The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Kenneth Smith ("Smith") has filed a pro se petition (Docket No. 1) seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Following a jury trial, Kenneth Smith was found guilty of Robbery in the First Degree (Penal Law § 160.15), two counts of Robbery in the Second Degree (Penal Law § 160.10), Assault in the Second Degree (Penal Law § 120.05), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02), Unauthorized Use of a Vehicle in the First Degree (Penal Law § 165.08), Grand Larceny in the Third Degree (Penal Law § 155.35), Criminal Mischief in the Third Degree (Penal Law § 145.14), and Reckless Endangerment in the Second Degree (Penal Law § 120.20).
This conviction stems from an incident that occurred at the intersection of Broadway Street and Jefferson Avenue in the City of Buffalo. Shortly after 11:00am on December 24, 1996, Robert Johnston ("Johnston"), a service technician for Pay-Tel, parked his company van to service a pay phone near the intersection of Broadway and Jefferson in the City of Buffalo. T. 365, 371.*fn2 As Johnston accessed the pay phone, Smith approached him and demanded the keys to his van. When Johnston refused, Smith pushed him in the chest. Smith then pulled out a gun, which he pointed at Johnston. T. 373-374. Upon seeing the gun, Johnston ran into the street in an attempt to summon help. T. 375. A woman in a car saw Johnston, and opened the passenger door to her vehicle for him to get in. As Johnston tried to enter the car, Smith blocked access to the door with his body. Johnston began to run when Smith grabbed him and hit him in the back of the head with the gun. T. 378. Stunned from the blow, Johnston turned to face Smith, who then hit him over the top of the head, causing him to fall and temporarily lose consciousness.
John Manzella ("Manzella"), a United States Army recruiter, was in his car in the area of Broadway and Jefferson when he witnessed Smith‟s attack on Johnston. T. 38, 41-43. When he saw Smith pick up Johnston‟s keys from the ground, enter the white van, and drive away, he gave chase in his car while calling 911 from his mobile phone. T. 36-50. He later identified Smith as Johnston‟s attacker at the scene of Smith‟s arrest.
Buffalo Police Officer Nathanial Wright ("Wright" or "Officer Wright") was off-duty on December 24, 1996 in the vicinity of Broadway and Jefferson, when he observed contact between the van that Smith was driving and Manzella‟s car. Maneuvering his car into oncoming traffic, Wright got out and approached Smith‟s driver‟s side window where he displayed his badge and ordered Smith to pull over. T. 161. Smith ignored this request and continued to drive down Jefferson Avenue. Both Wright and Manzella pursued the white van until it crashed into a tree in a vacant lot on Mortimer Street, where Smith jumped out and ran through several yards before the two men lost sight of him. T. 164-165.
Officer Wright proceeded back to Jefferson and Broadway, where he met up with Manzella and began to drive around looking for the fleeing suspect. Manzella described the perpetrator as a thin black male, about six feet tall, wearing a longer-than-knee-length black coat and knit cap with a Nike emblem on it.
T. 99, 47, 68, 126. Wright described the suspect as about five-feet-nine to five-feet-ten inches tall, with a medium build, wearing a mid-length black coat. T. 167. In response to several 911 calls, police converged at 320 Monroe Street and entered the building, where Smith was apprehended.*fn3 Upon his seizure, Smith was clad in a hooded sweatshirt and light-colored jacket, which was muddy. T. 294, 296. At trial, Buffalo Police Officer Jimmie Adams ("Officer Adams") testified that former Officer Carl Fleming ("Officer Fleming") discovered a black down coat and knit cap lying underneath a rock by a house directly to the rear of 320 Monroe Street. T. 263-264. Adams described the length of the coat as slightly below the waist. T. 264. Although the clothing had been taken into police custody, the prosecution never produced the clothing at trial. T. 125.
Both Manzella and Wright identified Smith as the perpetrator outside of 320 Monroe Street, approximately fifteen minutes after the chase, when Smith was apprehended. The victim, Johnston, was taken by ambulance to South Buffalo Mercy Hospital. Police intercepted the ambulance and displayed Smith to Johnston; Johnston identified Smith as the suspect. T. 385-386.
Johnston testified via videotape as a "special witness" pursuant to N.Y. Crim. Proc. Law ("C.P.L") § 190.32 in lieu of appearing at the Grand Jury proceedings. During that procedure, Johnston was shown a photograph of a Kenneth Smith, born December 7, 1967, and not of Raymond E. Smith, the actual suspect involved the robbery. Johnston identified the person in the photograph as the perpetrator of the robbery. T. 402. Due to Johnston‟s misidentification, the People accordingly instructed jurors not to base their decision on the victim‟s identification, but only on the identification of the other two witnesses. T. 5, 6.
