officer contradicted Crayton's account of the sale, stating that "there is no doubt in my mind" that Crayton provided him with two vials of crack cocaine.

  During the trial, in addition to the undercover officer, other police officers involved in the buy and bust operation testified. At one point, one of the officers gave testimony concerning the sequence of arrests of Crayton and another that might not have been consistent with the information that the officer recorded in his Daily Activity Report ("DAR") on the day Clayton was arrested. In particular, the officer testified that he arrested Hernandez before he arrested Crayton and Breddock, while the DAR indicated that Crayton and Breddock were arrested first. During the officer's re-direct examination, the following exchange occurred:
[PROSECUTION]: Officer, when was Miss Hernandez arrested, before or after Mr. Breddock and Mr. Crayton?
[THE WITNESS]: To the best of my recollection, I personally apprehended Carmen Hernandez. The way I see it, assuming I grabbed her, in my mind she was the first one grabbed. So in my mind, she was the first one grabbed. In fact, the rest of the team may have just prior moved in on the other subjects. Because of my recollection, I'm assuming —
THE COURT: But you were the first guy there when they apprehended the other two guys, Crayton and Breddock?
THE COURT: So that could have preceded —
THE COURT: Or at least simultaneously?
Tr. 235-36.*fn1
  At various times during Crayton's testimony, the trial court interposed its own questions. For instance, during direct examination of Crayton, the following exchange occurred:
THE COURT: How many vials a day would you do?
THE WITNESS: Anywhere from four to ten.
THE COURT: How much a day, money-wise?
THE WITNESS: Anywhere from $15 to $30 or $40.
THE COURT: You were getting four or five vials a day for $15?
THE WITNESS: I said from $15 to $30. I don't buy the same amount every time. If I don't have the money I couldn't buy what I wanted. Tr. 280.
  During summation, Crayton argued that a slight discrepancy between the weights of the two vials sold to the undercover officer and the five vials found in Crayton's possession suggested they were of different origins. The prosecution, during its summation, stated: "These vials, I submit, were packed by crackheads in some kind of drug market or whatever. . . . They're not packed by a pharmaceutical company; they're not weighed out exactly." Tr. 344-45. No evidence was adduced at trial concerning the manner in which the vials of crack cocaine were packed or weighed.
  After the presentation of evidence, the trial court instructed the jury about, inter alia, accessorial liability. The court told the jury that "under our law, a person who aids, assists, or participates in the commission of a crime is as guilty as any other person taking part in the crime." The court continued:
"When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."
* * *
So, when two or more persons act with each other in pursuant [sic] of a common plan, actuated by the same intent and knowledge, to wit, to sell and possess drugs, and each of them does some act or acts in fulfillment of that plan or common scheme, then each of the persons who does some act towards the accomplishment of the common end is a principal in the crime, whether he performs a major or minor part in the common endeavor.
Tr. 378, 380-81 (quoting N.Y. Penal Law § 20.00).

  The trial court instructed the jury that in order to find the petitioner guilty of the offense of criminal sale of a controlled substance in the third degree, it must find that "[t]he defendant, acting in concert, in the County of, City of New York, on or about August 9, 1998, knowingly and unlawfully sold to a police officer known to the Grand Jury a narcotic drug, to wit, cocaine."

  Thereafter, Crayton objected that the court's instruction about accessorial liability was unbalanced. Crayton asked the court to state explicitly that "mere presence at the scene" or "mere association" does not establish accessorial liability. The court stated, in response: "That was never part of the accessorial liability charge." The court declined to instruct the jury further on this point.

  During its deliberations, the jury asked the court to clarify the term "acting in concert," which the court used in its instructions about the criminal sale of a controlled substance. The court stated that "I will, in effect, reiterate my charge pertaining to accessorial liability. And I will not include the phrase that the defendant wants or the defense lawyer insists upon." When Crayton reiterated his request for an explicit "mere presence" instruction, the trial court responded: "No. I think this accessorial liability is couched in ...

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