# Ramos v. Lee

> District Court, E.D. New York · July 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10306607

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306607

## How later opinions describe it (automated extraction)

- finding that, in response to a jury note requesting a police report that was not in evidence, the trial court did not err by denying defendant’s request to inform the jury there was testimony regarding the report
- holding that “[w]hether the properly admitted unsworn testimony of the victim was sufficiently corroborated in accordance with the requirements of New York C.P.L. 60.20(3) is a matter left to the state courts”
- finding that the trial court correctly informed the jury that it was not entitled to a Grand Jury transcript as it was not in evidence

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DANIEL RAMOS,
Petitioner,
MEMORANDUM AND ORDER
-against- 19-CV-1125(JS)

WILLIAM LEE,

Respondent.
-------------------------------------X
APPEARANCES

For Petitioner: Daniel Ramos, pro se
#15-A-3367
Great Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582

For Respondent: Cristin N. Connell, Esq.
Brian Witthuhn, Esq.
Nassau County District Attorney’s Office
262 Old Country Road
Mineola, New York 11501

SEYBERT, District Judge:
Pending before the Court is the pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (hereafter,
the “Petition”) of Petitioner Daniel Ramos (“Petitioner”). (See
Petition, ECF No. 4-1.)1 Following a jury trial, Petitioner was

1 Petitioner’s February 25, 2019 petition included the full
names of two minor children involved in the underlying incident.
(ECF No. 1.) Thereafter, and in response to the Court’s March
1, 2019 Order, Petitioner filed an amended petition on March 14,
2019, supplanting the original petition, redacting the names of
the minor children and referring to them only by their initials.
(ECF No. 4.)
convicted of one count of New York Penal Law § 130.50(3),
Criminal Sexual Act in the First Degree, and one count of New
York Penal Law § 260.10(1), Endangering the Welfare of a Child.

Now seeking habeas relief, Petitioner raises eight claims: (1)
the trial court erred by deeming the complainant swearable; (2)
the trial court violated Petitioner’s Sixth Amendment rights to
present a defense and confront the witnesses against him; (3)
the trial court erred by failing to meaningfully respond to a
jury note; (4) the trial court’s bias against the defense
violated Petitioner’s Due Process rights to a fair trial and to
present a defense; (5) the trial court erred in admitting
improper bolstering testimony regarding alleged prior incidents
of abuse; (6) the jury’s verdict was against the weight of the
evidence; (7) the sentence imposed was unnecessarily harsh and
excessive; and, (8) because there was no probable cause for his

arrest, and his involuntary written statement was used against
him at trial, Petitioner’s Fourth Amendment rights were
violated. (-Se-e- Petition, ECF pp. 3-17.) For the following
reasons, the Petition is DENIED in its entirety.
BACKGROUND2
I. The Offense Conduct and Subsequent Investigation
On October 16, 2013, Crystal Ramirez walked into her
kitchen and saw her six-year-old daughter, M.R.,3 with her pants

and underwear around one ankle, and Petitioner standing directly
behind her. (See Tr. 621:3-11.) Crystal asked what was going
on and M.R. pointed to Petitioner and stated “he licked my
coochie.” (Id. at 621:25-622:6.) Crystal picked up her
daughter, started dressing her, and yelled at Petitioner to get
out. (See id. at 622:12-20.) Once Petitioner left her
apartment, Crystal locked the door and called 911. (See id. at
622:25-6.)
Police Officer Joseph Boccio (“Officer Boccio”) of the
Nassau County Police Department (“NCPD”) responded to the 911
call at Crystal’s apartment. (See id. at 694:25-695:5.) Upon

arriving there, Officer Boccio observed Petitioner approximately
twenty feet away, standing in the parking lot and leaning

2 The background is drawn from the transcript of Petitioner’s
combined Mapp/Dunaway/Huntley suppression hearing (“Hr’g Tr.”)
(see ECF No. 7-1), the transcript of the state court’s oral
ruling on Petitioner’s suppression motion (“Ruling Tr.”) (see
ECF No. 7-13, beginning at ECF p. 123), and the transcripts of
Petitioner’s state court criminal trial (“Tr.”) (see ECF Nos. 7-
2 (pp. 1-844), 7-3 (pp. 845-1644)).

3 On October 16, 2013, the complainant, M.R., was six years old,
and her brother, S.R., was ten years old. (See Tr. 611:4-9,
611:18-24.) Since both children were minors when the underlying
events occurred, the Court shall refer to them by their initials
only. See FED. R. CIV. P. 5.2(a)(3).
against a car, but first approached Crystal and M.R. to speak
with them regarding what happened. (See id. at 695:6-696:13.)
They both reported that Petitioner licked her M.R.’s “coochie.”

(See Hr’g Tr. 8:10-14; 20:14-18.)
Officer Boccio then approached Petitioner and asked
him what happened. (Tr. 697:20-23.) Petitioner stated, “[S]he
said I raped her daughter. Please arrest me.” (Id. at 698:1-
2.) When Officer Boccio asked for clarification, Petitioner
replied, “[I]t was stupid, I licked her once in the bedroom.”
(Id. at 698:7-10.) Thereafter, Officer Boccio placed Petitioner
under arrest. (See id. at 698:11-13.) He was transported to
the NCPD Special Victims Squad (“SVS”) in Bethpage, New York,
while M.R. and Crystal were taken by ambulance to Nassau County
University Medical Center (“NCUMC”). (See id. at 699:11-22;
624:1016.)

At NCUMC, Kathleen McAllister (“McAllister”), a sexual
assault nurse examiner, conducted an examination of M.R. and
collected evidence using a sexual offense examination collection
kit, commonly referred to as a rape kit. (See Tr. 822:2;
823:1025; 824:17-19.) During the examination: McAllister
collected M.R.’s pajama pants, underwear, and a vulva swab; and,
M.R. reported to McAllister that “Daniel licked my coochie.”
(See id. at 826:20-22; 830:19-23; 831:21-24; 834:21-25.)
Detective Maurice Baran (“Detective Baran”) was the lead special
victims detective assigned to investigate the incident (see id.
at 936:19-22), who: responded to NCUMNC; interviewed Crystal and
M.R.; and, took possession of the evidence collected by

McAllister. (See id. at 834:12-16; 835:1-4; 938:12-939:10.)
After Detective Baran left NCUMC, he went to the
Bethpage SVS where he interviewed Petitioner. (Tr. 1020:8-13.)
After Petitioner waived his Miranda rights, Petitioner made
admissions, including that he had “told her I was going to
tickle her and I pulled down her pants and underwear and tickled
her pussy with my mouth.” (Id. at 963:13-14; 952:11-19; 950:20-
951:7.) Detective Baran typed up Petitioner’s statement, which
Petitioner reviewed, corrected, and then signed. (See id. at
956:5-960:12.) In addition to his written statement,
Petitioner: wrote a letter of apology in Spanish to M.R. and
Crystal (see id. at 965:11-19); and consented to give a DNA

sample, taken by buccal swab, which was collected by Detective
Baran. (See id. at 967:3-16.)
II. The Suppression Hearing and Trial
On September 25, 2014, a suppression hearing was held
in New York Supreme Court, Nassau County, before the Honorable
Teresa K. Corrigan. Petitioner argued there was no probable
cause for his arrest, and sought suppression of his oral and
written statements, and the buccal swab taken from him while in
custody. (See generally Hr’g Tr.) In opposition, the
prosecution presented three witnesses to testify regarding the
circumstances surrounding Petitioner’s arrest, statements, and
buccal swab: Officer Boccio, Detective Baran, and Detective

