Besser v. Walsh

Full title: JAMES BESSER a/k/a JAMES ZERILLI, Petitioner, against JAMES WALSH…

Court: United States District Court, S.D. New York

Date published: Sep 10, 2003

02 Civ. 6775 (LAK) (AJP) (S.D.N.Y. Sep. 10, 2003)

Opinion

02 Civ. 6775 (LAK) (AJP)

September 10, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Pro se petitioner James Besser, also known as James Zerilli, seeks a writ of habeas corpus from his November 19, 1994 conviction in Supreme Court, New York County, of enterprise corruption (based on three "pattern" acts: first degree robbery, second degree grand larceny, and fourth degree grand larceny), and his December 11, 1995 sentence of fifteen years to life imprisonment as a persistent felony offender. (Dkt. No. 1: Pet. ¶¶ 1-5.) Besser's habeas corpus petition alleges that: (1) the evidence was legally insufficient to support his conviction for enterprise corruption (Pet. ¶ 13)¹; (2) the trial court improperly allowed the jury to find Besser guilty of underlying pattern crimes based on the uncorroborated testimony of an accomplice (Pet. ¶ 13, incorporating App.: Besser Ct. App. Br. at A50-59);² (3) the court seated two jurors whom the defense sought to peremptorily challenge without an adequate showing of racially discriminatory intent under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A60-71); (4) Besser's sentence as a persistent felony offender violated the Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A72-85); (5) Besser was unlawfully deemed a persistent felony offender because the court erred in considering the sequence of his predicate convictions (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A86-91); and (6) Besser was denied the effective assistance of both trial and appellate counsel on a variety of grounds (Pet. ¶ 13 attached Besser Br. at 1-7).

1 Specifically, Besser claimed the evidence was legally insufficient to prove his guilt of fourth degree grand larceny, a pattern act underlying the enterprise corruption conviction, because the evidence was insufficient to prove that: (1) Besser intended to permanently deprive Steven Lane of property (the "deprivation ground"); (2) the value of bad checks he forced Lane to cash exceeded the $1000 statutory limit (the "check value ground"); and (3) the cashing of the bad checks was in furtherance of a criminal enterprise (the "enterprise furtherance ground"). (Pet. ¶ 13, incorporating Dkt. No. 1: Appendix ("App."): Besser Ct. App. Br. at A42-49.)

2 The state court filings in Besser's Appendix (Dkt. No. 1: App.) are not separated by exhibit tabs. Reference to such filings will be to the lower right hand corner, handwritten Appendix page numbers ("A___").

This Report and Recommendation will analyze all of Besser's claims except his Apprendi claims, which will be addressed in a separate Report Recommendation.

For the reasons set forth below, Besser's petition should be denied, except as to his Apprendi sentencing claim, which will be addressed in a separate Report and Recommendation.

FACTS

Background

Besser was convicted of enterprise corruption, based on his membership in the Mafia and three "pattern acts." "All three of the crimes [pattern acts] for which Mr. Besser was found guilty stem from his. . . . involvement with . . . Steven Lane, the former owner of a C-Town-turned-Associated supermarket in Brooklyn." (Dkt. No. 17: Besser 1st Dep't Br. at 4.) The first degree robbery charge (Pattern Act Four) involved Besser's participation in the robbery of that supermarket. "The second-degree grand larceny charge [Pattern Act Seven] involved money Lane . . . paid to Mr. Besser's co-defendant, Jerry Ciauri, for 'protection,' and groceries Mr. Besser . . . took from the supermarket without paying. The fourth-degree grand larceny charge [Pattern Act Nine] involved . . . money Lane gave to Mr. Besser in exchange for a number of checks that bounced. . . . On the basis of these three 'criminal acts,' Mr. Besser was found guilty of enterprise corruption. . . ." (Besser 1st Dep't Br. at 4-5.)

Voir Dire

In the first round of jury selection, the trial judge (Justice Bernard Fried) excused two venirepersons, provided one replacement, and presented the attorneys with a panel of seventeen prospective jurors. (Voir Dire Transcript ("V.") 142-43, 224-27, 344-47.) Of these, eight were white (Carcara, Zimmer, Taglienti, Gossett, Rathkope, Finnegan, Vives,³ and Gallagher) (V. 416-22; see V. 390); eight were black or "very dark skinned" Latina (Cantres, Alinares,⁴ McIver, Wilson, Frazier, Vinson, Williams, and Baker) (V. 388-89, 392-400, 422); and one was a Latina of unidentified skin color (Florio) (V. 194-96). (See generally App.: Besser Ct. App. Br. at A25.)

3 Mr. Vives was born in Puerto Rico and raised in New York. (V. 192.) Besser's co-defendant's counsel identified Vives as a "white man." (V. 143, 416.)

4 Alinares was from the Dominican Republic. (V. 184-85.) The prosecutor described both Cantres and Alinares as "Hispanic" and "very dark skinned or black." (V. 392-93.) Defense counsel Quijano and Woods, without objecting to the prosecutor's description, identified Cantres and Alinares simply as "Latina" and "Latin or Spanish." (id.)

The prosecution exercised five peremptory challenges, eliminating one black (McIver) and four white (Carcara, Zimmer, Finnegan, Vives) venirepersons. (V. 386-87; see App.: Besser Ct. App. Br. at A25.) Of the remaining twelve venirepersons, four were white (Taglienti, Gossett, Rathkope, Gallagher), one was Latina (Florio), and seven were black or "dark skinned" (Cantres, Alinares, Wilson, Frazier, Vinson, Williams, and Baker). (See prior paragraph.) Attorneys for Besser and his co-defendants, acting collectively, exercised peremptory challenges against seven out of the seven black or dark skinned venirepersons on the panel. (V. 388-90.)

The prosecution moved to prevent the defense's peremptory strikes underBatson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), arguing that there was a prima facie showing of racial discrimination by the defense. (V. 390.) The judge agreed that the defendants' peremptory challenges were, prima facie, "racially motivated," and required defense counsel to present racially neutral reasons for their strikes. (V. 398-99; see also App.: Besser Ct. App. Br. at 25; App.: 7/27/95 Justice Fried Opinion at A112-19.)

Besser's trial counsel, Peter Quijano, responded to the court first. (V. 400-01.) He started by stating that during defense counsel's discussions with each other and with the defendants, "in trying to reach an agreement as to what peremptory challenges [the defense] would exercise, [he] state[s] as an Officer of the Court that race was not discussed." (V. 401; see App.: Besser Ct. App. Br. at 12.) He then turned to the reasons for striking each juror. (V. 402.) Besser's defense attorney Quijano offered the venirepersons' education levels as one reason for the peremptory strikes, explaining that the charged crime of enterprise corruption would involve "complex jury instructions" (V. 407), while Alinares had a "seventh grade education"⁵ (V. 404), and Wilson, who had completed high school, "lack[ed] . . . formal education beyond [the] preliminary level" (V. 407; see App.: Besser Ct. App. Br. at A26). Defense counsel did not mention that challenged venirepersons Cantres and Frazier also had high-school-level educations (V. 178-79, 197), but the defendants did express concern that Frazier would not be able to understand the judge's instructions regarding the presumption of innocence (V. 333, 420).⁶ Venirepersons Florio and Rathkope, whom the defendants did not strike, also had high-school-level educations. (E.g., V. 194.)

5 Alinares said she had completed the eighth grade. (V. 185.)

6 Besser's attorney, Peter Quijano, explained the presumption of innocence to the jury panel and then tested their understanding of the concept:

MR. QUIJANO: Listen to my question, you hear Justice Fried tell you that you must presume Mr. Besser innocent. The law says you have to. That any defendant in any trial he tells you that presumption is so strong that if all eighteen of you had to go back and vote right now you could only have one verdict, right?

[CARCARA]: Yes.

MR. QUIJANO: Mr. Frazier, what would that verdict be if you had to vote right now?

[FRAZIER]: I don't know, I haven't heard any evidence.

MR. QUIJANO: Stay with me. Ms. Florio you heard Justice Fried last week, I give these pop questions, it keeps everyone awake also including myself, if you had to vote right now, you went back in to the deliberations room and all you have heard is what Justice Fried has told you about the presumption of innocence, you could only have one vote right, one verdict, what would that verdict be?

[FLORIO]: It would have to be a personal one.

MR. QUIJANO: Ms. Florio, you have been a juror before, right?

[FLORIO]: Yes.
MR. QUIJANO: You were a juror in a murder case?
[FLORIO]: Yes.

MR. QUIJANO: Thank God it wasn't my jury. Mr. Finnegan?

[FINNEGAN]: Obviously innocent.
(V. 332-34.) Co-defendant's counsel also noted that Frazier "doesn't seem to comprehend Peter's inquiries." (V. 420, 429.)

Defense counsel also justified striking several venirepersons based on their prior jury service. In the defense's view, Wilson, Vinson, and Baker might have been biased because they had sat on juries in criminal trials that went to verdict.⁷ (V. 161, 163-64, 408, 419-20.) According to defense counsel, criminal cases that go to verdict are more likely to result in convictions than acquittals; thus, there was "a very high likelihood that" these individuals had "voted for guilty." (V. 419.) Unchallenged venireperson Florio had also sat on a jury in a criminal trial that went to verdict. (V. 162.) Venireperson Frazier had sat on a jury in a trial that did not reach a verdict (V. 163); defense counsel worried that this might "lead to either speculation or just a dissatisfaction with a jury system" (V. 408-09, 420.).

7 Although challenged venireperson Alinares had sat on a jury in a criminal trial that went to verdict, the defendants did not give this as a reason for striking her. (V. 160.)

The defense also challenged three venirepersons because of their possible bias in favor of police officers: Cantres, a security officer for the Board of Education, frequently made arrests, had testified in court as an arresting officer, and had a nephew who was a police officer (V. 146-47, 402-04, 417); Frazier's brother was a police officer (V. 420); and Vinson, a transit authority employee, was likely to have frequent contact with transit police (V. 421).

Other race-neutral reasons offered by the defense included: age (Frazier and Wilson were too old) (V. 408, 420, 429); an aversion to postal and transit workers (Wilson and Vinson)⁸ (V. 407, 409-10); and national origin (Alinares, from the Dominican Republic, and Baker, who was brought up "outside of the country" in Trinidad) (V. 184-85, 216-19, 405, 418). Defense counsel failed to mention, however, that Florio, who was not challenged, also grew up in the Dominican Republic. (V. 194.) Finally, the defense claimed that venireperson Williams had a "physical" reaction to questioning by defense attorney Quijano. (V. 405-07.)

8 Frazier also was a retired postal worker (V. 197), but defendants did not mention this. Besser's defense attorney Quijano explained his problem with postal and transit workers:

[B]ased on twenty years there were two occupations rightly or wrongly that I personally react to. . . . I am concerned with either past post office employees or transit, to be quite frank if the court wishes for me to elaborate on that, I am not sure if I can, I can state I usually have a strong reaction, it's a flag that goes up whenever the situation is there and a prospective juror.

(V. 409-10.)

After considering the defense's race-neutral explanations, the judge accepted the reasons for five of the peremptory challenges as "racially neutral," but found the reasons given for Frazier and Baker to be "pretextual." (V. 425-27.) Accordingly, the judge seated Frazier and Baker over the defendants' objections. (V. 427-28, 434.) (See App.: Besser Ct. App. Br. at A26-28; App.: 7/27/95 Justice Fried Opinion, at A112-19.)

In a post-trial decision, Justice Fried explained why he found the defense's challenges to jurors Frazier and Baker to be pretextual:

Defense counsel explained that juror #9 [Baker], a black woman, was peremptorily challenged for the following reasons: 1) she was born and raised in Trinidad; 2) she was a juror in a previous murder case that reached a verdict; and 3) concern about the juror's general life experiences and reactions given the nature of the charges in the indictment.

First, the explanation that juror #9 was of concern to the defense in regard to her general life experiences because she was born and raised in Trinidad, I believe to be pretextual since defense counsel accepted a nonblack juror, Juror #15 [Florio], a Hispanic woman, who was born and educated in the Dominican Republic, another Caribbean country, and had lived in the United States for 43 years. It is clear that "a given reason for exclusion may generally be considered pretextual if it also applies to jurors who were not challenged." Further, during voir dire, juror #9 described herself as a licensed practical nurse educated in London, England, and a resident of New York City for 24 years. The fact that juror #15 had been living in the United States longer, approximately 20 years longer, in and of itself does not appear sufficient to justify excusing juror #9 and keeping juror #15. There were no substantial disparities in general life experiences displayed among these two potential jurors, both of whom have lived in the U.S. for significant periods of time. Additionally, after comparing juror #9's education, which included certification as a licensed practical nurse and some college, to juror #15's high school education in the Dominican Republic, juror #9 was certainly equally as qualified as juror #15 to serve as a juror. Indeed, in direct response to defense counsel's questioning on whether juror #9 could use her everyday life experiences to evaluate a witness' credibility, juror #9 answered in the affirmative. No further inquiry was made. Therefore, because of the disparate treatment between juror #9 and juror #15, I was satisfied that this defense explanation was also pretextual.

The other reasons provided for the peremptory challenge of juror #9 also were, to me, also pretextual. It was stated that because juror #9 had served as a juror in a prior murder trial that reached a verdict, the verdict was most likely guilty since "there are far more convictions where [a case] goes to verdict than acquittals." This, of course, calls for an assumption that the verdict was "guilty." However, I did not believe that this was the basis for excusal of this juror, given the fact that juror #15 [Florio], who was selected by the defense, also sat on a jury in a murder case that reached a verdict. Finally, I did not accept as legitimate the explanation that juror #9 was excused because she did not seem to understand the legal system. The fact that this juror previously sat on a jury in a criminal case that deliberated and came to a verdict certainly means that this juror sufficiently understood the role of a juror, at least as well as the four nonblack jurors defense counsel selected who had no prior jury service.

Similarly, I found the explanations offered to explain the defense challenge of juror #17 [Frazier] to be pretextual. It was explained that this black man was peremptorily challenged for the following reasons: 1) he was older and retired from the postal service; 2) he lacked education; 3) he previously served on a jury where the case was dismissed; and 4) he did not seem to comprehend defense counsels' inquiries.

The explanation that juror #17 was excused because of his age is clearly pretextual in light of the defense's acceptance of juror #15 [Florio], another retiree. A prospective juror's employment or lack of employment may be a racially-neutral explanation for exclusion only if the employment is somehow related to the facts of the case, and there was no such showing made here. The explanation that this juror was challenged because he had only a "preliminary" education, i.e., high school, was also pretextual. Juror #15, whose education also consisted only of completing high school, was acceptable to the defense. Again, a reason for exclusion is considered pretextual if it also applies to jurors who were not challenged. Similarly, pretextual is the explanation that juror #17 was excused because of his prior jury service in a case where the jury was dismissed prior to deliberation. The defense explanation that this experience may have left the juror feeling "dissatisfied" with the jury system or believing that the defendant in that case was guilty because a plea may have been taken, was without basis in the voir dire record.

I also did not accept as legitimate the explanation that juror #17 was excused because he did not seem to comprehend defense counsels' inquiries. At the time I believed that this was not so, and an examination of the transcript compared with my notes indicate that his answers were concise and responsive. Accordingly, since I found all of the proffered explanations by the defense to be pretextual, I concluded that this juror was also challenged solely because of his race.

