Pro se petitioner Geoffrey Rodriguez seeks a writ of habeas corpus from his September 9, 1998 conviction in Supreme Court, New York County, of two counts of second degree murder, first degree conspiracy, and first and third degree criminal possession of a controlled substance, and his total sentence of one-hundred years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) Rodriguez's habeas corpus petition alleges that: (1) the trial court erred in denying the defense motion under Batson v.Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), and in granting the prosecution's Batson motion (Pet. ¶ 13, Attachment, Point I); (2) the multiple conspiracy jury charge was erroneous and prejudicial (Pet. ¶ 13, Att., Point II); (3) Rodriguez's murder and conspiracy convictions were contrary to the weight and sufficiency of the evidence (Pet. ¶ 13, Att., Point III); (4) Rodriguez's sentence is unconstitutional because it exceeds what is necessary to protect society (Pet. ¶ 13, Att., Point IV); and (5) Rodriguez was denied the effective assistance of trial counsel (Dkt. No 1: Pet., Att.: Rodriguez § 440 Br.; see also Dkt. No. 18: Rodriguez 12/22/03 Letter to Court).

For the reasons set forth below, Rodriguez's habeas petition should be denied.

FACTS

Voir Dire

On June 2, 1998, jury selection began before Justice Leslie Crocker Snyder, for the trial of petitioner Geoffrey Rodriguez and his co-defendants David Rodriguez, Charles Chu and Manuel Guzman Hernandez. (Voir Dire Tr. 1.) On June 3, 1998, Rodriguez's counsel made an application to allow Rodriguez to have sixty peremptory challenges on the basis that Rodriguez was charged under three separate indictments. (Voir Dire Tr. 37-38.) Justice Snyder denied the request as "ludicrous" and having "no basis in law," but because there were four defendants, Justice Snyder gave the defense two extra challenges which were not given to the prosecution. (Voir Dire Tr. 39.)

On June 9, 1998, attorneys for the defense and the prosecution began making their challenges. (Voir Dire Tr. 376-77.) The prosecution used peremptory challenges against three of the first twelve venirepersons, and the defense jointly used five peremptory challenges. (Voir Dire Tr. 377.) That produced four jurors. (Id.) As to the next eight venirepersons, the prosecution used two peremptory challenges. (Voir Dire Tr. 377-78.) The defense made an application that the prosecution struck the only three Latinos that were in the pool, which the defense asserted established a prima facie case for a Batson challenge. (Voir Dire Tr. 378.) The prosecutor responded by explaining her reasons for striking those jurors:

With regard to Ms. Mendez. Aside from the fact that I am not particularly enamored with a juror who does social work. More importantly she does social work with substance abusers. I don't think in this case she would be an appropriate juror for the People.

Mr. Sirano discussed with us at some length that he has a conflict with the law, either himself or a relative. . . . In fact, he tells us the first day that he smokes pot on a regular basis, almost every weekend.

And with regard to Mr. C[r]oss. To be honest, I did not realize that he was from the Dominican Republic. I did not feel when I was questioning him that I was getting any real response from him to my questions. He sort of sat there and when I zoomed in on him he would nod. I don't think he was paying particular attention to the principles that I was discussing and so for that reason I chose to exercise a peremptory challenge.

Ms. Mendez described her work as follows: "Social worker for [a] living. I work for SRO. I have been working for the homeless people." (Voir Dire Tr. 268-69.)

(Voir Dire Tr. 378-80.) Justice Snyder found that none of the reasons that the prosecution gave were pretextual and denied theBatson motion. (Voir Dire Tr. 380.) She added "However, I take the Batson issue most seriously. I would suggest that the prosecution do as well." (Id.)

Justice Snyder ruled:

I will find that pursuant to the Batson steps and prodigy the defendants did probably raise sufficient facts where there is an inference that you used your p[er]emptories for discriminating purposes. I don't think that is entirely clear. Even if the burden shifts to you at stage two, I could state that you have given two other legitimate reasons for striking the first two of the three jurors. I do not find any of the reasons are [pretextual]. Your motion is denied, Mr. Hines [counsel for one of Rodriguez's co-defendants].

However, I take the Batson issue most seriously. I would suggest that the prosecution do as well.

(Voir Dire Tr. 380.)

The defense next jointly challenged five more venirepersons, resulting in the selection of a fifth juror. (Voir Dire Tr. 380.) The prosecution raised a Batson challenge, stating: "Batson protects jurors' rights to serve. I would like to extend to white males, five out of the seven challenges by the defense have been to knock off a white male on this panel." (Voir Dire Tr. 381.) Justice Snyder stated, tentatively, that the burden shifted to the defense. (Voir Dire Tr. 381-82.) The defense went though each venireperson that they struck in that panel:

Juror number one said in a question that I asked him in response . . . that he would have to give the police officers the benefit of the doubt even if he had made mistakes in all his paperwork. . . .

Mr. O'Neil is a union representative who said that he had two New York City Police Officers who are friends who are retired detectives. He has four attorneys in his family. . . .

Mr. Mulligan . . . lived in the East Village, which is a dangerously close area in which some of the crimes are allegedly or have allegedly taken place.

Mr. Faulkner did not, at least in response to some of my questions, did not seem forthright in my opinion . . . I did not like his answers to my questions. . . . Mr. Faulkner also [sat] on a racketeering case in the past. . . . Conspiracy and racketeering are very similar, as your Honor will notice.

See Voir Dire Tr. 270-71.

See Voir Dire Tr. 272.

(Voir Dire Tr. 382-83.) The defense added that the fifth challenged venireperson, Mr. Hubbard, has friends who are police officers, and since a lot of the prosecution's witnesses were police officers, the defense did not want "people who are friendly with police officers" as jurors. (Voir Dire Tr. 384.) Justice Snyder found the defense's reasons weak but reserved ruling, and kept all of the challenged venirepersons in reserve to return the next day. (Voir Dire Tr. 384-85.)

From the next seven prospective jurors, the prosecution exercised three peremptory challenges, and the defense two. (Voir Dire Tr. 385.) That resulted in a total of seven selected jurors. (Id.) From the next five venirepersons, the prosecution used two peremptory challenges, and the defense exercised three. (Voir Dire Tr. 388.) The prosecution pointed out that in that group "Mr. Donnelly is a white male." (Voir Dire Tr. 388.) Justice Snyder stated that the defense "appear[ed] to be engaging in" a pattern of "discriminatory strikes," with no white males allowed on the jury, and that she was keeping all the jurors for further argument on the Batson issue the next day. (Voir Dire Tr. 388.)

From the next five venirepersons, the prosecution exercised two peremptory challenges, including a Ms. Soto. (Voir Dire Tr. 389.) Justice Snyder immediately noted that she would "considerBatson against each side tomorrow after [she] hear[s] further allegations by both sides," and that she was "also observing any patterns." (Voir Dire Tr. 389.) The prosecution supported its peremptory challenge of Ms. Soto by stating that she "is the woman who told us when she was first questioned by [Justice Snyder] that her husband was convicted in a drug conspiracy case." (Voir Dire Tr. 390.) Justice Snyder stated that that "seems like a pretty good reason to me. . . . I normally would have struck her myself at that point. I am surprised I didn't." (Voir Dire Tr. 390.) The defense did not exercise any peremptories, resulting in ten chosen jurors. (Voir Dire Tr. 389-90.)

From the next two venirepersons, the prosecution struck both (Voir Dire Tr. 390-91), and in the two after that, the defense made one peremptory challenge to a white male, a Mr. Cruz, who the prosecution noted was "going into the pool," i.e., the venirepersons for possible recall the next day. (Voir Dire Tr. 391.) The prosecution challenged the next venireperson, the defense the next after that; selection concluded for the day with eleven selected jurors. (Voir Dire Tr. 391-92.) Justice Snyder stated: "[W]e have 11 jurors. In view of the Batson motion pending before me, I will have everybody come back including those who have apparently been challenged thus far, since I don't yet know what my ruling is going to be. . . . I'm not going to swear in anyone tonight. We will have everybody come back." (Voir Dire Tr. 392.)

The next day, June 10, 1998, Justice Snyder heard argument on both Batson applications. Justice Snyder found that the defense had made a prima facie Batson case and directed the prosecutor to set forth her reasons for the challenges. Justice Snyder found the reasons given by the prosecutor for striking each of the Hispanic prospective jurors were "legitimate and race neutral." The ultimate burden of persuasion thus shifted back to the defense, which Justice Snyder found had failed to meet the burden since the prosecutor's reasons were "legitimate," "non-pretextual" and race neutral. Justice Snyder therefore refused to reseat any of the Hispanic venirepersons who were stricken by the prosecution.

The June 10, 1998 morning transcript that contained theBatson applications and rulings was lost, and despite the efforts of the District Attorney's office cannot be located. The Court therefore uses the factual description from the briefs submitted on appeal to the First Department by Rodriguez's counsel, one of the co-defendants, and the prosecution. (See Dkt. No. 15: State Appendix Ex. A: Rodriguez 1st Dep't Br. at 18-23; Dkt. No. 19: A.D.A. Dwyer 2/4/04 Letter Att.: David Rodriguez 1st Dep't Br. at 5-11; Dkt. No. 15: State App. Ex. B: State 1st Dep't Br. at 100-24.) All of the descriptions of the June 10, 1998 hearing and rulings in this and the next two pages of this Report and Recommendation come from the descriptions in those briefs.

Defense counsel then expanded its Batson argument to assert that the prosecution struck eleven of thirteen "minority" venire members, which the defense defined as Hispanics and African-Americans. Justice Snyder refused to reconsider her ruling as to the Hispanics, stating she was overwhelmingly satisfied as to the non-pretextual nature of those challenges, but asked the prosecutor to explain her challenges to the African-American venire members.

The prosecutor explained that Katharine Herring was an older woman who had recently taken a job with the Partnership for the Homeless, and in the prosecutor's experience, such people were more supportive to the defense. Justice Snyder found this to be a race-neutral and non-pretextual reason for the strike.

See Voir Dire Tr. 303.

The prosecutor felt that Maquis Doheney was not of sufficient intelligence to handle the case, based on his answers to questions and lack of concentration. The prosecution did not understand James Virgene's answers, and in addition, Virgene was married to a social worker who did drug counseling at Rikers Island Finally, the prosecutor said that Lisa Johnson was uncomfortable answering the prosecutor's questions and reluctant to provide personal information.

See Voir Dire Tr. 292-93 ("My wife is a social worker. She is working in a drug treatment inmate program in Riker's.").

Defense counsel did not respond to the prosecutor's explanations as to each individual venireperson; rather, the defense relied solely on the claim that of the thirteen minorities on the panel of 44, ten were struck by the prosecution. Justice Snyder found that although some of the prosecutor's reasons were stronger than others, they were "substantive in nature," and she held that the defense had not met its ultimate burden of showing that the prosecutor's strikes were race-related.

Justice Snyder next turned to the prosecution's Batson challenge to the defense's striking of white male jurors. Justice Snyder found that the numbers made out a prima facie case and directed the defense to explain the basis for its peremptory challenges.

The defense explained that James Mulligan was struck because he lived too close to the crime scene. The prosecutor responded that the defense had not struck three other jurors who lived in or near the Lower East Side. The defense struck David Faulkner because he was shaking his head when defense counsel said certain things to other jurors. Finally the defense explained that they had stricken Jeffrey Donnelly because he previously had been a juror in two criminal cases, but the prosecutor noted (and the defense admitted) that the defense had not struck other venirepersons who had prior criminal jury service.

For example, venireperson Ms. Bestworth said she lives on the Lower East Side (Voir Dire Tr. 277), as did venireperson Ms. Price (Voir Dire Tr. 288, Tr. 2-3).

For example, Ms. Mendez had served as a juror in a criminal drug case two years previously (Voir Dire Tr. 268-69), Ms. White served as a juror in a criminal drug case (Voir Dire Tr. 269-70, Tr. 2-3), as did venireperson Ms. Harris (id. at 272-73), Ms. May (id. at 276), Mr. Brockman (id. at 277), Mr. Heally (id. at 280), Mr. Donald (id. at 287), Ms. Schumacher (id. at 289, Tr. 3), Mr. Jordan (Voir Dire Tr. 291).

Justice Snyder found that the defense was engaging in a pattern of pretextual challenges to remove white males from the jury, and in particular, that its reasons as to Mulligan, Faulkner and Donnelly were pretextual and discriminatory. After further argument, Justice Snyder, to be fair to the defense, said only two of those three needed to be seated, and gave the defense the choice. Defendants declined to make that choice, and Justice Snyder seated Mulligan and Faulkner, but not Donnelly. That completed the main jury selection; the alternate jurors were selected without any Batson issues.

The Prosecution Case at Trial

The trial took over six weeks and comprises over four thousand pages of transcript. (See generally Trial Transcript.) The Court here summarizes only some of the evidence relevant to the issues in this habeas petition.

The Court will summarize the prosecution's opening statement to put the case in context. (People Opening: Tr. 4-22.) The prosecutor described petitioner Geoffrey Rodriguez as "the owner, founder and boss of the drug organization known as the Champion Crew," who "peddled heroin on the Lower Eastside from about 1989 until the day of his arrest which was June of 1997." (Tr. 4.) Co-defendant Charles Chu was Rodriguez's "protege" who quickly moved up in the organization to become an "inside manager" and who also helped Rodriguez murder one of their workers, Will Rodriguez. (Tr. 4-5.) Co-defendant Manuel Guzman Hernandez prepared, packaged and delivered drugs for the Crew. (Tr. 5.) Co-defendant David Rodriguez owned a car repair business in the Bronx but allowed the Crew to meet at his place and also installed "traps" in their cars to hide drugs. (Tr. 5-6.)

The prosecutor stated that Rodriguez opened the Champion Pool Hall on Avenue C and Eighth Street, and used it at first to sell cocaine. (Tr. 9.) They made so much money from that drug operation that they opened another drug spot on Eighth Street that made him more money, and had customers lined up down the street. (Tr. 10.) They expanded again "like some sort of underworld WalMart operation" to Fourth Street and Avenue B, to Fourth and D, to Seventh and D, to Brooklyn and the Bronx. (Tr. 10.) They had stash houses in the Bronx, Brooklyn, Queens and Manhattan. (Tr. 10.) By the time they were arrested in 1997, "they had moved as far south as Virginia." (Tr. 11.)

The prosecutor informed the jurors that they were "going to hear this account from members of the gang itself . . ., from many more than one member in this case." (Tr. 11.) Then as "gravy," there also would be testimony from police investigators and detectives including undercover officers who infiltrated the Crew. (Tr. 11-12.)

"Ramel Cruz, Julian Alicea, Anthony Arenas, Anibal Rosa, Charles Davis, Jehu Morales, Tony Chin, Dubel Rodriguez and Tony Chin's brother Peter Chin all testified for the prosecution under cooperation agreements which granted them greatly reduced convictions and/or sentences in exchange for their testimony." (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 11.)

The "success" of the Crew's business led to fights and the murders of Jesse Vega and Will Rodriguez. (Tr. 14.) Vega had slashed Geoffrey Rodriguez's face in a fight, and Rodriguez vowed to "blow [Vega] away," which he did in a barbershop in October 1995. (Tr. 16-18.) Will Rodriguez was one of their workers, but he started selling his own drugs and stole money from one of the Crew's stash houses. (Tr. 18-19.) As a result, Peter Chin shot and killed Will, with Geoffrey Rodriguez accompanying Chin. (Tr. 19-20.)

Rodriguez's defense counsel did not make an opening statement after the prosecutor's opening, but counsel for two of his co-defendants did. (See Tr. 23, 26.)

As to the conspiracy charge: "It was the prosecution's theory that [Rodriguez] was a leader of a single overarching drug selling conspiracy which involved multiple people at multiple locations selling multiple brands or 'stamps' of heroin and employing different people at different times at the various locations." (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 10.) In contrast, "[i]n summation, defense counsel conceded that [Rodriguez] had been involved in various agreements to sell drugs, but argued that these were discrete multiple conspiracies rather than one overarching conspiracy as alleged in the Indictment." (Id. at 11, record citations omitted.)