Reinaldo Pacheco (“Pacheco”).
Officer Boccio testified: about responding to the 911
call of a woman seeking to report the sexual abuse of her six-
year-old daughter (see Hr’g Tr. 7:6-12); thereafter, speaking
with Crystal and her daughter, M.R.; and, then, speaking with
Petitioner outside of Crystal’s apartment (see id. at 7:13-8:9,
9:12-16). Officer Boccio further testified: about asking
Petitioner why he was there and what had occurred (see id. at
10:1-3); that Petitioner responded, “Arrest me. She’s saying I
raped her daughter,” (id. at 10:4-7); upon a request for
clarification, Petitioner stated, “It was a mistake. I licked
her once in the bedroom.” (Id. at 10:8-18.) Officer Boccio

also testified that: at the time Petitioner made his statements
to Officer Boccio, Petitioner was not under arrest or
handcuffed; he (Boccio) had his firearm holstered; and, after
speaking with Petitioner, he placed Petitioner under arrest.
(-Se-e- -id-.- at 10:23-11:16.)
Detectives Baran and Pacheco testified to the
circumstances of Petitioner’s statements taken at the NCPD SVS.
The testimony elicited from them included that: after observing
Petitioner spoke with a Spanish accent, Detective Baran asked
whether Petitioner would prefer his rights read to him in
Spanish (see Hr’g Tr. 101:7-16 (Baran)); Detective Pacheco, a
Spanish speaker, read Petitioner his Miranda rights in Spanish

from a Miranda card (see id. at 101:17-24 (Baran), 219:7-13
(Pacheco)); after Petitioner’s Miranda rights were read to him,
both Detectives Baran and Pacheco signed the card, and
Petitioner wrote “Si” on the card in three places and then
signed his name at the bottom; (see id. at 104:18-105:4 (Baran),
222:3-13 (Pacheco)); and, after Detective Pacheco left the
interview room, Detective Baran and Petitioner continued to
speak to each other in English without difficulty (see id. at
105:7-9 (Baran), 222:14-223:9 (Pacheco)).
Detective Baran further testified that: he asked
Petitioner what happened between him and M.R., and Petitioner
responded that he was just tickling her and playing with her

(see Hr’g Tr. 105:19-23); Petitioner agreed to give a written
statement, which was typed by Detective Baran (see id. at
105:24-106:21); after the statement was prepared, Petitioner
read the statement, made corrections, and wrote his initials
next to the corrections (see id. at 107:13-108:2, 108:17-22);
Petitioner also wrote an apology letter in Spanish to Crystal
(see id. at 113:24-114:3); and, Petitioner consented to a buccal
swab (see id. at 117:14-22). Detective Pacheco also testified
that he read to Petitioner in Spanish the statement prepared by
Detective Baran and that, thereafter, Petitioner signed it.
(-Se-e- -id-.- at Tr. 225:3-20.)
Subsequently, in a bench ruling, the court denied

Petitioner’s suppression motion in all respects. (See Ruling
Tr. 130:20-21.) Regarding probable cause, the hearing court
stated, “Based on the statement of the mother after her
observations of defendant and the child, the statement of the
child and the statement of the defendant at the scene, the
police had probable cause to arrest the defendant.” (See id. at
129:15-19.) Regarding Petitioner’s oral statement at the scene,
the court stated that it “was not subject to Miranda [sic], as
defendant was not custody, nor was he being interrogated.” (Id.
at 129:19-21.) Regarding Petitioner’s written statement, the
court ruled that “[s]uch statement was freely and voluntarily
and intelligently provided after a knowing, intelligent and

voluntary waiver of his Miranda [sic] rights.” (Id. at 130:7-
9.) The court also noted that of Petitioner’s ability to speak
and understand English, his “desire to speak in English after
receiving warnings in Spanish does not negate the validity of
the warnings or the statement.” (Id. at 130:4-6.)
Additionally, “[t]he defendant clearly speaks and understands a
good amount of English, but it was prudent to give Miranda [sic]
warnings in Spanish.” (Id. at 130:15-17.)
Petitioner’s jury trial commenced in early May 2015,
also before Honorable Teresa K. Corrigan. (Tr. at 1.) Prior to
trial, the court denied the prosecution’s Molineux application

seeking to introduce prior bad acts and uncharged crimes,
specifically that on at least one occasion prior to October 16,
2013, Petitioner had oral sexual contact with M.R.’s vagina
while alone with her in Crystal’s bedroom, and exposed his penis
and used it to make contact with M.R.’s buttocks. (See Tr.
8:12-9:3, 15:1-5.) However, the court also stated that if
defense counsel were to “open the door” to the incident, the
court would revisit its ruling. (Id. at 15:9-16:6.)
During the trial, the prosecution presented testimony
of numerous law enforcement witnesses involved in the
investigation, expert witnesses, and civilian eyewitnesses.
(See Tr. 225:18-1012:4). Crystal Ramirez testified that on

October 16, 2013, she resided in Roosevelt, New York, with her
two children, M.R. and S.R., who were six years old and eleven
years old, respectively. (See id. at 610:4-9, 610:23-611:1, 4-
9, 18-20.) Crystal further testified that she: knew Petitioner
through her children’s father, having met him approximately
thirteen to fourteen years earlier (see id. at 613:4-11); had
become closer with Petitioner in the year leading up to the
incident (see id. at Tr. 613:23-24); and, allowed Petitioner to
help her by driving her different places and babysitting her
children (see id. at 613:23-24, 615:5-7; 630:15-24).
As to October 16, 2013, Crystal testified that:

because she was upset after learning a close friend had passed
away, Petitioner came to her home with alcohol and the two
proceeded drinking (Tr. 615:14-20, 616:15-20, 617:1-8); her
children were still at school when Petitioner first arrived (see
id. at 616:18-20); when M.R. and S.R. arrived home from school
at approximately 2:45 p.m., Crystal and Petitioner were still
drinking on the outside porch (see id. at 618:2-10); and both
M.R. and S.R. went into the apartment while Crystal and
Petitioner remained on the porch (see id. at 618:17-20).
Crystal continued to explain that: at some point,
another acquaintance stopped by to smoke a cigarette with
Crystal on the porch (Tr. 618:21-619:7); at that time,

Petitioner went into the apartment for about ten minutes (see
id. at 619:8-20); and, after the acquaintance left, she went
into the apartment, walked past S.R. on the couch in the living
room, and went into the kitchen (see id. at 620:4-22.) She
further testified that when she walked into the kitchen, Crystal
saw M.R. with her pants and underwear around one ankle and
Petitioner standing behind her, looking “caught, ashamed,
embarrassed.” (Id. at 621:3-20.) M.R. told Crystal that
Petitioner licked her “coochie,” at which point Crystal told
Petitioner to get out and called the police.4 (See id. at 622:2-
4; 622:18-20; 623:3-6.)
McAllister testified regarding her interaction with

M.R. at the NCUMC, including: administering the rape kit; M.R.’s
physical examination; interviewing M.R.; and, the evidence
collection. (See Tr. 822:2; 823:1025; 824:17-19; 826:20-22;
830:19-23; 831:21-24; 834:21-25.) McAllister also testified
about giving Detective Baran the sex offense evidence collection
kit. (See id. at 834:8-16.)
The prosecution also presented DNA evidence through
the testimony of Christopher Chillseyzn, an expert in forensic
genetics and DNA analysis from the Nassau County Medical
Examiner’s Office. (See Tr. 846-882.) He testified that he
reviewed and analyzed the sexual offense evidence collection kit
taken from M.R. by McAllister. (See id. at 862:14-22).

Chillseyzn’s examination revealed the presence of both saliva
and male DNA on M.R.’s vulva swab and the presence of saliva in
two stains, Stains A-1 and A-2, on M.R.’s underwear. (See id.
at 869:19-870:3; 870:23-871:3; 872:2-9.) As to the Stains,

4 While Crystal testified that she called 911, the prosecution
did not enter the 911 call or radio run into evidence. (See Tr.
623:3-6.) During cross-examination, defense counsel sought to
enter Crystal’s 911 call to refresh her recollection regarding
the verbiage she used when she made the call. (See id. at
647:18-25; 648:11-649:2.) The court ruled that the tape could
be played for Crystal outside the presence of the jury to
refresh her recollection. (See id. at 650:22-651:12.)
Chillseyzn testified that: he compared the DNA profiles found in
them to the buccal swab taken from Petitioner (see id. at 876:3-
14); Stain A-1 contained DNA consistent with Petitioner and his

male patrilineal relatives (see id. at 876:15-20); while Stain
A-2 had two male DNA contributors, the major male contributor
matched Petitioner’s profile (see id. at 877:4-8); and, the
matching DNA profiles (a) from Stain A-1 could be expected to be
found in one in one thousand one-hundred seventy-one
individuals, and (b) from Stain A-2 could be expected to be
found in approximately one in one-hundred seventy-five million
individuals (see id. at 877:13-22).
M.R. and her brother S.R. also testified. (See
generally Tr. 764-816.) Prior to M.R.’s testimony, the trial
court conducted a swearability hearing to determine whether she
understood the oath and could be sworn in as a witness. (See Tr.