(Dkt. No. 1: App.: 7/27/95 Justice Fried Opinion at A114-18, citations omitted.)⁹ The Prosecution Case at Trial ¹⁰ The Columbo Crime Family of La Cosa Nostra ¹¹

9 This portion of Justice Fried's opinion is "omitted for purposes of publication" from the published version of the opinion, People v. Ciauri, 166 Misc.2d 615, 623, 632 N.Y.S.2d 404, 409 (Sup.Ct. N.Y. Co. 1995).

10 The trial took ten weeks and comprises almost seven thousand pages of transcript. (See generally Trial Transcript.) The Court here reviews only that evidence relevant to the issues in this habeas petition.

11 Justice Fried ruled, pre-trial, that defendants were not entitled to preclude the use of terms such as crime family, Mafia, La Cosa Nostra, and similar language at trial. See People v. Ciauri, 162 Misc.2d 394, 617 N.Y.S.2d 287 (Sup.Ct. N.Y. Co. 1994).

Petitioner James Besser, his co-defendants Jerry Ciauri and Gregory Ciauri, and key witnesses including Joseph Ambrosino, John Pate, and Alan Quattrache, were all participants in the Columbo crime family of La Cosa Nostra. (Pate: Trial Transcript ("Tr.") 130-32, 671, 785, 789; Quattrache: Tr. 2203-05, 2252-57, 2298-300; Ambrosino: 3801-02, 3814-17, 3830, 4172-73, 4522-23.) Testimony established that the top-ranking members of the Columbo family hierarchy were the "boss," the "underboss," and the "consigliere," who acted as a liaison between the bosses and lower ranking members of the family. (Pate: Tr. 150, 273, 786-87, 841; Quattrache: Tr. 2252, 2292, 2481, 2487-89; Ambrosino: Tr.4181-82.) Under the consigliere were "captain[s]," each of whom had a "crew" of "made" members, also called "soldiers" or "wise guys." (Pate: Tr. 138-39, 159-60; Quattrache: Tr. 2295-96, 2482; Ambrosino: Tr. 3800-01.) Each made member oversaw "associates" or "kids" — individuals who worked for and followed the rules of the enterprise but had not been formally inducted into the family. (Pate: Tr. 138, 160, 401-02, 677-78, 835-36, 1166-67.) Members and associates engaged in criminal activities and used violence to make money and advance the Columbo family business.¹² (See generally App.: Besser Ct. App. Br. at A28-31; Dkt. No. 17: Besser 1st Dep't Br. at 10-14.)

12 Columbo activities included loansharking, gambling, and bookmaking. (Quattrache: Tr. 2206-09, 2558-59, 2622, 2766-68; Ambrosino: Tr. 3830-33, 4161-64, 4205-06, 4233, 4483.) Family members also beat and murdered people to further the family's interests. (Pate: Tr. 176-80 207-16, 398-99, 685-86, 707-08; Quattrache: Tr. 2258-60, 2568.) (See generally Dkt. No. 17: Besser 1st Dep't Br. at 14 n. 7.)

In the 1980's, Besser was an associate under made member Greg Scarpa, Jr. (Ambrosino: Tr. 3811-15.) After Scarpa went to prison, Besser was assigned to Greg Scarpa, Sr. (Ambrosino: Tr. 3874-75, 3881.) Besser wanted to leave Scarpa, Sr. and work for another Columbo captain, Bobby Zambardi.¹³ (Pate: 261-64; Ambrosino: Tr. 3875-81.) However, Scarpa, Sr. would not release Besser until Besser repaid a $15,000 debt. (Ambrosino: Tr. 3875-81.)

13 Bobby Zambardi was co-defendant Jerry Ciauri's step-father. (Pate: Tr. 834; Quattrache: Tr. 2774; Ambrosino: Tr. 3762-64.)

The Cropsey Avenue Grocery Store

In April 1989, Steven Lane bought a C-Town grocery store on Cropsey Avenue in Brooklyn. (Lane: Tr. 1282-84.) In December 1989, Lane paid a mechanic near the store $1,500 to repair damage to his car. (Lane: Tr. 1302-04.) When the car still did not work properly and the mechanic refused to fix the problem, Lane stopped payment on his $1,500 check. (Lane: Tr. 1304-06, 1631, 2043.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A31; Dkt. No. 17: Besser 1st Dep't Br. at 14.)

Approximately one week later, Besser accompanied Jerry and Greg Ciauri to Lane's grocery store. (Lane: Tr. 1306-10, 1320.) Jerry Ciauri banged on the door of Lane's office and, in a "very loud, firm tone of voice," demanded payment for the mechanic's repairs while Besser and Greg Ciauri waited in the front of the store. (Lane: Tr. 1307-16, 1562-63, 1958-59, 2114, 2118.) Lane told Jerry Ciauri that he did not have the money on hand, and Ciauri agreed to accept payment in installments. (Lane: Tr. 1312-13, 2043-44.)

Ciauri, accompanied by Besser, collected three $500 payments over the next ten days. (Lane: Tr. 1317-20, 1325, 2043-48, 2114.) (See generally Besser Ct. App. Br. at A31-32; Besser 1st Dep't Br. at 14-15.) Ciauri and Besser returned to the store several days later and demanded that Lane begin paying $250 per week in protection money. (Lane: Tr. 1326-33, 1632.) Ciauri explained to Lane that if anyone caused a problem for Lane, Lane could call Ciauri to "take care of the problem." (Lane: Tr. 1328.) Ciauri told Lane not to call the police and said that if Lane failed to make the payments, men would come to the store and knock groceries off the shelves with baseball bats. (Lane: Tr. 1332-33.) Lane agreed to the payments despite his stretched finances¹⁴ because he was "fearful" Ciauri would "do harm to" him and he did not want "any problems." (Lane: Tr. 1329, 1332-33, 2115.) Beginning in January 1990 and continuing through April or May, while Besser stood in the front of the store, Lane handed weekly payments to Ciauri. (Lane: Tr. 1329-33, 1408-12, 1632.) (See generally Besser Ct. App. Br. at A32; Besser 1st Dep't Br. at 15-16.)

14 Lane purchased C-Town for $625,000, a large portion of which was financed by loans. (Lane: Tr. 1284-85.) His monthly loan payments totaled approximately $3,500. (id.)

Besser's Bounced Checks

In late January 1990, Ciauri told Lane that if Besser "needed to cash some checks in the store, to just cash them for him, and [Ciauri] would guarantee them." (Lane: Tr. 1334.) Besser visited the store later that day and asked Lane to cash a check for around $150. (Lane: Tr. 1334-35.) Over the next three weeks, Lane cashed approximately fifteen checks for Besser; Lane estimated the total value of the checks was "maximum two-thousand-five-hundred" dollars. (Lane: Tr. 1335-36, 1632-33, 2054-55; Ambrosino: Tr. 3894-95.) Lane deposited some of the checks and endorsed others over to his vendors. (Lane: Tr. 1336, 2049.) Lane could not recall to whom the checks were made out, nor did he have any records of them. (Lane: Tr. 1335, 1634-36.) However, he estimated that checks worth at least $1,500 bounced, requiring him to reimburse his vendors. (Lane: Tr. 1336-37, 1634-35, 2055-56.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A32-33; Dkt. No. 17: Besser 1st Dep't Br. at 16-17.)

When Lane complained to Ciauri, Ciauri admonished Besser to "make good on" the checks and induced Besser to apologize to Lane. (Lane: Tr. 1338-39.) However, Besser never repaid the money. (Lane: Tr. 1339.) Months later, after a robbery of the grocery store (discussed at pages 15-17 below), Ciauri gave Lane $1,500 as reimbursement for Besser's bounced checks. (Lane: Tr. 1484-85, 2158-59, 2163-64.) (See generally Besser Ct. App. Br. at A33; Besser 1st Dep't Br. at 17.)

Michael Sessa's Produce Company

In February 1990, Lane fired his butcher for poor job performance. (Lane: Tr. 1341). In March, Michael Sessa, a high-ranking made member of the Columbo family (Pate: Tr. 265; Quattrache: Tr. 2482-83) and a friend of the butcher (Lane: Tr. 1289), came to the store with three men and beat Lane, bruising him and causing him to bleed (Lane: Tr. 1342-44). Sessa warned Lane to treat the butcher better and demanded that Lane begin buying produce from Sessa's produce company. (Lane: Tr. 1342-44.) One of the men took $300 from Lane's desk before leaving. (Lane: Tr. 1345, 2051-53, 2119.)

Lane had first met Sessa in October 1989, when Sessa solicited Lane unsuccessfully to buy from his produce company. (Lane: Tr. 1287-90, 1577-82, 1596, 2025-26.) After the March 1990 beating, Lane asked Ciauri for help, expecting that his weekly payments might buy him some protection. (Lane: Tr. 1347, 1623, 2116.) Ciauri told Lane he would check into it (Lane: Tr. 1347, 1623). Ciauri later told Lane that Sessa was a "very important person" (Lane: Tr. 1348, 2093), directed Lane to apologize to Sessa (Lane: Tr. 1348-49, 2101), and required Lane to begin buying from Sessa's produce company (Lane: Tr. 1347 49, 2101-04). Lane purchased produce from Sessa from March through August 1990. (Lane: Tr. 1349, 1379-81, 1390, 1399; Ambrosino: Tr. 3886-90, 4379.) Although Sessa's prices were "initially . . . competitive," they increased "in [Lane's] opinion to a very high point," 25 percent higher than the ordinary market price. (Lane: Tr. 1391, 2033.) Lane, however, felt he "had no choice but to pay" whatever Sessa charged. (Lane: Tr. 2033-34.)

Termination of Protection Payments and Lane's Sale of the Grocery Store

Around May 1990, Lane told Ciauri that he was broke, that creditors were foreclosing on the store, and that Lane could no longer afford the weekly protection payments. (Lane: Tr. 1409, 1416-17.) Ciauri offered to pay Lane $100,000 to become a partner in the store (Lane: Tr. 1417-18, 1421, 1430, 1629, 2166-67), but Lane declined, saying the amount was insufficient to cover his debts (Lane: Tr. 1418). Ciauri agreed to release Lane from payments temporarily. (Lane: Tr. 1421-22.) However, Besser and Ciauri continued to visit the store. (Lane: Tr. 1423-26, 1638-39; Ambrosino: Tr. 3895-99.) On several occasions through July 1990, Besser, Ciauri, and Bobby Zambardi loaded carts with groceries and left the store without paying.¹⁵ (id.)

15 At least one such "shopping" trip also had occurred before Lane stopped his weekly payments. (Lane: Tr. 1424; Ambrosino: Tr. 3897-98, 4490-91.)

In June 1990, faced with foreclosure and debt, Lane sold the grocery store to Sam and Harry Abuelenin for $750,000 with a closing date in early August 1990. (Lane: Tr. 1426-28, 1431, 1628-29, 1640; Laufer: Tr. 3283, 3316; Abuelenin: Tr. 3509-15.) After the closing, Lane stayed on as an employee. (Lane: Tr. 1439; Abuelenin: Tr. 3512, 3516.) The day after the closing, Besser called Lane and put Ciauri on the phone. (Lane: Tr. 1445.) Ciauri demanded $5,000 from the proceeds of the sale, and became angry when he learned that, because of Lane's debts, Lane had netted nothing from the closing. (Lane: Tr. 1445-47.)

Grocery Store Robbery

A few days later, Besser arranged a meeting between Lane and Ciauri during which Ciauri asked Lane where the store owners kept their money and how often bank deposits were made. (Lane: Tr. 1447-49.) Ciauri told Lane that he wanted to rob the grocery store. (Lane: Tr. 1453-54.) Lane told Ciauri that the store's payment to its parent company, Associated Foods, was due the following Monday, and agreed to call Ciauri once he learned how the payment was to be delivered.¹⁶ (Lane: Tr. 1453-55, 1566-67, 1643-45, 1665.) Although it had been Lane's normal practice to deliver the payments to Associated Foods himself, when he sold the store he arranged for an Associated representative to come to the store on Mondays to pick up the payments. (Lane: Tr. 1450-52, 1665-66; Abuelenin: Tr. 3520-21, 3541-43.) The Friday before the scheduled payment, Lane told Ciauri that Adam Laufer of Associated Foods would be picking up approximately $50,000.

16 Lane testified that he obeyed Ciauri because he was "fearful to stand up to [Ciauri] and just say no to him." (Lane: Tr. 2117.) However, Joseph Ambrosino testified that it was Lane who had first brought the idea of the robbery to Ciauri and Besser. (Ambrosino: Tr. 4383.)

(Lane: Tr. 1456-58, 1461, 1542, 1566-67, 1643-45.) Ciauri informed Lane that Besser, wearing a disguise, would take the money from Laufer.¹⁷ (Lane: Tr. 1459.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A34; Dkt. No. 17: Besser 1st Dep't Br. at 18.)

17 Besser was present but did not participate in this conversation. (Lane: Tr. 1459.)

On Monday, August 27, 1990, Lane called Ciauri and Besser when Adam Laufer arrived at the store. (Lane: Tr. 1462-63.) Minutes later, Lane saw Besser outside the store wearing a fake mustache, dark glasses, and a baseball cap. (Lane: Tr. 1464-65, 1659-60, 2023.) Laufer left the store carrying $65,000 in cash and some third party checks. (Lane: Tr. 1472-73, 1652, 2021; Laufer: Tr. 3288-89, 3310, 3323, 3325-27; Abuelenin: Tr. 3521-24.) Lane saw Besser and another man force Laufer into his own car and drive away. (Lane: Tr. 1472-74, 1551, 1652, 1655-56, 2021-25, 2053-54, 2084; Abuelenin: Tr. 3524; Laufer: Tr. 3310, 3327-34.) (See generally Besser Ct. App. Br. at A34-35; Besser 1st Dep't Br. at 18-19.)

A week or two later, Ciauri told Lane that the robbery's total take was $57,000 of cash and that Besser "did real good." (Lane: Tr. 1482-86.) Ciauri gave Lane $1,500 to repay the bounced checks Besser had cashed in the store.¹⁸ (Lane: Tr. 1484-85, 2013, 2158-59, 2163-64.) Shortly after the robbery, Ciauri told Joseph Ambrosino that he, Besser, and others had robbed the store. (Ambrosino: Tr. 3907-08, 4383-86.) Ciauri gave $10,000 to his captain, Bobby Zambardi; Zambardi gave $2,500 to the consigliere, Carmine Sessa. (Ambrosino: Tr. 3909, 3915.) Besser told Ambrosino that he used the $15,000 he earned from the robbery to pay his debt to Greg Scarpa, Sr., which enabled Besser to transfer to Bobby Zambardi's crew. (Ambrosino: Tr. 3914, 3921-22.) (See generally Besser Ct. App. Br. at A35; Besser 1st Dep't Br. at 19-20.)

18 Before the robbery, it was agreed that Lane would receive a credit for ten percent, or approximately $5,000, of the robbery take; this credit was applied to the amount Ciauri had demanded from Lane from the sale of the grocery store. (Lane: Tr. 1461, 1567-70, 2010, 2163.) Lane also said he did not participate in the robbery to make a profit, but because he had been threatened to participate. (Lane: Tr. 2010-12.)

Besser's Arrest

Lane was arrested, and later convicted, on unrelated assault charges. (Lane: Tr. 1276-77, 1504-09, 1570-74, 1669, 1969-73, 2086, 2122-26, 2159-60.) While his own criminal case was pending, in May 1992, detectives contacted him about the grocery store robbery, and he agreed to cooperate, which led to Besser's arrest on May 18, 1993. (Lane: Tr. 1510, 1517-21, 1537-38, 1573-76, 2122; Finn: Tr. 5430.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A35-36.)

