Forino v. Lee

Filing 28

MEMORANDUM & ORDER [DISMISSING CASE]: The Court denies Petitioner's application for a writ of habeas corpus. Because Petitioner has not made a substantial showing of the denial of any constitutional right, no certificate of appealability shal l be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. SO ORDERED by Judge Margo K. Brodie, on 12/19/2016. C/mailed to pro se Petitioner. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JOSEPH FORINO,
Petitioner,

MEMORANDUM & ORDER
10-CV-5980 (MKB)

v.
WILLIAM LEE,
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Joseph Forino, proceeding pro se, brings the above-captioned petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody
in violation of his federal constitutional rights. (Pet. for Writ of Habeas Corpus (“Pet.”), Docket
Entry No. 1.) Petitioner’s claims arise from a 2009 judgment of conviction entered in the New
York State Supreme Court, Nassau County, following a jury verdict convicting Petitioner of
attempted burglary in the second degree. (Id. at 2.) Petitioner was adjudicated a persistent,
violent felony offender and sentenced to an indeterminate prison term of twelve years-to-life.
(Id. at 1–2.) Petitioner appealed his conviction to the New York State Supreme Court, Appellate
Division, Second Department (the “Appellate Division”). By decision dated September 22,
2009, the Appellate Division unanimously affirmed Petitioner’s conviction. People v. Forino,
887 N.Y.S. 2d 114 (App. Div. 2009). On December 14, 2009, the New York Court of Appeals
denied Petitioner’s application for leave to appeal. People v. Forino, 13 N.Y.3d 907 (2009).
Petitioner timely filed the instant petition for a writ of habeas corpus on December 20, 2010, and

subsequently filed an amended petition on May 21, 2012.1 (Pet.; Am. Pet. for Writ of Habeas
Corpus (“Am. Pet.”), Docket Entry No. 22.) Petitioner asserts that he was: (1) denied his right to
an impartial jury by the state court’s improper denial of his for-cause challenges to prospective
jurors; (2) denied due process and the right to a fair trial by the state court’s failure to issue or
repeat instructions concerning circumstantial evidence, a renunciation defense and Molineux2
evidence; (3) denied due process and the right to a fair trial by the state court’s dismissal of a
juror during trial; (4) denied his right to an impartial jury by the state court’s failure to hold a
preclusion and Ventimiglia3 hearing before admitting certain evidence; and (5) denied due
process and the right to a fair trial because the evidence at trial was legally insufficient and the
verdict was against the weight of the evidence. (Am. Pet. at 15–16.)4 For the reasons set forth
below, the amended petition is denied.

1

In the petition and the amended petition, under each of the four grounds asserted as a
basis for relief, Petitioner wrote “See Attached Table of Contents.” (See Pet. 5–11; Am. Pet. 5–
11.) Petitioner annexed a copy of the table of contents to his Appellate Division brief, which
lists five distinct claims. (Pet. 15–16; Am. Pet. 15–16.) Though it is unclear whether Petitioner
intends to raise all five claims listed in the table of contents, the Court is mindful that “[a]
document filed pro se is to be liberally construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, the Court interprets the petition “to
raise the strongest arguments that [it] suggest[s]” and will address all five claims. Triestman v.
Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006).
2

See People v. Molineux, 168 N.Y. 264, 293 (1901) (holding that evidence of other
crimes, wrongs or bad acts may not be admitted as propensity evidence, but may be admitted for
other purposes, such as to establish motive, opportunity, intent, preparation, identity or absence
of mistake).
3

See People v. Ventimiglia, 52 N.Y.2d 350, 362 (1981) (holding that the government is
required to obtain advance judicial approval for the admission of other crimes/bad acts
evidence).
4

Because the amended petition is not consecutively paginated, all citations to pages of
the motion refer to the electronic document filing system pagination. Neither the petition nor the
2

I.

Background
a.

Incident and arrest

On September 1, 2005, a resident of Oceanside, Nassau County observed Petitioner as he
tried to open the front doors, looked into windows and walked into the yards of a number of
houses in a residential neighborhood. (T. 313–17, 319–36.)5 After following Petitioner, the
resident called the police and identified Petitioner to the responding officer. (T. 326–28.) The
officer subsequently observed Petitioner stop at the home of Robert and Marie Paul, put on a pair
of gloves, open the gate to the side yard and approach the locked sliding glass doors on the side
of the house. (T. 434–37, 449, 484–85.) Petitioner opened the exterior screen door and tugged
repeatedly on the interior sliding glass door. (T. 438–39, 454–55, 485.) Petitioner failed to gain
entry to the house and returned to the street, where he was arrested by the responding officer.
(T. 442–43.) Petitioner was charged with attempted burglary in the second degree. (Am. Pet. 1.)
b.

Jury selection

During voir dire, defense counsel’s objections to four prospective jurors “for cause” were
each denied and defense counsel used peremptory challenges to strike the first three prospective
jurors but could not exercise a peremptory challenge as to the fourth juror because he had
exhausted his peremptory challenges at that point. (T. 260–61.) The fourth juror indicated that
he was familiar with the neighborhood where the crime took place, and that it might be possible

amended petition sets forth arguments in support of the relief sought. However, on July 13,
2012, Petitioner filed a Traverse and Memorandum of Law ((“Pet. Mem.”), Docket Entry No.
23), to which the court refers for Petitioner’s legal arguments.
5

“T.” refers to the transcript of Petitioner’s jury trial held in New York Supreme Court,
Nassau County from February 21 to March 1, 2007. (Docket Entry Nos. 12-3, 12-4, 12-5, 12-6,
12-7, 12-8, 12-9.) “S.” refers to the transcript of Petitioner’s sentencing proceedings. (Docket
Entry No. 12-10.)
3

that he would recognize one of the testifying police officers by sight and that some of the names
sounded familiar. (T. 252–54; 260.) When asked if his knowledge of the neighborhood or
potential familiarity with police officers would prevent him from sitting as a fair and impartial
juror, the juror replied, “I don’t think so.” (T. 254.) After indicating that he would accept or
reject police testimony as he would any other witness, defense counsel asked the juror whether
he would give a police officer he knew “a little more credence” than one he did not know. (Id.)
The juror replied, “It’s possible.” (Id.) The trial judge denied defense counsel’s request to strike
the juror “for cause” based on these answers. (T. 260–61.) The juror was seated on the jury. (T.
260–61.) Counsel continued voir dire until the trial judge indicated “time’s up” right after
defense counsel questioned the prospective first alternate juror about her familiarity with the
neighborhood where the crime occurred. (T. 255–56.) Defense counsel asked for “a little more
time” but the trial judge denied the request. (T. 256.) Defense counsel did not object to that
juror’s selection as an alternate juror. (T. 262.)
c.

