Kotler v. Woods

Filing 19

ORDER: For the reasons set forth in the attached Memorandum and Order, petitioner's petition for a writ of habeas corpus is DENIED. The Clerk of the Court shall enter judgment accordingly and close this case. Ordered by Judge Joseph F. Bianco on 4/15/2009. (Joo, Anna)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
_____________________ No 07-CV-4442 (JFB) _____________________

KERRY KOTLER,
Petitioner,
VERSUS

ROBERT WOODS, SUPERINTENDENT OF UPSTATE CORRECTIONAL FACILITY,
Respondent.
___________________ MEMORANDUM AND ORDER April 15, 2009 ___________________

JOSEPH F. BIANCO, District Judge: Petitioner Kerry Kotler (hereinafter, "Kotler" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted in a judgment rendered on October 23, 1997, following a jury trial, in the County Court of the State of New York, Suffolk County. Petitioner was convicted of Rape in the First Degree and sentenced to a period of incarceration of seven to twenty-one years. Petitioner challenges his conviction on the following grounds: (1) that he was denied judicial oversight, his right to be present, and access to counsel at trial; (2) that the trial court admitted hearsay testimony and out-ofcourt statements in violation of petitioner's

due process and confrontation rights; (3) that the destruction of highly material evidence by the State violated petitioner's due process rights; and (4) that the jury was not a fair, random cross-section of the community. For the reasons set forth below, petitioner's request for a writ of habeas corpus is denied in its entirety. First, petitioner has failed to demonstrate that his constitutional right to be present was violated in connection with an exhibit list or a jury deadlock note. Second, petitioner has failed to demonstrate that a "911" tape was given to the jury during deliberations or, even if it was, that he was denied his constitutional right to a fair trial. Third, petitioner has failed to demonstrate that his right to counsel was hindered in any way by the trial court's admonitions to petitioner about talking while

the trial court was speaking. Fourth, the admission of certain inadmissible hearsay does not amount to constitutional error warranting habeas relief where the evidence of petitioner's guilt in the underlying crime of rape was overwhelming ­ including (1) DNA evidence establishing the presence of petitioner's semen on the victim's skirt and on vaginal swabs taken from the victim; (2) the matching of the victim's description of the vehicle in which she was taken and a partial license plate to the vehicle registered to petitioner's girlfriend and driven by petitioner; and (3) petitioner's activities in the early morning hours of August 12, 1995 placed him in the path of the area where the victim was abducted and the location where she was dropped off. The defendant's theory that the defendant's semen was found on the victim's skirt because detectives planted the evidence by taking semen from a condom found in the defendant's garage at his house was fully explored by defense counsel during the trial and rejected by the jury in light of the overwhelming evidence of petitioner's guilt. Thus, the admission of certain inadmissible hearsay was harmless. Fifth, petitioner's claims of Rosario violations do not provide a basis for habeas relief because any such violations did not violate his constitutional rights, including his rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and, in any event, were properly addressed by the trial court. Finally, petitioner's claim regarding jury selection based upon the over-representation of nurses on the jury panel is procedurally barred and, in any event, is without merit, because, among other things, nurses are not a distinct class, over-representation of a group (without underrepresentation of another group) does not itself raise constitutional implications, and petitioner has not established a basis for an equal protection violation. In short, as 2

discussed in detail below, the Court has reviewed all of petitioner's claims and finds them to be without merit. I. BACKGROUND A. Facts The following facts are adduced from the underlying record. 1. Summary of Testimony at Trial by Prosecution Witnesses a. Kathleen O'Shea During the summer of 1995, Kathleen O'Shea ("O'Shea") worked as a waitress at the Beach Bar in Hampton Bays ("Beach Bar"). (Trial Transcript ("Tr.") 1961.) O'Shea was a college student from upstate New York who was living with her friend Missy Renck ("Renck") for the summer. (Tr. 1961.) On Friday, August 11, 1995, O'Shea returned from work to Renck's home in Mastic, New York, where they prepared to go out that evening (Tr. 1962.) O'Shea borrowed a black skirt, a denim vest, and shoes from Renck. (Tr. 1962-63.) O'Shea and Renck arrived at the Beach Bar at approximately 12:30 a.m. on August 12, 1995. (Tr. 1963.) Renck left the Beach Bar with a friend of hers, and O'Shea left the bar alone between 3:00 and 3:30 a.m. (Tr. 1965.) After leaving the bar, O'Shea drove towards Sunrise Highway to travel west back to Mastic. (Tr. 1967.) As O'Shea was exiting the highway, she noticed headlights flashing in her rearview mirror from a car behind her. (Tr. 1967.) The car then pulled alongside her car, and the man inside displayed a badge and motioned to her to pull

over to the side of the road. (Tr. 1968.) O'Shea drove her car a short distance, and the other car pulled behind her. (Tr. 1969.) The man got out of his car and approached O'Shea's vehicle on the driver side. After displaying his badge, the man advised O'Shea that she was "all over the road" and wanted to give her a "drunk test." (Tr. 1969.) When the man said he was going to call for backup, O'Shea got out of her car and pleaded for him not to call backup. At this point, the man said they needed to move their cars because they were in the way of traffic. (Tr. 1970.) He pulled his car over, and O'Shea pulled in behind him. O'Shea stepped out of her car and asked to see the man's badge again, and he walked back to his car. She noticed that the man had a ponytail. (Tr.1972.) When the man came back to O'Shea's car, he grabbed her around the neck and put a serrated knife in her side. (Tr. 1972, 1978.) The assailant pulled O'Shea from the doorway of her car and shut the door with his foot. (Tr. 1972.) O'Shea started to scream, but her assailant covered her mouth and forcibly put her into his car. (Tr. 1973.) He told her to keep her "head down at all times." (Tr. 1973.) O'Shea kept her head down, and her hair was covering her face. She noted from the emblem on the dashboard that the car was a Grand Am, and that the inside of the car was a light blue or light gray color. (Tr. 1975.) O'Shea attempted to lift her head, but her assailant smacked her "right upside the head." (Tr. 1975.) The assailant eventually stopped the car, pulled O'Shea out, and told her to keep her hair in front of her face. (Tr. 1978.) O'Shea was led into a wooded area and told to undress. (Tr. 1979.) She was told to get on her hands and knees, and she felt her assailant put his penis inside her vagina. (Tr. 1980.) 3