The Defendants' Motion for a Trial Order of Dismissal

Before the case was submitted to the jury, Besser and his two co-defendants moved for a trial order of dismissal pursuant to C.P.L. § 290.10(1). (Tr. 6241-86; see Dkt. No. 17: Besser 1st Dep't Br. at 21.) Justice Fried reserved decision on the motion. (Tr. 6286.) See People v. Ciauri, 166 Misc.2d 615, 616, 632 N.Y.S.2d 404, 405-06 (Sup.Ct. N.Y. Co. 1995).

Verdict

On November 19, 1994, the jury found Besser guilty of enterprise corruption, Penal Law § 460.20, including three underlying "pattern acts": first degree robbery ("pattern act four"), second degree grand larceny by extortion ("pattern act seven"), and fourth degree grand larceny ("pattern act nine").¹⁹ (Tr. 6776-801; See generally Dkt. No. 17: Besser 1st Dep't Br. at 27). Besser's C.P.L. § 330 Motion to Set Aside the Verdict

19 Penal Law § 460.20 provides that:
1. A person is guilty of enterprise corruption when, having knowledge of the existence of a (continued . . .) criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he: (a) intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity; or (b) intentionally acquires or maintains any interest in or control of an enterprise by participating in a pattern of criminal activity; or (c) participates in a pattern of criminal activity and knowingly invests any proceeds derived from that conduct, or any proceeds derived from the investment or use of those proceeds, in an enterprise.
2. For purposes of this section, a person participates in a pattern of criminal activity when, with intent to participate in or advance the affairs of the criminal enterprise, he engages in conduct constituting, or, is criminally liable for pursuant to section 20.00 of this chapter, at least three of the criminal acts included in the pattern. . . . Penal Law § 460.20(1)-(2).

In April 1995, Besser moved to set aside the verdict pursuant to C.P.L. § 330.30., asserting that: (1) the court's failure to require corroboration of accomplice testimony in order to find Besser guilty of the underlying pattern acts violated state law and Besser's due process rights under state law (the "Corroboration Claim") (Dkt. No. 8: Ex. A: Besser-Ciauri C.P.L. § 330 Br. at 1-9)²⁰; (2) the court improperly seated two jurors after an erroneous determination that defendants' peremptory challenges to those jurors violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) (the "Batson Claim") (Besser-Ciauri C.P.L. § 330 Br. at 9-16); (3) the evidence was legally insufficient to prove the existence of the enterprise known as "The Mafia/La Cosa Nostra," an element necessary to prove enterprise corruption (id. at 16-29); (4) the pattern acts alleged in the indictment were not committed in furtherance of the goals of the charged enterprise (id. at 29-33); and (5) the cumulative effect of other errors deprived defendants of a fair trial (id. at 33-41). (See also Ex. D: Besser-Ciauri Reply Br.) Besser also filed a supplemental pro se brief claiming the evidence was legally insufficient to prove guilt of fourth degree grand larceny (pattern act nine). (Ex. B: Besser Pro Se C.P.L. § 330 Br.) Specifically, Besser claimed the evidence was insufficient to prove that: (1) the value of the bad checks exceeded $1,000; (2) Besser knew the checks were drawn on insufficient funds; (3) Besser intended to deliver bad checks; or (4) the checks actually bounced. (Ex. B: Besser Pro Se C.P.L. § 330 Br.)²¹

20 References to exhibits ("Ex. ___") are to the State's habeas appendix. (Dkt. No. 8.)

21 Besser also complained that his appointed counsel, Mr. Quijano, was ineffective, apparently because he had not communicated with Besser in over four months, and requested new counsel. (Ex. B: Besser 6/13/95 Letter to Justice Fried.) Quijano represented Besser at his sentencing hearings on September 7 and November 3, 1995, and Besser made no reference at those hearings to any dissatisfaction with Quijano nor did Besser request new counsel at that time.

Justice Fried denied Besser's § 330 motion in July 1995. (Ex. E: C.P.L. § 330 7/27/95 Justice Fried Opinion.) People v. Ciauri, 166 Misc.2d 615, 616-23, 632 N.Y.S.2d 404, 405-09 (Sup.Ct. N.Y. Co. 1995) (published opinion includes only the portion of the decision discussing the Corroboration Claim).

Sentencing

On September 7, 1995 and November 3, 1995, Justice Fried heard testimony and arguments regarding whether Besser should be adjudicated a persistent felony offender under Penal Law § 70.10.²² (Dkt. No. 17: 9/7/95 11/3/95 Hearings.) Besser presented one witness, the attorney who had represented Besser at his 1984 Richmond County guilty plea allocution, and argued that Besser had been coerced to plead guilty in the Richmond County case in violation of his Sixth Amendment rights. (11/3/95 Hearing Tr. at 3-29, 36-40.) Besser's defense counsel, Quijano, also argued that the court should exercise its discretion and not sentence Besser as a discretionary persistent felony offender, since Besser was only a "follower." (id. at 40-45, 54-56.) Quijano suggested that a sentence of twelve and a half to twenty-five years as a predicate felon is a "serious sentence" and sufficient, and thus it was not necessary to sentence Besser as a persistent felony offender. (id. at 43-44.)

22 Penal Law § 70.10 provides:
1. Definition of persistent felony offender.

(a) A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision.

(b) A previous conviction within the meaning of paragraph (a) of this subdivision is a conviction of a felony in this state, or of a crime in any other jurisdiction, provided:

(i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor; and

(ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and

(iii) that the defendant was not pardoned on the ground of innocence.

(c) For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time defendant was imprisoned under sentence for any such convictions shall be deemed to be only one conviction.

2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record.

Penal Law § 70.10. The sentence authorized for a Class A-I felony is a minimum of between fifteen and twenty-five years, and a maximum of life imprisonment. Penal Law § 70.00(1)-(3).

On December 6, 1995, Justice Fried issued a written decision adjudicating Besser a persistent felony offender under Penal Law § 70.10. (Dkt. No. 17: 12/6/95 Justice Fried Opinion.) Justice Fried found two prior felony convictions: Besser was convicted in the United States District Court for the District of Maryland of federal counterfeiting offenses ( 18 U.S.C. § 472, 474, 2) on January 20, 1982 and sentenced to four years in prison, and on July 17, 1984, Besser pleaded guilty in Supreme Court, Richmond County, to third degree attempted possession of a weapon and was sentenced to 1-1/2 to three years in prison. (12/6/95 Justice Fried Opinion at 4.)

In addition, based on Besser's 1976 through 1993 arrests, convictions (including additional misdemeanor convictions), and parole violations, as well as Besser's involvement with organized crime since 1979, and information relating to Besser's murder attempts (not charged in the present case) and a "brutal beating" for which charges were pending in New Jersey, Justice Fried found, as required by Penal Law § 70.10(2), that Besser's "'history and character'" and "'the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required.'" (12/6/95 Justice Fried Opinion at 2, 8-15.)

On December 11, 1995, Justice Fried sentenced Besser, as a persistent felony offender, to fifteen years to life imprisonment.²³ See People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). (See also Dkt. No. 17: Besser 1st Dep't Br. at 29.) Besser's Direct State Appeal

23 The State has been unable to locate the December 11, 1995 sentencing transcript. (See Dkt. No. 15: 7/31/03 A.D.A. Beder Letter to Court, at 1.)

Represented by different appointed counsel (Office of the Appellate Defender), Besser appealed to the First Department, asserting: (1) that the evidence of enterprise corruption was legally insufficient on "deprivation," "check value," and "enterprise furtherance" grounds (Dkt. No. 17: Besser 1st Dep't Br. at 30-38); (2) the Batson Claim (id. at 39-49); (3) the Corroboration Claim (id. at 50-59); (4) that the court's jury instructions on the enterprise corruption charge were flawed (id. at 59-63); and (5) that Besser's 1984 Richmond County conviction could not serve as a predicate to the present conviction, which assertion would have precluded Besser from being sentenced as a persistent felony offender (the "Persistent Felony Offender Claim") (id. at 64-67). (See also Dkt. No. 17: Besser 10/15/99 1st Dep't Reply Br.)

On November 30, 1999, the First Department unanimously affirmed Besser's conviction and sentence, holding in full:

The verdict was based on legally sufficient evidence. The value of the dishonored checks in question was properly established through the testimony of the victim. The totality of the evidence established defendant Besser's intent, at the relevant time, to deprive the owner of the funds at issue within the meaning of Penal Law § 155.00(3)(a), and that this conduct was in furtherance of the criminal enterprise. Contrary to defendant Ciauri's contention, he was properly convicted of separate pattern acts.

The court properly disallowed, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 So. Ct. 1712 [(1986)], certain peremptory challenges by the defense. The procedures followed by the court sufficiently complied with the required Batson protocols. Where, as here, a party asserting the peremptory strike puts forward race-neutral reasons and the other side says nothing more, the court may nonetheless make a finding of pretext based on an articulated rejection of the race-neutral reasons, People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, [956-57 (1996)]). The record supports the court's finding of pretext concerning the challenges at issue.

We agree with the court's well-reasoned decision ( 166 Misc.2d 615, 632 N.Y.S.2d 404) to instruct the jury that accomplice corroboration was required for the offense of enterprise corruption but not for each of the underlying pattern acts (see, C.P.L § 60.22).The court appropriately charged that it was a question of fact as to whether the victim-witness was an accomplice, since his participation in the criminal activity at issue could reasonably be viewed as coerced.

Defendant Besser was properly sentenced as a persistent felony offender. We conclude that his imprisonment for the second of his predicate felonies preceded the "commission" of the present felony within the meaning of Penal Law § 70.10(1)(b)(ii).

We have considered and rejected both defendants' remaining claims.

People v. Ciauri, 266 A.D.2d 164, 164-65, 699 N.Y.S.2d 341, 342 (1st Dep't 1999).

Again represented by the Office of the Appellate Defender, Besser's November 30, 2000 brief to the New York Court of Appeals reasserted all of the claims he made before the First Department, except the flawed jury instruction claim. (Dkt. No. 1: App.: Besser Ct. App. Br. at A1-92.) Besser also asserted for the first time that the trial court had violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), by finding, by a preponderance of the evidence, that Besser's character and the nature of his criminal conduct warranted a harsher penalty (the "Apprendi Claim"). (Besser Ct. App. Br. at A72-85²⁴; App.: Besser Ct. App. Reply Br. at A316-21.) On May 1, 2001, the New York Court of Appeals unanimously affirmed Besser's conviction. People v. Besser, 96 N.Y.2d 136, 726 N.Y.S.2d 48 (2001). The New York Court of Appeals' decision dealt largely with affirming the denial of Besser's Corroboration Claim. People v. Besser, 96 N.Y.2d at 141-47, 726 N.Y.S.2d at 49-54. The Court of Appeals affirmed denial of the remaining claims as follows:

24 Besser briefly raised the issue of preservation of theApprendi claim. "The [Apprendi] claims raised here are not foreclosed because Mr. Besser did not assert them below, since they implicate jurisdictional requisites and the mode-of-proceedings prescribed by law. . . . Finally, a claim that the court imposed a sentence in violation of law may be raised for the first time on appeal notwithstanding the absence of objection." (App.: Besser Ct. App. Br. at A84-85.) The prosecutor's opposition brief to the Court of Appeals addressed only the merits of the Apprendi claim, and did not raise any procedural arguments. (See Dkt. No. 8: Ex. H: State Ct. App. Br. at 99-112.)

We reject defendants' contention that insufficient proof supported the finding that defendants' participation in the pattern acts involving the victimization of Lane was related to the interests of the crime family. Both Lane and one of defendants' accomplices who was a member of the enterprise offered testimony from which the jury could infer that defendants' association with the crime family was integral to their ability to collect "protection" money from Lane, steal the store's merchandise and effectively exert control over Lane's choice of vendors. The evidence was sufficient to support the inference that defendants engaged in conduct with the intent to participate in the affairs of the criminal enterprise in accordance with Penal Law § 460.20(2). Besser's challenge to the sufficiency of the proof establishing the value of the property at issue in pattern act nine, grand larceny in the fourth degree, is unpreserved for review as Besser failed to raise this argument in his trial motion to dismiss.

We also reject the contention that the trial court erred in its resolution of the People's Batson challenge. The court properly assessed whether the rationales proffered by defense counsel for the challenges were pretextual, providing all parties ample opportunity to argue their positions and make a record explaining the basis of their jury selection practices and decisions (see, People v. Payne, 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, [956 (1996)]). Mindful that our powers of review in this area are circumscribed (see, People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, [87-88 (1990)], aff'd, 500 U.S. 352, 111 S.Ct. 1859 [(1991)]), we see no basis to disturb the court's finding that the reasons articulated by the defendants with respect to two jurors were disingenuous in light of the acceptance of other similarly situated jurors (see, People v. Payne, supra).

Further, as Besser failed to raise his challenge to the constitutionality of the discretionary persistent felony offender sentencing statute before the sentencing court, the issue is not properly before us for review (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 [(2001)]). His remaining claim of sentencing error has been reviewed and determined to be lacking in merit.

People v. Besser, 96 N.Y.2d at 147-48, 726 N.Y.S.2d at 54.²⁵ Besser's C.P.L. § 440 Motion to Vacate the Judgment

25 Thus, the Court of Appeals found two issues to be procedurally barred: (1) the insufficiency claim dealing with the value of the check property; and (2) the Apprendi claim (constitutional attack on the sentence).

On August 8, 2001, Besser filed a pro se C.P.L. § 440 motion asserting ineffective assistance of trial counsel. (Dkt. No. 1: App.: Besser § 440 Motion at A338-39; App.: Besser C.P.L. § 440 Br. at A340-61.) The motion focused on trial counsel's alleged failure to: (1) preserve for review the sufficiency of the evidence issue regarding the fourth degree grand larceny charge (pattern act nine) on "deprivation" and "check value" grounds (id. at A342-43, A345-52, A357-60); and (2) assert the Persistent Felony Offender Claim (id. at A343, A353-57). Besser also asserted a variety of conclusory and largely incoherent attacks on trial counsel, including that counsel: made a "completely incoherent and rambling motion to set aside the verdict" (id. at A345); "joined in whatever motion[s] were made for the codefendant, [w]ithout having knowledge what the motion was" (id. at A345; see also Id. at A350-51, A359); failed properly to object to testimony that "would have been redacted" (id. at A347); failed prior to trial to give "proper notification" as "a separate trial would have occurred" (id. at A348); failed to inform Besser about the contents of a letter sent to the court regarding the sentencing hearing (id. at A355); and "allow[ed] the very first element of the crime of grand larceny in the fourth degree to be used on the verdict sheet for deliberation purposes" without consulting Besser (id. at A360).²⁶ Besser did not assert ineffectiveness based on trial counsel's failure to raise theApprendi issue.

26 One portion of Besser's § 440 motion complains that his sentence was in retaliation for "steadfastly assert[ing] his innocence." (id. at A353.) Besser failed to connect this assertion in any way, however, to ineffectiveness on the part of trial counsel. (id.)

