Opinion
96-CV-1637 (FJS)(GLS).
February 23, 1999
CURTIS DORSEY, Petitioner, Pro Se, Orleans Correctional Facility, Albion, New York.
HON. ELIOT SPITZER, ESQ., Attorney General of the State of New York, KEITH KAMMERER, Asst. Attorney General Department of Law, Albany, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Frederick J. Scullin, Jr., United States District Court Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant habeas corpus petition on October 9, 1996. Pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, an Order was issued granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed an answer, together with the pertinent state court records and a Memorandum of Law.
Magistrate Judge Hurd was initially assigned to this case; it was reassigned to the undersigned pursuant to an Order dated January 16, 1998. (Docket No. 21).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Docket #14). On January 28, 1999, Petitioner filed a copy of his recent post-verdict motion pursuant to Article 440 of the Criminal Procedure Law (dated October 29, 1998), and the Onondaga County Court's denial of that Motion, dated January 6, 1999. (Docket No. 24).
Petitioner complains of a judgment of conviction rendered against him on March 16, 1995, following a jury trial in the Onondaga County Court, wherein he was convicted of assault in the second degree and two counts of criminal possession of a weapon in the third degree. Petitioner was sentenced as a mandatory persistent felony offender to an indeterminate term of six years to life imprisonment for his assault conviction. He received concurrent indeterminate terms of three and a half to seven years imprisonment for his convictions of criminal possession of a weapon. The Appellate Division, Fourth Department, affirmed the judgment on May 31, 1996, People v. Dorsey, 227 A.D.2d 1007; 643 N.Y.S.2d 298 (4th Dep't. 1996), and the New York Court of Appeals denied leave to appeal on July 30, 1996. People v. Dorsey, 88 N.Y.2d 965; 647 N.Y.S.2d 719 (1996).
Respondent interprets petitioner's habeas corpus application as presenting six grounds for habeas corpus relief. This court disagrees, however, and finds that petitioner has only set forth three grounds for habeas corpus relief, labeled as Points I, II and III in the table of contents. See, Docket No. 1. Petitioner alleges that: (1) the proof of physical injury was insufficient to support a conviction of assault in the second degree; (2) the victim's identification was improperly bolstered by the explicit testimony of Sylvia Thomas and the inferences of Officer Barnum; and, 3) the cumulative effect of all errors deprived him of a right to a fair trial.
Respondent's six grounds include the three points listed in petitioner's table of contents (I-III), as well as the three issues (A-C) that petitioner raised in a 1995 motion to vacate the judgment. Petitioner reiterated issues A-C in ¶ 4(D-F) of the petition.
Respondent seeks dismissal of the petition on the grounds that it is a "mixed petition" subject to dismissal, due to petitioner's failure to exhaust available state court remedies with respect to what respondent has labeled as ground six of the petition. Alternatively, respondent argues that petitioner procedurally defaulted on the claims raised in grounds one, two, four and five and that the petition fails on the merits.
Ground 6 corresponds to petitioner's Issue C, which was an argument based upon improper and prejudicial conduct outside the record.
For the following reasons, the court recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from an incident that occurred in Syracuse, New York, on March 27, 1994. Around 3:00 A.M., Dadure Patterson (Ms. Patterson) was attacked on Midland Avenue while walking home from a party. She noticed a man walking behind her, whom she recognized from the neighborhood, but whose name she did not know.
Ms. Patterson testified that she looked back three or four times and noticed the man getting closer. (T. 118-120). She could see pretty clearly because of the street lights. (T. 122). He was wearing a red Starter jacket, dark jeans and a black "do rag" on his head. She could see his face and mustache, but not his chin. (T. 120-123). At trial, she identified petitioner as the man who followed her and attacked her. (T.129; 139).
Ms. Patterson testified that petitioner grabbed her from behind, but she could see his red starter jacket and "do-rag." From this point on, Ms. Patterson could not see petitioner's face. (T. 175). He held something to her neck, threatening to "cut her" if she screamed. She screamed for help and grabbed what was being held to her neck. She testified that it felt like a knife. Petitioner pulled it from her hand, cutting her fingers. (T. 124, 126).