O'Shea's assailant ejaculated inside her, and he then rolled her onto her back and started to squirt a liquid inside her vagina using a squeeze bottle. (Tr. 1980.) O'Shea expressed concern that the liquid smelled like gasoline and that her assailant was going to burn her, so she asked him to squirt some of the liquid into her hand so she could smell it. (Tr. 1980-81.) O'Shea's assailant stated that he was squirting the liquid so that if he was ever caught, there would be no evidence. (Tr. 1981.) After putting on her vest and shoes, and carrying the rest of her clothes, O'Shea was led back to the car and told to keep her head down. As she approached the car, she was able to observe part of the New York license plate ­ G55 1D, and perhaps a 9. (Tr. 1982.) She also saw that it was a New York license plate and that the car was white. (Tr. 1983.) O'Shea was driven to a residential area, and her assailant told her to run to an area with weeds, count to sixty, and that if she did not count to sixty, he would come back and kill her. (Tr. 1984.) She ran to a nearby Amoco gas station, where she made a series of other calls to friends and also called 911. (Tr. 1988.) An officer arrived at the gas station, and O'Shea told him what happened. She gave the officer the partial license plate number that she saw on her assailant's car, and told the officer that it was a white two-door Grand Am. (Tr. 1990-91.) O'Shea described her assailant as a white male, with a ponytail, five feet nine and one-half inches tall. She thought at the time that his hair was strawberry blond. (Tr. 1991.) O'Shea met Detective Robert Titolo ("Titolo"), who also came to the gas station, and they went to the area where O'Shea was

dropped off. (Tr. 2003.) They then attempted to locate the area where the attack occurred, but were unsuccessful. (Tr. 2003.) O'Shea was then taken to Stony Brook University Hospital, where she was examined with a rape kit. (Tr. 2005.) While she was at the hospital, Titolo questioned O'Shea about the incident. (Tr. 2004.) The next day, O'Shea met with Titolo, who came to her house. Detective Titolo showed car books to O'Shea, and she identified the Grand Am as having been produced in either 1988 or 1989. (Tr. 2008.) O'Shea then went to Yaphank to assist the police in creating a composite sketch of her assailant, but she was unable to do so. (Tr. 2008-09.) On September 25, 1995, O'Shea was taken by the police to the Property Bureau of the Suffolk County Police Department and "walked right up to a car" because it was "the exact, shape, style, color and everything of the car" in which she was taken. (Tr. 2011.) O'Shea also noticed that the license plate started with "G55 1." (Tr. 2011.) O'Shea sat in the car in the impound lot, with her head between her legs, as she did on the evening she was attacked. She was able to see the Grand Am symbol, and the color of the interior, as she had the night of the attack. (Tr. 2016.) b. Dennis Lawlor Dennis Lawlor worked for the Suffolk County Police Department as a 911 operator on August 12, 1995. At approximately 4:56 a.m., he received a call reporting a rape. (Tr. 1838.) The tape of the 911 call was played for the jury. (Tr. 1841.)

c. David Cherkes Police Officer David Cherkes testified that he was on duty in the early morning hours of August 12, 1995 when he received a radio call to respond to the Amoco gas station at Exit 58 of the Long Island Expressway in Islandia. (Tr. 2197.) Cherkes arrived at 4:57 a.m. and saw O'Shea, and observed that she was visibly shaken, crying, her hair was "kind of a mess," and she was "obviously very upset." (Tr. 2197.) She was wearing a blue denim top that went down to her upper thighs, and there was a small pile of clothing on the curb next to the pay phone where she was standing. (Tr. 2198.) O'Shea spoke very fast and it was difficult to get information from her, but he ascertained that she was the victim of a rape. (Tr. 2199.) Cherkes put out a local notification of the partial license plate, and other officers arrived shortly thereafter. (Tr. 2199.) Cherkes had jotted the partial license plate on a piece of paper, but he no longer had the piece of paper at the time of trial. (Tr. 2205.) He retrieved an empty brown cardboard box from inside the gas station and collected the clothing using his pen. The clothing consisted of a bra, a pair of underpants, and a skirt, and they were put into the back of Sergeant Bob Kellenberger's vehicle. (Tr. 2200.) d. David Ramirez David Ramirez was a dispatcher with the Suffolk County Police Department on August 12, 1995. He dispatched a rape at 4:47 a.m. and was requested by the responding officer to make a county-wide notification of the partial license plate, "G55 19." (Tr. 2232.)

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e. Robert Titolo Detective Robert Titolo was the lead detective on this case. He arrived at the Amoco gas station at approximately 5:00 a.m. on August 12, 1995 and observed that Kathleen O'Shea was crying and "[j]ust totally upset" (Tr. 2507.) After taking the box c o n t a i n i n g clothes from Sergeant Kellenberger's car and placing it in his trunk, Titolo accompanied O'Shea to the area where she was dropped off by her assailant and then to Stony Brook University Hospital. (Tr. 2510.) At the hospital, O'Shea described her assailant as "a white male, five foot ten, thin build, strawberry blond colored hair in a ponytail," approximately twenty-three to thirty years of age. (Tr. 2512.) After driving O'Shea to her car, Titolo returned to the Fourth Precinct and logged the clothes and rape kit, which he had transported in his car, with the Suffolk County Crime Lab. (Tr. 2518.) On August 13, 1995, he took a book containing photographs of cars to O'Shea's house, but she was unable to make a positive identification. She did show him, however, the "kind of car it was and the years that she felt it was," which were 1986-1989. (Tr. 2532.) On August 15, 1995, Titolo traveled with Detective Centorelli to Montauk to look for a white Pontiac Grand Am registered to Kelly Norman. (Tr. 2539.) The detectives arrived in Montauk at about 4:30 p.m. (Tr. 2531.) In order to seek assistance in locating Benson Road, they went to the East Hampton Town Police Department. (Tr. 2541.) At approximately 4:45 p.m., the detectives, along with East Hampton Police Officer Chris Anderson ("Anderson"), arrived at Benson Road. (Tr. 2543.) They traveled to 8 Du Val Place, but did not see the vehicle. (Tr. 2543.)

As the detectives were leaving, Titolo saw the white Pontiac Grand Am and followed it to the driveway at 8 Du Val Place. (Tr. 2544.) Inside the vehicle was petitioner and a German Shepherd dog. (Tr. 2545.) Titolo introduced himself and told petitioner that the vehicle was involved in an investigation. (Tr. 2546.) Petitioner stated that he was not the owner of the vehicle, and that Kelly Norman owned the car, but was not home. (Tr. 2546.) Titolo asked petitioner for his name, and petitioner replied, "Kerry." (Tr. 2546.) Titolo asked petitioner where the vehicle had been the previous Friday night, and petitioner stated that it was in the driveway of 8 Du Val Place. (Tr. 2546.) As they pulled out of the driveway, Anderson stated, "That's Kerry Kotler." (Tr. 2547.) Titolo maintained surveillance on 8 Du Val Place and that evening saw petitioner wearing his hair in a ponytail. (Tr. 2548.) A search warrant was prepared for the Pontiac Grand Am, and it was executed at approximately 4:30 a.m. to 5:00 a.m. on August 16, 1995. (Tr. 2549.) Detective Titolo stated that, when he prepared his written reports, he first dictated the reports into a tape recorder, which were placed onto standard audio cassettes and then given to secretaries to type. (Tr. 2568.) The dictation tapes were subsequently re-used and were not available at the time of trial. (Tr. 2569.) f. Philip Venturini Philip Venturini ("Venturini") knew petitioner and saw him in Montauk on August 11, 1995. (Tr. 2279.) Venturini offered petitioner some hot dogs, but petitioner declined, stating that he would 5

