The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Petitioner Ronnie York ("Petitioner") filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on April 5, 2004, challenging his December 6, 1999 conviction in the Suffolk County Court for robbery in the first degree in violation of N.Y. Penal Law § 160.15(3). Petitioner was sentenced as a prior violent felony offender to a determinate sentence of twelve and a half years and is presently incarcerated. Petitioner requests that this court grant his petition on the grounds that:
(1) the evidence presented at trial was legally insufficient to support his conviction, (2) the trial court improperly admitted a 911 tape as a present sense impression exception to the hearsay rule, (3) hypotheticals presented to jurors during voir dire were inappropriate, and (4) comments made by the prosecutor during opening and closing statements were improper. For the reasons set forth below, the petition is denied.
At a jury trial, the prosecution presented four witnesses: Habib Qureshi, Izzy Martinez, Detective James Mihalik, and Police Officer David Katzen. The following facts were developed during the trial. At approximately 2:15 a.m. on February 19, 1998, while Habib Qureshi was working the overnight shift at the 7-Eleven at 1074 Motor Parkway in Central Islip, NY, a man entered the store whom he recognized as a "regular customer who almost walks in every other day." (Tr. at 653.) He described the man as African-American, clean-shaven, with a shaved head, and wearing a loose gray jacket, dark gray pants, and blue sneakers. The man attempted to sell Mr. Qureshi a watch for ten dollars, explaining that he needed money for gasoline. The man exited the 7-Eleven and returned while Mr. Qureshi was helping a customer, to whom the man also tried selling the watch. The customer declined but gave the man a few dollars. The store was fully lighted and the man stood directly in front of the counter where Mr. Qureshi was working. Mr. Qureshi identified Petitioner as the man trying to sell the watch. (Id. at 653--59, 662--64, 706--08.)
Mr. Qureshi testified that he saw Petitioner go to a cream colored station wagon outside of the store in which he had previously seen Petitioner and another individual arrive to make purchases at the 7-Eleven. Though Mr. Qureshi testified that he did not see Petitioner arrive in this car on the night of the robbery, he saw the car around the same time as Petitioner entered the store and tried to sell the watch. Mr. Qureshi testified that he saw the car move across the street to a gas station after Petitioner exited the store the second time.*fn1 (Tr. at 660--61, 701, 707, 715.)
According to Mr. Qureshi, about fifteen minutes later, while he was cleaning the coffee machines behind the counter, Petitioner reentered the store and walked quickly towards him with an L-shapedtire iron rod in his hand. Mr. Qureshi testified that Petitioner was wearing the same pants and a navy blue sweatshirt with a hood, though the hood did not obstruct Petitioner's face. (Tr. at 664.) Petitioner moved behind the counter where Mr. Qureshi was standing and told him, "Open the register. Give me the money. You will be dead." (Id. at 665.) Petitioner took around three hundred dollars from the cash register and hit Mr. Qureshi twice with the tire iron. Petitioner then told him, "Don't touch anything and move from here [or] you will be dead." (Id.)
Once Petitioner left the store, Mr. Qureshi hit the panic button and called 911 "[w]ithin seconds." (Tr. at 667.) The 911 tape, admitted as a present sense impression over defense counsel's objection that it was hearsay and bolstering, was played for the jury. (Id. at 685, 688, 695.) When police officers arrived, Mr. Qureshi told them that the man who had robbed the store was a regular customer. (Id. at 669.) Mr. Qureshi knew Petitioner lived at Coventry Village apartments because a friend and neighbor of Petitioner's, Izzy Martinez,*fn2 had fixed the radiator in Mr. Qureshi's car. Mr. Qureshi saw Petitioner at Coventry Village when he went there to have his car repaired and had asked Petitioner where to find Mr. Martinez. (Id. at 670.)
During the morning hours after the robbery, Mr. Qureshi accompanied police officers to Coventry Village twice-once with Officer Katzen to canvass the area for the cream colored station wagon and a second time to point out Petitioner's residence. (Tr. at 628, 672.) Detective Mihalik of the Suffolk County Police Department took a statement from Mr. Qureshi upon his return to the 7-Eleven after the first trip. (Id. at 673.) The afternoon of February 19, 1998, Mr. Qureshi, his boss, Det. Mihalik, and other officers, including Officer Katzen, viewed a surveillance tape that had recorded the robbery at the 7-Eleven. (Id. at 629, 673, 778, 787.) Two versions of this tape were admitted into evidence: a fast version (the speed at which the surveillance tape was recorded) and a slower version. (Id. at 813--14.)
Izzy Martinez testified at Petitioner's trial that, on the night of February 18, 1998, Petitioner had attended a party he was hosting at Coventry Village, where his fiancé lives. At some point during the evening, Mr. Martinez gave Petitioner a few dollars to buy beer. (Tr. at 751.) Mr. Martinez testified that he owns a light-brown station wagon, which "usually everybody . . . [would use] . . . to go get [beer]," but that he had no knowledge whether Petitioner used it that evening and that Petitioner owned a gray car at that time. (Id. at 751--52.) The station wagon was described by Det. Mihalik as a cream, 1978 Buick station wagon with woodgrain side paneling. (Id. at 838.) Mr. Martinez testified that his car disappeared the night of the party and that he recovered it some time afterwards, shortly before police officers arrived to search it. (Id. at 754, 763--65.)
