Schafer v. LaVallee
Filing
24
-CLERK TO FOLLOW UP- DECISION AND ORDER denying Petitioner's request for a writ of habeas corpus and dismissing the petition with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/17/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FRANKLIN D. SCHAFER,
Petitioner,
-vs-
No: 1:12-CV-00419-MAT
DECISION AND ORDER
THOMAS LaVALLEE,
Respondent.
I.
Introduction
Franklin D. Schafer (“Petitioner”) has filed a petition for a
writ of habeas corpus application pursuant to 28 U.S.C. § 2254,
alleging that he is being held in Respondent’s custody in violation
of his federal constitutional rights. Petitioner’s state custody
arises from
a
judgment
of
conviction
entered
against
him
on
January 23, 2008, following a jury trial in Niagara County Court of
New York State,
on
sexual
abuse
charges
involving
his
step-
grandchildren.
II.
Factual Background
On January 3, 2009, six-year-old A.W., and her seven-year-old
brother,
M.W.,
stayed
overnight
at
Petitioner’s
home
in
Ransomville, New York. The prosecution presented proof at trial
that during their stay, Petitioner viewed a pornographic video with
the children, permitted the children to lick sexual lubricants off
each other’s arms, applied sexual lubricant to A.W.’s vagina and
performed oral sex on her, engaged in vaginal intercourse sex with
A.W. About a week later, A.W. told her mother that she had “had sex
with Grandpa. . . [H]e put his weenie in me but it didn’t fit.”
A.W.’s mother contacted A.W.’s school psychologist, and the police
were notified.
Following an investigation and execution of a search warrant
at Petitioner’s home, he was arrested and indicted on two counts of
Predatory Sexual Assault Against a Child (N.Y. PENAL LAW § 130.95),
one count of Sexual Abuse in the First Degree (N.Y. PENAL LAW
§ 130.65(3)), and two counts of Endangering the Welfare of a Child
(N.Y. PENAL LAW § 260.10(1)). On June 9, 2009, Petitioner proceeded
to trial in Niagara County Court before the Honorable Sara S.
Sperrazza and a jury.
Both victims testified at trial, as did Petitioner.1 The jury
acquitted Petitioner of the count of Predatory Sexual Assault
Against
a
Child
involving
the
allegations
of
vaginal
sexual
intercourse with A.W. The jury convicted Petitioner of the other
count of Predatory Sexual Assault Against a Child, the count of
Sexual Abuse in the First Degree, and both counts of Endangering
the Welfare of a Child.
The trial court sentenced Petitioner to an indeterminate
prison term of twenty years to life for Predatory Sexual Assault
1
Because the Court is dismissing all of Petitioner’s
claims on procedural grounds, or as non-cognizable, the
Court refers the reader to the comprehensive summary of
the trial testimony in Respondent’s Memorandum of Law
(Dkt #20).
-2-
Against a Child, a determinate prison term of seven years with ten
years of post-release supervision for Sexual Abuse in the First
Degree, and a determinate term of one year for each conviction of
Endangering the Welfare of a Child. All sentences were set to run
concurrently with each other.
Represented by counsel, Petitioner appealed to the Appellate
Division, Fourth Department, of New York State Supreme Court and
argued that the trial court committed reversible error because it
(1) did not read back all relevant testimony to the jury in
response to its request; (2) denied Petitioner’s request to call,
as a witness, the assistant district attorney who interviewed A.W.
and M.W. as part of the criminal investigation; (3) admitted
testimonial portions of A.W.’s medical examination into evidence;
(4)
excluded
Petitioner’s
testimony
regarding
the
victims’
reputations in the community for truthfulness; and (5) excluded,
pursuant to New York’s Rape Shield Law, see New York Criminal
Procedure
Law
(“C.P.L.”)
§
60.42(5),
Petitioner’s
testimony
concerning some sexual behavior by the victims that he allegedly
witnessed.
By Decision and Order dated February 10, 2011, the Appellate
Division unanimously affirmed the judgment of conviction. People v.