Trial

On the first day of trial one of the selected jurors told the court that she had been in a car
accident that day and requested a special chair. (T. 271.) The juror asked to go home early that
day, but the trial court persuaded her to stay for the full day. (T. 418.) The next day, the juror
called and told the court clerk that she was in pain and that she had an appointment to see a
doctor later that day. (T. 417, 419.) Over Petitioner’s objection, the juror was excused and
replaced with an alternate juror. (T. 426–27.)
At trial, the responding officer testified that he observed Petitioner walk up to a house,
put on a pair of gloves, open a screen door, go into the side yard and attempt to open a locked
glass door. (T. 434–37, 449, 484–85.) An eyewitness testified that she observed Petitioner

4

looking into her neighbor’s windows and trying to open doors prior to committing the underlying
offense. (T. 313–17.) Defense counsel objected to the inclusion of this evidence without a
Molineux hearing but the trial judge overruled the objection. (T. 695–96.) Defense counsel also
objected to testimony by the same eyewitness concerning the eyewitness’ out of court
identification of Petitioner because he was not given notice of the identification. (T. 370–73,
401–15.)
Prior to summation, Defense counsel requested jury charges on circumstantial evidence,
renunciation and Molineux evidence. (T. 681–82, 686–89, 694–95, 697–98.) Defense counsel
argued that the circumstantial evidence charge was proper for the following reason:
[T]here’s no direct evidence of attempted burglary meaning there is
no evidence whatsoever of any intent to commit a crime therein and
there really isn’t any direct evidence of the fact that he attempted to
enter unlawfully knowing more than as I said that he really
trespassed on the open area.
(T. 697–98.) Defense counsel argued that the renunciation charge was proper because the
responding officer testified that Petitioner “went up to the door and then left . . . the property
solely” establishing that Petitioner renunciated the crime. (T. 682.) Defense counsel argued that
a Molineux charge would be proper to “minimize” the Molineux evidence which he maintained
was improperly admitted without a hearing. (T. 681.) The trial court denied each request. (T.
695–98.)
d.

Jury verdict and sentence

On March 1, 2007, the jury convicted Petitioner of attempted burglary. (T. 777–781.)
Petitioner was adjudicated to be a persistent violent felony offender and sentenced to an
indeterminate term of imprisonment of twelve years to life. (S. 5, 12–13.) The court also
imposed a fine of $1,000.00, as well as applicable fees and surcharges totaling $320.00. (S. 13.)

5

e.

Appeals

Petitioner appealed his sentence to the Appellate Division on the grounds that the trial
court: (1) improperly refused to exclude certain prospective jurors; (2) failed to issue jury
instructions concerning circumstantial evidence, a renunciation defense and evidence of
Petitioner’s prior conduct; (3) erred in discharging and replacing an injured juror; (4) improperly
imposed time limits on voir dire; and (5) improperly allowed certain identification and prior-act
testimony without proper hearings. (Am. Pet. 2, 15–16.) On September 22, 2009, the Appellate
Division affirmed Petitioner’s conviction. Forino, 887 N.Y.S.2d at 114. The Appellate Division
determined that the verdict was not against the weight of the evidence and the trial court: (1) did
not “improvidently refuse to excuse certain prospective jurors” because all the challenged jurors
indicated they would be able to follow the law and none of their responses rose to the level of
actual bias; (2) properly refused to issue (a) a circumstantial evidence charge because the
evidence against Petitioner was both direct and circumstantial, (b) a Molineux charge because the
evidence of defendant’s guilt was overwhelming and there was no evidence that the error
contributed to Petitioner’s conviction, and (c) a renunciation charge because no “reasonable view
of the evidence support[ed]” a finding of the affirmative defense of renunciation; (3) properly
discharged and replaced the injured juror but, as a threshold matter, Petitioner’s contention was
unpreserved for appellate review because Petitioner did not seek to exercise a challenge against
the alternate juror at trial; (4) properly set time limits for voir dire; and (5) committed harmless
error when it “failed to give the defendant statutory notice of a police-arranged showup
identification.” Forino, 887 N.Y.S.2d at 115–17. On December 14, 2009, the New York Court
of Appeals denied Petitioner’s application for leave to appeal. Forino, 13 N.Y.3d at 907.
On April 21, 2010, Petitioner filed a motion pursuant to New York Criminal Procedure

6

Law (“NYCPL”) section 440.20 to set aside his sentence on the grounds that it was
unauthorized, illegally imposed or invalid as a matter of law because the sentencing court
improperly directed the collection of his fine through civil judgment. (Am. Pet. 3.) On July 15,
2010, the state court rejected Petitioner’s motion. Petitioner did not seek leave to appeal this
decision.6 (Id.)
Petitioner timely filed the instant petition for a writ of habeas corpus on December 20,
2010. (See Pet.) On January 10, 2011, Petitioner filed a request to stay the decision on the
petition to allow him to exhaust a sixth claim for ineffective assistance of appellate counsel.
(Mot. for Stay, Docket Entry No. 8.) The Court granted Petitioner’s request and advised
Petitioner to return to the Court with an amended petition upon the resolution of his state court
error corum nobis proceeding. (Order dated Jan. 24, 2011.) Petitioner subsequently filed a
motion for a writ of error corum nobis on the grounds that his counsel was ineffective for failing
to raise “any federal questions of law” in Petitioner’s direct appeal. (Petition for Writ of Error
Corum Nobis at 13, Docket Entry No. 16-2.) Petitioner’s motion for writ of error corum nobis
was denied on December 6, 2011 because “appellant has failed to establish that he was denied
the effective assistance of appellate counsel.” See People v. Forino, 933 N.Y.S.2d 901, 901
(App. Div. 2011). The Court of Appeals subsequently denied leave to appeal on February 29,
2012. People v. Forino, 18 N.Y.3d 924, 924 (2012). Petitioner does not raise an ineffective
assistance of counsel claim in the amended petition.

6

Petitioner indicates that the basis of his section 440.20 motion was that “the portion of
the sentence imposed a $1,000.00 fine, by [c]ivil judgment was imposed in violation of
[NY]C.P.L. § 440.20.” (Am. Pet. 3.) Petitioner does not make any related claims in his habeas
petition.
7

II. Discussion
a.

Standard of review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), an application for a writ of habeas corpus by a person in custody
pursuant to a state court judgment may only be brought on the grounds that his or her custody is
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A petitioner is required to show that the state court decision, having been adjudicated on the
merits, is either “contrary to, or involved an unreasonable application of, clearly established
Federal law” or “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); see also Hittson v. Chatman, 576
U.S. ---, ---, 135 S. Ct. 2126, 2126 (Jun. 15, 2015); Woods v. Donald, 575 U.S. ---, ---, 135 S. Ct.
1372, 1374 (Mar. 30, 2015) (per curiam); Johnson v. Williams, 568 U.S. ---, ---, 133 S. Ct. 1088,
1091 (Feb. 20, 2013).
For the purposes of federal habeas review, “clearly established law” is defined as the “the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court
decision is “contrary to,” or an “unreasonable application of,” clearly established law if the
decision (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a
conclusion different than that reached by the Supreme Court on “materially indistinguishable”
facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of
the petitioner’s case. Id. at 412–13. Factual determinations made by the state court are
presumed to be correct, and the petitioner bears the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

8

b.

