Rivera v. Duncan

Full title: FRANKIE RIVERA, a/k/a Jose Abinacer, Petitioner, v. GEORGE DUNCAN…

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

Date published: Dec 11, 2001

00 Civ. 4923 (WHP) (AJP) (S.D.N.Y. Dec. 11, 2001)

Opinion

00 Civ. 4923 (WHP) (AJP)

December 11, 2001

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

To the Honorable William H. Pauley, III, United States District Judge:

Pro se petitioner Frankie Rivera, also known as Jose Abinacer ("Abinacer"), seeks a writ of habeas corpus from his 1997 conviction on two counts of first degree assault and one count of second degree criminal possession of a weapon, alleging that: (1) his appellate counsel rendered ineffective assistance by failing to raise a variety of issues on appeal (Dkt. No. 7: Am. Pet. ¶ 12(A)); and (2) his trial counsel rendered ineffective assistance by failing to request an expanded jury charge about eyewitness identification testimony (id. ¶ 12(B)).

For the reasons set forth below, Abinacer's petition should be DENIED.

FACTS

The State Trial

This case arises from a $20 heroin sale gone bad.

On the afternoon of March 28, 1995, described as a "nice day," Awilda Sandoval left her apartment to purchase heroin for her boyfriend, Edwin Torres, who was having withdrawal symptoms. (Sandoval: Trial Transcript ["Tr."] 205-07, 214; Torres: Tr. 421, 440-42, 450.) At Amsterdam Avenue and 136th Street, Sandoval encountered a drug dealer she knew named "House," and asked if he had "Good Job," the heroin brand Torres preferred. (Sandoval: Tr. 207-08, 211; Torres: Tr. 442.) House said that he did, and brought Abinacer over to Sandoval. (Sandoval: Tr. 208.) Sandoval was familiar with Abinacer, having previously "seen him about everyday [for] a period of about six or eight months," and later learned that his nickname was "Chi Chi." (Sandoval: Tr. 209, 310.)

Abinacer told Sandoval that he had "Good Job," and went inside a nearby building to retrieve it. (Sandoval: Tr. 210.) When Abinacer came out, Sandoval gave him $20 and he gave her two bags. (Sandoval: Tr. 210-11.) Sandoval noticed, however, that the brand was not "Good Job," and promptly complained to Abinacer. (Sandoval: Tr. 211.) Abinacer took the heroin back, told Sandoval to wait, and entered another building. (Sandoval: Tr. 211-12.) Moments later, Abinacer brushed past Sandoval as he left the building, refusing to give her either the heroin or the $20. (Sandoval: Tr. 212-13.) Sandoval, upset, cursed Abinacer. (Sandoval: Tr. 213-14.)

Sandoval returned to her apartment and told Torres what had happened. (Sandoval: Tr. 214-16; Torres: Tr. 442-44.) In an effort to retrieve the money, Torres approached "three guys" standing on the corner of 135th Street and Amsterdam Avenue, looking for "Chi Chi," and was directed to a video arcade at Amsterdam Avenue and 134th Street. (Sandoval: Tr. 217-18, 299; Torres: Tr. 444-45.)

When Torres reached the arcade, he saw Abinacer inside talking to House. (Torres: Tr. 446.) Torres knew Abinacer as "Chi Chi," and was familiar with his face, having previously seen him in the neighborhood "everyday, every other day," for about two years. (Torres: Tr. 446-48.) Torres confronted Abinacer, and they stood face-to-face at a distance of about four feet. (Torres: Tr. 448-50, 490.) Abinacer refused to return the $20, stating that Sandoval had been "nasty." (Torres: Tr. 448-49.) When an arcade employee told them to "take it outside," Torres and Abinacer continued talking face-to-face about four feet from each other on the sidewalk outside the arcade. (Torres: Tr. 449-51, 490.) After glancing up and down the street, Abinacer suddenly pulled a gun and began shooting at Torres. (Torres: Tr. 450-52.) Torres testified that Abinacer pointed the shots at his stomach and chest area. (Torres: Tr. 451, 495-96.)

Torres fell to the sidewalk after three shots, one of which hit him in the hip. (Torres: Tr. 451-52; Sandoval: Tr. 219-21.) Sandoval heard the shots and ran toward the scene of the shooting. (Sandoval: Tr. 219, 301.) As he stood over Torres, Abinacer looked at Sandoval (who was one-half block away) and shot at Torres three or four more times. (Torres: Tr. 452, 491-92; Sandoval: Tr. 220-24, 243, 246-48.) Torres does not know if the second barrage of shots hit him, although he did not lose consciousness. (Torres: Tr. 452-53.) Abinacer returned the gun to his waist and walked past Sandoval up 135th Street. (Torres: Tr. 453-54; Sandoval: Tr. 220, 228-29.)

Of the five to six shots fired (Alva: Tr. 323; Tropp: Tr. 339-40; Amato: Tr. 373-76), one lodged in Torres' right hip, another lodged in his shin, and a third passed entirely through his leg near his knee (Islam: Tr. 273-77). Because one of the bullets passed through Torres' body (causing both an entry and an exit wound), three bullets resulted in four wounds. (Islam: Tr. 274-76.) In addition, one shot hit Maria Alva, an innocent bystander who was standing across the street. (Alva: Tr. 317, 319, 321-22; Tropp: Tr. 336.) A single bullet passed entirely through Alva's thigh. (Scoli: Tr. 177-78, 181.) Alva heard five or six shots, but did not see who did the shooting. (Alva: Tr. 319-20, 323.) After she was shot, she turned around and saw a man "hopping on one foot." (Alva: Tr. 329-30.)

The police arrived almost immediately after the shooting. (Torres: Tr. 454-55; Sandoval: Tr. 225-26.) As Sandoval stood by Torres, she noticed Abinacer walking about one-half block away. (Sandoval: Tr. 226-27.) Sandoval and a detective gave chase, but Abinacer disappeared into 502 West 135th Street (Sandoval: Tr. 227-28), which was later determined to be Abinacer's home address (Torrellas: Tr. 403).

Sandoval told Officer Tropp immediately after the shooting that she "didn't know" who shot Torres. (Sandoval: Tr. 303.) After speaking to Torres, Officer Tropp listed the perpetrator on a written report as "unknown." (Tropp: Tr. 354, 361.) Officer Tropp, however, explained that a perpetrator's name is listed as "unknown" when the "true name is not 5 known," and that he also filled out the "nickname" section of the police report. (Tropp: Tr. 361.) Officer Tropp was precluded, however, from testifying that Torres told him that "Chi Chi" was the shooter. (Tropp: Tr. 357-61.)

At trial, both Sandoval and Torres positively identified Abinacer as the shooter. (Sandoval: Tr. 208; Torres: Tr. 446-47, 462.)

In July 1996, the police located Abinacer in Massachusetts, and he was returned to New York to face charges in connection with the shootings. (Torrellas: Tr. 398, 402.) Abinacer told the New York police during processing that his address was 502 West 135th Street. (Torrellas: Tr. 403.)

The defense, which called no witnesses, emphasized that the only evidence linking Abinacer to the shooting was the eyewitness testimony of two career criminals of questionable veracity. (E.g., Opening: Tr. 168-70.) Abinacer's trial counsel vigorously cross-examined Sandoval and Torres as to credibility. For example, defense counsel elicited from Sandoval that she had repeatedly lied to government officials about her income in order to obtain welfare benefits. (Sandoval: Tr. 250-56, 259-60, 288-92.) Defense counsel questioned Sandoval's claim that she had "only" shoplifted ten times in her life (Sandoval: Tr. 257-59), and that Torres inhaled, but did not inject, heroin (Sandoval: Tr. 286, 293). Defense counsel also questioned Sandoval about the extent of her and Torres' heroin habits and how they had the money to support their habits. (Sandoval: Tr. 285-86, 292-97.)

Abinacer's counsel cross-examined Torres in detail about his prior convictions, including for armed robbery. (Torres: Tr. 472-80, 482-86.) Defense counsel attacked Torres' 499-502); his apparent lies to the parole board (Torres: Tr. 480-82); inconsistencies about the size of his drug habit and how he obtained the money to pay for it (Torres: Tr. 467-69, 486-88, 498, 502-03); and his admitted lies to a hospital to obtain methadone (Torres: Tr. 498-502). Finally, in defense to the attempted murder charge, defense counsel cross-examined Torres with his grand jury testimony, which conflicted with his trial testimony that Abinacer aimed at Torres' chest and stomach. (Compare Torres: Tr. 451 with Tr. 491-94.)

During the course of the trial, Abinacer's counsel moved to exclude evidence on a number of grounds. For example, he requested that no mention be made of Abinacer's prior "uncharged crimes," including Abinacer's prior drug dealing. (Tr. 152-55.) The trial judge ordered that no reference be made to Abinacer's prior drug dealing, although evidence could be offered regarding the drug deal that gave rise to the shooting. (Tr. 155-58.)

Abinacer's counsel objected to the People's application to amend the indictment to include Abinacer's nickname, "Chi Chi." (Tr. 2-5.) Although the trial judge allowed the amendment (Tr. 4-5), it appears that the amended indictment including the nickname was never read to the jury.

Abinacer's counsel also objected to the admission of Abinacer's "pedigree" statement to the police regarding his nickname and New York address. (Tr. 107-10, 262-68, 382-99.) The trial court allowed testimony regarding the address, but excluded testimony regarding the nickname (Tr. 396-99), thus eliminating the only evidence, other than Torres' and Sandoval's testimony, that Abinacer's nickname was "Chi Chi." Defense counsel also succeeded in precluding Officer Tropp from testifying that, on the day of the shooting, Torres identified the shooter as "Chi Chi." (Tropp: Tr. 357-61.) Defense counsel thus excluded the only evidence that Sandoval and Torres knew the shooter, other than their testimony.

In summation, Abinacer's counsel continued to argue that the People's case relied solely on the word of two career criminals and heroin addicts with a history of deceit. He described their lies in detail, both in the past (lying to the welfare department, parole board, hospitals, etc.) and at trial (lying about their income, Torres' heroin addiction, etc.). (Summation: Tr. 507-12, 516-17.) Defense counsel claimed that Sandoval and Torres had deliberately framed Abinacer either to protect themselves or when pressured by the police. (Summation: Tr. 517, 526-27.) He asserted that both Torres and Sandoval initially told police that they did not know who shot Torres. (Summation: Tr. 512, 517.) He pointed out that Alva's description of a man hopping on one foot after the shooting did not jibe with Sandoval's or Alva's account. (Summation: Tr. 514.) Defense counsel also argued that, given Torres' withdrawal symptoms at the time of the shooting, none of his testimony about the day's events could be credited. (Summation: Tr. 575.) Finally, he pointed out that before the grand jury, Torres testified that Abinacer shot at Torres' leg, contradicting Torres' trial testimony that Abinacer shot at his chest and stomach. (Summation: Tr. 524.)