Justice Fried denied Besser's C.P.L. § 440 motion on October 24, 2001, addressing only the claims that trial counsel erred by failing to: (1) object to the insufficiency of the evidence, or (2) assert the Persistent Felony Offender claim. (Dkt. No. 1: App.: Justice Fried C.P.L. § 440 Decision at A363-65.) Justice Fried noted that Besser's objection to persistent-felon status based on the Richmond County conviction had been expressly denied on the merits by both the First Department and the Court of Appeals. (id. at A363-64.) The insufficiency of the evidence claim on the "check value" and "deprivation" grounds also had been denied on the merits by the First Department, but the "check value" ground was held unpreserved for review by the Court of Appeals. (id. at A364.) Justice Fried held that Besser "received meaningful representation at his lengthy trial, and even if the failure to preserve could be considered an error, this single assignment of error did not deprive [Besser] of a fair trial. Moreover, there is not even a claim of prejudice nor could there be, especially since the Appellate Division reviewed the sufficiency of the evidence relating to the Pattern Act No. 9" on the merits. (id. at A365.)

The First Department denied leave to appeal on January 22, 2002.People v. Besser, No. M-6472, 2002 N.Y. App. Div. LEXIS 933 (1st Dep't Jan. 22, 2002).

Besser's Coram Nobis Motion to the First Department

On November 6, 2001, Besser moved the First Department for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. (Dkt. No. 1: App.: Besser 11/6/01 1st Dep't Coram Nobis Papers (Motion, Aff. Br.) at A391-404.) Besser's pro se coram nobis motion focused on appellate counsel's failure to claim ineffectiveness oftrial counsel regarding the insufficiency of evidence claim based on the "check value" ground. (id. at A397-402.) This motion, however, also appears to allege that appellate counsel was ineffective for his failure to preserve the Apprendi Claim and Persistent Felony Offender sentencing claim for "appellate review." (id. at A400, A403.)²⁷

27 Like the C.P.L. § 440 motion, Besser's coram nobis brief contained a number of conclusory, cryptic and largely incomprehensible assertions, including that appellate counsel failed to claim ineffectiveness of trial counsel for: "failure to object to a C.P.L. 290.10, trial order of dismissal" (id. at A396); making "a completely incoherent and rambling motion to set aside the verdict" (id. at A397); "join[ing] in whatever motion[s] were made for the co-defendant, without having knowledge what the motion[s] were" (id. at A397); failure properly to object so as to "redact" testimony (id. at A400); "fail[ure] to serve an alibi notice which resulted in the preclusion from calling any" (id. at A400); and "failure to object to bolstering testimony elicited by the prosecutor" (id. at A401; see also Id. at A403).

The First Department denied Besser's coram nobis motion on July 11, 2002, in a summary decision that simply cited People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987),appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (App.: 1st Dep't 7/11/02 Coram Nobis Decision at A405.) People v. Besser, 296 A.D.2d 873, 746 N.Y.S.2d 621 (1st Dep't 2002). At that time, no appeal to the New York Court of Appeals was available.

Besser's Federal Habeas Corpus Petition

Besser's timely pro se habeas corpus petition, dated August 1, 2002 and received by the Court's pro se office on August 5, 2002 (Dkt. No. 1: Pet.), raises six grounds for relief: (1) the evidence was legally insufficient regarding the charge of fourth degree grand larceny (pattern act nine) (Pet. ¶ 13, incorporating App.: Besser Ct. App. Br. at A42-49)²⁸; (2) the Corroboration Claim (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A50-59); (3) the Batson Claim (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A60-71); (4) theApprendi Claim (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A72-85); (5) the Persistent Offender Claim (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A86-91); and (6) ineffective assistance of trial and appellate counsel (Pet. ¶ 13 attached Besser Br. at 1-7). The ineffective counsel claim incorporates an attached Memorandum of Law which, like Besser's C.P.L. § 440 and coram nobis motions, focuses on (1) trial counsel's failure to: (a) object to the insufficiency of the evidence on the "check value" ground, and (b) assert the Persistent Felony Offender claim; and (2) appellate counsel's failure to claim trial counsel ineffectiveness on the same two grounds. (Dkt. No. 1: Besser Br. at 1-2, 4-5.)²⁹ Further, Besser again raises the same conclusory and cryptic claims regarding counsel's alleged ineffectiveness: counsel made a "completely incoherent and rambling motion to set aside the verdict" (Besser Br. at 3; see also Id. at 6); "[t]estimony would have been redacted, if proper objection were made" (Besser Br. at 3, 6); "if the proper notification given, a separate trial would have occurred" (Besser Br. at 3, 6; accord Id. at 4 ("failure to request a severance")); and counsel "joined in whatever motions were made for the co-defendants, [w]ith[out] having knowledge what the motion[s] were" (Besser Br. at 5, 6; see also Id. at 3). Finally, in a footnote to his brief to this Court, Besser "ask[ed] the Court . . . to review the defendant[']s 440.10, and Error Coram Nobis, for a more extended argument" (Besser Br. at 6 fn.), apparently hoping to incorporate into the habeas petition by reference his entire C.P.L. § 440 and coram nobis motions.

28 Specifically, Besser claimed the evidence was legally insufficient to prove his guilt of pattern act nine, fourth degree grand larceny, based on "deprivation," "check value," and "enterprise furtherance" grounds. (Besser Ct. App. Br. at A42-49.)

29 Besser faults trial counsel for failure to "object to the trial order of dismissal C.P.L. 290.10." (Besser Br. at 2, 4, 5.) Based on Besser's state court filings, this apparently refers to counsel's alleged failure to move to dismiss on grounds of insufficient evidence in light of the state's failure to prove the value of the property supporting the Pattern 9 Act charge. (See A350-51, A359, A398-99, and A403.) Besser also repeatedly faults counsel for "failing to preserve for review the defendant[']s persistent hearing and sentencing" (Besser Br. at 2), which refers to counsel's alleged failure properly to object to Besser's adjudication as a persistent felon.

As noted above, this Report and Recommendation will address all of Besser's habeas claims except his Apprendi claim, which will be addressed in a separate Report and Recommendation.

ANALYSIS

I. THE AEDPA REVIEW STANDARD ³⁰

30 For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.);Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Besser is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . 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 also, e.g., Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.³¹ Both, however, "restrict[ ] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.³² "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

31 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

32 Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003); Parsad v. Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 123 So. Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.³³

33 Accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200;Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions butunreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 So. Ct. at 1523.³⁴ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law."Id. ³⁵ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.³⁶ The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).³⁷ Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

34 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35;Parsad v. Greiner, 337 F.3d at 181.

35 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

36 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

37 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Parsad v. Greiner, 337 F.3d at 180-81; Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d at 121;Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002);Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).³⁸ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling."Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).³⁹ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

38 The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.

39 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); see also discussion at pages 60, 65-66 below.

II. BESSER'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims ⁴⁰ '"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.⁴¹

40 For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8-9 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.);Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.);Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.);Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

41 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Besser bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).⁴² The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).⁴³

42 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted),cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000);United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.),cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994);United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

43 Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

B. The Evidence Was Legally Sufficient to Support Besser's Conviction

Besser was convicted of enterprise corruption under Penal Law § 460.20, which provides:

1. A person is guilty of enterprise corruption when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he (a) intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity. . . . 2. For purposes of this section, a person participates in a pattern of criminal activity when, with intent to participate in or advance the affairs of the criminal enterprise, he engages in conduct constituting, or, is criminally liable for . . . at least three of the criminal acts included in the pattern. . . .

Penal Law § 460.20. One of the pattern acts underlying Besser's conviction ("pattern act nine") was fourth degree grand larceny, i.e., the theft of over $1,000 by cashing bad checks. (See pages 12-13 above.)⁴⁴ "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." Penal Law § 155.05(1). "To 'deprive' another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him. . . ." Penal Law § 155.00(3)(a). "A person is guilty of grand larceny in the fourth degree when he steals property and when: 1. The value of the property exceeds one thousand dollars. . . ." Penal Law § 155.30(1).

44 As the prosecution noted: "On appeal, Besser does not dispute the evidence was sufficient to prove that he robbed Laufer of $50,000, that he extorted money and goods from Lane, or that he committed those crimes intending to participate in or advance the affairs of the Colombo Family's criminal enterprise (Pattern Acts 4 and 7). Rather, Besser has limited his attack on the sufficiency of the evidence to the proof of a single pattern act (Pattern Act 9)." (Dkt. No. 8: Ex. H: State Ct. App. Br. at 40.)

Besser argues that the evidence was legally insufficient to prove: (1) he intended to permanently deprive Lane of property (the "deprivation" ground) (Dkt. 1: Pet. ¶ 13, incorporating Dkt. No. 1: App.: Besser Ct. App. Br. at A43-46); (2) he intended to further the criminal enterprise by cashing the bad checks (the "enterprise furtherance" ground) (id. at A47-49); and (3) the value of the pattern act nine checks exceeded $1,000 (the "check value" ground) (id. at A46-47).

The First Department denied all three insufficiency claims on the merits. People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). The Court of Appeals remained silent on the "deprivation" ground, affirmed on the "enterprise furtherance" ground, and found the "check value" ground unpreserved for review. People v. Besser, 96 N.Y.2d 136, 147, 726 N.Y.S.2d 48, 54 (2001).

1. The Evidence Was Legally Sufficient to Prove Besser's Intent to Deprive Lane of Property

Although the New York Court of Appeals remained silent on the deprivation ground, People v. Besser, 96 N.Y.2d 136, 141-47, 726 N.Y.S.2d 48, 49-54 (2001), the First Department held that "[t]he totality of the evidence established defendant Besser's intent, at the relevant time, to deprive the owner of the funds at issue within the meaning of Penal Law § 155.00(3)(a)," People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). Accordingly the Court will look to the First Department holding as the "last reasoned" decision for AEDPA review purposes. Ylst v. Nunnemaker, 501 U.S. 797, 801-04, 111 S.Ct. 2590, 2593-95 (1991).

To commit larceny under New York law, a defendant must intend to "deprive another of property," Penal Law § 155.05(1), either "permanently" or "under such circumstances that the major portion of its economic value or benefit is lost to him," Penal Law § 155.00(3). Evidence may be sufficient to prove intent to commit larceny even if the defendant later returns or abandons the stolen property. "[E]vidence of intent is not nullified by the fact that the petitioner then abandoned the property he had stolen. Whether the subsequent return of the [property] negates a finding of intent to deprive or to appropriate the property is a question of fact for the petit jury." Franco v. Walsh, 00 Civ. 8930, 2002 WL 596355 at *4-5 (S.D.N.Y. Apr. 17, 2002) (citations internal quotations omitted) (when defendant refused to return a jacket to its owner and hit the owner when the owner demanded it back, evidence was sufficient to prove intent to commit larceny, even though defendant later abandoned the jacket).⁴⁵ In addition, evidence of subsequent or additional fraudulent activity can prove larcenous intent.See, e.g., Ponnapula v. Spitzer, 297 F.3d 172, 180 (2d Cir. 2002) (evidence was sufficient to prove that the defendant signed a personal guaranty with the larcenous knowledge and intent that he would not repay the loan when he: "ignored the default notices for months"; sought additional loans with other banks instead of repaying the loan; and repeatedly helped an associate to secure other loans fraudulently);United States v. Finkler, Nos. 98-1256, 98-1278, 172 F.3d 39 (table), 1999 WL 55300 at *2 (2d Cir. Feb. 5, 1999) (Evidence showed defendant committed grand larceny where (1) defendant told complainant he would reactivate his phone service in exchange for $350 and two carpets, but service was never reactivated; (2) defendant's $55,000 check in payment for other carpets from complainant was returned by the bank; and (3) defendant did not sell other carpets complainant provided on consignment, but rather sold some of them "to another rug dealer for . . . far less than they were worth, conduct that suggests he never intended either to pay for or return the carpets" to the complainant.);People v. Wilson, 201 A.D.2d 944, 944, 607 N.Y.S.2d 817, 817-818 (4th Dep't) (Evidence of grand larceny by false promise sufficient where defendant requested a $6,000 loan from her neighbor, asked him to write "gift" on the check so that bank would not discover her outstanding loan, never paid any part of the $6,000, and never signed the repayment agreement that neighbor prepared.), appeal denied, 83 N.Y.2d 878, 613 N.Y.S.2d 138 (1994).

45 See, e.g., In re Reinaldo O., 250 A.D.2d 502, 502-03, 673 N.Y.S.2d 417, 418 (1st Dep't) (when defendant purchased goods using a stolen credit card number, "the speedy return of the card did not negate [his] larcenous intent, because he clearly intended to 'appropriate' the card to himself"), appeal denied, 92 N.Y.2d 809, 678 N.Y.S.2d 595 (1998);People v. Montalvo, 216 A.D.2d 157, 158, 628 N.Y.S.2d 652, 653 (1st Dep't) (evidence that defendant took victim's car keys for four hours was sufficient to support larceny conviction), appeal denied, 86 N.Y.2d 798, 632 N.Y.S.2d 512 (1995); People v. Brightly, 148 A.D.2d 623, 624, 539 N.Y.S.2d 86, 87 (2d Dep't) (defendant who stole a cab by "stick-up" but abandoned the car minutes later had larcenous intent), appeal denied, 74 N.Y.2d 737, 545 N.Y.S.2d 111 (1989);People v. Smith, 140 A.D.2d 259, 261, 528 N.Y.S.2d 562, 564 (1st Dep't) (momentary removal and then return of a cosmetics case from victim's bag sufficient to support jury's finding larcenous intent; "Whether the subsequent return of the case negates a finding of intent 'to deprive' or 'to appropriate' property is a question of fact for the petit jury."), appeal denied, 72 N.Y.2d 924, 532 N.Y.S.2d 858 (1988).

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Besser intended to deprive Lane of the value of the bounced checks. Although Besser apologized soon after he had cashed $1,500 worth of bad checks in Lane's store, Besser never repaid the money. (Lane: Tr. 1338-39.) In fact, he continued, along with Ciauri, to extort money from Lane by collecting weekly protection payments (Lane: Tr. 1329-33, 1408-12, 1632), forcing Lane to buy expensive produce from Michael Sessa (Lane: Tr. 1347-49, 2101-04), and taking groceries from the store without paying (Lane: Tr. 1423-26, 1638-39; Ambrosino: Tr. 3895-99). Although Lane received $1,500 after the grocery store robbery, the payment came over six months after the checks had bounced, and it was Ciauri, not Besser, who repaid Lane the money. (Lane: Tr. 1484-85, 2013, 2158-59, 2163-64.)

Besser points out (Dkt. No. 1: App.: Besser Ct. App. Br. at A43) that courts have been reluctant to criminalize the cashing of bad checks because of "the danger of confusing larceny by false promise with purely civil wrongs." People v. Churchill, 47 N.Y.2d 151, 158, 417 N.Y.S.2d 221, 225 (1979). "'[A] high standard of proof'" is required because failure to pay promised money may be "as consonant with ordinary commercial breach of contract as with criminal conduct." Id. at 157-58, 417 N.Y.S.2d at 225.⁴⁶ The New York Court of Appeals has recognized, however, that in cases like this, "the defendant's intention must be ascertained by looking backward from the failure to perform and finding that at the time the accused made the promise, he did not intent to carry out his end of the bargain." Id. at 157, 417 N.Y.S.2d at 225.