When Det. Mihalik first visited Coventry Village the morning of February 19, 1998, he did not see the station wagon. Det. Mihalik returned to Coventry Village later that afternoon and spoke to Mr. Martinez and Petitioner's wife, Belinda York. (Tr. at 834--36.) Det. Mihalik returned to the apartment complex on February 20, 1998 to search the station wagon, with Mr. Martinez's consent, and found inside it a navy sweatshirt and a crowbar. (Id. at 837--39, 841.) Det. Mihalik testified that the station wagon was not fingerprinted because officers had information that Petitioner had previously used the car, that the crowbar was not fingerprinted because it did not have a smooth surface, and that the sweatshirt was not analyzed for trace evidence because he did not think it would have any. (Id. at 849--51.) Det. Mihalik noted that he did not ask Mr. Qureshi to identify the sweatshirt or the crowbar because of the generic nature of the two items. (Id. at 852.) On re-direct examination, Det. Mihalik testified that the 7-Eleven was not checked for fingerprints because of high store traffic. (Id. at 985--86.)
Police officers were unable to locate Petitioner until July 29, 1998 when, upon receiving an anonymous tip from Crime Stoppers, Det. Mihalik and two other officers found Petitioner at Coventry Village and arrested him. (Tr. at 854--55.) Det. Mihalik took Petitioner to an interview room at the Third Precinct in Bay Shore and read him his Miranda warnings and had him initial a rights statement. (Id. at 861--63.) Petitioner indicated that he understood his rights, both orally and in writing, waived his right to speak to an attorney, and agreed to make a statement as to what occurred on February 19, 1998. (Id. at 860, 864.) Det. Mihalik wrote the statement based on what Petitioner told him, and Petitioner signed it after reading it. (Id. at 865--66.) Det. Mihalik read the statement to the jury, which contained the following narrative:
One night in February, 1998 I was out drinking and smoking crack for about five hours. I never really had a drug problem up until this time, but I got introduced to crack by friends who had smoked in an apartment right downstairs from where I live. My money ran out that night, so I drove my friend's car to 7--11 on Motor Parkway and Wheeler Road in Central Islip.
At 7--11 I was trying to make some money by selling a watch. A guy gave me two dollars but I couldn't sell the watch. I was stressed for drugs. I left the store. I went back to my friend's car. I was desperate. I saw some clothes in the back of the car. I changed and went back into 7--11 and I took money from the cash register. I just wanted the money. I didn't want to hurt anyone. I ran back out of the store, got into the car and drove away.
Sometime after this I sat down with my wife and discussed what happened that night. I came to terms with my drug problem. My wife helped me beat the drugs. I realize the importance of my family. I knew I would have to pay for what happened that night. I have since been working steady supporting my family. I am drug free. I am now at the Third Precinct giving this two page statement to Detective Mihalik. I have read the statement, given it freely, haven't been offered no threats or promises, and I swear it is all true. (Id. at 866--67.) Det. Mihalik admitted that, at one point while taking the statement, he made an intentional mistake-which Petitioner pointed out, corrected, and initialed-for the purpose of ensuring that Petitioner had read the statement. (Id. at 961--62.) Det. Mihalik did not record the taking of the confession in the prisoner activity log, in which he marked other movements made by Petitioner such as drinking water and smoking a cigarette. (Id. at 964.)
A jury found Petitioner guilty of robbery in the first degree on July 30, 1999 and he was sentenced on December 6, 1999 to a determinate sentence of twelve and a half years. Petitioner's primary defense at trial was identification, as he claimed that he was not the man with the navy sweatshirt who committed the robbery. Petitioner appealed his conviction to the New York State Appellate Division, Second Department, arguing that: the 911 tape, the tire iron, and the sweatshirt were improperly admitted into evidence; the prosecutor's voir dire questions improperly asked jurors to commit to scenarios similar to those presented at trial; the prosecutor made improper comments during opening and closing statements; the prosecution failed to prove Petitioner's guilt beyond a reasonable doubt; and Petitioner's sentence was excessive. By Decision and Order dated April 14, 2003, the Second Department addressed each of these arguments and affirmed Petitioner's conviction, holding as follows:
The hearing court properly declined to suppress the contents of the vehicle that the defendant used to commit a robbery. On the day of the robbery, the defendant borrowed the vehicle from a friend and did not return it. The friend recovered the vehicle the next day, and the police searched the vehicle thereafter. There was no evidence that the defendant had the right to exclude others from the vehicle. Accordingly, the defendant failed to establish that he had a legitimate expectation of privacy in the vehicle and he lacked standing to challenge the validity of the search.
Contrary to the defendant's contention, the trial court properly admitted the audiotape of a telephone call to the 911 emergency number under the present sense impression exception to the hearsay rule. Although the call was made after the perpetrator left the convenience store, the time delay was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests.
The defendant's contention that the evidence was legally insufficient to support his conviction of burglary in the first degree is without merit. Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
The defendant's remaining contentions of prosecutorial misconduct during voir dire, the opening statement, and the summation either are unpreserved ...