# Watson v. Superintendent of Greene Correctional Facility

> District Court, E.D. New York · September 18, 2023

URL: https://www.frixlaw.com/law-library/cases/10310416

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 18, 2023
- **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/10310416

## How later opinions describe it (automated extraction)

- rejecting state appellate court’s finding of procedural default, premised on counsel’s failure to make a contemporaneous objection, where record revealed that trial counsel had, in fact, made the necessary objection

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
KEVIN WATSON,

Petitioner,
MEMORANDUM & ORDER
- against - 19-CV-5098 (PKC)

THE SUPERINTENDENT OF GREENE
CORRECTIONAL FACILITY,

Respondent.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Petitioner Kevin Watson petitions this Court for a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his conviction for criminal possession of a weapon in the second degree. The
Petition is granted for the reasons set forth below.
BACKGROUND1
I. Facts Relating to Petitioner’s Criminal Conduct
On October 26, 2013, Detective Frank Muzikar (“Det. Muzikar”) of the New York City
Police Department’s (“NYPD”) Staten Island gang squad was assigned to patrol the 120th
Precinct. (Trial Transcript (“Tr.”),2 Dkt. 9-14, at 38–39.) At approximately 3:10 pm, he observed
Petitioner leave a building, “have a short conversation with a taxi driver,” and then sit in the front
seat of the taxi. (Tr. 40.) Det. Muzikar found this suspicious and began to follow the livery cab.

1 Because Petitioner was convicted at trial, the Court presumes the facts set forth herein as
established and views them in the light most favorable to the prosecution. See Jackson v. Virginia,
443 U.S. 307, 319 (1979) (“Once a defendant has been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon
judicial review all of the evidence is to be considered in the light most favorable to the
prosecution.”) (emphasis omitted).
2 References to “Tr.” refer to the internal pagination of the trial transcript (Dkts. 9-12 to 9-
19), and not to the numbering created by the Court’s electronic filing system or “ECF.”
(Tr. 41, 52–53.) He subsequently pulled the cab over near the corner of Bay Street and Victory
Boulevard—located approximately a half-mile from the NYPD’s 120th Precinct—for failing to
use its turn signal at two stop signs. (Tr. 53–54, 101.) Det. Muzikar approached the passenger
side of the taxi and saw Petitioner “with a red Samsung Galaxy phone in his hand” that had a

“screen saver . . . which had firearms on it.” (Tr. 54; see also Dkt. 1-C (screensaver image).) Det.
Muzikar then observed the butt of a loaded firearm in a holster on Petitioner’s hip. (Tr. 55–56,
58.) He asked Petitioner to step out of the vehicle, at which point Petitioner stated that he “ha[d]
a firearm on [him].” (Tr. 56.) Petitioner initially stated that he had a permit for the firearm; he did
not, but he did have a “premises permit” for a different firearm.3 (Tr. 57–58.) Petitioner then
asked Det. Muzikar to contact Crystal Armstrong, Petitioner’s mother-in-law, who worked at the
120th Precinct.4 Petitioner stated, in sum and substance, that he was on his way to the 120th
Precinct to turn in the gun pursuant to the NYPD’s Gun Buyback Program (the “Program”).5 (Tr.
58, 118–19.)
Petitioner was placed under arrest and charged with, among other things, criminal
possession of a weapon in the second degree, in violation of New York Penal Law § 265.03(3).6

3 A firearm “premises permit” “authorizes the license holder to possess a firearm at a
certain location such as their home or place of business.” Frequently Asked Questions: New
Concealed Carry Law (Aug. 27, 2020), Gun Safety in New York State,
https://gunsafety.ny.gov/frequently-asked-questions-new-concealed-carry-law.
4 According to Det. Muzikar, Petitioner initially claimed that Armstrong was his mother.
5 The Gun Buyback Program (also known as the Cash for Guns Program) is “a program in
which the NYPD will pay one hundred dollars to any individual . . . who present[s] any handgun
. . . at any precinct . . . No questions asked and no identification will be required.” (Dkt. 1-7.)
6 New York Penal Law § 265.03(3) makes it a crime to “possess[] any loaded firearm”
where “such possession” does not “take place in such person’s home or place of business.” N.Y.
Penal Law § 265.03(3).
(Respondent’s Brief (“Resp. Br.”), Dkt. 9-21, at 1.)7
II. Pre-Trial Proceedings
In response to the charges, Petitioner asserted a defense under New York Penal Law
§ 265.20, i.e., excusing the unlicensed possession of a weapon where possession is for the purpose
of surrendering the gun to a buyback program. (See Dtk. 9-5, at 1; Pre-Trial Hearing Transcript
(“Hr’g”),8 at 20–21.) This defense shifted the burden to the prosecution to prove beyond a