46 Compare, e.g., People v. Campobello, 154 A.D.2d 911, 911-12, 546 N.Y.S.2d 62, 63 (4th Dep't 1989) ("the evidence was insufficient to prove to a moral certainty that at the time defendant borrowed the money, he had no intention of repaying it"); with, e.g.,People v. Chrysler, 225 A.D.2d 1058, 1058-59, 639 N.Y.S.2d 213, 214 (4th Dep't) (evidence sufficient to prove criminal intent where defendant wrote a check from an account that had been closed more than two years earlier), appeal denied, 88 N.Y.2d 934, 647 N.Y.S.2d 168 (1996); People v. Liebowitz, 112 A.D.2d 383, 386, 491 N.Y.S.2d 839, 842 (2d Dep't) (evidence of 1000 dishonored checks over seven months sufficient to prove defendant's knowledge of insufficient funds), appeal denied, 65 N.Y.2d 928, 493 N.Y.S.2d 1047 (1985).

Here, Besser's participation in a pattern of extortion indicates that he was not conducting ordinary commercial transactions when he gave Lane the bad checks. Moreover, the jury also could have considered the fact that Besser never made good on the bad checks. There was sufficient evidence to support the jury's verdict that Besser intended to deprive Lane of money by passing bad checks.

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 n. 10, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision affirming Besser's conviction of fourth degree grand larceny on deprivation grounds was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of facts. 2. The Evidence Was Legally Sufficient to Prove Besser's Intent to Further the Criminal Enterprise

To support a charge of enterprise corruption, evidence must show that the defendant intended to further the affairs of the enterprise through a pattern of criminal acts that are "either: (i) related to one another through a common scheme or plan or (ii) were committed, solicited, requested, importuned or intentionally aided by persons acting with the mental culpability required for the commission thereof and associated with or in the criminal enterprise." Penal Law §§ 460.10(4)(c), 460.20. See, e.g., People v. Cantarella, 160 Misc.2d 8, 20-21, 606 N.Y.S.2d 942, 950-51 (Sup.Ct. N.Y. Co. 1993) (evidence that a defendant was told about the distribution of profits from his criminal activity to members of his criminal enterprise was sufficient to prove his intent to further the enterprise.).⁴⁷

47 Cf., e.g., Barone v. Williams, No. CV-96-5898, 1997 WL 785611 at *5 (E.D.N.Y. Dec. 8, 1997) (defendant's "relationship to a 'Criminal Enterprise'" sufficiently proven by evidence that he had an "intimate association" with members of the Bonnano crime family during his management of the corrupt enterprise Union News and that he co-owned Union News with a "made" member of the crime family).

Here, the evidence shows that Besser was an associate of the Columbo crime family, first under Greg Scarpa, Jr. and Greg Scarpa, Sr., and later, along with Jerry Ciauri, under Bobby Zambardi. (See page 11 above.) Besser was able to get his checks cashed by relying on the foundation of power and intimidation established by the criminal enterprise. Lane testified that he had paid Ciauri for the mechanic's bill because it was "a small amount of money not . . . to have a problem with [Ciauri]." (Lane: Tr. 2114.) Lane subsequently agreed to weekly protection payments because he was "fearful" Ciauri would "do harm to" him. (Lane: Tr. 2115.) Ciauri had also threatened to send men with baseball bats to Lane's store (Lane: Tr. 1333), to hit Lane, and to "break [his] legs" (Lane: Tr. 1954). Besser only attempted to cash checks at the store after Ciauri had instructed Lane to begin cashing them. (Lane: Tr. 1334-35.) Besser's cashing of bad checks was related to his and Ciauri's previous criminal activity at the store "through a common scheme or plan." Penal Law § 460.10(4)(i). A rational jury could conclude based on this evidence that Besser intended to advance the affairs of the enterprise when he used Lane's grocery store to cash the checks.⁴⁸ 3. Besser's Insufficiency Claim as to the Check Value is Barred by an Adequate and Independent State Law Ground, And In Any Event Is Without Merit ⁴⁹

48 Ciauri's angry reaction to hearing that Besser had bounced a number of checks could indicate that Besser was acting in his own interests rather than for the enterprise — Ciauri yelled at Besser, "'you better make good on these checks, I told you, don't mess around with any of my stores.'" (Lane: Tr. 1338-39.) The jury could have concluded, however, that this was a tactic to appease Lane and induce him to continue paying protection and cashing checks, especially since Ciauri did not require Besser to immediately make good on the checks, and Ciauri repaid Lane only after Lane had stopped paying protection money and helped Ciauri and Besser to rob his grocery store.

49 For additional decisions by this Judge discussing the adequate and independent state ground doctrine, see, e.g., Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-8 n. 8 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ( cases cited therein).

The Supreme Court has made clear that "the adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted).⁵⁰ "[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724).

50 See also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986);Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

At the conclusion of the evidence at Besser's trial, co-defendant Ciauri moved for a trial order of dismissal, objecting specifically to the pattern act nine charge on "deprivation" and "enterprise furtherance" grounds. (Tr. 6257.) Besser's attorney joined in the motion, adding generally: "I would submit that Pattern Act Number 9 on behalf of Mr. Besser should not be presented to this jury in that the People have simply not established a prima facie case establishing grand larceny in the [fourth] degree." (Tr. 6279.) Besser's attorney never specifically objected to the sufficiency of the evidence to prove the value of the bounced checks. The New York Court of Appeals denied Besser's claim on procedural grounds, stating that the check value issue was "unpreserved for review as Besser failed to raise this argument in his trial motion to dismiss." People v. Besser, 96 N.Y.2d 136, 147-48, 726 N.Y.S.2d 48, 54 (2001).

"It is black letter law in New York that a defendant's trial motion to dismiss for insufficiency of the evidence must be 'specifically directed' at the alleged error to be preserved for appellate review." Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *3 (S.D.N.Y. July 9, 2002) (Peck, M.J.) (citing New York cases); see, e.g., People v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 148 n. 2 (1979); accord, e.g., People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995) ("We noted in People v. Cona . . . that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be 'specifically directed' at the alleged error. . . ."); People v. Diaz, Nos. 570708-00, 00-461, 2002 WL 759631 at *1 (N.Y.Sup.Ct. App. Term Apr. 22, 2002) ("defendant did not preserve by specific objection his current claims regarding the legal sufficiency of the evidence. . . ."); People v. Seabrooks, 289 A.D.2d 515, 515, 735 N.Y.S.2d 590, 591 (2d Dep't 2001) ("The defendant failed to specifically object with regard to the legal sufficiency of the evidence on the grounds he raises on appeal. Therefore, his arguments in this respect are unpreserved for appellate review."), appeal denied, 98 N.Y.2d 640, 744 N.Y.S.2d 769 (2002); People v. Elmore, 269 A.D.2d 404, 404, 702 N.Y.S.2d 860, 860 (2d Dep't) ("The defendant's generalized request for a trial order of dismissal was not sufficiently specific to preserve for appellate review his [specific appeals] challenge. . . ."), appeal denied, 94 N.Y.2d 947, 710 N.Y.S.2d 3 (2000).

Accordingly, the New York Court of Appeals denied Besser's insufficiency of the evidence claim on adequate and independent state law grounds, and the claim therefore is barred from habeas review. See, e.g., Roberts v. Batista, 2003 WL 1900866 at *7-10 ( cases cited therein).

Because, however, Besser asserts that his trial counsel was ineffective for failing to preserve the claim and that appellate counsel was ineffective for failing to raise this claim on appeal, the Court addresses the merits of this claim, and finds that the jury's verdict was supported by sufficient evidence as to the value of the checks. Lane testified that the bounced checks amounted to over $1,000, indeed, at least $1,500. (See pages 12-13 above.) While New York cases require the victim or other witness (including an expert) to lay a foundation for their knowledge as to the value of property,⁵¹ the New York courts do not apply that rule to testimony about cash, checks, or other monetary instruments. See, e.g., Penal Law § 155.20(2)(a) ⁵²; see Shapiro v. Ferrandina, 478 F.2d 894, 913 (2d Cir.) (check drawn on insufficient funds in foreign currency worth roughly $90,000 sufficient to prove felony of grand larceny), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204 (1973);People v. Lanahan, 89 A.D.2d 629, 630, 452 N.Y.S.2d 918, 921 (3d Dep't 1982) (stolen traveler's checks were properly valued at face amount under Penal Law § 155.20(2)(a)). The value of a check obviously is the amount for which it is written. Penal Law § 155.20(2)(a). Lane (or anyone with knowledge of such a check) was capable of testifying to that amount, and he did so. The fact that the prosecution did not present any of the checks at trial and that Lane did not have detailed records of the checks, went to the weight the jury could attribute to Lane's testimony. The jury in this situation, however, was free to believe Lane's oral testimony that the dishonored checks totaled over $1,000, an amount "corroborated" by the testimony that Ciauri later gave Lane $1,500 to make up for the dishonored checks. (See cases cited on page 48 above.) Based on Lane's testimony, the jury's verdict was supported by sufficient evidence.

51 See, e.g., People v. Vanderburg, 254 A.D.2d 532, 533, 681 N.Y.S.2d 359, 361 (3d Dep't 1998) (citing People v. Lopez, 79 N.Y.2d 402, 404, 583 N.Y.S.2d 356, 357 (1992)), appeal denied, 93 N.Y.2d 858, 688 N.Y.S.2d 506 (1999); People v. Dennis, 298 A.D.2d 210, 210, 748 N.Y.S.2d 145, 145 (1st Dep't), appeal denied, 99 N.Y.2d 557, 754 N.Y.S.2d 209 (2002); see also, e.g., People v. Sheehy, 274 A.D.2d 844, 845, 711 N.Y.S.2d 856, 858 (3d Dep't) ("valuation evidence must include the witnesses's basis for knowledge of value and the witness must testify as to the condition of the stolen property if that would affect its value") (citations omitted), appeal denied, 95 N.Y.2d 938, 721 N.Y.S.2d 615 (2000); People v. Jamison, 278 A.D.2d 100, 101, 717 N.Y.S.2d 183, 184 (1st Dep't 2000) (testimony of car owner expert appraiser established the value of stolen car), appeal denied, 96 N.Y.2d 784, 725 N.Y.S.2d 648 (2001); People v. Rattray, 259 A.D.2d 569, 569, 687 N.Y.S.2d 640, 640-41 (1st Dep't 1999) (photographs of car combined with owner's testimony on condition and expert testimony on market value were sufficient to prove value of stolen car), appeal denied, 93 N.Y.2d 977, 695 N.Y.S.2d 63 (1999);People v. Watkins, 233 A.D.2d 904, 905, 649 N.Y.S.2d 548, 549-50 (4th Dep't 1996) (People failed to prove stolen property's value exceeded $1,000 where witness testified that he made estimates in affidavit "'off the top' of his head and that he had not consulted a price list or any other source. 'It is established that an unsupported statement of value by an owner is not legally sufficient evidence on the issue of value; rather, a victim must provide a basis of knowledge for [the] statement of value.'") (quoting People v. Kirkwood, 200 A.D.2d 409, 409, 606 N.Y.S.2d 612, 613 (1st Dep't), appeal denied, 83 N.Y.2d 806, 611 N.Y.S.2d 142 (1994)); People v. Gonzalez, 221 A.D.2d 203, 204, 633 N.Y.S.2d 482, 484 (1st Dep't 1995) ("The Court of Appeals has unequivocally held that 'a victim must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value.'" A conclusory statement, rough estimate, or evidence of the original purchase price are insufficient to prove current value.) (quoting People v. Lopez, 79 N.Y.S.2d at 404, 583 N.Y.S.2d at 356); People v. Perez, 196 A.D.2d 444, 445, 601 N.Y.S.2d 285, 286 (1st Dep't) ("[C]omplainant's estimate of the value of the stolen property as 'at least about $2,000', without more, was insufficient to prove that defendant stole property that exceeded $1,000 in value."), appeal denied, 82 N.Y.2d 758, 603 N.Y.S.2d 1000 (1993).

52 Penal Law § 155.20(2)(a), relating to the "value of stolen property," provides in relevant part:

The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectable thereon or thereby, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied.

Penal Law § 155.20(2)(a) (emphasis added).

Here, as in prior cases, "the jury's 'decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'"Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); see Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *11 n. 18 (S.D.N.Y. May 7, 2003) ( cases cited therein); see also cases cited in Point II.A above.

Even if there had been major inconsistencies in Lane's testimony about the value of the bounced checks — which there was not — that would not change the result. See, e.g., United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction"), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979); Wilson v. Senkowski, 2003 WL 21031975 at *11 n. 19 ( cases cited therein); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . .").

Accordingly, even if the Court were to reach the merits of Besser's insufficient evidence claim as to the value of the bounced checks, that claim is meritless.

III. BESSER'S ACCOMPLICE CORROBORATION CLAIM RAISES ONLY A STATE LAW ISSUE AND IS THUS NOT COGNIZABLE ON FEDERAL HABEAS REVIEW

At trial, Besser asked the court to instruct the jury that they must find evidence to corroborate the testimony of Besser's alleged accomplices in order to find Besser guilty of each pattern act underlying the enterprise corruption charge. (Tr. 4852-80, 5705.) Justice Fried denied the request, finding that New York's accomplice corroboration rule, C.P.L. § 60.22, applies only to the overall offense of enterprise corruption and not to each underlying pattern act. (See Jury Charge: Tr. 6505-08.) See also People v. Ciauri, 166 Misc.2d 615, 616-23, 632 N.Y.S.2d 404, 406-09 (Sup.Ct. N.Y. Co. 1995). Besser asserts that the trial court violated his right to a fair trial under the Sixth and Fourteenth Amendments by failing to require accomplice corroboration for each pattern act. (Dkt. No. 1: App.: Besser Ct. App. Br. at A50-59; App.: Besser Ct. App. Reply Br. at A296-308.)

It is well-established that a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990)).⁵³

53 Accord, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *27 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *9 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4-5 (S.D.N.Y. June 28, 2000) (Peck, M.J.);Gillette v. Greiner, 76 F. Supp.2d 363, 370 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept.17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.);Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997).

As the Second Circuit has stated: "'In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); accord, e.g., Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994).⁵⁴ Failure to give a properly requested jury charge does not by itself violate a petitioner's right to due process. E.g., Blazic v. Henderson, 900 F.2d at 541 ("A mere error of state law does not deny a defendant his right to due process."); accord, e.g., Solomon v. Artuz, 2000 WL 863056 at *5; Gillette v. Greiner, 76 F. Supp.2d at 370; see also, e.g., Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 277 (1971).

54 See, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 So. Ct. 396, 400 (1973); Cromwell v. Keane, 2002 WL 929536 at *27;Thomas v. Duncan, 2001 WL 1636974 at *9; Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *12 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *5 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Riles v. Breslin, 2001 WL 175250 at *5; Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *13 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Solomon v. Artuz, 2000 WL 863056 at *4-5; Gillette v. Greiner, 76 F. Supp.2d at 370.

"For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d at 541 (quotingCupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400);accord, e.g., Solomon v. Artuz, 2000 WL 863056 at *5;Gillette v. Greiner, 76 F. Supp.2d at 370; see also, e.g., Casillas v. Scully, 769 F.2d at 63; Carmona v. Artuz, 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 1998 WL 213781 (S.D.N.Y. Apr. 29, 1998).

