The opinion of the court was delivered by: Chin, D.J.
Pro se petitioner Carlos Osorio petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Following a jury trial in the Supreme Court of New York, Bronx County, petitioner was convicted on April 29, 1999 of burglary in the first and second degree, robbery in the first and second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child. He was sentenced to concurrent terms of imprisonment of twenty years for the first-degree burglary and robbery counts, ten years for the second-degree burglary and robbery counts, and one year for each of the unlawful imprisonment and endangering the welfare of a child counts.
Petitioner contests his conviction on the following grounds: (1) insufficient evidence; (2) failure to properly charge the jury on the pretrial identification; (3) improper admission of evidence; (4) prosecutorial misconduct; and (5) ineffective assistance of trial counsel. For the reasons that follow, the petition is denied.
The following is a summary of the facts adduced at trial.
On the morning of September 8, 1997, Rosa Cruz was at home with her eight-year-old son and six-year-old daughter. Her son did not go to school that day due to a leg burn, and her daughter stayed home because she had a toothache. (T1 447-49).*fn1
At approximately 11:20 a.m., Cruz heard a knock at the door. (Id. at 449). She looked through the peephole and saw two men. One was a shorter, well-dressed, well-shaven man who held an ID. (Id. at 450-51, 514). He stated in Spanish that he was a social worker from the city. (Id. at 450, 456, 458, 514). When Cruz opened the door, the shorter man asked her for the money that her husband owed him. (Id. at 450-51, 457). She told the two men that she did not owe them any money and instructed them to go to her husband's workplace. (Id. at 457). The shorter man then took Cruz to the kitchen, where he removed two rings and three chains from her body. (Id. at 457, 463, 514-15). Her daughter followed them while her son remained in bed. (Id. at 458). Meanwhile, the taller man went to a closet and took $300 out of a bible. (Id. at 457, 459). By this time, Cruz had observed the taller man's face. (Id. at 523).
With his face approximately eighteen inches away from her, the taller man pointed a silver-plated pistol at Cruz's chest, while the shorter one held her hands behind her back. (Id. at 458-59, 525-26). The taller man then forced Cruz to give him $300 from a handbag that was in a drawer. (Id. at 461). The men led Cruz to the bathroom and handcuffed her to a metal bar, telling her that they would be back. (Id. at 464, 466, 516).
Cruz screamed for her daughter, who had been placed inside the bedroom with her brother by the taller man. (Id. at 462-63). Her daughter then came out of the bedroom and helped her remove the handcuffs. (Id. at 465). Once she freed herself from the pole, Cruz locked the front door of her apartment. Due to her son's injury, however, Cruz had to leave him alone in the apartment while she took her daughter up the fire stairs. (Id. at 465-67). She knocked on a neighbor's door, and the neighbor called the police for her. (Id. at 467, 517).
Cruz described the two men to the operator in Spanish. (T2 27-37).*fn2 Both were Hispanic. One was tall, skinny, and had a revolver, and the other wore a white shirt and black pants. (T1 519; T2 31-34). She explained that she could not observe what the taller man was wearing because they "locked [her] up in the bathroom right off the bat." (T2 33). When the operator asked Cruz if either robber had a mustache, beard, or glasses, she responded that they did not. (Id. at 34). Cruz also stated that she did not know the two men. (Id. at 521). She told the operator that she was not injured but was concerned about her son because he was alone in the apartment. (Id. at 32-33, 36, 37).
Police Officers Franco Basandella and Phillip Litro responded to a radio call about the robbery. (T1 395-96). When the officers arrived at the scene, Cruz was "hysterical" and "crying," and still had the handcuffs on one of her hands. (Id. 396, 400). Officer Basandella tried to calm her down, and removed the handcuffs. (Id. at 400). Cruz's son unlocked the door of her apartment and the two officers spoke to her with the help of Spanish-speaking police officers. (Id. at 401, 407).