750-761.) During that hearing examination, M.R. stated: she was
seven years old and in second grade (see id. at 752:20-25); she
understood she was in court because of Petitioner (see id. at
750:22-24); that “[y]ou have to tell the truth” and if you do
not, then “you lie” (see id. at 751:7-13). M.R. demonstrated
her understanding of what constituted a lie by answering
hypothetical questions. (See id. at 17-24; 754:13-19.) M.R.
stated she understood that lying in court would be wrong and had
consequences, explaining that if she lies at home she gets
punished. (See id. at 751:25-19.) Over defense counsel’s
objection, the court found M.R. was swearable as she understood
the difference between the truth and a lie. (See id. at 757:2-

758:13.) Thereafter, M.R. testified, recounting what happened
on October 16, 2013 (see id. at Tr. 767-770), and, in
particular, testifying that Petitioner licked her “coochie” in
the kitchen (See id. at 768:4-8.) In cross-examination, defense
counsel questioned M.R. regarding prior incidents of alleged
sexual abuse by Petitioner, i.e., what Petitioner had allegedly
done to her, how many times it occurred, and whether she
disclosed this to anyone. (See id. at 780:19-783:19; 785:6-
786:2; 786:18-790:3; 794:20-795:6; 795:16-796:7; 797:8-798:14;
800:3-801:21; 803:10-804:21.) Relatedly, during Detective
Baran’s testimony, the trial court permitted Baran to testify
that, while at the NCUMC, M.R. reported to him that Petitioner
had sexually abused her before.5 (Tr. 940:6-15.)

M.R.’s brother, S.R., also testified, stating: that
while he was playing video games in the living room, Petitioner
came into the apartment and went into the kitchen with M.R. and
closed the door (Tr. 674:11-675:1); he then saw Crystal go into
the kitchen and start screaming; he could see inside the kitchen
and that M.R.’s pants were on the floor (see id. at 676:22-25);

5 Earlier, the court had ruled, over objection, that defense
counsel’s cross examination of M.R. opened the door to testimony
regarding prior incidents of abuse. (See Tr. 908-931.)
and, he then heard Petitioner first say that M.R. was lying, but
later heard Petitioner admit that he did it (see id. at 677:16-
24.)

At the close of the prosecution’s case, defense
counsel moved for dismissal pursuant to New York Criminal
Procedure Law § 290.10, which the court denied. (Tr. 1144:4-
1146:20.) Thereafter, defense counsel presented three character
witnesses, i.e., Petitioner’s son, David Ramos; Petitioner’s
daughter-in-law, Stephany Figueroa-Ramos; and, David Ramos’
former girlfriend, Christy Hernandes, who each testified
regarding Petitioner’s reputation for kindness and gentleness
towards children. (See id. at 1161-1166; 1166-1175;1176-1182.)
The defense also introduced the expert testimony of Dr. Karl
Reich, a DNA analysis expert, who testified that the amount of
male DNA found was extremely small and not consistent with it

being from saliva. (See id. at 2100:21-1201:7.) He further
testified that the vulva swab did not contain a male DNA
profile, which was also inconsistent with the presence of
saliva. (See id. at 1201:8-14.) On cross-examination, Dr.
Reich conceded that both Stains found on M.R.’s underwear
contained saliva and Petitioner’s DNA (see id. at 1254:7-
1255:1), but maintained that amount of DNA found in the
underwear was more consistent with Petitioner touching the
underwear with his fingers rather than licking M.R.’s vagina
(see id. at 1217:5-11; 1263:20-1264:8).
Petitioner testified in his own defense (see generally

Tr. 1273-1368), first providing some general background, e.g.:
he knew Crystal and her children, and would drive Crystal places
and lend her money that was never paid back (see id. at 1279:13-
16; 1280:7-17); and, he would take M.R. and S.R. to get food,
with Crystal’s permission, and would sometimes babysit them (see
id. at 1281:3-5; 1290:5-1291:1). Regarding October 16, 2013,
Petitioner testified: he went to Crystal’s apartment after she
called him twice asking him to come over (see id. at Tr. 1300:4-
8); he bought Crystal Long Island iced teas, a sandwich, and
cigarettes (see id. at 1300:9-15); he and Crystal sat on the
porch while she drank and smoked (see id. at 1300:25-1301:4); at
3:15 p.m., the children came home from school (see id. at

1301:6-18); and, he took M.R. inside to help her with her
homework, and when M.R. finished, he went back outside (see id.
at 1301:14-1302:11).
Petitioner continued his testimony about the afternoon
of October 16, stating: while outside with Crystal, he asked her
permission to go inside and use the bathroom (Tr. 1302:17-22);
when inside, he saw M.R. partially naked from the waist down and
holding her clothes (see id. at 1302:22-1303:7); he believed
M.R. was changing her clothes after school (see id. at 1302:23-
25); M.R. tried to follow him into the bathroom but he told her
to wait outside and put on her clothes (see id. at 1303:8-18.)
According to Petitioner, when he got out of the bathroom: he

brought M.R. into the kitchen where he took the clothes from her
and started to dress her (see id. at 1304:10-12, 1304:19-
1305:1); he stood M.R. up for her to pull up her panties and
pajama bottoms, which where around her knees (see id. at 1305:3-
15); and, Crystal came into the kitchen as M.R. bent down to
pull up her clothes (see id. at 1305:14-15). Petitioner stated
that Crystal questioned him, asking what was going on (see id.
at 1305:17-18) and then asked M.R. whether Petitioner “was
eating her coochie” and M.R. responded “yes.” (Tr. 1305:19-21.)
As to the subsequent investigation, Petitioner
testified: he never made any of the statements to which Officer
Boccio testified (Tr. 1311:11-25); he was taken to the police

precinct where he was interviewed by Detective Baran (see id. at
1312:4-10); he signed the Miranda rights card only because the
detectives told him to do so, and his Miranda rights were not
actually explained to him (see id. at 1312:11-1313:8).
Additionally, while Petitioner acknowledged that he made some of
the statements contained in the written statement, he denied
ever telling Detective Baran that he tickled M.R. with his
mouth. (See Tr. 1313:22-1314:22.) Moreover, Petitioner
testified that Detective Pacheco never translated the written
statement into Spanish. (See Tr. 1322:4-8.)
In rebuttal, the prosecution called Joshua Hanson, an

expert in child sexual abuse and sexual perpetration (see
generally Tr. 1375-1387), who testified about, inter alia, the
concept of grooming, with the perpetrator: first ingratiating
himself with the child and the family to establish likeable and
being safe (see id. at 1383:4-9); thereafter, gaining enough
trust to be alone with the child (see id. at 1383:10-11); and,
then sexualizing the relationship (see id. at 1383:11-12).
Thus, according to Hanson, one strategy a perpetrator uses is to
appear kind and gentle towards children. (See id. at 1383:13-
19).
Relevant to the instant Petition, throughout the trial
defense counsel made several applications that were denied by

the trial court. For example: During Crystal’s cross
examination testimony, defense counsel made an application
seeking therapy records. (See Tr. 636:10-637:1.) Outside the
presence of the jury, defense counsel argued that because the
prosecution asked Crystal whether M.R.’s behavior changed after
the date of the incident, the door was opened to this line of
inquiry; thus, defense counsel sought to establish that the
children were attending therapy at South Shore Child Guidance
Center prior to the incident. (See id. at 636:10-20.) Defense
counsel had prepared a subpoena seeking the therapy records (see
id. at 636:21-637:1) and, in support of his application and to
show it was not a fishing expedition, defense counsel (1) made

