Opinion
No. 03-CV-5195 (NGG) (LB).
September 28, 2005
REPORT AND RECOMMENDATION
The Honorable Nicholas G. Garaufis, United States District Judge, referred this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to the undersigned for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the following reasons, it is recommended that the petition should be denied.
BACKGROUND
On April 27, 1998, at approximately 10:25 a.m., Valeriy Shevchenko returned to his apartment, which occupied the top floor of a house at 1216 41st Street in Brooklyn, New York. Tr. 16. Shevchenko noticed that the front door to his apartment was open and its lock destroyed. Tr. 19. Entering the apartment, Shevchenko saw objects scattered across the living room floor, when suddenly two dark-complexioned men, one tall, the other of smaller build and lighter skin, rushed towards him. Tr. 19-20. Shevchenko screamed, ran down the stairs, pushing away one of the men who tried to grab him, and ran out into the middle of the street, yelling for someone to call the police. Tr. 23. The two intruders exited the house and ran past Shevchenko toward 12th Avenue. Tr. 23. Shevchenko ran after them and saw that they had separated and were running in different directions. Tr. 24. Shevchenko ran after the shorter man and chased him in the direction of a fire house. Tr. 24-25. Shevchenko saw a police car at an intersection and signaled for help. Tr. 25. The police car chased the assailant, and several firefighters from the fire house, hearing Shevchenko's cries for help, followed behind the car. Tr. 25. The fire and policemen caught the assailant. Tr. 26, 66.
In the pre-trial and trial transcripts, the victim's name is spelled various ways. The Court adopts the spelling as reflected in the transcript of the Mapp-Dunaway hearing, where the victim's name was read from the arresting officer's notes.
"Tr. ____" refers to pages of the trial transcript.
Officers Beraud and Lam arrived at the scene in response to a call that petitioner was being held at the firehouse. M-D. 7; Tr. 69. Shevchenko told the officers what happened and identified petitioner as the man he chased out of his house. M-D. 9-10. The officers recovered $317, an address book, and a clear plastic door jimmy from petitioner, and placed him under arrest. M-D. 9. Officer Beraud went with Shevchenko to his apartment to investigate the crime scene, and Shevchenko noticed that two wallets, a telephone receiver, and some jewelry were missing from the apartment. M-D. 10; Tr. 27-29, 90. Beraud noticed damage to the front door of the apartment. Tr. 98. Afterwards, Beraud canvassed the area and recovered a wallet and a leather case. Tr. 91-92. Later that day, Shevchenko was called to the police station to retrieve the two stolen wallets. Tr. 30.
"M-D. ____" refers to pages of the Mapp-Dunaway hearing transcript.
A Mapp-Dunaway hearing was held on February 3, 1999 before the Honorable Gustin L. Reichbach of Supreme Court, Kings County, who ruled that at the time of petitioner's arrest, there was sufficient evidence to establish probable cause to take petitioner into custody for an attempted burglary and trespass, and denied defense counsel's motion to suppress the property retrieved from petitioner. M-D. 14. The case proceeded to trial, where petitioner was charged with burglary in the second degree, criminal trespass in the second degree, criminal mischief in the fourth degree, petit larceny, and possession of burglar's tools.
The prosecution presented the testimony of Shevchenko, Officer Lam, one of the firemen who held petitioner, and fingerprint experts. Shevchenko testified that he worked as an electrician and that on the day of the crime, he had arrived home earlier than normal, because his boss had no work for him. Tr. 15, 17. On cross-examination, Shevchenko testified that he had not been on good terms with his downstairs neighbor Ms. Yvonne Medina and thought she may have given keys to the building to friends of hers who would come into the house and make noise. Tr. 44. Shevchenko testified he had never seen petitioner before at his building. Tr. 46. The prosecution also presented the testimony of a bystander, who described how he saw someone fitting the description of petitioner's accomplice run down 40th Street and drop something into a garbage can. Tr. 118. According to the bystander's testimony, another person he was with looked into the can and retrieved a black wallet, which he handed to the police when they arrived on the scene. Tr. 121.
Petitioner's counsel presented the testimony of Shevchenko's neighbor, Yvonne Medina. Medina testified that petitioner was a friend of hers who had use of her keys to access her building. Tr. 130. Medina further testified that she felt that Shevchenko was hostile towards her and that he had complained to her on occasion about noise from her apartment. Tr. 130-33. The People called Executive Assistant District Attorney Sheryl Anania as a witness, who testified that she had called Ms. Medina on February 5, 1999, prior to Medina taking the stand, in order to prepare for the case against petitioner. Tr. 148. According to Anania, Medina had told her that petitioner had never set foot in her apartment. Tr. 150. Anania further testified that Medina claimed that petitioner had called her from jail and admitted that he was at the building on the day of his arrest, looking for Medina and "ringing doorbells." Tr. 166. On cross examination, Anania said that Medina had relayed what petitioner had told her over the phone: that petitioner ran when he saw police and was later apprehended. Tr. 166.
After closing arguments, Supreme Court Justice Ruchelsman instructed the jury on the various charges. The court defined the term "acting in concert" as follows:
The People contend that [petitioner] and another were acting in concert and aiding each other. The law provides that "when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct."
