Sorrentino v. LaValley

Filing 21

ORDER ADOPTING REPORT & RECOMMENDATION for 18 Report and Recommendation. Having reviewed the Petition and the Report and Recommendation, I am in complete agreement with Judge Freeman and hereby ADOPT the Report and Recommendation in its enti rety. The Clerk of Court is respectfully directed to close the case and mail a copy of this Order to Petitioner. Because Petitioner has not made a "substantial showing of the denial of a constitutionalright," no certificate of appealability shall issue. 28 U.S.C § 2253(c)(2). (Signed by Judge Vernon S. Broderick on 6/21/2016) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NICHOLAS SORRENTINO,
:
:
Petitioner, :
:
- against :
:
THOMAS LAVALLEY, Superintendent,
:
Clinton Correctional Facility,
:
:
Respondent. :
:
:
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6/21/2016

12-CV-7668 (VSB) (DF)
ORDER ADOPTING REPORT &
RECOMMENDATION

Appearances:
Nicholas Sorrentino
Pro se Petitioner
Karen Sara Schlossberg
Martin John Foncello, III
New York County District Attorney’s Office
New York, New York
Counsel for Respondent

VERNON S. BRODERICK, United States District Judge:
Before me is the Report and Recommendation of United States Magistrate Judge
Deborah Freeman, dated February 3, 2016, (Doc. 18) (the “Report and Recommendation” or
“R&R”),1 recommending that I deny the writ of habeas corpus filed by Nicholas Sorrentino in its
entirety because Sorrentino failed to demonstrate that his conviction resulted from an
unreasonable application of federal law. The Report and Recommendation also recommends

1
Respondent did not file a response to Petitioner’s objections within the fourteen-day period for doing so. See Fed.
R. Civ. P. 72(b)(2).

that I deny Sorrentino a certificate of appealability because he failed to make a substantial
showing that his constitutional rights were abridged, as required by 28 U.S.C. § 2253(c)(2).
Because I agree with the Report and Recommendation, I adopt it in its entirety.
BACKGROUND
Pro se Petitioner Nicholas Sorrentino (“Petitioner”) filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254, dated October 12, 2012,2 (Doc. 1) (“Petition”), following his
conviction by a jury on July 17, 2009, for Murder in the Second Degree under New York Penal
Law § 125.25(1). Petitioner challenges his conviction on six grounds: (1) that the hearing court
should have suppressed evidence and statements obtained from Petitioner as a result of an
allegedly unlawful arrest, (Petition 7); (2) that the trial court should have suppressed historical
cell-site location data and/or conducted a Frye hearing with respect to the introduction of such
evidence, (Petition 14); (3) that certain hearsay statements made by Jose Raul Prieto (“Prieto”),
the decedent, and a medical examiner were erroneously admitted, resulting in a violation of
Petitioner’s constitutional rights, (Petition 23); (4) that the trial court’s Sandoval ruling denied
him a fair trial, (Petition 33); (5) that the trial court’s failure to give a circumstantial-evidence
jury instruction denied him a fair trial, (Petition 38); and (6) that Petitioner’s sentence was
excessive, (Petition 41).
LEGAL STANDARD
In reviewing a magistrate judge’s report and recommendation, a district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). Parties may raise specific, written objections to the

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A prisoner’s filings are deemed filed on the date they are delivered to prison officials for mailing. See Hodge v.
Greiner, 269 F.3d 104, 106 (2d Cir. 2001). Therefore, I treat the signature date on documents filed by Petitioner as
the presumptive filing date of those documents.