Beside attacking Sandoval and Torres, Abinacer's counsel also emphasized the prosecution's failure to offer the testimony of key witnesses (e.g., "House" and the arcade employee), and its failure to find eyewitnesses to a shooting on a "crowded street" at midday. (Summation: Tr. 513, 515-16, 518-22, 526, 530-31.) Indeed, defense counsel noted that the prosecution did not even call the detective who could verify Sandoval's story that the shooter ran into 502 West 135th Street. (Summati on: Tr. 513, 531.)

Verdict and Sentencing

The jury found Abinacer not guilty of second degree attempted murder, but found him guilty on the two counts of first degree assault (one count each as to Torres and Alva) and the one count of second degree weapons possession. (Tr. 596-97.) The trial judge imposed sentences of five to fifteen years on each of the three counts, with the two assault sentences consecutive to each other and to the two to six year sentence that Abinacer was serving on an unrelated matter, and the sentence for weapons possession to be served concurrently with the two assault convictions. (7/15/97 Sentencing Tr. at 11-12.) Abinacer's total sentence thus was ten to thirty years. (Id. at 12.)

Abinacer's State Post-Trial Proceedings and Initial Federal Habeas Corpus Petition Abinacer's C.P.L. § 440 Motion

On or about March 13, 1998, Abinacer's new counsel moved, pursuant to N Y C.P.L. § 440.10(1)(h), to vacate Abinacer's conviction on the ground that his trial counsel was ineffective for failing to request a jury charge that focused on the accuracy of the eyewitnesses' identification testimony. (Ex. A: Abinacer C.P.L. § 440.10 Motion at 4-7.)¹

1 Referenced exhibits are attached to the October 1, 2001 Affidavit of Assistant Attorney General Beth J. Thomas. (Dkt. No. 13.)

The trial court, by opinion dated April 7, 1998, denied Abinacer's C.P.L. § 440.10 motion. (Ex. B: 4/7/98 Order.) First, the trial court held that because the issue was

Abinacer's Direct State Appeal

On October 20, 1998, newly-assigned appellate counsel appealed Abinacer's conviction to the First Department, claiming two alleged errors: (1) that the trial court submitted to the jury an "annotated" verdict sheet containing the two victims' names, but failed to state that the sole purpose of the annotation was to distinguish between counts charging a violation of the same section of the law (Ex. C: Abinacer 1st Dep't Br. at 16-21); and (2) that the trial court imposed consecutive sentences for the two assault convictions even though the People failed to prove that the victims' injuries were caused by different bullets (id. at 21-29).

On February 9, 1999, Abinacer himself submitted a pro se supplemental appeal brief raising four additional arguments: that (1) trial counsel's waiver of Abinacer's right to be 10 present at voir dire sidebars was invalid; (2) Abinacer was deprived of his right to an official court interpreter; (3) the trial court erroneously admitted certain of Abinacer's pedigree statements, in violation of the notice requirements of C.P.L. § 710.30; and (4) the jury verdict finding that Maria Alva's gunshot wound amounted to serious physical injury was against the weight of the evidence. (Abinacer Pro Se 1st Dep't Br.)

The First Department affirmed Abinacer's conviction on June 3, 1999. People v. Rivera, 262 A.D.2d 31, 692 N.Y.S.2d 313 (1st Dep't 1999). (See Ex. E.) The First Department, inter alia, rejected Abinacer's theory that, because the same bullet may have caused injuries to both victims, consecutive sentences were unwarranted: "A review of the trial evidence, including evidence of the firing of five to six shots, each of which constituted a separate act, as well as the circumstances surrounding the shooting of the two individuals, establishes that there was a sufficient factual basis for the court to conclude that the victims were wounded by different bullets, thereby supporting the imposition of consecutive sentences in connection with the assault convictions." People v. Rivera, 262 A.D.2d at 31, 692 N.Y.S.2d at 313.²

2 The First Department also held that Abinacer failed to preserve his claim regarding the annotated jury sheet, and that the claim, in any event, had no merit. Id. Finally, the First Department stated that it had considered and rejected Abinacer's remaining claims, including those contained in his pro se supplemental brief. Id.

On June 23, 1999, Abinacer's appellate counsel sought leave to appeal to the New York Court of Appeals. (Ex. F: 6/23/99 Letter.) Counsel's letter asked the Court of Appeals "to consider and review the issues raised in appellant's brief." (Id.) In a supplemental

On August 10, 1999, the New York Court of Appeals denied leave to appeal. People v. Abinacer, 93 N.Y.2d 1013, 697 N.Y.S.2d 572 (1999); People v. Rivera, 93 N.Y.2d 1025, 697 N.Y.S.2d 584 (1999). (See Ex. G.)

Abinacer's Initial Federal Habeas Corpus Petition

On or about July 6, 2000, Abinacer filed a pro se federal habeas corpus petition raising three grounds, including ineffective assistance of appellate counsel. (Dkt. No. 1: Pet.) The Court directed Abinacer to demonstrate that his ineffective assistance of counsel claim had been raised and exhausted in state court. (Dkt. No. 3.) At Abinacer's request, the Court dismissed his habeas petition without prejudice to allow him to exhaust his claims in state court. (Dkt. No. 4:9/7/00 Order.)

Abinacer's First Department Coram Nobis Application

Abinacer applied to the First Department on or about December 14, 2000 for a writ of error coram nobis on grounds of ineffective assistance of appellate counsel. (Ex. H.) In May 2001, while Abinacer's coram nobis application was still pending, Abinacer also sought leave from the First Department to appeal the trial court's April 4, 1998 order denying his C.P.L. § 440.10 motion. (Ex. J.) On June 28, 2001, the First Department denied both Abinacer's coram nobis petition and his application for leave to appeal the denial of his C.P.L. § 440.10 motion. People v. Rivera, 284 A.D.2d 1022, 728 N.Y.S.2d 729 (1st Dep't 2001) (table). (Ex. L.) The First Department's decision contained no explanation other than citing 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). (Ex. L.)

Abinacer's Current Federal Habeas Corpus Petition

On or about July 23, 2001, Abinacer filed an amended federal habeas corpus petition asserting ineffective assistance of both trial and appellate counsel. (Dkt. No. 7: Am. Pet.) The amended petition asserts that Abinacer's appellate counsel was ineffective in failing to raise the following points on appeal: (A) that the trial judge erred by imposing consecutive sentences on the two assault convictions even though the mental states for the two convictions were identical; (B) that the trial judge erred by not holding a suppression hearing regarding statements Abinacer made to the police about his home address; and that Abinacer's trial counsel provided ineffective assistance by failing to: (C) request an identification charge; (D) object to the trial court's failure to instruct the jury in a preliminary statement that the indictment did not constitute evidence and the defendant was presumed innocent; (E) request a charge that no adverse inference could be drawn from Abinacer's failure to testify; (F) request a missing witness instruction; (G) object to the trial court's alleged "conscience of the community" charge; (H) object to the introduction of evidence that Abinacer had committed certain uncharged crimes and that drugs were sold in the area of the shooting; and (I) impeach the prosecution's principal eyewitnesses to the shooting. (Am. Pet. ¶ 12(A); Dkt. No. 6: Abinacer Br. at 16-35; see also Dkt. No. 15: Abinacer Reply Br. at 1-11.) Abinacer's amended petition further asserts that Abinacer's trail counsel was ineffectuve in failing to request an identification charge (Am. Pet ¶ 12(B); Abinacer Br. at 35-39.)

The State answered Abinacer's petition on October 1, 2001, and conceded that his claims were (1) timely, and (2) properly exhausted in state court. (Dkt. No. 12: State Br. at 8-11.)³

3 Abinacer's ineffective trial counsel claim (Am. Pet. ¶ 12(B)) may actually be either unexhausted but deemed exhausted and procedurally barred since he did not raise it on direct appeal, see, e.g., Bond v. Walker, 68 F. Supp.2d 287, 295-98 (S.D.N Y 1999) (McKenna, D.J. Peck, M.J.) ( cases cited therein), aff'd, 242 F.3d 364 (2d Cir. 2000), or barred under the adequate and independent state (procedural) ground doctrine, see, e.g., Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.) ( cases cited therein). The State, however, has waived any such defect. See, e.g., Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 480 (1997) ("procedural default is normally a 'defense' that the State is 'obligated to raise' and 'preserv[e]' if it is not to 'lose the right to assert the defense thereafter'") (quoting Gray v. Netherland, 518 U.S. 152, 166, 116 S.Ct. 2074, 2082 (1996)). In any event, since the Court needs to analyze the ineffective trial counsel claim as part of the exhausted ineffective appellate counsel claim, the Court will review the ineffective trial counsel claim on the merits.

ANALYSIS

I. APPLICABLE LEGAL PRINCIPLES

A. The AEDPA Review Standard

Before the Court can determine whether Abinacer is entitled to federal habeas relief, the Court must address: (1) the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA"); and (2) whether the state court adjudicated Abinacer's claims on the merits so that the AEDPA review standard applies.

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).⁴ The AEDPA imposed a more stringent review standard, as follows:

4 Accord, e.g., 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.); 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.).

(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).

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 1519.⁵ 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 1523.⁶

5 Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 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); Rodriguez v. Lord, 2001 WL 1223864 at *16; James v. People, 2001 WL 706044 at *11-12; Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22.

6 Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001); Rodriguez v. Lord, 2001 WL 1223864 at *16; James v. People, 2001 WL 706044 at *12; Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).

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 1519-20.⁷

7 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28; Rodriguez v. Lord, 2001 WL 1223864 at *16; James v. People, 2001 WL 706044 at *12; Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 2000 WL 684275 at *10.

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 but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. 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. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1522.⁸

8 Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29; Rodriguez v. Lord, 2001 WL 1223864 at *16; James v. People, 2001 WL 706044 at *12; Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22.

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 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184; Rodriguez v. Lord, 2001 WL 1223864 at *17.