Prospective jurors

Petitioner claims that he was denied his right to an impartial jury because the state court
improperly denied several “for cause” challenges to prospective jurors, forcing Petitioner to
exercise peremptory challenges. (Am. Pet. 15; Pet. Mem. 6.) Petitioner exercised peremptory
challenges to three of the four veniremen whom Petitioner believes should have been excused
“for cause,” and one of the four, was seated on the jury because Petitioner had exhausted his
peremptory challenges. (Pet. Mem. 6.) Respondent argues that Petitioner’s claim is meritless
because (1) denial of the challenges to the unseated jurors was not constitutional error and (2) as
to the seated juror, the Appellate Division correctly upheld the denial. (Respondent Mem. of
Law in Opp’n (“Resp’t Opp’n”) 4–5, Docket Entry No. 12.)
To succeed on a claim that a trial court improperly denied “for cause” challenges, a
petitioner must show that the trial court prevented the empaneling of an impartial jury and
violated the petitioner’s due process rights; for example where a “for cause” challenge was
improperly denied and a bias juror was seated. See United States v. Martinez-Salazar, 528 U.S.
304, 316 (2000) (“Nor did the District Court’s ruling result in the seating of any juror who
should have been dismissed for cause. As we have recognized, that circumstance would require
reversal.”) The mere loss of a peremptory challenge does not constitute a violation of a
defendant’s constitutional right to an impartial jury. See Rivera v. Illinois, 556 U.S. 148, 152
(2009) (stating that “peremptory challenges are not of federal constitutional dimension”);
Martinez-Salazar, 528 U.S. at 311 (explaining that, while the Supreme Court has “long
recognized the role of the peremptory challenge in reinforcing a defendant’s right to trial by an
impartial jury,” “such challenges are auxiliary”); Brown v. Conway, 483 F. App’x 593, 594
(2d Cir. 2012) (“The Supreme Court has repeatedly held that there is no federal constitutional

9

right to peremptory challenges.”); Occhione v. Capra, No. 14-CV-3637, 2015 WL 3879534, at
*18 (E.D.N.Y. June 24, 2015) (“The Court of Appeals for the Second Circuit has found that a
defendant's right to exercise a peremptory challenge is a matter of state law that does not
implicate federal constitutional rights.”). The process of empaneling a jury is committed to the
sound discretion of the trial court. See United States v. Torres, 128 F.3d 38, 44 (1997) (stating
that the trial court has “broad discretion in its rulings” when impaneling a jury); United States v.
Maldonado-Rivera, 922 F.2d 934, 970 (2d Cir. 1990) (“The conduct and content of voir dire are
entrusted to the broad discretion of the trial judge.”); see also Fulton v. Graham, 802 F.3d 257,
257 (2d Cir. 2015) (“A federal court is required to presume that a state court’s factual findings
are correct and to place on the [p]etitioner the burden of rebutting this presumption by clear and
convincing evidence.”).
Here, the Appellate Division’s decision regarding the juror challenges was not an
unreasonable application of clearly established Supreme Court precedent. See Hittson, 576 U.S.
---, ---, 135 S. Ct. at 2126. The Appellate Division determined that the trial court’s denials of all
of Petitioner’s “for cause” challenges were proper. Forino, 887 N.Y.S.2d at 114 (“Contrary to
the defendant’s contentions, the trial court did not improvidently refuse to excuse certain
prospective jurors for cause . . . .”). The Appellate Division found that “none of [the] responses”
by the challenged jurors, including the seated juror, who was empaneled, “rose to the level of
actual bias.” Id. Petitioner offers no evidence to the contrary. During voir dire, the seated juror
indicated that he was familiar with the neighborhood where the crime took place, and that it
might be possible that he would recognize one of the testifying police officers by sight and that
some of the names sounded familiar. (T. 252–54.) When asked if his knowledge of the
neighborhood or potential familiarity with police officers would prevent him from sitting as a

10

fair and impartial juror, the seated juror replied, “I don’t think so.” (T. 254.) After indicating
that he would accept or reject police testimony as he would any other witness, defense counsel
asked the seated juror whether he would give a police officer he knew “a little more credence”
than one he did not know and the seated juror replied, “It’s possible.” (T. 254.) However, there
is no evidence in the record that the seated juror knew any of the police officers that testified and
therefore no evidence that he “possibl[y]” gave more credence to the testimony of any of the
witnesses based on his knowledge of or relationship with the witness, which could have
potentially made him a biased juror. Thus, there is no evidence that the trial court allowed the
empanelment of a biased juror and the loss of a peremptory challenge does not violate a
constitutional right. See Martinez-Salazar, 528 U.S. at 316; Rivera, 556 U.S. at 152.
Accordingly, Petitioner’s claim based on challenges to prospective jurors is denied.
c.

Denial of jury charges

Petitioner raises three due process challenges to the jury charge. Petitioner argues that he
was denied due process and the right to a fair trial because the trial court: (1) erred in not giving
a circumstantial evidence charge, (2) erred in not giving a charge on New York’s affirmative
defense of renunciation, and (3) erred in denying his request for a second Molineux charge. (Pet.
Mem. 9–21.)
“[F]ederal habeas corpus does not lie for errors of state law . . . . In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations
omitted). For an erroneous state jury charge to result in a federal constitutional deprivation that
may be eligible for habeas relief, “the ailing instruction by itself [must have] so infected the
entire trial that the resulting conviction violates due process.” Blazic v. Henderson, 900 F.2d
534, 541 (2d Cir. 1990) (alteration in original) (citing Cupp v. Naughten, 414 U.S. 141, 147
11

(1973)); see also Gibbs v. Donnelly, 402 F. App’x 566, 568 (2d Cir. 2010) (explaining that the
Second Circuit has held that obtaining habeas relief “on the ground of error in a state court’s
instructions to the jury on matters of state law, the petitioner must show not only that the
instruction misstated state law but also that the error violated a right guaranteed to him by federal
law” (citing Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001))); Norwood v. Artis, 487 F. Supp.
2d 321, 332–34 (W.D.N.Y. 2007) (“[T]he trial court’s failure to issue a properly requested jury
charge does not, standing alone, violate petitioner’s right to due process.” (first citing Blazic, 900
F.2d at 541; and then citing Cupp, 414 U.S. at 147)). The Court considers each challenged jury
charge separately.
i.