Schafer, 81 A.D.3d 1361 (4th Dep’t 2011). Petitioner sought leave
to appeal to appeal to the New York State Court of Appeals. See
Respondent’s Exhibit (“Resp’t Ex.”) F. On September 22, 2011, a
-3-
judge of the New York Court of Appeals denied leave to appeal.
People v. Schafer, 17 N.Y.3d 861 (2011).
Represented by a new attorney, Petitioner filed the instant
habeas petition on May 7, 2012, claiming that the trial court
(1) denied his right to a jury trial when it directed the court
reporter not to read back A.W.’s testimony concerning uncharged
acts of oral sodomy; (2) denied his “right to confrontation”
because it precluded the defense from calling the prosecutor who
interviewed A.W. and M.W.; (3) denied his right to confrontation
because it admitted A.W.’s medical report into evidence as a
business record; (4) denied his right to testify in his defense by
precluding him from testifying about the victims’ reputations for
truthfulness; and (5) denied his right to testify in his defense
when it applied the Rape Shield Law to preclude him from testifying
about the victims’ sexual behavior.
Respondent answered the petition, acknowledging that it is
timely but arguing that most of the claims are unexhausted and
procedurally barred and are, in any event, without merit or noncognizable Petitioner’s habeas counsel filed a reply declaration
that does not address any of Respondent’s procedural arguments and
merely reargues the merits of Petitioner’s claims.
This matter has been transferred to the undersigned for
disposition. For the reasons set forth below, Petitioner’s request
-4-
for a writ of habeas corpus is denied, and the petition is
dismissed.
III. Exhaustion of State Remedies
A habeas petitioner generally must exhaust all state-provided
remedies before seeking review in federal district court. See 28
U.S.C. § 2254(a); O’Sullivan v. Boerckel, 526 U.S. 838, 843-44
(1999). The exhaustion requirement means that a petitioner must
fairly present to the state court the same federal constitutional
claim that he wishes to raise in federal court.
The Second Circuit has explained that “[a] defendant may . .
. fairly present the substance of a federal constitutional claim to
the state court without citing ‘“book and verse on the federal
constitution.”’” Daye v. Attorney Gen’l of N.Y., 696 F.2d 186, 192
(2d Cir. 1982) (en banc) (quoting Picard v. Connor, 404 U.S. 270,
278 (1971) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th
Cir. 1958)). Essentially, the habeas petitioner must ensure that in
state court “the nature or presentation of the claim must have been
likely to alert the court to the claim’s federal nature.” Id. This
may be accomplished by “(a) reliance on pertinent federal cases
employing constitutional analysis, (b) reliance on state cases
employing
constitutional
analysis
in
like
fact
situations,
(c) assertion of the claim in terms so particular as to call to
mind
a
specific
right
protected
by
the
Constitution,
and
(d) allegation of a pattern of facts that is well within the
-5-
mainstream of constitutional litigation.” Id. at 194. In addition
to fairly presenting the claim in constitutional terms, the habeas
petitioner must have pursued review of the claim by the highest
state
court
from
which
appellate
review
may
be
obtained.
O’Sullivan, 526 U.S. at 845-48.
B.
Claims That Are Exhausted
Respondent concedes that Petitioner exhausted his claim that
the trial court denied his rights to compulsory process and to
present
a
defense
when
it
precluded
him
from
calling
the
prosecutor who interviewed the victims. See Wade v. Mantello, 333
F.3d 51, 57 (2d Cir. 2003) (noting that criminal defendants are
“entitled by the Constitution to a meaningful opportunity to
present a complete defense”); Clark v. Arizona, 548 U.S. 735, 769
(2006) (holding that the right to present a complete defense is “a
matter of simple due process”).
Respondent also concedes that Petitioner exhausted his claim
that the trial court denied him his constitutional right to testify
in his own defense when it precluded him from testifying about the
sexual behavior of A.W. and M.W. he allegedly witnessed. Petitioner
raised this claim in constitutional terms by citing the Sixth
Amendment in his Appellate Division brief and leave letter to the
New York Court of Appeals.
-6-
C.
