The opinion of the court was delivered by: John Gleeson, United States District Judge
Carlos Prado petitions for a writ of habeas corpus challenging his conviction in state court in Brooklyn, after a bench trial, of engaging in a course of sexual conduct against a child in the first degree and endangering the welfare of a child. For the reasons set forth below, the petition is denied.
The evidence at trial established that beginning in September of 1997, when his stepdaughter Sandra A. was eight years old, until about June 30, 2000, Prado engaged in a course of sexual conduct with her. The sexual conduct, which occurred in Prado's home when his wife was attending P.T.A. meetings, included him putting his hands on Sandra's breasts and vagina and putting his mouth on her vagina and breasts. There was also at least one occasion when Prado placed his penis in Sandra's mouth, and at least one occasion when he placed his penis in her vagina and between her buttocks.
On Sandra's eleventh birthday, in September of 2000, she told her mother that Prado had kissed her breasts and vagina. Prado's wife stopped speaking to him, and a few days later she left for Florida, taking all four of her children with her. They remained in Florida, at the home of a friend, for more than a month.
The day after Prado's wife returned to Brooklyn with the children, the Florida friend called the police and Detective John Sweeney of the Child Abuse Squad spoke to the family members later that day at the police station. Prado waived his Miranda rights and confessed to sexually abusing Sandra over a period of time. He wrote out his confession and later that night made a detailed videotaped statement.
B. The Procedural History
1. The Trial Court Proceedings
Prado was charged with engaging in a course of sexual conduct against a child in the first and second degrees and with endangering the welfare of a child. He moved to suppress his confessions after a hearing. The state court found that Prado had knowingly, intelligently and voluntarily waived his Miranda rights, and denied the motion.
At trial, Prado's wife testified that she left him at home with the children when she went to P.T.A. meetings during the school years from September 1997 through June 2000. She testified to Sandra's outcry (i.e., her statement that Prado had kissed her breasts and vagina) on Sandra's eleventh birthday.
Prado's confessions were of course admitted into evidence. Detective Sweeney testified at trial that neither he nor any of the other detectives who were present at the precinct when Prado confessed had threatened him or told him what to write.
Sandra testified at trial, but she was reluctant to answer any questions about the alleged sexual abuse. After multiple attempts by the prosecutor and the court to get her to respond to questions, she denied that Prado had ever abused her and said that she had lied to Detective Sweeney. Sandra admitted having given contrary testimony in the grand jury, where she inculpated Prado in the charged conduct.
Prado testified at trial that he had not done the things to Sandra that he had repeatedly admitted doing. In essence, he claimed that Detective Sweeney and his colleagues intimidated him into making his admissions.
After the bench trial, the trial court observed that Prado could not be convicted on the strength of his confessions alone; corroboration was required by New York Criminal Procedure Law § 60.50. It found that such corroboration was provided by the evidence that Sandra was in the apartment with Prado while her mother attended P.T.A. meetings and the testimony about Sandra's outcry. The court did not credit Sandra's testimony that she had not been touched by Prado. As mentioned, Prado was found guilty of engaging in a course of sexual conduct against a child in the first degree and endangering the welfare of a child. On May 31, 2001, the court sentenced him to concurrent terms of imprisonment of, respectively, seven years and one year on those counts of conviction.
(a) The Appellate Division
On appeal, Prado asserted that (1) the evidence of his guilt was legally insufficient because his confessions had not been corroborated as required by C.P.L. § 60.50; (2) if the Appellate Division found his sufficiency argument unpreserved, it should conclude that trial counsel was ineffective in not raising it on a motion to dismiss; (3) he was denied a fair trial by the trial judge's badgering of Sandra in a fruitless effort to make her testify that Prado had sexually abused her and by directing the prosecutor to impeach Sandra's exculpatory testimony.
On November 17, 2003, a divided Appellate Division affirmed the conviction. People v. Prado, 767 N.Y.S.2d 129 (2d Dep't 2003). The court held that Prado had failed to preserve his claims of insufficiency and bias on the part of the trial judge. It also concluded that, in any event, both of those claims were without merit. Prado's confessions, the court held, had been sufficiently corroborated by evidence that Prado was the sole adult present at the times when the sexual contact with Sandra took place and by Sandra's mother's testimony about the outcry. The court further held that the trial judge had not exhibited bias and that he had not usurped the prosecutor's function. Two dissenting justices voted to reverse on the ground of judicial bias. They did not address the State's claim that defendant had not preserved that claim for appellate review. Leave to appeal to the New York Court of Appeal was granted by one of the dissenting justices. 767 N.Y.S.2d (2d Dep't 2003) (McGinity, J.).
In the Court of Appeals, Prado argued that (1) the trial judge was biased and had inappropriately intervened at trial to help the prosecutor; and (2) trial counsel was ineffective in not preserving the claim that there was insufficient corroboration of his confessions to satisfy C.P.L. § 60.50.
On December 16, 2004, the Court of Appeals affirmed. It did not agree with the Appellate Division that trial counsel had not preserved the insufficiency claim. The court held that, "At the close of the evidence, defense counsel made a general motion to dismiss the counts charged, which the trial court denied. While this objection alone would not have been sufficient to preserve the issue for our review (see e.g., People v. Gray, 86 N.Y.2d 10, 652 N.E.2d 919, 629 N.Y.S.2d 173 (1995)), when coupled with the trial judge's specific findings as to corroboration, the question now on appeal was expressly decided by that court." People v. Prado, 4 N.Y.3d 725, 726 (2004). The court further found that Prado's judicial bias claim was unpreserved for appellate review.
Judge Robert S. Smith concurred in part and dissented in part. He agreed with the court that the insufficiency claim had been preserved for appellate review, and asserted that the court should therefore have addressed the merits of the claim. He expressed no view on that merits issue. 4 N.Y.3d at 726-27 (Robert S. Smith, concurring in part and dissenting in part). Judge George Bundy Smith dissented, asserting that trial counsel was ineffective for failing to move to dismiss on sufficiency grounds and that there had been insufficient corroboration of defendant's confessions to satisfy C.P.L. § 60.50. He further contended that the trial court had exhibited bias against Prado and had ...