Besser argues that New York's accomplice corroboration rule, C.P.L. § 60.22, which prevents conviction of an offense solely on the uncorroborated testimony of an accomplice,⁵⁵ applies not only to the offense of enterprise corruption, but also to each underlying pattern act. (App.: Besser Ct. App. Br. at A50-59; App.: Besser Ct. App. Reply Br. at A296-308.) The New York Court of Appeals here held that the trial court's instruction was correct, explaining:

Defendants' assertion that the People were required to offer evidence tending to connect defendants to each pattern act is inconsistent with the plain language of CPL 60.22(1) which precludes a defendant from being convicted of "any offense" without corroborating evidence linking a defendant to "such offense." The Penal Law defines an offense as "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law" (see, Penal Law § 10.00[1]). The pattern acts which are components of the crime of enterprise corruption do not comport with this definition since a finding that a person committed a pattern act does not subject that individual to the penal sanction associated with that conduct. Even if a jury concludes a defendant committed three or more charged pattern acts, this determination is insufficient to support a conviction for enterprise corruption unless the jury further concludes the acts were committed with the intent to conduct or participate in the affairs of an ascertainable criminal enterprise (see, CPL 310.50[4]; Penal Law § 460.20[1]).

People v. Besser, 96 N.Y.2d 136, 145, 726 N.Y.S.2d 48, 52 (2001).

55 Criminal Procedure Law § 60.22(1) states that "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense."

When the New York Court of Appeals interprets a New York statute, that interpretation is binding on federal courts, just as if it had been written by the State legislature itself. See, e.g., United States v. Fernandez-Antonia, 278 F.3d 150, 162 (2d Cir. 2002) ("when interpreting state statutes federal courts defer to state courts' interpretation of their own statutes") (citing cases); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (in interpreting state statutes, deference given to "the New York Court of Appeals, whose construction of New York State law binds this Court"); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155 (2d Cir. 1998) ("we are bound by the construction of the statute propounded by the state's highest court"); Auerbach v. Rettaliata, 765 F.2d 350, 352 (2d Cir. 1985) ("The interpretation of a state statute . . . made by that state's highest court is binding on a federal court."); Solomon v. Artuz, 2000 WL 863056 at *7; United States ex rel.Presenzano v. Deegan, 294 F. Supp. 1347, 1350 (S.D.N.Y. 1969). The jury instruction at issue here raises a question of New York law, and the New York Court of Appeals upheld the trial court's instruction as a correct interpretation of New York law. The interpretation of the enterprise corruption and corroboration statutes is purely a state law issue. Since the jury instruction at issue here did not misstate state law, this Court need not consider whether an error would have so infected the trial as to violate due process.

In addition, there is no federal constitutional rule requiring the corroboration of accomplice testimony. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 198 (1917) ("there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them"); accord, e.g., Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *18 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J Peck, M.J.); see, e.g., United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) ("Any lack of corroboration of an accomplice's or co-conspirator's testimony goes merely to the weight of the evidence, not to its sufficiency. . . ."), cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999);United States v. Green, No. 96-1185, 104 F.3d 354 (table), 1996 WL 665719 at *3 (2d Cir. Nov. 14, 1996); United States v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570 (1989). Thus, even an incorrect jury instruction on the accomplice corroboration rule would not have violated Besser's federal constitutional right to a fair trial.⁵⁶ Accordingly, Besser's Corroboration Claim should be denied.

56 See, e.g., Clark v. Greiner, No. 97-CV-2483, 2001 WL 135732 at *4 (E.D.N.Y. Feb. 2, 2001) (prosecutor's misstatement of accomplice corroboration rule during closing argument did not violate a federal right; "there is no federal constitutional rule requiring the corroboration of accomplice testimony"); Mariani v. Kelly, No. 97-CV-384, 2001 WL 1860961 at *4 (N.D.N.Y. Jan. 17, 2001) ("The Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice. . . ."); Dawson v. Donnelly, 111 F. Supp.2d 239, 251 (W.D.N.Y. 2000) (accomplice corroboration rule "is a state law and not a Constitutional requirement, and may not be raised in a Federal habeas petition"); Lyon v. Senkowski, 109 F. Supp.2d 125, 136 (W.D.N.Y. 2000) ("[C]orroboration of accomplices' testimony does not implicate a Federal right."); Estrada v. Senkowski, 1999 WL 1051107 at *18 ("There is no federal constitutional rule requiring the corroboration of accomplice testimony."); Hayes v. Coombe, 96 Civ. 865, 1996 WL 650728 at *2 (S.D.N.Y. Nov. 7, 1996), aff'd, 142 F.3d 517 (2d Cir. 1998),cert. denied, 119 S.Ct. 879 (1999); Gaiter v. Lord, 917 F. Supp. 145, 150 (E.D.N.Y. 1996) (dismissing habeas claim "because the Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice"); Cartagena v. Mitchell, 93 Civ. 4759, 1993 WL 276070 at *1 (S.D.N.Y. July 20, 1993); Colon v. McClellan, 91 Civ. 6475, 1992 WL 162644 at *1 (S.D.N.Y. June 19, 1992), aff'd mem., 992 F.2d 319 (2d Cir.), cert. denied, 510 U.S. 847, 114 S.Ct. 141 (1993); Smithwick v. Walker, 758 F. Supp. 178, 186 (S.D.N.Y.) ("the requirement of accomplice corroboration is solely a product of New York State law. . . . Under federal law, it has long been established that a defendant can indeed be convicted on the uncorroborated testimony of an accomplice."), aff'd mem., 948 F.2d 1278 (2d Cir. 1991).

IV. THE TRIAL COURT'S Batson RULING WAS NOT AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT

A. Batson v. Kentucky and Its Progeny ⁵⁷ In Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 1716 (1986), the Supreme Court reaffirmed that a state's purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Constitution. The Batson analysis applies to peremptory challenges by a criminal defendant as well as by a prosecutor.Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359 (1992); McKinney v. Artuz, 326 F.3d 87, 98 n. 12 (2d Cir. 2003);Walters v. Mitchell, No. 99-CV-2579, 2002 WL 1751400 at *2 (E.D.N.Y. July 18, 2002). For AEDPA purposes, "[t]he clearly established Supreme Court precedent applicable in this case is Batson v. Kentucky. . . ." Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002).

57 For additional decisions by this Judge discussingBatson in language substantially similar to that in this entire section of this Report Recommendation, see Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *17-18 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *10 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2002).

As the Second Circuit reiterated, "[t]he Supreme Court has set forth a three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). The Second Circuit has summarized that test as follows:

[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors. . . .

[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. The second step does not require the party to give an explanation that is persuasive or even plausible.

[Step 3:] Finally, if the non-moving party proffers a race-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.

Galarza v. Keane, 252 F.3d at 636 (citations omitted);see, e.g., Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1035 (2003); Batson v. Kentucky, 476 U.S. at 96-98, 106 S.Ct. at 1723-24; Purkett v. Elem, 514 U.S. 765, 767, 115 So. Ct. 1769, 1770-71 (1995); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66 (1991); McKinney v. Artuz, 326 F.3d at 97-98; Overton v. Newton, 295 F.3d at 276; Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000).⁵⁸ In a footnote inBatson, the Supreme Court emphasized the deference to be accorded to the trial judge's determination: "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21; accord, e.g., Owens v. Portuondo, 1999 WL 378343 at *9; see also cases cited at pages 65-66 below.

58 See also, e.g., Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 939-40 (7th Cir. 2001); United States v. Raysor, Nos. 99-1503, 99-1504, 9 Fed. Appx. 33, 34, 2001 WL 357030 at *1 (2d Cir. Apr. 10, 2001); Moore v. Walker, No. 99-2754, 234 F.3d 1262 (table), 2000 WL 1721120 at *1 (2d Cir. Nov. 16, 2000); Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999); Durant v. Strack, 151 F. Supp.2d 226, 235-36 (E.D.N.Y. 2001); Green v. Kelly, 99 Civ. 9082, 2000 WL 1871711 at *6-8 (S.D.N.Y. Dec. 21, 2000); Morales v. Artuz, 98 Civ. 6558, 2000 WL 1693563 at *4 (S.D.N.Y. Nov. 13, 2000), aff'd, 281 F.3d 55 (2d Cir.), cert. denied, 123 S.Ct. 152 (Oct. 7, 2002); United States v. Moore, 4 F. Supp.2d 319, 320-21 (S.D.N.Y. 1998), aff'd, No. 98-1274, 173 F.3d 847 (table), 1999 WL 132175 (2d Cir. Mar. 11, 1999),cert. denied, 527 U.S. 1029, 119 S.Ct. 2383 (1999).

The Second Circuit has held that a Batson claim "is a structural error that is not subject to harmless error review."Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998);accord, e.g., Galarza v. Keane, 252 F.3d at 638 n. 8;Dobbin v. Greiner, 249 F. Supp.2d 241, 249 (S.D.N.Y. 2002);Harris v. Kuhlmann, 115 F. Supp.2d 326, 338-39 (E.D.N.Y. 2000).⁵⁹ B. Application of Batson to Besser's Habeas Claim ⁶⁰

59 Other Circuits that addressed the issue have reached the same result. See, e.g., Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001), cert. denied, 534 U.S. 1085, 122 S.Ct. 822 (2002);United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999);United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998) (suggestion that Batson error can be considered harmless error "has been resoundingly rejected by every circuit court that has considered the issue") (citing cases); Turner v. Marshall, 121 F.3d 1248, 1254 n. 3 (9th Cir. 1997), cert. denied, 522 U.S. 1153, 118 S.Ct. 1178 (1998), overruled to a limited extent on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999);Scarpa v. DuBois, 38 F.3d 1,14 (1st Cir. 1994), cert. denied, 513 U.S. 1129, 115 S.Ct. 940 (1995); United States ex el.Pruitt v. Page, No. 97 C 2115, 1999 WL 652035 at *8-9 (N.D. Ill. Aug. 20, 1999) ("It is the consensus of Courts of Appeals, including the Seventh Circuit, that Batson error is structural and cannot be harmless.").

60 Because both the First Department and New York Court of Appeals correctly recognized the issue as one of Batson's application, the AEDPA "unreasonable application" standard applies.See, e.g., McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003);Overton v. Newton, 295 F.3d 270, 275-80 (2d Cir. 2002);Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *18 nn. 43-44 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.) ( cases cited therein). The AEDPA standard of review of the state trial judge's factual determinations about the Batson issues is even more circumscribed and deferential. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1045 (2003); see pages 60, 65-66 below.

This Court need not determine whether the prosecution established aprima facie showing of intentional racial discrimination.⁶¹ As Besser concedes, that issue became moot when the trial judge ruled on the Batson question. (Dkt. No. 1: App.: Besser Ct. App. Br. at A61.) See, e.g. Miller-El v. Cockrell, 123 S.Ct. at 1040 (where state concedes petitioner satisfied step one and petitioner concedes state satisfied step two, "[u]nder Batson, then, the question remaining is step three: whether [movant] 'has carried his burden of proving purposeful discrimination.'"); Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866 (1991) ("Once a [non-moving party] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [moving party] had made a prima facie showing becomes moot."); McKinney v. Artuz, 326 F.3d at 98 ("The Supreme Court has held that the prima facie case of discriminatory intent becomes irrelevant to the analysis of a peremptory challenge once the trial court proceeds to the second and third steps as it did here."); United States v. Franklyn, 157 F.3d 90, 97 (2d Cir. 1998), cert. denied, 119 S.Ct. 887 (1999).⁶²

61 In any event, the trial court was correct to find that the prosecution had made a prima facie showing. At the time of theBatson challenge, 58% of the venirepersons available for the defendants to challenge were black (or dark skinned) (seven of twelve) and 42% were white; defendants used 100% of their peremptory challenges to strike black venirepersons, striking all seven black venirepersons. (See pages 3-4 above.) In Batson, the Supreme Court noted that "a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination" that can establish a prima facie case. Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723 (1986); see also, e.g., Overton v. Newton, 295 F.3d at 278-79; Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001); Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). Cases in this Circuit make clear that statistical evidence showing a pattern of discriminatory strikes can be used to establish a prima facie case. See, e.g., Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) ("In the case before us, we have little to go on besides the statistics because the trial court cut off defense counsel before he could complete his argument. Nevertheless, the fact that the government tried to strike the only three blacks who were on the panel constitutes a sufficiently dramatic pattern of actions to make out a prima facie case."); United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) ("[A] challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson.");United States v. Alvarado, 891 F.2d 439, 444 (2d Cir. 1989) ("statistical disparities are a relevant factor in making a prima facie case" under Batson), judgment vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995 (1990); see also, e.g., Rodriguez v. Lord, 2001 WL 1223864 at *19; Harris v. Kuhlmann, 115 F. Supp.2d 326, 338-39 (E.D.N.Y. 2000) ("The evidence is clear that five black venire persons were challenged peremptorily by the prosecutor and removed from the jury panel. These five blacks constituted the entire array of black prospective jurors. This evidence was sufficient to make out a prima facie showing of intentional discrimination."); Millan v. Keane, 97 Civ. 3874, 1999 WL 178790 at *6 (S.D.N.Y. Mar. 31, 1999) ("The percentage of members of a cognizable racial group who have been peremptorily challenged is important evidence in determining whether there is a prima facie case of discrimination."), aff'd mem., No. 99-2330, 208 F.3d 203 (table), 2000 WL 268575 (2d Cir. Mar. 8, 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001).

62 See also, e.g., Walker v. Girdich, Nos. 01-CV-1992, 03-MISC-0066, ___ F. Supp.2d ___, 2003 WL 21805598 at *5 (E.D.N.Y. July 14, 2003) (Weinstein, D.J.); Rose v. Senkowski, No. 99 CV 6053, 2003 WL 21698240 at *3 (E.D.N.Y. July 8, 2003); Baker v. Bennett, 235 F. Supp.2d 298, 307 n. 12 (S.D.N.Y. 2002); Durant v. Strack, 151 F. Supp.2d 226, 236-42 (E.D.N.Y. 2001); Jordan v. Lefevre, 97 Civ. 7046, 2000 WL 1877039 at *1 (S.D.N.Y. Dec. 27, 2000); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *9 (S.D.N.Y. June 9, 1999) (Peck, M.J.); United States v. Moore, 4 F. Supp.2d 319, 321 (S.D.N.Y. 1998).

The second step of the Batson analysis — that the non-moving party (here Besser and his co-defendants) come forward with a race-neutral explanation for its peremptory challenge — "does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the [non-movant's] explanation. Unless a discriminatory intent is inherent in the [non-movant's] explanation, the reason offered will be deemed race neutral.'"Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995); accord, e.g., Overton v. Newton, 295 F.3d at 276;Owens v. Portuondo, 1999 WL 378343 at *9; see also, e.g., People v. Payne, 88 N.Y.2d at 183, 643 N.Y.S.2d at 956. The Supreme Court has clarified that:

It is not until the third step that the persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike "must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges" and that the reason must be "related to the particular case to be tried." This warning was meant to refute the notion that the [non-movant] could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection.

Purkett v. Elem, 514 U.S. at 768-69, 115 S.Ct. at 1771 (citations omitted); accord, e.g., Jordan v. LeFevre, 206 F.3d at 200 ("Batson analysis recognizes that a race neutral reason may be rational and yet be a pretext for discrimination."); Owens v. Portuondo, 1999 WL 378343 at *9-10; see also, e.g., People v. Payne, 88 N.Y.2d at 183, 643 N.Y.S.2d at 956.