Now culpable mental state means intentionally or knowingly[, d]oes he know and does he intend to aid the active participants in any way[.]
Tr. 246.
The court then provided the jury with the following example intended to illustrate "acting in concert:"
I think the best example I can give you is attending a concert. Let us assume you go to a concert at Lincoln Center. The conductor is up front waving his baton throughout the concert on stage, the brass, the drummer is most active; but over in the corner there is a fellow with a triangle. Maybe once or twice during the entire number he will hit the triangle. He is acting in concert with his fellow musicians even though he did not work as hard as the musicians who play the strings or brass. He is part of the concert. He is assisting in the making of that music despite his minimal participation.
On the other hand, you are sitting there in the audience. You are witnessing this, but you are not participating and not involved in any way in the making of the music.
Mere presence at the scene of the concert makes no one a participant any more than mere presence at the scene of a crime. You must remember that any participation, no matter how slight, if it is done knowingly, does make one a participant and responsible for the acts of others. Tr. 246-47.
Justice Ruchelsman then instructed the jury on the various other counts. After being reinstructed on the petit larceny count, the jury found petitioner guilty of one count of burglary in the second degree, one count of possession of burglar's tools, one count of petit larceny in the fourth degree, and one count of criminal mischief in the fourth degree. At sentencing on February 26, 1999, petitioner was adjudicated as a second felony offender. S. 3. Justice Ruchelsman sentenced petitioner to concurrent prison terms of ten years for the burglary count, ten years for the criminal possession of burglar's tools count, and one year for the petit larceny count. S. 7.
"S. ____" refers to pages of the sentencing transcript.
Petitioner appealed his conviction to the Supreme Court, Appellate Division, Second Department, arguing that he was denied his right to a fair trial based on: (1) prosecutorial misconduct; (2) the trial court's failure to adequately charge the jury on accessorial liability; (3) the State's failure to prove his guilt beyond a reasonable doubt; (4) the court's error in permitting the prosecutor to elicit certain testimony from his witnesses; (5) the court's error in excluding him from participating in sidebar conferences at trial; (6) the court's error in limiting the cross-examination of two witnesses; and (7) the court's error in admitting evidence recovered after his arrest. See Appellant's Brief, dated September 2001, and Supplemental Brief, dated February 2002.
On July 29, 2002, the Appellate Division affirmed petitioner's conviction, finding that the evidence "was legally sufficient to establish [his] guilt beyond a reasonable doubt," that the trial court "correctly instructed the jury with respect to the issue of intent," and that petitioner's "arguments regarding alleged prosecutorial misconduct are largely unpreserved for appellate review." People v. Mejias, 296 A.D.2d 583, 583-84 (2002). The court found that petitioner's remaining contentions were without merit. Id. at 584. On November 22, 2002, the New York Court of Appeals denied petitioner leave to appeal. People v. Mejias, 99 N.Y.2d 537 (2002).
On September 6, 2003, petitioner filed this pro se petition seeking a writ of habeas corpus under 28 U.S.C. § 2254, asserting that: (1) he was denied a fair trial due to prosecutorial misconduct; (2) the trial court's charge to the jury on accomplice liability was deficient; (3) the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt; (4) he was improperly excluded from participating in sidebar conferences at trial; (5) the court improperly limited the cross-examination of two witnesses; (6) the court wrongfully admitted evidence recovered after his arrest which was irrelevant to the crimes charged; and (7) the court erred in permitting the prosecutor to elicit certain testimony from the complainant. Pet. ¶ 13; see also Petitioner's Memorandum of Law ("Mem."). Respondent opposed the instant petition, see Respondent's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, and petitioner filed a traverse to respondent's opposition. See Petitioner's Reply to the Respondent's Answer.
DISCUSSION
I. Standard of Review
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") sets forth the standard of review for habeas corpus petitions. For claims that have been fully adjudicated on the merits in state court, a petitioner must show that the state court proceedings:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001) (per curiam) (holding that habeas relief is warranted "only upon a showing that the state courts unreasonably applied clearly established Supreme Court precedent") (emphasis in original).
A state court's decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is an unreasonable application of Federal law "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. The Supreme Court emphasized that the reasonableness of the application of the law is to be assessed objectively rather than subjectively. Id. at 409-10. Therefore, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established Federal law erroneously or incorrectly. Rather, that application must also be unreasonable."Id. at 411.
The Second Circuit has warned, however, that while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise habeas relief would be limited to state court decision 'so far off the mark as to suggest judicial incompetence.'" Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999) (en banc)).
II. Petitioner's Claims
A. Prosecutorial Misconduct
Petitioner alleges that he was denied a fair trial by the prosecutor's misconduct. Petitioner identifies five examples of such misconduct:
(A) Accusing a defense witness of being involved in the crime and conspiring with petitioner to fabricate testimony, and attempting to elicit improper rebuttal testimony; (B) Denigrating and distorting the defense, vouching for the People's case; C) Acting as an unsworn witness and misrepresenting the facts; (D) Commenting on the petitioner's failure to testify and shifting the burden of proof; and (E) Making prejudicial and inflammatory remarks.
Pet. ¶ 13.