an offer of proof that he received information that Crystal
watched pornography in front of her children, and (2) argued
that (a) as a result, M.R. was unable to distinguish between
reality and what she saw in pornographic films, and (b) this was
the reason that the family was in therapy. (See id. at 637:14-
23.) The prosecution opposed this application as irrelevant,
but informed the court that there were two prior unrelated
incidents that the prosecutor speculated were the true basis for
therapy: (i) that Crystal was the victim of domestic violence by
the children’s father which resulted in an arrest for assault in
2012; and (ii) M.R.’s brother, S.R., was the victim of an
attempted criminal sexual act by his uncle, his father’s

brother. (See id. at 642:1-22.) The trial court agreed to sign
the subpoena and review the therapy records in camera to inspect
them for relevance prior to disclosing the records to counsel.
(See id. at 642:23-643:17.) Thereafter, defense counsel
continued his cross examination of Crystal; he did not question
Crystal about the abuse S.R. experienced by his uncle. The
trial court sustained an objection against defense counsel
questioning whether Crystal watched pornography in her house,
but allowed counsel to ask S.R. and M.R. if they had ever seen
pornographic movies; they each testified that they had not.
(Tr. 689:5-9; 795:9-11.)
Prior to M.R.’s testimony, the court received the

therapy records from South Shore Child Guidance Center; after,
in camera review, the court: disclosed to counsel one page from
those records as directly relevant to the case (see Tr. 737:5-
11); there was nothing in the therapy records demonstrating that
M.R. had any difficulty distinguishing between reality and
fantasy or understanding truth telling (see id. at 737:12-20);
and, while maintaining confidentiality, stated that the basis
for therapy was not pornography, as suggested by defense
counsel, but a history of domestic violence and some
disciplinary or behavioral issues (see id. at 737:21-738:5).
Thereafter, defense counsel made multiple applications
to recall Crystal as a witness to question her regarding S.R.’s

prior abuse by his uncle. (See, e.g., Tr. 895:1-897:19; 1081:5-
1086:16; 1292:22-1294:20; 1370:1-8.) Defense counsel informed
the court that his office represented S.R.’s uncle in the abuse
case and, based on his review of the file, reported that in
2007, when S.R. was three and before M.R. was born, Crystal
found the uncle attempting to force S.R. to perform oral sex.
(See id. at 1082:11-1083:11). As such, defense counsel argued
that the prior incident affected Crystal’s state of mind such
that she overreacted to what was a harmless situation. (See id.
at 1083:12-1084:19.) The trial court denied each motion,
explaining there were multiple grounds for its denials, i.e.,
the remoteness of the 2007 incident involving S.R., before M.R.

was born, compared to the incident with Petitioner and Crystal’s
testimony at trial (see id. at 1097:1-8); that Crystal did not
claim to have witnessed Petitioner touching or licking M.R., but
rather reacted to what M.R. told her (see id. at 1097:23-
1098:3); and, considering the case evidence, it was unnecessary
to recall Crystal to answer questions on a collateral issue (see
id. at 1099:17-1100:5).
At the close of all the evidence, defense counsel and
the prosecution delivered their summations to the jury, the
court instructed the jury on the law, and the jury deliberated.
(See Tr. 1084:7-1139:25.) During deliberations, the jury sent a
note to the court requesting “to the [sic] hear the 911 call

from Crystal or the transcript, if it was on the record. If
it’s on the record, can we see slash hear it.” (Id. at 1597:13-
16 (transcript of the court reading the jury note into the
record).) Defense counsel requested that the court clarify with
the jury whether it wanted to hear a readback of Crystal’s
testimony regarding the 911 call, but the court declined. (See
id. at 1599:3-15.) Instead, the court informed the jury that
neither the call nor transcript of it was part of the record
evidence.6 (See id. at 1600:20-25.) On May 29, 2015, the jury
convicted Petitioner of Count One, Criminal Sexual Act in the
First Degree, and of Count Two, Endangering the Welfare of a

Child. (See id. at 1637:20-1638:9.)
III. The Sentence
On July 24, 2015, Petitioner was sentenced by the
court. (See Sent’g Tr., ECF No. 7-5.) The prosecution
requested a sentence of twenty years’ incarceration, which was
less than the maximum sentence permissible under the law. (See
id. at 2:25-5:3.) Defense counsel and Petitioner both addressed
the court, and Petitioner maintained his innocence. (See id. at
5:7-15:6,17:2-7.) On Count One, the court sentenced Petitioner
to fifteen years’ incarceration with ten years’ post-release
supervision; on Count Two, the court imposed a sentence of one
year’s incarceration; the sentences were ordered to run

concurrently. (See id. at 18:24-19:11.)
IV. The Appeal
In August 2017 and through counsel, Petitioner
appealed his conviction and sentence to the Second Department

6 The Court notes that there appears to be a typographical error
in the transcript, which states “With regards to your request to
hear the 911 call from Crystal or the transcript, if it was on
the record, another 911 call or the transcript of that call is
part of the evidence in this case.” (Tr. 1600:20-23.)
Contextually, however, it is clear that the trial court informed
the jury that neither the call nor the transcript of the call
was part of the evidence in the case.
(see generally Appellant Br., ECF No. 7-6), arguing: (1) the
trial court erred in determining that M.R. was swearable (see
id. at 23-27); (2) his Sixth Amendment rights to present a

defense and confront the witnesses against him were violated by
his not being allowed to be recalled Crystal as a witness (see
id. at 28-34); (3) the court erred by failing to meaningfully
respond to a jury note (see id. at 35-36); (4) the trial court’s
bias against the defense throughout the trial violated his right
to a fair trial and his right to present a defense (see id. at
at 37-41); (5) the trial court erred by allowing Detective Baran
to testify regarding prior incidents, which constituted improper
bolstering (see id. at at 42-46); (6) the jury’s verdict was
against the weight of the evidence (see id. at at 47-55); (7)
the sentence imposed was unnecessarily harsh and excessive (see
id. at 56-61); and (8) his Fourth Amendment right against

unreasonable searches and seizures was violated because there
was no probable cause for his arrest, and his Fourteenth
Amendment right to Due Process was violated because his
involuntary written statement was used against him at trial (see
id. at 62-65).
The Second Department affirmed the judgment. See
People v. Ramos, 164 A.D.3d 1267, 1267, 83 N.Y.S. 3d 580, 580
(2d Dep’t 2018) (docketed as ECF No. 7-9). It found, inter
alia: as to swearability: the trial court “providently exercised
its discretion in determining that the then seven-year-old
complainant was competent to give sworn testimony,” id.; as to
Petitioner’s Sixth Amendment claim: the trial court similarly

exercised its discretion “in denying defense counsel’s motion to
recall the complainant’s mother to testify because defense
counsel sought to cross-examine her about a matter that was
collateral and would have caused delay,” id. (citations
omitted); as to the jury note: that argument was without merit,
see id.; as to alleged bias against the defense: “[t]he record
does not support the defendant’s contention that the Supreme
Court acted with bias against him in its evidentiary rulings,”
id.; as to Detective Baran’s testimony regarding prior
incidents: “because defense counsel assailed the testimony of
the complainant on cross-examination as a recent fabrication,
the Supreme Court correctly admitted the prior consistent

statement of the complainant on direct examination of a law
enforcement witness” id. (citations omitted); as to Petitioner’s
claim that his Fourth and Fourteenth Amendment rights were
violated: first, denial of Petitioner’s suppression motion was
proper since, at the scene of the crime, Petitioner “was not the
subject of custodial interrogation at that time[],” second,
Petitioner’s statement made at the police station was “made
voluntarily after the defendant knowingly, intelligently, and
voluntarily waived his Miranda rights,” id. (citations omitted),
and third, “the police had probable cause to arrest [Petitioner]
based on his statements and the accusations of the complainant
and her mother,” id. (citations omitted); and, as to the weight

of the evidence: the verdict was not against the weight, nor was
Petitioner’s sentence excessive, id.
Through counsel, Petitioner sought leave to appeal to
the New York State Court of Appeals, which request was denied on
December 10, 2018. See People v. Ramos, 32 N.Y.3d 1128, 117
N.E.3d 825, 93 N.Y.S. 3d 266 (2018) (docketed as ECF No. 7-12).
This Petition followed.
DISCUSSION
I. The Legal Standard
Congress enacted the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), to restrict “the power of federal courts to grant writs

of habeas corpus to state prisoners.” Williams v. Taylor, 529
U.S. 362, 399 (2000). A state prisoner seeking habeas corpus
relief under Section 2254 must show that he is “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Section 2254, as amended by
AEDPA, provides, in part, that:
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 claims that was
not 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
[f]ederal law, as determined by the Supreme
Court of the United States.

