The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT 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
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.
[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 WITNESS: No.
THE COURT: So that could have preceded
THE WITNESS: Correct.
THE COURT: Or at least simultaneously?
THE WITNESS: Correct.
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
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
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,
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 ...