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report and recommendation within 14 days of being served with a copy of the report, id.; see also
Fed. R. Civ. P. 72(b)(2). When a party submits a timely objection, a district court reviews de
novo the parts of the report and recommendation to which the party objected. 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). To accept a report to which no timely objection
has been made, however, a district court need only satisfy itself that there is no clear error on the
face of the record. See, e.g., Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Wilds v.
United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). Under a clear error
standard of review, “[s]o long as there is a basis in the evidence for a challenged inference, [the
court] do[es] not question whether a different inference was available or more likely.” United
States v. Freeman, 443 F. App’x 664, 666 (2d Cir. 2011) (quoting Siewe v. Gonzales, 480 F.3d
160, 168 (2d Cir. 2007)).
In the present case, the Report and Recommendation advised the parties that they had 14
days from service of the Report and Recommendation to file any objections, and warned that
failure to timely file such objections would result in waiver of any right to object. (R&R 47.) In
addition, it expressly called Petitioner’s attention to Rule 72(b) of the Federal Rules of Civil
Procedure and Title 28, United States Code, Section 636(b)(1). (Id.) The R&R was issued on
February 3, 2016, and the deadline for filing objections was February 22, 2016. (Doc. 18.) As
of the date of this Order, no objections have been filed and no request for an extension of time to
object has been made. Accordingly, Petitioner has waived the right to object to the Report and
Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992); see also Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Despite Petitioner’s waiver, I have reviewed the Petition and Magistrate Judge Freeman’s
Report and Recommendation, unguided by objections, and find the Report and Recommendation

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to be thorough, well-reasoned and grounded in fact and law.
DISCUSSION
For purposes of this Order, I assume familiarity with the underlying facts and analysis as
set forth in Judge Freeman’s Report and Recommendation.
Petitioner’s first claim for habeas relief—that the hearing court should have suppressed
evidence and statements obtained from Petitioner as a result of his allegedly unlawful arrest in
New Jersey—lacks merit. (See R&R 24-29.) Petitioner alleges that officers of the New York
Police Department, including Detective Daniel Casey, violated his rights when they arrested him
in New Jersey and then transported him to New York, without first bringing him before a local
judge, as required by New Jersey’s “Fresh Pursuit” statute, N.J. Stat. Ann. § 2A:155-5. (See
Petition 7-14.) As set forth in detail in the R&R, (see R&R 24-29), even if Petitioner’s arrest in
New Jersey violated New Jersey’s “Fresh Pursuit” statute, “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions,” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991), and it is well-settled that “federal habeas corpus relief does not lie for
errors of state law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that, where a state “has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Id. at 494. Petitioner sought
suppression of the evidence obtained through his allegedly unlawful arrest through pretrial
suppression proceedings and on appeal, and thereby was provided a full and fair opportunity to
litigate his Fourth Amendment claim. Thus, Petitioner may not obtain habeas relief based on the
trial court’s failure to exclude such evidence and Petitioner’s first claim for habeas relief is

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DENIED.
Petitioner’s second claim for habeas relief—that the trial court should have suppressed
historical cell-site location data, or conducted a Frye hearing with respect to the introduction of
such evidence—fails for the reasons set forth in the R&R. (See R&R 29-33.) Petitioner argues
that such evidence should have been suppressed because it was obtained: (1) in violation of his
constitutional rights under the Fourth Amendment; and (2) without statutory authority under
either state or federal law. First, as set forth above, the admission of evidence seized in violation
of the Fourth Amendment does not provide a ground for habeas relief, as long as the petitioner
was afforded a full and fair opportunity to litigate any Fourth Amendment claims in the state
courts. See Stone, 428 U.S. at 494. In light of the fact that Petitioner was provided a full and fair
opportunity to litigate his Fourth Amendment claim regarding the cell-site evidence in a pretrial
motion to suppress and on direct appeal and the Petition contains no facts suggesting that this
process did not provide Petitioner with a full and fair opportunity to litigate the Fourth
Amendment issue, he cannot obtain habeas relief on this basis. Second, Petitioner claims that the
cell-site evidence was obtained in violation of the Stored Communications Act, 18 U.S.C.
§ 7203(d) (“SCA”). Where a habeas claim is premised on a federal statute, rather than the
Constitution, relief is available only if the alleged violation is “a fundamental defect which
inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 354
(1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also Medellin v. Dretke,
544 U.S. 660, 664 (2005) (noting that a violation of federal statutory rights is not cognizable in a
postconviction proceeding unless the “fundamental defect” test is satisfied). Furthermore, as the
New York courts resolved Petitioner’s SCA claims on the merits, the deferential standard of
review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”),