The Appellate Division held that petitioner's arguments regarding the alleged prosecutorial misconduct were largely unpreserved for appellate review, and, in any event, "the comments alleged to be inflammatory or prejudicial were either fair comment on the evidence or responsive to arguments presented in the defense counsel's summation." Mejias, 296 A.D.2d at 584 (citations omitted). The Appellate Division cited New York C.P.L. § 470.05, which preserves for appellate review only those questions of law as to which "a protest . . . was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." See also People v. Wilt, 794 N.Y.S.2d 724, 726 (2005) (concluding that under New York C.P.L. § 470.05, claim of prosecutorial misconduct during summation was unpreserved for review, as no objection was raised at trial).
It is well established that New York C.P.L. § 470.05 is an adequate and independent state procedural rule. Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999); Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990). The Second Circuit has held that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim."Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 2000)); accord Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 n. 4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then rules 'in any event' on the merits, such a claim is not preserved."); Garcia, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). The court's statement that the claim was "unpreserved" decided the claim on an adequate and independent state ground. The appellate court's alternative holding, which rejected the prosecutorial misconduct claim on the merits, does not avoid the application of the procedural bar doctrine. See Harris, 489 U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a federal claim in an alternative holding" as long as it "explicitly invokes a state procedural bar rule as a separate basis for decision") (emphasis in original); see Glenn, 98 F.3d at 724 (state decision which denied claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"). Accordingly, petitioner's claim of prosecutorial misconduct is procedurally barred from habeas review.
A petitioner may overcome a procedural bar by 1) demonstrating that the failure to consider the federal claim will result in a fundamental miscarriage of justice, specifically the conviction of an actually innocent person, or 2) a showing of both good cause for the procedural default and prejudice therefrom. See Harris, 489 U.S. at 262; Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). Petitioner does not demonstrate that he is actually innocent, nor does he demonstrate good cause for the default and ensuing prejudice. Therefore, the Court should not review this claim on the merits.
However, even if the claim was not barred and the Court reached the merits, the claim would still be denied. A federal court may only grant habeas relief if the prosecutor's comments "constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). Petitioner must show "that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 823 (2d Cir. 1994). In considering whether petitioner suffered actual prejudice, the court should evaluate (1) the severity of the misconduct, (2) any measures adopted to cure the misconduct, and (3) the certainty of the conviction absent the improper statements. Floyd v. Meachum, 907 F. 2d 347, 353 (2d Cir. 1990).
Summation comments warrant reversing or disturbing a conviction only if they unfairly prejudiced defendant. United States v. Young, 470 U.S. 1, 12-13 (1985). Thus, in weighing the severity of the misconduct, the Court must examine whether the prosecution's remarks were responsive in tenor and scope to defense counsel's summation remarks. Id. It is clear that the prosecutor's allegedly improper and inflammatory statements here were responsive to defense counsel's arguments that Mr. Shevchenko was prejudiced against petitioner and Ms. Medina. Based on the trial record, the prosecutor's statements were "unlikely to have affected the jury's ability to judge fairly."Darden v. Wainwright, 477 U.S. 168, 181-182 (1986) (prosecutor's summation did not render trial fundamentally unfair where prosecutor did not manipulate or misstate the evidence, and comments were in part invited by or responsive to the summation of the defense).
Moreover, the trial court's curative measures mitigated any damage to petitioner's case. On at least two occasions, the court instructed the jury that it may consider counsel's arguments, but was not obligated to accept them. Tr. 175-76, 236-37. Finally, the court stated no defendant is required to prove his innocence and that the burden of proof remains on the prosecution and never shifts to the defendant. Tr. 242. Cf. Garofolo v. Coomb, 804 F.2d 201 (2d Cir. 1986) (curative instructions cured improper and inappropriate comments).
Viewed in the context of the entire case against petitioner, the prosecutor's remarks on summation, which responded to defense counsel's remarks, did not render petitioner's trial "fundamentally unfair." Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Therefore, petitioner's claim alleging prosecutorial misconduct should be denied.
B. Jury Charge
Petitioner argues that the court's jury charge on accessorial liability was insufficient as it should have instructed the jury that in order to find petitioner guilty of being an accessory, the jury must find that petitioner shared the specific intent of his accomplice. Pet. ¶ 13. Petitioner's jury instruction claim should be denied.
"In order to obtain a writ of habeas corpus in federal court 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 [F]ederal law." Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)). The ultimate question, therefore, is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). Although state law defines the elements of the crime, "federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws." Davis, 270 F.3d at 123. Thus, the federal habeas court must determine whether the jury charge violated state law and, if so, whether the jury charge violated the due process standard set forth inCupp. Id. at 124. Finally, if the Court finds a due process violation, it must determine whether habeas corpus relief is warranted. See 28 U.S.C. § 2254(d) (under the AEDPA, habeas relief may be granted only if the federal court finds that the state court decision was "contrary to" or amounted to an "unreasonable application of" clearly established Supreme Court precedent); Brecht v. Abramson, 507 U.S. 619, 637 (1993) (pre-AEDPA standard authorizing habeas corpus relief only if the federal court finds that the constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict").
