The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Rashad Scission ("Scission" or "Petitioner") has filed a petition for a writ of corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody. Scission's incarceration stems from a judgment of conviction entered against him following a jury trial on attempted murder and related charges stemming from two shootings involving James Curry ("Curry"). The offenses charged in the indictment related to shootings that took place in August 2006 and October 2006.
At trial, the prosecution presented proof that on August 5, 2006, Curry was walking to a store from his friend's house on 19th Street and West Ferry Street in the city of Buffalo. T.30 (Numbers preceded by "T." refer to pages of the trial transcript.) Curry walked past Scission and two other men who were standing on the corner. T.302. "What's good?" Curry asked Scission, whom he had known for ten years. T.302-303. Scission pulled out a gun and replied, "[W]hat you mean?" T.304. Scission then shot Curry in the neck. Id.
As Curry turned and ran across the street to his friend's house for help, Scission continued to shoot. Fortunately, these shots missed Curry. T.305.
When law enforcement and paramedics promptly soon thereafter, Curry was taken to the hospital where it was determined that he had suffered broken ribs and a paralyzed hand. T.306. At the time of trial, the bullet was still lodged in Curry's neck. Id.
Crystal Hicks ("Hicks"), who witnessed the shooting from her friend's porch, saw men pacing back and forth on the corner across the street just before the incident. T.358-359. It was daylight, and Hicks was able to observe them for several hours without obstruction. T.359-360. One of them, who she identified as Scission, was wearing a red shirt. Id. Hicks testified that Curry was there, hanging out, in the early hours of that evening. T.360. She watched Curry go to the store across the street and as he passed Petitioner, Hicks heard one of them say "what do you mean what's up?" Id. Hicks watched as Petitioner drew a gun from out of his pants, aimed it at Curry, and fired at him from close range. T.361. She saw Curry clutch at his shoulder after being shot and run back to the house as Petitioner continued to shoot at him. T.361-362.
The prosecution also presented evidence regarding an October 2006 shooting involving Curry as the victim and Scission as the shooter. However, the jury acquitted Scission of the October 2006 charges. The jury returned a guilty verdict on the charges stemming from the August 2006 shooting--one count of attempted murder in the second degree, one count of assault in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree For these convictions, Petitioner was sentenced as a second violent felony offender to a twenty-five year term of incarceration, a fifteen year term of incarceration, an indeterminate term of three and one half to seven years and five years of post-release supervision. The sentences were set to run concurrently.
Represented by new counsel, Scission appealed his conviction. By an order dated March 20, 2009, the Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the judgment. People v. Scission, 60 A.D.3d 1391 (App. Div. 4th Dept. 2009). Petitioner sought leave to appeal to the Court of Appeals, which was denied on May 19, 2009. People v. Scission, 12 N.Y.3d 859 (N.Y. 2009).
Petitioner filed a motion to vacate the judgment on March 18, 2010. Petitioner claimed that testimony was received in violation of his right to confrontation. In an affidavit dated May 19, 2010, the People opposed his motion. The motion was denied by Erie County Supreme Court, and leave to appeal to the Appellate Division was denied.
This timely habeas petition presents four grounds for relief: (1) the trial court improperly denied his request to call a witness at a pre-trial Wade hearing; (2) that he was denied his right to confrontation when the trial court improperly admitted testimony surrounding an inadmissible hearsay statement; (3) that the evidence was legally insufficient; (4) that the verdict was against the weight of the evidence; and (5) that he was denied a fair trial due to prosecutorial misconduct. Respondent answered the petition. Petitioner filed a traverse in response.
The matter is fully briefed and ready for decision. For the reasons that follow, the petition is denied.
A. Claim One: Erroneous Denial of Request to Call a Witness at the Wade*fn1 Hearing Prior to opening statements, Petitioner requested and was granted a Wade hearing. T.244.
Detective William Donovan ("Det. Donovan") testified that on October 2, 2006, he showed a photographic array to Hicks in the lobby of the hospital where the Curry was receiving treatment for his gunshot wound. W.14 (Numbers preceded by "W." refer to pages of the transcript of the Wade hearing.). Hicks identified Petitioner from the array. W.5. Det. Donovan testified that he did not suggest which individual he wanted Hicks to select. W.5-6. At the conclusion of the hearing, Petitioner argued that Hicks should be called to testify about what occurred when she was shown the photographic array. W.13. He claimed that Hicks' testimony was required to establish whether she previously had been shown a photographic array or if she had discussed the identification of Petitioner after the shooting. Petitioner's request was denied, and the trial court concluded that the identification procedure was not unduly suggestive. W.14.
Scission argues, as he did in his direct appeal, that the trial court erred in denying his request to call Hicks to testify at the Wade hearing.. The Appellate Division summarily dismissed this contention as "without merit" on appeal. People v. Scission, 60 A.D.3d at 1392. This ruling was correct as a matter of New York State law and Federal law.
"A defendant challenging a pretrial identification procedure bears the ultimate burden of proving the procedure was unconstitutional." Rivalta v. Artuz, 1997 WL 401819, at *3 (S.D.N.Y. July 16, 19979 (citing People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 888 (N.Y. 1971). However, generally speaking, "the discretionary exclusion of an identifying witness by a trial judge at a pre-trial hearing does not rise to the level of constitutional error." Sorenson v. Superintendent, No. 97 Civ. 3498(NG), 1998 WL 474149, at *4 (E.D.N.Y. Aug.7, 1998). "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense." Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798, reh'g denied, 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). Although this right is "a fundamental element of due process law," it is essentially a trial right "to present the defendant's version of the facts . . . to the jury so it may decide where the truth lies." Id.
"As such, under New York law, a defendant does not have an absolute right to call a complainant to testify at a Wade hearing." Rivalta, 1997 WL 401819, at *3 (citing People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 612, 613-14 (N.Y. 1990); accord, e.g., Heron v. People of the State of New York, No. 98 Civ. 7941(SAS), 1999 WL 1125059, at *10 (S.D.N.Y. Dec.8, 1999) (finding that "under New York law, it is well-settled that there is no absolute rule which requires the identifying witness to appear at a Wade hearing when the suggestiveness of the identification procedure is called into question"). Citing policy concerns, the Chipp court noted that affording such a right "would enable defendants to harass identifying witnesses and to transform the hearing into a discovery proceeding neither authorized nor contemplated by the Legislature." Id. at 337. "Therefore, 'absent some indication that the pre-trial identification procedure employed was suggestive, a hearing judge may properly ...