Claims That Were Not “Fairly Presented”
However, Respondent argues, Petitioner did not fairly present,
in federal constitutional terms, his claim that he was denied his
right to a jury trial when the trial court directed the court
reporter not to read back certain portions of A.W.’s testimony
concerning uncharged acts of oral sodomy. In his Appellate Division
brief, Petitioner argued that the trial court committed “reversible
error because it refused to reasonably assist the jury during its
deliberations by ordering that all relevant trial testimony be read
back upon request. . . .” Resp’t Ex. A at 16. Petitioner relied on
C.P.L. § 310.30, “the statutory basis for deliberating juries to
request assistant from the trial court,” Resp’t Ex. A at p. 17, and
cited six state-court cases which did not employ constitutional
analyses.
In his application for leave to appeal to the New York Court
of Appeals, by contrast, Petitioner asserted that the incomplete
read-back denied him his Sixth Amendment right to a jury trial. See
Resp’t Ex. F at p. 1. As Respondent notes, however, it is wellsettled that “raising a federal claim for the first time in an
application for discretionary review to a state’s highest court is
insufficient for exhaustion purposes.” St. Helen v. Senkowski, 374
F.3d 181, 183 (2d Cir. 2004) (citing Castille v. Peoples, 489 U.S.
346, 351 (1989) (“[W]here [a] claim has been presented for the
first and only time in a procedural context in which its merits
-7-
will not be considered unless there are special and important
reasons therefor, [it will not] constitute fair presentation.”)).
Since
the
permission
New
to
York
Court
appeal,
it
of
Appeals
did
not
here
consider
denied
the
Petitioner
substance
of
Petitioner’s appeal and, of course, did not consider the merits of
any
of
Petitioner’s
claims,
including
the
argument
that
the
selective read-back violated his constitutional rights. Therefore,
the read-back claim is unexhausted. E.g., Johnson v. New York, 851
F. Supp.2d 713, 722 (S.D.N.Y. 2012) (“Although [the petitioner]
raised the DOCS Claim in his application to the New York Court of
Appeals seeking leave to appeal, raising a claim for the first time
before the Court of Appeals is insufficient to exhaust the claim if
the Court of Appeals does not actually consider it.”) (citations
omitted).
Respondent argues that Petitioner did not exhaust his claim
that he was he was denied his right to confrontation under the
Sixth Amendment because the trial court introduced one of A.W.’s
medical records into evidence under the business record exception
to the rule against hearsay. As Respondent points out, Petitioner
did not specifically mention the Sixth Amendment’s Confrontation
Clause claim in his appellate brief. Rather, Petitioner’s appellate
counsel only argued that the trial court “committed reversible
error by allowing the testimonial portions of [the victim’s] . . .
-8-
medical exam to be entered into evidence over hearsay objection.”
Resp’t Ex. A at 21.
“The Second Circuit ‘adhere[s] to the principle that, as a
general
matter,
a
hearsay
objection
by
itself
does
not
automatically preserve a Confrontation Clause claim.’” Corchado v.
Rabideau, 576 F. Supp.2d 433, 453 (W.D.N.Y. 2008) (quoting United
States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2003) (citing Daye,
696 F.2d at 193; United States v. LaHue, 261 F.3d 993, 1009 (10th
Cir. 2001), cert. denied, 534 U.S. 1083 (2002)). “While there is
substantial overlap between the evidentiary rules of hearsay and
the constitutional right of confrontation, the two doctrines are
not identical.” Barber v. Scully, 557 F. Supp. 1292, 1294 (S.D.N.Y.
1983) (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Thus, “a
hearsay objection or claim does not automatically ‘call to mind’
the Sixth Amendment’s Confrontation Clause.” Corchado, 576 F.
Supp.2d at 453-54 (citing Daye, 696 F.2d at 193) (finding that
“defendant’s claim that he was deprived of a fair trial because of
the admission in evidence of a statement objectionable as hearsay
would not put the court on notice that the defendant claimed a
violation of his constitutional right to be confronted by his
accusers”). Although Petitioner here subsequently asserted a claim
under the Sixth Amendment's Confrontation Clause claim in his
application for leave to appeal, Resp’t Ex. F at 2, that was
insufficient to fairly present the claim for exhaustion purposes
-9-
because the Court of Appeals never actually considered Petitioner’s
case. See, e.g., St. Helen, 374 F.3d at 183.