The Champion Pool Hall Gang: Beginnings on the Lower East Side

Between 1987 and 1997, the New York City Police Department investigated narcotics sales conducted by the "Champion Crew" (the "Crew"). The Crew was led by two men, petitioner Geoffrey Rodriguez and his partner, Peter Chin, who testified against Rodriguez at trial. (See generally pages 11-34 below.) In 1988 or 1989, police observed many sales of crack cocaine and heroine being made in or around a bodega on Avenue C between 8th and 9th Streets and the Champion Pool Hall (the "Champion" or the "Pool Hall"). (Prendergast: Tr. 521-22.) Officer Prendergast, the officer eventually assigned to investigate drugs at Champion Pool Hall, observed Rodriguez and Chin at the Pool Hall. (Prendergast: Tr. 522-26.) They appeared to him to be managers or owners of the Pool Hall because they were frequently there and used their own keys to open and close its doors. (Prendergast: Tr. 526, 537.) The Pool Hall was officially owned by Tracey Chin, Chin's sister and Rodriguez's girlfriend, and she took out a loan to procure the business. (Cruz: Tr. 53; P. Chin: Tr. 2946-47.) Rodriguez and his business associates stored cars at a parking lot on 8th Street between Avenues B and C, which they all used interchangeably and which were registered to various Crew members or their girl friends. (Prendergast: Tr. 527-29.) In 1996, police created a task force for a narcotics investigation of the Crew specifically. (Prendergast: Tr. 830-35; Soriano: Tr. 3633-34; Connelly: Tr. 3742-47.) As part of this investigation, officers conducted surveillance, photographed and filmed Crew members, purchased drugs from Crew members, and interviewed people arrested in connection with the Crew's drug-related activities. (E.g., Caprariello: Tr. 3680-82; Connelly: Tr. 3743-44.) Specifically, drug surveillance was carried out at several spots in "Alphabet City" and in two locations in the Bronx. (E.g., Caprariello: Tr. 3682.) Officer Prendergast determined that in 1996, Rodriguez lived with his girlfriend Yvette Torres in Queens, and at that time drove a white Lexus 300GS. (Prendergast: Tr. 603-06, 614.) During the month of May 1997, a time-lapse surveillance camera was set up opposite Rodriguez's apartment building door. (Caprariello: Tr. 3697-709, 3717.) The tapes, which were played for the jury, revealed Crew members entering and leaving the building each day including Rodriguez and Chin. (Id.)

Rodriguez and Peter Chin met in high school and became close when Rodriguez began dating Chin's sister Tracey. (Cruz: Tr. 46, 53, 251.) In 1988, Tracey obtained a loan and rented a storefront on Avenue C between 8th and 9th Streets, where she, Chin, and Rodriguez opened the Champion Pool Hall. (T. Chin: Tr. 2399; P. Chin: Tr. 3125-28, 3377-79.) The area was already a drug dealing point, as crack and cocaine were being sold from two stores on the block, a grocery store and a shop that fixed flat tires which was run by another co-defendant. (E.g., P. Chin: Tr. 3130.) In 1988 or 1989, Rodriguez and Chin began selling cocaine out of the Champion Pool Hall and they supervised all drug sales. (Cruz: Tr. 43, 50-52; T. Chin: 2394; P. Chin: 3130-31, 3137.) During this early period, Rodriguez and Chin had eight or nine employees and obtained cocaine in large quantities from several suppliers, including a neighborhood dealer named "Mike." (Cruz: Tr. 132-33; P. Chin: Tr. 2955, 3130.) Rodriguez and Chin kept the cocaine in Rodriguez's apartment on Houston Street, then in Chin's mother's apartment on 10th Street, and then in an 11th floor apartment on 14th Street where Rodriguez eventually moved. (Cruz: Tr. 52, 54, 60-61.) They also stored drugs in cars kept in a parking lot on 8th Street that was guarded by attack dogs. At first, Rodriguez and Chin bagged the drugs in Rodriguez's apartment. (Cruz: Tr. 52, 65.) The cocaine was brought to the Champion where it was sold by one of several members of the Crew, including a minor. (Cruz: Tr. 52, 68-69.) The Crew members selling the drugs out of the Pool Hall held onto about five vials of cocaine and ten bags of marijuana, with the rest of the day's drugs hidden in the back yard of the Champion, in Hernandez's closed shop, or in the lot on 8th Street. (Cruz: Tr. 51-53, 58-59.) When more was needed, Rodriguez gave Cruz (who began as a drug runner) the signal to "re-up." (Cruz: Tr. 55.) Cruz biked over to Rodriguez's apartment and waited downstairs for Rodriguez to bring down more drugs, usually twenty to forty vials of cocaine and up to one hundred pounds of marijuana at a time, which Cruz brought back to the Pool Hall. (Cruz: Tr. 52-58.)

In 1988 or 1989, when William (Will) Rodriguez and Rosa were about 14 years old, William brought Rosa to the Champion Pool Hall and introduced him to Rodriguez and Chin. (Rosa: Tr. 1364-66; P. Chin: Tr. 2961.) They began to sell guns and ammunition out of the Pool Hall, which they obtained from a friend of William's in Brooklyn. (Cruz: Tr. 87-88.) About twice a week, Rosa and William picked up guns using Chin's pickup truck and brought them back to the Champion for inspection by Rodriguez and Chin. (Cruz: Tr. 89, 121; Rosa: Tr. 1370-72; P. Chin: Tr. 2961.) Crew members obtained one of these guns. (Cruz: Tr. 87-88.) Rodriguez, as part owner of the Champion, took a cut of the profits whenever William sold a gun. (Rosa: Tr. 1372-74.) After about six months, William was arrested while carrying guns and terminated his gun business. (Rosa: Tr. 1374.)

On April 21 to April 22, 1990, Rodriguez and Chin gave Hernandez some large vials of cocaine to sell in the Champion. (P. Chin: Tr. 2965-66, 3406.) At about 2:15 a.m., Lieutenant (then Sergeant) Albert Pignataro went to the Champion to check the exits and the sprinkler system because he was assigned to investigating club fire systems. (Pignataro: Tr. 2034-37.) An Asian man told him that he was in charge. (Pignataro: Tr. 2040-41.) Hernandez, who was standing behind the bar, reached towards his waist with his cupped right hand (Pignataro: Tr. 2038.) Sgt. Pignataro grabbed and opened Hernandez's hand, which held twenty jumbo vials of cocaine. (Pignataro: Tr. 2038-39.) Hernandez claimed them, plead guilty to possession, violated his parole, and was returned to federal prison. (Pignataro: Tr. 2040; Stip.: Tr. 3774.)

In 1990 or 1991 the Crew went "to war" with the Dominicans from the bodega next door over drug customers. (Cruz: Tr. 90.) During a two week period in 1990 or 1991, Officer Prendergast arrested several Dominican drug dealers who worked out of the bodega. (Prendergast: Tr. 532-33.) One of them said to him "Why are you always messing with my people? Why don't you arrest those Puerto Ricans in the pool hall? They are selling drugs out of there." (Prendergast: Tr. 533-35.) Because of this statement, Officer Prendergast approached Rodriguez in front of the Champion and told him what the man had said; Rodriguez angrily denied any drug sales, saying he did not know what he was talking about. (Prendergast: Tr. 535-36.)

This statement was allowed into evidence in order to lay the foundation for Prendergest's conversation with Rodriguez, and not for its truth. (Tr. 534-35.)

On July 23, 1991, Chin was arrested near the Pool Hall for gun possession. (P. Chin: Tr. 2966-67.) He plead guilty and was sentenced to five years probation, and returned to his drug business. (P. Chin: Tr. 3415, 3456-57.) Sometime in 1991 or early 1992, the Crew, while continuing marijuana sales, stopped selling cocaine because of continued police interest in the Champion. (Cruz: Tr. 309-11.) Rodriguez and Chin closed the Pool Hall at the end of 1992 because of constant police presence. (Prendergast: Tr. 785-87; P. Chin: Tr. 3138-39, 3200-01.)

Rodriguez and Chin remained partners and turned to the sale of heroin, operating "all over" the Lower East Side of Manhattan. (P. Chin: Tr. 2971.) According to Chin's trial testimony, "[w]herever there was money to be made, we were there." (Id.) Rodriguez and Chin were the drug bosses for all of the selling spots. They generally bagged the heroin themselves with the aid of various accomplices under several different logos which changed over time and in a variety of apartments which also changed over time. (T. Chin: Tr. 2403-04, 2447; P. Chin: 2956-57, 2971-72, 2998-99.) The various spots each had a manager (or shift managers for the busier spots). (Cruz: Tr. 107-08; P. Chin: Tr. 3508-09.) The workers under the managers included lookouts, pitchers (who exchanged drugs for money) and enforcers. (Cruz: Tr. 108, 117-19; Rosa: Tr. 1719.) When Rodriguez or Chin received a report of a problem at a spot, they sent an enforcer to beat up anyone selling drugs in the Crew's territory or selling "beat" drugs under a Crew logo. (Cruz: Tr. 69-73.) Rodriguez physically attacked people if their misconduct was severe, such as one time he described to Cruz where Rodriguez shot a man in the leg who had been selling Crew drugs stolen from the Crew's stash. (Cruz: Tr. 74, 76-77.) Cruz also described a situation where Rodriguez had shot a Crew employee several times for either stealing or improperly disposing of Crew drugs; Rodriguez later told Cruz that he offered the man he shot $1,000 not to testify, which he accepted. (Cruz: Tr. 77-78, 86-87, 483.) The Crew's "Drug Spots"

The first heroin-selling spot that Rodriguez and Chin set up was inside an abandoned building at 4th Street and Avenue B. (P. Chin: Tr. 2954-55, 3149, 3153.) Rodriguez and Chin provided heroin under the logo "Satisfaction" to their managers, who distributed it to street workers. (P. Chin: Tr. 2955-56.) Everyone who had been involved in selling cocaine at the Champion except for Hernandez was involved with this spot. (P. Chin: Tr. 3154, 3161-62.)

After several months, Rodriguez and Chin closed the spot on 4th Street and opened another in an abandoned building at 8th Street and Avenue C. (Cruz: Tr. 101-02, 309-310; T. Chin: Tr. 2398, 2955-56, 2963.) This spot was staffed by "basically the same people" as the 4th Street spot. (P. Chin: Tr. 2957.) While this spot was in operation, Rodriguez and Chin kept the stash of drugs at Chin's apartment on 14th Street. (Cruz: Tr. 105.) They bagged the heroin either at that location or at Rodriguez's apartment on Houston Street. (P. Chin: Tr. 2957-58.) Several Crew members assisted in this task. (P. Chin: Tr. 2958.) After "Satisfaction," other logos used included "In Too Deep," "Double Dragon," "Manhattan Special," and "Original." (Cruz: Tr. 104; Prendergast: Tr. 735-37; Rosa: Tr. 1719; P. Chin: 2958, 3263.) The heroin supplies were brought to the spot by Crew members; money from the sales was picked up and brought to either Rodriguez, Chin, or sometimes Cruz. (Cruz: Tr. 121; Prendergast: Tr. 539-41; P. Chin: Tr. 2964.) The spot "opened" at five or six p.m. and closed at one or two a.m. (Cruz: Tr. 107-08, 114-15; Rosa: Tr. 1383.) Shifts were manned by six or seven managers and workers. Among the pitchers was "Little Ed" Alberto Rivera, who was thirteen or fourteen years old. (Cruz: Tr. 105-06, 117; Prendergast: Tr. 539, 566-67.) Sales were made through a hole in the wall by Crew members hiding in the abandoned building to customers lined up against the outside wall of the building. (Cruz: Tr. 102-04, 115; P. Chin: Tr. 2963.) Chin estimated that the 8th Street spot stayed in operation for about a year and took in forty to fifty thousand dollars in a good week and ten to twenty thousand dollars in a bad week. (P. Chin: Tr. 3169; see also Cruz: Tr. 116; Rosa: Tr. 1383.) Rodriguez and Chin shut down the spot once it attracted too much police attention. (Cruz: Tr. 125-26.)

Before the 8th Street spot closed, Rodriguez and Chin set up a heroin spot on 140th Street and Brook Avenue in the Bronx. (Cruz: Tr. 134-35; P. Chin: Tr. 3191-95.) Rodriguez and Chin bagged the heroin with the help of Crew members, and the glassines were stamped with "Kenny's" (the spot manager) logo, "Power and Glory" or "Holler and Glory." (P. Chin: Tr. 2969-70, 3193-94.) Rodriguez and Chin made about twenty-five to thirty-five thousand dollars a week at the Bronx spot, and paid Kenny thirty to forty percent of the proceeds. (P. Chin: Tr. 3198, 3422-23.) This spot closed after about six months. (P. Chin: Tr. 3192.)

In late 1992 or early 1993, Rodriguez and Chin reopened their previous drug spot on 4th Street and Avenue B and took an active part in its management. (Cruz: Tr. 124-26, 129, 310; P. Chin: 2971, 2974.) Rodriguez, Chin, and other Crew members bagged the heroin for the spot at their respective homes and other locations. (Cruz: Tr. 198-200, 227; T. Chin: Tr. 2411, 2414, 2539-40, 2666; P. Chin: 2972, 3003, 3206-09, 3225.) Various logos were used and drugs generally were delivered to the spot by Rodriguez, Chin, or other Crew members. (Cruz: Tr. 127-28; P. Chin: Tr. 2972, 2974, 2976, 3001, 3168, 3209, 3230, 3263, 3270-71.) At the close of business, a manager collected the day's proceeds and gave them to William, who gave the money to Rodriguez or Chin. (Rosa: Tr. 1386-88; Davis: Tr. 1897-98, 1903-04; T. Chin: Tr. 2448.) Sales from this spot averaged anywhere from five thousand to forty thousand dollars a week. (P. Chin: Tr. 3222.) Sales generally were made from the hallway of 231 East 4th Street, where police found hypodermic needles and empty glassines. (Prendergast: Tr. 541-52, 548, 551-52.) The spot operated from around five p.m. to three to six a.m., and buyers often spilled out onto the street. (Prendergast: Tr. 557.) Lookouts guarded the spot and called out code words when cars drove by. (Cruz: Tr. 108-09, 128-29; Prendergast: Tr. 557.) Workers at this spot included children as young as thirteen years old. (Cruz: Tr. 258-59.) The ground floor hallway of the building led into a backyard, where sellers could jump over the fence, go through the home next door and emerge onto 5th Street to avoid police. (Prendergast: Tr. 552-55; Rosa: Tr. 1418-19.) In 1993 or 1994, Officer Prendergast was walking on 4th Street when Chin and two other men approached from the west. Seeing Officer Prendergast, they ran towards the spot's open doorway. Officer Prendergast attempted to follow but a worker held the door closed, but opened it after the officer pushed for a while. (Prendergast: Tr. 555.) A male between 16 and 18 years old was in the hallway, and told Officer Prendergast that Chin had gone out the back door and had jumped the fence. (Prendergast: Tr. 554-56; P. Chin: 3523-26.)

The Ninth Precinct and the District Attorney's Office secured a trespass affidavit from the landlord of 231 West 4th Street. They arrested many people in or near the building carrying drugs. (Prendergast: Tr. 542-43, 552-53.)

At about five p.m. on August 25, 1995, Officer Curran was walking through 231 West 4th Street, checking for loiterers, and he discovered fifty glassine envelopes stamped "Original" towards the rear of the lobby behind the stairwell. (Curran: Tr. 1868-70.) At 7:42 p.m., when Officers Curran and O'Connor again entered the building to search for trespassers, they saw four people in the lobby, and Officer Curran told everyone to get on the floor. (Curran: Tr. 1872.) Sorangel Ramos instead began to walk back towards the rear door and tossed 39 glassines of heroin stamped "Original" to the floor, where Officer Curran had found the 50 glassines earlier that night. Ramos was arrested. (Curran: Tr. 1871-73.)

In late 1996 through 1997, undercover officers including Detective Alex Rodriguez purchased drugs at the 4th Street spot. (A. Rodriguez: Tr. 2790-93.) At first, the officers ordered the drugs from Jose Baez or his girlfriend Ruby Colon; later, they placed their orders with Hector Baez. (Prendergast: Tr. 619.) Sometimes, after an order was placed, Geoffrey Rodriguez would meet Jose Baez inside a courtyard, and Jose Baez would immediately deliver drugs to the undercover officer. (Prendergast: Tr. 619-21.) At other times, Hector Baez accompanied Rodriguez to the Bronx and the Lower East Side, and Hector Baez would sell the drugs to the undercover officer. (Prendergast: Tr. 621.) On February 25, 1997, Detective Rodriguez, acting undercover, was brought to 4th Street and Avenue B by a confidential informant, and negotiated with Hector Baez for the purchase of two bundles of heroin for approximately $100. (A. Rodriguez: Tr. 2792-93.) After the exchange, Baez walked over to Chu and handed him something. (A. Rodriguez: Tr. 2794.) Chu walked over to a white Lexus parked on 4th Street in which Geoffrey Rodriguez was sitting. (A. Rodriguez: Tr. 2794-95.) Detective Rodriguez purchased heroin from Baez six more times in the spring of 1997; some of these transactions were videotaped. (A. Rodriguez: Tr. 2807-09.) Each time, Baez arrived in a Ford Taurus SHO registered to Chu. (Caprariello: Tr. 3688-89.)

After Rodriguez and Chin closed the 8th Street spot in what Cruz estimated to be late 1992, they opened another heroin spot on 4th Street and Avenue D. (P. Chin: Tr. 2970.) Rodriguez hired Cruz and Hernandez to manage the spot; Cruz's girlfriend Iris Monsegur also assisted in its management. (Cruz: Tr. 129-31, 137-38; P. Chin: Tr. 2973.) Rodriguez and Chin supplied the heroin to the spot and initially delivered the heroin, and a neighborhood "kid" sold the drugs on the street. (P. Chin: Tr. 2970-71; Cruz: Tr. 131-33.) Eventually, Cruz and Hernandez purchased uncut drugs from Rodriguez and took over packaging the drugs and delivery to the spot. (Cruz: Tr. 132-33.) The spot was open for business from about six p.m. to midnight, whereupon Cruz or Hernandez picked up the proceeds, generally between seven thousand to ten thousand dollars a week. (Cruz: Tr. 134-34, 136.) During this time, Cruz also delivered Rodriguez's and Chin's heroin to their other spots. (Cruz: Tr. 137.)