Circumstantial evidence jury charge

Petitioner argues that there “was no evidence whatsoever of any intent to commit a
crime” and no direct evidence of Petitioner’s attempted entry, and that the “only [possible]
inference” was that Petitioner committed the lesser crime of criminal trespass. (Pet. Mem. 11–
12.) Respondent argues that (1) Petitioner fails to allege a violation of a federal constitutional
right and (2) Petitioner’s state law claim fails because (a) the lack of direct evidence as to only
one element of a crime, such as intent, does not require a circumstantial evidence charge and (b)
the People presented direct evidence of the attempted burglary. (Resp’t Opp’n 9–11.)
“Under New York law, in criminal cases which depend entirely upon circumstantial
evidence[,]. . . the facts from which the inference of the defendant’s guilt is drawn must be
established with certainty — they must be inconsistent with his innocence and must exclude to a
moral certainty every other reasonable hypothesis.” Floyd v. Miller, No. 01-CV-2097, 2003 WL
21845995, at *7 (E.D.N.Y. Aug. 6, 2003) (citing People v. Barnes, 50 N.Y.2d 375, 379–80
(1980)); see People v. Carter, 948 N.Y.S.2d 608, 611 (App. Div. 2012) (“Whenever a case relies

12

wholly on circumstantial evidence to establish all elements of the charge, the jury should be
instructed, in substance, that the evidence must establish guilt to a moral certainty.” (internal
citations and quotation marks omitted)); see also Maldonado v. Scully, 86 F.3d 32, 35 n.5 (2d
Cir. 1996) (“Whether the expression used is ‘beyond a reasonable doubt,’ or ‘to a moral
certainty,’ is immaterial, for they are synonymous . . . .” (citation omitted)); Malave v. Smith, 559
F. Supp. 2d 264, 275 (E.D.N.Y. 2008) (stating that a “contention that [a charge based solely on
circumstantial evidence] resulted in a heightened burden of proof is simply incorrect” (citing
Barnes, 50 N.Y.2d at 380)).
However, in a case that includes both direct and circumstantial evidence, the court is not
required to give the circumstantial evidence jury instruction. See Barnes, 50 N.Y.2d at 380
(holding that the relevant “moral certainty” standard “does not apply to a situation where, as
here, both direct and circumstantial evidence are employed to demonstrate a defendant’s
culpability”); see also People v. Roldan, 88 N.Y.2d 826, 827 (1996) (finding that because the
case “involves direct evidence” it “does not qualify for the circumstantial evidence instruction”);
People v. Rodney, 912 N.Y.S.2d 340, 343 (App. Div. 2010) (“There was both direct and
circumstantial evidence of defendant’s guilt and, thus, . . . he was not entitled to a circumstantial
evidence charge.” (citations omitted)); People v. Iverson, 866 N.Y.S.2d 366, 367 (App. Div.
2008) (“A court is required to honor a defendant’s request for this [circumstantial evidence]
charge only where the evidence of his participation in criminal activity is ‘wholly
circumstantial.’” (quoting People v. Guidice, 83 N.Y.2d 630, 636 (1994))).
Here, Petitioner was not entitled to a circumstantial evidence instruction, and therefore
cannot show that his federal due process rights were violated. At trial, the People introduced
direct evidence of Petitioner’s guilt, and as a result, the trial court was not required to instruct the

13

jury on circumstantial evidence. See Barnes, 50 N.Y.2d at 380. Specifically, the responding
police officer testified that he observed Petitioner ring the doorbell of the house he was
attempting to burglarize, put on gloves, open the gate to the side yard and attempt to open the
locked sliding door on the side of the house. (T. 434–37, 449, 484–85.) On appeal, the
Appellate Division held that the trial court “properly declined to provide the jury with a
circumstantial evidence charge since the evidence was both direct and circumstantial.” Forino,
887 N.Y.S.2d at 114. Because the state court’s decision did not violate state law and, more
importantly, did not violate Petitioner’s due process rights, Petitioner cannot demonstrate that the
absence of a circumstantial evidence instruction is a basis for habeas relief. See Gibbs, 402 F.
App’x at 568. The Court therefore denies Petitioner’s claim based on the circumstantial
evidence jury charge.7
ii.

Renunciation defense jury charge

Petitioner argues that the trial court violated his due process rights by failing to charge
the jury on New York’s affirmative defense of renunciation, which allows the jury to consider
whether the crime had been abandoned “under circumstances manifesting a voluntary and
complete renunciation of his criminal purpose.” (Pet. Mem. 17–21 (citing N.Y. Penal Law
§ 40.10(3)).) Respondent argues that (1) Petitioner fails to allege a violation of a federal
constitutional right and (2) Petitioner’s state law claim is without merit because a renunciation
defense jury charge is only proper where (a) the defense is supported by a “reasonable view of
the evidence” and (b) a jury could reasonably have concluded that the defendant proved the

7

Petitioner also asserts that the failure to give the circumstantial evidence charge
violated his Sixth Amendment right. However, he fails to allege how the failure to issue the
charge rose to the level of a Sixth Amendment violation other than his claim that the charge
would have helped the jury perform its “complex analytical function.” (Pet. Mem. 12.)
Petitioner’s claim is best addressed as a due process violation.
14

defense by a preponderance of the evidence, neither of which is the case here. (Resp’t Opp’n 8–
9, 14–15.)
New York law requires the court to charge the jury on an affirmative defense only when
the jury “could reasonably conclude that defendant had proven the existence of the defense by a
preponderance of the credible evidence.” People v. Dolan, 858 N.Y.S.2d 490, 490 (App. Div.
2008); see also People v. Gonzalez, 22 N.Y.3d 539, 545 (2014) (“A defendant is entitled to a
jury charge . . . where the evidence, viewed in the light most favorable to the defendant, is
sufficient for the jury to find by a preponderance of the evidence that the elements of the
affirmative defense are satisfied.”); People v. Miaram, 948 N.Y.S.2d 115, 115 (App. Div. 2012)
(holding that a defendant was not entitled to a jury instruction on an affirmative defense because
there was not sufficient evidence for the jury to find by a preponderance of the evidence that all
the elements of the defense were satisfied). Under New York law, a renunciation is not
“voluntary and complete” if it is motivated by outside circumstances that render the crime more
difficult to complete. N.Y. Penal Law § 40.10(5); see People v. Taylor, 80 N.Y.2d 1, 13 (1992).
Here, the Appellate Division found that the trial court properly declined to charge the
jury on this defense because “no reasonable view of the evidence supports a finding of the
affirmative defense of renunciation.” Forino, 887 N.Y.S.2d at 114; see also Dolan, 858
N.Y.S.2d at 493 (holding that the defendant was not entitled to a renunciation instruction where
the defendant “fled the scene out of fear or apprehension”). This finding is consistent with state
law since Petitioner did not renounce his criminal effort but rather was hindered by the locked
door. (T. 695; see Taylor, 80 N.Y.2d at 13 (“the abandonment cannot be motivated in whole or
in part by a belief that circumstances exist that increase the probability of detection or
apprehension or make more difficult the completion of the crime.” (citing N.Y. Penal Law