In this case, defendants objected to all seven of the black or dark-skinned venirepersons. (V. 388-90.). The trial court sat jurors Baker and Frazier over the defendants' objections. (V. 427-28, 434; App.: 7/27/95 Justice Fried Opinion at A112-19.) Defendants claimed that they struck Baker because of her prior jury experience and because she had been raised outside the country. (V. 418-19.) Defendants claimed they struck Frazier because of his age, his inability to understand instructions, his prior jury experience, and the fact that his brother was a policeman. (V. 408, 419-20.) Since Besser (and his co-defendants) offered facially neutral explanations, thus satisfying the secondBatson step, the Court will now review Justice Fried's determination that the prosecution proved purposeful racial discrimination at the third Batson step as to jurors Baker and Frazier.

The Court reiterates that on habeas review, it must give "great deference" to the trial court's findings as to the third Batson step. See, e.g., 28 U.S.C. § 2254(d)(2) (e); Purkett v. Elem, 514 U.S. at 769, 115 S.Ct. at 1771; Hernandez v. New York, 500 U.S. at 364-65, 111 S.Ct. at 1868-69; Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724, n. 21;McKinney v. Artuz, 326 F.3d at 100-01; Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997) ("A state court's determination whether a prosecutor's use of a peremptory challenge was motivated by discriminatory intent, in violation of Batson, is a factual determination and thus qualifies for [former § 2254(d)'s] presumption of correctness."), cert. denied, 118 S.Ct. 2066 (1998); Brown v. Kelly, 973 F.2d 116, 120, 122 (2d Cir. 1992) (the trial court's "decision on the factual question of discriminatory animus, largely based on determinations of credibility, is ordinarily given 'great deference' on appeal" and habeas review), cert. denied, 506 U.S. 1084, 113 S.Ct. 1060 (1993).⁶³

63 See also, e.g., United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991) ("As we have recognized, the task of assessing the prosecutor's explanations, in order to determine the ultimate issue of whether discrimination has been shown, falls primarily upon the judicial officer conducting the jury selection, whose determinations as to credibility of the proffered explanations are entitled to 'appropriate deference.'"); Durant v. Strack, 151 F. Supp.2d at 235-36 ("Because the trial judge is uniquely situated to assess the striking attorney's state of mind based on credibility and demeanor, . . . 'a reviewing court ordinarily should give those findings great deference.'"); Owens v. Portuondo, 1999 WL 378343 at *10.

The trial court here reasonably found defendants' explanations to be pretextual. Light-skinned venireperson Florio — whom defendants did] not strike — had nearly all of the characteristics that supposedly disqualified Baker and Frazier. Like Baker, Florio was raised outside the country and had served on a jury in a criminal trial that went to verdict. (V. 162, 194.) In fact, Florio had less education than Baker, a factor that should have made Florio less attractive to the defense. (V. 194, 219.) Nonetheless, the defense did not strike Florio from the jury. The defense also expressed concern that Frazier would not be able to understand the complex instructions in this case because of his answer to a question about the presumption of innocence. (V. 333, 420, 429.) However, Florio also gave a confused answer to the question. (V. 333; see pages 5-6 fn.6 above.)⁶⁴ For the other bases for Justice Fried's decision that the defense's explanations for striking Baker and Frazier were pretextual, see 7/27/95 Justice Fried Opinion at A114-18, quoted at pages 8-9 above.

64 Moreover, Frazier and Florio were the first venirepersons questioned on this issue; subsequent panel members, who answered correctly, had the benefit of hearing Frazier and Florio's incorrect answers before giving their correct answers. (V. 333-35.) Thus, the judge could reasonably have believed that Frazier's incorrect answer was not indicative of any inferior ability to understand jury instructions.

The uneven application of a facially race-neutral explanation does not, by itself, necessarily establish the invalidity of the explanation.See, e.g., Matthews v. Evatt, 105 F.3d 907, 918 (4th Cir.) ("Batson is not violated whenever two veniremen of different races provide the same responses and one is excused and the other is not . . . because counsel must be entitled to make credibility determinations in exercising peremptory challenges."), cert. denied, 522 U.S. 833, 118 62 S.Ct. 102 (1997); United States v. Spriggs, 102 F.3d 1245, 1255 (D.C. Cir.), cert. denied, 522 U.S. 831, 118 S.Ct. 97 (1997); United States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995) ("We recognize that failing to strike a white juror who shares some traits with a struck black juror does not itself automatically prove the existence of discrimination."), cert. denied, 516 U.S. 1134, 116 S.Ct. 958 (1996); United States v. Alvarado, 951 F.2d at 25 ("Decisions in other circuits have observed that an explanation for a peremptory challenge, though weakened, is not automatically to be rejected simply because it applies to a non-minority venireperson who was not challenged.").⁶⁵

65 See also, e.g., Holder v. Welborn, 60 F.3d 383, 390 (7th Cir. 1995); Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122 (1995);United States v. Valley, 928 F.2d 130, 136 (5th Cir. 1991);United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988);United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988);Owens v. Portuondo, 1999 WL 378343 at *11.

However, as the Second Circuit has stated, "[t]he force of [counsel's] explanation for challenging a minority member of a venire is obviously weakened substantially by evidence that non-minority members to whom the same explanation applies were not challenged." United States v. Alvarado, 951 F.2d at 25; accord, e.g., United States v. Thomas, 320 F.3d 315, 318 (2d Cir. 2003) ("'Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted. Where the principal difference between them is race, the credibility of the [attorney exercising the peremptory] explanation is much weakened.'"); Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002) ("'The relative plausibility or implausibility of each explanation for a particular challenge, assessed in light of the prosecution's acceptance of jurors with similar circumstances, may strengthen or weaken the assessment of the prosecution's explanation as to other challenges and thereby assist the fact-finder in determining overall intent.'") (quoting United States v. Alvarado, 923 F.2d at 256); Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2000); Roman v. Abrams, 822 F.2d 214, 228 (2d Cir. 1987) (upholding district court's finding that prosecutor's reasons for striking jurors were pretextual where, inter alia, only exercised against white jurors with that characteristic but not against non-white jurors with similar characteristic), cert. denied, 489 U.S. 1052, 109 S.Ct. 1311 (1989); People v. Rodriguez, 211 A.D.2d 275, 279-80, 627 N.Y.S.2d 614, 617-8 (1st Dep't 1995) ("One of the significant factors to be considered in determining whether a race-neutral explanation is non-pretextual is whether it has been applied consistently to all prospective jurors, whether or not they are members of the protected group."), appeal dismissed, 88 N.Y.2d 917, 646 N.Y.S.2d 982 (1996).⁶⁶

66 See also, e.g., Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) ("'In this circuit, it is well established that [a litigant] may not justify peremptory challenges to venire members of one race unless venire members of another race with comparable or similar characteristics are also challenged.' . . . A party can establish an otherwise neutral explanation is pretextual by showing that the characteristics of a stricken black panel member are shared by white panel members who were not stricken."), cert. denied, 513 U.S. 1083, 115 S.Ct. 737 (1995); Walters v. Mitchell, No. 99-CV-2579, 2002 WL 1751400 at *4 (E.D.N.Y. July 18, 2002) ("If crime-victim status were a genuine reason to challenge juror eight, defense counsel could reasonably be expected to object to juror fourteen on this basis as well. By not consistently challenging jurors on the basis of crime victimization, defense counsel selectively applied a race-neutral factor. This unequal application suggests that defense counsel's explanation for striking juror eight was pretextual.");Owens v. Portuondo, 1999 WL 378343 at *11.

Besser contends that the prosecution failed to meet its burden of persuasion because it did not offer any facts or arguments to counter the defense's race-neutral explanations. (Dkt. No. 1: App.: Besser Ct. App. Br. at A65-66.) Ultimately, step three of the Batson analysis requires that the totality of circumstances be considered. United States v. Alvarado, 951 F.2d at 26 ("As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances."); see also, e.g., United States v. Thomas, 303 F.3d 138, 144 (2d Cir. 2002); Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001);Jordan v. LeFevre, 206 F.3d at 200 ("[T]he third step of theBatson inquiry requires a trial judge to make 'an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.'"); United States v. Alvarado, 923 F.2d at 256 (remanding for "an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances");United States v. Franklyn, S1 96 CR. 1062, 1997 WL 334969 at *5 (S.D.N.Y. June 16, 1997), aff'd, 157 F.3d 90 (2d Cir.), cert. denied, 525 U.S. 1027, 119 S.Ct. 563 (1998); DeBerry v. Portuondo, No. 98 Civ. 3323, ___ F. Supp.2d ___, 2003 WL 21911242 at *6 (E.D.N.Y. June 12, 2003); Haywood v. Portuondo, 02 Civ. 890, 2003 WL 1563770 at *7 (S.D.N.Y. Mar. 21, 2003); Frazier v. New York, 187 F. Supp.2d 102, 114 (S.D.N.Y. 2002).⁶⁷

67 See also, e.g., Coulter v. Gilmore, 155 F.3d 912, 920-21 (7th Cir. 1998) (Batson violation occurred where state trial court failed to consider the "totality of the circumstances" when making ultimate decision as to whether prosecutor's challenges were motivated by racial discrimination); United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) ("At [the third] step of the analysis, the [trial] court has the responsibility to assess the prosecutor's credibility under all of the pertinent circumstances, and then to weigh the asserted justification against the strength of the defendant'sprima facie case under the totality of the circumstances.");United States v. Stewart, 65 F.3d at 923 (at the third stage, "'the trial judge determines, in light of all the facts and circumstances, whether the [Batson challenger] has established the existence of purposeful discrimination'"); United States v. Maserati, 1 F.3d 330, 335 (5th Cir. 1993) ("The court must then determine, in light of all of the facts and circumstances, whether the defendant has carried his burden to establish purposeful discrimination."), cert. denied, 510 U.S. 1129, 114 S.Ct. 1096 (1994); United States v. Mitchell, 877 F.2d 294, 303 (4th Cir. 1989); Owens v. Portuondo, 1999 WL 378343 at *12.

As the Supreme Court has instructed:

[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Ibid. In that instance the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.

Miller-El v. Cockrell, 123 S.Ct. at 1040; see also, e.g., McKinney v. Artuz, 326 F.3d at 98 ("Thus, [i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. Because the evidence on this issue is often vague or ambiguous, the best evidence often will be the demeanor of the attorney who exercises the challenge. Thus, evaluation of the [striking attorney's] state of mind based on [his or her] demeanor and credibility lies peculiarly within a trial judge's province.") (internal quotations citations omitted, brackets in original).

Because the trial court is in the best position to observe the demeanor and assess the credibility of the attorney exercising the peremptory challenge, Miller-El v. Cockrell, 123 S.Ct. at 1041 ("Deference is necessary because a reviewing court, which analyzes only the transcript from voir dire, is not as well positioned as the trial court is to make credibility determinations."); Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869 (1991); McKinney v. Artuz, 326 F.3d at 99, the trial court's factual determinations are to be accorded "great deference," Hernandez v. New York, 500 U.S. at 364, 111 S.Ct. at 1868; Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. "To secure habeas relief [underBatson], petitioner must demonstrate that a state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was 'objectively unreasonable' in light of the record before the court." Miller-El v. Cockrell, 123 S.Ct. at 1045; accord, e.g., McKinney v. Artuz, 326 F.3d at 101 ("In the context of a habeas application from a state prisoner . . ., 'a determination of a factual issue made by a State court shall be presumed to be correct,' 28 U.S.C. § 2254(e)(1), and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence, Id."); Bryant v. Speckard, 131 F.3d at 1077 ("A state court's determination whether [an attorney's] use of a peremptory challenge was motivated by discriminatory intent, in violation of Batson, is a factual determination and thus qualifies for th[e] presumption of correctness [under 28 U.S.C. § 2254(d)].").

Here, the trial court had a full opportunity to consider all relevant facts, and its ruling was consistent with those facts. Indeed, given that defendants peremptorily challenged all seven of the black or dark-skinned venirepersons (V. 388-89), and given that defendants' explanations for their challenges also would have applied to white jurors who the defense did not challenge, the trial court's finding that the reasons for challenging two of the seven jurors were pretextual (V. 425-26) was justified. Examining the record as a whole, Besser has not rebutted the presumption of correctness accorded the trial court's finding of pretext by clear and convincing evidence.⁶⁸ As the Second Circuit stated in a similar case where the state trial court seated two jurors over defense strikes found to be discriminatory:

68 Besser also contends that the trial judge erred by failing to explain why he found the defense's race-neutral explanations pretextual. (Dkt. No. 1: App.: Besser Ct. App. Br. at A64.) Besser's argument, however, ignores Justice Fried's lengthy written opinion explaining the decision he had made. (See pages 8-9 above.)

In light of the deferential standard appropriate to Batson inquiries under clearly established federal law and to habeas review under section 2254(e)(1), we conclude that the trial court's denial of the defense's attempted strikes of [2 jurors] was not "a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). And thus, the Appellate Division's decision to affirm the trial court's rulings was similarly not unreasonable.

McKinney v. Artuz, 326 F.3d at 101.

Accordingly, Besser's Batson claim should be denied. V. BESSER'S PERSISTENT FELONY OFFENDER CLAIM SHOULD BE DENIED ⁶⁹

69 The Court will address Besser's Apprendi sentencing claim in the last section of this Report Recommendation.

Besser's assertion — that he was wrongly adjudicated a persistent felony offender because the trial court failed to consider correctly the date of his Richmond County felony conviction (Dkt. No. 1: App.: Besser Ct. App. Br. at A87-91) — is essentially a claim that the court misapplied state law. (See pages 49-52 above.) As noted in Point III above, "'federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 So. Ct. 3092, 3102 (1990)). Since Besser does not claim his rights were violated under federal law, he is not entitled to habeas relief on this ground. In any event, even if he now were somehow asserting a federal claim, that claim would be barred because he did not raise his persistent felony offender claim in State court in federal terms, and thus the claim would be unexhausted but deemed exhausted and procedurally barred.⁷⁰

70 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language substantially similar to that in this section of this Report Recommendation, see Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. Jul. 12, 2001) (Peck, M.J.); Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. Jun. 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.);Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.);Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).

Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1) (A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.);Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971);Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732.

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S.Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191.⁷¹ The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue.E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:

71 Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 So. Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002),cert. denied, 123 S.Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Attorney General, 696 F.2d at 194.⁷²

72 Accord, e.g., Cox v. Miller, 296 F.3d at 99;Ramirez v. Attorney General, 280 F.3d 87, 95 (2d Cir. 2001);Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.

On direct appeal and in collateral proceedings in state court, Besser challenged his persistent felony offender sentence based on the timing of his Richmond County conviction, but he never asserted that his federal constitutional rights had been violated; Besser asserted only that his sentence violated state law, and failed to mention, even in passing, the United States Constitution, the Fourteenth Amendment, due process, excessive sentencing, or other language "so particular as to call to mind a specific right protected by the Constitution," Daye v. Attorney General, 696 F.2d at 194. (See Dkt. No. 1: App.: Besser Ct. App. Br. at A86-91; Dkt. No. 17: Besser 1st Dep't Br. at 64-68.)⁷³ Besser therefore did not "fairly present" any federal claim to the state courts. The claim, therefore, is not exhausted.

73 For example, Besser argued that his sentence was "illegal," "unauthorized," in "error," and "improper," but never alleged a federal constitutional violation. (Besser Ct. App. Br. at A86, 87, 88, 91.) Besser did cite one federal case, McLaurin v. Kelly, No. 94-CV-1560, 1998 WL 146282 at *4-6 (N.D.N.Y. Mar. 27, 1998), but solely to explain state law. (Besser Ct. App. Br. at A87.) Further, none of the state cases he cited discusses a federal constitutional issue. (See Besser Ct. App. Br. at A86-91.)