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 Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).⁹

9 The Second Circuit "recognize[d] that a state court's explanati on of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application of 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 Aparicio v. Artuz, 269 F.3d at 93; Rodriguez v. Lord, 2001 WL 1223864 at *17 n. 39.

B. The State Court's Decision As To Ineffective Appellate Counsel Was On The Merits; The Court Need Not Decide Whether The State Court's Decision As To Ineffective Trial Counsel Was Procedural Or On the Merits

In denying Abinacer's application for coram nobis relief regarding his claims for ineffective assistance of appellate counsel, the First Department offered no explanation other than a citation to 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). (Ex. L.) The cited portion of De La Hoz states that, in light of the "ever burgeoning number of applications which raise a claim of ineffective assistance of appellate counsel," the "burden lies with those raising the issue to rebut the presumption that counsel has been effective. The mere existence of an unraised issue will not suffice. A defendant must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, (summary coram nobis decision denying ineffective appellate counsel claim considered an adjudication on the merits because no indication "that the claims were decided on anything but substantive grounds"); Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (same); Shaw v. Artuz, 99 Civ. 9754, 2001 WL 1301735 at *6 (S.D.N.Y. Oct. 19, 2001) (same).

The trial court's decision on Abinacer's C.P.L. § 440 motion claim of ineffective trial counsel found that claim procedurally barred (because it could have been raised on direct appeal), but then stated that "even if this court has the jurisdiction to review the defendant's claim — and it does not," the claim still fails on the merits. (Ex. B: 4/7/98 Order at 1.) If the trial court's decision is considered as "relian[t] upon procedural grounds," Sellan v. Kuhlman, 261 F.3d at 314, then the AEDPA review standard would not apply and "we [would] apply the pre-AEDPA standards, and review de novo the state court disposition of the petitioner's federal constitutional claims." Aparicio v. Artuz, 269 F.3d at 93. If the trial court's decision is considered to be "on the merits" because of the alternate holding, the deferential AEDPA review standard would apply. The Second Circuit has not decided the appropriate AEDPA review standard in such a case — which is not surprising, because usually such a state court holding would preclude any federal habeas review. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) ("federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim") (citation omitted), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.) ( cases cited therein). Here, the State waived the procedural default. (See page 13 fn. 3 above.) For the reasons discussed below (Point II. C), under either review standard, Abinacer's ineffective trial counsel claim lacks merit, and thus the Court need not decide what review standard applies.

C. The Strickland v. Washington Standard On Ineffective Assistance of Counsel

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. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064.

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."

Id. at 689, 104 S.Ct. at 2065 (citation omitted).¹⁰

10 Accord, e.g., Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Diaz v. Mantello, 115 F. Supp.2d 411, 420 (S.D.N.Y. 2000); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N Y May 25, 2000) (Peck, M.J.); 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.).

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 2068.¹¹

11 See also, e.g., 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); Ennis v. Walker, 2001 WL 409530 at *16; Diaz v. Mantello, 115 F. Supp.2d at 420; Fluellen v. Walker, 2000 WL 684275 at *11; Dukes v. McGinnis, 2000 WL 382059 at *8; Cruz v. Greiner, 1999 WL 1043961 at *16; Lugo v. Kuhlmann, 68 F. Supp.2d at 370-71; Santos v. Greiner, 1999 WL 756473 at *7-8; Franza v. Stinson, 58 F. Supp.2d at 134; Torres v. Irvin, 33 F. Supp.2d at 277; Boyd v. Hawk, 965 F. Supp. at 449.

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 trail and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. 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."Id. at 697, 104 S. Ct. at 2069.¹²

12 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000); Ennis v. Walker, 2001 WL 409530 at *16; Diaz v. Mantello, 115 F. Supp.2d at 420; Fluellen v. Walker, 2000 WL 684275 at *11; Dukes v. McGinnis, 2000 WL 382059 at *8; Cruz v. Greiner, 1999 WL 1043961 at *16; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Santos v. Greiner, 1999 WL 756473 at *8; Franza v. Stinson, 58 F. Supp.2d at 134; Torres v. Irvin, 33 F. Supp.2d at 277; Boyd v. Hawk, 965 F. Supp. at 450.

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 2066.¹³

13 Accord, e.g., Ennis v. Walker, 2001 WL 409530 at *16; Fluellen v Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *8; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Santos v. Greiner, 1999 WL 756473 at *8; Franza v. Stinson, 58 F. Supp.2d at 134; see also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constituti on 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 (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 recently 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 191, 199 (2d Cir. 2001); accord, e.g., Ennis v. Walker, 2001 WL 409530 at *16.

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 764.¹⁴ 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.¹⁵ 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.

14 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); 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; Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y. Sept. 19, 1997); 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.).

15 The Court notes that seven of Abinacer's claims of ineffective appellate counsel are predicated on assertions of ineffective trial counsel. Arguably, although this Court must apply the federal standard to the ineffective appellate counsel claims, it should evaluate the underlying trial counsel's performance under the state standard for ineffective counsel. See People v. Henry, 95 N.Y.2d 563, 565-66, 721 N.Y.S.2d 577, 578-79 (2000) (New York law rejects Strickland standard in favor of "meaningful representation" standard). The question is, after all, whether Abinacer's appellate counsel erred by failing to appeal in state court the ineffective trial counsel claims. In other words, this Court should determine whether an appeal on grounds of ineffective trial counsel would have succeeded before the New York Court of Appeals under that court's standards. "The federal constitutional right to effective assistance of counsel may be violated by an attorney's failure to raise a meritorious state law claim or defense." Claudio v. Scully, 982 F.2d at 803-05 n. 5; see also Mayo v. Henderson, 13 F.3d at 533-36 (appellate counsel rendered ineffective assistance under Strickland by not raising argument based on state disclosure rule in state appellate court).
Nevertheless, in adjudicating a claim of ineffective state appellate counsel predicated on ineffective trial counsel, the Second Circuit recently applied the Strickland standard to both trial and appellate counsel. See Aparicio v. Artuz, 269 F.3d at 95, 99-100 (citing United States v. Brooks, 82 F.3d 50, 54 (2d Cir.), cert. denied, 519 U.S. 907, 117 S.Ct. 267 (1996), United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992), for the Strickland standard applicable to trial counsel); see also, e.g., Wright v. Duncan, 00 CV 530, 2001 WL 761193 at *4 (E.D.N.Y. July 5, 2001) (habeas court dismissed ineffective trial counsel claims under Strickland standard, and dismissed independent claim of ineffective appellate counsel because based on ineffective trial counsel claims); Flores v. Keane, 94 Civ. 5096, 2001 WL 669152 at *8-10 (S.D.N.Y. June 13, 2001) (habeas court dismissed claim for ineffective appellate counsel predicated on failure to raise ineffective trial counsel claim, because trial counsel was not ineffective under Strickland standard); Franza v. Stinson, 58 F. Supp.2d at 148-51 (where petitioner asserted ineffective assistance of appellate counsel based on failure to appeal claim of ineffective trial counsel, habeas court analyzed predicate ineffective trial counsel claim under Strickland standard); Geraci v. Senkowski, 23 F. Supp.2d 246, 254-55 (E.D.N.Y. 1998) ("petitioner's claim that his trial counsel rendered ineffective assistance of counsel by failing to call [a witness] is without merit; it follows that his claim that his appellate counsel rendered ineffective assistance by failing to raise the [ineffective trial counsel] issue on appeal is also meritless."), aff'd, 211 F.3d 6 (2d Cir.), cert. denied, 531 U.S. 1018, 121 S.Ct. 581 (2000); but see Shaw v. Artuz, 99 Civ. 9754, 2001 WL 1301735 at *7 (S.D.N Y Oct 19, 2001) (analyzing ineffective appellate counsel claim under Strickland, but appearing to analyze predicate ineffective trial counsel claim under state's "meaningful representation" standard); Hernandez v. Edwards, 98 Civ. 6704, 2001 WL 575594 at *7 (S.D.N.Y. May 29, 2001) (applying Strickland standard to petitioner's federal claim of ineffective appellate counsel, but evaluating the predicate trial counsel's performance under the state Henry "meaningful representation" standard). Applying the state standard would not change the result in this case, as trial counsel's performance more than satisfied the State "meaningful representation" requirement.

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)).¹⁶ 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 371-72.¹⁷ 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 533.¹⁸

16 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; Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.

17 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.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; see also, e.g., Dukes v. McGinnis, 2000 WL 382059 at *9; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.

18 See also, e.g., Jackson v. Leonardo, 162 F.3d at 85; Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 372; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.

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."); Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *12.¹⁹

19 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); Ehinger v. Miller, 942 F. Supp. at 928, 934; 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 (E.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)); see also, e.g., Sellan v. Kuhlman, 261 F.3d at 315. "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. The question before this Court, therefore, is whether the First Department's denial of Abinacer's ineffective appellate counsel claims involved an "unreasonable application" of the legal principles established by the Supreme Court in Strickland and its progeny.

II. THE FIRST DEPARTMENT'S DENIAL OF ABINACER'S INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIMS WAS NOT AN UNREASONABLE APPLICATION OF THE STRICKLAND STANDARD

Abinacer's amended petition asserts that Abinacer's appellate counsel was ineffective in failing to raise on appeal: (A) that the trial judge erred by imposing consecutive sentences on the two assault convictions even though the mental states for the two convictions were identical; and (B) that the trial judge erred by not holding a suppression hearing regarding statements Abinacer made to the police about his home address. Abinacer also faults appellate counsel for not asserting on appeal that trial counsel provided ineffective assistance by failing to: (C) request an expanded eyewitness identification charge; (D) object to the trial court's failure to instruct the jury in a preliminary statement that (1) the indictment did not constitute evidence and (2) the defendant was presumed innocent; (E) request a charge that no adverse inference could be drawn from Abinacer's failure to testify; (F) request a missing witness instruction; (G) object to the trial court's alleged "conscience of the community" charge; (H) object to the introduction of evidence that Abinacer had committed certain uncharged crimes and that drugs were sold in the area of the shooting; and (I) impeach the prosecution's principal eyewitnesses to the shooting. (Dkt. No. 7: Am. Pet. ¶ 12(A); Dkt. No. 6: Abinacer Br. at 16-35; Dkt. No. 15: Abinacer Reply Br. at 1-11.) Finally, Abinacer's amended petition asserts an independent claim for ineffective assistance of trial counsel based on trial counsel's failure to request an expanded eyewitness identification charge (Am. Pet. ¶ 12(B); Abinacer Br. at 35-39), which this Court will analyze in conjunction with the related ineffective appellate counsel claim. See Point II. C, below.

