The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Pro se Petitioner Hector Ciprian ("Petitioner" or "Ciprian") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, filed on January 7, 2005, he challenges the constitutionality of a judgment entered against him in the New York State Supreme Court, Kings County. Having reviewed the state court record and the parties' submissions, for the reasons set forth below, Ciprian's petition for a writ of habeas corpus is denied.
On May 10, 1999, Petitioner was convicted of one count of Assault in the First Degree under N.Y. Penal Law Section 120.10 and sentenced to twelve years in prison. (Petition Under 28 U.S.C. § 2254 ("Petition") at 1; March 31, 2005 Solomon Neubort Affidavit in Opposition to Petition for a Writ of Habeas Corpus ("Opp. Aff.") ¶¶ 6, 8.) At trial, Petitioner, an alleged member of the "Papi Chulos" street gang, was charged with punching Emanuel Aracena ("Aracena") in the face and stabbing him in the left side, piercing his stomach and spleen. (Opp. Aff. ¶¶ 4-6.) On September 10, 1998 at approximately 7:20 p.m., Aracena was listening to a walkman while he stood in front of a pharmacy on 44th Street and 5th Avenue in Brooklyn. (Id. at ¶ 5.) Two of Aracena's friends, Willis Kinard and Carlos Gil ("Gil"), were standing about ten feet away from Aracena, in front of Gil's house. (Id.) Petitioner approached Aracena and asked him what he "was looking at," before then punching and stabbing him. (Id.)
The instant Petition challenges the trial court's decision not to excuse a juror who was ill. While charging the jury, the trial judge, Justice Carolyn Demarest, sua sponte, asked one of the jurors if she was listening:
THE COURT: Miss Morales, are you with us[?]
THE JUROR: I don't feel too good.
THE COURT: Are you hearing the instructions clearly[?]
THE JUROR: Yes, I am listening. (April 28, 1999 Trial Transcript ("Tr.") at 450.) Justice Demarest completed charging the jury. (Id. at 450-62.) Just after the jury had left the courtroom to begin deliberations, Justice Demarest inquired as to what Petitioner's position would be if Morales became too ill to continue serving on the jury. (Id. at 462.) Petitioner's counsel stated that "[h]e will not make an advance commitment to agree to substitute. I am not saying I will not, I am not saying he won't." (Id. at 462.)
Justice Demarest decided to bring Morales back into the courtroom to inquire as to her condition:
THE COURT: You said during my questioning you didn't feel well.
MS. MORALES: I get migraines and I was just trying to hold the pain, I took my medication upstairs.
THE COURT: You have something for it.
THE COURT: And do they work?
THE COURT: It is a headache that you have?
MS. MORALES: Yes, bad headaches ...