1. The Jury Charge Violated State Law
Petitioner was charged as an accessory to the crimes of burglary, trespass, petit larceny and mischief. Thus, the jury was required to consider and determine two separate culpability findings: (1) whether petitioner possessed the requisite mental state required to commit the crimes, and (2) whether petitioner intentionally aided his accomplice in committing the crimes. N.Y. Penal Law § 20.00. As explained by the New York Court of Appeals, "Penal Law § 20.00 imposes accessorial liability on an accomplice not for aiding or encouraging another to reach a particular mental state, but rather for intentionally aiding another to engage in conduct which constitutes the charged offense while himself 'acting with the mental culpability required for the commission' of that offense." People v. Flayhart, 72 N.Y.2d 737, 741 (1988) (emphasis in original); see People v. Kaplan, 76 N.Y.2d 140, 144 (1990) ("Penal Law § 20.00 provides that a person may by held criminally liable as an accomplice when he performs certain acts and does so 'with the mental culpability required for the commission' of the substantive crime.").
The jury instruction given by the court here incorrectly conflated the two required culpability findings into one. Although the court, reading from Penal Law § 20.00, explained that an accessory is liable for criminal conduct of another when he acts "with the mental culpability required for the commission thereof," Tr. 246, it gave the jury the incorrect definition of the requisite culpability required to commit the crimes for which petitioner was charged as an accessory. Specifically, the court erroneously explained that "culpable mental state means intentionally or knowingly[, d]oes he know and does he intend to aid the active participant in any way." Tr. 246 (emphasis added). To the contrary, in order to convict petitioner for the crime of burglary and the other crimes for which he was charged as an accessory, the jury was required to find that petitioner possessed the "requisite intent for the commission of those crimes and engaged in deliberate conduct to bring them about."People v. Rosado, 244 A.D.2d 772, 773 (1997).
The court's example of accessorial liability was also in error. The court used the analogy of an orchestra to explain the difference between a participant who is "acting in concert," and thus liable for the acts of others, and a mere observer. Thus, an orchestra member, no matter how small his role (in this case a triangle player who hits the triangle only "once or twice during the entire number"), "is part of the concert" and "assisting in the making of that music despite his minimal participation." Tr. 246. On the other hand, an audience member is not a participant since he is "not involved in any way in the making of the music." Tr. 247. The court then concluded that "any participation, no matter how slight, if it is done knowingly, does make one a participant and responsible for the acts of the others." Tr. 247. This is an incorrect statement of law since an individual is not responsible for the acts of others as an accessory unless he also shares the requisite mental culpability of the actor, in this case, the intent to commit a burglary.
Nevertheless, looking at the "totality" of the charge, the Appellate Division found that the trial court properly informed the jury of the intent necessary to commit robbery because (1) the court "read verbatim Penal Law § 20.00 defining criminal liability for the conduct of another," and (2) "instructed the jury on the elements of burglary in the second degree and the remaining counts." Mejias, 296 A.D.2d at 583.
Turning first to the court's instructions on robbery, the Appellate Division found that the jury was instructed on the elements of the offense, including the intent requirement. What is obvious from the record, however, is that the jury was not directed to consider whether each element was proven as to each participant. Instead, the jury was instructed to find that petitioner, "acting in concert with another," committed the crimes for which he was charged as an accessory. Tr. 249, 251, 256, 258. Thus, the jury was not specifically required to find that petitioner, as opposed to his accomplice, "unlawfully entered in a dwelling . . . with intent to commit a crime inside," Tr. 249, or "wrongfully took . . . [property] from its owner." Tr. 256. Instead, the court merely read the elements of the crimes when defining the crimes for which petitioner was accused of aiding and abetting.
The court's reading of Penal Law § 20.00 did not adequately inform the jury that it must find that petitioner intended to commit the crimes for which he was charged as an accessory. Although the general language of § 20.00 states that the accessory must be "acting with the mental culpability required for the commission" of the crime, the court erroneously defined "culpable mental state" to mean "intentionally or knowingly[, d]oes he know and does he intend to aid the active participants in any way." Tr. 246. This erroneous instruction was further reinforced by the court's later instruction that "any participation, no matter how slight, if it is done knowingly, does make one a participant and responsible for the acts of the others." Tr. 247. Thus, the totality of the jury charge, taken in context, even with the court's reading of Penal Law § 20.00 and the general recital of the elements of burglary, trespass, larceny and mischief, was that petitioner could be held liable for the actions of his accomplice so long as he intended to aid them in any way. This is plainly incorrect.
2. The Erroneous Charge Amounted To A Violation of Due Process
Having determined that the charge was erroneous under state law, this Court must determine whether the error "so infected the entire trial that the resulting conviction violates due process."Cupp, 414 U.S. at 147.
