The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner, Ronald Cassidy ("Petitioner"), through counsel, has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment of conviction entered June 24, 2003, in New York State, County Court, Wayne County, convicting him, after a jury trial, of two counts of Sexual Abuse in the First Degree (N.Y. Penal Law ("Penal Law") § 130.65) and Three Counts of Endangering the Welfare of a Child (Penal Law § 260.10).
For the reasons stated below, the writ is denied and the petition is dismissed.
II. Factual Background and Procedural History
In 2002, Petitioner was arrested for displaying his penis and engaging in sexual acts and/or watching a pornographic video with his fiancee's ten-year old daughter and her friends in Petitioner's home in Newark, New York. These activities occurred over a two-year period.
By Wayne County Indictment No. 02-56, Petitioner was charged with three counts of Sexual Conduct Against a Child in the First Degree (Penal Law § 130.75[a]), two counts of Sexual Abuse in the First Degree (Penal Law § 130.65), and five counts of Endangering the Welfare of a Child in the First Degree (Penal Law § 130.65).
Before trial, Petitioner moved to sever the counts of the indictment as they related to each incident. The trial court denied Petitioner's motion, finding that joinder for trial of all counts of the indictment was statutorily proper. Motion Minutes [M.M.] 5-6.
1. The People's Case at Trial
In April 2002, the complainant*fn1 ("the primary complainant"), lived at 1371 Aracadia Zurich Norris Road ("the premises" or "Petitioner's home"), in Newark, New York with her mother, Petitioner, and Petitioner's son from another marriage. T.T. 737.
With regard to counts 1-3 of the indictment, the primary complainant testified to the following: that between about December 1, 2001 and April 1, 2002 she performed oral sex on Petitioner; that Petitioner inserted his penis into her vagina more than two times; and that Petitioner inserted a sex toy into her vagina. T.T. 760. The primary complainant also testified to the following: that between about January 1, 2001 and November 30, 2001 she performed oral sex on Petitioner; that between about January 1, 2000 and December 31, 2000 Petitioner inserted his penis into her "bottom", and that she performed oral sex on Petitioner. T.T. 763.
Before April 5, 2002, the primary complainant had not reported the abuse to her mother because Petitioner threatened to harm her, and she was scared.*fn2 T.T. 752-753.
The primary complainant's mother testified that after her daughter spoke to her on April 5, 2002, she took her daughter to her pediatrician to be examined. T.T. 1312-1314. On that same date, the primary complainant's mother gathered sex toys and pornographic ...