reasonable doubt at trial that Petitioner did not possess the gun for that purpose on the day he was
arrested and made Petitioner’s intent the central issue in the case. The prosecution filed pre-trial
motions seeking to admit certain evidence going to Petitioner’s intent.
On October 25, 2015, the prosecution filed a motion in limine seeking to admit, among
other things, two photographs at trial: (1) the screensaver photograph that Det. Muzikar saw, which
might have been taken on May 8, 2013, and “depicts five firearms on top of a yellow sheet” (the
“Five-Gun Photo”) and (2) a photograph, which might have been taken on July 10, 2013, found
during a post-arrest search of Petitioner’s cell phone showing “four firearms on top of a blue striped
sheet” (the “Four-Gun Photo”). (Dkt. 1-6, at 2–4.) The illegal firearm for which Petitioner was

arrested was allegedly in both photographs, which were taken five months and three months before
Plaintiff’s arrest, respectively. (Id.)
Petitioner filed a motion in limine seeking to cross-examine Det. Muzikar about civil rights
lawsuits filed against him pursuant to 42 U.S.C. § 1983 (“Section 1983”). See People v. Watson,

7 Petitioner was also charged with, and convicted of, one count of criminal possession of
a weapon in the fourth degree (a gravity knife) (Resp. Br., at 3), but he does not directly contest
his conviction on that count.
8 References to “Hr’g” refer to the internal pagination of the pre-trial hearing transcript
(Dkts. 9-7, 9-8, 9-9), and not to the numbering created by the Court’s ECF system.
163 A.D.3d 855, 859–60 (N.Y. App. Div. 2018).
A. November 13, 2015 Hearing
On November 13, 2015, the presiding judge, Justice William Garnett of the Richmond
County Supreme Court, held a hearing on the prosecution’s motion. (See generally Hr’g 1–45.)
At the hearing, the prosecution stated that it wanted to use the Four-Gun Photo and Five-Gun Photo

to: (1) rebut Petitioner’s defenses based on the Gun Buyback Program exemption from prosecution
or that he was lawfully in possession of the firearm; (2) “really to portray the picture of who this
defendant is as a person . . . . He’s into guns, whether they are illegal or he has a license for it”;
and (3) show that Petitioner was “claiming ownership of this [illegal] . . . . It’s right alongside his
firearm that he’s licensed to possess in his home.” (Hr’g 8.)9
Petitioner did not object to the introduction of the photographs on the condition that they
be redacted to only show Petitioner’s licensed firearm and the illegal gun at issue. (Hr’g 10–11;
see also Hr’g 19 (“If they want to set the timeline of when he was first in contact with [the illegal]
gun . . ., that I’m not arguing with.”).) The trial court stated it would reserve decision on the motion
because:

What it comes down to for me is there’s a defense of temporary lawful possession
and I’m the trier of fact. Again, it’s a weighing of probative value versus prejudice.
If a defendant is saying that I came upon a gun, however I came upon it, and I
decided to turn it into the police as soon as I could, shouldn’t the trier of fact know
at one point, at least, he was in the presence of five guns?

9 See N.Y. Penal Law § 265.20(f) (stating that the criminal possession of a firearm statute
“shall not apply to . . . [a] person voluntarily surrendering [a] weapon . . , provided that such
surrender shall be made to . . . a [designated] member of the [police] force or department . . . ; and
provided, further, that the same shall be surrendered by such person in accordance with such terms
and conditions as may be established by such . . . police force or department”).
(Hr’g 18–19.)10 Petitioner objected to this theory of relevance, stating that it “sound[ed] like a
textbook definition of propensity.” (Hr’g 19.)
With respect to Petitioner’s motion in limine, his counsel argued that Petitioner should be
permitted to inquire about the § 1983 lawsuits against Det. Muzikar because in each of “the

underlying criminal cases[,] . . . Detective Muzikar, then Police Officer Muzikar, made accusations
against the defendant [in those cases] which were false, they then were dismissed by the Court or
were declined to be prosecuted by the District Attorney’s Office.” (Hr’g 23.) The trial court also
reserved decision on Petitioner’s motions. (Hr’g 34.)
B. December 3, 2015 Hearing
At the pre-trial hearing on December 3, 2015, the trial court stated that it would postpone
ruling on the motions in limine “until after the jury [was] selected” due to media attention