Petitioner also did not exhaust his claim that the trial court
denied his right to testify when it precluded him from testifying
about
the
Petitioner
victims’
asserted
reputations
on
direct
for
appeal
truthfulness.
that
the
Although
trial
court
“committed reversible error”, Resp’t Ex. A at 24, when it excluded
such testimony, he did not cite any constitutional provision, or
any Supreme Court or other federal case law. Instead, Petitioner
relied
exclusively
on
two
state-court
appellate
cases
which
addressed whether trial courts, as a matter of state law, had
committed reversible error by excluding testimony concerning a
witness’ reputation in her community for truth and veracity. Resp’t
Ex. A at 25 (citations omitted)). This was insufficient to fairly
present the evidentiary claim in federal constitutional terms for
exhaustion purposes. See Taylor v. Scully, 535 F. Supp. 272, 274-75
(S.D.N.Y. 1982) (holding that petitioner did not, by bare reference
to principles of due process, “fairly present” to state court legal
basis of claim that trial court committed “reversible error” by
denying his motion to exclude testimony that he displayed gun prior
to drug sale that led to his conviction and thus petitioner had not
exhausted state remedies with respect to such claim); see also
Ayala v. Scully, 640 F. Supp. 179, 181-82 (S.D.N.Y. 1986) (“Where,
as here, however, petitioner simply framed the issue in terms of a
-10-
state
law
evidentiary
violation
by
arguing
that
the
‘slight
probative value of the evidence’ admitted was outweighed by the
‘prejudice to the accused,’ the state court is not properly alerted
to
any
federal
constitutional
claim.”)
(citing
Petrucelli
v.
Coombe, 735 F.2d 684, 688 (2d, Cir. 1984); internal citation to
record omitted)). Although Petitioner eventually framed this issue
as a Sixth Amendment claim in his application for leave to appeal
to the New York Court of Appeals, that court denied leave to appeal
and never considered Petitioner’s claim. Therefore, Petitioner’s
claim concerning the excluded testimony is unexhausted.
D.
The Unexhausted Claims Must Be “Deemed Exhausted” and
Procedural Defaulted.
In the context of the habeas exhaustion requirement, a federal
court “need not require that a federal claim be presented to a
state court if it is clear that the state court would hold the
claim procedurally barred.” Harris v. Reed, 489 U.S. 255, 263 n. 9
(1989); see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
“In such a case, a petitioner no longer has ‘remedies available in
the
courts
of
the
State’
within
the
meaning
of
28
U.S.C.
§ 2254(b).” Grey, 933 F.2d at 120.
All of Petitioner’s unexhausted claims concern rulings by the
trial court and thus are record-based. Because all of these claims
could have been raised on direct appeal, Petitioner is now barred
from raising them in a collateral motion to vacate the judgment in
state court. See N.Y. CRIM. PROC. LAW § 440.10(2)(c) (mandating
-11-
that the trial court “must” deny any issue raised in a C.P.L.
§ 440.10 motion where the defendant unjustifiably failed to argue
such violation on direct appeal despite a sufficient record to do
so); Aparicio v. Artuz, F.2d (2d Cir. 2001) (“New York does not
otherwise permit collateral attacks on a conviction when the
defendant
unjustifiably
failed
to
raise
the
issue
on
direct
appeal.”) (citing N.Y. CRIM. PROC. LAW § 440.10(2)(c)). Petitioner
cannot pursue a second direct appeal, for under New York State law,
a
criminal
defendant
is
only
entitled
to
one
appeal
to
the
Appellate Division and one request for leave to appeal to the Court
of Appeals. See N.Y. CT. RULE 500.20(2) (providing that application
for leave to appeal to the New York Court of Appeals in a criminal
case pursuant to C.P.L. § 460.20 must include statement that “no
application for the same relief has been addressed to a justice of
the Appellate Division, as only one application is available”);
N.Y.
CRIM.
PROC.