A. Consecutive Sentences for the Assaults on Torres and Alva

On direct appeal, Abinacer's appellate counsel argued that because it was "more than possible that one bullet hit Torres, passed through his leg and struck Alva," the trial court erred by imposing consecutive sentences on the two assault convictions. (Ex. C: Abinacer 1st Dep't Br. at 22.) Specifically, of the five to six shots fired, two lodged in Torres' body and a third passed entirely through Torres' leg. (Id. at 24-25; see Islam: Tr. 273-77; see page 4 above.) If the same bullet had injured both Torres and Alva, then the consecutive sentences imposed on Abinacer for the two assault convictions would run afoul of Penal Law § 70.25(2), which bars the imposition of consecutive sentences "on a person for two or more offenses committed through a single act or omission."²⁰

20 Penal Law § 70.25(2) provides:

When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

The First Department rejected appellate counsel's argument, holding that (1) each shot "constituted a separate act" under Penal Law § 70.25, and (2) the evidence provided a "sufficient factual basis" to support a finding that "the victims were wounded by different bullets, thereby supporting the imposition of consecutive sentences." People v. Rivera, 262 A.D.2d 31, 31, 692 N.Y.S.2d 313, 313 (1st Dep't 1999). Subsequently, Abinacer's appellate counsel applied for leave to appeal, emphasizing the "single bullet" treory, and atempting to frame a novel question of New York law in order to persuade the Court of Appeals to hear the appeal. (Ex. F: 7/19/99 Letter to Court of Appeals.) The Court of Appeals declined the invitation. People v. Abinacer, 93 N.Y.2d 1013, 697 N.Y. So.2d 572 (1999); People v. Rivera, 93 N.Y.2d 1025, 697 N.Y.S.2d 584 (1999).

Abinacer now charges that his appellate counsel erred by appealing under the wrong category of Penal Law § 70.25(2). (Dkt. No. 6: Abinacer Br. at 17-19; Dkt. No. 15: Abinacer Reply Br. at 5-6.) According to Abinacer, if a single bullet aimed at Torres caused injury to both Torres and Alva, then the "intent stemming from the Torres assault was also the material element of the Alva assault count." (Abinacer Br. at 18.) Thus, instead of citing that portion of Penal Law § 70.25(2) barring consecutive sentences "for two or more offenses committed through a single act or omission," Abinacer claims that appellate counsel should have cited the second portion, barring consecutive sentences where an act or omission constitutes both one of the offenses and a material element of the other. (Abinacer Br. at 18 (citing People v. Catone, 65 N.Y.2d 1003, 1004-05, 494 N.Y.S.2d 97, 97 (1985)).

Abinacer is correct that his intent to shoot Torres satisfied the intent element of his conviction for assaulting Alva. See Penal Law § 120.10(1) ("A person is guilty of assault in the first degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . .") (emphasis added); see also, e.g., People v. Fernandez, 88 N.Y.2d 777, 781, 650 N.Y.S.2d 625, 628 (1996) ("The doctrine of 'transferred intent' serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other 'lucky mistake,' the intended target was not the actual victim"). He errs, however, in describing the Torres assault as merely a "material element" of the Alva assault. If the same bullet injured both victims then the two offenses were "committed through a single act," Penal Law § 70.25(2), and appellate counsel appealed under the appropriate category of Penal Law § 70.25(2).²¹ See, e.g., People v. McFadden, 180 A.D.2d 825, 826-27, 580 N.Y.S.2d 406, 407 (2d Dep't) (concurrent, rather than consecutive, sentences imposed where single bullet caused injuries to two victims), appeal denied, 79 N.Y.2d 1004, 584 N.Y.S.2d 458 (1992); People v. Luster, 148 A.D.2d 305, 306, 538 N.Y.S.2d 273, 274 (1st Dep't) (same), appeal denied, 74 N.Y.2d 666, 543 N.Y.S.2d 409 (1989). If, however, different bullets hit Torres and Alva, then consecutive sentences were appropriate under New York law, even if Abinacer's intent with all the shots was to hit Torres. See, e.g., People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 256 (1984) (consecutive sentences upheld; "although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate 'acts' which caused the deaths of the owner and the clerk (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other.").²²

21 Abinacer also is wrong on the facts. He asserts that a total of five shots were fired, four of which hit Torres and two of which hit Alva. (Abinacer Br. at 17-19 n. 3.) Under this scenario, at least one of the bullets that hit Alva must have "necessarily struck Torres first." (Id. at n. 3.) To the contrary, the evidence left open the possibility that six shots were fired. (Alva: Tr. 323.) But even if there only were five shots, Abinacer's factual argument fails. Although Torres sustained four wounds, they were caused by only three bullets, because two wounds were the result of a "through and through" shot. (Islam: Tr. 274-76.) And, although Alva sustained two wounds, they were caused by one bullet, again because the shot was "through and through." (Scoli: Tr. 177.) Thus, even if only five shots were fired, there was sufficient evidence to support a finding that separate bullets injured Torres and Alva.

22 Accord, e.g., People v. Saulters, 255 A.D.2d 896, 896, 682 N.Y.S.2d 740, 741 (4th Dep't) ("Because defendant fired several shots into the car and because there is no proof and no contention by defendant that the same shot injured both complainants we conclude that defendant was properly sentenced to consecutive sentences . . ."), appeal denied, 92 N.Y.2d 1038, 684 N.Y.S.2d 503 (1998); People v. Sumpter, 203 A.D.2d 605, 605, 610 N.Y.S.2d 614, 614 (2d Dep't) ("The defendant fired two gunshots, with each bullet killing a separate victim. Although the shots were fired in rapid succession, and were part of the same transaction, the court did not improvidently exercise its discretion in imposing consecutive sentences since the defendant committed separate acts neither of which was a material element of the other."), appeal denied, 84 N.Y.2d 833, 617 N.Y.S.2d 153 (1994).

The sine qua non of both theories — Abinacer's "intent" theory and his appellate counsel's "single bullet" theory — is that Torres and Alva were injured by the same bullet. The First Department flatly rejected appellate counsel's single bullet argument, holding that the evidence provided a "sufficient factual basis" to support a finding that "the victims were wounded by different bullets, thereby supporting the imposition of consecutive sentences." People v. Rivera, 262 A.D.2d at 31, 692 N.Y.S.2d at 313. There is no reason to think that the First Department or the New York Court of Appeals would have responded more positively to Abinacer's weaker "intent" argument that could not prevail if, as the courts found, the evidence supported a finding that Torres and Alva were injured by different bullets.

Accordingly, (1) appellate counsel was not objectively unreasonable in failing to advance the theory now offered by Abinacer, and (2) no prejudice resulted from appellate counsel's action, as there was no reasonable probability that Abinacer's theory would have fared any better than the theory advanced by appellate counsel. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 371-72, 113 S.Ct. 838, 844 (1993) (unlike the performance determination, the prejudice analysis may be made with the benefit of hindsight); McKee v. United States, 167 F.3d 103, 106-07 (2d Cir. 1999) (same); Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir.) (same), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

B. Abinacer's Pedigree Information

During arrest processing, Abinacer gave his address to the booking detective as 502 West 135th Street. (Torrellas: Tr. 403.) Ultimately, the evidence of his address was inculpatory, because Sandoval testified that she saw the shooter run into 502 West 135th Street. (Sandoval: Tr. 227-28.) Abinacer's trial counsel requested a suppression hearing, arguing that the police had improperly elicited the address as an "element of proof" at trial. (Tr. 107-10, 262-68, 382-99.)

Abinacer claims that his appellate counsel erred by not raising on appeal the trial court's refusal to hold a suppression hearing regarding the "voluntariness" of the address statement. (Dkt. No. 6: Abinacer Br. at 28-30; Dkt. No. 15: Abinacer Reply Br. at 8-9.) Abinacer's claim is meritless.

C.P.L. § 710.60 mandates that a Huntley suppression hearing²³ be held whenever (1) a defendant claims that his statement to police was involuntary, and (2) the court is unable to rule summarily on certain statutorily enumerated grounds. See, e.g., People v. Weaver, 49 N.Y.2d 1012, 1013, 429 N.Y.S.2d 399, 399 (1980); People v. Clemons, 166 A.D.2d 363, 365, 561 N.Y.S.2d 425, 427 (1st Dep't 1990).

23 People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965).

This rigid procedure need not be followed, however, where the statements were made in response to routine police "booking" questions requesting the defendant's name, address, and similar "pedigree" information:

Because responses to routine booking questions — pedigree questions, as we have referred to them — are not suppressible even when obtained in violation of Miranda, defendant lacks a constitutional basis upon which to challenge the voluntariness of his statement and where there is no question of voluntariness, the People are not required to serve defendant with notice. Because routine administrative questioning by the police presumptively avoids any grounds for challenging the voluntariness of statements given in response to those questions, notice of such statements is not required.

People v. Rodney, 85 N.Y.2d 289, 293, 624 N.Y.S.2d 95, 97-98 (1995) (citations omitted) (in drug prosecution, defendant's response to police booking inquiry as to his employment, that he was "in sales," held admissible and not subject to a suppression hearing).²⁴ Under this rule, the "fact that [a] statement prove[s] to be inculpatory [dows]not destroy its pedigree status." People v. Perez, 198 A.D.2d 540, 541-42, 603 N.Y. So.2d 197, 198 (3d Dep't 1993 (trial court did not err in denying suppression hearing on statement made by defendant during booking process that he lived at a particular address), appeal denied, 82 N.Y.2d 929, 610 N.Y.S.2d 181 (1994).²⁵ Indeed, in Perez, as here, the trial court did not hold a suppression hearing but at trial "heard defense counsel's arguments and the evidence at trial and properly admitted the pedigree statement over defendant's objections." Id. at 542, 603 N.Y.S.2d at 198.