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applies to my review of their decisions with respect to such claims, see 28 U.S.C. § 2254(d).
Thus, to obtain habeas relief on this claim, Petitioner must demonstrate both: (1) that the alleged
SCA violation was a “fundamental defect,” and (2) that New York courts’ adjudication of
Petitioner’s challenge to the admission of historical cell-site information was contrary to, or an
unreasonable application of, Supreme Court precedent regarding the interpretation of the SCA.
See Medellin, 544 U.S. at 664-65. As set forth in the R&R, (see R&R 30-31), Petitioner’s
statutory claim fails because he (i) has failed to demonstrate that the admission of historical cellsite information at trial resulted in a complete miscarriage of justice, Reed, 512 U.S. at 354, and
(ii) has identified no Supreme Court precedent to the contrary.
The third component of Petitioner’s second habeas claim—that the trial court should have
held a Frye hearing before admitting evidence regarding historical cell-site information—also
does not provide a basis for federal habeas relief. The purpose of a Frye hearing is only to
determine whether expert testimony and evidence has gained general acceptance in the scientific
community and is therefore admissible under New York law. See Perez v. Graham, No. 13-CV1428, 2014 WL 523409, at *9 (S.D.N.Y. Feb. 5, 2014), report and recommendation adopted by
2014 WL 805958 (S.D.N.Y. Feb. 28, 2014). This is a state evidentiary matter wholly separate
from the question of whether the admission of such evidence violates the federal Constitution.
Id. In general, mere errors of state evidentiary law are not cognizable on habeas review. See 28
U.S.C. § 2254(a); see also 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.” (citations omitted)). For this claim to be cognizable in this habeas proceeding,
Petitioner would have to demonstrate not only that the trial court’s decision to admit historical
cell-site data without conducting a Frye hearing was erroneous, but also that this error violated

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an identifiable constitutional right and deprived him of a “fundamentally fair trial.” See Zarvela
v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (emphasis added) (quoting Rosario v. Kuhlman, 839
F.2d 918, 925 (2d Cir. 1988)); Velazquez v. Fischer, 524 F. Supp. 2d 443, 450 (S.D.N.Y. 2007).
In so doing, Petitioner would “bear[] a heavy burden because evidentiary errors generally do not
rise to constitutional magnitude.” Copes v. Schriver, No. 97-CV-2284, 1997 WL 659096, at *3
(S.D.N.Y. Oct. 22, 1997) (citation omitted). In light of the fact that Petitioner fails to identify
any federal constitutional right that was violated by the trial court’s failure to conduct a Frye
hearing, (see R&R 33), the alleged state-law error is not cognizable on federal habeas review and
Petitioner’s claim for habeas relief, relating to the state court’s admission of historical cell-site
location data, is DENIED.
For the reasons set forth in the R&R, Petitioner’s third claim for habeas relief—that
certain hearsay statements made by the decedent3 and a medical examiner4 were erroneously
admitted, resulting in a violation of Petitioner’s constitutional rights—also lacks merit. (See
R&R 33-40.) As with Petitioner’s second claim, this claim also relates to a state evidentiary
matter wholly separate from the question of whether the admission of such evidence violates the
federal Constitution. See Perez v. Graham, 2014 WL 523409, at *9. In order to demonstrate
that the trial court’s admission of supposed hearsay rendered his trial constitutionally infirm,

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The decedent had purportedly informed two friends, who testified at trial, that the decedent told them that he was
1) “having problems” with Petitioner, 2) that Petitioner had stolen his credit cards, 3) that Petitioner had been
making several phone calls and unannounced visits to his apartment, and 4) that he was frightened of Petitioner and
wanted to end the relationship. (See R&R 34-37.) On June 12, 2009, the trial court ruled that such statements were
not inadmissible hearsay because they reflected the decedent’s then-existing state of mind and negated any
suggestion that Petitioner had permission to use the decedent’s credit card and checks or was voluntarily admitted
into the decedent’s apartment. (Id.)