15

§ 40.10[5])).) Thus, Petitioner has not demonstrated that the absence of this jury charge rose to a
deprivation of his due process rights.
iii. Molineux charge
Petitioner claims that the trial court improperly denied his request for a second charge
concerning evidence of Petitioner’s conduct prior to his arrival at the house he attempted to
burglarize. (Pet. Mem. 12–17.) Respondent argues that (1) Petitioner fails to allege a violation
of a federal constitutional right and (2) Petitioner’s state law claim is without merit because the
failure to administer the charge was harmless in light of the “overwhelming evidence of
[Petitioner’s] guilt.” (Resp’t Opp’n 8–9, 12–13.)
Under New York law, while evidence of uncharged criminal conduct is inadmissible if
offered to show only a defendant’s propensity or predisposition to commit the crime charged,
such evidence may be admitted for other purposes, such as to establish motive, opportunity,
intent, preparation, identity or absence of mistake. See People v. Molineux, 168 N.Y. 264, 293
(1901); People v. Cortez, 22 N.Y.3d 1061, 1070 (2014) (“[T]he Molineux doctrine, at its core,
forbids an inference of guilt from evidence probative of no more than predisposition to a kind of
behavior.”). When such evidence is admitted for appropriate reasons, New York law requires
that the trial court give a cautionary instruction as to its limited use, both when the evidence is
admitted and again as part of its final charge. See People v. Williams, 50 N.Y.2d 996, 998
(1980) (explaining that, in admitting evidence of drug sales for which the defendant was not
charged but that showed the means of distribution, the trial court should “caution the jury
concerning the limited purpose for which [the evidence] is being admitted”).
Here, at Petitioner’s request, (T. 276–77), the trial court gave the following cautionary
instruction to the jury during the prosecutor’s opening statement:

16

The indictment only concerns the attempted crime of burglary in the
second degree located at 2568 Foxdale Road in Oceanside. That’s
all we’re concerned about. No other prior –– no other alleged acts
that the defendant might have done or didn’t do. It just pertains to
this particular location.
(T. 281.) Petitioner also requested, prior to summation, that the trial court include in its final
jury charge a Molineux limiting instruction with respect to the eyewitness’ testimony that she had
observed Petitioner wandering into the backyards of several homes, peering into windows,
opening screen doors and ringing doorbells. (T. 695–97.) The trial court denied Petitioner’s
application. (T. 697.) On appeal, the Appellate Division found that the omission of a Molineux
charge from the jury instruction did “not warrant reversal since the evidence of [Petitioner’s]
guilt was overwhelming” and the trial court’s earlier instruction meant that “there was no
significant probability that the error contributed to the defendant’s conviction.” Forino, 887
N.Y.S.2d at 114.
Petitioner has not demonstrated that the failure to include an additional Molineux
instruction in the jury charge “so infected the entire trial that the resulting conviction violates due
process.” See Blazic, 900 F.2d at 541; see also People v. Mendez, 960 N.Y.S.2d 575, 576 (App.
Div. 2013) (finding that the trial court did not err by merely “remind[ing] the jury of the
‘cautionary instruction’ it had previously given” during the jury charge, and concluding that the
jury had been “sufficiently cautioned . . . concerning the limited purpose for which the
[evidence] had been admitted”). As the Appellate Division explained in finding that the
omission of this charge was harmless, the evidence of Petitioner’s guilt was overwhelming.
Accordingly, Petitioner has not established that the trial court’s decision resulted in a violation of
his due process rights sufficient to warrant habeas relief.
Petitioner’s claims based on the trial court’s jury charges are therefore denied.

17

d.

Dismissal and replacement of injured juror

Petitioner argues that the trial court erred in replacing the juror who was injured in a car
accident on the first day of trial. (Pet. Mem. 22–27.) Petitioner argues that the trial court denied
him his right to a fair trial because the trial court: (1) abused its discretion in replacing the
injured juror without conducting a proper inquiry, and (2) replaced the injured juror with an
alternate juror who had been improperly selected. (Pet. Mem. 22-27.)
i.

Dismissal of the injured juror

Petitioner argues that the trial court failed to conduct the proper inquiry in dismissing the
injured juror as required by NYCPL section 270.35(2)(a). (Pet. Mem. 22–24.) Respondent
argues that (1) Petitioner cites no federal constitutional violation warranting habeas review, and
(2) Petitioner’s state law claim is without merit because the trial court conducted a “reasonably
thorough inquiry” as required by NYCPL section 270.35(2)(a). (Resp’t Opp’n 18–20.)
Under New York law, a trial court “in the exercise of its discretion, may replace [an
absent] juror with an alternate,” provided the court “has conducted a reasonably thorough inquiry
into an absent juror’s whereabouts and possible time of return” and has “determined that the
juror will not appear within two hours after the time the trial is scheduled to resume.” People v.
Jeanty, 94 N.Y.2d 507, 511 (2000) (citing N.Y. Crim. Proc. Law § 270.35 (2)(a)); see People v.
Ballard, 858 N.Y.S.2d 769, 769 (App. Div. 2008) (holding that the trial court had “providently
exercised its discretion in replacing a sworn juror after learning that the juror [] had called the
court’s clerk” to state he was ill, because the trial court made a “reasonably thorough inquiry into
the juror’s unavailability, afforded the parties the opportunity to be heard, and placed the facts
and reasons for its determination on the record” (citations omitted)).
Courts in this Circuit have held that a trial court’s dismissal of an unavailable juror

18

involves only an application of state law and alone does not present a federal constitutional
question cognizable on habeas review. See, e.g., Davis v. Woods, No. 05-CV-03414, 2010 WL
3747669, at *14 (E.D.N.Y. Sept. 17, 2010) (“[P]etitioner’s claim regarding the replacement of
[the juror] does not implicate a constitutional concern.”); Wheeler v. Phillips, No. 05-CV-4399,
2006 WL 2357973, at *6 (E.D.N.Y. Aug. 15, 2006) (holding that dismissal and replacement of
jurors with alternates due to jurors’ unavailability did not raise a constitutional issue because,
“[f]or example, there is no allegation that the replacement was biased, or that some constitutional
infirmity ensued as a result of the court’s decision”); Hughes v. Phillips, 457 F. Supp. 2d 343,
368 (S.D.N.Y. 2006) (dismissal of a juror unable to serve due to illness does not present a claim
of federal constitutional dimension).
Here, the Appellate Division found that the “trial court providently exercised its
discretion in discharging [the injured] juror on the second day of trial.” Forino, 887 N.Y.S.2d at
114. Because Petitioner identifies no reason that the trial court’s dismissal of the injured juror
violates federal law, Petitioner’s claim is denied.8
ii.