28 U.S.C. § 2254. The AEDPA established a deferential standard
of relief, seeking to “avoid[ ] unnecessarily ‘disturbing the
State’s significant interest in repose for concluded litigation,
denying society the right to punish some admitted offenders, and
intruding on state sovereignty to a degree matched by few
exercises of federal judicial authority.’” Virginia v. LeBlanc,
137 S. Ct. 1726, 1729 (2017) (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)) (brackets omitted). Accordingly, a habeas
corpus petition is not a vehicle to relitigate every issue
previously determined in state court. Herrara v. Collins, 506
U.S. 390, 401 (1993). Ultimately, “the petitioner bears the
burden of proving by a preponderance of the evidence that his
constitutional rights have been violated.” Jones v. Vacco, 126
F. 3d 408, 415 (2d Cir. 1997); see also Hawkins v. Costello, 460
F. 3d 238, 246 (2d Cir. 2006).
Thus, a federal court may not grant a writ of habeas
corpus unless the state court’s adjudication of the claim
either:
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has construed the AEDPA
“to give independent meaning to ‘contrary [to] and
‘unreasonable.’” Jones v. Stinson, 229 F.3d 112, 119 (2d Cir.
2000). A state court’s decision is “contrary to” clearly
established federal law if “the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case different
than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 412-13. A
decision involves “an unreasonable application” of clearly
established federal law when a 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.” Id. at 413. This standard does not
require that all reasonable jurists agree that the state court
was wrong; rather, the standard “falls somewhere between ‘merely
erroneous and unreasonable to all reasonable jurists.’” Jones,
229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109
(2d Cir. 2000)). The AEDPA “‘imposes a highly deferential
standard for evaluating state-court rulings and demands that
state-court decisions be given the benefit of the doubt.’”
Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy
v. Cross, 565 U.S. 65, 66 (2011)). Section 2254(d), as amended

by the AEDPA, “stops short of imposing a complete bar on
federal-court relitigation of claims already rejected in state
proceedings.” Harrington, 562 U.S. at 102.
Assuming that a petitioner’s claims are cognizable on
habeas review, a petitioner must exhaust state court remedies
before coming to federal court. Exhaustion of state court
remedies requires that a petitioner fairly present the claim in
state court, allowing the state court the “‘opportunity to pass
upon and correct alleged violations of its prisoners’ federal
rights.’” See Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir.
2005) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “A
petitioner has ‘fairly presented’ his claim only if he has

‘informed the state court of both the factual and the legal
premises of the claim he asserts in federal court.’” Jones v.
Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) (quoting Dorsey v.
Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). “Specifically,
[petitioner] must have set forth in state court all of the
essential factual allegations asserted in his federal petition;
if material factual allegations were omitted, the state court
has not had a fair opportunity to rule on the claim.” Daye v.
Att’y Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)
(collecting cases).
In addition, a federal court will not review a habeas

petition if a petitioner’s claims were decided at the state
level on “independent and adequate” state procedural grounds.
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). This
procedural bar applies even if the state court addressed the
merits in the alternative, but decided the claim on independent
procedural grounds. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Cir. 1990).
To obtain review of procedurally barred claims, a
state prisoner must show either (1) “cause for the default and
actual prejudice as a result” or (2) actual innocence. Coleman,
501 U.S. at 750.
II. Application

Here, Petitioner argues that: (1) the trial court
erred by deeming the complainant swearable; (2) his Sixth
Amendment rights to present a defense and confront the witnesses
against him were violated; (3) the trial court erred by failing
to meaningfully respond to a jury note; (4) the trial court’s
bias against the defense violated his Due Process rights to a
fair trial and to present a defense; (5) the trial erred in
admitting improper bolstering by allowing testimony regarding
alleged prior incidents of abuse; (6) the jury’s verdict was
against the weight of the evidence; (7) the sentence imposed was
unnecessarily harsh and excessive; and (8) his Fourth Amendment
rights were violated because there was no probable cause for his

arrest, and his involuntary written statement was used against
him at trial.7 (Petition, ECF pp. 3-17.)
A. Witness Swearability Claim
Petitioner claims that the trial court's swearing-in
of M.R. was in error, and, therefore, he is entitled to habeas
relief. However, as discussed supra, the Appellate Division
held that the trial court “providently exercised its discretion
in determining that [M.R.] was competent to give sworn
testimony,” stating that “[t]he examination of the child
revealed that she knew the difference between telling the truth
and telling a lie, promised to tell the truth, and indicated she
would be punished if she lied.” People v. Ramos, 164 A.D.3d

1267, 1267, 83 N.Y.S. 3d 580, 580 (2d Dep’t 2018) (citing N.Y.
CRIM. PROC. LAW § 60.20(2), which, at the time of Petitioner's
trial, provided in relevant part that “[a] child less than
twelve years old may not testify under oath unless the court is
satisfied that [she] understands the nature of an oath”).

7 The Court notes that Petitioner’s claims essentially renew his
claims raised on direct appeal. After his appeal was denied,
Petitioner sought leave to appeal all appellate claims before
the New York Court of Appeals. As such, the Court acknowledges,
and Respondent does not contest, that all of Petitioner’s claims
are properly exhausted.
As an initial matter, “[i]t is not the province of a
federal habeas court to reexamine state-court determination on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68

(1991); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Whether the trial court properly admits sworn testimony from a
child complainant in accordance with the requirements of C.P.L.
§ 60.20(2) is a matter best left to the New York state courts.
See, e.g., Rodriguez v. Greiner, 274 F. Supp. 2d 264, 267
(E.D.N.Y. 2003) (holding that “[w]hether the properly admitted
unsworn testimony of the victim was sufficiently corroborated in
accordance with the requirements of New York C.P.L. 60.20(3) is
a matter left to the state courts”). Thus, this claim is not
cognizable on habeas review.
Even if the Court looks to the merits of Petitioner’s
claim, it is clear he is not entitled to relief. During the

swearability hearing, the trial court’s colloquy with M.R.
established that M.R. understood: the difference between the
truth and a lie, as demonstrated by her responses to the
hypothetical questions posed by the court (see Tr. 751:17-24;
754:13-19); and, that lying in court would be wrong and had
consequences (see id. at 751:25-19). Thus, M.R.’s responses to
questions posed to her during the swearability hearing satisfied
the trial court that M.R. was able to be sworn. (See id. at
757:2-758:13.)
Petitioner has not identified any federal
constitutional right which was abridged by M.R.’s having been
sworn to testify at his trial that would justify this Court’s

interference, on habeas review, with the trial court's
swearability ruling. Nor has Petitioner identified an error in
the trial court’s swearability ruling, especially considering a
trial court has broad discretion in admitting sworn child
testimony. Nothing in the record indicates that the trial court
abused its discretion in admitting M.R.’s testimony.
Accordingly, as Petitioner’s witness swearability
claim is without merit, it fails to warrant granting habeas
relief.
B. Sixth Amendment Claim
Petitioner claims he is entitled to habeas relief on
the grounds that his Sixth Amendment rights were infringed when

the trial court would not allow Crystal to be recalled as a
witness for additional cross examination, arguing his cross
examination was curtailed, which denied him the right to present
a defense and to confront the witnesses against him. (Petition,
ECF pp. 4-5.) On direct appeal, the Appellate Division rejected
this claim, stating “[t]he Supreme Court providently exercised
its discretion in denying defense counsel’s motion to recall the
complainant’s mother to testify because defense counsel sought
to cross-examine her about a matter that was collateral and
would have caused delay.” Ramos, 164 A.D.3d at 1267(citations
omitted). The Court finds that the Appellate Division’s
decision reasonably rejected both Petitioner’s arguments and was