In 1993 or 1994, Rodriguez and Chin began to supply heroin to a spot on Scholes Street in Brooklyn. (T. Chin: Tr. 2450; P. Chin: Tr. 2976-77.) The heroin for this spot was stamped "Life" and stored in Hernandez's apartment on Humboldt Street. (P. Chin: Tr. 3427.) Hernandez eventually was arrested with some of the heroin, his federal parole was once again violated, and he returned to federal prison between April 18, 1994 and September 22, 1996. (P. Chin: Tr. 2978, 3431-32; Stip.: Tr. 3774.)

When Tony C. (Chin's younger brother) and Nelson Trujillo were sixteen or seventeen years old, they learned to bag heroin by working with Rodriguez and other Crew members, and sold heroin at a spot on 11th Street near Avenue A. (T. Chin: Tr. 2395-96, 2400, 2511, 2517-20.) After two or three months at the spot, Tony C. and Trujillo decided to go into business on their own, and in 1993 they opened a heroin spot on 11th Street and Avenue B, which they ran on and off until 1996. (T. Chin: Tr. 2394-95, 2400-01.) Chin gave them drugs on credit and Tony C. and Trujillo bagged the drugs. (T. Chin: Tr. 2401-02, 2520-23; P. Chin: Tr. 3231-34.) Thereafter, they would get drugs from Chin or Rodriguez. (T. Chin: Tr. 2514-15.) Through 1994, Tony C. and Trujillo stamped their glassines with stamps used by Rodriguez and Chin on 8th Street, especially "Double Dragon." (T. Chin: Tr. 2729, 2732; P. Chin: Tr. 2999, 3237.) Sometimes, when the 8th Street spot ran out of drugs, Rodriguez or Chin beeped Tony C. and asked him to bring over any heroin he had left. Rodriguez and Chin also gave the two other work to do. (T. Chin: Tr. 2729; P. Chin: Tr. 2999-3000.) In late 1994, Tony C. and Trujillo began to sell heroin at the 11th Street spot in larger quantities, hired workers, and managed the spot. (Prendergast: Tr. 586-87, 594-95, 895, 901; Arenas: Tr. 1110-15; T. Chin: Tr. 2405, 2582-83.) Several times, Officer Prendergest saw Trujillo conversing with people and pointing at people on different corners, after which his cohorts would go to those specified corners. (Prendergast: Tr. 586-87, 594-95, 895, 901.) At various times, others helped manage the 11th Street spot. (Prendergast: Tr. 901, 921.) Some of the managers of the spot hired children as young as eleven or twelve years old. (T. Chin: Tr. 2526-26.) By late 1995, the spot took in about $50,000 on a good day and Officer Prendergast observed large groups of people loitering there and engaging in narcotics transactions. (Prendergast: Tr. 587, 590; T. Chin: Tr. 2405.) At first, Tony C. and Trujillo obtained all of their heroin from Rodriguez and Chin, and their primary source remained Rodriguez and Chin as their business expanded. (T. Chin: Tr. 2410-11, 2485, 2530-33.) As Chin's younger brother, Tony C. spent a lot of time "hanging out and doing business" with Rodriguez and Chin. (T. Chin: Tr. 2529.) Sometimes, Tony C. went with Rodriguez while he picked up his heroin supplies in various locations in Queens. (T. Chin: Tr. 2727.) Officer Prendergast occasionally saw Rodriguez driving past the 11th Street spot before returning home to Queens. (Prendergast: Tr. 621.)

Undercover Police Officer Lester Jones was assigned to purchase heroin from sellers on Avenue B and 12th Street, next to a bodega. (Jones: Tr. 2130-33.) On May 9, 1996, Officer Jones went into the bodega and bought a drink. He approached Trujillo who was standing on the northwest corner of Avenue B and 12th Street and said that his friend "Toughie" bought his drugs there and told him that it was "the best heroin around." (Jones: Tr. 2133-35.) Trujillo questioned Officer Jones about whether he was with the police and told him that the police had been taking photographs of the spot. (Jones: Tr. 2136-37.) Officer Jones suggested they go elsewhere, but Trujillo said that it was not necessary to move, and quoted a price of $100 for a bundle of ten small glassines, telling Officer Jones to walk to the middle of the block and wait there. (Jones: Tr. 2137.) A few minutes later a spot worker name Arenas appeared and gave Officer Jones one bundle of heroin containing ten glassines stamped "High Speed" in return for $100. (Jones: Tr. 2138-41.) From May 9th to August 28th, 1996, Officer Jones made twelve heroin purchases at the 11th Street spot from a variety of sellers. (Jones: Tr. 2142-44.) His purchases increased to $4000 worth of heroin at a time. (Jones: Tr. 2144.) Some of these transactions were videotaped. (Jones: Tr. 2171-87.) From his observations, Officer Jones concluded that Trujillo was the spot's manager, Arenas was his second in command, and that thirteen or fourteen year old "Red Man" Perez was a steerer and a lookout. (Jones: Tr. 2153, 2159-60.) On about 90% of his visits, Officer Jones saw small children in the area of the drug sales. (Jones: Tr. 2178.)

In May 1996, after Cruz was released from prison, he supported himself by bagging heroin that he obtained from Rodriguez and selling it at a spot at 7th Street and Avenue D managed by Iris Monsegur and her brother Hector. (Cruz: Tr. 196-97.) Initially, Rodriguez and Chin had supplied heroin stamped "Lexus" to this spot, but other dealers later also supplied heroin to Monsegur. (P. Chin: Tr. 3250, 3263-66.) Rodriguez often checked out this drug spot. (Prendergast: Tr. 621-22.) Sometimes Hector's son, who was born on October 13, 1986, accompanied the Monsegurs to make sales. (Dawson: Tr. 2363.) Officer Tina Dawson was assigned to purchase drugs at this spot. (Dawson: Tr. 2353.) In October 1996, Officer Dawson approached Hector Monsegur and asked him to purchase heroin which she said she intended to sell at a skating rink in New Jersey. (Dawson: Tr. 2353-56.) After a background check Hector Monsegur agreed to sell Officer Dawson a bundle of ten glassines for $100 and asked how much she wanted; she purchased two bundles of heroin stamped "Lexus" for $200. (Dawson: Tr. 2353-56.) Officer Dawson returned to the spot a number of times, buying two or three bundles each time. As Officer Dawson began to purchase larger amounts of heroin, Hector Monsegur introduced her to his sister, Iris Monsegur, who he said was running the spot. (Dawson: Tr. 2357-58.) In total, Officer Dawson made about nineteen or twenty purchases of heroin from the spot on 7th Street; the more she bought, the more Iris Monsegur became involved. (Dawson: Tr. 2358-59.)

At some point around the time of William's murder (discussed on pages 29-33 below), Rodriguez informed Cruz that he had opened a drug-selling spot in Park Slope, Brooklyn, shortly after Cruz had gone to prison. (Cruz: Tr. 210-11.) Drugs for this spot were bagged in the two apartments on Barker Avenue in the Bronx, one occupied by Chu and the other by Tony C. and Trujillo. (Cruz: Tr. 210-11.) Three or four times, Cruz and Chu went to the Park Slope spot to drop off heroin, driving a grey Volvo that was for general use of Crew members. Drugs were kept in a special stash compartment: to open it, one had to pull the emergency break, turn on the air conditioner full blast, and hit the passenger side window switch. (Cruz: Tr. 211-12.)

While the Crew was running its various spots, Crew members used David Hernandez's garage and mechanics shop on Bruckner Boulevard in the Bronx as a meeting place. (Cruz: Tr. 214-16; Prendergast: Tr. 612, 883-84.) Rodriguez also kept some cars and a van in the garage. (Cruz: Tr. 216-17.) Several Crew members, including Rodriguez, Chin, Chu, Tony C., Trujillo and others regularly met at the garage. (Cruz: Tr. 216-17; T. Chin: Tr. 2458, 2690-91.) About once a week, Rodriguez or Chin paged their workers to meet at the garage. (Cruz: Tr. 216, 370-74; T. Chin: Tr. 2458.) During some meetings, the conversations focused around details of the drug business. (Cruz: Tr. 221-22, 374; T. Chin: Tr. 2722.) Like Rodriguez and Chin, Tony C. and Trujillo also summoned their workers from their 11th Street spot to meetings at David Rodriguez's garage. (T. Chin: Tr. 2457-58.) These workers often brought drug money with them to the garage where Tony C., Trujillo or Chu would count it. At the garage, workers also picked up large supplies of heroin for the 11th Street spot from Trujillo, Tony C. or Chu. (T. Chin: Tr. 2458-59, 2722; D. Rodriguez: Tr. 2846-48.) These exchanges of drugs for money generally took place right next to David Rodriguez's office. (D. Rodriguez: Tr. 2871, 2878-79.)

At one point while Rodriguez and Chin were in a "beef" with William, Chin brought a bag which held a 9 mm. pistol to the garage. Chin handed the bag to David Rodriguez, telling him that he did not want to get caught with it and told him to put it away until he came back for it. (P. Chin: Tr. 3072-73.)

The Murder of Jesse Vega

In July 1993 (during the time Rodriguez and Chin were running the 4th Street spot), Cruz, Rodriguez, and some others were on Avenue D between 6th and 7th Streets when Jesse Vega snatched a chain from Iris Monsegur's cousin's neck. (Cruz: Tr. 139-40.) Cruz demanded the chain back, and Vega threw it at him. (Cruz: Tr. 140.) Vega robbed an elderly person and ran into a nearby housing project when the Housing Police arrived. (Cruz: Tr. 140-41.) About half an hour after Vega ran inside, Cruz noticed Vega and others surrounding Rodriguez. (Cruz: Tr. 142, 412-13.) Cruz heard a commotion and saw Rodriguez face down on the ground; people were hitting Rodriguez, and Vega was straddling his back. (Cruz: Tr. 142-43, 413.) Cruz took out a .380 caliber automatic pistol from his waistband, ran across the street and shot into the air. (Cruz: Tar. 142, 413-14.) Everyone backed away from Rodriguez, who was by then bleeding with his face slashed. (Cruz: Tr. 413-14.) One of Vega's companions sidled up to Cruz, reached into his waistband, and lunged at Rodriguez. (Cruz: Tr. 143-44, 414.) Cruz fired two or three shots at the man, who dropped to the ground. (Cruz: Tr. 144, 414-15, 418-19.) Cruz tried to shoot Vega but his gun jammed. (Cruz: Tr. 418-19.) When Rodriguez was safely in his car, Cruz got into his car and drove off. (Cruz: Tr. 414-15.) Later, Cruz drove to Hector Monsegur's apartment; Rodriguez was there and was "upset" and "heated." (Cruz: Tr. 147-48.) His face was bandaged and he kept saying "'I'm going to kill that motherfucker. I'm going to get this son of a bitch, man. This shit is not going to stay like that.'" (Cruz: Tr. 148.)

In the months after he was slashed, Rodriguez remained very upset, telling Tony C. several times that he was going to kill or "smoke" his attacker, told Chin repeatedly that "he wanted to get the guy who did it" and told Rosa several times that he was going to "get" Vega. (T. Chin: Tr. 2419, 2440.) Eventually, Rodriguez learned Vega's name, and told Cruz several times that he had gone looking for Vega. (Cruz: Tr. 148-89; P. Chin: Tr. 2982.) Meanwhile, Vega began to look for Rodriguez and Cruz at their 4th Street spot, and threatened to rob the workers there because Rodriguez "wasn't going to do nothing." (Rosa: Tr. 1405-07; P. Chin: Tr. 2983, 3290-91.) Rodriguez told Cruz, and told Chin in front of Tony C., that he had heard that Vega had been wearing his watch, "running around bragging about what he had done" to Rodriguez, and visiting the Crew's drug spots to intimidate the workers. (Cruz: Tr. 154-55.) Because of these threats, the spots began to lose money. (P. Chin: Tr. 3292.)

At about 10 p.m. on October 27, 1993, Kevin Valenti, an investigator for the Civilian Complaint Review Board who lived on the Lower East Side, entered a barber shop on Avenue C between Second and Third Streets, and sat down in the waiting area, facing a wall-length mirror. (Valenti: Tr. 2749-50.) Jesse Vega entered the shop with two other men, and also sat in the waiting area. (Valenti: Tr. 2750-51.) Anibal Rosa, who was in the shop getting his hair cut, went to the spot at 4th Street and Avenue B and told William that Vega was in the barber shop. (Rosa: Tr. 1407-08, 1743-46.) William called Rodriguez and said "Jessie [Vega] is in the barber shop." (Rosa: Tr. 1408.) After listening a while, William replied, "You guys are coming down here, what?" and hung up. (Rosa: Tr. 1408-09.) Rodriguez told Chin what William had told him. (P. Chin: Tr. 2984-85.) Rodriguez and Chin paged Tony C. and Trujillo and arranged to meet at an apartment on 10th Street. (T. Chin: Tr. 2416-17, 2555; P. Chin: Tr. 2985-86.) There Chin received two 9 mm. pistols. (P. Chin: Tr. 2988-89, 3297.) Chin told his brother Tony to stay in the apartment and directed Trujillo to come with him and Rodriguez. (T. Chin: Tr. 2416-17, 2555.) Trujillo drove Chin and Rodriguez to the barbershop on Avenue C, where Chin and Rodriguez got out of the car. (P. Chin: Tr. 2987-88.) Both Rodriguez and Chin were wearing baseball caps, and pulled their shirts and jackets up so that only their eyes were visible. (P. Chin: Tr. 2990-91.) Each was carrying a 9 mm. pistol. (P. Chin: Tr. 2988-89.) Chin testified that while Chin stood guard by the front door, Rodriguez entered the barbershop and shot Vega. (P. Chin: Tr. 2989-90.) After the shooting, Rodriguez and Chin ran into the waiting car, and Trujillo drove off. (P. Chin: Tr. 2991-92.)

Valenti was still in the barbershop when the shooting occurred. About ten to fifteen minutes after Vega and his friends entered the barbershop, a man wearing black clothing and what Valenti recalled was a black ski mask held open the door to the shop, while another man dressed the same way ran into the shop and pulled a black gun. (Valenti: Tr. 2751.) The second man walked up to Vega, and Valenti and the others in the shop dropped to the floor. (Valenti: Tr. 2751-52.) As Valenti wiggled towards cover, he heard "about four or five shots." (Valenti: Tr. 2751.) When he looked up, the gunman was retreating from the shop, no more than ten seconds after he had burst in. (Valenti: Tr. 2751-52.) Vega had been shot several times in the neck, head, and body. (Valenti: Tr. 2752-53.)

At about 10:50 or 10:55 p.m. on October 27, 1993, Detectives Israel Pagan and Negron were driving along Avenue C in an unmarked car. When they reached 4th Street they heard numerous gunshots, and saw a large group of people coming out of a barbershop on Avenue C between Second and Third Streets. (Pagan: Tr. 2104.) The detectives entered the barbershop and saw Vega slumped in a chair in the waiting area with at least four or five bullet holes to the left side of his head. (Pagan: Tr. 2105-06.) Seven 9 mm. shell casings were on the floor near Vega's body, and there were bullet holes to the right of his body. (Riccio: Tr. 2067; Pagan: Tr. 2109-07, 3046-47.) Each of the shell casings had been fired from the same gun, which was probably an automatic or a semi-automatic pistol. (P. Chin: Tr. 3047-48.)

On October 28, 1993, Dr. John Hayes performed an autopsy on the body of Jesse Vega. (Hayes: Tr. 2334.) Vega had been shot nine times. (Hayes: Tr. 2335.) The cause of death was multiple gun shot wounds to the head and torso. (Hayes: Tr. 2341.) Dr. Hayes recovered three 9 mm. deformed copper jacketed bullets from Vega's body. All three bullets had been fired from the same gun, and might have been fired from the same gun that had fired the shell casings found at the murder scene.

After the shooting, Trujillo drove Rodriguez and Chin to Rodriguez's home in Queens, where Cruz was already waiting. A few minutes later, Trujillo, William, Velez, and other Crew members arrived. (Cruz: Tr. 150; P. Chin: 2992.) Rodriguez told the people in the apartment that he had shot Vega, saying "I finally got this motherfucker." (Cruz: Tr. 150.) Rodriguez and Chin explained that they received a phone call alerting them that Vega was in the barbershop, and that while Chin held the barber at the front door at gunpoint Rodriguez snuck up to Vega. (Cruz: Tr. 149-50, 446.) Vega looked at Rodriguez and said "You got it." According to Rodriguez, his reply was "Yeah, I got it" and opened fire on Vega. (Cruz: Tr. 446.) Rodriguez added that he hoped that no one would say anything and that he would use as an "alibi" that he had gone to Puerto Rico. (Cruz: Tr. 152.)