10 Under New York law:
In some circumstances, . . . a person may possess an unlicensed or proscribed weapon and
still not be guilty of a crime because of the innocent nature of the possession. This defense of
temporary and lawful possession applies because as a matter of policy the conduct is not deemed
criminal. For example, a defendant may not be guilty of unlawful possession if the jury finds that
he found the weapon shortly before his possession of it was discovered and he intended to turn it
over to the authorities, or that he took it from an assailant in the course of a fight. The innocent
nature of the possession negates both the criminal act of possession and the intent with which the
act is undertaken when intent is an element of the crime.
People v. Almodovar, 62 N.Y.2d 126, 130 (1984) (citation and internal quotation marks
omitted).
However, it is unclear to this Court—and appears to have been unclear during the state trial
as well—what the distinction is between a defense based on returning a gun to a Gun Buyback
Program and a defense of temporary and lawful possession. (Hr’g 20–23); see also Almodovar,
62 N.Y.2d at 130 (citing Section 265.20 as an example of the temporary and lawful possession
defense)). The trial court ultimately gave the following jury charge: “[u]nder our law in certain
circumstances exemptions are defenses to criminal possession of a weapon in the second degree.
Under our law a person is not guilty of criminal possession of a weapon in the second degree if
such person was in the act of voluntarily surrendering the weapon to a member of the department
police designated to receive it, and if such person reasonably performs the surrender in accordance
with the terms and conditions established by the police department.” (Tr. 469–70.)
surrounding the case. (Hr’g 47.)
C. December 7, 2015 Jury Selection
On December 7, 2015, during jury selection, the trial court granted the State’s motion in
limine as to the Five-Gun Photo, holding that:
Detective Muzikar testified at the suppression hearing that before he saw the butt
of the gun[,] he observed the defendant’s cell phone displaying a picture of five
guns . . . . If the detective is able to testify that [the photograph of the five firearms]
looks like the picture he saw on the defendant’s phone, the [] photo would tend to
support his testimony about the events which transpired at the cab that day. In
addition, any alteration of the detective’s testimony or the redaction of the photo to
show only two guns would necessarily call into question the detective’s accuracy
and credibility without a sound basis. The jury may question the officer’s
credibility because of the photo[’]s redaction . . . or the alternative that he testified
that he just saw guns.
This is not a case where [the] photograph has no connection with the circumstances
that led up to the seizure of the gun. The [] photo is a part of the narrative of the
events at the car and it is in the Court’s judgment inextricably intertwined with the
facts of the case. In addition, in light of the announced defense, the [] photo would
be probative of the issue of how likely it would be that a person so apparently
enamored of guns would be in the process of surrendering to authorities when the
gun was seized from him. Therefore, the Court will allow the unredacted photo
with the evidence [subject to a limiting instruction].
(Hr’g 236–37; see also Hr’g 254, 273, 288 (stating that photograph “is part of Muzikar’s
testimony”).)
The trial court then heard argument with respect to the Four-Gun Photo. Petitioner argued
that the photograph was irrelevant because “with the statutory defense of [Section] 265.20, whether
he possessed [the gun] two months earlier or not is not relevant as it would be if we were doing
the temporary [and lawful possession defense] . . . . [I]t’s not really relevant to the issue of whether
he was going to the precinct” on the day he was arrested. (Hr’g 259–60.) Petitioner requested, in
the alternative, that the photograph be redacted to only show Petitioner’s licensed firearm and the
illegal gun at issue. (Hr’g 259.) The trial court reserved decision.
D. December 8, 2015 Hearing
On December 8, 2015, the trial court heard further argument with respect to the Four-Gun
Photo. Petitioner argued that both the Four- and Five-Gun Photos: (1) were “evidence of a prior
bad act, prior uncharged misconduct that is being used . . . to show that [Petitioner] had a propensity
to possess illegal firearms”; (2) were irrelevant because, under the Section 265.20 defense, “the

only issue for the jury to decide is whether he was going to the precinct on that day”; (3) were not
necessary “to complete the narrative with Det. Muzikar’s credibility as to whether he saw a picture
with five firearms” because Petitioner did not intend to challenge that portion of the officer’s
testimony as the court had already ruled that the stop was legal; and (4) would mislead the jury as
to whether all of the firearms pictured were real firearms. (Hr’g 289–92, 295; see also Hr’g 277–
78.) The prosecution again argued that the Four-Gun Photo showed that Petitioner “possessed [the
illegal gun], the length of time that he possessed it, and [that] he possessed it in his home.” (Hr’g
294–95.) The trial court then engaged in the following colloquy with Petitioner’s counsel:
THE COURT: My question is that it seems to me what you are talking about in
essence roughly is what we call confession and avoidance. There is a confession
. . . that the defendant possessed the gun. But he didn’t do it unlawfully because it
was his intention when he was interdicted by the police to surrender it pursuant to
a gun buyback program. My question is this. The jury has to make that decision.
[DEFENSE COUNSEL]: Yes.
THE COURT: Shouldn’t the jury know how likely that is in light of the fact of the
ubiquity of guns around the defendant? How likely is it that he is surrendering his
gun when he has multiple guns at his home and he’s had them at least for four
months?
[DEFENSE COUNSEL]: Which goes back to the propensity evidence, Judge. . . .
Showing them a picture of five guns . . . is the most prejudicial thing we can do to
[Petitioner] here . . . .
THE COURT: I will give a curative instruction if I do admit [the photograph] to
tell [the jury] for what purpose they can use the photograph of these other guns. To
focus it on how likely, how believable it is that [Petitioner] when he got into that
cab that day was going to a site to turn in the gun for cash, and that’s what I have
to weigh.
(Hr’g 296–97.) The trial court again reserved decision.
III. Trial
Trial took place from December 9, 2015 to December 14, 2015.
A. Ruling on the Admissibility of the Four-Gun Photo
On the morning of trial on December 9, 2015, the trial court granted the prosecution’s
motion in limine to admit the Four-Gun Photo, allowing it to be introduced unredacted. (Tr. 4.)
The trial court explained its ruling:
The Court adheres to its original decision regarding the photo allegedly seen by
Detective Muzikar at the cab door, of course based on proper foundation being laid
for its admission. As to the second photo of the gun unlawfully—allegedly
unlawfully possessed by the defendant, I will allow the People to introduce the
photo unredacted. The evidence is admissible to show the possession of [the illegal
gun] by the defendant and is also admissible on the likelihood of the truth of the
defendant’s assertion that he was in the process of surrendering the gun to a
buyback program. Buyback programs are designed to get random guns off the
street, not to provide persons with weapons caches to trade in an old model for a
new one or to receive cash for other purposes. And I cite generally the case of
People v. Diggins, 11 N.Y.3d 518 (2008), a general proposition.11
Of course, when either or both of these matters are introduced into evidence[,] I
will give the jury a limiting instruction which will also be part of the Court’s final
charge to the jury.
(Tr. 4.) The Court also denied Petitioner’s motion in limine to cross-examine Det. Muzikar
regarding the Section 1983 lawsuits. (Tr. 2–3.)
B. Det. Muzikar’s Testimony
Det. Muzikar testified to the events described supra in Background Section I. (Tr. 36–
136.) After Det. Muzikar confirmed that the Five-Gun Photo was “the background of [Petitioner’s]