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Petitioner claims that, by permitting the medical examiner to testify regarding the opinions of other medical
examiners, who were not available for cross-examination, the trial court violated Petitioner’s Confrontation Clause
rights. (See Petition 23-33.) As noted by the Appellate Division, the offending testimony consisted, essentially, of
Dr. Peter Lin, the Medical Examiner, using the word “We” instead of “I” when referring to his opinion that the fire
extinguisher could be the murder weapon. (R&R 39.)

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Petitioner must be able to show that the ruling not only constituted error, but also that the
erroneously admitted evidence “was sufficiently material to provide the basis for conviction or to
remove a reasonable doubt that would have existed on the record without it.” Smith v. Grenier,
117 F. App’x 779, 781 (2d Cir. 2004) (quoting Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985)).
To the extent Petitioner seeks to raise that constitutional claim here, it is exhausted, and this
Court must consider the claim under AEDPA’s deferential standard of whether the admission of
the hearsay testimony deprived Petitioner of a fundamentally fair trial. In light of the
overwhelming evidence of Petitioner’s guilt, any evidentiary error that might have resulted from
the introduction of Prieto’s hearsay statements did not deprive Petitioner of a fair trial. (See
R&R 34-36.) With respect to the testimony of the medical examiner, Petitioner claims that, by
permitting Dr. Lin to testify regarding the opinions of other medical examiners, who were not
available for cross-examination, the trial court violated Petitioner’s Confrontation Clause rights.
See Crawford v. Washington, 541 U.S. 36, 68 (2004). Even when the Confrontation Clause has
been violated, however, a writ of habeas corpus must not issue if the error was harmless. See
Bowen v. Phillips, 572 F. Supp. 2d 412, 419 (S.D.N.Y. 2008) (citing Fuller v. Gorczyk, 273 F.3d
212, 220 (2d Cir. 2001). “Federal courts commonly hold alleged Confrontation Clause
violations to be harmless error when the evidence against the petitioner at trial was substantial
and/or the improperly admitted testimony was cumulative of other admissible evidence.”
Bowen, 572 F. Supp. 2d at 419 (citing Ruiz v. Kuhlmann, 80 F. App’x 690, 694 (2d Cir. 2003).
Dr. Lin’s testimony that the handle of the fire extinguisher could potentially have made a
particular rectangular laceration on the decedent was of little importance to the prosecution’s
case in light of the fact that there was overwhelming evidence that the fire extinguisher was, in
fact, the murder weapon. (See R&R 39.) Even if Petitioner is correct that there was a

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Confrontation Clause violation under Crawford, an evaluation of the relevant factors compels the
conclusion that such a violation did not have a substantial and injurious effect on the jury’s
verdict, and was therefore harmless, Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Accordingly, Petitioner’s third claim for habeas relief, relating to the admission of hearsay
statements, is DENIED.
For the reasons set forth in the R&R, Petitioner’s fourth claim for habeas relief—that the
trial court’s Sandoval ruling denied him a fair trial lacks—also lacks merit. (See R&R 40-42.)
Petitioner asserts that the trial court abused its discretion when it ruled that, if Petitioner took the
stand, the prosecution could elicit testimony from him that he had a prior conviction for
Endangering the Welfare of a Child, and that this prior crime involved sexual conduct. (Petition
33.) The “admission of prior convictions for the purpose of impeaching the defendant has been
characterized as evidentiary in nature,” and an erroneous Sandoval ruling therefore is “not
redressable in a federal habeas corpus proceeding absent a showing that the particular errors
were of constitutional magnitude.” Blackman v. Ercole, No. 06-CV-855, 2009 WL 4891767, at
*7 (E.D.N.Y. Dec. 17, 2009) (quoting Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987)).
The Supreme Court has held that the erroneous admission of evidence of prior convictions for
impeachment purposes, under Rule 609(a) of the Federal Rules of Evidence, is a ruling that
generally does “not reach[] constitutional dimensions.” Luce v. United States, 469 U.S. 38, 43,
41-43 (1984). Any error in the Sandoval ruling was not of constitutional magnitude.
Additionally, “[i]t is well-settled that a petitioner’s failure to testify at trial is fatal to any claims
of constitutional deprivation arising out of a Sandoval-type ruling,” because “absent such
testimony, a court has ‘no adequate non-speculative basis upon which to assess the merits of that
claim.’” Shannon v. Senkowski, No. 00-CV-2865, 2000 WL 1683448, at *6 (S.D.N.Y. Nov. 9,