Selection of alternative juror

Petitioner argues that the alternate juror was improperly selected because Petitioner’s trial
counsel’s “final round” of voir dire was “interrupted by the Court,” which Petitioner alleges
prevented his counsel from “inquiring as to [the jurors] impartiality and unequivocality.” (Pet.
Mem. 26.) Respondent argues that Petitioner’s challenge is procedurally barred as well as

8

Although Petitioner does not style his claim as such, any possible Sixth Amendment
claim by Petitioner for an improper jury strike is meritless because Petitioner is not alleging that
the juror was dismissed for unconstitutional reasons or that his Sixth Amendment right to an
impartial jury was otherwise violated by excusing the injured juror. See Berghuis v. Smith, 599
U.S. 314, 319 (2010) (The Sixth Amendment secures to criminal defendants the right to be tried
by an impartial jury drawn from sources reflecting a fair cross section of the community. (citing
Taylor v. Louisiana, 419 U.S. 522 (1975))).
19

substantively deficient since the alternate juror was selected properly and without objection as an
alternate juror at voir dire. (Resp’t Opp’n 19–21.)
The Appellate Division found that Petitioner’s argument regarding the selection of the
alternate juror was “unpreserved for appellate review, since [Petitioner] did not seek to exercise
either a for[-]cause or a peremptory challenge against [the alternate juror].” Forino, 887
N.Y.S.2d at 114. The Appellate Division nevertheless stated that, despite the failure to preserve
the challenge, “the trial court providently exercised its discretion in setting time limits on each
attorney’s voir dire of prospective jurors, and defense counsel was provided a fair opportunity to
ask relevant and material questions.” Id.
Federal courts are generally not permitted to “review questions of federal law presented
in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is
independent of the federal question and adequate to support the judgment.’” Cone v. Bell, 556
U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)); Estelle, 502
U.S. at 68 (“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.”). A state-law ground
is deemed “adequate” if the rule “is firmly established and regularly followed by the state in
question.” Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Garcia v. Lewis, 188
F.3d 71, 77 (2d Cir. 1999)).
It is well-settled that New York’s contemporaneous objection rule is an adequate and
independent ground that bars federal habeas review. Kozlowski v. Hulihan, 511 F. App’x 21, 25
(2d Cir. 2013) (“[T]he contemporaneous objection rule provides an independent state-law ground
for barring federal habeas review.”); Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (“[W]e
have held repeatedly that the contemporaneous objection rule is a firmly established and

20

regularly followed New York procedural rule.”); Garcia, 188 F.3d at 79 (“[W]e have observed
and deferred to New York’s consistent application of its contemporaneous objection rules.”);
Wright v. Lee, No. 12-CV-6140, 2013 WL 1668266, at *2 (E.D.N.Y. April 17, 2013) (“It is well
settled that New York’s contemporaneous objection rule . . . is an independent and adequate state
law ground that ordinarily precludes federal habeas corpus review.”).
“[W]hen a state court says that a claim is ‘not preserved for appellate review’ but then
rules ‘in any event’ on the merits, such a claim is procedurally defaulted.” Green v. Travis, 414
F.3d 288, 294 (2d Cir. 2005) (quoting Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996));
Edwards v. Rock, No. 09-CV-1387, 2013 WL 80176, at *10 (E.D.N.Y. Jan. 7, 2013); Young v.
New York, No. 11-CV-0110, 2012 WL 6644993, at *12 (E.D.N.Y. Dec. 20, 2012) (“When a state
court relies on an independent and adequate state law ground — such as, in this case, failure to
preserve the issue for appeal — federal habeas review is foreclosed. This is true even if the state
court rules in the alternative on the merits of petitioner’s claims.” (citations omitted)).
Here, Petitioner’s claim is procedurally barred because he failed to challenge the alternate
juror at the time she was selected, and Petitioner’s failure to object contemporaneously was an
adequate and independent state law ground upon which the Appellate Division rested its
decision. Kozlowski, 511 F. App’x at 25. In addition to specifically stating that Petitioner’s
claim was “unpreserved for appellate review,” the Appellate Division also stated that “the trial
court providently exercised its discretion in setting time limits on each attorney’s voir dire of
prospective jurors, and defense counsel was provided a fair opportunity to ask relevant and
material questions.” Forino, 887 N.Y.S.2d at 114. However, the fact that the Appellate Division
proceeded to evaluate the merits of Petitioner’s claim does not eliminate the procedural bar. See
Green, 414 F.3d at 294 (holding that where a claim is procedurally defaulted but the court

21

continues to rule on the merits, the procedural default is an adequate and independent ground for
the decision). Accordingly, despite the alternative holding by the Appellate Division,
Petitioner’s claim is procedurally barred.
e.

Failure to hold hearings

Petitioner argues that the trial court violated his right to an impartial jury by failing to
hold (1) a hearing regarding an eyewitness identification, of which Petitioner did not have notice,
and (2) a hearing before admitting testimony regarding Petitioner’s behavior prior to the
attempted burglary. (Pet. Mem. 28.)
i.

Eyewitness identification hearing

Petitioner argues that the trial court violated his right to an impartial jury by failing to
hold a hearing after it became apparent that the government had failed to give Petitioner notice of
an eyewitness identification. (Pet. Mem. 28–30.) Respondent argues that (1) Petitioner’s claim
fails to state a violation of a federal constitutional right, (2) the trial court conducted sufficient
inquiries, and (3) any error was harmless. (Resp’t Opp’n 22–25.)
Petitioner does not possess a guaranteed right to advance notice of identification
testimony under the Constitution. See Roberts v. Scully, 875 F. Supp. 182, 191 (S.D.N.Y.1995)
(finding that a violation of NYCPL § 710.30 does not “reflect a claim of constitutional
magnitude”) aff’d, 71 F.3d 406, 406 (2d Cir. 1995). NYCPL section 710.30(1) requires advance
notification of a witness’ identification testimony. The statute reads in relevant part:
Whenever the people intend to offer at a trial . . . testimony regarding
an observation of the defendant either at the time or place of the
commission of the offense or upon some other occasion relevant to
the case, to be given by a witness who has previously identified him
as such, they must serve upon the defendant a notice of such
intention, specifying the evidence intended to be offered.

22

N.Y. Crim. Proc. Law § 710.30(1). However, federal courts have consistently held that such
statutory notification is a matter of state law and not reviewable on a petition for a writ of habeas
corpus. See Brown v. Woods, No. 07-CV-10391, 2010 WL 2605744, at *4 (S.D.N.Y. June 29,
2010) (holding that a claim alleging state failed to sufficiently notify petitioner pursuant to
NYCPL section 710.30 “raises solely an issue of state law”); Dotson v. Ercole, No. 06-CV-7823,
2009 WL 1615997, at *2 (S.D.N.Y. June 9, 2009) (“The Constitution does not guarantee a right
to advance notice of identification testimony.”); Espinal v. Duncan. No. 00-CV-4844, 2000 WL
1774960, at *3 (S.D.N.Y. Dec. 4, 2000) (finding a claim alleging non-compliance with section
710.30 is state law error not reviewable by federal habeas court); Williams v. Connolly, No. 10CV-3075, 2013 WL 5692682 at *7 (E.D.N.Y. Sept. 30, 2013) (same); see also Estelle, 502 U.S.
at 67–68 (holding that “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”).
Thus, any possible error by the state court in allowing the identification evidence without
a hearing does not give rise to a constitutional violation. See Estelle, 502 U.S. at 67–68 (“In
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”); see also Dotson v. Ercole,
No. 06-CV-7823, 2009 WL 1615997, at *2 (S.D.N.Y. June 9, 2009) (“Even if the admission of
the testimony at issue did contravene [NY]CPL § 710.30(1), such an admission does not
constitute a constitutional violation.”).
ii.