Detectives Ismael Hernandez and Christian Pena also responded to the scene. (Id. at 635, 637). At her apartment, Cruz told the detectives that the robbers were Hispanic and in their forties. She also indicated that she recognized one of them from the neighborhood. (Id. at 638-40). The reports filled out by Hernandez and Pena were left blank for clothing and facial hair, except for one entry that described one of the perpetrators as having a mustache. (Id. at 677-78).
Subsequently, the officers brought Cruz to the precinct and showed her books containing photographs. (Id. at 639). Cruz said that none of the men in the photographs were the robbers; however, she stated that one of the men in the photographs looked like the taller man that robbed her home, because he had a "long face." (Id. at 473-74, 641). The man in the picture was identified as David Papparo. (Id. at 643). It was later discovered that this man had been incarcerated since April 10, 1996. (T2 55).
Shortly after the robbery, Cruz and her family moved out of their apartment. (T1 485). At approximately 2:30 p.m. on December 1, 1997, Cruz saw the petitioner, Carlos Osorio, at Colgate Avenue. (Id. at 485-86). She told her husband that Osorio was the man who had robbed their apartment. (Id. at 486). Cruz then called the police and Detective Angel Lopez responded. (Id. at 486-87, 548). After speaking with Cruz, Detective Lopez arrested petitioner. (Id. at 547-49, 551). At the time of his arrest, petitioner was wearing a black jacket, black jeans, and sneakers, and also had a mustache and goatee. (Id. at 554). He was not carrying a weapon or any of Cruz's property. (Id. at 560). At the precinct, Detective Lopez recorded petitioner's address as 1145 Evergreen Avenue. (Id. at 552-53). This was approximately six blocks from the site of the robbery. (Id. at 654).
On December 24, 1997, a grand jury in the Supreme Court, Bronx County, charged petitioner with committing burglary in the first and second degree, robbery in the first and second degree, criminal possession of stolen property in the fourth degree, unlawful imprisonment in the second degree, and two counts of endangering the welfare of a child.
B. The Suppression Hearing
On July 1, 1998, the Honorable Barbara Newman denied petitioner's suppression motion at a Wade/Dunaway hearing. The court found probable cause for the arrest, and held that the identification was not impermissibly tainted by the activities of the police officers. (WDH 48).*fn3
At the conclusion of the suppression hearing, Justice Newman asked whether the pre-indictment plea offer to petitioner was for five years. The People responded that they did not have an official offer, but that petitioner would "be facing a minimum of ten years as a predicate felon." (Id. at 49). Justice Newman then asked petitioner's trial counsel, whether there was a plea for under ten years that petitioner would accept. After a pause following Justice Newman's request that counsel confer with petitioner, counsel responded that his "client maintain[ed] his innocence" and that he wanted to go to trial on this matter. (Id. at 50).
1. Cross-Examination of Cruz
Cruz's direct testimony largely consisted of the facts outlined above. On cross, Cruz admitted that she was terrified at the time of the robbery. (T1 517). In addition, when asked whether she told the 911 operator that she knew one of the robbers, Cruz did not provide a direct answer. Instead, she replied that she was not on the phone for long, and that she did not give that information to the operator because her neighbor did not let her talk on the phone. (Id. at 521).
2. Maritza Osorio's Testimony
Petitioner's sister, Maritza Osorio, was the only defense witness. (T3 3-5).*fn4 She testified that her brother lived with her and her children during the summer and in September of 1997 at 1145 Evergreen Avenue. (Id. at 3-4). She explained that petitioner had the same mustache and goatee during September 1997 as he did that day in court. (Id. at 4). She also testified that petitioner's physical appearance in court was the same as it had been in September 1997, including a bump above his left eye and a missing upper left front tooth. (Id. at 4-5).