LAW
§
450.10(1);
see
also
N.Y.
CT.
RULES
500.20(d).
As Petitioner has no further recourse in state court, all of
his unexhausted claims should be deemed exhausted. See, e.g., Reyes
v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (“Reyes’s claim should
be deemed exhausted because any attempt at exhaustion in the face
of this procedural default would be futile.”). The foregoing
procedural bars to presentment in state court, which cause the
Court to deem the claims exhausted, also render them procedurally
-12-
defaulted.
Id.
(“Although
Petitioner’s
claim
of
ineffective
assistance is deemed exhausted, we nonetheless find that, by
defaulting on that claim in state court, Reyes forfeits that claim
on federal habeas review, even though the claim is brought as cause
for another procedural default.”) (citing Gray v. Netherland, 518
U.S. 152, 162 (1996)).
To avoid such a procedural default, a habeas petitioner must
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that
failure to
consider
the
claims
will
result
in
a fundamental
miscarriage of justice. Gray, 518 U.S. at 162 (citations omitted).
Petitioner has wholly failed to address Respondent’s arguments
concerning the non-exhaustion defense. He has made no attempt to
proffer any explanation for his failure to fully pursue his state
court remedies. Finding no basis on the record before this Court to
excuse
the
procedural
defaults,
the
unexhausted
claims
are
dismissed as procedurally barred and without reaching their merits.
IV.
The Adequate and Independent
Procedural Default
A.
State
Ground
Doctrine
and
General Legal Principles
“Federal courts generally will not consider a federal issue in
a case ‘if the decision of the state court rests on a state law
ground that is independent of the federal question and adequate to
support the
judgment.’”
Garvey
v.
Duncan,
485
F.3d
709, 714
(2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)
-13-
(alteration and emphases omitted in Garvey)). Only a “firmly
established
and
regularly
followed
state
practice”
may
be
interposed by a state to prevent subsequent review by this Court of
a federal constitutional claim. Id. (citing Lee, 534 U.S. at 375).
Because the adequacy of a state procedural bar is itself a federal
question, Lee, 534 U.S. at 375, the habeas court “must ascertain
whether the state rule at issue . . . is firmly established and
regularly followed, and further whether application of that rule in
th[e] [particular] case would be exorbitant.” Garvey, 485 F.3d at
714.
B.
The Compulsory Process Claim Is Procedurally Barred
Petitioner claims that he was denied his right to compulsory
process because the trial court struck the prosecutor from the
defense’s witness list and precluded Petitioner from calling her as
a witness. The Appellate Division found that Petitioner “failed to
preserve” this claim for appellate review. People v. Schafer, 81
A.D.3d at 1362. The Appellate Division elaborated, noting that
“[a]lthough [Petitioner] included the prosecutor on his witness
list and thus requested permission to call her as a witness, that
request was not based upon any of the reasons that he now raises on
appeal.” Id.
The
Appellate
Division
here
relied
upon
New
York’s
“contemporaneous objection rule”, codified at C.P.L. § 470.05(2),
to reject the compulsory process claim. To preserve a claim of
-14-
trial error under C.P.L. § 470.05(2), a defendant must make his
specific position known to the court. People v. Gray, 86 N.Y.2d 10,
19 (1995). The purpose of the contemporaneous objection rule “is to
apprise the trial judge and the prosecutor of the nature and scope
of the matter defendant contests, so that it may be dealt with at
that
time.”
Importantly,
Garvey,
a
485
general
F.3d
at
714
is
insufficient
objection
(citation
omitted).
to
properly
preserve a claim for appellate review. Id.
