Opinion
00 Civ. 8935 (HB) (GWG)
July 16, 2001
REPORT AND RECOMMENDATION
To the Honorable Harold Baer, Jr., United States District Judge
Background
This case is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pro se petitioner, Juan Peralta, is currently an inmate at Riverview Correctional Facility. On April 14, 1998, Peralta was convicted of Criminal Sale of a Controlled Substance in the Third Degree under New York Penal Law § 220.39. He was sentenced to an indeterminate prison term of five to ten years.
I. PROCEDURAL HISTORY
A. Trial
1. The Prosecution's Case. Peralta's trial began on April 8, 1998, before a jury. (Tr. 22). The evidence at trial showed that on November 20, 1996, Undercover Police Officer 2675 ("the Undercover") was working in Manhattan as a "ghost" in a narcotics buy operation. (Undercover: Tr. 37-42, 72). A "ghost" refers to the police officer who follows another undercover officer on a detail and is responsible for informing the field team of events transpiring during the undercover operation, such as its location and the description of persons involved. (Undercover: Tr. 46). The Undercover had been with the police department for about four-and-a-half years at the time of trial and had spent her career on narcotics cases. (Undercover: Tr. 37-38). She testified that she had extensive training as an undercover narcotics officer and was familiar with how drugs are packaged and sold in different neighborhoods. (Undercover: Tr. 37-41). By November 20, 1996, the Undercover had participated in about sixty narcotics-related arrests. (Undercover: Tr. 40).
"Tr." refers to the trial transcript of People v. Peralta, Indictment No. 1350/97, Supreme Court, New York County. "S." refers to the transcript of the sentencing.
On November 20, 1996, the Undercover stood on the north side of 179th Street and Amsterdam watching another undercover officer walking westbound on 179th Street. (Undercover: Tr. 52). She saw Peralta, wearing a purple jacket, and Raphael Rojas, wearing a silver jacket, enter 179th Street from Audubon. (Undercover: Tr. 52). The two men were "laughing, talking and [Peralta] had a large amount of currency in his hand. . . . Mr. Rojas had a bill in his hand" (Undercover: Tr. 52-53). The Undercover then observed Peralta hand Rojas a clear bag with a white substance and Rojas place this bag in his jeans pocket. (Undercover: Tr.
53). At the same time, Rojas gave Peralta currency that was in his hand. (Undercover: Tr. 97). Although this transaction occurred in the evening, the Undercover testified there were street lights and that she had a "clear, unobstructed view" of the exchange from about an arm's length away. (Undercover: Tr. 54, 55).
Upon observing the exchange, the Undercover radioed her field team, gave them descriptions of Peralta and Rojas, and indicated the direction they were walking. (Undercover: Tr. 56, 98-99, 104, 127-28). Minutes later, members of the team stopped their van ten to fifteen feet in front of the place where Peralta and Rojas were standing. (Undercover: Tr. 56-58, 128-30, 133, 144-46; Whiteside: 194-97, 213-15). After looking toward the van, the two men split up. (Undercover: Tr. 57). At this time, Police Officer Whiteside got out of the van, identified himself as a police officer, and "called out" to Rojas. (Whiteside: Tr. 197, 215-17). Rojas turned to look at Officer Whiteside, who stood about ten feet from him, and then dropped a glassine envelope to the ground between two parked cars. (Whiteside: Tr. 194, 215-17). The officer walked up to Rojas and arrested him. (Whiteside: Tr. 217).
By this time, Peralta had gone around the corner, where he was arrested by Officer Torres. (Nieves: Tr. 258, 262-68). Shortly afterwards, the Undercover positively identified Peralta, who was still wearing his purple jacket, as the individual who had handed the plastic bag to Rojas. (Undercover: Tr. 58, 63-65). A police department chemist later determined that the white powder in the plastic bag was cocaine. (Geykhman: Tr. 150-57). Currency in the amount of $115.00 was recovered from Peralta's front pants pockets. (Whiteside: Tr. 223; Nieves: 240-42, 269).