"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).⁷⁴ "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., McKethan v.

74 Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney General, 280 F.3d at 94; Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").

Mantello, 292 F.3d at 122-23; Ramirez v. Attorney General, 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

In this case, it is clear that Besser is now barred from raising his Persistent Felony

Offender habeas claim in federal terms in state court because it could have been raised on direct appeal, but was not.⁷⁵ As the Second Circuit explained in Washington v. James:

75 New York C.P.L. § 440.10(2)(c) states, in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

. . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.

. . . .

As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.

996 F.2d at 1446-47.⁷⁶

76 See also, e.g., Jones v. Keane, 329 F.3d at 296 ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available. . . ."); Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).

To avoid such a procedural default, Besser would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043 (citations omitted). Ineffective assistance of counsel can, of course, represent cause for a procedural default. See, e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986);Reyes v. Keane, 118 F.3d at 139. Here, however, Besser has only claimed that his appellate counsel was ineffective for failing to assert trial counsel ineffectiveness; Besser has not asserted that appellate counsel erred by failing to appeal the Persistent Felony Offender Claim in state court on federal constitutional grounds.

Besser therefore has no grounds to excuse the failure to raise in state court the Persistent Felony Offender Claim as a federal constitutional claim, and the claim is thus unexhausted but deemed exhausted and barred from federal habeas review. VI. BESSER'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL SHOULD BE DENIED

A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ⁷⁷

77 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y Dec. 20, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.⁷⁸

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).⁷⁹

78 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850 (2002).

79 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 So. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001);Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.⁸⁰

80 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility."Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf.Id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.⁸¹

81 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.⁸²

82 See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.");Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.

The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764.⁸³ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; Rivera v. Duncan, 2001 WL 1580240 at *10; see also Larrea v. Bennett, 2002 WL 1173564 at *18 n. 30 (discussing the issue of whether a federal or state standard should apply).

83 Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 319; McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to the balance of this section of this Report Recommendation, see Guzman v. Fischer, 2003 WL 21744086 at *11; Larrea v. Bennett, 2002 WL 1173564 at *18; Rivera v. Duncan, 2001 WL 1580240 at *10;Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Franza v. Stinson, 58 F. Supp.2d at 135;Torres v. Irvin, 33 F. Supp.2d at 277; Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).⁸⁴ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.⁸⁵ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

84 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.");Jackson v. Leonardo, 162 F.3d at 85; Mayo v. Henderson, 13 F.3d at 533.

85 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 So. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984);Fluellen v. Walker, 2000 WL 684275 at *12.

Finally, where trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel. See, e.g., Aparicio v. Artuz, 269 F.3d at 99 n. 10 ("Because the double jeopardy claim was meritless, Petitioner's trial counsel was not ineffective for failing to raise it. And thus, Petitioner's appellate counsel was not ineffective for failing to raise the ineffectiveness of trial counsel.").⁸⁶

86 See also, e.g., Marel v. Lord, 95 Civ. 9968, 1998 WL 17730 at *4 (S.D.N.Y. Jan. 16, 1998), aff'd, 173 F.3d 845 (2d Cir. 1999);Bradford v. Keane, CIV. A. No. CV-94-4665, 1996 WL 361593 at *20 (E.D.N.Y. June 3, 1996); Adams v. People of the State of New York, No. 95-CV-687, 1996 WL 345793 at *4 (W.D.N.Y. June 4, 1996);Todd v. Berry, 86 Civ. 9875, 1988 WL 103351 at *6 (S.D.N.Y. Sept. 27, 1988).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).⁸⁷ "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852.

87 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852;Sellan v. Kuhlman, 261 F.3d at 315.

B. Besser's Claims of Ineffective Trial and Appellate Counsel Relating to Insufficiency of the Evidence Should Be Denied

Besser asserts that his trial counsel erred by failing to challenge the sufficiency of the evidence to prove the value of the bounced checks, and that his appellate counsel erred by failing to assert this trial counsel ineffectiveness claim on direct appeal. (Dkt. No. 1: Pet. ¶ 13 attached Br. at 3-5.)

The trial counsel ineffectiveness claim should be denied, as the evidence was legally sufficient to prove the value of the bounced checks was over $1,000, and thus any objection to the sufficiency of the evidence would have been meritless. (See Point III above.) Because Besser's sufficiency of the evidence claim relating to check value is meritless, his trial counsel cannot be faulted for failure to raise a meritless claim. E.g., United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance."), cert. denied, 531 U.S. 811, 121 S.Ct. 33 (2000), rejected on other grounds, Schindler v. National Org. for Women, Inc., 537 U.S. 393, 127 S.Ct. 1057, 1065 n. 8 (2003), abrogation (on other grounds) recognized by United States v. Bellomo, 263 F. Supp.2d 561, 574-75 (E.D.N.Y. 2003).⁸⁸ Similarly, because Besser's trial counsel was not ineffective for failing to raise this insufficiency claim, appellate counsel cannot be faulted for not asserting on appeal the ineffective assistance of trial counsel.See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99 n. 10 (2d Cir. 2001); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *11 n. 30 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *18-19 n. 33 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (collecting cases), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.).

88 See also, e.g., United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"), cert. denied, 516 U.S. 927, 116 S.Ct. 330 (1995); United States v. Moland, No. 94-1032, 39 F.3d 1193 (table), 1994 WL 600985 at *2 (10th Cir. Nov. 3, 1994) ("counsel cannot be ineffective for not pursuing a strategy doomed to failure"); Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354 (1987);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *53 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *35 n. 61 (S.D.N.Y Dec. 20, 2002) (Peck, M.J.) ("counsel cannot be faulted for failure to make a meritless objection"); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *14 n. 25 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.);Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *22 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.) ("Because there would have been no merit to any of the objections [petitioner] contends defense counsel should have made, counsel's failure to object does not constitute ineffective assistance."); Franza v. Stinson, 58 F. Supp.2d 124, 148 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Duncan v. Greiner, 97 Civ. 8754, 1999 WL 20890 at *10 (S.D.N.Y. Jan. 19, 1999) (since trial counsel's objection would have been fruitless, "the failure to so object is not evidence of ineffective assistance of counsel");Perez v. United States, 89 CR 800, 96 Civ. 7702, 1997 WL 661426 at *4 (S.D.N.Y. Oct. 23, 1997) ("Defense counsel's failure to object, then, cannot have resulted in actual prejudice to petitioner, as the objection would have been meritless."); United States v. Corcoran, 855 F. Supp. 1359, 1367-68 (E.D.N.Y. 1994) (where identification found not improper, "counsel's failure to pursue the motion to suppress the in-court identification clearly did not deny defendant the effective assistance of counsel."), aff'd, 100 F.3d 944 (2d Cir.), cert. denied, 517 U.S. 1228, 116 S.Ct. 1864 (1996);Arce v. Smith, 710 F. Supp. 920, 926-27 (S.D.N.Y.) (inasmuch as there was no constitutional error or reversible error under state law, petitioner was not prejudiced by counsel's failure to object and counsel was not ineffective), aff'd, 889 F.2d 1271 (2d Cir. 1989), cert. denied, 495 U.S. 937, 110 S.Ct. 2185 (1990).

Besser's claims of trial and appellate counsel ineffectiveness relating to the insufficiency of the evidence as to pattern act nine should therefore be denied. C. Besser's Claims of Ineffective Trial and Appellate Counsel Relating to the Persistent Felony Offender Claim Should Be Denied

Besser asserts that his trial counsel was ineffective for failing to challenge his sentence as a persistent felony offender based on the timing of the Richmond County conviction (i.e., failing to assert the Persistent Felony Offender Claim at trial) (Dkt. No. 1: Besser Br. at 1-2, 5), and that his appellate counsel was ineffective for failing to raise this ineffective trial counsel claim on direct appeal (Besser Br. at 2; App.: Besser Coram Nobis Br. at A400-01).

Although Besser's trial counsel failed to assert the Persistent Felony Offender Claim at the time of sentencing,⁸⁹ both the First Department and the New York Court of Appeals considered and denied the claim on the merits. People v. Ciauri, 266 A.D.2d 164, 164-65, 699 N.Y.S.2d 341, 342 (1st Dep't 1999), aff'd sub nom. People v. Besser, 96 N.Y.2d 136, 147-48, 726 N.Y.S.2d 48, 54 (2001). Given the state appellate courts' rejection of Besser's claim on the merits, there is no reasonable probability that Besser was prejudiced by (1) his trial counsel's failure to raise the claim at sentencing or (2) his appellate counsel's failure to assert ineffective trial counsel on direct appeal. See, e.g., Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir.) (Strickland's prejudice prong, unlike the performance prong, may be determined "with the benefit of hindsight"), cert. denied, 513 U.S. 820, 115 So. Ct. 81 (1994). Besser's habeas claims can thus be denied on Strickland's prejudice prong alone. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069 (1984) ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

89 At the November 3, 1995, sentencing hearing, Besser's counsel argued that the Richmond County conviction should be vacated because Besser's plea was coerced, violating his Sixth Amendment rights. (Dkt. No. 17: 11/3/95 Hearing at 36-41.) Counsel did not, however, attack the Richmond County conviction on timing grounds, per the Persistent Felony Offender Claim. (id.; see also Dkt. No. 17: 12/6/95 Sentencing Decision at 4-8.)

D. Besser's Additional Ineffective Assistance of Counsel Allegations are Too Conclusory to Support a Habeas Corpus Claim

Besser raises several conclusory allegations of ineffective trial and appellate counsel. (Dkt. No. 1: Besser Br. at 3, 5, 6; App.: Besser Coram Nobis Motion at A396-403; App.: Besser § 440 Motion at A345-60; see pages 25-27 above.) These claims are far too vague and unsubstantiated to support a claim for habeas corpus relief. Besser neither cites to the record nor explains what the alleged attorney errors consisted of or how the errors were prejudicial.⁹⁰ See, e.g., Morales v. United States, No. 98-3700, 199 F.3d 1322 (table), 1999 WL 1015641 at *2 (2d Cir. Oct. 25, 1999) (Defendant's conclusory assertion that some unidentified women would have been willing to testify for the defense failed to support ineffective assistance claim.); United States v. Davis, Nos. 97-1171, 97-1410, 159 F.3d 1348 (table), 1998 WL 514156 at *2 (2d Cir. July 8, 1998) (rejecting ineffective assistance claim where defendant argued that counsel (1) failed to conduct thorough discovery because defendant did not point to material that counsel could have discovered that would have changed the trial's outcome; (2) failed to use 3500 material because defendant did not specify how that material could have been used; and (3) failed to cross-examine a witness because defendant did not show how cross-examination would have changed trial's outcome.);United States v. Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (petitioner's affidavit making allegations in a "conclusory fashion" failed to demonstrate that counsel's decision not to call a witness was unreasonable), cert. denied, 502 U.S. 826, 112 S.Ct. 93 (1991); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *4 (S.D.N.Y. June 12, 2003) ("petitioner's conclusory allegations regarding trial counsel's failure to do investigative work" did not establish that counsel's "behavior was erroneous"); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *9, *31-33 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (denying a claim of ineffective counsel based on "fail[ure] to consult [petitioner] about the facts of the case or the conduct of the trial, fail[ure] to offer sound legal advice, and fail[ure] to prepare [petitioner] to testify" because claim was "far too vague");Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *19 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (rejecting, as conclusory, allegations that counsel, inter alia, "failed to make appropriate objections and demonstrated ignorance of basic principles of criminal law and procedure"); Angel v. Garvin, 98 Civ. 5384, 2001 WL 327150 at *8 (S.D.N.Y. Apr. 3, 2001) (citing cases) ("A habeas petition may be denied 'where the allegations are . . . vague, [or] conclusory. . . .'"); Slevin v. United States, 98 Civ. 0904, 1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) (§ 2255 case; "Petitioner's conclusory allegations that counsel evinced 'a general lack of preparation' do not demonstrate that absent the alleged errors, the outcome of the trial would have been different. Petitioner has not elaborated on how counsel's alleged general lack of preparation prejudiced the outcome of his trial. Accordingly, such purported lack of preparation cannot be deemed ineffective assistance of counsel."), aff'd, 234 F.3d 1263 (2d Cir. 2000).⁹¹

90 For example, Besser cryptically faults his trial counsel for failure to request a severance (Dkt. No. 1: Besser Br. at 3, 6 ("if the proper notification given, a separate trial would have occurred"); accordId. at 4 ("failure to request a severance"), but fails to explain how a severance would have helped him. Similarly, in his coram nobis brief (which the Court deems incorporated into the habeas petition), Besser alleges the "fail[ure] to serve an alibi notice which resulted in the preclusion from calling any." (Dkt. No. 1: App.: Besser Coram Nobis Br. at A400.) He fails, however, to identify this alleged alibi witness or to describe the nature of the lost testimony.

91 See also, e.g., Vasquez v. United States, 96 Civ. 2104, 91 CR 153, 1997 WL 148812 at *1-2 (S.D.N.Y. Mar. 28, 1997) (§ 2225 case; "[P]etitioner's allegations with regard to alleged counsel errors in pre-trial preparation and investigation and trial advocacy are 'vague, conclusory, and unsupported by citation to the record, any affidavit, or any other source,' and, accordingly, . . . '[t]he vague and unsubstantiated nature of the claims' defeated petitioner's claim of ineffective assistance of counsel. . . ."); Parnes v. United States, 94 Civ. 6203, 91 CR 152, 91 CR 165, 1995 WL 758805 at *3 (S.D.N.Y. Dec. 21, 1995) (§ 2225 case; "[V]ague allegations do not permit the Court to conclude that the alleged errors of Petitioner's counsel fell below 'prevailing professional norms'. . . . Accordingly, the Court rejects Petitioner's claim that he received ineffective assistance of counsel."); Hartley v. Senkowski, No. CV-90-395, 1992 WL 58766 at *2 (E.D.N.Y. Mar. 18, 1992) ("In light of this demanding [Strickland] standard, petitioner's vague and conclusory allegations that counsel did not prepare for trial or object to errors carry very little weight."); Matura v. United States, 875 F. Supp. 235, 237-38 (S.D.N.Y. 1995) (§ 2255 case; mere conclusory allegations that counsel was ineffective fails "to establish that his counsel's performance was deficient [and] . . . fails to overcome the presumption [under Strickland] that counsel acted reasonably. . . .").

The only allegation that might conceivably be specific enough to state a claim for habeas relief is that trial counsel made a "completely incoherent and rambling motion to set aside the verdict." (Besser Br. at 3; see also Id. at 6.) The Court has read both defense counsel's arguments on the motion to dismiss (Tr. 6242-77 (main argument by Louis Aidala, Jerry Ciauri's attorney); Tr. 6277-86 (Peter Quijano, Besser's attorney, joining in the motion and making additional arguments)), and found that counsel's conduct fell well "within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984).

At a minimum, this Court cannot say that the C.P.L. § 440 and coram nobis decisions denying Besser's ineffective assistance of trial and appellate counsel claims constituted an "unreasonable application" of the Strickland standard. The vague claims, such as they are, therefore should be denied.

CONCLUSION

For the reasons set forth above, the Court should deny Besser's habeas claims that are addressed in this Report and Recommendation; a second Report and Recommendation is following that will address Besser'sApprendi claims. A certificate of appealability should not be issued as to the habeas claims addressed in this Report and Recommendation.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).