Trujillo told Tony C. seven or eight times that he had driven Rodriguez and Chin to the barbershop and Rodriguez and Chin had jumped out of the car. Trujillo heard shots, after which Rodriguez and Chin jumped back into the car. (T. Chin: Tr. 2429-30.) A few weeks after the shooting, Rosa and William saw Rodriguez and Chin at a gas station in Brooklyn. (Rosa: Tr. 1414, 1755.) Rodriguez pulled Rosa aside and told him that he "did what he had to do" and "what's done is done." (Rosa: Tr. 1415, 1756.) William handed Rosa $300 and said "That's from Pete [Chin] and Jeff [Rodriguez]." (Rosa: Tr. 1415-16.) Rosa said he did not want any money from Rodriguez and Chin because "I don't want nothing to do with what happened." (Rosa: Tr. 1416.) However, Rosa kept the money after William insisted. (Rosa: Tr. 1416.)

The Murder of William Rodriguez

In 1995, William Rodriguez began to sell his own cocaine and heroin out of the Crew's spot at 4th Street and Avenue B without telling Rodriguez or Chin. (Davis: Tr. 1904-05; P. Chin: Tr. 3005.) William also began to "hang around" with a rival group of neighborhood drug dealers. (P. Chin: Tr. 3005.) Later in 1995, Rodriguez and Chu made a delivery of heroin to the spot's daily stash house, and discovered cocaine in the safe that they learned belonged to William. (Davis: Tr. 1906-08.) In addition, in late 1995 or early 1996, Rodriguez and Chin began to complain that the money being turned over to them from the spot had taken a drastic drop, and they began to suspect that William was either selling his own heroin or tampering with their drugs. (T. Chin: Tr. 2460-62; P. Chin: 3306-08.) To confirm their suspicions, Chin occasionally had someone purchase drugs at the spot, and he found that these drugs were not the drugs that he and Rodriguez were selling. (T. Chin: Tr. 2462-63.)

William complained that Chin owed him around $13,000 and was not paying it back. (Rosa: Tr. 1424-26, 1769.) William had many arguments with Chin, one of which Rosa witnessed. (Rosa: Tr. 1426, 1502-03, 1768-70.) In late 1995 or January 1996, Morales saw Trujillo and Chu speaking to William. When Morales came back ten to fifteen minutes later, William was gone, and Chu was yelling "That motherfucker, he is going to get his." (Morales: Tr. 2228, 2302-05.) Eventually, Chin and Rodriguez fired William, after which the 4th Street spot worked better. (T. Chin: Tr. 2462-64; P. Chin: Tr. 3309.) William continued to run his own spot at Third Street and Avenue B and continued to complain that Rodriguez and Chin owed him money. (Rosa: Tr. 1778; Davis: Tr. 1908.) Two or three times, William and "Fat Tony" returned to the 4th Street spot and threatened and shot at workers. (Rosa: Tr. 1427-28; P. Chin: Tr. 3007-09.) In response, Rodriguez and Chin armed themselves and went to their spot, but could not find William. (P. Chin: Tr. 3008.) Chin discussed William with his brother Tony and told him that he was going to "put a stop to all of this." (T. Chin: Tr. 2636-37.)

After Rodriguez and Chin reopened the 4th Street spot, William told Rosa that he was planning to rob its stash house at 9:30 p.m. on a given night, and warned Rosa not to be around. (Rosa: Tr. 1429-31, 1503-06.) That night, "Tank" Davis, the shift manager, went to the stash apartment, where he found Chu and Ruby Colon handcuffed to the refrigerator. (Rosa: Tr. 1431-32, 1505; Davis: Tr. 1910-13, 1945-46.) Davis called Rodriguez and Chin, and when they arrived, Chu told them that two armed men in masks had entered the apartment and taken the safe containing drugs and money; Chu believed that one of the gunmen looked like Rosa and they also suspected William. (Davis: Tr. 1913; T. Chin: Tr. 2466.) Rodriguez and Chin vowed to get their money and drugs back. (Davis: Tr. 1913-14.)

Later that same night, William told Rosa about the robbery. He said that near closing time he waited in his car while his friends Rodney Skinner and Anthony Wager went into the stash house and robbed it. (Rosa: Tr. 1429-31.) William visited Rosa later that night and asked him to help him repackage the stolen drugs, which Rosa did. (Rosa: Tr. 1432-33.) Later, Rosa told William he would have to kill Rodriguez and Chin or else they would kill him and Rosa; William replied that he could not shoot Rodriguez or Chin. (Rosa: Tr. 1436.)

After the robbery, Chu began to carry a gun and said that he wanted to get William; Rodriguez agreed that "we have to put a stop to this." (T. Chin: Tr. 2465-67.) Rodriguez's and Chin's original plan was "to kill all of them" involved in the stash house robbery but eventually decided just to kill William because "he is the one that knew everything about us." (P. Chin: Tr. 3014.) Rodriguez, Chin and Chu drove around the neighborhood looking for William, and whenever Tony C. saw William he would page Rodriguez or Chin to alert them that William was in the area. (T. Chin: Tr. 2468; P. Chin: 3015.)

On January 30, 1996, Rodriguez, Chin and Chu drove to the Lower East Side in a rented Lincoln Town Car and Cruz's Ford Mustang to look for William; they spotted his gold Mercury parked in front of his house at 749 FDR Drive. (P. Chin: Tr. 3016-20.) Cruz slashed the front driver's side tire on William's car; the plan was for Chin to shoot William while he fixed the flat tire. (P. Chin: Tr. 3022-24.) Meanwhile, Rosa had telephoned William and they agreed to meet at 749 FDR Drive; Rosa noticed William's flat tire when he arrived, and thinking that perhaps it was a trap, told him not to come downstairs until he beeped his horn. (Rosa: Tr. 1436-39, 1803.)

After leaving for a short time to eat, Rodriguez, Chin, Chu and Cruz returned to 749 FDR Drive and saw William fixing his tire. (P. Chin: Tr. 3024-25.) They drove around the corner, where Cruz and Chin entered the Mustang, leaving Rodriguez and Chu in the rental car. (P. Chin: Tr. 3025-26.) Both cars circled back to 749 FDR Drive with the Mustang in the lead; Rodriguez and Chin followed in order to "back [Chin] up" and make sure that "nobody could come between the car to see what [Chin] was going to do." (P. Chin: Tr. 3025-27.) Chin shot William four times using his 9 mm. pistol. (P. Chin: Tr. 3027.) Chin and Cruz drove to City Island, where Cruz disassembled the gun and threw it in the water. (P. Chin: Tr. 3027-28.)

Police Officer Timothy Kane and his partner arrived at the scene at 11:25 p.m. in response to a radio report of shots fired; a crowd of about fifteen people had gathered and Rosa's red car was double-parked on the service road. (Kane: Tr. 1587-88, 1594.) William was lying face-up on the ground next to a gold four-door Mercury sedan; a gunshot wound was visible at the back of his head. (Kane: Tr. 1588-94.)

On January 31, 1996, Dr. Manuel Montez performed an autopsy on the body of William Rodriguez. (Montez: Tr. 1661.) William had suffered three gunshot wounds. (Montez: Tr. 1662-63.)

Within a few days of the shooting, Chin met with Rodriguez, Chu and Carlos Cruz; Chu said that "it had to happen" because there "were a lot of problems going on and these guys were looking to try to hurt us," and Rodriguez said "basically about the same thing." (P. Chin: Tr. 3059-60.) Cruz told Tony Chin what happened; specifically, that they had been looking for William in the Mustang and that Rodriguez and Chu were behind them in the Town Car, and that Chin had shot William. (T. Chin: Tr. 2600-02, 2634-35.) Chu also told Tony C. what happened that night, saying "we smoked him." (T. Chin: Tr. 2724.) About two weeks after William's murder, Rodriguez, Chin and Chu arranged to speak to William's friend "Tank" Davis. (Davis: Tr. 1915.) Chin kept telling Davis "I'm sorry" but "it had to happen," and Rodriguez added that William knew too much and "'We had to get him before he got us.'" (Davis: Tr. 1916.)

Expansion to Virginia

After William was murdered, in June 1996, Cruz began to sell drugs again. (Cruz: Tr. 196-97.) He also helped Rodriguez and other Crew members store heroin in the two apartments on Barker Avenue, one occupied by Chu and the other by Tony C. and Trujillo. (Cruz: Tr. 210-11.) Eventually, Tony C. and Carlos Cruz agreed that Carlos would take over the 11th Street spot and Tony C. would take over Cruz's spot in Roanoke, Virginia. (T. Chin: Tr. 2486, 2524-25.) Tony C. bought his heroin from Rodriguez and Chin and another source. (T. Chin: Tr. 2486, 2605-07.) Tony C. and Trujillo gave the heroin to Arenas, who carried it to Virginia on a Greyhound bus; a man met Arenas at the bus station, took the package of drugs, and drove Arenas to the Marriott hotel where Tony C., Trujillo and Cruz awaited him. (Arenas: Tr. 1189-91.) Twice a week for a month after that, Arenas transported drugs to Virginia about eight or nine times. (Arenas: Tr. 1191-92.) Each time, Trujillo and Tony C. brought Arenas to Queens where they would go to Rodriguez's house and come out with drugs; once, Rodriguez came out himself. (Arenas: Tr. 1285-87.)

During 1996 and 1997, Detective Robert Chandler of the Vice Narcotics Bureau in Roanoke, Virginia was assigned to investigate the flow of heroin from New York City into Roanoke; many of the glassines that were seized in Roanoke during that period bore the stamps "Dead Presidents," "Double Dragon," "Red Rum," "Poseidon," "Blood Money," "Lexus," "N.Y.N.E.X.," and "Casino." (Chandler: Tr. 3341-42.)

Rodriguez's Arrest

The task force investigating the Crew obtained a warrant to arrest Rodriguez for the murder of Jesse Vega. (Wigdor: Tr. 1622-23; Caprariello: Tr. 3709-10.) In the early hours of June 2, 1997, about six officers went to Rodriguez's home on Astoria Boulevard. (Narcisco: Tr. 3655.) Two detectives tried to gain access to Rodriguez's apartment by using a two-man hydraulic battering ram. (Caprariello: Tr. 3710; Soriano: Tr. 3635.) It failed to force the door open, but Rodriguez opened the door and was immediately placed under arrest. (Caprariello: Tr. 3710; Soriano: Tr. 3635-36.) After Detective Wigdor told Rodriguez he was under arrest for the murder of Jesse Vega, Rodriguez said "'that fucking pussy Anibal [Rosa], he's got a big mouth.'" (Wigdor: Tr. 1622-24; Caprariello: Tr. 3711.)

The officers entered the apartment and Rodriguez's girlfriend Yvette Torres came out of the only bedroom. (Caprariello: Tr. 3710-11.) Surveillance had shown that many Crew members frequently went in and out of the apartment, and the police believed that someone else who could pose a danger might be inside. (Caprariello: Tr. 3711; Soriano: Tr. 3636.) The officers went through the rest of the apartment, but found no one else. (Caprariello: Tr. 3711; Soriano: Tr. 3636.) Detectives saw four glassines which contained a powder that seemed to be heroin on the bedroom dresser. (Soriano: Tr. 3636-37.) The police seized them and placed Torres under arrest also. (Soriano: Tr. 3638.) The police obtained a warrant to search the apartment and found a large plastic bag containing tablets of heroin inside a speaker. (Soriano: Tr. 3641-42; Narcisco: Tr. 3650.) They also found three magazines of ammunition, an automatic weapon in a box labeled "Glock safe action pistol," a loader, and a box of .380 caliber bullets. (Narcisco: Tr. 3678.) Also in the bedroom was a bulletproof vest, a beeper, and a device that attaches to a firearm and emits a laser beam. (Narcisco: Tr. 3651-55, 3663-64.) In the kitchen, $2,348 was sitting on the table, and a digital scale of the type often used to measure narcotics was in a drawer. (Narcico: Tr. 3654-56, 3665, 3677.)

In June 1997, the police also arrested Chin, Cruz, Hernandez, and others connected with the 11th Street spot; they were charged with crimes including conspiracy and (for Chin) the murder of Jesse Vega. (Cruz: Tr. 169; Prendergast: Tr. 902-03; P. Chin: Tr. 3081-82, 3090.) In March or April 1998, Chin also was charged with the murder of William Rodriguez, at which time he agreed to cooperate. (P. Chin: Tr. 3082, 3090-92.) If he fully cooperated, he would receive a prison sentence of fifteen years to life on all three crimes. (P. Chin: Tr. 3083.) Cruz also entered into a written cooperation agreement, as did "Tank" Davis. (Cruz: Tr. 170-71; Davis: Tr. 1920-21.) In late March or early April 1998, Cruz and other then-co-defendants — including Rodriguez, who was unaware that Cruz was cooperating — were brought to the courthouse. (Cruz: Tr. 194.) As they waited in the holding cell, Rodriguez said, "'I just want to see who is going to come up to testify against me . . . when I see them . . . I am going to kill them and I am going to kill the people that gave birth [to] this individual.'" (Cruz: Tr. 194-95.)

The Jury Charge

Justice Snyder gave all counsel an advance copy of her "standard" charge material including her standard conspiracy charge. (Tr. 3777-78, 3814, 3816.) Rodriguez's counsel submitted a five page proposed charge on multiple conspiracies. (Tr. 3801-02.) At the charge conference, Justice Snyder informed counsel that she would be charging "conspiracy, multiple conspiracy," but that she would be charging multiple conspiracy in her own language as opposed to Rodriguez's counsel's language, "some of which, in [her] view, is not legally accurate." (Tr. 3809-10.) Justice Snyder said that "the essence" of the defense request, "if not the [exact] words, . . . are contained in [her] multiple conspiracy charge and [she] will use [her] own language." (Tr. 3811.) Justice Snyder noted that she has "used this charge in all [her] conspiracy cases and it's certainly not viewed as a legal problem." (Tr. 3817.) Justice Snyder said, however, that she would consider some of the defense objections in formulating her final charge (Tr. 3816-21, 4117), and Rodriguez's counsel said he understood and would make "specific objections after the charge" (Tr. 3821). Finally, right before Justice Snyder began her charge, she informed Rodriguez's counsel that she had "adopted some of [his] requests to change the conspiracy charge." (Tr. 4117.)

Justice Snyder charged the jury as to the "presumption of innocence" and the fact that the prosecution had the burden of proof to prove every element of each charged offense beyond a reasonable doubt. (Charge: Tr. 4147-51.) Justice Snyder then turned to explain the conspiracy charge. (Charge: Tr. 4152.)

The conspiracy charge was lengthy, taking up forty pages of the trial transcript. (Charge: Tr. 4153-93.) Justice Snyder began by explaining that Rodriguez and one other co-defendant (Hernandez) were the only two defendants charged with first degree conspiracy. (Charge: Tr. 4153-54.) Justice Snyder that if the jury found either of them guilty of first degree conspiracy the jury need not consider second degree conspiracy as to that defendant. (Charge: Tr. 4154-55.) Justice Snyder gave an overview of the crime of conspiracy, explaining that it is an "anticipatory" crime dealing with an agreement and preparation, punishable separately from the "object crime." (Charge: Tr. 4156-57.) Justice Snyder explained that first degree conspiracy is comprised of six elements, while second degree conspiracy is comprised of five elements. (Chrge: Tr. 4168-69). Justice Snyder explained those five elements. (Charge: Tr. 4169-79, 4185-86.) The charge continued: "Conspiracy, in the first degree . . . requires that the People prove one additional element over and above the five elements we discussed so far. . . . The People must also prove, obviously, again by proof beyond a reasonable doubt, that each defendant was over eighteen years of age at the time of the conspiracy and that at least one of the co-conspirators, whom the defendant knew was a member of the conspiracy, was under sixteen years of age." (Charge: Tr. 4180.) Justice Snyder repeated that if the jury were to find Rodriguez not guilty of first degree conspiracy, only then should the jury move on to second degree conspiracy. (Charge: Tr. 4181-82.)

As noted (see page 36 above), defense counsel had requested a multiple conspiracy charge, which Justice Snyder agreed to give, albeit not in the exact form requested. (See also Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 15.) The Court here quotes Justice Snyder's multiple conspiracy charge in full, since it is the subject of one of Rodriguez's federal habeas claims:

In this case, the defendants contend that the People's proof fails to [s]how the existence of only one overall conspiracy. Rather the defendants claim that there are actually several separate and independent conspiracies with several groups or members.

Whether there existed a single unlaw[ful] agreement or many such agreements or, indeed, no agreement at all is a question of fact, obviously, for you, the jury, to determine in accordance with the instructions I'm about to give you.

Where a person is joined together to further one common unlawful design or purpose, a single conspiracy exists. By way of contrast, multiple conspiracies exist when there are separate unlawful agreements to achieve distinct purposes.

In considering the evidence on the issue of whether there was but one overall conspiracy, you may find a single conspiracy despite the fact that there were changes in either personnel, by termination, withdrawal or additionals of new members, or there were changes in activities, or both, so long as you find that some of the co-conspirators continued to act for the duration of [the] conspiracy for the purposes or some of the purposes charged in the indictment.