2. The Defense Case. Following the presentation of the prosecution's case, the defense called their only witness, Rojas, the alleged buyer. (Rojas: Tr. 284-380). Rojas testified that he was in the neighborhood because he had brought his car to be repaired at his brother's garage and he wanted to visit friends on 179th street where he used to work. (Rojas: Tr. 290-93). He said that he walked to a bodega on 179th Street and Audubon, where he saw Peralta and "greeted him." (Rojas: Tr. 293, 294). Rojas, who had worked as an automobile repairman, was a "friend" of Peralta, who had sometimes helped Rojas. (Rojas: Tr. 295, 333). Upon exiting the bodega, some officers called Rojas over. (Rojas: Tr. 295, 296). The officers showed Rojas some drugs and told him that they were his. (Rojas: Tr. 298). He was subsequently arrested. (Rojas: Tr. 296, 297, 299). He denied the drugs belonged to him. (Rojas: Tr. 296, 298).
The defense rested without calling any further witnesses. (Tr. 394). On April 14, 1998, the jury returned a verdict convicting Peralta. (Tr. 489). He was sentenced on April 29, 1998. (S. 11).
B. Direct State Court Appeals
Represented by counsel, Peralta appealed to the Appellate Division, First Department. See Brief for Defendant-Appellant to the Appellate Division, First Department, dated September 7, 1999 (reproduced in Respondent's Affirmation in Opposition, dated February 28, 2001, Exhibit B) (hereinafter, "Brief for Defendant-Appellant"). His brief alleged two grounds for appeal. The first ground was that the verdict was against the weight of the evidence. See Brief for Defendant-Appellant at 10-14. The second ground was that his absence during the post-verdict questioning of a juror constituted reversible error. See Brief for Defendant-Appellant at 15-18.
The Appellate Division affirmed the judgment of conviction on March 7, 2000. See People v. Peralta, 270 A.D.2d 38, 38 (1st Dep't 2000). With respect to Peralta's grounds for appeal, the Appellate Division stated "[t]he verdict was not against the weight of the evidence" and that Peralta "was not entitled to be present during the court's postverdict conference." People v. Peralta, 270 A.D.2d at 38. Peralta sought leave to appeal to the New York Court of Appeals. See Letter dated March 9, 2000, to the Honorable Judith Kaye (attachment to facsimile transmission from Edward Rodriguez, dated June 11, 2001, and docketed on June 28, 2001) (hereinafter "March 9, 2000, Letter"). The New York Court of Appeals denied leave to appeal on May 31, 2000. See People v. Peralta, 95 N.Y.2d 801 (2000). Peralta did not seek a writ of certiorari from the United States Supreme Court. He also did not mount a collateral attack on his conviction in State Court.
C. Peralta's Federal Habeas Corpus Petition
Peralta's present petition for writ of habeas corpus (hereinafter "Habeas Petition") is dated September 22, 2000, and was received by the Court on November 1, 2000. See Habeas Petition at 2. Peralta's petition presents the same two claims raised before the state courts: (1) that the guilty verdict was against the weight of the evidence, see Habeas Petition, ¶ 12 (subparagraphs 1-11); and (2) that Peralta's absence during the post-verdict questioning of a juror constituted error by the trial court, see Habeas Petition, ¶ 12 (subparagraphs 12-16). Following briefing, the petition was referred to the undersigned for a Report and Recommendation on April 20, 2001.
II. APPLICABLE LEGAL PRINCIPLES
Habeas corpus relief under 28 U.S.C. § 2254 is available to a petitioner in state custody in violation of the Constitution or a federal law or treaty. See 28 U.S.C. § 2254(a). "Before a federal court may grant habeas relief to a state prisoner," however, "the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1). "Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. at 845; accord Daye v. Att'y Gen. of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982).
In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir. 1989). Petitioners may "fairly present" their federal claims in state court by, inter alia, presenting explicit constitutional arguments, "relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that call to mind a specific right protected by the Constitution or alleging facts that fall well within the mainstream of constitutional litigation." Levine v. Comm'r of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (citations omitted); accord Daye v. Att'y Gen. of the State of New York, 696 F.2d at 192-93 ("the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature").
Federal courts are barred from addressing the merits of claims that were "procedurally defaulted" by the petitioner in state court. See, e.g., Fama v. Comm'r of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000). A procedural default in state court constitutes an independent and adequate ground for the state court judgment of conviction and, although such claims are considered technically "exhausted" for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Bossett v. Walker, 41 F.3d 825, 829 (2d. Cir 1994). The federal court may only address the merits of a procedurally defaulted claim if the petitioner can establish cause and prejudice for the default, or if he can show a "fundamental miscarriage of justice." See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.* (1991); Murray v. Carrier, 477 U.S. 478, 488, 494 (1986); Strogov v. Att'y Gen. of the State of New York, 191 F.3d 188, 193 (2d Cir. 1999).