Prior act hearing

Petitioner argues that the trial court should have held a hearing before admitting
testimony related to Petitioner’s behavior prior to the actual attempted burglary. (Am. Pet. 16;
Pet. Mem. 12–16, 28.) Respondent argues that (1) Petitioner fails to state a violation of a federal

23

constitutional right, (2) Petitioner had the equivalent of a hearing and failed to raise additional
information he would have put forth at any hearing, and (3) any error in allowing the testimony
was harmless. (Resp’t Opp’n 23–29.)
An error of state law that rises to the level of a constitutional violation may be corrected
on habeas review, but only if it had a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Lyons v. Girdich,
No. 02-CV-3117, 2003 WL 22956991, at *10 (E.D.N.Y. Oct. 15, 2003). “For a habeas
petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due
process, he must show that the error was so pervasive as to have denied him a fundamentally fair
trial.” Lyons, 2003 WL 22956991, at *11 (citing United States v. Agurs, 427 U.S. 97, 108
(1976)); McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 73 (2d
Cir. 2011) (“Such unfairness will only result where ‘[T]he erroneously admitted evidence,
viewed 'objectively in light of the entire record before the jury, was sufficiently material to
provide the basis for conviction or to remove a reasonable doubt that would have existed on the
record without it. In short it must have been crucial, critical, highly significant.’” (alternation in
the original) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985))).
Under New York law, the government must obtain advance judicial approval before
seeking to admit evidence of a defendant’s other crimes or bad acts evidence. See Ventimiglia,
52 N.Y.2d at 350. A Ventimiglia hearing does not derive from federal constitutional principles,
and therefore, failure to hold such a hearing is not a violation of the United States Constitution or
federal law. See Valencia v. Brown, No. 08-CV-0029, 2010 WL 8358087, at *7 (S.D.N.Y. Oct.
25, 2010); Johnson v. Mazzuca, No. 04-CV-5246, 2006 WL 2376383 at *8 n.2 (E.D.N.Y. Aug.
16, 2006) (holding that a failure to conduct Ventimiglia hearing “not cognizable under habeas

24

review” because “the right to a Ventimiglia hearing is a matter of state law”); see also Pena v.
Fisher, No. 00-CV-5985, 2003 WL 1990331, at *10 (S.D.N.Y. Apr. 28, 2003).
Under New York State law, evidence of prior acts that is “inextricably interwoven” with
the underlying crime is admissible. See, e.g., People v. Vails, 43 N.Y.2d 364, 368–69 (1977)
(finding that the testimony of an undercover police officer as to conversations with defendant
concerning prior narcotics transaction was properly admitted because the testimony was
inextricably interwoven with the crime charged); see also People v. Garing, 831 N.Y.S.2d 255,
255 (App. Div. 2007) (admitting evidence regarding other uncharged crimes when the testimony
was inextricably interwoven with the otherwise admissible testimony). Similarly, in the Second
Circuit, “evidence of prior crimes, wrongs, or acts is admissible for any purpose other than to
show a defendant’s criminal propensity,” United States v. Harris, 733 F.2d 994, 1006 (2d Cir.
1984), provided it is “relevant to some disputed issue in the trial” and satisfies the probativeprejudice balancing test of Rule 403 of the Federal Rules of Evidence, United States v. Figueroa,
618 F.2d 934, 939 (2d Cir. 1980) (citations omitted). Moreover, prior crime evidence is
admissible if “it arose out of the same transaction or series of transactions as the charged offense,
if it is inextricably intertwined with the evidence regarding the charged offense, or if it is
necessary to complete the story of the crime on trial.” United States v. Carboni, 204 F.3d 39, 44
(2d Cir. 2000). However, the United States Supreme Court has not determined whether
admission of prior crimes evidence rises to the level of a due process violation. See Estelle, 502
U.S. at 75 n.5; see also Williams v. Jacobson, No. 15-CV-5319, 2016 WL 4154700, at *20
(S.D.N.Y. Aug. 5, 2016 (“there is no clear Supreme Court precedent holding that the admission
of propensity evidence (even if prejudicial) is unconstitutional” (quoting Estelle, 502 U.S. at 75
n.5)).

25

Here, Petitioner alleges that the eyewitness testimony regarding his conduct prior to the
attempted burglary — trying doors, looking into windows and going into the yards of other
neighboring houses — was improperly admitted without a hearing. (Pet. Mem. 28.) However,
Petitioner’s argument is unavailing because Petitioner’s right to a hearing is only provided by
state law and the evidence related to Petitioner’s conduct immediately before the attempted
burglary is inextricably intertwined with the evidence of the crime and the eyewitness’ decision
to call the police and follow Petitioner around the neighborhood. See Valencia, 2010 WL
8358087, at *7; see, e.g., Vails, 43 N.Y.2d at 368–69; Garing, 831 N.Y.S.2d at 255. Thus, the
evidence was properly admitted under state law which is consistent with federal law in the
Second Circuit and not contrary to any established Supreme Court precedent. See Estelle, 502
U.S. at 75 n.5. The Court finds that the introduction of the evidence of Petitioner’s conduct did
not deny Petitioner a fundamentally fair trial. Therefore, Petitioner’s argument that the trial
court denied him a preclusion hearing is not cognizable on habeas review.
f.

Legal sufficiency of the evidence and weight of the evidence

Petitioner argues that he was denied due process because the jury’s guilty verdict was
legally insufficient and against the weight of the evidence. (Pet. Mem. 38–44.) Petitioner
presented these arguments to the Appellate Division, which found that the evidence was “legally
sufficient to establish the defendant’s guilt beyond a reasonable doubt” and determined that “the
verdict of guilt was not against the weight of the evidence.” Forino, 887 N.Y.S.2d at 114. The
Court separately considers each argument below.
i.

