The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Carlos Vera (hereinafter, "petitioner" or "Vera") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted in a judgment rendered on April 3, 2002, following a jury trial in New York County Court, Suffolk County. Petitioner was convicted of Gang Assault in the First Degree [N.Y. Penal Law § 120.07] and Assault in the Second Degree [N.Y. Penal Law § 120.05], and was sentenced to two determinate terms of imprisonment of twelve (12) and seven (7) years, respectively, to be served concurrently.
Petitioner challenges his conviction on the following grounds: (1) the State violated petitioner's rights under the Due Process Clause of the Fourteenth Amendment when the trial court allowed an unreasonable identification to be submitted to the jury; (2) the State violated petitioner's rights under the Due Process Clause of the Fourteenth Amendment by obtaining his conviction through evidence which was insufficient as a matter of law to sustain the conviction by proof beyond a reasonable doubt; (3) the State violated petitioner's First and Fifth Amendment rights by allowing certain evidence relating to petitioner's tattoo to be admitted at trial; and (4) the trial court erred in allowing unfairly prejudicial demonstrative evidence relating to a scar on the victim's chest to be published to the jury.
For the reasons stated below, petitioner's request for a writ of habeas corpus is denied in its entirety.
The following facts are adduced from the instant petition and underlying record.*fn1
On June 21, 2002, Eric Bonilla ("Bonilla") went to his family's restaurant, Acajunta (the "Restaurant"), in Brentwood, New York, to celebrate his twenty-first birthday. (Tr. at 250.)*fn2 At one point, he observed two men speaking to his fourteenyear-old sister, Caroline Bonilla ("Caroline"). (Id. at 150-51.) Bonilla's brother, Mark Hernandez ("Hernandez"), told his sister to go inside and she did. (Id. at 177.) After watching the two men make a phone call, Bonilla and Hernandez joined their sister inside the Restaurant. (Id. at 152.) While they were in the Restaurant, Edyi Yesenia Mesa ("Mesa"), a waitress at the Restaurant, saw a women later identified as Jacqueline Jacobs ("Jacobs"), make a phone call. (Id. at 249-252.) She then saw her pass from the street next to the Restaurant to the deli, making signs with her hands. (Id. at 419.)
Later, Bonilla went outside the Restaurant with his girlfriend. Hernandez and his two sisters - Caroline and Jennifer - were about to leave to get Chinese food. (Id. at 152-53.) After Bonilla's sisters got into the car, fifteen to twenty men approached Bonilla and Hernandez, some armed with bats and knives. (Id. at 153.) Bonilla testified that at that moment, everyone started to run. (Id.) Bonilla pushed his girlfriend into the Restaurant and began to run. (Id.)
The group of men caught up with Bonilla and attacked him. (Id. at 4.) They hit and broke his arm with a bat and stabbed him in the chest with a knife. (Id. at 154.) After the stabbing, the attackers rushed back to their cars and fled the scene. (Id. at 180-81.) Hernandez, believing that the assailants took Bonilla with them, got into his car and followed one of the cars that he believed to be of the assailants. (Id. at 181.) Hernandez called 911 while he was driving and, after losing the assailants' vehicle, returned to the Restaurant. (Id. at 181-82.)
Detective John Rodriguez responded to the 911 call and, along with other officers, began to gather evidence from witnesses at the Restaurant. (Id. at 558.) During this time, a car drove by the Restaurant. (Id. at 331.) Caroline identified that car as one of the cars that she saw leaving the scene of the incident with the attackers inside. (Id.) Officers pulled the car over and found that it contained Manuel Alvarenga, Elmer Quenteros, Edwin Larios, and Jacqueline Jacobs.*fn3 (Id. at 361-365.)
Mesa gave a statement to the police that night. (See Pet.'s Appendix, at 7.) She testified at trial that she observed the incident through a large picture window from inside the Restaurant. (Tr. at 411.) She saw about fifteen to twenty men chasing Bonilla towards the deli. (Id.) She said that at least three men caught him in front of the Restaurant. (Id. at 411-412.) She saw that a man holding Bonilla from behind had a bat, and that two men were holding Eric from in front. (Id. at 412.) One man had a knife, and the other had a bottle. (Id.) She testified that she shook the door to the Restaurant and Bonilla broke free. (Id.)
Two days later, Mesa noticed the petitioner, Carlos Vera, at the Restaurant with four other individuals. (Id. at 421-22.) She recognized him as one of the individuals from the assault and was afraid, so another waitress took their order. (Id.) Mesa testified that Vera pointed and began making faces at her. (Id.) She told the other waitress that he had been involved in the attack on Bonilla. (Id.) The police were called. (Id. at 422.) Petitioner was arrested at the Restaurant on June 23, 2002.
Petitioner was charged with Gang Assault in the First Degree [N.Y. Penal Law § 120.07], Assault in the First Degree [N.Y. Penal Law § 120.10], and Conspiracy in the Fourth Degree [N.Y. Penal Law § 105.10]. The charge of conspiracy was dropped at the close of the State's case. (Tr. at 688-703.)
On April 3, 2002, in Suffolk County, New York, a jury convicted petitioner of Gang Assault in the First Degree [N.Y. Penal Law §120.07] and a lesser-included charge of Assault in the Second Degree [N.Y. Penal Law § 120.05]. (Tr. at 1225-1231.) On April 9, 2002, petitioner was sentenced to a determinate term of twelve years incarceration for the first degree charge and a concurrent determinate term of seven years for the second degree charge.
On April 10, 2002, Vera appealed his conviction to the Appellate Division, Second Department, claiming that: (1) the People's opening was inadequate; (2) the trial evidence did not meet the standard of guilt beyond a reasonable doubt; (3) the trial court failed to give a missing witness charge; (4) the People's argument that some witnesses were uncooperative was a sham; and (5) the conviction was the result of a compromise verdict. The Appellate Division affirmed the judgment of conviction in a decision and order dated October 25, 2004. People v. Vera, 11 A.3d 716 (N.Y. App. Div. 2004).
Vera then filed an application with the New York Court of Appeals for leave to appeal the Appellate Division's order on the claims regarding the lack of a missing witness charge and the insufficient opening statement. On January 14, 2005, the New York Court of Appeals denied petitioner's application for leave to appeal the decision. People v. Vera, 4 N.Y.3d 768 (N.Y. 2005).*fn4
On April 11, 2006, Vera petitioned this Court for a writ of habeas corpus.
To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...