III. ANALYSIS OF PERALTA'S CLAIMS
A. Verdict Against the Weight of Evidence
Peralta argues that the "[t]he guilty verdict was against the weight of the evidence." Habeas Petition ¶ 12 (preamble); accord id. at ¶ 12 (subparagraph 5); id. at ¶ 9(d); id. at ¶ 9(e)(4). In making his argument on this point, Peralta cites exclusively to New York legal authority regarding a verdict that is against the weight of the evidence. See id. at ¶ 12 (subparagraphs 1-11). The same is true of his brief to the Appellate Division, which also argued that the verdict was "against the weight of the evidence" and cited exclusively to state authorities. Brief for Defendant-Appellant at 10-14.
A claim that a conviction is against the weight of the evidence originates from New York Criminal Procedure Law § 470.15(5), which permits an appellate court to reverse or modify where it determines "that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." In People v. Bleakley, 69 N.Y.2d 490 (1987), the New York Court of Appeals noted that attacks on a verdict based on the weight of the evidence are different from those based on the legal sufficiency of the evidence. Specifically, the "weight of the evidence" argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. See Bleakley, 69 N.Y.2d at 495. As the Bleakley court explained:
Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each require a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial . . . and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.
To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. . . . If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict.
Bleakley, 69 N.Y.2d at 495 (internal quotations and citations omitted).
Consistent with this analysis, Peralta's argument to the Appellate Division conceded that "the evidence presented by the People was legally sufficient. . . ." Brief for Defendant-Appellant 8 at 10. Peralta argued only that "the total weight of the evidence fails to sustain the burden of a guilty verdict." Id. at 10. The Appellate Division ultimately ruled that "[t]he verdict was not against the weight of the evidence." People v. Peralta, 270 A.D.2d at 38. The only conclusion that can be drawn from these facts is that Peralta has presented no federal claim to this Court as required by 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"). Habeas corpus review is not available where there is simply an error of state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Estelle v. McGuire, 502 U.S. at 68 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citations omitted). In this case, Peralta raises only the state law issue of whether the weight of the evidence supported his conviction. Because Peralta raises no cognizable federal issue, his petition must be denied. See, e.g., Kearse v. Artuz, 2000 WL 1253205 at *1 (September 5, 2000) (summarily dismissing challenge to verdict against the weight of the evidence on the ground that "[d]isagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief.").
The Court is aware that, in instances in which a habeas petitioner has presented an "against the weight of the evidence claim" to the state court, some federal courts have treated the claim as if the petitioner had asserted that the evidence was "legally insufficient" under Jackson v. Virginia, 443 U.S. 307 (1979). See Ventura v. Artuz, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (explicitly construing the petition to raise a sufficiency of the evidence claim); Padro v. Strack, 2001 WL 394852 at *2 (S.D.N.Y. April 18, 2001) (analyzing without discussion the petitioner's "weight of the evidence" challenge under the Jackson standard). For the reasons stated above, however, this Court respectfully disagrees with these decisions. Moreover, in this case Peralta explicitly conceded that the evidence against him was legally sufficient. See Brief for Defendant-Appellant at 10.
The result would not change if this Court were to construe the present pro se petition as attempting to raise a federal "sufficiency of the evidence" claim. This is because Peralta unquestionably did not raise this claim before the state appellate courts. See Brief for Defendant-Appellant at 10-14. The failure to raise a federal claim before the state courts bars habeas corpus review of the claim in federal court. See, e.g., Coleman v. Thompson, 501 U.S. at 731-32. Here, the state courts never had the opportunity to review the federal issue involved because they were never apprised of it. See Morgan v. Jackson, 869 F.2d at 684 (barring review where petitioner had not given the state courts an adequate opportunity to consider his claim). Because it is now too late for Peralta to return to state court to present this claim, see New York Court Rules § 500.10(a) (permitting only one application for leave to appeal); New York Criminal Procedure Law § 440.10(2) (barring collateral review of claims that could have been raised on direct appeal), he has procedurally defaulted on this claim in state court. See, e.g., Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); Reyes v. Keane, 118 F.3d at 139; Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). While Peralta's claim is deemed "technically exhausted," he cannot obtain review of any defaulted claims unless he can show cause or prejudice for the default or a "fundamental miscarriage of justice." See, e.g., Bossett v. Walker, 41 F.3d at 828; Strogov v. Att'y Gen. of the State of New York, 191 F.3d at 193. Peralta has shown none of these. Thus, even construing his current petition as raising a sufficiency-of-the-evidence claim, it is barred from federal habeas corpus review.