Moreover, the fact that the parties are not always identical does not necessarily imply that separate conspiracies existed.

Obviously, if you find that the conspiracy charge in the indictment did not exist, or a conspiracy with separate and distinct purposes existed, then you cannot find the relevant defendant guilty of the conspiracy charged in the indictment.

The essence of that conspiracy, of course, as we have discussed, is the agreement. And in order to prove a single conspiracy, the People must show beyond a reasonable doubt, of course, that each alleged member agreed to participate in what he or she knew to be a collective venture directed towards a common goal.

By way of contrast, multiple conspiracies exist when there are separate and unlawful agreements to achieve distinct purposes.

In considering whether there was one overall conspiracy or multiple conspiracies, the co-conspirators need not have agreed on the details of conspiracy so long as they agreed on the essential nature of the plan.

The goals of all the participants need not be congruent, that is, corresponding or comparable for a single conspiracy to exist so long as their goals are not at cross purposes.

Nor do lapses of time, the addition of new members or the withdrawal of some members or shifting emphasis of the locale of operations necessarily convert a single conspiracy into multiple conspiracies so long as you find that some members of the conspiracy continued to act for the duration towards the purposes charged in the indictment.

Moreover, the fact that the parties are not always identical does not necessarily imply that separate conspiracies existed. But you may consider whether certain people belonged to one or more organizations or are able to move from one organization to another with ease or whether organizations had common sources of supply and or commons sales people or whether the organizations had separate members or separate organs. It is not necessary that the People prove that a defendant knew every other member or was aware of all the facts in furtherance of the conspiracy for a single conspiracy to be found, especially where the activity of a single person or persons was central to the involvement of all.

Finally, a single conspiracy is not transformed into multiple conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of operation so long as there is sufficient proof of multiple dependence and assistance.

In examining the evidence, you, the jury, must determine whether the evidence shows beyond a reasonable doubt a single conspiracy linked together by cooperation and common goals or other items we have discussed or whether the evidence shows separate unlawful agreements to achieve distinct purposes.

(Charge: Tr. 4187-90.) Rodriguez's counsel objected to the multiple conspiracy charge. (Tr. 4237-38, 4240-42; see also Tr. 4243-44, 4248-49.)

The colloquy between Justice Snyder and Rodriguez's counsel, Mr. Schwartzberg, after the charge included the following:

MR. SCHWARTZBERG: Yes, I take exception, as I did in our pre-charge conference, in your overview discussion of conspiracy to the phrase "The law considers group activity extremely serious."

THE COURT: I change[d] that from more dangerous individual activity to extremely serious in paying some attention to your request.

MR. SCHWARTZBERG: I take exception on your multiple conspiracy charge.

THE COURT: You liked that charge.

MR. SCHWARTZBERG: It was better than I thought it was going to be, but some of the language that I submitted as a Court Exhibit should have been charged, and also where the Court did properly go down some of the factors that could be considered a single conspiracy, the Court did not, as it did with almost every other substantive charge and count, use the term, "On the other hand, if you find that it did not —".

THE COURT: I think I did inferentially if not directly.

MR. SCHWARTZBERG: Well, —
THE COURT: Okay, so noted.
* * * *

THE COURT: Well, I will read all the names [of the alleged co-conspirators, as requested by defense counsel].

While we are over here, I want to indicate that I have considered all of Mr. Schwartzberg's request[s] to cha[n]ges to my conspiracy charge and I did adopt several of them either literally or in spirit.

For example, in addition to what I have already noted, I also changed the charge to read "Often hatched in private and the alleged conspirators may scheme, instead of, 'Usually hatched in private and the alleged conspirators scheme.'"

I also changed, "Usually the only evidence available is that of disconnected acts on the part of the alleged individual conspirators, which acts taken together and with reasonable inference flowing therefrom, show a conspiracy or agreement to accomplish a particular result to, 'Often the only evidence available is that of disconnected acts on the part of the alleged conspirators, which acts taken together and with reasonable inference flowing therefrom, may or may not show a conspiracy or agreement to accomplish a particular result.'"

Also, Mr. Siracusa [counsel for co-defendant Charles Chu] requested that the conspiracy hypothetical be changed by deleting any reference to renting a car and I did, in fact, change the hypothetical to read to buying a suitcase from Bloomingdale's, which is the best I can come up with on the short notice.

Nothing else then?
Let's talk about Alternates.
(Tr. 4237-38, 4243-44.)

During deliberations the jury returned with notes about the conspiracy charge: (1) asking Justice Snyder to recharge the five specific elements of second degree conspiracy and for a list of the five elements (Tr. 4263, 4265); and (2) "'We the jury request clarification about the meaning of agreement as the second element of conspiracy. Please give an example. Also discuss intent to conspire.'" (Tr. 4269-70.) Justice Snyder responded to those notes, without objection. (Tr. 4265-67, 4269-81.)

Verdict and Sentence

On July 21, 1998, the jury found Rodriguez guilty of first degree conspiracy, two counts of second degree murder, and first and third degree criminal possession of a controlled substance. (Tr. 4297-98; see also Tr. 4299-300, 4305-08.)

On September 9, 1998, Justice Snyder denied Rodriguez' motion to set aside the verdict on the grounds that as a matter of law guilt had not been established beyond a reasonable doubt on all counts, and sentenced Rodriguez to 100 years to life imprisonment. (9/9/98 Sentencing Tr. 11-12, 20-21.) Specifically, Justice Snyder sentenced Rodriguez to twenty-five years to life imprisonment for first degree conspiracy, twenty-five years to life on both second degree murder counts, each to run consecutively, and twenty-five years to life and eight and a third to twenty-fie years on the criminal possession of a controlled substance counts, concurrent to each other but consecutive to the other charges, "for a total of one hundred years to life, which [Justice Snyder] believe[d] is the appropriate sentence for this defendant." (9/9/98 Sentencing Tr. 20-21.) Justice Snyder added:

Because, Mr. Rodriguez, you are not fit to live in any kind of a civilized society. The only way to prevent people like you from inflicting the ultimate harm upon our society is to remove you permanently from our society. That is what I am doing. That is my intent and that is my effect.

(9/9/98 Sentencing Tr. 21-22.)

Rodriguez's Direct State Appeal

Rodriguez appealed to the First Department asserting that: (1) the court committed error in denying the defense's Batson motion and in granting the prosecution's Batson motion (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 17-25); (2) the jury charge on the multiple conspiracy issue was prejudicial (Rodriguez 1st Dep't Br. at 26-30); (3) Rodriguez's murder and conspiracy convictions were contrary to the weight and sufficiency of the evidence (Rodriguez 1st Dep't Br. at 31-37); and (4) Rodriguez' sentence was unconstitutional because it exceeded what was necessary to protect society (Rodriguez 1st Dep't Br. at 38-42).

The First Department affirmed Rodriguez's conviction:

As to both defendants, the verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The credible evidence clearly established the active participation by defendant Geoffrey Rodriguez in the two murders of which he was convicted, the existence of a single conspiracy including multiple drug-selling operations, and the roles played by each defendant in the conspiracy.

According "great deference" to the court's findings with respect to pretextuality, we conclude that the court's rulings on the applications made by the People and defendants pursuant to Batson v. Kentucky, are supported by the record.

The court's conspiracy charge, read as a whole, was sufficiently balanced and conveyed the proper standards concerning single and multiple conspiracies.

We perceive no basis for reduction of sentence.

Defendants' remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

People v. Rodriguez, 277 A.D.2d 170, 171, 716 N.Y.S.2d 570, 571 (1st Dep't 2000) (citations omitted). The New York Court of Appeals denied leave to appeal on January 11, 2001. People v.Rodriguez, 96 N.Y.2d 738, 722 N.Y.S.2d 805 (2001).

Rodriguez's C.P.L. § 440 Motion to Vacate the Judgment

On November 27, 2001, Rodriguez filed a pro se C.P.L. § 440 motion asserting ineffective assistance of trial counsel. (Dkt. No. 16: State Supp. App. Ex. G: Rodriguez § 440 Motion.) The motion focused on trial counsel's alleged failure to: (1) call eye witnesses that would have reported contradictory testimony about Vega's murder; (2) appropriately investigate the existing witnesses; and (3) properly move to dismiss the case at the end of the trial. (Id.) Justice Snyder denied Rodriguez's C.P.L. § 440 motion on October 21, 2002. (Dkt. No. 16: State Supp. App. Ex. I: 10/21/02 Justice Snyder Order.) The First Department denied leave to appeal on July 10, 2003. (Dkt. No. 16: State Supp. App. Ex. M.) Rodriguez's Federal Habeas Corpus Petition

Rodriguez's pro se federal habeas corpus petition alleges that: (1) the trial court erred in denying the defense motion underBatson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), and in granting the prosecution's Batson motion (Dkt. No. 1: Pet. ¶ 13, Att., Point I); (2) the multiple conspiracy jury charge was erroneous and prejudicial (Pet. ¶ 13, Att., Point II); (3) Rodriguez's murder and conspiracy convictions were contrary to the weight and sufficiency of the evidence (Pet. ¶ 13, Att., Point III); (4) Rodriguez's sentence is unconstitutional because it exceeds what is necessary to protect society (Pet. ¶ 13, Att., Point IV); and (5) Rodriguez was denied the effective assistance of trial counsel (Pet. Att., Rodriguez § 440 Br.; see also Dkt. No. 18: Rodriguez 12/2/03 Letter to Court).

ANALYSIS

I. THE AEDPA REVIEW STANDARD

For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-17 (S.D.N.Y., Jan 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.);Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *15-17 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12-14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 0397, 2003 WL 22219929 at *4-6 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v.Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v.Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Jamison v.Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.);Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003); Fluellen v.Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Rodriguez is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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) . . . 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)(1)-(2).

See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), petition for cert. filed, No. 03-7760, ___ U.S.L.W. ___ (U.S. Dec. 3, 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S.Ct. 962 (2003); Jones v.Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v.Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 So. Ct. 865 (2001).

Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181;DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002);Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.

Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 So. Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521. "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "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 decisions so far off the mark as to suggest judicial incompetence.'" Jones v.Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quotingWoodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockyer v. Andrade, 123 S.Ct. at 1175; Eze v.Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853; Lockyer v.Andrade, 123 S.Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v.Hollins, 2003 WL 22299216 at *3.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.

Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."). "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v.Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted). Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Here, the First Department affirmed Rodriguez's conviction on the merits, and Justice Snyder denied Rodriguez's § 440 ineffective assistance claim on the merits. See People v.Rodriguez, 277 A.D.2d 170, 716 N.Y.S.2d 570 (1st Dep't 2000). (See also Dkt. No. 16: State Supp. App. Ex. I: 10/21/02 Justice Snyder Order Denying § 440 Motion.) Thus, the state courts' decisions on direct appeal and on the C.P.L. § 440 motion were on the merits and are entitled to AEDPA deference.

II. THE TRIAL COURT'S CONSPIRACY CHARGE WAS NOT PREJUDICIAL TO RODRIGUEZ

It is well-established that a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990)).

Accord, e.g., Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *27 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *9 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4-5 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp.2d 363, 370 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.);Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997).

As the Second Circuit has stated: "'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 federal law.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); accord, e.g., Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994). Failure to give a properly requested jury charge does not by itself violate a petitioner's right to due process. E.g., Blazic v. Henderson, 900 F.2d at 541 ("A mere error of state law does not deny a defendant his right to due process.").

See, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973); Besser v. Walsh, 2003 WL 22093477 at *23; Cromwell v. Keane, 2002 WL 929536 at *27; Thomas v.Duncan, 2001 WL 1636974 at *9; Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *12 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.);Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *5 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Riles v. Breslin, 2001 WL 175250 at *5; Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *13 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Solomon v.Artuz, 2000 WL 863056 at *4-5; Gillette v. Greiner, 76 F. Supp.2d at 370.

Accord, e.g., Besser v. Walsh, 2003 WL 22093477 at *23; Solomon v. Artuz, 2000 WL 863056 at *5; Gillette v.Greiner, 76 F. Supp.2d at 370; see also, e.g., Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 277 (1971).

"For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d at 541 (quoting Cupp v. Naughten, 414 U.S. at 147, 94 So. Ct. at 400); accord, e.g., Besser v. Walsh, 2003 WL 22093477 at *23; Solomon v. Artuz, 2000 WL 863056 at *5;Gillette v. Greiner, 76 F. Supp.2d at 370; see also, e.g., Casillas v. Scully, 769 F.2d at 63; Carmona v.Artuz, 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 1998 WL 213781 (S.D.N.Y. Apr. 29, 1998).

In his petition, Rodriguez alleges that Justice Snyder's charge on multiple conspiracies "was prejudicially slanted in favor of the prosecution and amounted to a direction for the jury to find against [Rodriguez] on that issue. The charge on multiple conspiracies was erroneous, the charge virtually directed the jury to ignore the defense of discrete conspiracies." (Dkt. No. 1: Pet. ¶ 13, Att., Point II.) The First Department held that the instruction was correct, explaining: "The court's conspiracy charge, read as a whole, was sufficiently balanced and conveyed the proper standards concerning single and multiple conspiracies." People v. Rodriguez, 277 A.D.2d 170, 171, 716 N.Y.S.2d 570, 571 (1st Dep't 2000).

The Court notes that Rodriguez does not object to the giving of a multiple conspiracy charge (as opposed to the contents of the charge given); indeed, Rodriguez's counsel requested the giving of a multiple conspiracy charge. (See page 36 above.) It is clear that the giving of a multiple conspiracy charge is required where a jury could find either a single or multiple conspiracies. The New York Court of Appeals has explained:

The Federal Circuit Courts appear to be in agreement that the determination as to whether a single conspiracy was demonstrated by the evidence is a classic question of fact. Thus, the jury must be instructed on the single-multiple conspiracy issue when the facts are such that a jury might reasonably find either a single conspiracy or multiple conspiracies.

Like the Federal courts, we believe that because the clarity of the charge is so crucial in these complex conspiracy trials, a charge must be given explicitly recognizing the possibility of multiple conspiracies and directing an acquittal in the event that the jury concludes that something other than a single integrated conspiracy was proven. Such a charge is required whenever the possibility of more than one conspiracy is supported by a reasonable view of the evidence.

People v. Leisner, 73 N.Y.2d 140, 150, 538 N.Y.S.2d 517, 522 (1989) (emphasis added, citations omitted); see, e.g., People v.De Los Angeles, 270 A.D.2d 196, 199, 707 N.Y.S.2d 16, 22 (1st Dep't 2000) (upholding multiple conspiracy charge given by Justice Snyder); People v. Thomas, 215 A.D.2d 211, 211, 626 N.Y.S.2d 485, 486 (1st Dep't 1995); People v. Yanez, 178 A.D.2d 357, 358-59, 577 N.Y.S.2d 621, 622-23 (1st Dep't 1991) (upholding multiple conspiracy jury charge given by Justice Snyder); see also, e.g., United States v. Roberts, No. 95-1363, 100 F.3d 942 (table), 1996 WL 20513 at *3 (2d Cir. Jan 19, 1996) ("A defendant is 'entitled to a jury charge that accurately reflects the applicable law' . . . 'A court has discretion to determine what language to use in instructing the jury as long as it adequately states the law.'"); United States v. Maldanado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990) (citing law related to multiple conspiracy jury charge in exact same terms as Judge Snyder's charge in this case: "The coconspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan. The goals of all the participants need not be congruent for a single conspiracy to exist, so long as their goals are not at cross-purposes. Nor do lapses of time, changes in membership, or shifting emphases in the locale of operations necessarily convert a single conspiracy into multiple conspiracies. Indeed, it is not necessary that the conspirators know the identities of all the other conspirators in order for a single conspiracy to be found especially where the activity of a single person 'was central to the involvement of all.' Finally, a single conspiracy is not transformed into multiple conspiracies merely by virtue of the fact that it may involve two or more phases or spheres of operation, so long as there is sufficient proof of mutual dependence and assistance.") (citations omitted), cert. denied, 501 U.S. 1233, 111 S.Ct. 2858 (1991); Acosta v. Artuz, 98 Civ. 3024, 2001 WL 1029415 at *2 (S.D.N.Y. Sept. 7, 2001) (Court rejects petitioner's challenge to that multiple conspiracy charge containing paragraph virtually identical to the first paragraph of Justice Snyder's charge here, quoted on page 37 above. Portion of challenged charge "was a straightforward statement of prevailing law," citing People v. Leisner. "Far from tending to inculpate the defendant, the 'multiple conspiracies' instruction given here tended, if anything, to highlight the possibility of defendant's innocence.").

Rodriguez claims that Justice Snyder's instruction "continually indicated specifics of what would constitute a single conspiracy, while describing multiple conspiracies in only the vaguest, and in some cases, most incomprehensible terms." (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 28; see also id. at 27-28, indicating portions of charge objected to.)

