The opinion of the court was delivered by: Denise Cote, District Judge
On December 22, 2010, Cecille Villacorta ("Villacorta") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "petition"). Respondents contend that the petition should be denied, principally for failure to exhaust state court remedies. For the following reasons, the petition is denied.
From 1998 until 2006, petitioner was employed as a sales associate in the fine jewelry department of the Saks Fifth Avenue department store ("Saks") in Manhattan. Villacorta's employment with Saks ended on January 30, 2006, when she was arrested at the store. Villacorta was subsequently indicted on two theories of larceny: (1) that she stole from Saks by providing customers with unauthorized credits that did not correspond to actual purchases of merchandise (the "credit theory"); and, (2) that by concealing credits and discounts, Villacorta inflated her net sales figures, which were used to calculate her bonus, and thereby received a windfall of approximately $48,000 in bonus payments from Saks. Villacorta's habeas claims are based on both the trial court and the prosecution's conduct, beginning during the pretrial proceedings.
A. Pre-Trial Proceedings On May 7, 2007, Acting Justice Gregory Carro of the Supreme Court of New York County held a conference regarding Saks' motion to quash subpoenas that petitioner's attorneys had served for business records. Among the requested documents were records reflecting the register transactions of other employees of the fine jewelry department. Defense counsel asserted that it needed these documents to respond to the prosecution's argument that Villacorta's conduct must have been "[f]raudulent because nobody else [operated] the way she did." The court held that, while the prosecution could establish Saks' proper procedures, evidence of other sales associates' specific register transactions was irrelevant and inadmissible. At three subsequent conferences, defense counsel requested and the court again rejected the petitioner's application for disclosure of register transactions by other Saks employees.*fn1 The court also denied petitioner's alternative proposal: that a defense expert be permitted to observe Saks' employees run certain queries on the Saks' computer system.
B. Trial Proceedings Trial commenced on February 26, 2009. During its case-in-chief, the prosecution elicited testimony from Randi Riley ("Riley"), a former manager in Saks' Asset Protection Department, that she had "reviewed twenty-three associates in the Fine Jewelry Department" and that "none of the other twenty-three were doing the exact same thing" as Villacorta. Despite defense counsel's objection, the prosecution was permitted to continue its line of questioning. Riley testified that while seven of the associates whose records she examined had completed transactions similar to Villacorta's, the other associates' credits were accompanied by corresponding "offsetting purchases." Riley testified that, by contrast, she could not find any corresponding purchases for Villacorta's credits.
On the fourth day of trial, the prosecution notified defense counsel that it would call two additional witnesses --current Saks associates -- to testify that "they didn't do things the way Cecille did." Defense counsel objected that the court had already found that other sales associates' practices were irrelevant. After hearing argument on the issue, the court held that the additional witnesses could not be questioned about the "actual procedure of giving credit," but could be questioned regarding "associate training on how they do register transactions." Pursuant to this ruling, Iwona Makowicz and Kishan Nainani each testified that they had been trained not to process a return without the merchandise and the receipt being present in the store. Nainani further testified that he had been trained to process return transactions using only his own sales associate identification number and the date of the original purchase.
Finally, during summations, the prosecution reiterated that Villacorta was the only sales associate in Saks' fine jewelry department who processed credits in the manner charged as grand larceny. For instance, the prosecution argued that Villacorta's conduct must not have been authorized since "she's the only [sic] who did it this way."*fn2 When defense counsel objected to these references, the court instructed the jury of its obligation to render a decision based on the evidence presented at trial rather than summation arguments.
C. The Verdict and Sentence On March 9, 2009, the jury returned a verdict convicting Villacorta of the third-degree grand larceny count based on her receipt of inflated bonuses, and 144 counts of falsification of business documents. Petitioner was acquitted of the grand larceny counts based on the credit theory. On July 6, Villacorta was sentenced to ninety days in prison, to be followed by five years of probation. She was also ordered to perform 100 hours of community service and to pay a $96,000 fine.
D. Post-Trial Proceedings On December 6, 2009, Villacorta filed a brief in the Appellate Division, First Department, claiming:
(1) the verdict was against the weight of the evidence; (2) the court improperly denied access to Saks' computer database ["Database Claim"]; (3) the court erred in not allowing petitioner to view the records of other Saks' employees ["Records Claim"]; (4) the court erred in allowing Randi Riley to testify about other Saks' sales associates ["Testimony Claim"]; (5) the court and prosecution's treatment of a defense witness constituted reversible error; (6) the prosecutor made improper summation comments about other sales associates ["Prosecutorial Misconduct Claim"]; and (7) the jury's verdict was repugnant.
In her second claim of error -- the Database Claim --Villacorta alleged that the lower court's denial of the defense's motion for access to Saks's computer database constituted "reversible error because the defendant's request was wholly permissible under the relevant laws and necessary to effectuate Ms. Villacorta's Sixth Amendment rights." Specifically, the brief alleged that the lower court's decision abrogated the "Sixth and Fourteenth Amendments of the United States Constitution which guarantee the defendant the right to compulsory process of witnesses and other evidence favorable to the defense."*fn3
Next, in her third claim of error -- the Records Claim --Villacorta asserted that the trial court "committed reversible error when it denied the defense's request for the records of other salespeople at Saks" on the basis that this information was "irrelevant." This section of Villacorta's appellate brief does not refer to the U.S. Constitution or federal caselaw. Similarly, Villacorta's fourth claim -- the Testimony Claim --fails to cite any federal law.
On September 28, 2010, the Appellate Division denied Villacorta's appeal. Peoplev.Villacorta, 76 A.D.3d 911 (1st Dept. 2010). With respect to the Database and Records ...