24 Accord, e.g., People v. Acevedo, 258 A.D.2d 140, 143, 695 N.Y.S.2d 572, 574 (2d Dep't) (defendant's statement "that he sometimes resided in the apartment where drugs were recovered was pedigree information . . . not subject to suppression" for lack of Miranda warning), appeal denied, 94 N.Y.2d 819, 702 N.Y.S.2d 589 (1999); People v. Johnson, 253 A.D.2d 702, 703, 679 N.Y.S.2d 361, 362 (1st Dep't) ("Routine pedigree questioning serves important administrative purposes, and warnings pursuant to Miranda . . . are not required."), appeal denied, 92 N.Y.2d 1034, 684 N.Y.S.2d 499 (1998); People v. Burks, 227 A.D.2d 905, 905, 643 N.Y.S.2d 796, 797 (4th Dep't) ("admissions that defendant resided at the home where the drug transactions occurred, fall within the pedigree exception"), appeal denied, 88 N.Y.2d 981, 649 N.Y.S.2d 387 (1996); People v. Thomas, 195 A.D.2d 301, 301-02, 600 N.Y.S.2d 11, 12 (1st Dep't) (statement made by defendant to police during processing that he was unemployed was not subject to suppression, despite its inculpatory value), appeal denied, 82 N.Y.2d 904, 610 N.Y.S.2d 171 (1993); People v. Miller, 123 A.D.2d 721, 721, 507 N.Y.S.2d 409, 410 (2d Dep't 1986) ("testimony that the defendant gave a fictitious name to the arresting officers . . . was of a pedigree nature and therefore not properly subject to a motion to suppress"), appeal denied, 70 N.Y.2d 933, 524 N.Y.S.2d 685 (1987).

25 Pedigree statements bypass not only Miranda restrictions, but also the absolute prohibition against interrogating an indicted defendant outside the presence of his attorney. See, e.g., People v. Settles, 46 N.Y.2d 154, 164-65, 412 N.Y.S.2d 874, 880 (1978) ("Should the police desire to have any dealings with an indicted defendant, except of course in connection with such ministerial matters as pedigree declarations and his processing as an arrestee, they must do so in the presence of an attorney.").

The pedigree exception does have limits. "[T]he People may not rely on the pedigree exception if the [booking] questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case." People v. Rodney, 85 N.Y.2d at 293, 624 N.Y.S.2d at 98; see also, e.g., People v. Hester, 161 A.D.2d 665, 666, 556 N.Y.S.2d 97, 98 (2d Dep't) ("The test for suppression is not whether the information is inculpatory but whether the police were trying to inxulpate defendant or merely processing him.'") citation omitted), appeal denied, 76 N.Y.2d 858, 560 N.Y. So.2d 998 (1990). Based on this line of cases, Abinacer's counsel argued that the booking detective, who knew that the shooter had run into a particular address, asked Abinacer questions about his address with the specific intention of eliciting an inculpatory response. (Tr. 107-10, 262-68.) Trial counsel requested a suppression hearing to determine the admissibility of the pedigree address statement. (Id.)

Yet, rather than refusing this hearing request, as Abinacer avers, the trial court heard testimony, outside the jury's presence, from the booking detective. (Tr. 382-92.) The detective testified that his inquiry into Abinacer's address reflected standard booking procedure. (Tr. 389.) He further testified that, although Abinacer was arrested in Massachusetts, the detective simply asked him for his address, rather than his "New York address." (Tr. 392.) After hearing counsels' arguments and reviewing relevant precedent (Tr. 392-96), the trial court orally rendered findings of fact and conclusions of law pursuant to C.P.L. § 710.60(6) admitting the detective's testimony regarding Abinacer's address statement (Tr. 396-99).²⁶

26 As part of the same suppression hearing, however, the trial court held inadmissible Abinacer's pedigree statement that his nickname was "Chi Chi." (Tr. 398-99.) The trial court reasoned that, unlike the detective's pedigree question as to Abinacer's address, the pedigree question as to Abinacer's nickname seemed designed to elicit "an additional element of proof" as to the shooter's identity. (Tr. 398.)

While Abinacer's brief attacks the fact that the trial court did not hold a pre-trial suppression hearing, he does not indicate how that prejudiced him, except by arguing that the trial court's suppression hearing during trial reached the wrong result. (See Abinacer Br. at 28-30.) The trial court's ruling, however, was correct under New York's pedigree line of cases. Because the trial court ruled based on an appropriate suppression hearing held outside of the jury's presence during trial, Abinacer cannot fault his appellate counsel for not raising on appeal the lack of a pretrial suppression hearing. Nor can Abinacer fault appellate counsel for not challenging the trial judge's conclusion, which clearly was correct under New York's pedigree case law. Appellate counsel therefore was not ineffective.

C. Expanded Eyewitness Identification Charge

Throughout the trial, Abinacer's counsel followed a strategy of questioning the credibility of the only two persons, Sandoval and Torres, who identified Abinacer as the shooter. (See pages 5-7 above.) Abinacer asserts an independent claim for ineffective assistance of trial counsel based on trial counsel's failure to request an expanded eyewitness identification charge (Tr. 415). (Dkt. No. 6: Abinacer Br. at 35-39; Dkt. No. 15: Abinacer Reply Br. at 9-11.) Abinacer also asserts an ineffective assistance of appellate counsel claim predicated on the failure to raise on appeal a claim of ineffective trial counsel. (Abinacer Br. at 19-21, 35-39.) Neither of these claims has merit.

In Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001), the Second Circuit confronted precisely the situation presented here — a habeas petitioner claiming that trial counsel was ineffective for failing to request an expanded identification charge. The second Circuit held that "when a trial court's instruction is legally correct as given, the failure to request an additional instruction does not constitute deficient performance."Id. at 99.²⁷

27 See also, e.g., United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992) (failure to request instructions did not constitute ineffective counsel, because the court's instructions on those topics "were correct as given"), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992); 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); 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); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *22 (S.D.N.Y. Ap. 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."); Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *19 (E.D.N.Y. Jan. 3, 2001) (because "court committed no error in its jury charges, it follows that [petitioner's] defense counsel was not constitutionally ineffective by failing to object"); 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 failure to object 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); People v. Brickle, 244 A.D.2d 700, 702, 664 N.Y.S.2d 652, 654 (3d Dep't 1997) (because "general, rather than expanded, charge given on identification" was not legal error, the failure to object to it was not ineffective counsel), appeal denied, 91 N.Y.2d 889, 669 N.Y.S.2d 3 (1998).

Guided by that standard, the Second Circuit in Aparicio found that, because the charges were not objectionable under New York law, counsel's failure to object to the charges did not constitute ineffective counsel:

The New York Court of Appeals has held that, although expanded identification instructions are preferable, especially when there is a close question of identity, the failure to give such an instruction does not constitute reversible error. A trial judge who gives a "general instruction on weighing witnesses' credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law." The decision whether or not to give an expanded instruction is left in the sound discretion of the trial judge.

Measured against these standards, the trial court's decision not to include an additional cautionary instruction on eyewitness testimony was not erroneous. The charge instructed the jury to assess the credibility of the witnesses. Furthermore, the trial judge repeatedly instructed the jury that they had to conclude beyond a reasonable doubt that the defendant was the perpetrator of every element of an offense before they could convict. Thus, the charge sufficed as "an accurate statement of the law." Because, under the circumstances, the jury instructions were not improper, the failure of Petitioner's trial counsel to object or request an additional instruction was not objectively unreasonable.

Aparicio v. Artuz, 269 F.3d at 99-100 (emphasis added citations to N Y cases omitted).

The jury charge in this case was similarly unobjectionable, instructing the jury (1) to assess the credibility of the witnesses, and (2) that in order to convict, the jury had to conclude beyond a reasonable doubt that Abinacer was the perpetrator of every element of the crime. (E.g., Tr. 564-69.) Because the trial judge's instructions gave an "accurate statement of the law," his charge was not subject to objection, and trial counsel cannot be faulted for failing to request additional charges. See, e.g., Aparicio v. Artuz, 269 F.3d at 99-100.

Even were the standard for ineffectiveness less forgiving towards counsel, however, Abinacer would still have no claim, because trial counsel employed a perfectly legitimate trial strategy. Unlike the situation in Aparicio, the facts here did not support a claim of mistaken identification. Both Sandoval and Torres testified that they knew Abinacer from the neighborhood. Sandoval testified that, although she did not know Abinacer's actual name at the time of the incident, she was familiar with Abinacer's face, as she had "seen him about everyday" for "a period of about six or eight months" prior to the shooting. (Sandoval: Tr. 209.) Torres knew Abinacer as "Chi Chi," and was familiar with his face, as he had seen him in the neighborhood "[e]veryday, every other day," for about two years prior to the shooting. (Torres: Tr. 446-48.)²⁸ Thus, this was not a case where the victim or an eyewitness identified an unknown assailant based on a fleeting glimpse during the crime.²⁹ Under these facts, focusing on the eyewitnesses' credibility, rather than their reliability, was a reasonable trial strategy. See, e.g., Irizarry v. Keane, No. CV-91-4610, 1992 WL 245982 at *5 (E.D.N.Y. Aug. 31, 1992) (trial court properly declined to give expanded identification charge where defense theory was that eyewitnesses were simply lying; "in a case where the possibility of a mistaken identification was not really at issue, the requested charge would not add anything to the jury's understanding of its duties"); see also, e.g., People v. Ryer, 181 A.D.2d 426, 426-27, 580 N.Y.S.2d 752, 752-53 (1st Dep't) ("since the credibility of the police witnesses, not the reliability of their identification testimony was the issue framed by the defense, the absence of an expanded charge on identification" did not establish counsel as ineffective), appeal denied, 79 N.Y.2d 1007, 584 N.Y.S.2d 462 (1992); People v. Blake, 124 A.D.2d 666, 667, 507 N.Y.S.2d 912, 912 (2d Dep't 1986) (not error to refuse expanded identification charge, as "defendant's guilt hinged largely upon the credibility of the People's witnesses, and not upon the nature and quality of their observations of the defendant during the commission of the crime").

28 Contrary to Abinacer's assertions, the fact that one of the witnesses knew Abinacer by only a nickname does not support a full identification charge. See People v. Haddock, 174 A.D.2d 773, 774, 570 N.Y.S.2d 719, 720 (3d Dep't) (defendant's nickname was not relevant to the identification, as the eyewitness, "who had seen defendant in the Village a number of times and from whom he had previously purchased cocaine on several occasions, unhesitatingly identified defendant in court as the seller"), appeal denied, 78 N.Y.2d 1011, 575 N.Y.S.2d 819 (1991).

