REPORT AND RECOMMENDATION
HONORABLE WILLIAM H. PAULEY III, U.S.D.J.:
Joseph Velez brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted robbery and criminal possession of a weapon following a jury trial in New York State Supreme Court, Bronx County. Mr. Velez argues that his conviction should be overturned on the grounds that:
(1) there was insufficient evidence to support a finding of guilt beyond a reasonable doubt and (2) he was denied his due process right to a fair trial due to prosecutorial misconduct. For the reasons that follow, I recommend that the petition be denied.
Mr. Velez's trial commenced January 9, 2003, before Justice Troy Webber. The evidence presented at trial established that at around midnight on September 17, 2001, Luis Diaz sat with a group of men playing dominoes outside of 100 West 174th Street in the Bronx. (Tr. 59).*fn1 Mr. Velez and a companion appeared, looking for a man named "Dalli," which Mr. Diaz subsequently realized was a nickname for Candito "Odalli" Mendoza. (Tr. 60, 73, 78). When Mr. Mendoza arrived, the two men greeted and put their arms around him, and the three walked away to speak privately. (Tr. 60, 78).
Mr. Diaz then observed Mr. Velez' companion strike Mr. Mendoza in the face, after which Mr. Mendoza ran across the street to where Mr. Diaz was seated. (Tr. 60, 65). Mr. Velez and his companion took out what appeared to Mr. Diaz to be a gun in a black plastic bag. (Tr. 61-62). Mr. Velez pointed the concealed object at the group, told everyone to stand still, and demanded money and "stuff," which Mr. Diaz believed referred to drugs. (Tr. 61, 63, 65,). Mr. Diaz told the two men no one in the group had any money or drugs. (Tr. 63). Mr. Velez responded that if the money and drugs were not produced, he would shoot them. (Tr. 63). Mr. Velez's companion then walked towards the domino players and overturned the table they had been using for their game. (Tr. 64-65). However, when Mr. Velez and his accomplice recognized they could obtain nothing from the group they left. (Tr. 79, 80).
Responding to a radio transmission of a dispute with a firearm, Police Officer Kevin Williams and his partner, Police Officer Greg Manning, drove to the vicinity of 174th Street and Nelson Avenue at approximately 11:40 p.m. At the scene, an "[e]xtremely shaken, nervous" and "scared" Mr. Diaz approached the vehicle and told Officer Williams that he had just been robbed at gunpoint by an Hispanic male and a black male. (Tr. 5, 25, 67). Officer Manning stated that he had just seen two men matching that description while on his way to the location. (Tr. 6-7). Mr. Diaz then joined the officers in the car to backtrack in search of the assailants. (Tr. 6, 7, 68). Mr. Diaz told the officers that the two men had robbed him, although in fact the men had not actually taken any property. (Tr. 76).
While driving on University Avenue, Officer Williams observed an Hispanic male and a black male walking together. (Tr. 8). At the same time, Mr. Diaz spotted the two men and confirmed that they were the individuals who had attempted to rob him. (Tr. 40-41). Officer Williams saw one of the men, later identified as Mr. Velez, drop a plastic bag on the ground in a fenced area. (Tr. 9-10, 20). After the police officers stopped the two individuals and placed them under arrest, Officer Williams retrieved the plastic bag from the fenced area and showed it to Mr. Diaz, who, before the bag was opened, identified it as the "pistol." (Tr. 10, 20, 69). In the bag, Officer Williams found a "hatchet" knife that had been wrapped up in a black handkerchief. (Tr. 22, 24, 25, 69). Neither Mr. Velez nor his companion possessed any money or guns. (Tr. 26, 35).
At the precinct, Officer Williams met Mr. Mendoza who told him, through an interpreter, that he had been a victim of a robbery at gunpoint. (Tr. 31). Officer Williams learned from Mr. Diaz and Mr. Mendoza that the robbery had not been completed. (Tr. 35).
Officer Williams testified that he had listed Mr. Mendoza as the "victim" and Mr. Diaz as the "witness" on his police reports because the reports designated only a single box for "victims," while the remainder of the boxes were for "witnesses." (Tr. 32-33, 36). However, Officer Williams indicated in his narrative reports that Mr. Diaz was also a victim. (Tr. 37).
At the conclusion of the trial, Mr. Velez was convicted of attempted robbery in the third degree and criminal possession of a weapon in the fourth degree. He was sentenced to concurrent prison terms of two to four years and one year respectively.
The petitioner appealed to the Appellate Division, First Department, which affirmed his conviction on June 8, 2004. People v. Velez, 8 A.D.3d 61, 777 N.Y.S.2d 642 (1st Dep't 2004). He then sought leave to appeal to the New York State Court of Appeals, but this application was denied on August 4, 2004. People v. Velez, 3 N.Y.3d 682, 784 N.Y.S.2d 21 (2004).
A. Exhaustion of State Remedies
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254(b),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). To satisfy the exhaustion requirement, a petitioner must have "fairly presented" his claim in state court by having set forth both the legal and factual bases for the claim. Picard v. Connor, 404 U.S. 270, 275-77 (1971). Although the petitioner need not have cited "book and verse on the federal ...