3. The Prosecution's Summation
In her summation, the prosecutor explained that the question the jury had to decide was not whether Cruz remembered the robber's face, but whether she will "ever forget his face." (Id. at 99). The prosecutor stated that Cruz thought that the robber's face was the last face that she and her children were "going to ever see on this earth." (Id. at 100). She then characterized the crime as "savage, terrible, horrible" and stated that the robber "didn't just go in there and take what he needed," but instead "had to take her small child from her." (Id.). Furthermore, the prosecutor contended that defense counsel's questioning of the reliability of Cruz's identification was unfair because it suggested that "anyone who has been in a traumatic experience . . . [is] unreliable." (Id. at 101).
The prosecutor stated that Cruz was "credible, reliable, and accurate." (Id.). She asked the jury to think of Cruz's thoughts while the robbery was taking place. (Id. at 105-6). The prosecutor suggested that Cruz was likely to remember the robber's face because it was the "only thing odd, the only thing out of place and horrible" in the otherwise familiar environment of her home. (Id. at 106). She also explained that the robbery took place during the daytime and that the robber did not attempt to hide his face. Furthermore, the robber's face was only eighteen inches away from Cruz's face, and she also had an opportunity to watch how his face moved because the robber spoke to her. (Id. at 107).
Finally, the prosecutor concluded by discussing the two counts of endangering the welfare of a child. She asked the jury to imagine Cruz's son sitting on the bed, unable to move, while the robbery was taking place. (Id. at 125). She reminded the jury that Cruz's son was left alone in the apartment while Cruz went to get help. (Id.). She also recalled Cruz's testimony as to the effects of the robbery on her children. (Id.).*fn5
4. The Identification Charge
At the charge conference, defense counsel objected to the court's proposed jury charge. (T3 60). Defense counsel requested that the court ask the jury to consider "the lapse during the commission of the crime" and "whether or not the witness had an unobstructed view of the perpetrator." (Id. at 61). Furthermore, defense counsel asked that the instruction include a consideration of "the witness's opportunity during the commission of the crime to observe and remember the facial features, the body size, the hair, and clothing of the perpetrator. [They] must also ask [themselves] did the witness have an adequate opportunity to observe and remember the perpetrator." (Id. at 62). Defense counsel also requested that the court use several other sections of the Criminal Jury Instruction charge 10.01. (Id. at 60-66, 1 CJI [NY] 10.01 at 584-85). Nonetheless, the court determined that its original charge fully covered the relevant points raised by defense counsel, and consequently denied defense counsel's requests. (Id. at 67).
The jury found petitioner guilty on all charges. (Id. at 181-82). He was sentenced on April 29, 1999 to concurrent prison terms of twenty years each for the first-degree burglary and robbery counts; ten years each on the second-degree burglary and robbery counts; and one year for each of the unlawful imprisonment and endangering the welfare of a child counts.
On September 18, 2003, the Appellate Division, First Department, vacated the conviction for the count of burglary in the second degree as a lesser included offense of burglary in the first degree, but otherwise affirmed the judgment. People v. Osorio, 308 A.D.2d 376 (1st Dep't 2003). Petitioner did not raise an ineffective assistance of counsel claim on appeal. The Court of Appeals denied petitioner's application for leave to appeal on November 25, 2003. People v. Osorio, 1 N.Y.3d 541 (2003).
Osorio, acting pro se, filed a petition for a writ of habeas corpus in this Court on January 14, 2005. On February 18, 2005, the Court granted petitioner's request for a stay of his petition to permit him to exhaust his state remedies concerning his ineffective assistance of counsel claim.
In March 2005, petitioner asked the Bronx Supreme Court to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10, on the ground that his counsel had been ineffective. Petitioner provided affidavits and letters, stating that his counsel (1) did not properly inform him that he was facing a maximum sentence of twenty-five years; (2) failed to convey the particulars of a plea offer; and (3) failed to call the alibi witness suggested by petitioner. The People contended that petitioner's claim was procedurally barred by N.Y. ...