The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Allen Valerio, a New York State parolee, brings this habeas corpus petition challenging his conviction and sentencing for criminal possession of a weapon. The petition will be denied.
The largely uncontested evidence at Valerio's short trial revealed the following facts. On October 20, 2002, two police officers patrolling in upper Manhattan came upon a crowd of over fifty people surrounding a car, shouting that a man in the car "ha[d] a gun" and had "beat[en] up an old lady." Officer Maria Rojas called for back-up and two more officers joined her. Officer Rojas then directed the persons in the car -- Joann Cavallo, Ms. Cavallo's two teen-aged daughters, and Valerio -- to show their hands. The women complied immediately, but Valerio initially did not. Eventually, Rojas and Officer Junio Acosta succeeded in extracting Valerio from the car, handcuffing him, and frisking him. Officer Acosta, who conducted the pat-down, felt a small handgun in Valerio's pocket and extracted it. A box cutter with some masking tape attached to it was found in another pocket.
As the crowd continued to be agitated and hostile to Valerio, and as Valerio appeared "very bruised up" (apparently from prior rough handling by the crowd), the officers called for an ambulance and dispatched Valerio to the hospital. (He was later found to have a skull fracture.) Although the officers were told by members of the crowd that the "old lady" had come from a particular building, was "taped up" with masking tape, and had been helped to a taxi to go to a hospital, a police investigation was unable to locate such a person. No one in the crowd was willing to identify himself, and no one in the crowd testified at the trial.
About six hours later, a detective questioned Valerio. Valerio interrupted the reading of Miranda warnings, said that he wanted to speak to the detective, and stated that "the Dominicans" had put the gun into his pocket during the altercation, before the police arrived. Testing of the weapon disclosed that it was operable, fully loaded with six bullets in the magazine and one in the chamber, and was "ready to fire," with the safety off.
The jury found Valerio guilty of Criminal Possession of a Weapon in the Third Degree, but acquitted him of the Second Degree offense -- the aggravating element of which is intent to use the gun to commit a crime. He was sentenced, as a second felony offender, to five years in prison and five years of post-release supervision. The Appellate Division affirmed his conviction, and leave to appeal was denied. People v. Valerio, 806 N.Y.S.2d 189 (1st Dep't 2005), leave to appeal denied, 6 N.Y.3d 819 (2006). A motion to vacate the conviction was denied in the state courts. (Decl. in Opp'n Ex. I). This petition for habeas corpus followed.
Valerio raises four claims of constitutional error, all of which he presented to the state courts either on direct appeal or in the motion to vacate the conviction: first, that his rights under the Confrontation Clause were violated by the admission of hearsay statements from anonymous members of the crowd that he had had a gun and had assaulted a woman; second, that his privilege against self-incrimination was violated by the introduction of testimony, and by prosecutorial argument, that he did not advise the police of his claim that the gun had been planted on him until six hours after his arrest; third, that he was denied due process by the trial court's alleged reliance at sentencing on uncharged and unproven criminal conduct against the "old lady"; and fourth, that the prosecutor denied him a fair trial by failing to disclose before trial allegedly exculpatory statements by Joann Cavallo and her daughters. None of these claims warrants relief.
The Confrontation Clause of the Sixth Amendment prohibits the introduction at trial of "testimonial" hearsay, absent a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 50-52 (2004). It is axiomatic, however, that the Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9. See also Tennessee v. Street, 471 U.S. 409, 414 (1985); United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir. 2006); United States v. Stewart, 433 F.3d 273, 291 (2d Cir. 2006). This corollary rule is self-evident once the basic nature of the confrontation right is understood. The Constitution guarantees a defendant the right to confront "the witnesses against him." If testimony by a police officer that "I interviewed Smith, who said he saw the defendant commit the murder" is offered as evidence that the defendant did in fact commit the murder, Smith is being presented as a witness, without the defendant having the opportunity to confront him. But if the same testimony is offered where the defendant stands accused of murdering Smith, to prove that defendant had a motive to kill a potential witness against him, it is the officer, not Smith, whose credibility is in issue and who stands as a witness against the defendant.
In this case, as the Appellate Division recognized, the evidence of the crowd's statements was expressly received not for the truth of the matter asserted, but to explain the officers' actions in confronting and searching Valerio, and to refute the argument that the police failed to investigate the facts of the case. 806 N.Y.S.2d at 190-91. The trial court expressly admitted the evidence on this theory (Trial Tr. 1: 23-24)*fn1 , and the jury was repeatedly instructed that the evidence was not to be considered for the truth of the statements, and was not to be considered to show that Valerio had a gun or had tried to rob an old woman, or that a woman bound with masking tape had been seen near the scene of the incident (Trial Tr. 2: 38-39, 139, 207-09). There was thus no violation of defendant's confrontation rights.
As a matter of state evidentiary law, the trial judge in this case was faced with the difficult task of balancing the probative value of the evidence against the potential prejudice to the defendant that the jury would be unable to follow the instruction, or would be overwhelmed by the proportion of "crowd noise" evidence to direct admissible evidence that Valerio intentionally possessed the loaded firearm. There was genuine probative value to the non- hearsay use of the evidence. Absent some understanding of the situation facing the officers at the time of Valerio's arrest, their actions would surely have appeared arbitrary or even abusive, and the jury would surely have wondered what was being kept from them. The finding that some evidence of what the officers were told by the crowd was probative for non-hearsay reasons was thus clearly correct. Reasonable judges could disagree about how much such evidence was required, or how the balance should be struck.*fn2 The balancing process, however, is a matter of state law, and one moreover on which the discretion of the trial judge must be afforded considerable deference by the Monday-morning quarterbacks on appellate and federal habeas courts.
Here, the evidence was admitted for legitimate, non-hearsay purposes. The purposes for which the evidence was admitted and, as importantly, the purposes for which the evidence was not to be considered, were carefully explained to the jury, in instructions it is presumed that the jurors followed. Indeed, there is some confirmation for that assumption in the record: while the jury convicted Valerio of the knowing possession of the gun -- a charge for which the officers' recovery of the gun from his pocket provided ample evidence -- it acquitted him of possession of a weapon with a criminal intent, a charge that might well have been bolstered had the jury made impermissible use of the crowd's assertion that ...