The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Joshua Liner, a New York State prisoner, seeks habeas corpus to challenge his conviction for burglary in the third degree, petit larceny, and two counts of criminal possession of a weapon in the third degree, and his resulting concurrent sentences totaling three and a half to seven years of imprisonment. The petition will be denied.
At Liner's trial, where he represented himself with the assistance of standby counsel, Craig Rose, a security guard at a Duane Reade drugstore, testified that on April 18, 2004, he observed on a video monitor Liner enter the store, wearing a heavy coat though it was not a cold day, and proceed to take a number of packages of toothpaste and cold medicine from the shelves and put them into his pants. The video system recorded what Rose observed, and the recording was played at trial. Rose approached Liner as he was leaving the store without paying for the merchandise, identified himself as a security guard, and asked Liner to go with him to the back of the store. Although Rose instructed Liner to keep his hands away from his pockets, Liner reached toward his right side while walking through the store with Rose and his partner. Concerned that Liner might have been reaching for a weapon, Rose grasped Liner, and subdued and handcuffed him with the assistance of his partner, incurring a minor laceration on his finger in the process. A search of Liner's person disclosed two kitchen knives, one in his right jacket pocket, the other on the left in his waistband, as well as a pair of scissors, eight packages of toothpaste, and eleven of cough syrup. A subsequent police search yielded $190 in cash. Rose also identified two forms, obtained from Duane Reade's files, dating from 2000 and 2002. On each form, Liner signed a statement acknowledging that Duane Reade had revoked his privilege to enter any and all Duane Reade stores, and that he had been advised that if he entered any Duane Reade store, he could be arrested for trespass. The trial court, over Liner's objection, admitted the forms as business records.
The prosecution also introduced Liner's testimony before the grand jury, which he gave after consulting with an attorney and waiving immunity. In that testimony, Liner admitted that on the day in question, he had gone "to steal some stuff out of Duane Reade." (Tr. 297-98.) He added that he went there "just to steal," because "[t]hat's all I do is steal." (Id.) With respect to the weapons, he explained that "I carry some knives in my back pocket. You know. I'm from New York. Anybody from New York [knows] that you got to carry some type of weapon with you in New York." (Tr. 297.) He denied reaching for the knives to resist arrest, testifying that he was "trying to discard the knives, trying to get rid of it," because, having recently been arrested for stealing from Duane Reade, he did not want to be caught with the knives. (Tr. 298.) Liner also admitted that, after his previous arrest, he had been told not to return to Duane Reade, but that he had ignored the order because "I got to eat. . . . I got to go steal so I can make some money." (Tr. 302.) He stated that he had "probably" signed a statement, but that he "didn't read those papers." (Tr. 303-04.)
The Appellate Division affirmed Liner's conviction, rejecting arguments made both in a brief submitted by counsel and in Liner's supplemental pro se submission. People v. Liner, 822 N.Y.S.2d 524 (1st Dept. 2006). The principal legal issue presented by counsel was the claim that the admission of the "trespass notices" violated Liner's rights under the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004). The Appellate Division rejected this argument, finding that the notices were not testimonial in nature, as they were "generated long before defendant's arrest, were not prepared by or on behalf of law enforcement, [and were not] created solely for the purpose of criminal prosecution." 822 N.Y.S.2d at 525. Leave to appeal to the Court of Appeals was granted, but that Court disposed of the matter briefly, finding that the Confrontation Clause claim was not preserved, because Liner failed to assert that Clause as a basis for his objection at trial. People v. Liner, 9 N.Y.3d 856 (2007).
Liner now seeks habeas corpus. His pro se petition can be construed liberally to raise four different arguments: (1) that the admission of the trespass forms violated the Confrontation Clause; (2) that the State violated the rule of People v. Rosario, 9 N.Y.2d 286 (1961), by failing to provide him with a copy of a surveillance video of the event; (3) that the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by discriminatorily challenging black jurors; and (4) that the evidence was insufficient to support either his weapons conviction, because a kitchen knife is not a weapon the possession of which is prohibited by New York law, or his burglary conviction.
A habeas court may not review a federal issue when the ultimate state court resolution of the issue rests upon "a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Whether the state law ground bars federal review depends on (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citation and internal quotation marks omitted). See also Lee v. Kemna, 534 U.S. 362, 376-76 (2002).
Here, the Court of Appeals expressly rested its decision on Liner's failure to object on Confrontation Clause grounds. 9 N.Y. 3d at 856. Reliance on the rule was not a one-day ticket: New York's contemporaneous objection rule is embodied in the Criminal Procedure Law, N.Y. C.P.L. § 470.05(2), and the New York courts have frequently applied this law precisely as the Court of Appeals did here, holding that a hearsay objection without specific invocation of the Confrontation Clause preserves only a state-law evidentiary objection and not a federal Confrontation Clause argument. See, e.g., People v. Kello, 96 N.Y.2d 740, 743-44 (2001); People v. Dombroff, 44 A.D.3d 45, 785, 787 (2d Dep't 2007);People v. Johnson, 40 A.D.3d 1011, 1012 (2d Dep't 2007); People v. Lopez, 25 A.D.3d 385, 386 (1st Dep't 2006); People v. Hughes, 251 A.D.2d 513, 513 (2d Dep't 1998). This is a reasonable rule, given that the hearsay rule and the Confrontation Clause -- although they address similar concerns and overlap in some respects -- have different contours, such that a trial judge might be expected to focus on different issues depending on which objection is being raised.
In the context of Liner's pro se trial, however, this Court has some hesitation about whether a more generous approach to whether Liner "substantially complied" with the rule is called for. This is not a case in which a lawyer invoked the hearsay rule, but failed to cite the Confrontation Clause, thus directing the trial judge's attention to the considerations underlying the state rules of evidence and diverting her from those relevant to the federal issue. Liner, a pro se defendant, did not invoke any particular legal rule or theory. Instead, he phrased his objection in terms of the underlying facts. Asked to state his objections to the admission of the documents, he said: "Whoever is -- whoever wrote that . . . [t]he author of that report should be present." (Tr. 256.) Both the hearsay rule and the Confrontation Clause rest on the importance of first-hand testimony, with its attendant oath, cross-examination and physical confrontation. It is not clear why a demand that a witness be personally present should be construed as invoking the hearsay rule rather than the defendant's constitutional right "to be confronted with the witnesses against him." U.S. Const. Amend. VI. On the other hand, Liner failed to be more explicit about the basis of his objection when the trial court eventually expressly disposed of the objection by admitting the documents under the business record exception to the hearsay rule.
In this case, however, Liner's objection is without substantive merit so it is unnecessary to determine the significance of his failure to cite the specific legal basis of his objection. The Confrontation Clause does not prohibit the introduction of all hearsay testimony. Rather, the Supreme Court ruled in Crawford, it is concerned with "the admission of testimonial statements of a witness who did not appear at trial." 541 U.S. at 53-54 (emphasis added). While the Court did not comprehensively define this category, it did note that the phrase encompasses a "core class" of statements such as ex parte testimony, affidavits, statements in response to police interrogation or similar statements "made under circumstances which would lead an objective witness reasonably to believe that the statement ...