Petitioner pulled Ms. Patterson into a driveway alongside a house. He choked her and threatened to kill her if she did not stop screaming. (T. 126). He threw her to the ground, laid down on top of her, and continued to choke her. He hit her on the head with a nearby bottle, cutting her head. (T. 127). He punched her in the head until she blacked out; she remembered pleading for her life. (T. 128-129).
Emma Patterson lives at 1317 Midland Avenue. She testified that she woke up around 3:30 a.m. on March 27, 1994, to a woman screaming for help. She looked out her back window, and saw a woman lying face down in her yard by the side of her house. (T. 204). The woman was scratching at the ground and screaming for help. (T.205). She saw a man with a medium build, wearing dark clothing and something on his head, kick the woman. (T. 206). The lights came on in her neighbor's house and she saw that a policeman had arrived. (T. 206).
Emma Patterson is not related to the victim. (T. 202).
Leroy Barner and his wife live at 1313 Midland Avenue. At 3:30 A.M., Mr. Barner heard someone yelling and he went into the backyard. He heard a woman begging not to be killed. (T. 219-220). After he told his wife to call the police, Mr. Barner went back outside. He saw a man and a woman in the driveway between his house and Emma Patterson's. The man was kicking and hitting the woman with full force. (T. 222, 235). Mr. Barner testified that the man kept bending down as if he was trying to take off the woman's pants. (T. 222). The man was hitting the woman with something that looked like a bottle or a flashlight. (T. 223). Mr. Barner went back upstairs to get his baseball bat. When he turned on the outside light, the man ran away. (T. 224, 227).
When Ms. Patterson regained consciousness, the police were already there. She told the officer she could identify her attacker, whom she described as a black male, in his late 30's to 40, 5'10" and 160 pounds, with a mustache and a dark "do-rag." (T. 131, 177, 187). A couple of days later, Ms. Patterson went to the Criminal Investigations Office. She left her name, but no one contacted her. She returned several days later and again left her name. Again, the police did not contact her. (T. 133-134).
Ms. Patterson testified that, as a result of the attack, she had severe headaches and her throat hurt for a couple of weeks. She had bruises around her neck and she had coughed up blood. (T. 141-142, 186).
In early April, Ms. Patterson was walking with her friend Robin Thomas on Midland Avenue when she saw the petitioner on the street. (T. 134). Ms. Patterson feared that he recognized her. (T. 179). Robin Thomas testified that the man Ms. Patterson pointed out, walked to their side of the street and stared at Ms. Patterson. (T. 244-245). Ms. Patterson and Ms. Thomas went to Sylvia Thomas' house and reported that Ms. Patterson had seen her attacker. Ms. Patterson's son's father and his cousins went out looking for petitioner.
Sylvia Thomas is Ms. Patterson's son's grandmother and Robin Thomas' mother.
One week later, Ms. Patterson was in a car with Sylvia Thomas and some other friends, when she again saw petitioner on the street. Ms. Patterson testified that she said, "that's the man who attacked me" and Sylvia Thomas told her that the man's name was Curtis Dorsey. (T. 182, 190, 200).
Sylvia Thomas testified that on Saturday, April 9, 1994, she, her cousin, her son-in-law and Ms. Patterson were driving around when she [Sylvia] spotted petitioner. Mrs. Thomas testified that she referred to him as a pervert who had been in jail for rape, at which point, Ms. Patterson said that he was the man who had attacked her. (T. 262, 266).
Ms. Patterson returned to CID on Monday and informed the police that she knew her attacker's name. (T. 140, 165, 189, 192). On April 14, 1993, Ms. Patterson gave a statement and picked petitioner out of a photo-array. (T. 141, 165-167).
After a Wade hearing, United States v. Wade, 388 U.S. 218 (1967), the trial court ruled that the photo-identification procedure was "constitutionally performed and did not involve any impermissibly suggestive behavior." Decision/Order, dated November 23, 1994, at p. 3. The court found that the photo-array itself was representative and not suggestive of any one individual and held that any in-court identification would be admissible.