11 This Court has reviewed the Diggins case and is unable to identify its relevance to the
matter at issue. Furthermore, the purpose of the Gun Buyback Program as explained by the trial
court—i.e., “not to provide persons with weapons caches to trade in an old model for a new one
or to receive cash for other purposes”—was irrelevant to any determination the jury needed to
make at trial.
phone” that the detective saw the day Petitioner was arrested, the prosecution moved the
photograph into evidence over Petitioner’s objection. (Tr. 92–93.) The trial court then gave the
jury the following limiting instruction:
Ladies and gentlemen of the jury, the People have put in evidence a photograph
taken from the defendant’s cell phone which appears to show five firearms. First,
I remind you that the defendant is on trial for possession of one .9mm Taurus
handgun on October 26, 2013. This photo was allowed into evidence by the Court
for limited purposes.
Number one, to complete the narrative of the seizure of the gun by the detective.
Number two, as proof of the defendant’s knowing possession of the 9mm Taurus
on October 26, 2013 as charged in the indictment. Number three, to identify the
handgun for which defendant had a permit on October 26, 2013. You may use this
evidence for these purposes only.
This evidence was not offered and must not be considered by you for the purpose
of proving that the defendant has a propensity or predisposition to commit the crime
of criminal possession of a firearm as charged in this case. If you find this evidence
believable, truthful and accurate, you may consider it only for the purposes that I
have explained to you and for no others.
(Tr. 93–94; but see Tr. 381 (THE COURT: “The defendant’s possession of the gun in this case is
not seriously in issue or contested.”).)
On cross-examination, Det. Muzikar testified that he called Petitioner’s mother-in-law, Ms.
Armstrong, “approximately an hour into arrest processing.” (Tr. 119.) The trial court sustained
the prosecution’s objection regarding the contents of the conversation. (Id.) Det. Muzikar also
testified that he did not know whether the firearms in the Five-Gun Photo were real. (Tr. 131.)
C. Tariq Chaudry’s Testimony
The cab driver, Tariq Chaudry, testified through an Urdu interpreter about the events of
October 26, 2013. (Tr. 137–162.) He testified that he was dispatched to the building where
Petitioner was picked up, and that once in the cab, Petitioner told Chaudry that he “ha[d] to go to
Bay [Street] and Victory [Boulevard]” in Staten Island. (Tr. 143–44, 154.) Chaudry further
testified that at no point did Petitioner state that he wanted to go to the 120th Precinct. (Tr. 144.)
D. NYPD Officer Anthony Santilli’s Testimony
The Four-Gun Photo was introduced into evidence through NYPD Officer Anthony
Santilli, a member of the NYPD’s computer crimes squad. (Tr. 235.) During that testimony, the
trial court gave the same limiting instruction that it gave during Det. Muzikar’s testimony:
Ladies and gentlemen, the People have put in evidence the photo that you now see
as People’s number 16 taken from the defendant’s cell phone which appears to
show four firearms.
First, I remind you that the defendant is on trial for possession of one 9mm Taurus
on October 26, 2013. This photo was allowed in evidence by the Court for limited
purposes. First, as proof of the defendant’s knowing and unlawful possession of a
9mm Taurus on October 26, 2013 as charged in the indictment in this case.
Two, to identify the handgun for which defendant had a permit on October 26,
2013. You may use this evidence for these purposes only. This evidence was not
offered and must not be considered by you for the purpose of proving that the
defendant had a propensity or predisposition to commit the crime of criminal
possession of a loaded firearm as charged in the indictment in this case. If you find
this evidence believable, truthful and accurate, you may consider it only for these
purposes that I have explained to you and for no others.
(Tr. 275; but see Tr. 381 (THE COURT: “The defendant’s possession of the gun in this
case is not seriously in issue or contested.”).)
Officer Santilli testified that the Five-Gun Photo may have been taken on May 8, 2013 and
the Four Gun Photo may have been taken on July 10, 2013 if Petitioner’s phone was set to the
correct date and time. (Tr. 302–03 (“[T]ime stamps on these photographs would be whatever the
phone was set to at the time.”).) However, Santilli could not state definitively whether the
photographs were taken on those dates, whether the firearms in the photographs were real, or
whether the 9mm Taurus for which Petitioner was arrested was depicted in the Four-Gun Photo or
the Five-Gun Photo. (Tr. 302–03, 306.)12