Sufficiency of the evidence

Petitioner claims that the evidence was insufficient to support a finding of attempted
burglary because there was insufficient evidence to support an inference that Petitioner intended

26

to commit a crime once inside the house. (Pet. 38–40.) Respondent argues that Petitioner’s legal
sufficiency claim is procedurally barred since it is unexhausted and substantively deficient
because “there is no other reasonable inference from the evidence . . . than that he intended to
commit a crime once inside the house.” (Resp’t Opp’n 30–33.)
In reviewing an insufficiency of the evidence claim a court must consider whether, “after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Cavazos v.
Smith, 565 U.S. ---, ---, 132 S. Ct. 2, 6 (Oct. 31, 2011) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)); see also United States v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir. 2013)
(per curiam) (“[T]he evidence must be viewed in the light most favorable to the government,
with all reasonable inferences drawn in its favor.”). A petitioner challenging the sufficiency of
the evidence of his guilt in a habeas corpus proceeding “bears a very heavy burden.” Mi Sun
Cho, 713 F.3d at 720; Fama v. Comm’r. of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). “A
habeas petitioner ‘is entitled to habeas corpus relief if it is found that upon the record evidence
adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable
doubt.’” McDaniel v. Brown, 558 U.S. 120, 121 (2010) (citing Jackson, 443 U.S. at 324); Arena
v. Kaplan, 952 F. Supp. 2d 468, 479 (E.D.N.Y. 2013); Prince v. Lee, No. 10-CV-5306, 2011
WL 1533486, at *4 (E.D.N.Y. Apr. 22, 2011). “[A] federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’” Cavazos, 565 U.S. at ---, 132 S. Ct. at 3 (quoting
Renico v. Lett, 559 U.S. 766, 773 (2010)); Mendez v. Connelly, No. 09-CV-234, 2012 WL
1567184, at *1–2 (E.D.N.Y. May 2, 2012). Furthermore, a court reviewing a habeas petition

27

must apply this standard “with explicit reference to the substantive elements of the criminal
offense as defined by state law.” Langston v. Smith, 630 F.3d 310, 314 (2d Cir. 2011) (quoting
Jackson, 443 U.S. at 324 n.16); see also Dixon v. Miller, 293 F.3d 74, 79 (2d Cir. 2002) (“The
state court’s interpretation of the proof required must be applied on collateral review to prevent a
violation of the Due Process Clause of the Fourteenth Amendment, which guards against
convicting a defendant without proof beyond a reasonable doubt on each element of his crime.”);
Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) (“A federal court must look to state
law to determine the elements of the crime.”).
Petitioner was convicted of attempted burglary in the second degree, pursuant New York
Penal Law sections 140.25 and 110.00. (Am. Pet. 1); Forino, 887 N.Y.S. 2d at 115. Under New
York Penal Law section 140.25, a defendant is “guilty of burglary in the second degree when he
knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and
when . . . [t]he building is a dwelling[,]” and under New York Penal Law section 110.00, a
defendant is “guilty of an attempt to commit a crime when, with intent to commit a crime, he
engages in conduct which tends to effect the commission of such crime.” N.Y. Penal Law
§§ 140.25, 110.00.
Petitioner argues that the “circumstances of this case belie any inference that he intended
to commit a crime in the house,” as the government did not present evidence of forced entry,
vandalism, or property damage. (Pet. Mem. 40.) Petitioner further argues that the government
never alleged that Petitioner used “burglar’s tools” or had stolen property on his person. (Id.)
Respondent argues that Petitioner’s intent to commit a crime inside the premises may be inferred
from his conduct and the surrounding circumstances, for example, Petitioner was on the property

28

without authorization and was seen putting on gloves before entering the yard and tugging on the
doors of the house. (Resp’t Opp’n 33–34.)
The evidence was sufficient to establish that Petitioner was attempting to gain entry to a
house in order to commit a crime once inside. The People established that Petitioner did not
have permission to be on the property. An eyewitness testified that she saw Petitioner in her
neighbor’s backyard and observed him attempting to open doors of other houses in the
neighborhood, peering through windows and going into backyards. (T. 313–317.) The
responding officer watched Petitioner put on a pair of gloves, open the gate to the side yard of a
house, enter the yard, open a screen door and tug at the interior glass door. (T. 434–37, 449,
484–85.) Based on this evidence, a rational jury could have concluded that Petitioner intended to
commit a crime if he gained access to the house. See e.g. People v. Gordon, 23 N.Y.3d 643,
651–53 (finding a jury’s verdict legally sufficient where defendant challenged evidence of the
required intent). Petitioner’s defense that he did not intend to commit a crime inside the home
was apparently rejected by the jury. Moreover, in reviewing the petition, the Court must assume
that all conflicting inferences were resolved in favor of the prosecution. Cavazos, 565 U.S.
at ---, 132 S. Ct. at 6 (“[A] reviewing court ‘faced with a record of historical facts that supports
conflicting inferences must presume — even if it does not affirmatively appear in the record —
that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.’” (quoting Jackson, 443 U.S. at 326)); Policano v. Herbert, 507 F.3d 111, 117 (2d
Cir. 2007) (same). Viewed in the light most favorable to the prosecution, the evidence
supporting Petitioner’s intent to commit a crime once inside the house is sufficient, and the state
court’s decision regarding the sufficiency of the evidence was not contrary to, or an unreasonable
application of, clearly established federal law.

29

ii.

Weight of the evidence

Petitioner also argues that his conviction was against the weight of the evidence. (Pet.
Mem. 41–44.) Respondent argues that (1) Petitioner’s weight-of-the-evidence claim fails to
identify a violation of a federal constitutional right and (2) the weight-of-the-evidence challenge
has no merit because “[a]ny other verdict would have been unreasonable.” (Resp’t Opp’n 30,
34–35.)
Petitioner’s weight-of-the-evidence argument is not cognizable. Unlike Petitioner’s
sufficiency-of-the-evidence claim, which is based on the due process clause of the Fourteenth
Amendment, a weight-of-the-evidence claim is a state-law claim grounded in NYCPL section
470.15(5). McKinnon, 422 F. App’x at 75 (“[T]he argument that a verdict is against the weight
of the evidence states a claim under state law, which is not cognizable on habeas corpus, and as a
matter of federal constitutional law a jury’s verdict may only be overturned if the evidence is
insufficient to permit any rational juror to find guilt beyond a reasonable doubt.”); Arevalo v.
Artus, 104 F. Supp. 3d 257, 270 (E.D.N.Y. 2015) (A challenge that “a guilty verdict was against
the weight of the evidence is not cognizable on habeas review because it is a ‘pure state law
claim’ grounded in [NYCPL] § 470.15(5)” (citing Correa v. Duncan, 172 F. Supp. 2d 378, 381
(E.D.N.Y. 2001))); Taylor v. Connelly, 18 F. Supp. 3d 242, 267 (E.D.N.Y. 2014); Edwards v.
Superintendent, Southport C.F., 991 F. Supp. 2d 348, 372 (E.D.N.Y. 2013) (citing McKinnon,
422 F. App’x at 75). Petitioner is therefore not entitled to federal habeas corpus relief on this
ground. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the
petitioner has alleged that he is in state custody in violation of “the Constitution or a federal law
or treaty”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (noting that habeas corpus review is not
available where there is simply an alleged error of state law).

30

III. Conclusion
For the foregoing reasons, the Court denies Petitioner’s application for a writ of habeas
corpus. Because Petitioner has not made a substantial showing of the denial of any constitutional
right, no certificate of appealability shall be issued. 28 U.S.C. § 2253; see also Lucidore v. N.Y.
State Div. of Parole, 209 F.3d 107, 112–13 (2d Cir. 2000). The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed to close
the case.

SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: December 19, 2016
Brooklyn, New York

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