pick them up later that evening. In a telephone conversation at 9:00 p.m. that evening, petitioner told Venturini that he would not be able to pick them up because he had to "go up island." (Tr. 2282) g. David Rey David Rey was employed by the New York State Police in Albany. (Tr. 2428.) His agency was requested by the Suffolk County Police Department to run a search of a partial license plate of "G55" on a white Pontiac. (Tr. 2431.) The result of that search yielded sixty-three vehicles. (Tr. 2436.) h. Reinhardt Anderson Suffolk County Detective Investigator Reinhardt Andersen testified that he took the list of sixty-three vehicles and reviewed the vehicle identification numbers with the assistance of a computer program. (Tr. 2447.) Andersen was able to ascertain that seventeen Grand Ams were on that list. Of those, seven were two-door Grand Ams. Of the two-door vehicles, four were of the model years 1985 through 1991. (Tr. 2448.) There was only one vehicle that matched all of those characteristics with a plate beginning "G55 1." (Tr. 2455.) i. Chris Allen Chris Allen was a Special Agent with the F e d e r a l Bureau of Investigation in Washington and testified as an expert in hair and fiber analysis. (Tr. 2923.) He stated that the hairs that came from the victim's clothing were consistent with known hair coming from petitioner's German Shepherd dog. (Tr. 2939.)

j. Simon Tizes Dr. Simon Tizes examined O'Shea in the emergency room of Stony Brook University hospital on August 12, 1995. (Tr. 3085.) She noted that O'Shea had abrasions on her feet and lower legs and an "abrasion located at the entrance of her vaginal area," which was consistent with vaginal trauma. (Tr. 3087-89.) She also noted that O'Shea "had a kind of a white medium consistency discharge from her vaginal area," which "seemed as though it was seminal and vaginal fluid mixed." (Tr. 3089.) k. Thomas Zaveski Dr. Thomas Zaveski, a forensic scientist with the Suffolk County Criminalistics Laboratory, testified as an expert in hair and fiber examination and comparison. (Tr. 3133.) He stated that a pubic hair on the black skirt was dissimilar to either O'Shea or petitioner. l. Joseph Galdi Dr. Joseph Galdi, a forensic scientist with the Suffolk County Criminalistics Laboratory, testified as an expert in DNA RFLP analysis. (Tr. 3170.) He testified that the DNA found in the semen on the vaginal swabs from the rape kit matched petitioner's DNA profile, and that profile "occurred approximately one in twelve million two hundred thousand Caucasion population, one in a hundred seventy-nine million of the black population, and one in fifteen million one hundred thousand of the Hispanic population of the United States." (Tr. 3208.) The DNA found in the semen on Kathleen's skirt matched petitioner's DNA profile, and that profile occurred in "approximately one in six hundred eighty-one million of 6

Caucasion population, one in ten billion one hundred million of the black population and one in one billion one hundred twenty million of the Hispanic population of the United States." (Tr. 3218.) m. Robert Martin Robert Martin was a commercial fisherman with a boat in Oceanside, on which petitioner worked. (Tr. 3256, 3264.) On the morning of August 12, 1995, petitioner called Martin at about 5:15 a.m. to advise him that he was "running a little bit late, that he was on his way." (Tr. 3267.) Petitioner arrived at approximately 5:30 a.m., and petitioner was known to drive both a Chevrolet Nova and a white Pontiac. (Tr. 3267-68.) n. Bruce Croce Bruce Croce, a Suffolk County Police Detective, testified that he drove from Exit 58 of the Long Island Expressway to the dock in Oceeanside, and that trip took forty-nine minutes. (Tr. 3293.) o. Jack Ballantyne Jack Ballantyne, the Chief Forensic Scientist of the Suffolk County Crime Lab, testified that he viewed as a "reasonable working hypothesis" that the source of the bacteria in the skirt sample was from soil and botanical debris. (Tr. 3466.) He did not identify the type of bacteria, however. (Tr. 3466.) He testified that finding such bacterial bands is not unprecedented and occur in approximately two to five percent of the cases in which the Crime Lab is involved. (Tr. 3467.)

p. Edward Bottone Edward Bottone, a microbiologist, testified that it was his opinion that the bacteria present in the skirt was of vaginal origin. (Tr. 3451-52.) 2. Summary of Testimony at Trial by Defense Witnesses a. Edward Blake Dr. Edward Blake testified that he examined cuttings taken from O'Shea's skirt and opined that "the finding of a large quantity of spermatozoa combined with the extraordinary quantities of bacteria in these samples suggests very strongly that the semen was incubated in a liquid environment for a period of time before the sample was deposited on the skirt." (Tr. 3666.) He stated that the bacteria could have grown in a condom in which semen was present. (Tr. 3667.) b. William Ferris Assistant District Attorney William Ferris ("ADA Ferris") was in charge of the investigation during part of August 1995. (Tr. 3819.) He was also involved in petitioner's previous case on two rape charges, in which he was convicted and, after spending almost twelve years in jail, was released from prison after a successful C.P.L. § 440.10 motion in which the judge found by clear and convincing evidence that he was innocent. (Tr. 3821-22.) In response to questions by defense counsel, which were focused on establishing bias within Suffolk County law enforcement, ADA Ferris stated that, despite the court decision vacating the conviction, he still believed petitioner was guilty of the prior rape charges. (Tr. 38547

57.) c. Randall Hinrichs The following was stipulated by the prosecution and the defense: It is stipulated that if C. Randall Hinrichs were called as a witness, he would testify that on April 27th, 1997, Jack Ballantyne told Mr. Hinrichs that in his opinion the large amount of bacteria on the stains from the skirt that caused the bacterial bands on the autorads did not come f r o m Kathleen O'Shea's vaginal canal because that amount of bacteria is not found on the vaginal swabs. Further, he told Mr. Hinrichs in his opinion that assuming the same source of the bacteria, the large amount of bacteria found on the skirt stains would be on the vaginal swab. (Tr. 3882-83.) d. Dr. Bruce Hanna Dr. Bruce Hanna testified that the bacteria on the stains on the skirt did not originate from the vaginal drippings of the victim. (Tr. 3900-01.) B. Procedural History On June 11, 1997, petitioner was charged with one count of Rape in the First Degree, to which he pled not guilty. A pretrial motion to 8