2. Exhaustion of State Court Remedies
Respondent asserts that petitioner failed to exhaust available state court remedies with respect to his sixth ground for relief, in which he raises improper and prejudicial conduct outside the record. As such, Respondent argues that the petition is a mixed one that ought to be dismissed.
As previously stated, this court has found that petitioner has only presented three grounds (Points I-III) for habeas corpus relief in the instant petition. Below the table of contents, petitioner has included a list of three issues (A-C) that he claims to have raised in a prior motion pursuant to C.P.L. Article 440. Although petitioner reiterated issues A-C in ¶ 4(D-F) of the petition, this court is satisfied that these issues were not intended to be separate grounds for habeas corpus relief for the following reasons: 1) petitioner only addresses Points I, II and III in his supporting memorandum; and, 2) petitioner provides no factual support for a claim of improper and prejudicial conduct outside the record. Since improper and prejudicial conduct outside the record is not presented as a ground for habeas corpus relief in this petition, failure to exhaust state court remedies as to this issue, would not warrant dismissal of the petition.
The three issues petitioner raised in his 1995 motion to vacate the judgment were:
A: "The state failed to present and show the necessary elements of injury supported by medical records or evidence to meet the burden of proof as to the degree of assault found in the trial part, and therefore, a properly instructed jury could not have found a verdict of guilty.
B: There was no presentation of any weapon, nor did the victim made [sic] a direct reference to a knife in her statement, rather she said: 'He had something, possibly a knife.' No weapon was ever found or presented to the jury.
C: There was improper and prejudicial conduct outside the record that would be reversible error if part of the record on appeal."
Respondent argues that petitioner's pre-sentencing motion was actually a motion to set aside the verdict pursuant to C.P.L. § 330.30.
Petitioner's "Point I" encompasses the argument set forth in "Issue A" (also ¶ 4(D)).
Even if, however, this court were to find that petitioner had included this unexhausted issue as a point for habeas corpus review, dismissal of the entire petition would not be mandated. On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. Prior to the enactment of this Act, the Court was required to dismiss mixed petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 125 (2d Cir. 1995), cert. denied, 117 S.Ct. 1112 (1997). The AEDPA now gives the Court discretion to deny on the merits of habeas petitions containing unexhausted claims. 28 U.S.C. § 2254(b)(1)-(2).
Although § 2254(b)(2) "does not provide a standard for determining when a court should dismiss a petition on the merits rather than require complete exhaustion", Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N Y 1998) (quoting Lambert v. Blackwell, 134 F.3d 506, 514 (3d Cir. 1998)), several district judges have referred to a "patently frivolous" standard. If the court finds an unexhausted claim patently frivolous, and that it would be futile to send it back to state court, it may summarily dismiss that claim on the merits and pass onto the exhausted claims. Edkin v. Travis, 969 F. Supp. 139, 141 (W.D.N.Y. 1997); Cowans v. Artuz, 14. F. Supp.2d at 506; Rodrigues v. Miller, 96 Civ. 4723, 1997 WL 599388 at *3 (S.D.N.Y. Sept. 29, 1997). "Apparently, the issues of comity and federalism are better served by addressing the merits, thereby avoiding useless state court litigation followed by additional meritless federal court litigation." Edkin v. Travis, 969 F. Supp. At 142.
In the instant habeas corpus petition, petitioner does not provide any factual support for a claim that improper and prejudicial conduct occurred outside the record. Nor does he raise this issue in his recently filed motion to vacate the judgment pursuant to C.P.L. Article 440 (see, Docket No. 24). Thus, even if this court were to consider the issue as an unexhausted ground for relief, it would be dismissed on the merits as patently frivolous.
The basis for petitioner's 1995 claim of improper and prejudicial conduct outside the record was that he was deprived of effective assistance of counsel as a result of his attorney's failure to advise, investigate and preserve errors. In his recent motion pursuant to C.P.L. Article 440, however, petitioner confined his ineffective assistance of counsel argument to failure to object to impermissible bolstering, apparently abandoning any claim that his attorney failed to properly advise and investigate.