12 The prosecution showed an enlarged version of the Five-Gun Photo to the jury; however,
the trial court ruled that Officer Santilli could not testify that the gun in the enlarged photograph
E. Petitioner’s Motion to Dismiss and Motion to Strike
At the close of the prosecution’s case-in-chief, Petitioner moved to strike the Four-Gun
and Five-Gun Photos and to dismiss the case. (Tr. 312.) Petitioner argued:
First of all, based on the testimony as it came out through Officer Santilli,
specifically to the [re]liability of the time stamps of these photographs, I want to
renew my prior application that they be excluded. We were expecting [Santilli] to
come in and testify, pretty conclusively, these photographs were taken at exactly
this time which surprisingly is not his testimony. And given that we don’t know
what time they were actually taken, then the probative value that the People offered
them for is not there.
. . .
The other motion I have is for a trial order dismissal. Specifically referring to
counts one and two. Since the issue has been raised by the People’s own witness,
Detective Muzikar, about the gun buyback program, given that that issue has now
been raised and put before the jury, the People have the burden of proving beyond
a reasonable doubt that he was not going to the precinct. They have not introduced
any evidence of that whatsoever. All they have concentrated their evidence on is
that he possessed it on that day. And . . . I’m not challenging that portion of the
evidence, only the fact that they have not put in anything to show that he wasn’t
going to the precinct.
(Tr. 312–13.) With respect to the admissibility of the photographs, the prosecution argued that
they were “still relevant to establish the voluntarily surrendering aspects of Mr. Watson’s defense”
and that Officer Santilli “did testify . . . that whatever time that that phone was set to, that’s the
time that the pictures were taken.” (Tr. 314.) With respect to the motion to dismiss, the
prosecution argued:
[Petitioner] concedes the element [of] knowingly possess[ing a] loaded and
operable firearm. It is not in his home or place of business. As far as voluntarily
surrendering, the People have established that he was not on his way to the precinct
through testimony of the cabdriver, Mr. Tariq Chaudry as well as his trip sheet and
the statement that he made to Detective Muzikar.
(Tr. 314.)