suppress petitioner's statements to law enforcement was denied following a pretrial hearing in the County Court, Suffolk County. On July 18, 1997, following a jury trial, petitioner was convicted of one count of rape in the first degree. Petitioner was sentenced on October 23, 1997 to an indeterminate term of seven to twenty-one years incarceration. On that date, petitioner filed a N.Y. C.P.L. § 330.30 pre-sentence motion to vacate the jury verdict, which the trial court refused to entertain because the motion was filed pro se while petitioner was represented by counsel. In addition, petitioner filed a N.Y. C.P.L. § 440.10 post-conviction motion to vacate judgment. This motion was denied on June 1, 1998. Petitioner filed an appeal of his conviction to the Appellate Division, Second Department, wherein he raised the following issues: 1) that his conviction was not supported by sufficient evidence; 2) that the trial court did not properly address the deliberating jury's inquiries; 3) that his rights under the Confrontation Clause were violated; 4) that the trial court did not properly address Rosario issues that arose during his trial; 5) that errors committed during jury selection deprived him of a fair trial; 6) that the trial court erred when it denied his request to adjourn sentencing; and that 7) the interests of justice require reversal of his conviction. Petitioner's conviction was affirmed by the Appellate Division on July 25, 2006, and the New York State Court of Appeals denied petitioner leave to appeal on October 30, 2006. See People v. Kotler, 31 A.D.3d 787 (N.Y. App. Div. 2006), leave to appeal denied, 7 N.Y.3d 868 (N.Y. 2006). He did not file a petition for writ of certiorari with the United States Supreme Court.

On or about October 2, 2007, petitioner filed this writ of habeas corpus in the United States District Court for the Northern District of New York. Petitioner's matter was transferred to this Court on October 18, 2007, because the site of petitioner's trial and sentencing was Suffolk County. Respondent submitted his opposition on December 10, 2007, and petitioner's reply was filed on February 4, 2008. The Court has fully considered all of the submissions of the parties. II. STANDARD OF REVIEW To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which provides, in relevant part: (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) resulted in a decision that was based on an unreasonable determination of the facts in

l i g h t of the evidence presented in the State court proceeding. 28 U.S.C. § 2554. "Clearly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. AEDPA establishes a deferential standard of review: "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit added 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 9

judicial incompetence." Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Finally, "if the federal claim was not adjudicated on the merits, `AEDPA deference is not required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo.'" Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)). III. DISCUSSION A. Procedural Bar As a threshold matter, respondent argues that petitioner's claims regarding (1) the Confrontation Clause and (2) the overrepresentation of nurses in his jury panel, are procedurally barred from habeas review by the Court. The Court finds that petitioner's jury composition challenge is barred, but that his Confrontation Clause challenge is not procedurally barred.1 The procedural bar rule in the review of applications for writs of habeas corpus is based on the comity and respect with which state judgments must be accorded. House v. Bell, 547 U.S. 518, 535 (2006). The Supreme Court has held that claims underlying a habeas petition may be procedurally barred from habeas review if they were decided at the state level on adequate and independent procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729-33 (1991). The purpose of this rule is to maintain the delicate balance of federalism by retaining a state's rights to enforce its laws and to maintain its judicial procedures as it sees fit. Id. at 730-31.

In particular, the procedural bar applies when a state court's decision contains a "plain statement" that it is relying on an appropriate state law to deny a claim. Michigan v. Long, 463 U.S. 1032, 1042 (1983). The Supreme Court has consistently applied the Long rule since it was established. See Harris v. Reed, 489 U.S. 255, 261 (1989); see also Ohio v. Robinette, 519 U.S. 33, 37 (1996); Pennsylvania v. Labron, 518 U.S. 938, 941 (1996); Arizona v. Evans, 514 U.S. 1, 7 (1995); Coleman, 501 U.S. at 723; Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). The rule applies both to substantive and procedural state laws. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 327 (1985) (applying the Long "plain statement" rule to a procedural state law). Further, "the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Id. With regard to petitioner's claims in this case, "[b]ecause the Court of Appeals denied leave to appeal, this Court must look back to the last reasoned decision," specifically the Appellate Division's decision that affirmed petitioner's judgment of conviction on direct appeal. Harvey v. Mazzuca, No. 04 Civ. 8019 (PKC), 2006 WL 1529325, at *7 (S.D.N.Y. May 12, 2006); see also Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) (stating that where last reasoned opinion on claim explicitly imposes procedural default, it should be presumed later decision rejecting claim did not silently disregard bar and consider merits); Levine v. Comm'r. of Corr. Svcs., 44 F.3d 121, 126 (2d Cir. 1995) (same). 1. Confrontation Clause

1

In any event, both claims are denied on their merits, as discussed infra.

Here, respondent argues that petitioner's 10

objection to the introduction of hearsay testimony as violative of the Confrontation Clause is unpreserved, because the defendant had not specifically cited the Confrontation Clause in his objection at trial and instead o b j e c t e d only on hearsay grounds. (Respondent's Memorandum of Law, at 25.) New York's contemporaneous objection rule requires a specific objection at trial to any constitutional violation. See, e.g., Garvey v. Duncan, 485 F.3d 709, 715-16 (2d Cir. 2007) (finding New York contemporaneous objection rule to be firmly established and regularly followed such that failure to comply with it could result in a procedural bar); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Royster v. Ercole, No. 06 Civ. 12942 (SAS) (JCF), 2008 WL 542505, at *7 (S.D.N.Y. Feb. 29, 2008) ("Under C.P.L. § 470.05(2), the petitioner was required to make a specific constitutional objection to the introduction of the hearsay testimony at issue during trial to preserve his claim for appellate review.") (citations omitted); People v. Kello, 96 N.Y.2d 740, 743-44 (N.Y. 2001) ("Defendant, however, never based his trial objection to the 911 tapes on the Confrontation Clause. Rather, the only issue raised before the trial court was the erroneous admission of the tapes under our State common-law hearsay rule . . . . The defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which, as previously discussed, differs from the trial evidence error which was preserved."); People v. Lopez, 25 A.D.3d 385, 386 (N.Y. App. Div. 2006) ("Although defendant's trial occurred before the decision of the United States Supreme Court in [Crawford v. Washington, 541 U.S. 36 (2004)], that circumstance does not affect defendant's obligation to make a proper constitutional 11