3. Procedural Default
Federal habeas review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule. An exception exists if a petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d at 126.
In Point I, petitioner asserts that the proof of physical injury was insufficient to support a conviction of assault in the second degree. In Point II, petitioner asserts that the victim's identification was improperly bolstered by the explicit testimony of Sylvia Thomas and the inferences of Officer Barnum. Petitioner raised both of these issues on direct appeal. The Appellate Division, Fourth Department, unanimously affirmed without opinion. People v. Dorsey, 227 A.D.2d 1007; 643 N.Y.S.2d 298 (4th Dep't. 1996). The Court of Appeals denied petitioner's application seeking leave to appeal, also without opinion. People v. Dorsey, 88 N.Y.2d 965; 647 N.Y.S.2d 719 (1996).
This court was not provided with the application seeking leave to appeal to the New York Court of Appeals nor the People's response to that application. Since Respondent has not alleged that petitioner failed to exhaust certain claims by not presenting them to the New York Court of Appeals, this court will presume that the same issues were presented to the Appellate Division and the Court of Appeals. An application to the New York State Court of Appeals must include a letter application, copies of the briefs submitted by the parties to the lower courts, all relevant opinions from the lower courts, and all papers relied on by the application. 22 N YC.R.R. § 500.10(a). See e.g., Lopez v. Warden, Sullivan Correctional Facility, No. 97 Civ. 2174, 1998 WL 642725 at *2 (S.D.N.Y. Sept. 18, 1998) (Petitioner exhausted his claims by submitting a letter application and Appellate Division briefs to the New York Court of Appeals in a manner consistent with the requirements of that Court).
In Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993), the Second Circuit held that a state court's silent rejection of an appeal creates a presumption against habeas review, even if the government had previously argued both substantive and procedural grounds to a state court. Quirama, 983 F.2 at 14 (reaffirming Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982), cert. denied, 459 U.S. 849).
The Second Circuit has distinguished cases that involve silent state court affirmances such as in Quirama, supra, and those that are ambiguous written opinions, in which the Appellate Division generally states that a defendant's claims are "either unpreserved or without merit." see e.g., Hayes v. Coombe, 142 F.3d 517 (2d Cir. 1988), cert. denied, ___ S.Ct. ___, 1999 WL 16130 (January 19, 1999). In Hayes v. Coombe, supra at 518, however, the Second Circuit suggests that the exact scope and continued vitality of Quirama will be addressed in the near future.
A. Sufficiency of the Proof of Physical Injury
At the close of the evidence, defense counsel moved for a trial order of dismissal on insufficient grounds. Counsel specifically argued that the victim's testimony regarding the severity of physical injury was incredible given the lack of medical proof or other corroborating evidence. (T. 297). Appellate counsel argued that the proof of physical injury was insufficient because: 1) the victim's testimony was not credible without medical proof or other corroboration; and, 2) that the injuries described by the victim did not satisfy the statutory definition of physical injury.
Appellate counsel argued that "[i]n fact, the evidence demonstrates that Ms. Patterson functioned normally after the incident" (Petitioner's brief, at 12); "she neither went to the hospital nor sought any treatment [. . .] and no photos were taken of [her] injuries" (Petitioner's brief, at 14).
The State responded that defense counsel had failed to preserve the argument that the evidence of injury failed to satisfy the statutory definition of physical injury because counsel had confined his motion for a trial order of dismissal to the credibility of the victim's testimony. See, People's response brief, at p. 21, (citing People v. King, 85 N.Y.2d 609, 624; 627 N.Y.S.2d 302 (1995)). The State also argued that the evidence was legally sufficient.
Since the Appellate Division affirmed without opinion, there is no statement of record as to the grounds for its decision. Pursuant to Quirama, supra, this court finds that petitioner's claim that the evidence presented did not satisfy the statutory definition of physical injury is procedurally barred from federal habeas corpus review based upon independent and adequate state grounds. Quirama 983 F.2d at 13.
