The opinion of the court was delivered by: John G. Koeltl, District Judge:
The petitioner, Arenzo Smith, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in the New York State Supreme Court, New York County, of one count of Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.39.
The petitioner challenges his conviction on two grounds. First, the petitioner alleges that the verdict was against the weight of the evidence. Second, the petitioner claims that the trial court's decision to permit the prosecution to show an allegedly unduly prejudicial video denied him a fair trial.
The record reflects the following facts. On September 14, 2006, Officer Michael MacDougall of the New York Police Department Street Narcotics Enforcement Unit ("SNEU") observed the petitioner in the area of the chess tables in lower Manhattan's Washington Square Park. (Tr. 84.) From his post inside a nearby NYPD Temporary Headquarters Vehicle, Officer MacDougall observed the petitioner on surveillance camera monitors being approached by a variety of individuals and "point[ing] them off into different directions." (Tr. 84.) Officer MacDougall continued to watch the petitioner and, at approximately 7:30 PM, observed a man, later identified as Gideon Crawley, approach the petitioner. (Tr. 85-86.) Crawley testified that he had gone to Washington Square Park that evening to buy drugs. (Tr. 151.) Crawley testified that he approached the petitioner and the petitioner asked him how much he wanted. (Tr. 153.) Crawley responded that he "wanted a dime," which is ten dollars worth. (Tr. 153.) After a brief conversation, the petitioner spit a small object onto the ground, and Crawley bent down, placed money on the ground, picked up the object, and placed it in his mouth. (Tr. 85-86, 153.) Officer MacDougall apprehended Crawley and had him spit out the object which, based on his training and experience, MacDougall believed to be crack cocaine. (Tr. 86-88.) MacDougall radioed to the apprehension team that then arrested the petitioner. (Tr. 88-93.) Subsequent testing confirmed that the substance recovered from Crawley contained cocaine. (Tr. 175, 215.)
An NYPD surveillance camera captured the sale on video, however the video ("the sale video") did not show the petitioner's face. (Voir Dire Tr. 3; Tr. 100-02.) Video footage from several hours earlier in the day ("the pre-sale video") depicted the petitioner from the front and showed his face, clothing, and physical mannerisms. (Tr. 100-02.)
A New York County Grand Jury charged the petitioner with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16). The second count was dismissed before trial. (Tr. 3.) A jury found the petitioner guilty of the remaining charge on March 16, 2007. (Tr. 254-56.) He was subsequently sentenced to a determinate prison term of ten years, to be followed by three years of post-release supervision. (Sentencing Tr. 13.)
The petitioner filed a timely direct appeal, arguing that the verdict was against the weight of the evidence and that he was denied a fair trial as a result of the trial court's decision to allow the prosecution to present the pre-sale video footage to the jury. On May 12, 2009, the New York State Supreme Court, Appellate Division, First Department unanimously affirmed the petitioner's conviction, rejecting all of his claims. See People v. Smith, 877 N.Y.S.2d 893 (App. Div. 2009). On July 15, 2009, the petitioner's application for leave to appeal to the New York State Court of Appeals was denied. People v. Smith, 12 N.Y.3d 929 (2009). This petition followed.
Pursuant to the AEDPA, a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2); see Williams v. Taylor, 529 U.S. 362, 404-05 (2000); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law," or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result. Williams, 529 U.S. at 405. A state court decision involves an unreasonable application of clearly established federal law when the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413) (internal quotation marks omitted). To meet that standard, "the state court decision [must] be more than incorrect or erroneous. [It] must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted); see also Jones v. Walsh, No. 06 Civ. 225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27, 2007). "[I]t is well established in [this] circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted); see also Muir v. New York, No. 07 Civ. 7573, 2010 WL 2144250, at *3 (S.D.N.Y. May 26, 2010).
Because the petitioner is proceeding pro se, his petition is "read liberally and should be interpreted 'to raise the strongest arguments that [it] suggest[s].'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d ...