claim, as opposed to a claim grounded in s t a t e evidentiary law."); People v. Mackenzie, 808 N.Y.S.2d 919, 919 (N.Y. App. Div. 2005) (noting that Confrontation Clause challenge "must be interposed with specific reference to the constitutional protection"). However, even though respondent also made this procedural argument on appeal in the state proceedings, the Appellate Division did not expressly hold that Kotler's claim was procedurally barred. In particular, the Appellate Division's decision did not explicitly refer to petitioner's Confrontation Clause challenge, and it simply stated that "his remaining contentions are without merit." Kotler, 31 A.D.3d at 788. Thus, because the appellate court did not deny petitioner's claim on this adequate and independent procedural state ground under New York law, this Court will review his claim on the merits and, for the reasons discussed infra, finds it to be without merit. 2. Jury Composition With respect to petitioner's jury composition claim, the County Court of Suffolk County rejected petitioner's postconviction motion, and the Appellate Division, hearing the case by permission, held that the "[t]he defendant's contention relating to the composition of the jury panel is unpreserved for appellate review." Kotler, 31 A.D.3d at 788. Thus, the Appellate Division explicitly dismissed petitioner's claim as unpreserved under New York law. Although petitioner had raised the argument previously in a motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10, petitioner's claims cannot be raised in a C.P.L. § 440.10 motion as a substitute for direct appeal under New York law. In

addition, even though petitioner argues that he first raised his claims regarding jury selection in a post-verdict motion filed pro se pursuant to C.P.L. § 330.30, this point is irrelevant to the fact that he failed to properly preserve his claim on direct appeal. The Appellate Division correctly held that petitioner's claim was unpreserved. New York C.P.L. § 270.10 requires a criminal defendant to make a motion challenging the composition of the jury trial in writing, before commencement of jury selection. See, e.g., People v. Faulkner, 673 N.Y.S.2d 715, 716 (N.Y. App. Div. 1998) ("By failing to comply with the requirements of CPL 270.10, the defendant waived any objections he may have had to the composition of the jury panel"); People v. Hammock, 681 N.Y.S.2d 184, 185 (N.Y. App. Div. 1998) ("By failing to challenge the composition of the jury panel before jury selection commenced, defendant is deemed to have waived his objection to the composition of the panel"); People v. Davis, 522 N.Y.S.2d 1017, 1019 (N.Y. Sup. Ct. 1987) ("[T]he C.P.L. requirement that challenges to the jury be made `before the selection of the jury commences' is not met when the motion is made after even a single panel of prospective jurors has been sworn and informed of the nature of the indictment."). In Consolazio, the Court of Appeals held that an oral motion prior to jury selection was inadequate to satisfy C.P.L. § 270.10, even if written notice is given after jury selection is completed. 40 N.Y.2d at 455; see also People v. Dukes, 97 A.D.2d 445 (N.Y. App. Div. 1983) (stating that an oral motion to challenge the jury panel does not preserve the issue for later review). The Court of Appeals further held that C.P.L. § 270.10(2) applies to "all challenges to the panel, whatever may be the particular ground advanced." Consolazio, 40 N.Y.2d at 455. 12

Because Kotler failed to raise his objections to jury selection in a written motion, made before the commencement of jury selection, his claims fail as a matter of state law under C.P.L. § 270.10. Thus, in the instant case, the Appellate Division's rejection of petitioner's claim was properly based on an adequate and independent state ground. See, e.g., People v. Consolazio, 40 N.Y.2d 446 (N.Y. 1976); People v. Parks, 41 N.Y.2d 36 (N.Y. 1976). Once it is determined that a claim is procedurally barred under state rules, a federal court may still review such a claim on its merits if the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he can demonstrate that the failure to consider the claim will result in a miscarriage of justice. Coleman, 501 U.S. at 749-50 (citations omitted). A miscarriage of justice is demonstrated in extraordinary cases ­ for example, where a constitutional violation results in the conviction of an individual who is actually innocent. Murray v. Carrier, 477 U.S. 478, 495 (1986). In this case, petitioner seems to argue that his "cause" for default was that he "was unaware that an anomaly had occurred" and "could not have been expected to set forth facts constituting the grounds for a challenge prior to the commencement of jury selection" when he had "a right to proceed up to jury selection upon a presumption of regularity in the process." (Petitioner's Memorandum of Law in Support of Writ of Habeas Corpus ("Petition"), at 34.) Indeed, petitioner does not dispute that he failed to make the required motion under C.P.L. § 270.10. (Petition, at 34.) Nevertheless, petitioner has failed to provide a satisfactory explanation for his failure to raise his objections in a

timely fashion. The record clearly indicates that the trial court agreed and did not view petitioner's request as timely: "You haven't made your challenge in advance." (Tr. 772.) Petitioner and his counsel were well aware of the possibility that they would find the panel objectionable, as reflected by petitioner's trial counsel's statement on the record: "Judge, I understand that the CPL says that you're supposed to challenge the array beforehand." (Tr. 772-73.) Along these lines, prior to the start of jury selection, petitioner had the opportunity to solicit, for example, the juror source list information that his attorney requested by letter dated August 15, 1997. (See Appellate Court Appendix, at A-63.) Instead, petitioner waited until a month after his conviction to request this information. There is also no explanation provided as to why, at the very least, petitioner failed to make his objections in writing once he and his counsel became aware of the jury panel's composition. Because petitioner challenges the entire jury panel and the process by which such prospective jurors were selected, it is clear that any objections to that panel must be made, in writing, prior to the selection of the jury, in order to provide a potential opportunity for a hearing or briefing on the matter before the trial continues. See People v. Parks, 41 N.Y. 2d 36, 40 (N.Y. 1976) ("The evident purpose of the writing requirement is to ensure that the District Attorney and the court have sufficient time to prepare for hearing to resolve disputed issues of fact and law . . . . The requirement of a written detailed notice is designed to prevent the unfair surprise inherent in springing an oral motion upon the prosecutor and the court on the eve of jury selection."). Even if this Court were to accept petitioner's argument regarding cause for 13

failing to preserve his claim, no prejudice has been demonstrated by petitioner. Kotler makes the conclusory statement that "the ultimate over-representation of nurses on the jury panel was particularly prejudicial here where the testimony of a nurse became at issue during the trial." (Petition, at 35.) The Court finds this singular statement unsubstantiated and belied by the record. The testimony to which petitioner refers is that of a medical doctor and not a nurse. (Tr. 3078 - 3107.) In any event, any purported prejudice is purely speculative, particularly in light of the overwhelming evidence of petitioner's guilt in this case. Nor has petitioner demonstrated that a fundamental miscarriage of justice would occur if these claims were not reviewed by the habeas court. To the extent petitioner argues that a miscarriage of justice will result if his claim is not reviewed because he is actually innocent of the crime for which he was convicted, the Court rejects that argument and finds that there was overwhelming evidence of guilt established by the prosecution, as discussed supra. A c c o r d i n g l y , petitioner's claim is procedurally barred from review by this Court. In any event, assuming arguendo that the constitutional right to a trial jury comprised of a fair cross-section of the community claim is reviewable based on cause for default and prejudice resulting therefrom, the claim is substantively without merit, as set forth infra. B. Right to be Present Petitioner claims that his right to be present during all material stages of trial was violated "numerous times when various notes were received by the court from the deliberating jury; when responses to these