In his motion to set aside the verdict pursuant to C.P.L. § 330.30, petitioner raised the issue that the evidence was insufficient to establish the elements of "impairment of physical condition or substantial pain." Under New York law, however, a post-trial motion pursuant to C.P.L. § 330.30 arguing insufficiency of the evidence is considered untimely for preservation purposes. See e.g., People v. Gray, 86 N.Y.2d 10, 20-21; 629 N.Y.S.2d 173 (1995); People v. Rios, 230 A.D.2d 87, 89; 658 N.Y.S.2d 579, 580 (1997), app. denied, 90 N.Y.2d 862 (1997).
The issue of the insufficiency of evidence of physical injury due to the lack of medical proof supporting the victim's testimony was preserved by counsel, and may be considered on the merits. However, the habeas court does not weigh the evidence nor determine the credibility of witnesses. United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995), cert. denied, 516 U.S. 1042 (1996). The jury heard Ms. Patterson's testimony that petitioner choked her until she passed out, held what felt like a knife to her neck, hit her on the head with a bottle, and repeatedly punched her in the head until she blacked out. She testified that her fingers got cut from something knife-like and that she received a laceration on her head from being hit with the bottle. She also testified that, as a result of the attack, she suffered severe headaches and a sore throat for two weeks, and that she also coughed up blood. She treated herself daily with aspirin. Despite lack of medical corroboration, the jury credited the victim's account.
It is up to the jury to determine the credibility of a witness, and the court must defer to the jury's decision to believe or disbelieve a witness' testimony. See, United States v. Khan, supra at 514; see also, Williams v. McCoy, 7 F. Supp.2d 214 (E.D.N.Y. 1998). Upon habeas corpus review, a state verdict must be upheld if "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." Wright v. West, 505 U.S. 277 (1992); Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993). This court finds that the evidence presented was sufficient to convince a rational trier of fact beyond a reasonable doubt that she suffered "substantial pain or impairment of physical condition" as a result of petitioner's attack with a dangerous instrument. As such, Point I of the petition should be dismissed.
B. Bolstering
In his second ground for relief (Point II), petitioner asserts that the victim's identification was improperly bolstered by the explicit testimony of Sylvia Thomas and the inferences made by Officer Barnum. Petitioner raised this issue on direct appeal, and thus exhausted his state court remedies. Petitioner acknowledges that defense counsel failed to object to admission of this testimony and asks this court to reach the issue in the interest of justice. In his supporting memorandum, petitioner suggests that his attorney's failure to object to bolstering testimony deprived him of effective assistance of counsel. See, petitioner's supporting Memorandum of Law.
In response to petitioner's direct appeal, the State argued that: 1) the issue was unpreserved for appellate review; and, 2) the testimony in question did not constitute bolstering.
As an initial matter, this court concludes that any bolstering, if it did occur, is not an error of constitutional dimension for which habeas corpus relief is available. Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 (S.D.N.Y. July 15, 1998). Evidentiary issues are generally matters of state law not cognizable under habeas corpus, and therefore, is not a basis on which the court may grant habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). "Although bolstering is a practice prohibited in various states, including New York, the practice is not forbidden by the Federal Rules of Evidence and is not sufficiently prejudicial to deprive a defendant of his due process right to a fair trial." Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 (S.D.N.Y. Sept. 17, 1998) (quoting Vega v. Berry, 90 Civ. 7044, 1991 WL 73847 at *1 (S.D.N.Y. April 29, 1991)).
Secondly, since the Appellate Division affirmed without opinion and there is no reason to question the independent and adequate state ground for the Appellate Division's decision, this court finds that the issue of improper bolstering is procedurally barred from federal habeas corpus review. Quirama, 983 F.2d at 13.
However, included within Point II, the petitioner claims that his attorney's failure to object to the bolstering testimony constituted ineffective assistance of counsel. Inasmuch as ineffective assistance of counsel may establish cause for procedural default, Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)), cert. denied, 514 U.S. 1054 (1995), and is a constitutional claim in itself, it shall be addressed by this court.