A Wade hearing was conducted on September 15, 1997.*fn4 The trial court found that the three show-ups (identification of Smith by Manzella, Wright, and Johnston) were not suggestive, and they occurred promptly. Further, the in-court identification could be supported by the pre-trial show-up evidence, and the court would therefore not suppress identification testimony stemming from the show-up.
The jury found Smith guilty on all charges and a verdict was entered on May 15, 1998. The trial court sentenced Smith as a persistent violent felony offender to an indeterminate term of imprisonment of twenty-five years to life for the conviction of Robbery in the First Degree and to lesser concurrent indeterminate terms for the other offenses.
While his direct appeal was pending, Smith collaterally attacked his conviction in state court. On February 1, 1999, Smith filed a motion pursuant to C.P.L. § 440.10 seeking to vacate his conviction, alleging: (1) that material evidence presented at trial was known by the prosecution to be false; and (2) improper and prejudicial conduct by the Prosecution. The latter is comprised of the People‟s failure to disclose Johnston‟s grand jury identification until subsequent to the Wade hearing, and the complete failure to disclose misidentification by three other individuals.*fn5 Smith‟s first claim was denied, and his second claim relating to Prosecution‟s delayed disclosure of the "misidentification" by Johnston was also denied as sufficient facts appeared in the record to permit Appellate review, and appeal was pending at that time.*fn6
On direct appeal, Smith‟s appellate counsel raised ten issues, four of which are raised in the instant petition. The Appellate Division, Fourth Department, modified the judgment by reducing Smith‟s conviction of Grand Larceny in the Third Degree to the lesser- included offense of Petit Larceny and vacated the sentence imposed thereon. His conviction was unanimously modified on the law and as modified affirmed on December 21, 2001. People v. Smith, 289 A.D.2d 1056 (4th Dept., 2001). The Appellate Division held: (1) Smith was not denied right to confront witnesses based on state's failure to preserve Brady material, and the adverse inference charge was proper; (2) suppression of identification testimony of the eyewitnesses was not warranted; (3) the trial court‟s error in admitting the victim's show-up identification of defendant was harmless; and (4) that viewed in totality, Smith was afforded meaningful representation. People v. Smith, 289 A.D.2d 1056, 1058. Leave to appeal to the Court of Appeals was denied on April 1, 2002. People v. Smith, 98 N.Y. 2d 641 (2002).
On October 24, 2002, Smith brought a second C.P.L. § 440.10 motion for vacatur based on an alleged deprivation of effective assistance of counsel. Since the issue of ineffective counsel was already found by the Appellate Division to be without merit, the Supreme Court denied Smith‟s motion on June 11, 2003. C.P.L.440.10(2)(a). The court further noted that Smith failed to raise specific claims of ineffectiveness on direct appeal despite there being sufficient facts contained in the record. C.P.L.440.10(2)(c). (State Court Records, Memorandum and Order dated June 11, 2003). Smith then filed a petition for habeas relief in this Court, setting forth seven grounds for habeas relief. (Docket No. 1).
Respondent answered the petition, asserting that none of Smith‟s claims have merit, and that all were "rejected either by the appellate court in his direct appeal or by the trial court in his post-verdict motion." Resp‟t Answer at 6 (Docket No. 9). In his Traverse ("Trav.") dated May 24, 2004, Smith consented to dismissal of three of the seven claims. Trav. at 2. (Docket No. 14). The remaining habeas claims include: (1) the People‟s failure to preserve evidence denied Smith his right to a fair trial; (2) the identification testimony deprived Smith of his due process rights; (3) the trial court improperly charged the jury on "dangerous instrument" thereby impermissibly amending the indictment; and (4) ineffective assistance of trial counsel.*fn7
For the reasons set forth below, the petition is denied.
I. Exhaustion Requirement
There is no question that Smith has exhausted his available state court remedies. See 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270 (1971); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); see e.g. Diaz v. Mantello, 115 F.Supp.2d 411, 416 (S.D.N.Y. 2000) ("a petitioner must fairly present his federal claims to the highest state court from which a decision can be had, informing the court of the factual and legal bases for the claims asserted" (citations omitted). As noted, through appellate counsel, Smith raised on direct appeal the same claims he now raises in this petition. His motion to leave to appeal to the New York Court of Appeals was denied. Respondent concedes that Smith has properly exhausted all ...