notes were formulated; and when action upon them was taken." (Petition, at 9.) As set forth below, this claim has no merit. 1. Applicable Law An accused enjoys a right both at common law and pursuant to the Sixth Amendment's Confrontation Clause to be present at all stages of trial. Illinois v. Allen, 397 U.S. 337, 338 (1970). The defendant's right to be present at trial is also implicated by the fair trial concerns of the Fifth and Fourteenth Amendments, as they require a criminal defendant's presence "`to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Gagnon, 470 U.S. at 526 (quoting Snyder v. Massachusetts, 291 U.S. 97, 108 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964), and citing Faretta v. California, 422 U.S. 806, 819-20 n.15 (1975)); see also United States v. Jones, 381 F.3d 114, 121 (2d Cir. 2004) (same), cert. denied, 543 U.S. 1072 (2005); Polizzi v. United States, 926 F.2d 1311, 1318 (2d Cir. 1991) (citations omitted). A defendant has the right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder, 291 U.S. at 105-06). However, the right to be present is not absolute and the privilege of presence is not guaranteed "when presence would be useless, or the benefit but a shadow." Id. at 745 (quoting Snyder, 291 U.S. at 106-07); see also Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002). Moreover, while a more expansive right to be present may apply under New York law, that broader right is not applicable in a federal habeas proceeding 14

where it does not implicate the rights of the d e f e n d a n t under the United States Constitution. See Rios v. Artuz, No. 07 Civ. 330 (NGG), 2007 WL 1958899, at *9 n.4 (E.D.N.Y. June 29, 2007). Also, "[a]lthough trial courts must vigorously safeguard a criminal defendant's right to be present, a defendant may expressly or effectively waive the right." Senkowski, 290 F.3d at 491 (quoting United States v. Fontanez, 878 F.2d 33, 36 (2d Cir. 1989)) (additional citations omitted). "A waiver of this guarantee, as the waiver of any constitutional right in a criminal proceeding, must be knowing and voluntary," and the trial court's factual findings "as to whether [petitioner] was knowingly and voluntarily absent will not be disturbed unless `clearly erroneous.'" Polizzi, 926 F.2d at 1319 (citing Sassower v. Sheriff of Westchester County, 824 F.2d 184, 191 (2d Cir. 1987), United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972), Fontanez, 878 F.2d at 36 (internal citations omitted), and Fed. R. Civ. P. 52(a) ("Findings of fact shall not be set aside unless clearly erroneous.")). In addition, "the defendant or his counsel must object at the time of the violation or the defendant's right to be present will be deemed waived." Jones, 381 F.3d at 122 (citing Gagnon, 470 U.S. at 529). Generally, violations of the right to be present during all critical stages of the proceeding are subject to harmless error analysis. Yarborough v. Keane, 101 F.3d 894, 898 (2d Cir. 1996). 2. Deadlock Jury Note Petitioner claims that his right to be present was violated when the trial court unsealed and disclosed the contents of a note from the jury indicating that it was evenly deadlocked. (Petition, at 11.) As set forth

below, the Court disagrees. The record clearly demonstrates that (1) the deadlock note was disclosed to the parties; (2) the judge's proposed response to the note was discussed among the lawyers and the judge, in petitioner's presence, and petitioner was present when the judge's response was agreed upon; and (3) petitioner was present when the instruction was given to the jury. Although the note was also briefly discussed by the lawyers in chambers without petitioner's presence, petitioner consented to not being present for that discussion, the discussion was then summarized on the record, and (as noted above) petitioner was present for the discussion regarding the instruction that would be given and present for the instruction itself. Thus, his right to be present was not violated. "It is settled law that messages from a jury should be disclosed to counsel and that counsel should be afforded an opportunity to be heard before the trial judge responds." United States v. Ronder, 649 F.2d 931, 934 (2d Cir. 1984) (internal citations omitted); accord United States v. Rogers, 422 U.S. 35, 39 (1975) ("[T]he jury's message should have been answered in open court and . . . petitioner's counsel should have been given an opportunity to be heard before the trial judge responded."). The note at issue stated that the jury was deadlocked, with six to five and one undecided. (Tr. 4372.) The court initially sealed the note on the record, deciding that the numbers should not be divulged to the attorneys and defendant. (Tr. 4372.) Because the trial took almost six weeks and the jury at that time had only deliberated for about one full day, the trial court stated, "[b]ecause of the length of the trial I think there should be some further discussion without any 15

problems." (Tr. 4373.) When the court discussed this with counsel, in the presence of the petitioner, counsel for petitioner explicitly agreed that the jury should be directed to continue deliberating, but objected only to the extent that the full contents of the note (including the jury vote) was not being disclosed to counsel and petitioner. (Tr. 4374-81.) Following the court's instruction to the jury to continue its deliberations, counsel and the court discussed whether or not the contents of the note should be disclosed to the prosecution and defense under New York law. (Tr. 4382-84.) Counsel for petitioner stated on the record that petitioner consented to his lawyers having this discussion without him in the judge's chambers. (Tr. 4384.) Finally, on consent of the petitioner and counsel, the trial court disclosed the contents of the jury note to counsel, but not publicly. (Tr. 4391-92.) This Court is not persuaded that petitioner's right to be present was violated in any way by the trial court's handling of this jury note. As the transcript clearly shows, the trial court discussed the note in open court with defendant and counsel present and outside the presence of the jury, in an effort to keep the sensitive material sealed if necessary. The trial court also considered carefully the input of petitioner's counsel and proceeded to allow counsel to research the issue of disclosure and have extended discussions on the issue in chambers. More importantly, there is nothing in the record to indicate anything on the part of petitioner but full awareness and consent to the instruction given to the jury to continue deliberations following the deadlock jury note, as well as consent to the court having discussions with counsel in chambers outside the petitioner's presence. Indeed, the following exchange took place on

the issue: THE COURT CLERK: The defendant and the attorneys are still in the courtroom. MR. LITMAN: I've spoken to my client and he's perfectly agreeable and consents to the lawyers alone going with you in the back room, if that's okay. THE COURT: It is okay with me. MR. LITMAN. Okay. ... (Whereupon, the Court and counsel entered the judge's chambers.) THE COURT: Note that the defendant is not here. You agree? MR. LITMAN: Yes, we put that on the record, sir. (Tr. 4384.) Right before the jury was brought out for the instruction, moreover, the court again discussed, in the presence of petitioner, the following with petitioner's counsel: MR. LITMAN: [o]ur request is that when the jury comes back, you say with respect to the note you previously sent, I ask you to continue to deliberate. If you continue to be deadlocked, please let us know, but you don't have to 16