A corollary to the contemporaneous objection rule is that when
a
where a defendant lodges a trial objection based on a particular
argument, and then argues a different legal basis for his position
on appeal, the claim will be found unpreserved. See, e.g., People
v. Smith, 24 A.D.3d 1253, 1253 (4th Dep’t 2005) (“Defendant’s
further contention that the court erred in allowing the undercover
officer
to
preserved
bolster
for
our
his
own
review
identification
because
defendant
testimony
is
not
objected
to
the
testimony of that officer at trial on a ground different from that
now asserted on appeal[.]”) (citations omitted); People v. Dunbar,
145 A.D.2d 501, 501-02 (2d Dep’t 1988) (“[D]efendant’s contention
that he was denied his right of confrontation as a result of the
trial court’s curtailment of defense counsel’s cross examination on
the issue of the complainant’s parole status based on a prior
robbery conviction, was not preserved for appellate review. Defense
counsel, in response to the trial court’s ruling, only argued that
-15-
the questioning was relevant to the issue of credibility. He never
registered a protest on the basis of a denial of the defendant’s
right of confrontation.”) (citations omitted); see also People v.
Folkes,
43
A.D.3d
957-58
(2d
Dep’t
2007).
As
these
cases
demonstrate, this rule has been regularly and consistently applied
in circumstances akin to those presented by Petitioner’s case. See
id.
In sum, the Court has no difficulty in concluding that the
procedural
rule
relied
upon
in
Petitioner’s
case
was
both
independent of the federal question and adequate to support the
judgment.
Accordingly,
the
Court
finds
that
the
claim
is
procedurally defaulted. The question arises whether the procedural
default can be excused. As explained above, Petitioner has not
attempted to make the required showing, and no bases for excusing
the default
are
apparent
on
the record.
The
Court
therefore
dismisses the compulsory process claim as procedurally defaulted
and does not reach the claim’s merits.
C.
The “Right to Present a Defense” Claim Based on the
Preclusion of Testimony Regarding the Victims’ Sexual
Behavior is Procedurally Barred.
Petitioner claims, as he did on direct appeal, that the trial
court denied his constitutional right to testify in his own defense
when it precluded him from testifying that during one of his
grandchildren’s visits, he saw them “‘dry-humping’ themselves”, at
which point he separated them and punished them by withholding
-16-
their
television
testimony
was
privileges.
probative
of
Petitioner
bias
and
the
contends
victims’
that
this
motive
to
fabricate false charges against him.
On direct appeal, the Appellate Division relied upon the
contemporaneous objection rule to reject this claim as follows: “To
the extent that defendant contends that he was . . . denied his
right to present a defense, he failed to preserve his contention
for our review[.]” People v. Schafer, 81 A.D.3d at 1362 (citing
People v. Angelo, 88 N.Y.2d 217, 222 (1996) (“Because defendant
failed to present [his] constitutional claims to County Court,
however, they are unpreserved for this Court’s review.”)). This
rule has been regularly and consistently applied by the New York
State
courts
in
circumstances
similar
to
those
presented
by
Petitioner’s case. See, e.g., Angelo, 88 N.Y.2d at 222; People v.
Valdez-Cruz, 99 A.D.3d 738, 739 (2d Dep’t 2012) (“[D]efendant
contends that he was deprived of his constitutional right to
present a defense. This contention is not preserved for appellate
review, since he did not make this argument at trial[.]”) (citing
People v. Haddock, 79 A.D.3d 1148, (2d Dep’t 2010) (same); People
v. Simon, 6 A.D.3d 733, 733 (2d Dep’t 2004) (“The defendant
contends that the trial court erred in denying his request for a
missing witness charge with respect to a particular uncalled
witness. However, since the specific substantive arguments that the
defendant presently makes are raised for the first time on appeal,
-17-
they are unpreserved for appellate review[.]”) (citations omitted);
see also People v. Von Thaden, 108 A.D.3d 733, 734 (2d Dep’t 2013)
(similar).
Because the procedural rule relied upon in Petitioner’s case
was both independent of the federal question and adequate to
support
the
judgment,
the
Court
finds
that
the
claim
is
procedurally defaulted. As explained above, Petitioner has not
attempted to make the showing required to overcome the procedural
default, and no bases for excusing the default are apparent on the
record. The Court therefore dismisses the “right to present a
defense” claim as procedurally barred and does not reach the claims
merits.
V.