In any event, as set forth in detail above, there was sufficient evidence from which to conclude that Peralta in fact knowingly and unlawfully sold a narcotic drug under New York Penal Law § 220.39(1). That statute requires the prosecution to prove only that the defendant 10 "knowingly and unlawfully [sold] . . . a narcotic drug." New York Penal Law § 220.39(1). The Undercover saw Peralta exchange with Rojas a glassine envelope, later discovered to contain cocaine, for money. This testimony, if credited by the jury, showed that Peralta sold cocaine and, given the circumstances of the exchange, that his sale was knowing and unlawful. Thus, "after viewing the evidence in the light most favorable to the prosecution, [a] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 319. The fact that Peralta has alleged inconsistencies in the prosecution's case or produced a witness to contradict the prosecution's evidence does not change this conclusion. Here, as is true in many 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 jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). For the above reasons, the petition should be denied with respect to the first claim for relief.
B. Peralta's Absence During the Sidebar
In his second ground for habeas relief, Peralta argues that the trial court erred in questioning a juror in his absence subsequent to the verdict. See Habeas Petition, ¶ 12 (subparagraphs 12-16).
1. Factual Background.
After the jury commenced its deliberations, it sent out a number of notes seeking various read-backs and clarifications. (Tr. 474, 478, 483, 485, 488). At the conclusion of the jury's 11 deliberations, the trial judge announced on the record that he had a note from the jury indicating that it had reached a verdict. The judge stated that he was "going to take the verdict from the jury at this point in time." (Tr. 488). The defense attorney inquired "whether there was another communication from the jury because there was another buzz." (Id.) The judge stated that he would not address that communication until after the verdict was taken. (Id.)
After the guilty verdict was read and the jury members polled, the judge had the courtroom cleared of all spectators, as well as Peralta who was ordered to be "taken down." (Tr. 492). The judge stated that the other note had come in eight minutes before the note announcing that the jury had reached a verdict. (Tr. 492-93). The other note was dated that day and read as follows:
I am juror number six and yesterday I saw someone who lives in my building, same floor, who is seated with the family of the defendant. I am very concerned and I want to know what I should do.
(Tr. 493). It was signed "we the jury" and was also signed "by the foreperson." (Id.). The judge stated that he had cleared the courtroom "in excess of caution" and that he thought it "appropriate for me to make a record, outside the presence of the family members and friends of Mr. Peralta who were in the audience." (Tr. 492).
The judge's immediate concern was with the safety of the juror and he suggested that the District Attorney's office might wish to speak with her. (Tr. 495-95). Defense counsel, however, raised the issue of whether this note had affected the deliberations. (Tr. 496-97). The prosecutor, defense counsel, and the judge discussed the note and its significance. (Tr. 497-504). Ultimately, the Court asked Juror Number Six to enter the courtroom and made numerous inquiries regarding her safety, including inquiries into whether she knew the person she saw, how she knew him, whether he gave any indication that he recognized her, whether he spoke to her, whether she had reason to have concerns about him and whether he was present in court the day of the verdict. (Tr. 504-508). The juror stated that she saw the person on just one day (the day prior to the verdict), that she didn't know him but recognized him from the building, that they had no communication at the courthouse, that her concerns were based simply on the fact that he knew the defendant and that she was part of the verdict (Tr. 504-507) and that she "[didn't] think something is going to happen, I just, you know — we live in the same place and I have to do with the verdict so that's like my concern." (Tr. 507). The judge tried to assuage her fears and said she could call the court, the police, or the district attorney's office. (Tr. 507-508). In addition to these inquiries regarding safety, the judge asked at what point she told the other jurors about her concern and what she said to them. (Tr. 506). The juror said that she had told the jurors after they had agreed upon a verdict and that she had "mention[ed] it," without elaborating as to what she said to the other jurors. (Id.).
The defense counsel made no objection to the fact that his client was not present during these proceedings and sought no relief based on the conversation; he even agreed to follow the court's direction that he not discuss the matter with his client. (Tr. 510-11).