Petitioner's claim of ineffective assistance of counsel for failure to object to the bolstering testimony has not been exhausted in the state courts. His motion pursuant to C.P.L. Article 440 was filed after the instant habeas petition and was denied by Onondaga County Court on January 6, 1999. Petitioner has not appealed the County Court's denial of his 440 motion.
County Court found petitioner's allegations of ineffective assistance of counsel legally and factually insufficient, and held that petitioner received meaningful representation. (Docket No. 24).
Rather than dismiss the entire petition as a "mixed petition" (Rose v. Lundy, 455 U.S. 509, 510 (1982)), this court has utilized its discretion pursuant to 28 U.S.C. § 2254(b)(2), considered the merits of this issue, and finds petitioner's claim of ineffective assistance of counsel for failure to object to the bolstering testimony patently frivolous.
A claim of ineffective assistance of counsel is sustainable only if counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993). In applying this test, a reviewing court must be "highly deferential" and presume that counsel's conduct falls within the range of reasonable performance. Strickland, 466 U.S. at 689. Tactical decisions made after thorough investigation are "virtually unchallengeable." Id. at 690.
There is nothing in the record to support a finding that counsel's representation fell below an objective standard of reasonableness. First, Sylvia Thomas' testimony clarifies for the jury how the victim learned petitioner's name. (T. 260). A review of the record suggests that counsel's decision not to object to Mrs. Thomas' testimony was strategic. Counsel's cross-examinations were directed at clarifying whether the victim spontaneously identified petitioner as her attacker, or whether Mrs. Thomas first identified him as a "pervert." This strategy may have been designed to raise a doubt as to whether the victim correctly identified her attacker or whether she may have misidentified him, as she may have been influenced by a prejudicial comment. (T. 265-267). A strategic choice made after an investigation of the law and facts relevant to plausible options is virtually unchallengeable. Strickland, 466 U.S. at 690.
Furthermore, counsel's failure to object to Officer Barnum's inference that petitioner was arrested after he was identified by the victim, does not satisfy the "reasonable performance" prong set forth in Strickland, supra. Under New York State law, the harmless error analysis would have applied to the admission of inferential bolstering testimony (People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230 (1982)). Given the victim's accurate description of petitioner, her positive identification, and her testimony as to having seen the petitioner around the neighborhood prior to the attack, there is no significant probability that the jury would have acquitted the defendant except for Officer Barnum's testimony. Counsel might have strategically and reasonably decided not to draw attention to the officer's testimony by objecting.
On direct appeal, petitioner relied on People v. Holt, 67 N.Y.2d 819, 820, 501 N.Y.S.2d 641, 642 (1986). In Holt, the Court of Appeals stated that, upon re-trial, the police officer should not be permitted to testify, over objection, that he had arrested the defendant after conferring with the eyewitness, though specifically commented that "such implicit bolstering may not have warranted reversal in and of itself." Holt, supra at 820.
In denying petitioner's recent motion pursuant to Article 440, the County Court specifically commented that even if such testimony constituted improper bolstering, such admission was clearly harmless in that the victim's identification testimony overwhelmingly supplied credible evidence. (Docket No. 24).
Counsel's failure to object to the alleged bolstering testimony did not fall below an objective standard of reasonableness, nor is there any reasonable probability that, absent any errors, if there were any, the result of the proceeding would have been different. As such, petitioner's claim that he was deprived of ineffective assistance of counsel for failure to preserve an alleged bolstering error is meritless, and Point II of the petition should be dismissed.
4. Cumulative Error
In his third point, the petitioner argues that the cumulative effect of all error deprived him of a fair trial. Rather than cite specific errors which cumulatively deprived him of a fair trial, petitioner merely references transcript pages from the Wade hearing and his appellate brief. See, Docket No. 1, petitioner's supporting memorandum. Inasmuch as the alleged error raised in Points I and II of the petition did not involve matters of constitutional dimension, had been procedurally defaulted or were found to be without merit, Point III of the petition should be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.