The charge clearly informed the jury that whether there was a single conspiracy or multiple conspiracies was a question of fact for the jury determine. (See pages 37-39 above.) The charge also properly instructed that if the jury found multiple conspiracies or a different conspiracy than the single conspiracy charged in the indictment, then the jury could not find defendants guilty of the conspiracy charged in the indictment. (See page 39 above.) These aspects of the charge covered the requirements ofPeople v. Leisner, cited above. While it might have been better had the charge "balanced" the additional information about a single conspiracy with counterpart information about multiple conspiracies, the language did not "virtually instruct the jury to . . . accept this single conspiracy theory" as opposed to Rodriguez's multiple conspiracy argument, as Rodriguez asserts. (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 29.)See, e.g., United States v. Maldanado-Rivera, 922 F.2d at 963 ( cases cited therein).

This Court cannot say that Justice Snyder's multiple conspiracy charge, taken as a whole, so infected the entire trial that Rodriguez's conspiracy conviction would violate due process. Certainly, the Court cannot say that the First Department's decision upholding Justice Snyder's multiple conspiracy jury charge is erroneous, much less an unreasonable application of Supreme Court precedent, i.e., the Cupp v. Naughten standard (as set forth by the Second Circuit in Blazic v.Henderson, quoted above). See Acosta v. Artuz, 2001 WL 1029415 at *2.

Rodriguez's habeas claim challenging the multiple conspiracy jury charge is without merit and should be dismissed. III. RODRIGUEZ'S WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON FEDERAL HABEAS

For additional decisions authored by this Judge discussing weight of the evidence claims in language substantially similar to that in this entire section of this Report and Recommendation,see Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *7-8 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *4 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7-8 (S.D.N.Y. July 19, 2000) (Peck, M.J.).

Rodriguez claims that his murder and conspiracy convictions are against the weight of the evidence. (Dkt. No. 1: Pet. ¶ 13, Att., Point III.)

A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).

The Bleakley Court explained the difference as follows:

Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.

To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony."

People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations omitted).

It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."),cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S.Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v.O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").

Accordingly, Rodriguez's weight of the evidence habeas claim should be denied.

IV. RODRIGUEZ'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims

For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *16-17 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.);Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8-9 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v.Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at * 5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v.Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v.Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

"'[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v.Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v.Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v.Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v.Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Rodriguez bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v.Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000);United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v.Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994);United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).

Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v.Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

B. The Evidence Was Legally Sufficient to Support Rodriguez's Convictions

In addition to his weight of the evidence claim, Rodriguez's habeas petition also claims that his second degree murder and first degree conspiracy convictions were not supported by sufficient evidence. (Dkt. No. 1: Pet. ¶ 13, Att., Point III.) This claim is frivolous.

Rodriguez concedes that he was properly convicted for drug selling. (Id.)

Pursuant to Penal Law § 125.25:

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; . . .

2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. . . .

Penal Law § 125.25. Rodriguez also was convicted of first degree conspiracy under Penal Law § 105.17, which provides that:

A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

Penal Law § 105.17.

Rodriguez argues that "the evidence in this case equally supports the multiple conspiracy theory," that the evidence showing Rodriguez's part in the murder of William Rodriguez was "insufficient to convict" since it showed "no more than mere presence," and that the "jury gave insufficient weight to the inherent deficiencies in the credibility of those witnesses" who testified about Rodriguez's part in the murder of Jesse Vega. (Pet. ¶ 13, Att., Point III.)

The First Department denied all insufficiency claims on the merits:

As to both [Rodriguez and his co-defendant], the verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The credible evidence clearly established the active participation by defendant Geoffrey Rodriguez in the two murders of which he was convicted, the existence of a single conspiracy including multiple drug-selling operations, and the roles played by each defendant in the conspiracy.

People v. Rodriguez, 277 A.D.2d 170, 171, 716 N.Y.S.2d 570, 571 (1st Dep't 2000).

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Rodriguez was guilty of the challenged convictions. To support a charge of second degree murder, the evidence must show that the defendant intended "to cause the death of another person" or "under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Penal Law § 125.25. For both the murders of Jesse Vega and William Rodriguez, there is overwhelming evidence of Rodriguez's guilt. (See pages 25-33 above.) After Vega slashed Rodriguez, he stated numerous times that he would kill Vega. (See pages 25-26 above.) The prosecution introduced testimony from several different witnesses who either saw Rodriguez shoot Vega or heard him admit that he shot and killed Vega. (See pages 25-29 above.) A rational jury could easily conclude based on this evidence that Rodriguez shot and killed Jesse Vega. Similarly, the evidence proffered by the prosecution that Rodriguez was an active participant in William Rodriguez's murder was more than sufficient for a rational jury to find Rodriguez guilty of that murder. (See pages 29-37 above.)

There was also an abundance of evidence that Rodriguez was a leader of a single conspiracy to sell drugs in New York and Virginia. The over four thousand page trial transcript depicted the history of Rodriguez's and Peter Chin's drug empire, spanning almost a decade. Whether it was in overseeing, supplying or selling, Rodriguez was implicated in all of the drug selling activities of the "Champion Pool Hall gang." (See pages 11-24 33-34 above.) Furthermore, the evidence as viewed in the light most favorable to the prosecution showed that in many of these instances Rodriguez used children under the age of sixteen to act as pitchers and lookouts, thus elevating the conspiracy charge to a first degree offense. (See pages 18, 21 22 above.) Indeed, Rodriguez admits that the evidence "equally supports the multiple conspiracy theory," meaning that it also supports a jury finding of a single hub (Rodriguez) and spokes conspiracy. See, e.g., United States v. Thompson, 76 F.3d 442, 454 (2d Cir. 1996) ("[T]he evidence presented by the government was ample to show a single conspiracy, with [co-defendant] as its hub and [defendant] and others participating as spokes."); United States v. Mallah, 503 F.2d 971, 984 (2d Cir. 1974) ("Neither has the classical distinction between simple chain and hub-spoke conspiracies held up well in the area of narcotics conspiracy, for where two or more chains are connected to a hub by core conspirators this court has not hesitated to view the entirety as a single conspiracy."), cert. denied, 420 U.S. 995, 95 S.Ct. 1425 (1975). If the evidence equally supports single and multiple conspiracy theories, it is clear that the choice is the jury's, which it made here, and that the evidence is sufficient.

Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); accord, e.g., Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.);Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *11 n. 18 (S.D.N.Y. May 7, 2003) ( cases cited therein); see also cases cited in Point II.A above.

Even if there had been major inconsistencies in Chin's testimony about the murders, that would not change the result.See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148, 122 S.Ct. 1111 (2002); Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . ."). Indeed, the Second Circuit has held that "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979).

See also, e.g., Besser v. Walsh, 2003 WL 22093477 at *22; Wilson v. Senkowski, 2003 WL 21031975 at *11 n. 19 ( cases cited therein); Jamison v. Grier, 2002 WL 100642 at * 12-13 (inconsistencies in witness testimony does not make evidence insufficient); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *9 (S.D.N.Y. Jul.12, 2001) (Peck, M.J.);Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *5 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.) (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *5 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.) ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record.");Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").

Rodriguez's problem is that he is not viewing the evidence in the light most favorable to the prosecution, which is the correct standard on habeas review of the sufficiency of the evidence. Viewed in that light, based on the testimony of former Champion gang members, undercover officers, and others, there is no doubt as to the sufficiency of the evidence as to the two murders and the conspiracy.

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 12-13 n. 10, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision affirming Rodriguez's convictions was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of facts.

V. THE TRIAL COURT'S BATSON RULINGS WERE PROPER A. Batson v. Kentucky and Its Progeny

For additional decisions by this Judge discussing Batson in language substantially similar to that in this entire section of this Report Recommendation, see Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at * 24-26 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *17-18 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at * 10 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2002).

In Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 1716 (1986), the Supreme Court reaffirmed that a state's purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Constitution. The Batson analysis applies to peremptory challenges by a criminal defendant as well as by a prosecutor. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359 (1992); McKinney v. Artuz, 326 F.3d 87, 98 n. 12 (2d Cir. 2003); Walters v. Mitchell, No. 99-CV-2579, 2002 WL 1751400 at *2 (E.D.N.Y. July 18, 2002). For AEDPA purposes, "[t]he clearly established Supreme Court precedent applicable in this case is Batson v. Kentucky. . . ."Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002).

As the Second Circuit reiterated, "[t]he Supreme Court has set forth a three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). The Second Circuit has summarized that test as follows:

[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors. . . .

[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. The second step does not require the party to give an explanation that is persuasive or even plausible.

[Step 3:] Finally, if the non-moving party proffers a race-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.

Galarza v. Keane, 252 F.3d at 636 (citations omitted); see, e.g., Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1035 (2003); Batson v. Kentucky, 476 U.S. at 96-98, 106 So. Ct. at 1723-24; Purkett v. Elem, 514 U.S. 765, 767, 115 So. Ct. 1769, 1770-71 (1995); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66 (1991); McKinney v.Artuz, 326 F.3d at 97-98; Overton v. Newton, 295 F.3d at 276; Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000).

See also, e.g., Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 939-40 (7th Cir. 2001); United States v.Raysor, Nos. 99-1503, 99-1504, 9 Fed. Appx. 33, 34, 2001 WL 357030 at *1 (2d Cir. Apr. 10, 2001); Moore v. Walker, No. 99-2754, 234 F.3d 1262 (table), 2000 WL 1721120 at *1 (2d Cir. Nov. 16, 2000); Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999); Durant v. Strack, 151 F. Supp.2d 226, 235-36 (E.D.N.Y. 2001); Green v. Kelly, 99 Civ. 9082, 2000 WL 1871711 at *6-8 (S.D.N.Y. Dec. 21, 2000); Morales v. Artuz, 98 Civ. 6558, 2000 WL 1693563 at *4 (S.D.N.Y. Nov. 13, 2000),aff'd, 281 F.3d 55 (2d Cir.), cert. denied, 123 S.Ct. 152 (2002); United States v. Moore, 4 F. Supp.2d 319, 320-21 (S.D.N.Y. 1998), aff'd, No. 98-1274, 173 F.3d 847 (table), 1999 WL 132175 (2d Cir. Mar. 11, 1999), cert. denied, 527 U.S. 1029, 119 S.Ct. 2383 (1999).

In a footnote in Batson, the Supreme Court emphasized the deference to be accorded to the trial judge's determination: "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21; accord, e.g., Owens v.Portuondo, 1999 WL 378343 at * 9; see also cases cited at pages 74-85 below.

The Second Circuit has held that a Batson claim "is a structural error that is not subject to harmless error review."Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998);accord, e.g., Galarza v. Keane, 252 F.3d at 638 n. 8;Dobbin v. Greiner, 249 F. Supp.2d 241, 249 (S.D.N.Y. 2002);Harris v. Kuhlmann, 115 F. Supp.2d 326, 338-39 (E.D.N.Y. 2000). B. Application of Batson to Rodriguez's Habeas Claim

Other Circuits that addressed the issue have reached the same result. See, e.g., Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001), cert. denied, 534 U.S. 1085, 122 S.Ct. 822 (2002); United States v. Harris, 192 F.3d 580, 588 (6th Cir. 1999); United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998) (suggestion that Batson error can be considered harmless error "has been resoundingly rejected by every circuit court that has considered the issue") (citing cases); Turner v.Marshall, 121 F.3d 1248, 1254 n. 3 (9th Cir. 1997), cert. denied, 522 U.S. 1153, 118 S.Ct. 1178 (1998), overruled to a limited extent on other grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999); Scarpa v. DuBois, 38 F.3d 1,14 (1st Cir. 1994), cert. denied, 513 U.S. 1129, 115 S.Ct. 940 (1995);United States ex el. Pruitt v. Page, No. 97 C 2115, 1999 WL 652035 at * 8-9 (N.D. Ill. Aug. 20, 1999) ("It is the consensus of Courts of Appeals, including the Seventh Circuit, thatBatson error is structural and cannot be harmless.").

Because the First Department correctly recognized the issue as one of Batson's application, the AEDPA "unreasonable application" standard applies. See, e.g., McKinney v.Artuz, 326 F.3d 87, 98 (2d Cir. 2003); Overton v. Newton, 295 F.3d 270, 275-80 (2d Cir. 2002); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *26 n. 60 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at * 18 nn. 43-44 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.) ( cases cited therein). The AEDPA standard of review of the state trial judge's factual determinations about the Batson issues is even more circumscribed and deferential. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1045 (2003); see pages 84-85 below.
The Court notes that the absence of the transcript portion containing the oral argument of and Justice Snyder's rulings on the Batson issue has made review of the record more difficult. The Court therefore was forced to rely on the parties' First Department briefs for a description of what occurred. (See page 7 fn.5 above.) Case law allows the Court to utilize the parties' state court submissions. See, e.g., United States ex rel. Preston v. Mancusi, 422 F.2d 940, 942-43 (2d Cir. 1970);Glisson v. Mantello, 287 F. Supp.2d 414, 425-26, 432 n. 6 (S.D.N.Y.); Carracedo v. Artuz, 98 Civ. 7561, 2002 WL 1964342 at * 1 (S.D.N.Y. Aug. 1, 2002) ( cases cited therein), aff'd, 81 Fed. Appx. 741, 2003 WL 22055115 (2d Cir. Sept. 4, 2003);Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at * 1 n. 1 (S.D.N.Y. May 15, 2002) (Peck, M.J.). And in this case, the transcript of the entire voir dire of the venirepersons was available; all that was missing was counsel's arguments (and Justice Snyder's ruling).

In his petition, Rodriguez alleges:

The trial court committed error in denying the defense Batson motion and in granting the prosecution's Batson motion. [Rodriguez] conten[ds] that the trial court erred in both denying his Batson motion and in granting [the prosecution's] retaliatory Batson motion. The trial court thus erred in both the substantive and procedural aspects of the Batson issues. On [the prosecution's] Batson motion, the trial court erred initially by applying the wrong standard in that she placed upon [Rodriguez] the burden of demonstrating a nonpretextual reason when the burden of persuasion rests 'unalterably' upon the party opposing the peremptory challenge.

(Dkt. No. 1: Pet. ¶ 13, Att., Point I.) Rodriguez does not further elaborate this point in his petition, but attaches his First Department brief, which sheds further light on his Batson claim. Rodriguez's First Department brief alleges that Justice Snyder improperly denied the defense's Batson motion which alleged that the prosecution challenged venirepersons because they were Latino or African-American, while Justice Snyder granted the prosecution's allegedly "retaliatory" Batson motion that the defense challenged venirepersons because they were white males. (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 17-25.)

Rodriguez's Batson claim is without merit. Justice Snyder properly followed the three-step process proscribed by the Supreme Court and the Second Circuit (see page 68 above), and as discussed below, did not commit error in her ruling on either Rodriguez's or the prosecution's Batson motions.

1. Rodriguez's Batson Challenge to the Prosecution's Striking Minority Venirepersons

During voir dire, the defense made a Batson challenge based on the fact that the prosecution struck the only three Latinos that were in the jury pool. (Voir Dire Tr. 378.) Justice Snyder allowed the prosecution to offer race-neutral explanations for the challenges. (Voir Dire Tr. 378-80.) After hearing the prosecution's race-neutral reasons for the challenges, Justice Snyder determined that the defense did not meet the burden of showing that the strikes were motivated by race, and denied the motion:

I will find that pursuant to the Batson steps and prodigy the defendants did probably raise sufficient facts where there is an inference that you used your peremptories for discriminating purposes. I don't think that is entirely clear. Even if the burden shifts to you at stage two, I could state that you have give[n] two other legitimate reasons for striking the first two of the three jurors. I do not find any of the reasons are pretextual. Your motion is denied, Mr. Hines [counsel for one of Rodriguez's co-defendants].

(Voire Dire Tr. 380.)

This Court need not determine whether the defense established a prima facie showing of intentional racial discrimination. That issue became moot once the trial judge ruled on the Batson question. See, e.g., Miller-El v. Cockrell, 123 S.Ct. at 1040; Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866 (1991) ("Once a [non-moving party] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [moving party] had made a prima facie showing becomes moot."); McKinney v. Artuz, 326 F.3d at 98 ("The Supreme Court has held that the prima facie case of discriminatory intent becomes irrelevant to the analysis of a peremptory challenge once the trial court proceeds to the second and third steps as it did here."); United States v. Franklyn, 157 F.3d 90, 97 (2d Cir. 1998), cert. denied, 119 S.Ct. 887 (1999).

See also, e.g., Besser v. Walsh, 2003 WL 22093477 at *26; Walker v. Girdich, 275 F. Supp.2d 299, 303, (E.D.N.Y. 2003) (Weinstein, D.J.); Rose v. Senkowski, No. 99 CV 6053, 2003 WL 21698240 at *3 (E.D.N.Y. July 8, 2003); Baker v. Bennett, 235 F. Supp.2d 298, 307 n. 12 (S.D.N.Y. 2002);Durant v. Strack, 151 F. Supp.2d 226, 236-42 (E.D.N.Y. 2001); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *9 (S.D.N.Y. June 9, 1999) (Peck, M.J.); United States v. Moore, 4 F. Supp.2d 319, 321 (S.D.N.Y. 1998).