was the same gun for which Petitioner was arrested because the enlargement was “too blurry.”
Instead, the parties were allowed to argue the issue to the jury. (Tr. 200–02.)
The trial court denied Petitioner’s motions, explaining that:
Even if specific time and date cannot be attributed to the photographs, they were
still on the defendant’s phone. Thus, in my judgment they would still be proof of
his knowing and unlawful possession of the gun. It would still be an issue for the
jury to decide whether, in fact, Officer Muzikar saw what he said he saw, that is,
the five handguns in the first photograph. And also to identify the handgun for
which defendant had a permit on October 26, 2013, which he brought up during his
initial contact with the police officer. So, the motion to strike is denied.
Motion to dismiss is denied, specifically in regard to the exemption. There is
sufficient, circumstantial evidence for the People to convince a jury beyond a
reasonable doubt that the defendant was not in the process of returning the gun to
the precinct. First of all, it would be highly unlikely, in my judgment, that someone
would be going to a precinct to return a gun with a per se weapon in his pocket.
Also, the destination to which he was going was not the precinct. There is sufficient
prima facie evidence in the record for the People to argue that . . . they met their
burden on the exemption. So that motion is denied as well.
(Tr. 314–15.)
F. Testimony of Petitioner’s Mother-in-Law Cheryl Armstrong
After ruling on Petitioner’s motion, the trial court asked the defense for an offer of proof
as to any witnesses he intended to call. (Tr. 316.) Petitioner’s counsel stated that he intended to
call Petitioner’s mother-in-law, Cheryl Armstrong, a senior police administrative aide at the 120th
Precinct. (Tr. 338–39.) This led to the following colloquy between the court and Petitioner’s
counsel:
THE COURT: . . . I want to know what they’re being called for. For example,
people cannot take the witness stand and say that the defendant called me and told
me I was going[—]I was on my way to the 120th Precinct to hand in the gun. That
would be inadmissible hearsay.
[DEFENSE COUNSEL]: I completely disagree with you on that . . . .
THE COURT: . . . [I]t is not coming in. You can make a record, that’s hearsay and
self-serving. . . .
[DEFENSE COUNSEL]: All right. Your Honor, prior consistent statement is
admissible in order to rebut an allegation of recent fabrication. That is exactly what
the People have done here. The evidence is that Mr. Watson told the police officer
that he was going to the precinct. On her opening statement, [the prosecution] made
very clear that their position is that this was a recent fabrication.13 Squarely within
this exception that a prior consistent statement is admissible to rebut that assertion
. . . .
THE COURT: What is the prior consistent statement?
[DEFENSE COUNSEL]: The prior consistent statement is exactly as your Honor
mentioned. That he had discussed with his wife and also with the mother-in-law
who works at the 120th Precinct, that he was going to be returning[—]taking this
gun into the precinct. Additionally, the mother-in-law, who works in the precinct,
is going to be coming in to authenticate the poster [for the Gun Buyback Program
in the front hallway of the precinct], the photograph that she took immediately
following this incident.
. . .
So, she’s going to testify as to that. Also, as to this prior consistent statement which
it’s squarely here. The statement is in evidence and the prosecutor has already
argued on their opening statement and will undoubtedly argue again on their closing
argument that this was a recent fabrication. Therefore, I am absolutely permitted
to put in a prior consistent statement to rebut that.
THE COURT: Well, I disagree. If that is the reason the witness is being asked to
testify, I will not allow it. You have an exception; however, if in order to establish
the buyback at the precinct, the witness may testify to what was posted. If she can
say it was on or about October 26th.
[DEFENSE COUNSEL]: Your Honor, so the record’s clear, I ask you please
explain why this does not fall within the prior consistent statement?
THE COURT: Because, as I said, it is hearsay. It is not a recent fabrication and it
is – it is simply self-serving. If defendant wants to tell it to the jury, it is up to him,
it is his choice. But it’s not coming in the back door and you have an exception.
. . .

13 The State argued during its opening statement, among other things, “[a]nd when the
defendant exits the cab, he says, I have a gun on me. Now ask yourselves, why would the defendant
volunteer this information? People submit self-preservation attempt number one. He can’t get
that gun off him without risking the police seeing him or worse shooting him . . . . And this is
where self-preservation attempt number two comes in. As Detective Muzikar is placing handcuffs
on the defendant, the defendant states, I have a license for it. The People submit to you that that
statement was not truthful . . . . So that statement was disproven here comes self-preservation
attempt number three. The next thing he tells Detective Muzikar is, I was on my way to the 120th
Precinct to turn it in . . . . Part of being a juror is using your common sense and ask yourself, does
any of this make sense? Or does the evidence show that the defendant was trying to avoid being
arrested?” (Tr. 18–20.)
[DEFENSE COUNSEL]: . . . If I am not allowed to this prior consistent statement,
does that mean the People are [precluded] from arguing on summation it is a recent
fabrication?
THE COURT: I don’t see how it is a recent fabrication . . . . They can argue that
defendant was lying based upon the evidence, that doesn’t mean it’s a recent
fabrication.
[DEFENSE COUNSEL]: If it is a fabrication after his arrest, then yes, it’s a recent
fabrication. So, if they’re not going to be allowed to argue that, I have no problem;
but if arguing that, I think the failure to allow us to present evidence of what was
said prior to the arrest would be reversible.
. . .
THE COURT: Your argument is on the record. You have an exception. If I made
a mistake, the Appellate Division will take care of it.
(Tr. 316–19, 321–22.) At that point, the trial day ended. (Tr. 322–24.)
The next morning, the court further explained the ruling it made the previous day regarding
Petitioner’s recent-fabrication argument:
I just want to add something to the record in regard to the legal argument that we
had yesterday in regard to the defense’s contention that they could put witnesses on
the witness stand to testify that the defendant told them that he was going to
surrender the weapon either to the precinct or pursuant to the buyback program.
First, I generally cite for the record People v. Reynoso, 73 N.Y.2d 816 (1988).14
First, it is clear beyond any doubt that the doctrine of recent fabrication has to do