let us know the numbers anymore. That's my request. THE COURT: Fine. Yeah, because ordinarily the note that comes back is we're deadlocked, period. Right. (Tr. 4400-01.) Thus, the Court finds that petitioner was in fact present for all material discussions regarding the jury note and waived any further presence in the trial court's chambers for discussion on the law. He further had opportunity to once again voice any objections with and through his counsel before the jury instruction was finally given. Thus, the Court denies petitioner habeas relief on this ground. See, e.g., Edwards v. Fischer, 414 F. Supp. 2d 342, 363 (S.D.N.Y. 2006) (petitioner's absence from judge's robing room when judge received deadlock jury note did not violate his due process right to be present because "[p]etitioner fails to demonstrate how his presence at the robing room conference would have benefitted his defense, or that his absence in the least bit compromised the fairness of his trial"); cf. Pellington v. Greiner, 307 F. Supp. 2d 601, 607 (S.D.N.Y. 2004) (judge's discussion with juror in presence of counsel and court reporter regarding conduct of another juror did not violate petitioner's constitutional right to be present); Gillespie v. Miller, No. 04 Civ. 0295 (LAP) (AJP), 2004 WL 1689735, at *17 (S.D.N.Y. July 29, 2004) ("Gillespie was present during trial through the jury charge and had the opportunity to contribute and consult with his attorney, and was only absent when his attorney made an additional objection to the jury instructions to place it on the record for later appeal. Thus, Gillespie was not absent during a `material' stage of his trial.") (citations

omitted). 2. List of Items in Evidence Petitioner next claims that in response to a jury note requesting a list of items in evidence, the court and counsel, in his absence and without his knowledge, "formulated a two prong response," which "resulted in all the trial exhibits being immediately sent into the jury room" and "the court directing the court clerk to prepare an `exhibit list' that was subsequently furnished to jurors." (Petition, at 11-12.) As set forth below, petitioner's claim is meritless, and there is no basis to conclude that a constitutional violation occurred. First, the record does support petitioner's assertion that the initial response to the jury note was discussed outside his presence, but in the presence of counsel. (Tr. 4393.) The trial court, with input and consent of counsel, initially responded to the jury's request for a list of items in evidence by furnishing all of the trial exhibits not yet provided. (Tr. 439497.) Counsel for petitioner stated that he would speak to his client regarding his consent to an exhibit list: MR. HINRICHS: I would like everything, including the photographs, to go in and we can work the details of the list, Your Honor. THE COURT: Okay, fine; y o u ' r e both essentially agreeing to that. MR. HINRICHS: Right, and we'll work out the details of the list together.

MR. LITMAN: Let me check with him, but I think he's in agreement with that. THE COURT: Oh, come on. MR. LITMAN: Judge, it's his trial, not mine. THE COURT: I know it's his t r i a l , b u t you ' r e s o experienced, Jack. MR. LITMAN: I know, but it is his trial. THE COURT: It's his trial. Go talk to him. (Tr. 4397.) Then, the following took place in the courtroom, in the presence of counsel and the defendant: THE COURT: With your consent, gentlemen, I ­ we already sent, with your consent, the ­ all the items of evidence in, since you were both ­ when I say both, the defense and the prosecution, going over a list to furnish the jury, but we did send all items of evidence in to see if they could pick them from that. MR. LITMAN: Right, and we're going to be in the process of preparing a list of the exhibits to go in. THE COURT: And when you consent to a list, we'll send that list in. 17

MR. LITMAN: And I appreciate you just mentioning to the jury that we're in the process of making it. THE COURT: I will. I will. (Tr. 4398-99.) When the jury was reassembled, however, the jury foreperson stated that the jury did not want to see all of the exhibits. (Tr. 4404.) The trial court then stated that a list describing each item would be made and sent to the jury so they could discern which exhibits they wanted in writing. (Tr. 4404.) It is clear from the record that petitioner was consulted by his counsel prior to his counsel confirming his consent for the record on the issue of this exhibit list. It is also clear that petitioner was present in court when the exhibit list was further discussed by the court and the parties, and petitioner's counsel specifically made requests regarding the details of the list. Moreover, these discussions about the list took place over two days, July 17 and July 18, 1997, until the list was completed. Indeed, the next morning the court informed petitioner and counsel that the list had been prepared by the court clerk and needed to be reviewed and initialed by counsel. (Tr. 4409.) At no time during this entire two-day period did petitioner or his counsel object to the creation of an exhibit list for the jury. Therefore, petitioner was not denied his right to be present with respect to the jury's request for an exhibit list or the creation of that exhibit list. Petitioner further argues that "after `all' the unrequested trial exhibits were provided, a portion of this evidence was arbitrarily removed from the deliberative process" 18

without petitioner's knowledge. (Petition, at 12.) Specifically, the record contains a posttrial affidavit from one of petitioner's trial attorneys stating the following: During jury deliberations in the trial of the abovecaptioned matter, at our request, we together with the prosecuting attorneys, were provided by court personnel with certain exhibits and an exhibit list, both of which had been retrieved from the jury as they deliberated. I sat down with the prosecuting attorneys, Randall-Hinrichs and Thomas Costello, and examined these exhibits for the purpose of specifying, with greater particularity, their description on the index of all the exhibits. These items of evidence were later returned to the jury, along with the newly drafted index, as the jury continued to deliberate. (Appellate Court Appendix ("A."). 83.) This occurrence is not reflected in the trial transcript and it is unclear from the affidavit how long the exhibits were removed from the jury room to assist in the preparation of the exhibit list. Petitioner claims that he was unaware that this action had occurred. (Petition, at 15.) The Court concludes, however, that any temporary removal of trial exhibits from the jury room in connection with the preparation of the exhibit list did not violate petitioner's constitutional rights in any way. Based upon his counsel's affidavit, it is clear that the exhibits were returned to the jury room, and there is no indication that

the jury at any point was denied access to an exhibit that they wished to review. In fact, when the jury requested a list of items in evidence, and the court sent them all the evidence while the list was being prepared, the jury foreperson told the court, "[w]e didn't want you to bring them all in." (Tr. 4404.) Thus, there is no basis for concluding that any temporary removal of the exhibits from the jury room to allow the exhibit list to be prepared prejudiced the petitioner in any way, or that his purported lack of knowledge as to that fact violated his constitutional rights. In short, although the court initially discussed the note regarding the exhibit list with counsel on the record in chambers, petitioner was present in court when the note was subsequently discussed, and it was agreed that an exhibit list would be prepared by the lawyers for submission to the jury. Thus, the record is abundantly clear that petitioner knew of the note, was present when it was discussed in court, and knew his lawyer was involved in preparing an exhibit list for submission to the jury. Therefore, there is no basis for any claim of violation of his constitutional right to be present in connection with that note. In sum, the Court rejects petitioner's claim that the trial's court handling of jury notes violated his constitutional right to be present. He has failed to show any absence that had any "relation, reasonably substantial, to the fulness of his opportunity to defend against the charge," Kentucky v. Stincer, 482 U.S. 730, 745 (1987), and there is no basis to conclude that the state court's decision on these issues was contrary to, or an unreasonable application of, federal law. C. Right to Judicial Oversight: 911 Tape In the instant case, petitioner also claims 19