The second step of the Batson analysis — that the non-moving party (here the prosecution) come forward with a race-neutral explanation for its peremptory challenge — "does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the [non-movant's] explanation. Unless a discriminatory intent is inherent in the [non-movant's] explanation, the reason offered will be deemed race neutral.'" Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995); accord, e.g., Overton v.Newton, 295 F.3d at 276; Besser v. Walsh, 2003 WL 22093477 at *26; Owens v. Portuondo, 1999 WL 378343 at *9; see also, e.g., People v. Payne, 88 N.Y.2d at 183, 643 N.Y.S.2d at 956. The Supreme Court has clarified that:

It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike "must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges" and that the reason must be "related to the particular case to be tried." This warning was meant to refute the notion that the [non-movant] could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection.

Purkett v. Elem, 514 U.S. at 768-69, 115 S.Ct. at 1771 (citations omitted); accord, e.g., Jordan v. LeFevre, 206 F.3d at 200 ("Batson analysis recognizes that a race neutral reason may be rational and yet be a pretext for discrimination."); Besser v. Walsh, 2003 WL 22093477 at *26-27; Owens v. Portuondo, 1999 WL 378343 at *9-10; see also, e.g., People v. Payne, 88 N.Y.2d at 183, 643 N.Y.S.2d at 956.

In this case, the prosecution asserted that it struck the three Latino venirepersons because of a career in social work, a conflict with the law, and an inability to answer questions, as well as not even realizing that one of the stricken venirepersons was Latino. (See pages 2-3 above.) Since the prosecution offered facially neutral explanations, thus satisfying the secondBatson step, the Court will now review the trial court's determination that the defense did not prove purposeful racial discrimination at the third Batson step.

The Court reiterates that on habeas review, it must give "great deference" to the trial court's findings as to the third Batson step. See, e.g., 28 U.S.C. § 2254(d)(2) (e); Purkett v.Elem, 514 U.S. at 769, 115 S.Ct. at 1771; Hernandez v. New York, 500 U.S. at 364-65, 111 S.Ct. at 1868-69; Batson v.Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724, n. 21;McKinney v. Artuz, 326 F.3d at 100-01; Bryant v.Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997) ("A state court's determination whether a prosecutor's use of a peremptory challenge was motivated by discriminatory intent, in violation ofBatson, is a factual determination and thus qualifies for [former § 2254(d)'s] presumption of correctness."), cert. denied, 118 S.Ct. 2066 (1998); Brown v. Kelly, 973 F.2d 116, 120, 122 (2d Cir. 1992) (the trial court's "decision on the factual question of discriminatory animus, largely based on determinations of credibility, is ordinarily given 'great deference' on appeal" and habeas review), cert. denied, 506 U.S. 1084, 113 S.Ct. 1060 (1993).

See also, e.g., United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991) ("As we have recognized, the task of assessing the prosecutor's explanations, in order to determine the ultimate issue of whether discrimination has been shown, falls primarily upon the judicial officer conducting the jury selection, whose determinations as to credibility of the proffered explanations are entitled to 'appropriate deference.'"); Besser v. Walsh, 2003 WL 22093477 at *27;Durant v. Strack, 151 F. Supp.2d at 235-36 ("Because the trial judge is uniquely situated to assess the striking attorney's state of mind based on credibility and demeanor, . . . 'a reviewing court ordinarily should give those findings great deference.'"); Owens v. Portuondo, 1999 WL 378343 at *10.

Justice Snyder's findings that the prosecution's reasons for the challenges were not pretextual were reasonable. The prosecution challenged Ms. Mendez because she was a social worker who worked with substance abusers. (See page 3 above.) "[C]ourts have generally upheld challenges based on employment as nondiscriminatory and plausible," Cruz v. Artuz, No. CV 96-5209, 1997 WL 269591 at *6 n. 7 (E.D.N.Y. Apr. 21, 1997),aff'd mem., 133 F.3d 906 (2d Cir. 1997), and prosecutors often consider persons in the "helping professions" to be defense oriented.

See also, e.g., J.E.B. v. Alabama, 511 U.S. 127, 142 n. 14, 114 S.Ct. 1419, 1428 n. 14 (1994) ("where peremptory challenges are made on the basis of group characteristics other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group's competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life"); Moore v. Walker, No. 99-2754, 234 F.3d 1262 (table), 2000 WL 1721120 at *2 (2d Cir. Nov. 16, 2000) (employment "has been found to be acceptable race-neutral bases for peremptory challenges"); Jordan v.LeFevre, 206 F.3d at 200 ("type of employment" has "been found to be [an] acceptable race neutral bas[i]s for peremptory challenges"); Stays v. Herbert, 01 Civ. 2400, 2003 WL 22765352 at *5 (E.D.N.Y. Nov. 24, 2003) ("Juror['s] employment as a home health aid" held to be a "legitimate reason" for prosecutor's peremptory challenge."); Baker v. Bennett, 235 F. Supp.2d 298, 312 (S.D.N.Y. 2002); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *22 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Green v. Kelly, 99 Civ. 9082, 2000 WL 1871711 at *6 (S.D.N.Y. Dec. 21, 2000) ("the equal protection principles ofBatson and its progeny . . . do not apply" where party strikes juror based on occupation).

See, e.g., United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991) (accepting prosecutor's explanation that venireperson's "role as a social worker" made her a less desirable juror than even a guidance counselor); Rodriguez v.Lord, 00 Civ. 0402, 2001 WL 1223864 at *22; David C. Baldus,The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 14-15 (Feb. 2001) (recognizing that prosecutors perceive "people from the helping professions, such as doctors, lawyers, and social workers" as a threat); John A. Waskoff, Lockhart v. McCree: Death Qualification as a Determination of the Impartiality and Representativeness of a Jury in Death Penalty Cases, 72 Cornell L. Rev. 1075, 1113 n. 178 (July 1987) ("'People in 'liberal arts' fields such as teaching, or in the helping professions (nurses, social workers), . . . may be well-attuned to defense arguments'") (quoting Blinder, Picking Juries, 1 Trial Dipl. J. 8, 9 (1978)).

As to Mr. Sirano, the fact that he admitted to using drugs was a reasonable explanation as to why the prosecution felt he was unfit to sit on a jury for what was largely a drug trial. (See page 3 above.) The belief that a venireperson uses drugs is an appropriate race-neutral basis for a peremptory challenge, particularly in a case charging the defendants with criminal sale and possession of drugs (indeed, it can be a basis for a challenge for cause). See, e.g., People v. Roth, 139 A.D.2d 605, 606, 527 N.Y.S.2d 97, 100 (2d Dep't 1988) (juror properly discharged for cause when admitting that "she could not render an impartial verdict owing to her own use and use by her friends of cocaine."); People v. Velez, 223 A.D.2d 414, 414, 636 N.Y.S.2d 764, 765 (1st Dep't 1996) ("Despite the prospective juror's assurance, there remained a substantial doubt as to whether he could be fair and impartial in this drug case in light of his acknowledgment that he and his friends currently used and purchased substantial quantities of marijuana and that he did not like that the sale of drugs was illegal. The juror was properly discharged for cause in the discretion of the trial court.");People v. Hymes, No. N11547-97, 2001 WL 1359498 (Sup.Ct. Queens Co. Aug. 16, 2001), aff'd, 296 A.D.2d 467, 744 N.Y.S.2d 905 (2d Dep't 2002); People v. Norwood, 177 Misc.2d 172, 174, 675 N.Y.S.2d 840, 842 (Sup.Ct. Kings Co. 1998) ("The dismissal for cause of a juror who uses drugs is appropriate even where the juror assures the court he can remain impartial."),aff'd, 279 A.D.2d 638, 719 N.Y.S.2d 876 (2d Dep't 2001). Finally, the prosecution stated that she did not even realize that Mr. Cross was "from the Dominican Republic." See, e.g., Hernandez v. New York, 500 U.S. 352, 369-70, 111 S.Ct. 1859, 1872 (1991) (trial court could rely on fact that prosecutor "did not know which jurors were Latinos"); Stays v. Herbert, 2003 WL 22765352 at *5; Galarza v. Keane, 95 Civ. 10751, 2003 WL 1918310 at *1 (S.D.N.Y. Apr. 22, 2003) (Denying habeas petition where trial judge accepted as non-pretextual fact that the prosecutor "did not know that Felix was an Hispanic surname.").

The defense expanded its Batson argument to the prosecution's striking of African-American venirepersons as well. (See pages 6-7 above.) The prosecutor explained that she challenged venireperson Herring, who worked for the Partnership for the Homeless, because such people tend to support the defense. (See page 7 above.) For the reasons discussed above about the social worker, Justice Snyder did not err in finding that reasoning to be non-pretextual. Similarly, venireperson Virgene was married to a social worker who did drug counseling. In addition, the prosecution explained that it struck Doheney, Virgene, and Johnson because of their lack of education, or their difficulty in answering questions. (See page 7 above.) Lack of education and difficulty in answering questions have been found to be race-neutral reasons for exercising peremptory challenges. See, e.g., United States v. Alanis, 265 F.3d 576, 584 (7th Cir. 2001) ("lack of education is an acknowledged, non-discriminatory reason for striking a juror"), cert. denied, 535 U.S. 1095, 122 S.Ct. 2289 (2002); United States v. Moeller, 80 F.3d 1053, 1060 (5th Cir. 1996) ("We have previously recognized that education of a panel member may be considered in the appropriate case. . . . In this case, . . . the complex nature of the conspiracy, and the number of interconnected offenses alleged adequately supports the district court's determination that the prosecution articulated adequate race-neutral reasons for the peremptory strikes."); United States v. Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992); United States v. Welch, No. 90-5182, 931 F.2d 55 (table), 1991 WL 61312 at *1 (4th Cir. Apr. 24, 1991); United States v. Raysor, No. 96 Cr. 339, 2001 WL 761185 at *4-5 (E.D.N.Y. May 14, 2001) (peremptory challenges where potential jurors did not finish high school and had a great deal of difficulty filling out a number of questions on the questionnaire form and answering simple questions, held to be non-pretextual reasons for peremptory challenges); United States v. Santopietro, 809 F. Supp. 1016, 1020 (D. Conn. 1992); People v. Howard, 158 Misc.2d 739, 745, 601 N.Y.S.2d 548, 552 (Sup.Ct. Nassau Co. 1993).

Moreover, despite being given the opportunity to, the defense did not respond to the prosecutor's explanations as to individual venirepersons, but relied solely on its statistical claim that the prosecution struck ten of the thirteen minorities on the panel. (See page 7 above.) Thus, the defense did not claim that the prosecutor failed to challenge any non-minority venirepersons with the same characteristics as the challenged minority venirepersons. (See discussion at page 79 below.)

Ultimately, step three of the Batson analysis requires that the totality of the circumstances be considered. (See discussion at page 82 below.) Because the trial court is in the best position to observe counsel's demeanor and assess counsel's credibility, the trial court's factual determinations are entitled to great deference. (See discussion at pages 84-85 below.) Examining the record as a whole and giving proper deference to Justice Snyder's findings, Rodriguez has not rebutted the presumption of correctness accorded Justice Snyder's finding of non-pretext.

Therefore, with respect to the defense's Batson motion, Justice Snyder's decision was both procedurally and substantively proper when viewed pursuant to the appropriately deferential review standard. 2. The Prosecution's Batson Challenge to the Defense Striking of White Jurors

The prosecution's Batson motion also was decided properly. The prosecution challenged five of the defense's peremptory challenges, stating that they were improperly exercised against white males. (See page 4 above.) Justice Snyder, deciding that the numbers established a prima facie case, properly required the non-movant — the defense — to give racially neutral reasons for the peremptory challenges. (See page 4 above.)

As with the defense's Batson application analysis above, this Court need not analyze steps one and two of the Batson procedure, but can move directly to the third step. (See pages 71-73 above.) Here, Rodriguez contends that Justice Snyder "eschewed evenhanded decision making" because she denied two of the defense's peremptory challenges while allowing all of the prosecution's peremptory challenges. (Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 24-25.)

A major difference behind Justice Snyder's denial of the defense's Batson motion and granting of the prosecutor's motion is that the prosecutor demonstrated the defense's pretext by identifying minority venirepersons who the defense did not challenge who had similar characteristics to the white male venirepersons the defense did challenge. (See page 8 above.) For example, the defense said it struck white male venireperson Mulligan because he lived too close to the crime scene, but the prosecution noted that the defense had not struck three other jurors who lived in or near the Lower East Side. (See page 8 above.) Similarly, the defense claimed it struck Mr. Donnelly because he previously was a juror in two criminal cases, but the prosecution noted (and the defense admitted) that the defense had not struck other venirepersons who had prior criminal jury service. (See page 8 above.) As a result, Justice Snyder found three defense challenges including Mulligan and Faulkner to be pretextual, and seated two of the three. (See page 8 above.)

The uneven application of a facially race-neutral explanation does not, by itself, necessarily establish the invalidity of the explanation. See, e.g., United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001), cert. denied, 535 U.S. 1120, 122 S.Ct. 2345 (2002); Matthews v. Evatt, 105 F.3d 907, 918 (4th Cir.) ("Batson is not violated whenever two veniremen of different races provide the same responses and one is excused and the other is not . . . because counsel must be entitled to make credibility determinations in exercising peremptory challenges."), cert. denied, 522 U.S. 833, 118 S.Ct. 102 (1997); United States v. Spriggs, 102 F.3d 1245, 1255 (D.C. Cir.), cert. denied, 522 U.S. 831, 118 S.Ct. 97 (1997);United States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995) ("We recognize that failing to strike a white juror who shares some traits with a struck black juror does not itself automatically prove the existence of discrimination."), cert. denied, 516 U.S. 1134, 116 S.Ct. 958 (1996); United States v. Alvarado, 951 F.2d at 25 ("Decisions in other circuits have observed that an explanation for a peremptory challenge, though weakened, is not automatically to be rejected simply because it applies to a non-minority venireperson who was not challenged.").

See also, e.g., Holder v. Welborn, 60 F.3d 383, 390 (7th Cir. 1995); Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122 (1995); United States v. Valley, 928 F.2d 130, 136 (5th Cir. 1991); United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988); Besser v. Walsh, 2003 WL 22093477 at *28; Owens v.Portuondo, 1999 WL 378343 at *11.

However, as the Second Circuit has stated, "[t]he force of [counsel's] explanation for challenging a minority member of a venire is obviously weakened substantially by evidence that nonminority members to whom the same explanation applies were not challenged." United States v. Alvarado, 951 F.2d at 25;accord, e.g., United States v. Thomas, 320 F.3d 315, 318 (2d Cir. 2003) ("'Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted. Where the principal difference between them is race, the credibility of the [attorney exercising the peremptory] explanation is much weakened.'"); Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002) ("'The relative plausibility or implausibility of each explanation for a particular challenge, assessed in light of the prosecution's acceptance of jurors with similar circumstances, may strengthen or weaken the assessment of the prosecution's explanation as to other challenges and thereby assist the fact-finder in determining overall intent.'") (quotingUnited States v. Alvarado, 923 F.2d at 256); Jordan v.Lefevre, 206 F.3d 196, 201 (2d Cir. 2000); Roman v. Abrams, 822 F.2d 214, 228 (2d Cir. 1987) (upholding district court's finding that prosecutor's reasons for striking jurors were pretextual where, inter alia, only exercised against white jurors with that characteristic but not against non-white jurors with similar characteristic), cert. denied, 489 U.S. 1052, 109 S.Ct. 1311 (1989); Haywood v. Portuando, 288 F. Supp.2d 446, 461 (S.D.N.Y. 2003) ("Courts have routinely held that when characteristics are shared by excused members of the venire and those ultimately chosen to serve — and the only difference between them is race — the trial judge may rightly consider that fact as evidence of a pretext.") (citing cases); Besser v.Walsh, 2003 WL 22093477 at *28; People v. Rodriguez, 211 A.D.2d 275, 279-80, 627 N.Y.S.2d 614, 617-8 (1st Dep't 1995) ("One of the significant factors to be considered in determining whether a race-neutral explanation is non-pretextual is whether it has been applied consistently to all prospective jurors, whether or not they are members of the protected group."), appeal dismissed, 88 N.Y.2d 917, 646 N.Y.S.2d 982 (1996).

See also, e.g., Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) ("'In this circuit, it is well established that [a litigant] may not justify peremptory challenges to venire members of one race unless venire members of another race with comparable or similar characteristics are also challenged.' . . . A party can establish an otherwise neutral explanation is pretextual by showing that the characteristics of a stricken black panel member are shared by white panel members who were not stricken."), cert. denied, 513 U.S. 1083, 115 S.Ct. 737 (1995); Walters v. Mitchell, No. 99-CV-2579, 2002 WL 1751400 at *4 (E.D.N.Y. July 18, 2002) ("If crime-victim status were a genuine reason to challenge juror eight, defense counsel could reasonably be expected to object to juror fourteen on this basis as well. By not consistently challenging jurors on the basis of crime victimization, defense counsel selectively applied a race-neutral factor. This unequal application suggests that defense counsel's explanation for striking juror eight was pretextual."); Owens v. Portuondo, 1999 WL 378343 at *11.