29 Moreover, the viewing conditions for the shooting were excellent. Both witnesses testified that the shooting took place during a clear afternoon on an open sidewalk. (Sandoval: Tr. 214; Torres: Tr. 450.) Torres testified that he had been arguing with Torres face-to-face for several minutes, when Abinacer suddenly produced a handgun and repeatedly shot Torres point-blank. (Torres: Tr. 448-51.) Sandoval testified that she witnessed the shooting from one-half block away (Sandoval: Tr. 243), and that Abinacer walked past her after the shooting (Torres: Tr. 453-54; Sandoval: Tr. 220). Sandoval testified that she told Officer Tropp that she "didn't know" who shot Torres, but claims that she gave the officer a physical description of Abinacer. (Sandoval: Tr. 303.) Torres apparently told Officer Tropp that he knew the shooter as "Chi Chi," but Officer Tropp was precluded from testifying to that effect (Tropp: Tr. 357-61), and Torres testified that he did not recall what he told Officer Tropp on the day of the shooting. (Torres: Tr. 494.) These facts, however, would still only amount to intentional misidentification, not mistaken identification.

Indeed, an expanded identification charge would, if anything, have undermined Abinacer's case, by focusing the jury's attention on factors that bolstered the eyewitness accounts, such as the excellent lighting conditions, the short distance between the witnesses and the shooter, and the extended time in which the witnesses observed the shooter. See 1 Criminal Jury Instructions, New York, CJI 10.01 Part A (1991) (pattern jury charge describing factors to consider in assessing eyewitness identification testimony). Emphasizing misidentification factors to the jury would only have reinforced the unlikelihood that Torres' and Sandoval's identification of Abinacer was mistaken.³⁰

30 Abinacer asserts that trial counsel confused the jury during his summation by essentially advancing a theory of mistaken identification — that Torres' withdrawal symptoms affected his faculties such that "it's just as likely that he shot himself or that somebody else shot him and he doesn't have the slightest clue who shot him." (Abinacer Br. at 20, quoting Tr. 380.) This part of the summation was consistent, not inconsistent, with trial counsel's strategy — that Torres (and Sandoval) knew "Chi Chi" Abinacer and were intentionally lying when they identified him as the shooter.

Accordingly, rather than emphasizing the possibility of mistaken identification, counsel charged that the two witnesses were heroin addicts and career criminals who had deliberately framed Abinacer either to protect themselves or when pressured by the police. (Tr. 168-170, 507-12, 516-17, 526-27.) Defense Counsel engaged in a withering cross-examination that focused on the witness' lack of credibility and the various inconsistencies in their story. (Sandoval: Tr. 250-60, 286, 288-97; Torres: Tr. 467-69, 472-82, 486-88, 496-503.) The judge supported this approach by charging the jury as to the witnesses' credibility. (Tr. 564.) In summation, defense counsel repeatedly pointed to the failure of the prosecution to offer any other witnesses to corroborate Abinacer's guilt, even though the shooting took place on a "crowded street" at midday. (Tr. 513, 515-16, 518-22, 526, 530-31.)

This Court will not "second guess" counsel's trial strategy. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065; see, e.g., United States v. Pagan, 829 F. Supp. 88, 93 (S.D.N.Y. 1993) (counsel's "failure to . . . request a jury charge on misidentification is not tantamount to ineffective assistance of counsel" where counsel cross-examined the CI witness, "urged the possibility of misidentification in closing remarks to the jury, raised at least six bases for impeaching the CI, and saw the jury receive a charge concerning the CI's credibility"), aff'd, 28 F.3d 102 (2d Cir.), cert. denied, 513 U.S. 904, 115 S.Ct. 267 (1994); see also, e.g., People v. Driscoll, 251 A.D.2d 759, 761, 675 N.Y.S.2d 151, 154 (3d Dep't) (attorney's failure to request expanded identification charge "did not seriously compromise defendant's right to a fair trial given County Court's full instructions to the jury regarding its duty to determine credibility and to weigh [witness'] credibility in light of her criminal history and interest"), appeal denied, 92 N.Y.2d 949, 681 N.Y.S.2d 479 (1998). The fact that trial counsel's strategy did not succeed in exonerating Abinacer does not create a claim for ineffective assistance of counsel. See, e.g., United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) ("We will not second-guess trial counsel's defense strategy simply because the chosen strategy has failed."); People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 898 (1981) (courts must avoid "confusing true ineffectiveness with mere losing tactics," as "trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness.").

Because the trial court's jury charge was unobjectionable and trial counsel's failure to request an expanded identification charge was a reasonable trial strategy, trial counsel was not ineffective and therefore appellate counsel was not ineffective for failing to raise the issue on appeal.

D. The Trial Court's Preliminary Statement to the Jury

Abinacer faults appellate counsel for not raising on appeal trial counsel's failure to object to the trial court's preliminary statement to the jury, which allegedly did not state that the indictment did not constitute evidence and the defendant was presumed innocent. (Dkt. No. 6: Abinacer Br. at 21-23.) This claim is meritless for two reasons.

First, C.P.L. § 270.40, which governs the contents of a trial court's preliminary instructions, does not require the court to state either that the indictment does not constitute evidence or that the defendant is presumed innocent.³¹ See People v. Schulze, 224 A.D.2d 729, 730, 638 N.Y.S.2d 176, 178 (3d Dep't) ("Preliminary instructions concerning the burden of proof, the presumption of innocence and witness credibility are not mandated under CPL 270.40."), appeal denied, 88 N.Y.2d 853, 644 N.Y.S.2d 700 (1996); People v. Bell, 152 A.D.2d 700, 701, 544 N.Y.S.2d 160, 161 (2d Dep't) ("With respect to preliminary instructions to the jury, the trial court is not mandated to give a no-inference charge upon request of the defendant."), appeal denied, 74 N.Y.2d 845, 546 N.Y.S.2d 1009 (1989); see generally Peter Preiser, Practice Commentaries to C.P.L. § 270.40 at 467 ("The preliminary instructions should be limited to the subject matter covered by the statute and should not stray into the substance of the case to be tried."). As there would have been no merit to trial counsel's objection, trial counsel's failure to object did not constitute ineffective assistance and appellate counsel cannot be faulted for failing to raise such a frivolous claim on appeal. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001); see also, cases cited at page 36 fn. 27 above.

31 C.P.L. § 270.40 provides:

After the jury has been sworn and before the people's opening address, the court must instruct the jury generally concerning its basic functions, duties and conduct. Such instructions must include, among other matters, admonitions that the jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to discharge, they may not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they must promptly report to the court any incident within their knowledge involving an attempt by any person improperly to influence any member of the jury.

Second, although the judge did not note in his preliminary statement that the indictment was not evidence, and the defendant was presumed innocent, he did make such statements to the full voir dire panel:

An indictment and an arrest precede every felony in a criminal trial in the Supreme Court. You can't get here as a defendant without being arrested and indicted. We don't take volunteers.

Everybody who has been found not guilty after a trial has first been indicted and arrested. Everybody found guilty has been indicted and arrested and so a jury in seeking to figure out what the appropriate resolution of the case is, can't look to the facts of an indictment and arrest, because it's got no value in determine the outcome because it precedes every trial.

(Tr. 22.)

A person accused of a crime is presumed innocent. They bear no burden, because they are presumed innocent. There is no reason for that person to have a burden.

The prosecutor has to meet the standard American Criminal law burden of proof to secure a conviction. . . .

. . . .

To emphasize that the defense has no burden of proof, they don't have to cross examine witnesses. They don't have to call witnesses. They can respectfully look to the prosecution, say you brought us here, prove the charges if you can.

(Tr. 8-10.) The trial judge repeated these admonitions in his final charge to the jury: "[T]he fact that there has been an arrest and an indictment is not evidence. Evidence consists of the testimony from the witness stand, whether it's on direct or cross examination, redirect or recross examination." (Tr. 560-61.) The trial court continued:

Every defendant is presumed to be innocent.

Mr. Abinacer is presumed to be innocent throughout the trial. He is cloaked with the protection of the presumption even when you go into the jury room. . . .

The burden of proof is entirely upon the People. The defendant rest[s] upon [the] presumption of innocence in his favor until you the jury are convinced of his guilt beyond a reasonable doubt.

(Tr. 566-67.)

Accordingly, because it was not required or appropriate for the charges to be made in the trial court's preliminary statement, and because such charges were, in any event, made in the trial court's remarks to the voir dire panel and in the trial court's final jury charge, the First Department's denial of Abinacer's claim of ineffective assistance of appellate counsel on this issue was neither erroneous nor unreasonable.

E. Failure to Request a Charge That No Adverse Inference Could Be Drawn From Abinacer's Failure to Testify

Abinacer next faults his trial counsel for not requesting a charge (proffered by the judge, Tr. 415) that the jury could not draw an adverse inference from Abinacer's failure to testify. (Dkt. No. 6: Abinacer Br. at 23.) Abinacer especially faults counsel for not requesting the charge after counsel repeatedly assured the jury during voir dire that the judge would be issuing such a charge:

Mr. Abinacer has nothing to prove, we could sit over here and draw cartoons. . . . I don't have to ask one question throughout this trial. . . . Does everybody understand that I'm going to tell you right now, you're not going to hear from Mr. Abinacer. . . .

The Judge is going to instruct you through the facts. Abinacer is not going to take that witness stand. You can't hold that against him. As a matter of fact, you can't consider anything about the fact that he is not going to testify.

Does everybody promise us if selected as jurors in this case, they will follow the Judge's instructions on the law with respect to my client not testifying.

(Tr. 86-87.)

Mr. [Abinacer] is not going to take that witness stand and the Judge is going to instruct you that you can't assume anything from the fact that Mr. [Abinacer] is going to sit there . . . next to me this entire trial.

Anything about that fact that he is not going to testify? Anybody feel they cannot follow the law with respect to that?

(Tr. 134-35.)

C.P.L. § 300.10(2) provides: "Upon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn."³² In the absence of a request by Abinacer's counsel for a "no adverse inference" charge, therefore, it was not error for the trial court to omit such a charge. While trial counsel may be faulted for promising during voir dire that the trial judge would eventually give a no adverse inference charge, the matter does not amount to ineffective trial counsel. Mere error in judgment by an attorney, even if professionally unreasonable, does not warrant setting aside the verdict of a criminal proceeding if the error does not undermine "confidence in the outcome." See, e.g., Martin v. Garvin, 92 Civ. 3970, 1993 WL 138813 at *2 (S.D.N.Y. Apr. 23, 1993). In any event, this Court cannot say that appellate counsel was ineffective for failing to raise this issue on appeal, in light of the strong issues that he did raise, not that it was unreasonable for the First Department to reject Abinacer's claim of ineffective appellate counsel relating to this matter.

