The opinion of the court was delivered by: John Gleeson, United States District Judge
Najee Player petitions for a writ of habeas corpus, challenging his 2001 conviction in state court in Suffolk County, following a jury trial, of murder in the second degree, kidnapping in the first degree, kidnapping in the second degree, and conspiracy in the fourth degree. For the reasons set forth below, the petition is denied.
Player and three co-defendants were prosecuted for the 1999 killing of Donnie Meyer. The relevant events began with co-defendant James Argentina's incarceration in early 1999 for a parole violation. Argentina believed that Meyer gave police the information that led to Argentina's arrest and incarceration for the violation. On December 8, 1999, the day after his release, Argentina contacted several friends and arranged to meet with Meyer, explaining to Meyer that he wanted to discuss a possible drug sale. A group of five men -- including both Meyer and Argentina as well as Arthur Morace, Anthony Torres, and Darrin McKiernan -- met that afternoon in a shopping center parking lot in West Islip. The group drove in one car to the apartment of co-defendant Kenneth Cardona, located at 112 Willow Street.
When the men arrived at 112 Willow Street, Cardona was at the apartment, as was Najee Player, co-defendant Dowan Myers, and Cardona's roommate, George Rajotte. When Meyer entered the apartment, the four co-defendants began to interrogate him. Cardona dealt the first blow to Meyer's face, and soon the other three co-defendants joined in punching Meyer. Cardona soon left the room and returned with an aluminum baseball bat, which he gave to Player. Player and Cardona took turns hitting Meyer with the bat while Argentina and Myers held his legs. Player retrieved a role of tape and taped Meyer's eyes and mouth. He struck Meyer's hands with a hammer repeatedly in an effort to break his "Legion of Doom" finger --named after what the group called itself -- since Cardona declared that Meyer was no longer a member. Player began to burn some of Meyer's hair with a lighter. During most of the attack, Rajotte was in another room, and Morace stepped away from the commotion.
After removing the tape from an unconscious Meyer's mouth, and after a failed effort to elicit answers from him, Cardona determined that Player, Myers, and Rajotte would take Meyer to a location called Blue Point, where they knew Gus Atterole, a man who owned a vacant apartment there. Cardona hoped the Atterole would allow Meyer to recuperate in the apartment. Atterole refused the request, and the three to returned with Meyer to 112 Willow Street. They brought Meyer into the back room of the apartment. Cardona was at the apartment and Argentina would soon arrive, but Morace, Torres, and McKiernan had gone elsewhere and did not return that evening. Cardona stated that Meyer was not leaving the apartment alive. Rajotte then left the apartment, though he soon returned when Cardona and Player requested that he come back to help the group clean up.
When Rajotte returned to 112 Willow Street, Cardona and Argentina were standing in the driveway while Player was in the back room of the apartment with Meyer, repeatedly hitting Meyer with the swivel base of an office chair. Player eventually emerged from the room and announced that Meyer was dead.
Cardona determined that Player, Myers, and Maurice Brown, who had arrived on the scene at approximately 10:30 p.m., would dig a hole and bury Meyer in the woods in Central Islip. While Player and Myers dug the hole, Brown returned to 112 Willow Street. Soon after, he drove with Rajotte to the burial site, having placed Meyer's body in the trunk of the car. Player, Myers, and Brown then buried Meyer.
Investigators found Meyer's body on January 24, 2000.
B. The Procedural History
1. The Trial Court Proceedings
In 2001, a jury found Player guilty of murder in the second degree, kidnapping in the first and second degrees, and conspiracy in the fourth degree. He was sentenced as a prior felony offender to 25 years to life imprisonment for murder and also for kidnapping in the first degree, 25 years for the kidnapping in the second degree charge, and 2-4 years for the conspiracy charge, all four to run concurrently.
At trial, the state's witnesses included Brown, Rajotte and Morace. In New York, "a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense." N.Y.Crim. Proc. Law, § 60.22(1) (McKinney 2003). The court determined that Brown was not an accomplice as a matter of law, so the jury would not hear an accomplice charge pursuant to § 60.22 with respect to Brown. The court further ruled that the jury should determine whether or not, on the facts of the case, Rajotte and Morace were accomplices to the kidnapping and murder of Meyer. Defense counsel representing Cardona took exception to the court's decision with respect to Brown, but failed to take exception to the charge related to Rajotte and Morace. At no point did Player's own attorney take exception to the court's charging decision with respect to Brown, Rajotte or Morace.
Player did object at trial to the court's refusal to instruct the jury that unlawful imprisonment is a lesser-included offense of the kidnapping charges. Player also objected at several points during the prosecutor's summation in response to what he claimed were improper comments that unfairly prejudiced the jury against him.*fn1
On appeal to the New York Supreme Court, Appellate Division, Player asserted trial error resulting from the fact that (1) the court failed to instruct the jury, pursuant to N.Y. Crim. Proc. Law § 60.22, that a defendant cannot be convicted upon the uncorroborated testimony of an accomplice witness, and that the testimony of Brown, Rajotte, and Morace was accomplice testimony as a matter of law; (2) the trial court erred when it denied defense counsel's motion to dismiss the kidnapping, conspiracy, and felony-murder counts of the indictment; (3) the court erred when it failed to instruct the jury on the lesser-included offense of unlawful imprisonment; (4) the cumulative effect of prosecutorial misconduct prejudiced Player; (5) the sentence imposed was excessive; (6) the prosecutor constructively amended the indictment, causing a substantive change in the theory of the case in a way that deprived Player of a fair trial; (7) the prosecutor failed to offer proof to fulfill the representations he made in his opening statement, which prejudiced Player; (8) Player was deprived of his right to an impartial jury due to the equivocation of one juror when asked whether or not he could be fair; (9) cumulative trial errors deprived Player of a fair trial; and (10) Player was deprived of effective assistance of counsel.
On April 25, 2005, the Appellate Division affirmed the conviction, addressing claims in Player's initial appeals brief as well as those included in a supplemental brief. People v. Player, 793 N.Y.S.2d 536 (2d Dep't 2005). The court held that Player's claim based upon the corroboration requirements of § 60.22 was unpreserved for review, but "in any event" without merit. The Appellate Division found that the trial court had properly determined that Brown was merely an accessory after the fact, and not an accomplice as a matter of law. The court also found that the trial court's submission of the question of whether Rajotte and Morace were accomplice witnesses as a question of fact for the jury was appropriate, "since different inferences regarding their complicity could reasonably be drawn from the evidence at trial." Player, 793 N.Y.S.2d at 536-8. Player's claim that the trial court should have instructed the jury on unlawful imprisonment as a lesser-included offense of kidnapping was also rejected, since "[u]nlawful imprisonment in the first degree is not a lesser-included offense of kidnapping in the first degree or kidnapping in the second degree." Id. (citing People v. Ahedo, 646 N.Y.S.2d 520 (1996)). Furthermore, the Appellate Division determined that the sentence imposed by the trial court was not excessive. Id. With respect to Player's remaining arguments on appeal, the court found them to be "either unpreserved for appellate review or without merit." Id.
Player moved the Appellate Division to reargue his claims, and the court subsequently denied the request. Player's application for leave to appeal to the New York Court of Appeals was also denied. People v. Player, 5 N.Y.3d 793 (2005) (Ciparick, J.). ...