Ultimately, step three of the Batson analysis requires that the totality of circumstances be considered. United States v.Alvarado, 951 F.2d at 26 ("As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances."); see also, e.g., United States v. Thomas, 303 F.3d 138, 144 (2d Cir. 2002);Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001); Jordan v. LeFevre, 206 F.3d at 200 ("[T]he third step of the Batson inquiry requires a trial judge to make 'an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.'"); United States v. Alvarado, 923 F.2d at 256 (remanding for "an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances");Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *29 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); United States v.Franklyn, S1 96 CR. 1062, 1997 WL 334969 at *5 (S.D.N.Y. June 16, 1997), aff'd, 157 F.3d 90 (2d Cir.), cert. denied, 525 U.S. 1027, 119 S.Ct. 563 (1998); DeBerry v. Portuondo, 277 F. Supp.2d 150, 157 (E.D.N.Y. 2003); Haywood v. Portuondo,

02 Civ. 890, 2003 WL 1563770 at *7 (S.D.N.Y. Mar. 21, 2003); Frazier v.New York, 187 F. Supp.2d 102, 114 (S.D.N.Y. 2002).

See also, e.g., Coulter v. Gilmore, 155 F.3d 912, 920-21 (7th Cir. 1998) (Batson violation occurred where state trial court failed to consider the "totality of the circumstances" when making ultimate decision as to whether prosecutor's challenges were motivated by racial discrimination);United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) ("At [the third] step of the analysis, the [trial] court has the responsibility to assess the prosecutor's credibility under all of the pertinent circumstances, and then to weigh the asserted justification against the strength of the defendant's prima facie case under the totality of the circumstances."); United States v. Stewart, 65 F.3d at 923 (at the third stage, "'the trial judge determines, in light of all the facts and circumstances, whether the [Batson challenger] has established the existence of purposeful discrimination'"); United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993) ("The court must then determine, in light of all of the facts and circumstances, whether the defendant has carried his burden to establish purposeful discrimination."), cert. denied, 510 U.S. 1129, 114 S.Ct. 1096 (1994); United States v. Mitchell, 877 F.2d 294, 303 (4th Cir. 1989); Owens v. Portuondo, 1999 WL 378343 at *12.

As the Supreme Court has instructed:

[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Ibid. In that instance the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.

Miller-El v. Cockrell, 123 S.Ct. at 1040; see also, e.g., McKinney v. Artuz, 326 F.3d at 98 ("Thus, [i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. Because the evidence on this issue is often vague or ambiguous, the best evidence often will be the demeanor of the attorney who exercises the challenge. Thus, evaluation of the [striking attorney's] state of mind based on [his or her] demeanor and credibility lies peculiarly within a trial judge's province.") (internal quotations citations omitted, brackets in original); Besser v. Walsh, 2003 WL 22093477 at *29.

Because the trial court is in the best position to observe the demeanor and assess the credibility of the attorney exercising the peremptory challenge, Miller-El v. Cockrell, 123 S.Ct. at 1041 ("Deference is necessary because a reviewing court, which analyzes only the transcript from voir dire, is not as well positioned as the trial court is to make credibility determinations."); Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869 (1991); McKinney v. Artuz, 326 F.3d at 99, the trial court's factual determinations are to be accorded "great deference," Hernandez v. New York, 500 U.S. at 364, 111 S.Ct. at 1868; Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. "To secure habeas relief [under Batson], petitioner must demonstrate that a state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was 'objectively unreasonable' in light of the record before the court." Miller-El v. Cockrell, 123 So. Ct. at 1045; accord, e.g., McKinney v. Artuz, 326 F.3d at 101 ("In the context of a habeas application from a state prisoner . . ., 'a determination of a factual issue made by a State court shall be presumed to be correct,' 28 U.S.C. § 2254(e)(1), and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence, id."); Bryant v. Speckard, 131 F.3d at 1077 ("A state court's determination whether [an attorney's] use of a peremptory challenge was motivated by discriminatory intent, in violation of Batson, is a factual determination and thus qualifies for th[e] presumption of correctness [under 28 U.S.C. § 2254(d)]."); Besser v.Walsh, 2003 WL 22093477 at *29.

Here, Justice Snyder had a full opportunity to consider all relevant facts, and her ruling was consistent with those facts. Examining the record as a whole, Rodriguez has not rebutted the presumption of correctness accorded the trial court's finding of pretext by clear and convincing evidence. As the Second Circuit stated in a similar case where the state trial court seated two jurors over defense strikes found to be discriminatory:

In light of the deferential standard appropriate to Batson inquiries under clearly established federal law and to habeas review under section 2254(e)(1), we conclude that the trial court's denial of the defense's attempted strikes of [2 jurors] was not "a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). And thus, the Appellate Division's decision to affirm the trial court's rulings was similarly not unreasonable.

McKinney v. Artuz, 326 F.3d at 101.

Rodriguez's Batson habeas claims should be denied.

VI. RODRIGUEZ'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Rodriguez's habeas petition asserts that his sentence of one hundred years to life is unconstitutional because it "exceed[s] what is necessary to protect society." (Dkt. No. 1: Pet. ¶ 13, Att., Point IV.)

Rodriguez's excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). In this case, it is undisputed that Rodriguez's sentence was within the range prescribed by state law. Rodriguez was found guilty of two counts of second degree murder, first degree conspiracy, and first degree drug possession, and sentenced to consecutive sentences of twenty-five years to life imprisonment on each, for a total of 100 years to life. (See page 41 above.) These are all class A-I felonies, Penal Law §§ 125.25, 105.17, 220.21, and carry with them maximum terms of twenty-five years to life imprisonment. Penal Law §§ 70.00(2)(a), 70.00(3)(a)(i). These convictions also are allowed to run consecutively under Penal Law § 70.25.

Accord, e.g., McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.);Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003);Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, 245 F. Supp.2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Pressley v. Bennett, 235 F. Supp.2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002); (Swain, D.J. Peck, M.J.); Schreter v. Artuz, 225 F. Supp.2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v.Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v.Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995);Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988),aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

Because Rodriguez's sentence is within the statutory range, it is not reviewable by this Court for "excessiveness." See, e.g., Briggs v. Phillips, 2003 WL 21497514 at *7 ( cases cited therein).

Rodriguez also claims that the sentence was "disproportionate" to the concurrent sentences given to Peter Chin, who Rodriguez says was "equally guilty." (Pet. ¶ 13, Att., Point IV.) Rodriguez notes that the difference between Chin and Rodriguez is that Rodriguez "exercised his right to go to trial," while Chin pleaded guilty and testified against Rodriguez. (Id.) That very difference, however, is the key to the legal issues. It is black letter law that variations in sentencing among co-defendants does not raise constitutional issues, and this is particularly so where a co-defendant who cooperates and testifies against the defendant is given a lesser sentence than the defendant who goes to trial and is convicted after trial. See, e.g., United States v. Chen Wei Ren, No. 00-1422, 20 Fed. Appx. 13, 2001 WL 1168322 at *3 (2d Cir. Sept. 21, 2001); United States v.Adams, No. 00-1734, 8 Fed. Appx. 85, 2001 WL 491652 at *1 (2d Cir. May 8, 2001) ("Absent extraordinary circumstances, a defendant has no constitutional or otherwise fundamental interest in whether a sentence reflects his or her relative culpability with respect to his or her co-defendants."); United States v.Cohen, Nos. 96-1104, 96-1370, 107 F.3d 4 (table), 1997 WL 73165 at *2 (2d Cir. Feb. 20, 1997); United States v. Tejeda, 146 F.3d 84, 87 (2d Cir. 1998); United States v. Bonnet, 769 F.2d 68, 71 (2d Cir. 1985); United States v. Bradford, 645 F.2d 115, 117 (2d Cir. 1981); Thomas v. Greiner, 111 F. Supp.2d 271, 279 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Zada v.Scully, 847 F. Supp. 325, 328 (S.D.N.Y. 1994) ("The Court finds no federal constitutional violation with respect to petitioner's claim that the sentence of twenty-five (25) years to life, or the recommendation to the parole board that he be kept 'for as long a period as is possible under the law,' . . . is excessive in comparison to those imposed under plea bargains on his co-defendants. Having gone to trial, petitioner necessarily placed the full details of the crime squarely before the sentencing judge, who acted on the facts before him.").

Rodriguez's excessive and disparate sentence claims should be denied.

VII. RODRIGUEZ'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel

For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Gomez v.Duncan, 02 Civ. 0846, 2004 WL 119360 at *27-31 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.);Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.);Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.);Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v.Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v.Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003); Dukes v.McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v.Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v.Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).

Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2535;Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850 (2002).

Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 So. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 So. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 So. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.

Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.

See also, e.g., Yarborough v. Gentry, 124 S.Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)). "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry, 124 S.Ct. at 4. B. Rodriguez's Ineffective Assistance of Trial Counsel Claims Should Be Denied

See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852;Sellan v. Kuhlman, 261 F.3d at 315.

Rodriguez asserts that his trial counsel erred by failing to "(1) call and present proclaimed eye witnesses who reported that [Rodriguez] was not the perpetrator they seen and described to the investigating police officers in the Jesse Vega murder, (2) to render proper and adequate investigation of the existing witnesses that reported [Rodriguez] was not the perpetrator or to request to the court the assignment of a private investigator for these matters as requested by [Rodriguez]; (3) to properly move to dismiss the case at the close of the People's case and the testimony as a whole by making only general statements, the same stands true when trial counsel motioned to set aside the verdict failing to properly present and preserve these issues to the trial court for its address and appellate review respectively. As a whole trial counsel entirely failed to subject the prosecution's case to a meaningful adversarial testing." (Dkt. No. 16: State Supp. App. Ex. G: Rodriguez § 440 Br. at 1-2.)

1. Counsel's Alleged Failure to Call Eyewitnesses

Courts in this Circuit have made clear that "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357 (1987); see, e.g., United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) ("A trial counsel's 'decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.' United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."), cert. denied, 123 S.Ct. 2110 (2003).

Accord, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *31 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *25 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *37 (S.D.N.Y. June 17, 2003) (Peck, M.J.).

See also, e.g., United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."), cert. denied, 123 So. Ct. 1949 (2003); United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.),cert. denied, 522 U.S. 846, 118 S.Ct. 130 (1997); Nieves v.Kelly, 990 F. Supp. 255, 263-64 (S.D.N.Y. 1997) (Cote, D.J. Peck, M.J.); Rodriguez v. Mitchell, 92 Civ. 2083, 1993 WL 229013 at *3, 5 (S.D.N.Y. June 24, 1993) ("Counsel's decision not to call a witness, if supported by valid tactical considerations, does not constitute ineffective assistance of counsel.").

More importantly, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court 'will not second-guess trial strategy simply because the chosen strategy has failed . . .,' especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v.Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995); accord, e.g., Gomez v.Duncan, 2004 WL 119360 at *31; Montalvo v. Annetts, 2003 WL 22962504 at *26 ( cases cited therein); Skinner v. Duncan, 2003 WL 21386032 at *37; see, e.g., United States v.Vegas, 27 F.3d 773, 777-78 (2d Cir.), cert. denied, 513 U.S. 911, 115 S.Ct. 284 (1994); Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992) (counsel not ineffective for failing to call alibi witnesses he did not believe were credible, especially where counsel "presented a theory of the case by pointing out the 'weaknesses in the state's case and rais[ing] serious questions about the credibility of the state's sole eyewitness.'");Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) (counsel not ineffective for not securing alibi witnesses where counsel presented a vigorous defense).

See also, e.g., LaFrance v. Mitchell, 93 Civ. 0804, 1996 WL 741601 at *2 (S.D.N.Y. Dec. 27, 1996) ("It is quite evident that the decision to omit this [alibi] defense was a sound one and that the basis for an effective alibi defense simply did not exist."); Johnson v. Mann, 92 Civ. 1909, 1993 WL 127954 at *1 (S.D.N.Y. Apr. 20, 1993) (counsel not ineffective for strategic decision to attack identification of petitioner rather than to rely on an "inherently suspect" alibi defense);Munoz v. Keane, 777 F. Supp. 282, 288-89 (S.D.N.Y. 1991) ("Given the overwhelming evidence that [petitioner] participated in the drug transaction at issue, it was reasonable for defense counsel to conclude, as a strategic matter, that presenting testimony of the alleged alibi witnesses would be damaging to [petitioner's] case."), aff'd sub nom. Linares v.Senkowski, 964 F.2d 1295 (2d Cir.), cert. denied, 506 U.S. 986, 113 S.Ct. 494 (1992); Minor v. Henderson, 754 F. Supp. 1010, 1017-18 (S.D.N.Y. 1991) (counsel not ineffective for tactical choice not to present alibi defense where evidence petitioner believed supported such defense did not exist);Buitrago v. Scully, 705 F. Supp. 952, 954 (S.D.N.Y. 1989) (counsel not ineffective for failing to present alibi witness where petitioner fails to show witness would provide alibi).

In any event, in light of the extremely strong evidence against Rodriguez, including testimony of his former accomplices, any deficiency by counsel still would not satisfy the secondStrickland prong, of showing that Rodriguez was prejudiced. (See cases cited at page 90 above.)

Rodrguez's habeas claim that trial counsel was ineffective for not calling certain witnesses should be denied. 2. Counsel's Failure to Properly Investigate and Failure to Request Assignment of a Private Investigator

Rodriguez also claims that his trial counsel was ineffective because he did not properly investigate the witnesses and did not request a private investigator as Rodriguez requested. (Dkt. No. 16: State Supp. App. Ex. G: Rodriguez § 440 Br.) This claim is unclear to this Court, but appears to be another version of his claim that counsel failed to call certain eyewitnesses — i.e., counsel should have hired an investigator to find and interview those witnesses. Since the failure to call those witnesses is not ineffectiveness, the failure to hire an investigator similarly does not constitute ineffective assistance of counsel.

If Rodriguez's claim goes beyond investigating those supposed eyewitnesses, it still fails. In Strickland, the Court specifically addresses the issue of investigations: "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Rodriguez does not set forth what the investigator failed to investigate and in what way this amounted to less than reasonable assistance of counsel. "Because this claim is merely a conclusory allegation, [Rodriguez] has failed to establish that his counsel's performance was deficient. [Rodriguez's] bald assertion that counsel should have conducted a more thorough pretrial investigation fails to overcome the presumption that counsel acted reasonably." Matura v. United States, 875 F. Supp. 235, 237 (S.D.N.Y. 1995); accord, e.g., Boyd v. Hawk, 965 F. Supp. 443, 452 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

Furthermore, due to the overwhelming evidence of Rodriguez's guilt, including the testimony of numerous former gang members who worked with or for Rodriguez, it is unlikely that additional investigation would have affected the outcome of the trial. See, e.g., Boyd v. Hawk, 965 F. Supp. at 452;Stubbs v. Thomas, 590 F. Supp. 94, 101 (S.D.N.Y. 1984) (although court-appointed investigator's performance was sub-standard, due to overwhelming evidence of guilt there was no "reasonable probability that absent the investigative errors, the fact finder would have had a reasonable doubt respecting guilt."); see also, e.g., Jones v. Hollins, 884 F. Supp. 758, 766 (W.D.N.Y.) (ineffective assistance of counsel not proven where petitioner fails to show that result of trial would have been different if counsel had further investigated defendant's claim of self-defense), aff'd mem., No. 95-2279, 1995 WL 722215 (2d Cir. Nov. 30, 1995).

3. Counsel's Failure to Properly Move to Dismiss and Preserve Issues

Rodriguez's third ineffective assistance of trial counsel claim alleges that counsel's general and non-specific motion to dismiss the case on the grounds that the prosecution had not made a prima facie case or proved Rodriguez's guilt beyond a reasonable doubt and his similarly general motion to set aside the verdict "were simply not sufficient to preserve the specific challenges to the sufficiency and weight of the evidence that defendant may raise on future appeal." (Dkt. No. 16: State Supp. App. Ex. G: Rodriguez § 440 Br. at 8.) Here, Rodriguez is essentially asserting that his trial counsel erred by failing to properly challenge the sufficiency and weight of the evidence.

This trial counsel ineffectiveness claim should be denied, as the evidence was legally sufficient to prove all claims against Rodriguez. (See Point IV above.) Furthermore, Rodriguez did raise a sufficiency and weight of the evidence claim on direct appeal (see Dkt. No. 15: State App. Ex. A: Rodriguez 1st Dep't Br. at 31-37), and the First Department did not find any procedural bar but rather denied the claims on the merits. (See page 63 above.) Because Rodriguez's sufficiency of the evidence claim is meritless, his trial counsel cannot be faulted for allegedly failing to properly preserve such a claim (especially when the First Department did not find he claim to be procedurally barred). (See, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *34 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *28 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v.Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) ( cases cited therein.).

CONCLUSION

For the reasons set forth above, the Court should deny Rodriguez's habeas petition in its entirety, and a certificate of appealability should not be issued.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Rodriguez v. Senkowski

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

ANALYSIS

CONCLUSION

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Rodriguez v. Senkowski

Rodriguez v. Senkowski

Case Details

Citations

Citing Cases

Rodriguez v. Senkowski

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

ANALYSIS

CONCLUSION

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Rodriguez v. Senkowski

Rodriguez v. Senkowski

Case Details

CitationsCopy Citation

Citing Cases

Citations