32 See, e.g., People v. Vereen, 45 N.Y.2d 856, 857, 410 N.Y.S.2d 288, 289 (1978); see also, e.g., People v. LaDolce, 196 A.D.2d 49, 54, 607 N.Y.S.2d 523, 526 (4th Dep't 1994) ("[a]bsent a request by defendant, it is constitutional error to give" a no inference charge); People v. Allan, 192 A.D.2d 433, 434, 596 N.Y.S.2d 793, 794 (1st Dep't 1993) ("it was error for the judge to have charged the jury, in the absence of defendant's request, with respect to defendant's election not to testify").

F. Missing Witness Charge

Abinacer claims that appellate counsel erred by failing to raise trial counsel's failure to request a "missing witness" instruction as to the following people:

[1] The "someone" who informed Ms. Sandoval that [Abinacer's] nickname is "Chi Chi" (Tr. 301-03);

[2] The person known as "House," regarding the "conversation(s) and uncharged drug sales" between Ms. Sandoval and [Abinacer] (Tr. 208-17);

[3] The "someone" Mr. Torres frequently bought heroin from and the "three" (3) people on the street who directed Mr. Torres to "Chi Chi's" location at the Arcade (Tr. 297-300, 440-47); and

[4] "House and the Arcade employee" who Torres claimed witnessed the argument between Torres and Chi Chi and also observed the shooting (Tr. 448-51).

(Dkt. No. 6: Abinacer Br. at 23-24; see also Dkt. No. 15: Abinacer Reply Br. at 6-8.)

In People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986), the New York Court of Appeals announced the standard for requesting a missing witness charge:

Once the party seeking the [missing witness] charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available", or that the witness is not under the party's "control" such that he would not be expected to testify in his or her favor.

Id. at 428, 509 N.Y.S.2d at 799 (emphasis added).

Abinacer's claim fails to satisfy this standard, because he cannot establish the element of "control." As the Gonzalez court explained, "[w]hen the uncalled witness can be said to be equally available to both parties — that is, when it is within the ability of both parties to produce the witness — but the witness is a stranger to both parties and thus cannot be expected to testify favorably to one party or the other, then generally no unfavorable inference may be drawn from the failure of either party to call the witness." Id. at 429, 509 N.Y.S.2d at 800. The instant record reveals no evidence that the witnesses named by Abinacer were under the People's "control." Rather, the witnesses appear to be acquaintances of Sandoval or Torres, with no affiliation to the police or prosecutor's office. As such, the People cannot reasonably be charged with "control" over the missing witnesses, and Abinacer's counsel had no grounds to ask for a missing witness charge. See Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *10 (E.D.N.Y. Jan. 3, 2001) (evidence that a witness spoke to the police and "came to the precinct to look at photographs on the night of the incident . . . falls far short of establishing that [the witness] would have testified favorably to or was under the control of the prosecution.").³³

33 Accord, e.g., People v. Brunson, 270 A.D.2d 133, 134, 707 N.Y.S.2d 1, 2 (1st Dep't) (missing witness charge properly denied because "witnesses' casual friendship with the complainant did not place them within the People's 'control' for purposes of a missing witness charge"), appeal denied, 95 N.Y.2d 833, 713 N.Y.S.2d 139 (2000); People v. Smith, 265 A.D.2d 235, 236, 697 N.Y.S.2d 258, 259 (1st Dep't 1999) (missing witness charge properly rejected because "witness had only a brief, casual friendship with the complainant and thus could not be expected to provide favorable testimony for the People"), appeal denied, 94 N.Y.2d 907, 707 N.Y.S.2d 392 (2000); People v. Geer, 213 A.D.2d 764, 764-65, 623 N.Y.S.2d 366, 368 (3d Dep't) ("As for the other witnesses that defendant now suggests might have been the subject of a missing witness charge, they are strangers, equally available to both parties and not within the control of the People. . . . A missing witness charge not being warranted with regard to any of these individuals defense counsel's failure to request the same cannot be said to have deprived defendant of meaningful representation."), appeal denied, 86 N.Y.2d 781, 631 N.Y.S.2d 627 (1995); People v. Rosario, 178 A.D.2d 242, 243, 577 N.Y.S.2d 366, 367 (1st Dep't 1991) ("although the witness may have initially reported the incident to the police and appeared before the Grand Jury, he was not in the control of the People. The witness was not an undercover police officer or an informant, . . . nor were there any other indicia to support defendant's present contention that the witness was under the People's control"), appeal denied, 79 N.Y.2d 952, 583 N.Y.S.2d 206 (1992).

In addition, Abinacer's counsel was given ample latitude on summation to comment on the absence of the "missing witnesses," and counsel took full advantage of this opportunity, repeatedly noting that the prosecution had failed to call a number of relevant witnesses. (Tr. 513, 515-16, 518-22, 530-31.) Thus, any error in not requesting a missing witness instruction was ameliorated by defense counsel's summation. See, e.g., United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988) (under federal rules, court's failure to give a missing witness charge was not reversible error, "especially given that the judge permitted defense counsel to argue the inference themselves in summation"); Malik v. Kelly, No. 97-CV-4543, 1999 WL 390604 at *7 (E.D.N.Y. Apr. 6, 1999) (rejecting habeas claim for state court's failure to give missing witness charge; "[r]eversal is particularly inappropriate where, as here, defense counsel was allowed to urge an adverse inference in summation"); Rodriguez v. Walker, 97 Civ. 2823, 1999 WL 61834 at *5 (S.D.N.Y. Feb. 9, 1999) ("a trial judge's failure to give a missing witness instruction is generally not reversible error where defense counsel is permitted to argue the missing witness inference in their summation"); People v. Cruz, 165 A.D.2d 205, 207-08, 566 N.Y.S.2d 608, 609 (1st Dep't) (failure to request missing witness charge did not constitute ineffective counsel, because, among other things, "[o]n summation, [counsel] reminded the jury that the [missing witness] had not been called as a witness and suggested that this should raise a reasonable doubt."), appeal denied, 77 N.Y.2d 959, 570 N.Y.S.2d 493 (1991).

For these reasons, trial counsel's decision not to request a missing witness charge does not demonstrate ineffectiveness, and the First Department's rejection of Abinacer's claim that appellate counsel was ineffective for not arguing on appeal trial counsel's alleged ineffectiveness, was not erroneous or unreasonable.

G. The Trial Court's "Conscience of the Community" Comments

Abinacer asserts (Dkt. No. 6: Abinacer Br. at 24-26; Dkt. No. 15: Abinacer Reply Br. at 4) that trial counsel failed to object to certain statements made by the trial judge to the voir dire panel, as follows (the passage to which Abinacer objects is underlined):

You have created a system that says, "We the citizens, jurors, will decide any case that comes along. So, if it's a rape of a four year old girl, if it's the trial of John Gotti, if it's murder, mayhem, pillaging, blundering [sic], terror, blood or a case that takes a year, you folks have said, "We'll do it."

I'm here every day. . . . Other judges are here and the Judge could do these trials. You've said, "That's not the way we would like it to happen. We'll take care of it ourselves. Thank you very much.". . .

. . . . .

The point is regardless of the nature of the crime though you folks are going to do it. So, the trial that takes nine months, the trial that takes six months, the trial that's emotional, the trial that causes you to hear things that really upset you, you folks have said, we'll do it all.

(Tr. 14-16, emphasis added.) Abinacer's trial counsel did not object to this comment. (Id.)

Abinacer argues that the trial judge's remarks contain an implicit appeal to the "conscience of the community" — a tactic that has repeatedly been found improperly inflammatory. For example, in People v. Lombardi, 20 N.Y.2d 266, 272, 282 N.Y.S.2d 519, 522 (1967), the New York Court of Appeals ordered a new trial because of "prejudicial and inflammatory comments" made by the prosecutor, including stating that the victims had aided the police investigation so that the community could be safeguarded, so justice could be done, and so that their cry could be heard by a jury in this court as they said Avenge me, 338 N.Y.S.2d 476 (2d Dep't 1972), the Appellate Division ordered a new trial because, among other things, the prosecutor "appeal[ed] to the emotions of the jury" by asserting in summation:

"Now, gentlemen, you know in this community of ours, Brooklyn, in the State of New York, we have laws that govern the conduct of everyone. Laws that regulate our community, our living. We don't have one set of laws for an area where certain people live and where people come to our land, these great United States, and they come into New York State, they have to live by the law as it is here in the State of New York, not by the law of some other community, and if there was a feud going on, you just don't take the law in your own hands because, gentlemen, just as soon as you let down on the barriers of the law, just as soon as this community does not uphold the law, well you can just imagine what's going to happen. We'll have chaos, isn't that right?"

Id. at 984, 338 N.Y.S.2d at 477-78.

Such appeals to the "conscience of the community" or "community impact" are disapproved because they "tend to divert the jury from consideration of the evidence." United States v. Terry, 702 F.2d 299, 313 (2d Cir.) (improper for prosecutor to make statements regarding "community impact"; community impact instruction by judge harmless error), cert. denied, 461 U.S. 931, 103 S.Ct. 2095 (1983); see United States v. Barlin, 686 F.2d 81, 93 (2d Cir. 1982) (while condemning prosecutorial appeal to jury to "do something about the drug traffic in our community," held harmless error). Such appeals improperly ask a jury to convict the defendant for future conduct rather than the conduct at issue in the trial. See, e.g., United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984) ("A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence.") (fn. omitted), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847 (1985).

The trial court's remarks here, however, did not resemble an improper "conscience of the community" charge. The judge's remarks were not made in the context of a charge regarding the verdict and did not reference the particulars of this case or this defendant. Rather, the judge simply explained during voir dire that the jury had the duty to decide whatever case was presented, no matter how upsetting the task or unpleasant the alleged crime. The remarks were akin to (although far more colorful than) pattern charges for the opening of a trial: "I want you to fully understand that our system of justice and fair play depends upon people like you, who stand ready, willing and able to sacrifice their time and give of their best, both mentally and physically, so that all concerned may be assured of a fair and just trial." 1 Criminal Jury Instructions, New York, 2.03 (1991).