Non-Cognizable Claim
Petitioner contends that the trial court misapplied New York’s
Rape Shield Law when it precluded him from testifying that during
one
of
his
grandchildren’s
visits,
he
saw
them
engaging
in
sexualized play. On direct appeal, the Appellate Division held that
the
testimony
in
question
did
“‘not
fall
within
any
of
the
exceptions set forth in CPL 60.42 (1) through (4), and defendant
failed to make an offer of proof demonstrating that such evidence
was relevant and admissible pursuant to CPL 60.42(5)[.]’” People v.
Schafer, 81 A.D.3d at 1362 (quotation and citation omitted). The
Appellate Division explained that “[d]efendant’s only application
pursuant to CPL 60.42 concerned testimony regarding a different
-18-
incident than the one about which he attempted to testify, and that
testimony was to be given by a different witness than defendant,
for a different purpose than the one raised on appeal.” Id.
To the extent that Petitioner claims that the trial court’s
ruling pursuant to C.P.L. § 60.42 denied him the ability to present
his defense, thereby violating his due process rights, that claim
has been found to be procedurally defaulted, see Section IV, supra.
Plaintiff’s
contention
that
the
trial
court
simply
erred
in
applying New York’s Rape Shield Law is not an issue cognizable in
this federal habeas proceeding, as discussed further below.
An inquiry into whether evidence was properly admitted under
state law “is not part of a federal court’s habeas review of a
state conviction [for] 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). The
admission or exclusion of evidence lies within the sound discretion
of the trial court. Scales v. United States, 367 U.S. 203, 256
(1961).
C.P.L.§ 60.42(5) provides, in relevant part, that
[e]vidence of a victim’s sexual conduct shall not be admissible in
a prosecution for an offense or an attempt to commit an offense
[as] defined [elsewhere] . . . unless such evidence:
1. proves or tends to prove specific instances of the
victim’s prior sexual conduct with the accused; or
2. proves or tends to prove that the victim has been
convicted of an offense under section 230.00 of the penal
law [i.e., offenses relating to prostitution] within
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three years prior to the sex offense which is the subject
of the prosecution; or
3. rebuts evidence introduced by the people of the
victim’s failure to engage in sexual intercourse, oral
sexual conduct, anal sexual conduct or sexual contact
during a given period of time; or
4. rebuts evidence introduced by the people which proves
or tends to prove that the accused is the cause of
pregnancy or disease of the victim, or the source of
semen found in the victim; or
5. is determined by the court after an offer of proof by
the accused outside the hearing of the jury, or such
hearing as the court may require, and a statement by the
court of its findings of fact essential to its
determination, to be relevant and admissible in the
interests of justice.
N.Y. CRIM. PROC. LAW § 60.42(1)-(5) (emphasis supplied). Plainly, the
first four exceptions do not apply to Petitioner’s case.
As noted above, Petitioner argued on appeal that he should
have been permitted to testify regarding his alleged observation of
his grandchildren “dry-humping”. The only possible exception that
could apply is the fifth one, which allows the trial court to admit
otherwise
excludable
evidence,
in
the
interests
of
justice.
However, a prerequisite to admission under the fifth exception is
an evidentiary proffer by the defense.
Here, defense counsel did not make an offer of proof as to why
he should be permitted to testify that he observed the two victims
dry-humping
each
other.
Instead,
defense
counsel
made
an
application under C.P.L. § 60.42 to have a different witness (the
victim’s mother) testify about a different incident. Thus, the
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trial
court
discretion
was
to
not
given
determine
the
whether
opportunity
the
to
incident
exercise
its
concerning
the
victims’ alleged sexualized playing was “relevant and admissible in
the interests of justice” under C.P.L. § 60.42(5).
Under these circumstances, where the trial court did not have
the opportunity to apply C.P.L. § 60.42(5) due to defense counsel’s
failure to make an offer of proof, the Court can discern no error
under state evidentiary law, much less an error of constitutional
magnitude.
VI.
Conclusion
For the foregoing reasons, Petitioner’s request for a writ of
habeas corpus is denied; and the petition (Dkt #1) is dismissed
with prejudice. Because Petitioner has not made a “substantial
showing of the denial of a constitutional right” pursuant to 28
U.S.C. § 2253(c)(2), no certificate of appealability shall issue.
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
September 17, 2013
Rochester, New York
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