not contrary to, nor an unreasonable application of, federal
law.
“[T]he Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986). At the same time, “state
and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal
trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(internal quotation omitted). Further, a defendant in a state
criminal prosecution has a right, guaranteed by the Sixth and
Fourteenth Amendments to the Constitution, “to be confronted
with the witnesses against him.” U.S. Const. Amend. VI; see

also Pointer v. Texas, 380 U.S. 400, 401 (1965) (holding that
the Sixth Amendment Confrontation Clause is made applicable to
the states by the Fourteenth Amendment). However, “the
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
Trial courts “retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Furthermore, the preclusion of the cross-examination “must not
have been harmless, that is, it must have had a substantial and
injurious effect or influence in determining the jury’s
verdict.” Alvarez v. Ercole, 763 F.3d 223, 230 (2d Cir. 2014).
Further, a criminal defendant “has a fundamental due process
right to present a defense.” United States v. Mi Sun Cho, 713
F.3d 716, 721 (2d Cir. 2013) (citations omitted). However, a
criminal defendant’s right to present a defense “is not
absolute, for a defendant must comply with established rules of
procedure and evidence designed to assure both fairness and
reliability.” Id., 713 F.3d at 721. As such, “a defendant does

not have an unfettered right to offer testimony [or other
evidence] that is inadmissible under the rules of evidence.”
Id. “[W]ell established rules of evidence permit trial judges
to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” Holmes v. S.
Carolina, 547 U.S. 319, 326 (2006).
Here, Petitioner argues that he was denied his right
of presenting his theory of the case to the jury, and was
precluded from eliciting testimony from Crystal that S.R. was
sexually abused by an uncle years prior. He maintains such
evidence would support his theory that Crystal was more likely

to jump to a false conclusion about what she saw when she walked
into the kitchen, when what was occurring was––as he alleges––
Petitioner was merely trying to dress M.R. Additionally,
Petitioner argues that he was precluded from questioning Crystal
about watching pornography in the home with her children. Given
the remoteness of time between the incident involving S.R. and
that involving M.R., the trial court precluded this evidence.
Moreover, since Crystal did not claim to have witnessed
Petitioner touching or licking M.R., but rather testified that
she reacted to what M.R. told her., and considering the evidence
in the case, the court determined that it was unnecessary to
recall Crystal to answer questions on a collateral issue.

Petitioner has failed to demonstrate that the trial
court abused its discretion in denying his application to recall
Crystal for additional cross examination or that precluding
additional cross-examination had a substantial and injurious
effect in determining the jury’s verdict. Defense counsel had
an opportunity to cross-examine Crystal following her direct
testimony. While defense counsel attempted to question Crystal
regarding watching pornography, the court sustained an objection
and she did not answer the question. However, M.R. and S.R.
both testified that they had not watched pornography at home.
Second, defense counsel’s application to recall Crystal to
question her regarding the 2007 abuse of S.R., before M.R. was

even born and involving a different perpetrator, addressed an
incident that was not only remote in time, but bore little
relevance to Petitioner’s case. Indeed, given the wealth of
evidence from the trial, e.g., testimony from M.R., S.R., and
Crystal; DNA evidence; and Petitioner’s own admissions, whether
or not Crystal may have been affected by S.R.’s abuse was only
marginally relevant and collateral. As such, the Appellate
Division’s decision regarding the trial court’s evidentiary
rulings was not contrary to, or an unreasonable application of,
federal law.
Additionally, Petitioner is unable to demonstrate that
he was denied his right to present a defense. First, Petitioner

testified in his own defense and claimed that his actions were
innocent and that he was only trying to dress M.R. when Crystal
walked in. (See Tr. 1304:1-1305:18.) Second, during his
summation, defense counsel argued that Crystal walked into the
kitchen, observed Petitioner and M.R., and jumped to an
incorrect conclusion. (See id. at 1399:16-23.) Any probative
value of introducing cross-examination testimony from Crystal
that her state of mind may have been altered due to S.R.’s abuse
was outweighed by other issues, such as causing delay,
remoteness in time, introducing a collateral issue, and
confusion of the issues. See Holmes, 547 U.S. at 326. Thus, it
was not unreasonable for the Appellate Division to conclude that

the trial court acted within its discretion in making its
evidentiary rulings; nor was it contrary to clearly established
federal law to rule to exclude this evidence.
Accordingly, Petitioner’s Sixth Amendment claim fails
to compel granting habeas relief.
C. Jury Note Claim
Petitioner claims that he is entitled to habeas relief
because the trial court failed to meaningfully respond to a jury
note, specifically the second jury note requesting “to hear the
911 call from Crystal (Mother) of the transcript, if it was on
record. If it’s on the record, can we see/hear it.” (Petition,
ECF p. 6.) The Appellate Division held this claim was without

merit because “[i]t is undisputed that the court informed the
jury that no 911 call or transcript of that call was part of the
evidence in the case.” Ramos, 164 A.D.3d at 1267. This Court
finds Petitioner’s jury note claim does not warrant habeas
relief for the following reasons.
Criminal Procedure Law § 310.30 establishes the
procedure by which a trial court must respond to jury notes,
i.e., the trial court must give “such requested information”
that it “deems proper.” C.P.L. § 310.30. Even if a state court
errs in denying a defendant's claim of a violation of N.Y. Crim.
Proc. Law § 310.30, “[v]iolations or errors of state law or
procedure generally do not constitute grounds for habeas

review,” and “[a] claim premised on a violation of New York
Criminal Procedure Law Section 310.30 does not allege a
violation of a federally protected right.” Cornado v. Bellnier,
No. 10-CV-5265, 2012 WL 6644637, at *5 (S.D.N.Y. Sept. 20, 2012)
(citations omitted), report & recommendation adopted by 2012 WL
6681692 (S.D.N.Y. Dec. 21, 2012). Hence, Petitioner's jury note
claim does not provide a basis for federal habeas relief.
In any event, even if the Court were to reach the
merits of Petitioner’s claim, it would be found to be meritless.
A review of the record demonstrates that the trial court
followed the procedure required by C.P.L. § 310.30. While the
911 call was played for Crystal outside the presence of the jury

to refresh her recollection, neither the 911 call nor the
transcript of it was ever entered into evidence. Under New York
law, a trial court is not required to provide a jury with
materials not introduced as evidence during trial. See People
v. Salaman, 231 A.D.2d 464, 464 (2d Dep’t 1996) (finding that
the trial court correctly informed the jury that it was not
entitled to a Grand Jury transcript as it was not in evidence);
People v. Thatcher, 85 A.D.3d 1065, 1066 (2d Dep’t 2011)
(finding that, in response to a jury note requesting a police
report that was not in evidence, the trial court did not err by
denying defendant’s request to inform the jury there was
testimony regarding the report). As such, Petitioner’s claim is

without merit.
Accordingly, Petitioner’s jury note claim fails to
support habeas relief.
D. Bias Against Defense Claim
Petitioner asserts that the trial court’s bias against
the defense, as evidenced by the court’s evidentiary rulings,
violated his Due Process rights to a fair trial. Petitioner
raised this claim on direct appeal and the Appellate Division
denied it, stating that “[t]he record does not support the
defendant’s contention that the Supreme Court acted with bias
against him in its evidentiary rulings.” Ramos, at 1267
(citations omitted).