The error here collapsed two separate elements of the crimes for which petitioner was charged as an accessory into one. Under the court's charge, the jury was not required to find the twin-prongs of accessorial liability: that petitioner possessed the requisite mental state to commit the crimes and that he intentionally aided his accomplice in committing the offenses. N.Y. Penal Law § 20.00. Instead, the court's instruction suggested that if the jury found that petitioner had intentionally aided his accomplice, both elements of the test were met and petitioner could be held criminally liable for the actions of his partner. The question of whether petitioner intended to commit the crimes, an essential element of the crimes, was thus never placed before the jury. The error thus violated petitioner's due process rights since it relieved the prosecution of its burden to "prove beyond a reasonable doubt every element of the charged offense." Carella v. California, 491 U.S. 263, 265 (1977); see Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) ("What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder 'beyond a reasonable doubt' of the facts necessary to establish each of those elements.") (citations omitted); Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) ("We conclude that the jury instruction at issue here was not merely an error of state law. By removing the Commonwealth's burden of proving beyond a reasonable doubt one of the essential elements of the crime of first-degree murder, the instruction also contravened the Due Process Clause of the Fourteenth Amendment.").
3. Harmless Error
Having found that the jury charge did not comport with petitioner's right to due process, the Court turns to consider whether the erroneous jury charge warrants habeas corpus relief.
The Supreme Court has "rejected the argument that the Constitution requires a blanket rule of automatic reversal in the case of constitutional error." Brecht, 507 U.S. at 630. Indeed, absent a structural defect, "most constitutional errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, 306 (1991). Structural error has been found "only in a 'very limited class of cases'" such as cases where the reviewing court finds a complete denial of counsel, a biased trial judge, racial discrimination in selection of the grand jury, denial of self-representation at trial, denial of a public trial, or a defective reasonable-doubt instruction. Neder v. United States, 527 U.S. 1, 8 (1999) (collecting cases). Otherwise, the reviewing court will apply a harmless error analysis.
The Supreme Court has set forth two different tests for determining whether an error may be overlooked by reason of its harmlessness. In Brecht, the Court held that on collateral review of a state conviction, an error will be found to be harmless if it did not have a "'substantial and injurious effect or influence in determining the jury's verdict.'" 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In Chapman v. California, the Court held that on direct review of a criminal conviction, an error may be overlooked only if it is "harmless beyond a reasonable doubt." 386 U.S. 18, 24 (1967).
Since the passage of the AEDPA, the Second Circuit has questioned "whether . . . the applicable test on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination whether the state court's decision was contrary to, or involved an unreasonable application of Chapman." Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004) (internal quotation marks and citations omitted); accord Cotto v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003); Ryan v. Miller, 303 F.3d 231, 253 (2d Cir. 2002); Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.) (per curiam), cert. denied, 122 S. Ct. 197 (2001). The Second Circuit has repeatedly declined to decide the question, and only recently resolved part of the question by holding in Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004), that "when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman."
Here, the issue of harmless error was never reached in the state courts because the Appellate Division found that no constitutional error had been committed at Mejias's trial. See Mejias, 296 A.D.2d at 583-84. The Second Circuit has not yet decided the harmless error standard to apply where, as here, the state courts did not engage in harmless error review. See Gutierrez, 389 F.3d at 306 ("We do not presently reach the issue of whether or how to apply Brecht where the state court has not engaged in harmless error review, as, of course, those facts are not before us.") (footnote omitted); see also Benn v. Greiner, 402 F.3d 100, 105 (2d Cir. 2005) (post-Gutierrez case declining to decide the harmless error standard to be applied "in the absence of a state court adjudication of harmlessness"). Therefore, it still remains an "open question" in this Circuit which harmless error standard is to be applied under these circumstances. Benn, 402 F.3d at 105 (citing Rosa v. McCray, 396 F.3d 210, 226 (2d Cir. 2005) (Straub, J., concurring in part and dissenting in part)).
In the course of making a ruling on alternative grounds, the Supreme Court has, without discussion, applied the Brecht standard to determine whether a trial error was harmless in an instance where the federal habeas court was the first court to conduct harmless error review. See Penry v. Johnson, 532 U.S. 782, 795-96 (2001). However, the Second Circuit has characterized this application of Brecht as "dicta." Benn, 402 F.3d at 105.
In this case, the Brecht standard is the appropriate harmless error standard of review. In California v. Roy, 519 U.S. 2, 5 (1997) (per curiam), the Supreme Court held that an erroneous jury charge which misdescribes or omits an element of the offense from jury consideration is not a "structural error," but a "trial error" subject to harmless error review. See Neder, 527 U.S. at 9 ("Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.") (emphasis in original). Therefore, the Supreme Court directed that Roy's erroneous jury charge claim, raised in the context of a federal habeas corpus petition, be reviewed under the harmless error standard enunciated in Brecht. Under this standard, a habeas petitioner is entitled to habeas corpus relief if the constitutional error had a "a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. "[I]n determining whether the constitutional error substantially influenced the jury's decision, a reviewing court should grant relief if it is in 'grave doubt as to the harmlessness' of a constitutional error." Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997) (quoting O'Neal v. McAninch, 513 U.S. 432, 445 (1995)). More specifically, where the erroneous jury charge omitted an element of the offense from jury consideration, the test is whether "a properly instructed, rational jury would have found the [omitted] element . . . beyond a reasonable doubt."Id. at 456.
Here, a properly instructed jury would have found the omitted element beyond a reasonable doubt. The jury was justified in finding that petitioner unlawfully entered Shevchenko's apartment and committed a crime inside by wrongfully taking property from its owner. There was ample testimony to support petitioner's guilt for the damage done to Shevchenko's apartment and for the theft of the missing items.