that the court clerk, "upon her own initiative, and without the authority and knowledge of the presiding justice, furnished the deliberating jury with a 911 tape of the complainant's initial call to police." (Petition, at 10.) However, as set forth below, there is no evidence that the jury was ever given the 911 tape (or ever listened to it during deliberations) and, in any event, petitioner has not demonstrated any prejudice, even assuming arguendo that the jury did receive it. The record indicates that on July 16, 1997, a note from the jury was discussed with counsel and the petitioner. (Tr. 435051.) The note requested several items, two of which were crossed off; the first was a statement of a witness, Laurel Edwards, and the second was a 911 tape of the victim reporting the crime to the police. (Tr. 4350.) The record shows that upon receiving this note, the trial judge disclosed its contents in open court, outside the jury's presence, and noted the two items that were crossed off. (Tr. 4350-51.) The affidavit of Laurel Edwards had been directed by the trial court to be disclosed in response to a previous note, which had mistakenly requested the deposition of a Laurel Andrews. (Tr. 434647.) Also in response to an earlier jury note, the trial court made clear that there was no tape of the dispatcher, even though the dispatcher had testified at trial. (Tr. 4347.) The court also stated in the presence of counsel that the 911 tape and a tape of the dispatcher were distinct. (Tr. 4342.) Petitioner claims that the 911 tape nonetheless was given to the jury, against the direction of the court. However, the record does not support this contention. The following dialogue took place between the trial court judge and clerk on the issue of the

tape: THE COURT: 7-16 ­ the new note is 7-16-97, 2:30 p.m. They themselves put the time on. "Please give us" ­ and I'm going to read one and two, even though one and two are crossed out, so I don't know whether one and two are crossed out forever or crossed out to show me that they don't want what's on the first note, I'll have to ask them that. Number one, crossed out, is 911 tape. That's crossed out. That was not on the first note. Number two, Laurel Edwards' dispositionaffidavit,andthatiscrossedout,soI'mgoing to ask them whether they want that because they, in the first note ­ THE COURT CLERK: Judge, they've already been provided with that, pursuant to your direction. THE COURT: What is that? T H E COURT CLERK: Pursuant to your direction they were already provided ­ THE COURT: They were already provided ­ when, when they went back in now? THE COURT CLERK: Yes. (Tr. 4350-51.) As the court clerk's statement that what was provided was done so "pursuant to [the trial judge's] direction," it is clear that this statement applied to the Laurel Edwards affidavit, which the court had directed be 20

provided to the jury, and not the 911 tape, as petitioner contends. Moreover, there is nothing in the record to reflect that the jury was ever furnished with a tape recorder to play any tape in the jury room. Thus, there is no indication that the jury was in fact furnished with the 911 tape and no support for petitioner's position. See Gaines v. Kelly, 202 F.3d 598, 601 (2d Cir. 2000); see also Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts may not "grant[] habeas relief on the basis of little more than speculation with slight support"). In sum, the record reflects that the trial court gave proper attention to the jury's requests and did not direct the submission of the 911 tape, and petitioner has failed to establish that the tape was indeed given to the jury. Moreover, even assuming arguendo that it was given to the jury, there was no prejudice to the defendant because, as noted supra, the court sent all the other trial exhibits back to the jury room during the deliberations (while the exhibit list was being prepared). Under these circumstances, there is no reason to believe that defendant's c o n s t i t u t i o n a l rights were violated. Specifically, there is no evidence that there was a lack of judicial oversight, intentional or inadvertent, that undermined the fundamental integrity of petitioner's criminal trial. Cf. United States v. Grant, 52 F.3d 448, 451 (2d. Cir. 1995) (holding that judge's absence during readback of testimony in the courtroom did not violate defendant's right to a proper jury trial); Christian v. Artus, No. 04 Civ. 10174 (MHD), 2006 WL 2463432, at *9 (S.D.N.Y. Aug. 23, 2006) ("The Appellate Division properly determined that no judicial authority had been delegated by the trial judge in this case because the court remained available at all times to make any necessary inquiries . . . . There was no danger of

anyone but the judge exercising the court's adjudicatory power[.]"). D. Access to Counsel Petitioner further alleges that "[t]he trial judge placed totally unnecessary restrictions upon the petitioner's ability to confer with counsel by repeatedly admonishing the petitioner when he attempted to confer with his attorney during the trial." (Petition, at 15.) Respondent's position is that this argument is unexhausted and was not previously raised in the state court proceedings. The Court agrees that the claim is unexhausted and can no longer be presented in state court, and no showing of "cause or prejudice" or actual innocence has been made. In any event, the Court also finds the claim frivolous on the merits. Pursuant to 28 U.S.C. § 2254(b)(1)(A), a federal habeas petition must be dismissed if the petitioner has failed to exhaust all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State."). "This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman, 501 U.S. at 731; see Rhines v. Weber, 544 U.S. 269, 276 (2005) ("This [statutory] scheme reinforces the importance of [the] `simple and clear instruction to potential litigants [enunciated in Rose v. Lundy, 455 U.S. 509, 520 (1982)]: before you bring any claims to federal court, be sure that you first have taken each one to state court.'"); Jones v. Keane, 21

329 F.3d 290, 294 (2d Cir. 2003) ("By r e q u i r i n g exhaustion, federal courts recognize that state courts, `no less than federal courts, are bound to safeguard the federal rights of state criminal defendants.' ") (quoting Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Therefore, pursuant to the exhaustion requirement, a petitioner must provide the state courts with an opportunity to consider fully each of his habeas claims; that is, "state review ends when the state courts have finally resolved an application for state postconviction relief." Roper v. Weaver, 550 U.S. 598, 601 (2007) (quoting Lawrence v. Florida, 549 U.S. 327, 332 (2007)); see Jones, 329 F.3d at 294-95 ("Exhaustion requires a petitioner fairly to present the federal claim in state court.") (citing Strogov v. Attorney Gen. of New York, 191 F.3d 188, 191 (2d Cir. 1999)). Nonetheless, if a habeas petitioner could no longer raise unexhausted federal claims in state court under state procedural rules, a federal court could deem his claims exhausted for purposes of habeas review. 28 U.S.C.A. § 2254; see also Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) ("When a `petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' the federal habeas court should consider the claim to be procedurally defaulted") (quoting Coleman, 501 U.S. at 735 n.1 (1991)); Acosta v. Giambruno, 326 F. Supp. 2d 513, 522 (S.D.N.Y. 2004) ("[Petitioner] cannot again seek leave to appeal these claims in the [New York] Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. Accordingly, the Court may deem his claim exhausted.

N e v e r t h e l e s s , as discussed below, [petitioner's] inability to r