14 The Court notes that Reynoso did not actually address the issue of recent fabrication. See
generally 73 N.Y.2d at 818–19. Rather, Reynoso discussed when evidence was properly
admissible to show a defendant’s state of mind. Specifically, the Reynoso defendant argued that
the trial court committed an error when it “excluded a statement made to [the] defendant’s sister,
within two hours after a shooting, that defendant believed the victim had been armed” because it
was admissible to “establish [the defendant’s] state of mind[.]” Id. at 818. The New York Court
of Appeals disagreed, holding:
Although defendant argued that this evidence was offered solely to establish his
state of mind, and thus was not hearsay . . . , the statement was irrelevant unless
offered to prove the truth of the matter asserted—that defendant believed the victim
was armed—and for that purpose it was inadmissible hearsay. While such
declarations may be received to show the declarant’s state of mind at the time the
statement was made, they are not admissible to establish the truth of past facts
contained in them. Here, the only relevancy of defendant’s statement would have
been to support his justification defense and establish the past fact of defendant’s
with the testimony of a witness, not evidence off the witness stand. Clearly any
such testimony would be hearsay and would be self-serving. In addition, in the
position the People were in, if they wished to use any of the statements made at
the car they were compelled by law to present to the jury both statements that they
believe were against the defendant, as well as, the defendant’s contention, so they
had to present the entire conversation including one of his contentions that he was
surrendering the gun to this precinct.
(Tr. 326–27.) The court then asked Petitioner to call his first witness, to which Petitioner stated
that he would call Ms. Armstrong to testify that “[s]he works at the 120[th] Precinct[,]” “to admit
the [Gun Buyback Program] poster, the [Gun Buyback Program] website[,] and a photograph of
the poster in the lobby of the 120[th] Precinct.” (Tr. 327.) Then Petitioner raised a new objection
to the Court’s limitation of Ms. Armstrong’s testimony:
[J]ust one quick response to what you said this morning . . . . Our position is that
it’s not hearsay. That hearsay is an out-of-court declaration used to prove for the
truth of the matter asserted. However, this is something that was said prior to the
arrest and, therefore, it could be considered by the jury the fact it was said and the
timeline. Even if you reject which I disagree with the prior consistent statement
argument, it’s still admissible and non-hearsay for that purpose.
(Tr. 327–28 (emphases added).) The court responded that the new, non-hearsay objection was
“added to the record” but that it “adhered to [its] decision.” (Tr. 328.) The court then asked
Petitioner’s counsel to bring Ms. Armstrong out so that she could be advised of the court’s ruling.
(Id.) Ms. Armstrong was brought into the courtroom and the court apprised her of the ruling it had
made in response to Petitioner’s protests:
[The court:] I just want to advise you [Ms. Armstrong] that you understand that I
have made a ruling in this case that you may not testify to any statement made to
you by the defendant in regard to his intentions in regard to the weapon on October
26, 2013, specifically that it was his intention to turn the weapon into the precinct
. . . . And, in addition, you may not testify to any conversations that you initiated
with him. So no conversations back and forth will be allowed.

prior beliefs. The prosecutor correctly characterized the statement as inadmissible
self-serving hearsay.
Id. at 818–19 (emphasis added).
(Tr. 329 (emphasis added).) Ms. Armstrong stated that she understood the trial court’s
instructions. (Id.) Petitioner’s counsel did not re-object to the trial court’s additional instruction
precluding Ms. Armstrong from testifying about “conversations back and forth” between her and
Petitioner regarding the Gun Buyback Program. (See generally Tr. 329.)15

In addition to her general testimony about the Gun Buyback Program, Ms. Armstrong
testified that Petitioner had been to the 120th Precinct “a few times” and knew where the 120th
Precinct was located. (Tr. 347–48, 355–56.) She further stated that the precinct was “a few
blocks” from Bay Street and Victory Boulevard. (Tr. 358.) She also testified that she was not on
duty the day that Petitioner was arrested. (Tr. 354.) Additionally, contrary to Det. Muzikar’s
testimony, Ms. Armstrong testified that she had never spoken to Det. Muzikar. (Tr. 350.)
G. Petitioner’s Renewed Motion to Dismiss
After the defense rested, Petitioner renewed his motion to dismiss “regarding the fact the
People can’t disprove this was a gun buyback situation.” (Tr. 361.) The trial court denied the
motion, stating “as I indicated yesterday there is in my judgment sufficient circumstantial evidence
that a jury could find beyond a reasonable doubt that the defendant was not in the process of

bringing the [gun] to the precinct or to the police when he was stopped by Detective Muzikar.”
(Tr. 361.)

15 Both the Appellate Division and Respondent characterize Petitioner’s lack of objection
after the court’s ruling as fatal to Petitioner’s claims regarding Ms. Armstrong’s testimony on
appeal. See Watson, 163 A.D.3d at 866–68; (Resp. Br., Dkt. 9-21, at 16, 20.) However, as
discussed infra in Discussion Section I.A.2, the Court finds that the Appellate Division and
Respondent misapplied New York’s contemporaneous objection rule and that, in fact, Petitioner’s
objection to the preclusion of his conversation with Ms. Armstrong was properly preserved at trial.
H. Defense Summation
On December 14, 2015, the parties gave their closing arguments. As part of the defense’s
closing, Petitioner’s counsel stated, “I don’t want you to draw any inference one way or the other
from the fact that [Ms. Armstrong] didn’t talk about any conversation that she may or may not
have had with Mr. Watson. There [are] legal reasons why she can’t talk about that, whether it