Accordingly, although the trial court's jury instruction was erroneous, the error was harmless as "a properly instructed rational jury would have found the [omitted] element . . . beyond a reasonable doubt." Id. Therefore, the petition for habeas corpus relief on this ground should be denied.
C. Sufficiency of the Evidence
Petitioner contends that "[i]n light of the unreliability and implausibility of complainant's testimony, and the remoteness of the circumstantial evidence that the government relied upon, the court record did not support a finding of guilt beyond a reasonable doubt." Pet. ¶ 13. Petitioner's claim is without merit.
The Fourteenth Amendment's Due Process clause "prohibits conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.'" Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting In re Winship, 397 U.S. 358, 364 (1970)). A petitioner challenging the sufficiency of the evidence of his guilt in a habeas corpus proceeding "bears a very heavy burden." Fama, 235 F.3d at 811. Habeas corpus relief must be denied 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted);Farrington v. Senkowski, 214 F.3d 237, 240 (2d Cir. 2000). Furthermore, in making its assessment, a federal habeas court must "credit every inference that could have been drawn in the state's favor . . . whether the evidence being reviewed is direct or circumstantial." Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir. 1988).
The Jackson "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16; see also 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"). Burglary in the second degree under New York Penal Law § 140.25(a), provides:
A person 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. . . .
As petitioner was charged as an accessory for burglary and other crimes, the jury was required to find that petitioner possessed the "requisite intent for the commission of those crimes and engaged in deliberate conduct to bring them about." Rosado, 244 A.D.2d at 773. The fact that there is no direct evidence of the accessory's intent, however, does not prevent the prosecution from establishing intent. In fact, "[o]ften there is no direct evidence of a defendant's mental state and the jury must infer the mens rea circumstantially from the surrounding facts."People v. Smith, 79 N.Y.2d 209, 315 (1992).
Viewing the evidence in the light most favorable to the prosecution, and drawing all permissible inferences in the prosecution's favor, a rational juror could have found petitioner guilty of the crimes for which he was charged. As noted by the Appellate Division:
[The evidence] was legally sufficient to establish defendant's guilt beyond a reasonable doubt of the crimes of burglary in the second degree, criminal mischief in the fourth degree, and petit larceny under an accomplice theory of liability . . . The evidence was also legally sufficient to establish the defendant's guilt of the crime of possession of burglar's tools. Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses.Mejias, 296 A.D.2d at 583 (citations omitted). Notwithstanding petitioner's arguments that Shevchenko's testimony was unreliable and that the stolen property was never recovered from petitioner, Mem. at 15-18, this Court must defer to the findings of the jury, who credited Shevchenko's testimony and found that either petitioner or his accomplice discarded the stolen property while in flight. See Jackson, 443 U.S. at 319; Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984). See also United States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985), cert. denied, 475 U.S. 1141 (1986) (As long as the jury resolves issues in a reasonable fashion, the evidence must be found sufficient; the fact that some inferences drawn from circumstantial evidence were not inevitable does not mean that the evidence was insufficient to prove a defendant's guilt beyond a reasonable doubt.).
In addition, petitioner's claim that the verdict was against the weight of the evidence does not present a federal question and therefore cannot afford petitioner habeas corpus relief.See Tankleff, 135 F.3d at 246 (" we can only grant habeas relief based on violations of federal rights") (emphasis in original). Petitioner's "'weight of the evidence' argument is a pure state law claim." Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001).
Accordingly, the evidence adduced at trial was constitutionally sufficient to prove petitioner was guilty of the crimes for which he was convicted. Therefore, it is recommended that petitioner's insufficiency of the evidence claim should be denied.
D. Exclusion from Sidebars
Petitioner claims that he was denied the right to be present at "all material stages of his trial" when he was excluded from "numerous" sidebars. Mem. at 19. In affirming petitioner's conviction, the Appellate Division did not address this claim directly. Instead, after addressing the first three claims raised in the instant petition, the Appellate Division found that the "defendant's remaining contentions . . . are either unpreserved for appellate review or without merit." Mejias, 296 A.D.2d at 726-27. However, "a procedural default does not bar consideration of a federal claim on . . . habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263 (internal quotation marks omitted). The Court of Appeals for the Second Circuit has explicitly held that the phrase "either unpreserved or without merit" is not a clear and express statement. See Fama, 235 F.3d 804. This Court, therefore, may review this claim on the merits.
A criminal defendant has a right both under the Confrontation Clause and the Due Process Clause to be present at trial. See United States v. Gagnon, 470 U.S. 522, 526 (1985). This right permits the defendant to be "present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15 (1975). In the case of sidebar conferences between a judge, the prosecution and defense counsel, no witness or evidence is presented, thus petitioner's right under the Confrontation Clause is not implicated. In such circumstances, "a criminal defendant has a due process right to be present 'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge' but only to the extent that 'a fair and just hearing would be thwarted by his absence.'"Wilson v. Bennett, 188 F. Supp. 2d 347, 356 (S.D.N.Y. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Thus, courts dealing with a defendant's claims of exclusion from a sidebar conference during trial have consistently found that "the Federal Constitution does not require a defendant's presence at sidebar conferences." Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996) (citing cases); accord United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993) (defendant's "absence from [nine sidebar] conferences did not detract from his defense or in any other way affect the fundamental fairness of his trial"); Brown v. Greiner, Nos. 02-CV-2043 (JBW), 03-MISC-0066 (JBW), 2003 WL 22964395, at *12 (E.D.N.Y. Oct. 2, 2003); McKnight v. Superintendent Albauch, No. 97 Civ. 7415 (WK), 2000 WL 1072351, at *6 (S.D.N.Y. Aug. 2, 2000); Rodriguez v. Walker, No. 97 Civ. 2823 (KTD) 1999 WL 61834, at *4 (S.D.N.Y. Feb. 9, 1999); Williams v. McCoy, 7 F. Supp.2d 214, 221 (E.D.N.Y. 1998).
