The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Danny Clark ("Clark" or "petitioner"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court after a jury trial on charges of robbery in the first and second degrees (N.Y. Penal Law § 160.15(4); § 160.10(1)) and kidnaping in the second degree (N.Y. Penal Law § 135.20). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Clark's conviction stems from his involvement, with Pedro Miranda ("Miranda"), Clifford Ball, Jr. ("Ball"), and Hoyt Newton ("Newton"), in the abduction of Robert Liriano ("Liriano" or "the victim") on the night of March 28, 2002, in the City of Rochester. Clark was charged by Monroe County Indictment 02-0325 with robbery in the first and second degrees (N.Y. Penal Law § 160.15(4); § 160.10(1)), kidnaping in the second degree (N.Y. Penal Law § 135.20), and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03(2)). Prior to a suppression hearing, the prosecution offered Clark the opportunity to plead guilty to the "top count" of the indictment and receive a sentence promise of three and one-half years. Clark rejected this offer. Following the suppression hearing, Monroe County Court (Geraci, J.), determined that the police had probable cause to arrest all of the defendants. Just after the commencement of jury selection, Clark, through counsel, indicated that he wished to plead guilty. However, based on Clark's statement that he did not know what was going on during the purported crime, the trial court stated, "We can't do a plea." Following jury selection, a plea offer again was extended to Clark (attempted first degree robbery with a sentence promise of three and one-half years, along with a period of post-release supervision). The trial court was not satisfied with Clark's plea allocution, however, and a guilty plea was not entered. Clark was tried jointly with co-defendant Ball. Co-defendant Miranda testified for the prosecution at their trial.
At trial, Valerie Sapp ("Sapp") testified that just after midnight on March 28, 2002, she noticed two cars proceeding down Campbell Street in the City of Rochester at a high rate of speed. She saw four men exit the cars and go into the back of a house on Campbell Street which she knew to be unoccupied. According to Sapp, the men appeared to be carrying something; she heard them whisper, "Go! Go! Go!" or words to that effect. This prompted Sapp to call the police.
Within minutes, officers from the Rochester Police Department arrived at the scene and saw that lights appeared to be on in a first-floor room of the house. After the first officer knocked on the front door, the light was extinguished and nobody answered the door. Several minutes later, Clark jumped out of a first-floor window. Upon seeing a police officer standing near the front of the house, Clark turned and began to walk toward the rear of the house. After being ordered by the officer to come to the front of the house, Clark explained that he had been kidnaped at gunpoint by several men who were inside the house. During a pat-down of Clark, the police recovered a pager, a pocket knife, and a set of car keys to a car that was parked in front of the house.
Soon thereafter, the victim, Liriano, ran out the front door in his underwear; he was yelling and he exhibited some lacerations on his head and face. The police then entered the house and discovered the other perpetrators inside.
According to Liriano, on the night the abduction, he drove to his girlfriend's house on Frankfort Street. As he returned to his car after finding that no one was home, Liriano was accosted by several men wielding guns. The men removed Liriano's clothing, boots, jacket, bracelet and car keys, leaving him clad only in his socks and underwear. They placed him in his car, and a Hispanic man with a gun began to hit him on the head with a pistol. They duct-taped his hands and legs and blindfolded him with a knit hat. Liriano related that the men appeared to be communicating via walkie-talkie. Liriano recalled that the two Hispanic assailants each had a gun.
The captors transported Liriano to 351 Campbell Street and threw him down on the floor, demanding drugs and money from him. Liriano insisted that he had neither, and the one of the men shouted that the police had arrived. Liriano testified that he identified Clark when the knit hat was removed from his head at 351 Campbell Street. Liriano also stated that he identified Clark when he was first accosted on Frankfort Street. According to Liriano, he noticed that his pager was missing after the incident.
Co-defendant Miranda testified for the prosecution after pleading guilty to attempted first degree robbery and receiving a sentence promise of a determinate term of five years. Miranda testified that he and a man named "Mercado" (Geraldo Martinez) planned to rob a group of Dominican drug dealers, of whom Liriano was a reputed member. According to Miranda, Mercado had been dealing with Liriano and his fellow Dominicans for a "couple years." An eight-thousand-dollar drug deal was set up for March 28, 2002.
Miranda testified that he and Ball, another co-defendant, purchased duct tape and tie wraps to prepare for the abduction and robbery. On the night of the incident, Clark happened to be over at Miranda's house during the preparations for the abduction. Miranda asked him if he wanted to make some money by participating in the scheme; Clark responded affirmatively. Later that night, co-defendants Newton and Ball arrived at Miranda's house in a Chevrolet Impala. Miranda testified that he and his cohorts rode in two separate cars (Clark's Subaru and the Impala) and used walkie-talkies to communicate. They followed Liriano to his girlfriend's house on Frankfort Street. Ball and Newton hid in the bushes outside. Miranda testified that he brought a .38-caliber revolver; Newton had a semi-automatic gun.