In his appeal to the Appellate Division, Peralta — represented by new counsel — argued that his absence from the post-verdict questioning of the juror was error. See Brief for Defendant-Appellant at 15-18. While Peralta's brief cited exclusively to state law cases and a state statute, the claim regarding the defendant's presence at the questioning of the juror certainly "call[s] to mind," Levine v. Comm'r, 44 F.3d at 124, the right of a criminal defendant under the Confrontation Clause and the Due Process Clause to attend his trial. See, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970) (criminal defendant has right under Confrontation Clause to attend trial); Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934) (criminal defendant has the right under the Due Process Clause to be present "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge"). Thus, we deem Peralta to have presented his federal constitutional claim to the State court.
2. Standard of Review.
Before considering the merits of Peralta's claim, we address the standard of review that should be employed. Under the Antiterrorism and Effective Death Penalty Act of 1996, P.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), a federal court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This standard applies where a claim has been "adjudicated on the merits in [a] State Court proceeding" and where that adjudication "resulted in a decision." 28 U.S.C. § 2254(d) and (d)(1). Where these elements are not met, the pre-AEDPA de novo standard of review is applicable. See Washington v. Schriver, 2001 WL 674248 at *8 (2d Cir. June 15, 2001).
It is not clear, however, what sort of decision constitutes an adjudication entitled to the AEDPA's deferential standard of review. In Washington v. Schriver, the Second Circuit left open the possibility that the standard may apply whenever the State court has issued a decision that results in an adjudication of a claim, regardless of the extent or nature of its discussion of the claim. 2001 WL 674248 at *6 (under "[t]his approach . . . even the most summary orders disposing of federal claims without comment are adjudications on the merits"). Washington made clear, however, that in those situations where the State court has "identif[ied] in some fashion the legal rule through which the result was reached" or has "provide[d] some sense of its reasoning," the AEDPA's standard applies. Id. at *7.
In Peralta's case, the Appellate Division made clear that it was addressing the defendant's "entitle[ment] to be present during the court's postverdict conference with a juror." People v. Peralta, 270 A.D.2d at 38. In deciding the claim, it cited to one of its precedents that discussed federal constitutional principles. Id. (citing People v. Mullen, 44 N.Y.2d 1, 5 (1978) (in turn citing Snyder v Massachusetts, 291 U.S. 97 (1934), and "due process")). This citation and the Appellate Division's discussion of the claim make clear that the court was applying federal constitutional standards and thus that the court's decision was an "adjudication on the merits" of the federal claim under 28 U.S.C. § 2254(d), rendering the AEDPA standard applicable.
The AEDPA requires this Court to determine if the New York court's adjudication was "contrary to, or 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). Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).
3. Analysis of the Claim.
a. Merits of the Claim. A criminal defendant has a constitutional right to be "present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15 (1975). Moreover, a defendant has a due process right to be present during criminal proceedings to the extent that a fair and just hearing would be thwarted by his absence. See Snyder v. Massachusetts, 291 U.S. at 107-108. In many instances, courts have upheld a trial judge's questioning of a juror without the presence of the defendant. See, e.g., United States v. Bertoli, 40 F.3d 1384, 1397 (3d Cir. 1994) (no Fifth Amendment right to be present at judge's ex parte inquiry of juror); U.S. v. Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980) ("It is clear that there is no constitutional right for a defendant to be present at a conference in chambers concerning dismissal of a juror.") (citing cases); United States v. Brown, 571 F.2d 980, 986-87 (6th Cir. 1978) (asserted right to be present at in-chambers conference concerning disqualification of juror "was not constitutionally required"); United States v. Howell, 514 F.2d 710, 714 (5th Cir.), cert. denied, 423 U.S. 914 (1975) (in camera conference outside the presence of the defendant was "not [a] critical stage in the proceedings and therefore no concomitant right to be present arose").
Because the verdict had been taken in Peralta's case and the focus of the conference was to address the safety of the juror, the questioning did not constitute a stage of the trial where the defendant's absence "might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. at 819 n. 15. The questioning of the juror occurred only after the guilty verdict had been announced, the jury polled and dismissed. Its main purpose was to address the safety of the juror, even though the trial judge acceded to defense counsel's request to question the juror briefly regarding when she told the other jurors about her fears. Thus, this was not a situation where the defendant's presence "would have contributed to [his] opportunity to defend himself against the charges." Kentucky v. Stincer, 482 U.S. 730, 744 n. 17 (1987); see also Clark v. Stinson, 214 F.3d 315, 322-23 (2d Cir. 2000) ("substantial performance" of the mandate requiring the defendant's presence at his trial "is sufficient" (quoting People v. Mullen, 44 N.Y.2d at 5-6) (in turn holding that in camera questioning of one juror outside of defendant's presence did not constitute material stage of trial)).