Here, the sidebar conferences primarily concerned the scope of cross-examination and the admissibility of certain evidence. Tr. 44, 83, 144. There is no basis for concluding that petitioner's presence at the sidebar conferences would have had any "reasonably substantial" relation to his opportunity to defend against the charges. Snyder, 291 U.S. at 105-06. Defense counsel had unfettered access to petitioner in order to confer regarding the scope of cross-examination or the admissibility of evidence. As a result, petitioner's absence from the sidebar "did not affect the court's ability to decide the issue or otherwise diminish [the defendant's] ability to defend against the charges, and [the defendant's] interests were adequately protected by his counsel's presence at the conference." McCoy, 8 F.3d at 497 (citing United States v. Shukitis, 877 F.2d 1322, 1330 (7th Cir. 1989)).
The state court's decision that petitioner was properly excluded from the sidebar conferences was not contrary to or an unreasonable application of Federal law. Accordingly, petitioner's claim regarding his exclusion from sidebar conferences should be denied.
E. Limitation of Cross-Examination
Petitioner claims that he was denied a fair trial when the court limited the cross-examination of Mr. Shevchenko and Ms. Anania. Pet. ¶ 13. Petitioner argues that his defense counsel was wrongfully prevented by the trial court from pursuing a line of questioning that would have impeached Shevchenko's and Anania's credibility. Mem. at 20-24. As with petitioner's claim regarding the sidebar conferences, although the Appellate Division did not address this claim directly, this Court may address the merits of the claim. See discussion infra Section II.D.
The Confrontation Clause of the Sixth Amendment guarantees a defendant in a criminal prosecution the right to confront the witnesses against him. See Henry v. Speckard, 22 F.3d 1209, 1214 (2d Cir. 1994). This right applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 (1965). In cross-examining a witness, the "opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." Davis v. Alaska, 415 U.S. 308, 316 (1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)). However, "the confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). Accordingly, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
The test for determining whether the evidentiary ruling denied petitioner a fair trial is whether "the jury is in possession of facts sufficient to make a discriminating appraisal of the particular witness's credibility." Cotto, 331 F.3d at 249 (quotations omitted); see also Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (inquiry is whether the erroneously excluded evidence, if presented to the jury, "would have created a reasonable doubt that did not otherwise exist"). The "omission must be evaluated in the context of the entire record . . ." and in a close case, "additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 112 (1976). The "creation of otherwise non-existent doubt" warrants a finding that the error had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (citing Brecht, 507 U.S. 619); see also McLean v. McGinnis, 29 F. Supp. 2d 83 (E.D.N.Y. 1998) (applying "substantial and injurious" standard to erroneously excluded evidence).
Here, the trial court did not unconstitutionally limit defense counsel's cross-examination of Shevchenko and Anania. Petitioner's counsel in her opening statement before the jury suggested that Shevchenko was biased and stated that there was "animosity" between him and the petitioner. Tr. 11. Defense counsel was able to cross-examine Shevchenko as to his negative opinion of Ms. Medina and her friends. Tr. 43-45. Although the trial court did sustain some of the prosecutor's objections with regard to this line of questioning, Tr. 44-45, petitioner had sufficient opportunity to impeach the witness's credibility. Petitioner's trial counsel pitted Ms Medina's testimony against the credibility of Shevchenko. Ultimately, the jury credited Shevchenko's testimony and identification of petitioner.
Further, the court did not err when it sustained the prosecutor's objection to defense counsel's line of questioning of Ms. Anania. Petitioner's counsel attempted to question Anania about statistics on cases won and lost by the District Attorney's office. The properly excluded testimony regarding the District Attorney's office's statistics did not go to any element of the crime charged or the victim's ability to identify petitioner. In any event, petitioner's counsel presented her theory that Anania had a motive to impeach the credibility of Medina to the jury during her summation. Tr. 192-95.