While they were waiting for the victim to appear, Miranda testified that Clark was playing with the .38-caliber revolver in the car. As Liriano came into view, Mercado grabbed the .38-caliber revolver from Clark, exited the Subaru, struck Liriano in the head with the gun, ordered him to get on the ground, and took his keys. Ball and Newton then emerged from the bushes and grabbed Liriano. According to Miranda, Ball, Newton and Clark all participated in placing Liriano into his car, a Ford Thunderbird.
Newton drove the Thunderbird (with passengers Liriano and Miranda) to the address on Campbell Street; the rest of the perpetrators followed in the Subaru and the Impala. Once they arrived at 351 Campbell Street, Miranda, Newton and Clark escorted Liriano into the house. Mercado, who was already there, let them in through the front door. Miranda testified that Mercado did not know what was going on and that he was innocent; he conceded that Mercado had pleaded guilty to being involved in the crime but maintained that he need not have done so.
Miranda related that Liriano was taken to a bedroom where he was bound with more duct tape and placed on the floor. Miranda then got on top of him and interrogated him about the location of his drugs and money. Liriano informed them of a house on Joseph Avenue that had "two kilos" stashed in the wall and $10,300 in cash. At about that time, Miranda testified, the police arrived on the scene. Miranda freed Liriano, who fled. Miranda stated that he concealed himself in a rolled-up carpet where a police dog later found him.
The police recovered Liriano's identification in a kitchen cabinet at Campbell Street. Both handguns used during the crime were recovered at Campbell Street as well. However, no physical evidence was found at the Frankfort Street crime scene, and the walkie talkies were not found.
Co-defendant Ball testified for the defense that on the night of the incident, he drove over to 351 Campbell Street in his Impala with Newton. When they arrived, Clark and a woman whom he knew as "Neesh" were already there watching television. Eventually, Neesh left, leaving Clark, Ball, and Newton at the house. Ball testified that he subsequently heard people on the porch. The door opened, and Miranda (whom he had never met before) entered with two other men, one of whom was in his underwear. According to Ball, Miranda was wielding a gun. Miranda ordered Ball, Newton and Clark to be quiet. Soon thereafter, the police arrived, and the man in his underwear (i.e., Liriano) ran out of the house. Ball testified that he had never seen Liriano before and that he had nothing to do with the crimes allegedly committed that night.
The jury returned a verdict convicting Clark and Ball as charged in the indictment. Clark was sentenced to a determinate term of imprisonment of fifteen years, along with a five-year period of post-release supervision on each count of the indictment.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court affirmed Clark's convictions on the charges of robbery and kidnaping, but reversed his conviction on the weapons possession charge, holding that it was possible that Clark had been convicted of an unindicted crime since the prosecution presented proof that Clark, as either a principal or an accomplice, possessed two different firearms. However, Clark had been indicted for possession of only one, and nothing in the bill of particulars or the jury instructions given by the trial court specified which firearm defendant was alleged to have possessed. People v. Clark, 6 A.D.3d 1066, 776 N.Y.S.2d 656 (App. Div. 4th Dept. 2004). The majority also held that the concurrent, determinate terms of incarceration imposed on the remaining counts of the indictment should be reduced to [years] as a matter of discretion in the interest of justice since Clark had no prior felony convictions and no history of violent crime. The appellate court noted that Clark had been offered a sentence of a determinate term of incarceration of three and one-half years as part of a plea bargain, while Miranda, the co-defendant who "masterminded" the criminal acts and who also had a "long history" of violent crimes and felony convictions, was sentenced to a term of incarceration of only five years as a result of his cooperation with the prosecution. Id. The dissent voted to uphold the sentence imposed of fifteen years on the basis that it was not unduly harsh or severe. Id. (dissenting opn.). The New York Court of Appeals denied leave to appeal. People v. Clark, 3 N.Y.3d 638, 816 N.E.2d 199, 782 N.Y.S.2d 409 (N.Y. 2004).
This habeas petition followed in which Clark raises the following grounds for relief: (1) trial counsel was ineffective in failing to move to suppress the pager, conducting an "inept cross-examination with respect to the pager," failing to object to "rank hearsay" from the arresting police officer regarding the chain of custody for the pager, making an "inadequate objection" to introduction of evidence of uncharged crimes against petitioner, and failing to request an interested witness instruction with regard to co-defendant Miranda; (2) petitioner's arrest, the seizure of the pager, and Liriano's identification all were in violation of the Fourth Amendment; and (3) petitioner was wrongfully excluded from several bench conferences during voir dire. For the reasons set forth below, the petition is denied.