Moreover, just prior to the complained of remarks, the trial judge expressly stated that it was not the jury's role to act as the conscience of the community:

All right, let me tell you what a criminal trial is about and what it's not about. What's going on in the city all the time, any one criminal trial is simply about whether one allegation can be proven to what happened and prove what happened beyond a reasonable doubt.

No criminal trial provides a forum for political statements, for cleaning up the block, expressing your frustrations, making comment on what you avoid everyday, what you walk around on the street, what you try to avoid in your building etc., a criminal case is about one thing, has the case been proven?

. . . .

That's why I say no criminal trial has to make a statement. You do your civic duty, find whether the case has been proven. You have done your civic duty as much if you find guilty or if you find not guilty, assuming the case wasn't proven.

(Tr. 12-14.)

The trial judge's references to various heinous crimes were unnecessary and inappropriate. Nevertheless, judging the trial judge's voir dire statements as a whole, as we must, Smalls v. Batista, 191 F.3d 272, 277 (2d Cir. 1999); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *7 (S.D.N.Y. May 25, 2000) (Peck, M.J.) (collecting cases), they did not approach the level of error necessary for reversal. Absent such error, the First Department's decision that appellate counsel was not ineffective for failing to raise trial counsel's alleged ineffectiveness is neither erroneous nor unreasonable. See Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001).³⁴

34 Abinacer also charges error in other remarks made by the judge to the voir dire panel (Abinacer Br. at 24-26; Dkt. No. 15: Abinacer Reply Br. at 2-3) that, however, were not inappropriate:
Anybody who does not live in Manhattan?
Anybody who wishes that they did not live in Manhattan?

Somebody just lied because nobody raised their hand and that simply is statistically impossible. And so three minutes after we just took the time to administer an oath or affirmation for the purpose of your answering questions during jury selection, honestly, somebody just didn't tell the truth.

I know you don't like to be accused of lying. But I could make this assumption because I'm creative sometimes. I could make this jury selection process go on for what would seem like an endless period, but you have been intelligent enough to create a system where that doesn't have to happen provided you answer the questions honestly.

We have a system, a time tested system. If you answer honestly the questions that the lawyers and I are going to be asking you in a relatively fast way, we can pick a jury appropriate to this case. But that presupposes that you honestly answer the question, whether you think they are stupid or not. Yes you can view their question. Anybody wish they didn't live in Manhattan. That's a tricky question. Probably I think it just made the point that you should answer the questions honestly.

(Tr. 11-12, emphasis added.) While it would have been better perhaps if the trial judge had adhered to the Pattern Jury Instructions, the trial judge was merely trying to encourage the potential jurors to honestly answer all questions posed to them during voir dire.

H. Evidence of Uncharged Crimes

Abinacer asserts that appel late counsel did not raise trial counsel's failure to make an "adequate" objection to the introduction of evidence of Abinacer's prior "uncharged crimes," namely the drug transaction between Sandoval and Abinacer that allegedly preceded the shooting. (Dkt. No. 6: Abinacer Br. at 26-27, 30-31.) Abinacer also complains that trial counsel failed to object to Officer Tropp's testimony (Tr. 343) that "illegal drugs were sold and purchased" in the area of the shooting. (Abinacer Br. at 31.) This claim is without merit.

When the People sought to introduce Abinacer's uncharged drug dealing on grounds of motive, identity, and narrative completeness, Abinacer's trial counsel objected to testimony that Abinacer had sold drugs prior to the day of the shooting. (Tr. 152-55.) The trial court agreed, and limited the testimony to the drug sale to Sandoval on the day of the shooting. (Tr. at 155-58.)

That ruling stood on solid ground. New York law on the issue of "uncharged crimes" is well-settled:

Evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past. Therefore, the rule is stated that if the only purpose of the evidence is to show bad character or propensity towards crime, it is not admissible. Evidence of prior uncharged crimes may be received, however, if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule. . . . [E]vidence of uncharged crimes may be relevant to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant. The list, of course, is not exhaustive. Even when admissible for such purposes, however, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant.

People v. Alvino, 71 N.Y.2d 233, 241-42, 525 N.Y.S.2d 7, 11 (1987) (citations omitted).

New York courts have consistently held that drug transactions are admissible "uncharged crimes" to show a motive for a murder or attempted murder and to complete the narrative of the events leading up to the murder. See, e.g., People v. Mena, 269 A.D.2d 147, 148, 704 N.Y.S.2d 14, 14 (1st Dep't) (in murder trial, proper to admit evidence that "both defendant and the victim were drug dealers who sold drugs at the same location," and that "on the day before the murder, the two men were observed having a conversation and making gestures that suggested a heated argument," as this showed that "the murder was motivated by a territorial dispute among competing drug dealers"), appeal denied, 95 N.Y.2d 800, 711 N.Y.S.2d 168 (2000); People v. Porter, 256 A.D.2d 363, 364, 681 N.Y.S.2d 348, 349 (2d Dep't 1998) (testimony about defendant's "drug-related activities was admissible to establish his motive to commit the crimes charged and to complete the narrative of the events leading 57 up to the double murders"), appeal denied, 93 N.Y.2d 976, 695 N.Y.S.2d 62 (1999); People v. Martinez, 256 A.D.2d 52, 52, 682 N.Y.S.2d 28, 29 (1st Dep't 1998) (proper to admit "evidence of defendant's drug selling activities and of the drugs discovered in his apartment," which, "when linked with defendant's otherwise unexplained threatening statements made shortly before the crime, established motive and murderous intent"), appeal denied, 93 N.Y.2d 876, 689 N.Y.S.2d 438 (1999); People v. Edmonds, 223 A.D.2d 455, 455-56, 637 N.Y.S.2d 71, 72 (1st Dep't) (in murder trial, not error to admit evidence of defendant's "involvement in a drug organization" because it "provided motive, relevant background information and completed the narrative of events leading up to the shooting."), appeal denied, 88 N.Y.2d 984, 649 N.Y.S.2d 391 (1996); People v. Terry, 224 A.D.2d 202, 203, 637 N.Y.S.2d 694, 695 (1st Dep't) (evidence concerning drug sales "was properly admitted to establish that defendant's motive for stabbing the complainant was to punish him for not turning over money owed for previous drug sales"), appeal denied, 88 N.Y.2d 943, 647 N.Y.S.2d 176 (1996); People v. Artis, 220 A.D.2d 441, 442, 631 N.Y.S.2d 907, 908 (2d Dep't) (in second degree murder trial, proper to admit evidence that defendant was a "drug dealer," as it "was relevant on the issue of motive, as well as to establish how some of the witnesses who identified the defendant were acquainted with him"), appeal denied, 87 N.Y.2d 897, 641 N.Y.S.2d 227 (1995); People v. Montana, 192 A.D.2d 623, 623, 596 N.Y.S.2d 154, 154-55 (2d Dep't 1993) (in second degree murder trial, proper to admit evidence of defendant's prior threats against the deceased to establish "defendant's motive as well as to complete the narrative of events"); People v. Cascoigne, 189 A.D.2d 714, 714-15, 592 N.Y.S.2d 722, 723 (1st Dep't) (proper to admit 58 evidence that defendant was a "drug dealer," as it showed motive for defendant to shoot victim who had barred defendant from building), appeal denied, 81 N.Y.2d 1012, 600 N.Y.S.2d 200 (1993).³⁵

35 Similarly, testimony that the shooting took place in a drug neighborhood was admissible to complete the narrative of the crime. Cf. People v. Brown, 200 A.D.2d 416, 416, 606 N.Y.S.2d 214, 215 (1st Dep't), appeal denied, 83 N.Y.2d 849, 612 N.Y.S.2d 381 (1994). Even if improperly admitted, it was not prejudicial since the two eyewitnesses were also participants in the drug transaction, and had already testified about the easy availability of drugs in the area. (Sandoval: Tr. 306-07.) Moreover, the issue is harmless given the admission of the drug transaction itself into evidence.

Abinacer's counsel properly objected to and won the exclusion of evidence that Abinacer had engaged in prior drug dealings. It was not error for the trial court to admit evidence of the drug transaction that allegedly caused the shooting (or testimony that the neighborhood was a drug area). Accordingly, the First Department's rejection of Abinacer's claim of appellate counsel ineffectiveness as to this matter was neither erroneous nor unreasonable.

I. Impeachment of the Two Witnesses Who Testified That Abinacer Was the Shooter

Abinacer faults appellate counsel for not raising trial counsel's failure to impeach Torres and Sandoval regarding (1) Torres' intravenous heroin use, and (2) gifts made by the police to Torres. (Dkt. No. 6: Abinacer Br. at 28, 38-39.) Again, this claim is meritless.

First, in a scathing cross-examination and summation, Abinacer's counsel impeached the credibility of both Torres and Sandoval for lying about Torres' heroin use. (Tr. 509-12; Sandoval: Tr. 286, 293; Torres: Tr. 467-69, 499-502.) Abinacer's claim on this point is frivolous.

Second, prior to opening statements, the prosecutor informed the court that he had produced ten to twelve housing vouchers that the Homicide Investigation Unit had "spent in order to relocate Edwin Torres and Awilda Sandoval to a new apartment." (Tr. 156.) The prosecutor then stated:

I have alerted [defense counsel] to the fact that if he chooses to cross examine the witnesses about the benefits, monetary benefits, we have disclosed upon Torres and Sandoval, I will then seek on redirect examination, to find out whether they received a letter from somebody identified as defendant — Your Honor along the line [sic] if you testify in this case you should know that accidentally [sic] what will happen and people can get hurt.

(Tr. 156.)

Although this matter was not further developed on the record, it appears from the above passage the police gave Sandoval and Torres housing vouchers so that they could relocate out of harm's way after Abinacer (or someone on his behalf) allegedly threatened Sandoval and Torres regarding their testimony. Had Abinacer's counsel attempted to impeach Sandoval and Torres with evidence of the "gifted" housing vouchers, the prosecutor would have raised Abinacer's alleged threat on redirect.

Counsel's decision not to impeach Sandoval and Torres with evidence of the housing vouchers constituted a perfectly reasonable trial strategy. See, e.g., Mills v. Scully, 826 F.2d 1192, 1196-97 (2d Cir. 1987) (refraining from impeaching witness with grand jury testimony was sound trial strategy, because such testimony could have incriminated

CONCLUSION

For the reasons set forth above, Abinacer's habeas corpus petition should be denied. Since Abinacer has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.

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 William H. Pauley, III, 40 Centre Street, Room 234, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Pauley. 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).