Accordingly, the additional evidence which petitioner sought to elicit would not have affected the prosecution's case, and, thus, there is no Confrontation Clause violation. Tinsely v. Kuhlmann, 973 F.2d 163 (2d Cir. 1992). See, e.g., United States v. Weiss, 930 F.2d 185, 198 (2d Cir. 1991) (no confrontation rights violation where defendant not permitted to cross-examine state's witness to expose animosity where evidence of animosity was before the jury); Jones v. Berry, 880 F.2d 670 (2d Cir. 1989) (where the record suggests no facts or information which continued questioning would have exposed and counsel failed to make an offer of proof or indicate the proper basis for the question, the court could not conclude there was a Confrontation Clause violation); United States v. Ciro, 753 F.2d 248, 249 (2d Cir. 1985) (no confrontation violation where defendant not permitted to cross-examine state's witness about his probationary status, because "the defense had ample evidence, absent the juvenile adjudication, with which to impeach the witness's credibility in general and bias in particular"), cert. denied, 471 U.S. 1018, 1057 (1985); Vineski v. Scully, No. 90 Civ. 2570 (PKL), 1993 WL 22159, at *7 (S.D.N.Y. Jan. 28, 1993) ("trial court did not abuse its discretion in imposing limits on the scope of cross-examination" because "defense counsel's questioning and summation revealed [State's witness's] strong prosecution orientation and alerted the jury to any potentially unreliable conclusions"). Therefore, the Appellate Division did not unreasonably apply Federal law and petitioner's Sixth Amendment claim should be denied.
F. Fourth Amendment Claim
Petitioner's sixth ground alleges his conviction was based on evidence obtained pursuant to an unlawful seizure. Pet. ¶ 13. Petitioner had a full and fair opportunity to litigate these Fourth Amendment claims in state court. Therefore, federal habeas relief on these grounds is precluded:
[W]here the State has provided an opportunity for a full and fair litigation of the Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 494 (1976).
In this Circuit, a federal court on habeas review may only review petitioner's Fourth Amendment violation claim if "(a) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (quoting McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 70 (2d Cir. 1983)).
The trial record belies petitioner's claim that he "has not been provided full and fair litigation of this claim by the state." Mem. at 25. The trial court held a pretrial hearing at which petitioner's counsel cross-examined Detective Beraud concerning the events surrounding petitioner's arrest. Petitioner's counsel moved to suppress arrest evidence and said motion was denied. M-D. 14. Further, at trial, petitioner's counsel did not object to the admission of the retrieved evidence and on one occasion, cross-examined Detective Beraud about the money found on petitioner. Tr. 96, 99.
Because petitioner had a full and fair opportunity to litigate this claim, petitioner's Fourth Amendment claim is barred byStone v. Powell and should be denied.
G. Impermissible Testimony
Petitioner claims that Mr. Shevchenko "gave false testimony at trial" which the prosecution then "exploited" during the course of the trial. Pet. ¶ 13. Specifically, petitioner alleges that in a UF-61 Police Complaint Report, Shevchenko stated that he was shopping prior to returning home on the day of the burglary, while on direct examination he testified that he had gone to work before coming home to find the burglars. Mem. at 31. Petitioner alleges that the trial court erred in not ruling Shevchenko's testimony impermissible, thereby resulting in his wrongful conviction. Id. The Appellate Division did not address this claim directly, and this Court may address the claim on its merits. See discussion infra Section II.D.
Challenges to state evidentiary rulings do not ordinarily provide the basis for habeas corpus relief because it is not the province of a federal habeas court to re-examine state court determinations on state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Only where evidence "is so extremely unfair that its admission violates fundamental conceptions of justice" will a trial court's evidentiary ruling be reviewed by a habeas courtDowliniz v. United States, 493 U.S. 342, 352 (1990); Roldan v. Artuz, 78 F. Supp. 2d 260, 276 (S.D.N.Y. 2000) ("Issues regarding the admissibility of evidence in state court . . . are not subject to federal review unless the alleged errors are so prejudicial as to constitute fundamental unfairness.") (quotation marks and citation omitted). Evidence will reach this threshold of unfairness only in the rare circumstances where it is "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Johnson v. Ross, 955 F. 2d 178, 181 (2d Cir. 1992)). The petitioner bears the "heavy burden" of establishing fundamental unfairness. Roldan, 78 F. Supp. 2d at 276.
Petitioner has not shown that the admission of this evidence was erroneous, let alone fundamentally unfair, First, the Court notes that the prosecutor turned over the complaint report in question to petitioner's counsel prior to trial. W-H. 3. Despite being presented with this report, defense counsel did not question Shevchenko about the discrepancy during cross-examination. Even assuming, however, that the testimony of Shevehenko was improperly admitted under New York law, in light of the evidence against petitioner presented at trial, admission of this testimony did not "remove a reasonable doubt that would have existed on the record without it." Dunnigan, 137 F.3d at 125.
Accordingly, petitioner's claim regarding the erroneous admission of testimony is not a basis for habeas corpus relief and should be denied.
CONCLUSION
Accordingly, it is recommended that the instant petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 should be denied. Because petitioner has not made a substantial showing of the denial of any constitutional right, it is recommended that no certificate of appealability should be issued. 28 U.S.C. § 2253;see Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997), abrogated on other grounds, United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112-13 (2d Cir. 2000), cert. denied, 531 U.S. 873 (2000). It is also recommended that the Court certify pursuant to 28 U.S.C. § 1915(a) that any appeal from a judgment denying this petition would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72. Any request for an extension of time to file objections must be made within the ten day period. Failure to file a timely objection to this Report generally waives any further judicial review. DeLeon v. Strack, 234 F.3d 83, 86 (2d Cir. 2000); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000); see Thomas v. Arn, 474 U.S. 140 (1985).SO ORDERED.