For Petitioner to prevail on his claim of judicial
bias, he must demonstrate that he did not receive a trial “by an
unbiased and impartial judge without a direct personal interest
in the outcome of the hearing.” Ungar v. Sarafite, 376 U.S.
575, 584 (1964). “Mere allegations of judicial bias or
prejudice do not state a due process violation.” Brown v. Doe,
2 F.3d 1236, 1248 (2d Cir. 1993), cert. denied, 510 U.S. 1125
(1994); see also LoCascio v. United States, 473 F.3d 493, 495
(2d Cir. 2007)(“judicial opinions alone almost never constitute
a valid basis for a bias or partiality motion” (quotations
omitted)).
Petitioner claims that the trial court’s bias against

him is evidenced by: (1) the court yelling at defense counsel;
(2) the court making a sarcastic remark; (3) the court’s ruling
regarding the therapy records requested by defense counsel; (4)
the court’s refusal to sign a subpoena requested by defense
counsel; (5) the court overruling defense counsel’s summation
objections and sustaining the prosecution’s summation
objections; (6) the court’s refusal to recall Crystal as a
witness; and (7) denying defense counsel’s multiple motions for
a mistrial. For the reasons that follow, the trial court’s
decision, as affirmed by the Appellate Division, is neither
contrary to, or an unreasonable application of, United States
Supreme Court precedent, nor based upon an unreasonable

determination of the facts in light of the evidence before it.
Initially, as discussed supra, the Court has already
determined that, as the Appellate Division held, the trial court
acted within its discretion by refusing to allow Crystal to be
recalled to the witness stand. Additionally, “yelling” at
defense counsel, or making an alleged sarcastic remark, is not
indicative of a Due Process violation. See, e.g., Brown, 2 F.3d
at 1248 (“Mere allegations of judicial bias or prejudice do not
state a due process violation.” (citation omitted)). Further,
Petitioner’s claim that the trial court refused to sign a
subpoena on behalf of defense counsel is belied by the record.
The trial court agreed to subpoena and review the therapy

records from South Shore Guidance Center in camera, which it did
and, thereafter, disclosed one page from the records to counsel.
(See Tr. 642:23-643:17; 737:5-11.) Petitioner’s remaining
examples of judicial bias are each instances of evidentiary
rulings. From a review of the record, the Court does not find
that any of the trial court’s evidentiary rulings displayed any
“deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540,
555 (1994). Rather, as the Appellate Division held, “[t]he
record does not support [Petitioner]’s contention that the
[trial c]ourt acted with bias against him in its evidentiary
rulings.” Ramos, 164 A.D.3d at 1268 (citations omitted).

Accordingly, Petitioner’s judicial bias claim fails to
support Petitioner’s request for habeas relief.
E. Improper Bolstering Claim
Petitioner seeks habeas relief on the grounds that the
trial court erred when it allowed Detective Baran to testify
that the complainant, M.R., told him that there were other
incidents where Petitioner made or attempted sexual contact with
her. (Petition, at ECF p. 9.) Petitioner argues that such
testimony constituted improper bolstering. Petitioner raised
this claim on direct appeal, and, the Appellate Division found
that “[c]ontrary to [Petitioner]’s contention, because defense
counsel assailed the testimony of the complainant on cross-

examination as a recent fabrication, the Supreme Court correctly
admitted the prior consistent statement of the complainant on
direct examination of a law enforcement witness.” Ramos, 164
A.D.3d at 1267.
“Under Supreme Court jurisprudence, a state court's
evidentiary rulings, even if erroneous under state law, do not
present constitutional issues cognizable under federal habeas
review.” McKinnon v. Superintendent, Great Meadow Corr.
Facility, 422 F. App'x 69, 72-73 (2d Cir. 2011) (citing Hawkins
v. Costello, 460 F.3d 238, 244 (2d Cir.2006)); see also Estelle,
502 U.S. at 67-68 (“[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law

questions”). Such claims do not arise to constitutional
magnitude unless the evidentiary error was “so pervasive as to
have denied [defendant] a fundamentally fair trial.” Collins v.
Scully, 755 F.2d 16, 18 (2d Cir. 1985). Indeed, “the concept of
bolstering really has no place as an issue in criminal
jurisprudence based in the United States Constitution” and is a
state law evidentiary issue. See Castaldi v. Poole, No. 07-CV-
1420, 2013 WL 789986, at *7 (E.D.N.Y. Mar. 1, 2013)(quotations
and citations omitted); see also Lebron v. Sanders, No. 02-CV-
6327, 2008 WL 793590, at *20 (S.D.N.Y. Mar. 25, 2008) (holding
that a violation of New York's “bolstering” rule does not rise
to a constitutional violation); Smith v. Walsh, No. 00-CV-5672,

2003 WL 22670885, at *6 (E.D.N.Y. Oct. 20, 2003) (holding that a
bolstering claim is not a cognizable basis for federal habeas
relief). As such, Petitioner’s claim does not raise a federal
question as is not cognizable on habeas review.
Regardless, the Court does not find that Petitioner’s
bolstering claim has any merit. Prior to trial, the trial court
denied the prosecution’s Molineux application to question M.R.
regarding any prior incidents of abuse by Petitioner, with the
caveat that the prosecution could renew the application if
defense counsel opened the door to that line of questioning.
(See Tr. 14:22-16:6.) During M.R.’s direct testimony, the
prosecution did not ask any questions regarding any alleged

prior incidents; however, on cross-examination, defense counsel
questioned M.R. extensively about allegations of prior incidents
of abuse by Petitioner, including to whom she reported them.
(See id. at 780:19-783:19, 785:6-786:2, 786:18-790:3, 794:20-
795:6; 795:16-796:7, 797:8-798:14, 800:3-801:21, 803:10-804:21.)
Following M.R.’s testimony, and prior to Detective
Baran taking the witness stand, the prosecution made an
application to question the detective about prior incidents of
sexual abuse by Petitioner reported to him (Baran) by M.R. (See
Tr. 908:14-909:20.) Finding that defense counsel opened the
door during M.R.’s cross examination, the trial court granted
the application, thereby allowing the prosecution to put forth

Detective Baran to rebut defense counsel’s recent fabrication
and credibility arguments. (See id. at 915:19-916:5.) Under
New York state law, the trial court’s ruling was not erroneous.
See People v. McDaniel, 81 N.Y.2d 10, 18, 611 N.E.2d 265 (1993)
(finding that if, during cross-examination, a witness’ testimony
is assailed as a recent fabrication, the witness may be
rehabilitated using prior consistent statements); People v.
Walsh, 289 A.D. 2d 517, 518, 735 N.Y.S. 2d 586 (2d Dep’t 2001);
People v. Wilens, 198 A.D. 2d 463, 463, 603 N.Y.S. 2d 585 (2d
Dep’t 1993). Even where evidence is erroneously admitted in
violation of state law, there is no due process violation unless
the evidence, when “viewed objectively in light of the entire

record before the jury, was sufficiently material to provide the
basis for conviction or to remove a reasonable doubt that would
have existed on the record without it. In short it must have
been crucial, critical, highly significant.” Young v. McGinnis,
411 F. Supp. 2d 278, 304 (E.D.N.Y. 2006) (quoting Collins v.
Scully, 755 F.2d 16, 19 (2d Cir.1985)) (internal quotation marks
omitted). Here, because Petitioner cannot demonstrate that the
state court's evidentiary ruling was erroneous, or that any
alleged error violated his right to a fundamentally fair trial,
his improper bolster claim does not provide grounds for granting
habeas relief.
F. Against the Weight of the Evidence Claim

Petitioner argues that he is entitled to habeas relief
on the grounds that the jury’s verdict is against the weight of
the evidence. However, Petitioner’s claim is not cognizable
here as it does not raise a federal question. See McKinnon, 422
F. App’x at 75. Since it is based solely on state law, it is
unreviewable in a federal habeas corpus proceeding. See 28
U.S.C. § 2254(a); Estelle, 502 U.S. at 67–68, Butler v.
Cunningham, 313 F. App’x 400, 401 (2d Cir. 2009); Smith v. Lee,
No. 11-CV-0530, 2014 WL 1343066, at *10 (E.D.N.Y. Mar. 31, 2014)
(“It is well settled that a ‘weight of the evidence’ claim is
distinct from an ‘insufficiency of the evidence’ claim and is a
state claim based on N.Y.C.P.L. § 470.15(5) that is not

reviewable in a federal habeas proceeding.” (citing McKinnon,
422 F. App’x at 75)).
To the extent Petitioner’s claim can be construed as
raising a federal claim that the evidence was insufficient to
support the conviction, that argument is without merit. A
Petitioner arguing a sufficiency of the evidence claim “bears a
very heavy burden.” United States v. Aguilar, 585 F.3d 652, 656
(2d Cir. 2009). A criminal conviction will not be disturbed if
“after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original); see also Policano v. Herbert, 507 F.3d 111, 115-16
(2d Cir. 2007) (stating that “[i]n a challenge to a state
criminal conviction brought under 28 U.S.C. § 2254 . . . 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” (quoting Jackson, 443 U.S. at 324)). When
considering a claim of legally insufficient evidence, the facts
are viewed in the light most favorable to the verdict. See
Garbutt v. Conway, 668 F.3d 79, 80-81 (2d Cir. 2012) (per
curiam). Moreover, “[i]n considering a petition for 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.”
Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993).
As noted, Petitioner was convicted of one count of
Criminal Sexual Act in the First Degree and one count of
Endangering the Welfare of a Child. Pursuant to the New York
State Penal Law, “[a] person is guilty of criminal sexual act in
the first degree when he or she engages in oral sexual conduct
or anal sexual conduct with another person who is less than
eleven years old.” N.Y. Penal Law § 130.50(3). Further, “[a]
person is guilty of endangering the welfare of a child when he
or she knowingly acts in a manner likely to be injurious to the