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2000) (quoting McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997) (citation omitted)).
Petitioner did not testify at trial. Accordingly, Petitioner’s Sandoval claim cannot be redressed in
a federal habeas proceeding, and Petitioner’s claim for habeas relief, relating to his Sandoval
claim, is DENIED.
Petitioner’s fifth claim for habeas relief—that the trial court’s failure to give a
circumstantial-evidence instruction denied him a fair trial—lacks merit for the reasons set forth
in the R&R. (See R&R 42-43.) The propriety of a particular jury instruction is a matter of state
law. See Perez v. Grenier, No. 00-CV-5504, 2005 WL 613183, at *6 (S.D.N.Y. Mar. 14, 2005).
For that reason, a petitioner’s challenge to jury instructions is subject to federal habeas review
only if the alleged error deprived him or her of a federal constitutional right. See Davis v. Strack,
270 F.3d 111, 123 (2d Cir. 2001). There is, however, no constitutional requirement that a state
court issue a circumstantial-evidence instruction to the jury, even where the evidence presented
is purely circumstantial. See Holland v. U.S., 348 U.S. 121, 139-40 (1954) (rejecting per se rule
requiring circumstantial evidence charge); Parisi v. Artus, No. 08-CV-1785, 2010 WL 4961746,
at *4 (E.D.N.Y. Dec. 1, 2010) (“There is no federal constitutional right to a circumstantial
evidence charge.”). Thus, regardless of whether New York law requires a court to issue a
particular circumstantial-evidence instruction under the set of facts present in this case, the
failure to issue such an instruction does not implicate any federal constitutional right.
Accordingly, Petitioner’s fifth habeas claim is DENIED.
Petitioner’s sixth and final claim for habeas relief—that his sentence of 25 years to life is
excessive—was not exhausted and, in any event, lacks merit for the reasons set forth in the R&R.
(See R&R 44-47.) As a threshold matter, based on the procedural history of Petitioner’s direct
appeal, it appears that Petitioner abandoned his excessive-sentence claim in his application for

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leave to appeal to the state Court of Appeals, and that the claim should therefore be considered
unexhausted. (R&R 44-45.) Additionally, in the absence of a challenge to the relevant statute
itself, an excessive-sentence claim may only be maintained if the sentence imposed fails to
comply with state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal
constitutional issue is presented where . . . the sentence is within the range prescribed by state
law.” (citation omitted)). A sentence that is within the range permitted by state law, like the
sentence at issue here, see N.Y. Penal Law § 70.00, may not be held to be disproportionate under
the Eighth Amendment. Pinero v. Grenier, 519 F. Supp. 2d 360, 371 (S.D.N.Y. 2007); see also
Echevarria-Perez v. Burge, 779 F. Supp. 2d 326, 337 (W.D.N.Y. 2011) (noting that, under the
sentencing provisions of N.Y. Penal Law § 70.00, the maximum sentence for second degree
murder is 25 years to life). Accordingly, Petitioner’s excessive-sentence claim is DENIED.
CONCLUSION
Having reviewed the Petition and the Report and Recommendation, I am in complete
agreement with Judge Freeman and hereby ADOPT the Report and Recommendation in its
entirety. The Clerk of Court is respectfully directed to close the case and mail a copy of this
Order to Petitioner.
Because Petitioner has not made a “substantial showing of the denial of a constitutional
right,” no certificate of appealability shall issue. 28 U.S.C § 2253(c)(2).
SO ORDERED.
Dated: June 21, 2016
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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