Indeed, because the probing of the juror's fears for her safety were at issue, the defendant's presence would have been detrimental to that objective. See United States v. Gagnon, 470 U.S. 522, 527 (1985) (the presence of defendant and other parties at a discussion with juror regarding her concerns about defendant's sketching drawings of the jury would have been "counterproductive"); Bertoli, 40 F.3d at 1397 ("We doubt whether jurors would have been as comfortable discussing their conduct had [the defendant] been present."). As was true in Gagnon, Peralta "could have done nothing had [he] been at the conference, nor would [he] have gained anything by attending." 470 U.S. at 527. The fact that the judge's questioning included a very brief inquiry as to when the juror informed the other jurors of her concerns makes this a closer question than it otherwise would have been; however, we cannot say that the Appellate Division's decision to uphold the defendant's exclusion was an "unreasonable" application of the Supreme Court precedents in this area. 28 U.S.C. § 2254(d)(1).
b. Harmless Error Analysis. In any event, the limited inquiry of a juror in the defendant's absence is one that must be subject to a "harmless error" analysis inasmuch as any error would not "undermine the structural integrity and fairness of the proceeding." Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996) (harmless error analysis applies to questioning of witness in defendant's absence to determine if he should be disqualified because he heard another witness's testimony); accord Rushen v. Spain, 464 U.S. 114, 119 n. 2 (1983) (defendant's right to be present during all critical stages of the proceedings at trial is "subject to harmless error analysis") (citing Snyder v. Massachusetts, 291 U.S. at 114-118). The Sixth Circuit has noted that "[a]ny 17 error in a defendant's voir dire absence is not a 'defect affecting the framework within which the trial proceeds,' . . . nor is it one of those errors that 'necessarily render[s] a trial fundamentally unfair.'" U.S. v. Riddle, 249 F.3d 529, 535 (6th Cir. 2001) (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991) and Rose v. Clark, 478 U.S. 570, 577 (1986)). Accord United States v. Feliciano, 223 F.3d 102, 112 (2d Cir. 2000) (harmless error analysis applied to the court's voir dire of the jury outside the presence of the defendants).
In the habeas corpus context, a harmless error analysis requires the Court to consider "whether the error 'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The state, however, should not be put to the "arduous task [of a retrial] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error." Calderon v. Coleman, 525 U.S. 141, 146 (1998) (citations omitted). Case law is replete with instances where the absence of a defendant at the questioning of a juror was deemed to be harmless error. See, e.g., United States v. Cuchet, 197 F.3d 1318, 1321 (11th Cir. 1999); United States v.Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999); United States v. Pressley, 100 F.3d 57, 60-61 (7th Cir. 1996); United States v. Bertoli, 40 F.3d at 1398.
By the time the questioning occurred in this case, the verdict had already been taken so that there was no possibility that the defendant's absence at the questioning had any "effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. at 637. All the factual circumstances point to a lack of prejudice to the defendant as a result of his absence: the juror's concerns were obviously measured and appropriate to the circumstances; the other jurors were 18 unaware of her concerns until after the verdict; the verdict had already been taken; and there was simply no realistic theory under which the defendant's presence at the questioning of the juror could have resulted in an overturning of the verdict. In addition, the judge discussed with defense counsel at length the potential subjects of questioning (Tr. 493-504) and defense counsel was given an opportunity after the questioning to raise any further matters. (Tr. 509). For these reasons, the defendant suffered no actual prejudice from his absence and thus any error was harmless. Accord United States v. Brown, 571 F.2d at 987 ("Defense counsel zealously defended the interests of their clients, and there is nothing before us to indicate that they were any less vigilant at this conference. There was simply no 'reasonable possibility of prejudice' in the present case.") (citation omitted).
Conclusion
For the foregoing reasons, the undersigned recommends that Peralta's petition be denied.
Notice of Procedure for 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 have ten (10) days from service of this Report to file any 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 Harold Baer, Jr., 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Baer. The failure to file timely objections will result in a 19 waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).