physical, mental or moral welfare of a child less than seventeen
years old or directs or authorizes such child to engage in an
occupation involving a substantial risk of danger to his or her
life or health.” N.Y. Penal Law § 260.10(1).
At trial, the evidence demonstrated that: Crystal
walked in on Petitioner in the kitchen with her six-year-old
daughter, M.R., finding M.R. with her underwear and pants around
her ankles and Petitioner bent over M.R.; M.R. told her mother
that Petitioner licked her “coochie”; and, after Crystal called
911 and the police arrived, Petitioner made two statements, one
admitting to licking M.R. while in the kitchen. The state court
record further establishes that after his arrest, Petitioner

made more inculpatory statements to Detective Baran, the
voluntariness of which was litigated at both the pre-trial
suppression hearing and the trial. While Petitioner contends
that M.R.’s testimony was “contradictory and confusing,” it was
corroborated by Crystal, S.R., and even Petitioner’s own
statements to police.
Moreover, DNA evidence was presented at trial, with
both the prosecution and defense presenting DNA experts.
Despite differing views, the DNA experts agreed on certain
aspects of the evidence, e.g., that the vulva swab contained
saliva and that M.R.’s underwear contained saliva and
Petitioner’s DNA. Further, the defense DNA expert did not

contest that Petitioner deposited DNA on M.R.’s underwear, where
saliva was also present.
Having considered each of the crimes for which
Petitioner was convicted, the Court concludes that the Appellate
Division’s upholding of the convictions is neither contrary to
nor an unreasonable application of clearly established federal
law and its decision was not based on an unreasonable
determination of the facts. Accordingly, Petitioner’s
insufficient evidence claim is without merit.
G. Harsh and Excessive Sentence Claim
Petitioner contends that his sentence of fifteen years
of imprisonment followed by ten years of post-release

supervision is harsh and excessive, thereby entitling him to
habeas relief. (See Petition at ECF pp. 12-13.) However, it is
well settled that an excessive sentence claim, such as
Petitioner’s, does not present a required federal constitutional
issue when the received sentence “is within the range prescribed
by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir.
1992); see also Taylor v. Connelly, 18 F. Supp. 3d 242, 268
(E.D.N.Y. 2014). Under New York state law, the maximum sentence
permitted for a violation of Criminal Sexual Act in the First
Degree, a Class “B” Felony, is a term of imprisonment of twenty-
five years. See N.Y. Penal Law §§ 130.50(3); 70.00(2)(b).
Additionally, under New York state law, the maximum sentence

permitted for a violation of Endangering the Welfare of a Child,
a Class “A” Misdemeanor, is term of imprisonment of one year.
See N.Y. Penal Law §§ 260.10(1); 70.15(1). Thus, Petitioner’s
sentence of fifteen years of imprisonment for Criminal Sexual
Act in the First Degree, and sentence of one year of
imprisonment for Endangering the Welfare of a Child both fall
within what is permitted by applicable statute and, hence, do
not present a federal constitutional issue. Therefore,
Petitioner’s harsh and excessive sentence claim is untenable on
habeas review.
H. Fourth Amendment Claim
Petitioner claims that he is entitled to habeas relief

on the grounds that his Fourth Amendment rights were violated
because: (1) there was no probable cause for his arrest; and (2)
his written statements to law enforcement were involuntary.
(See Petition, at ECF pp. 14-16.) However, on direct appeal,
the Appellate Division denied Petitioner’s claim that there was
no probable cause for his arrest, holding “[w]e agree with the
hearing court’s determination that the police had probable cause
to arrest the defendant based on his statement and the
accusations of [M.R.] and her mother.” Ramos, 164 A.D.3d at
1267 (citations omitted). With respect to Petitioner’s claim
that his written statements were involuntary, the Appellate
Division ruled “[t]he statement was made voluntarily after the

defendant knowingly, intelligently, and voluntarily waived his
Miranda rights.” Id. (citations omitted.)
Petitioner’s claims arise under the exclusionary rule
grounded in the Fourth Amendment, and, as such, are not
cognizable on habeas review where, as here, the state court has
“provided an opportunity for full and fair litigation” of this
constitutional claim. See Stone v. Powell, 428 U.S. 465, 494-95
(1976). To prevail on this claim, Petitioner would need to
demonstrate either that he was not given a full and fair
opportunity to litigate the claim because the state failed to
provide “corrective procedures” by which the claim could be
adjudicated or that he was unable to avail himself of the

state's procedures “because of an unconscionable breakdown in
the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d
Cir. 1992). Petitioner is unable to make either showing.
During the suppression hearing prior to his trial,
Petitioner (1) argued there was no probable cause for his
arrest, and (2) sought suppression of (a) his statements and (b)
the buccal swab taken from him. Based upon the evidence
presented at that hearing, i.e., that in response to Crystal’s
911 call, Officer Boccio went to her apartment, where he first
spoke with Crystal and M.R., who reported that Petitioner licked
M.R.’s vagina, and, then spoke with Petitioner, who admitted to
licking M.R., the trial court found there was sufficient

probable cause for Petitioner’s arrest. (Hr’g Dec. Tr. 129:15-
19 (“Based on the statement of the mother after her observations
of [Petitioner] and the child, the statement of the child and
the statement of the [Petitioner] at the scene, the police had
probable cause to arrest the defendant.”); id. at Hr’g Dec. Tr.
129:19-21 (ruling Petitioner’s oral statement at the scene “was
not subject to Miranda, as [Petitioner] was not custody, nor was
he being interrogated”).)
As to Petitioner’s contention that his post-arrest
written statement was involuntary because it was given in
English although he is Spanish speaking, the evidence
contradicts that position. Both Detectives Baran and Pacheco

testified that Petitioner was read his Miranda rights in both
English and Spanish before his written statement was taken. The
evidence further established that after Detective Baran typed
Petitioner’s statement, (1) Petitioner read it and made
corrections to it, and (2) Detective Pacheco translated the
statement into Spanish before Petitioner signed it. Thus, based
upon the facts and circumstances of the case, the trial court
ruled Petitioner’s written statement “was freely and voluntarily
and intelligently provided after a knowing, intelligent and
voluntary waiver of his Miranda rights.” (Hr’g Dec. Tr. 130:7-
9; see also id. at 130:15-17 (“The defendant clearly speaks and
understands a good amount of English, but it was prudent to give

Miranda warnings in Spanish.”); see also id. at 130:13-14
(ruling same evidence supported finding Petitioner’s buccal swab
was given knowingly, intelligently, and voluntarily).)
Hence, the record evidence demonstrates that
Petitioner was afforded a full and fair opportunity in state
court to litigate his Fourth Amendment claims. Accordingly, no
basis lies upon Petitioner’s Fourth Amendment claims to grant
the requested habeas relief.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Petitioner’s
petition for a writ of habeas corpus (ECF No. 4) is DENIED in

its entirety.
Further, because the Petitioner has not made a
substantial showing that he was denied a constitutional right,
the Court declines to issue a certificate of appealability. See
28 U.S.C. § 2253(c)(2). The Court also certifies that any
appeal of this Order would not be taken in good faith, and thus
his in forma pauperis status is denied for the purposes of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
IT IS FURTHER ORDERED that the Clerk of the Court
close this case and mail a copy of this Order to the pro se
litigant.

SO ORDERED.

_/s/ JOANNA SEYBERT_____
Joanna Seybert, U.S.D.J.

Dated: July _30_, 2021
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306607. Public record. Not legal advice.