happened or not.” (Tr. 418.) He also attempted to explain why Petitioner gave the cab driver Bay
Street and Victory Boulevard as his destination rather than the 120th Precinct:
[DEFENSE COUNSEL]: When going to a location that the cab driver may not be
familiar with the streets or may not understand exactly where you’re going, you
give them a major landmark.
[Objection overruled.]
[DEFENSE COUNSEL]: In this case, doesn’t that make sense? That Mr. Watson,
finding a driver who doesn’t have a perfect mastery of English, maybe gave a major
way point, Bay and Victory, with the intention that once he got—
[Objection sustained.]
[DEFENSE COUNSEL]: You may infer from these facts that it’s possible. . . . So
it is a fair inference that even if you tell somebody a particular intersection that may
not be what your ultimate destination is.
[Objection sustained.]
[DEFENSE COUNSEL]: You heard in evidence from Ms. Armstrong that when
you get to that intersection, if you turn left and go four block[s] you’d be at the
precinct. Whether you do that in a cab or on foot that is absolutely something that
can be done and is probably often done.
[Objection sustained as “to the last comment.”]
[DEFENSE COUNSEL]: Now let’s take a look at the map. . . . So under [the
prosecution’s] theory he walked one-third of the way to take a cab to the last few
blocks. Does that make sense? Or if you look at where this intersection is, is it
possible that this short cab ride was actually a slightly longer cab ride?
[Objection sustained.]
[DEFENSE COUNSEL]: Now they’re saying that he got into the car at 516 Jersey
Street . . . but if you just look at the distances [in the map demonstrative], it doesn’t
make sense that this was his final destination. . . .
[Objection sustained. The trial court admonished Petitioner to make “[r]easonable
arguments based upon the evidence.”]
[DEFENSE COUNSEL]: Now if you look at where Mr. Watson got in the cab and
you look at where the precinct is, what is the major directional way point between
those two points? It’s Bay and Victory.
[Objection overruled.]
[DEFENSE COUNSEL]: Now this alone constitutes reasonable doubt. Because
the People have to prove to you beyond a reasonable doubt that Bay and Victory
was his final destination. He did not intend to go left and go to the precinct.
[Objection sustained.]
[DEFENSE COUNSEL]: So if there was even a possibility that Mr. Watson
intended to go from Bay and Victory to the precinct than that is reasonable doubt
and you must acquit.
[Objection sustained.]
THE COURT: . . . I am going to tell you that if you find that the defendant was en
route to the precinct to voluntarily surrender that weapon then you must find him
not guilty. So that is what the attorney should be focusing on and nothing else in
regard to the route to the precinct.
(Tr. 395–99.)
I. The Prosecution’s Summation
In its summation, the prosecution argued, among other things:
[T]here are several reasons why we know he was not surrendering this firearm to
the police.
Reason number one. His mother-in-law works at the 120th Precinct. . . . He has a
direct line to the precinct. If he was really turning this gun in why not give to his
mother-in-law? She testified that she helps civilians quite a few times turn in guns
for cash. . . .
Another reason we know he wasn’t turning this gun in, Ms. Armstrong testified she
wasn’t working that Saturday, October 26th. Why wait for a day that your mother-
in-law is not working at the precinct? . . . .
Reason number two we know the defendant was not in the act of voluntarily
surrendering his firearm. He’s been to the 120th Precinct before and we learned
from his mother-in-law. So you can infer he knows where it’s located, right? . . .
He knows where that precinct is. Yet he doesn’t call his mother-in-law.
(Tr. 428–30.)
At the conclusion of the prosecution’s summation, Petitioner objected to the foregoing
arguments:
I just want the record to be clear that I objected to the portion of the closing
argument regarding the mother-in-law. Especially when the People know that I
was prohibited from allowing her to testify . . . that [she] works at the precinct and
the discussions that were had before he went to the precinct and how it was affected
by her working there . . . . as I stated on the record[,] it is not hearsay.
(Tr. 448 (emphasis added).) The trial court denied Petitioner’s objection again:
[The court:] But it would have been -- if you had offered evidence the he had called
-- his mother-in-law said he called me, he was turning in the gun on that day. Does
that make any sense that she wasn’t working that day?
[Petitioner’s counsel:] It absolutely makes sense in light of the instructions she gave
him.
[The court:] No. All right. I have made my decision.
[Petitioner’s counsel:] I just want to make sure that’s in the record.
[The court:] It’s absolutely in the record.
(Tr. 449.)
J. Jury Charge, Deliberations, and Verdict
After the parties’ summations, the trial court charged the jury. (Tr. 450–84.) As part of
the instructions, the trial court reiterated its limiting instructions with respect to the Four-Gun
Photo and Five-Gun Photo. (Tr. 463–65.)
The jury sent only one note during its deliberations, requesting to see, among other things,
“Ms. Armstrong’s testimony regarding the turning in of the firearm if it was ever discussed
between her and the defendant on the day of the arrest and prior to.” (Tr. 486.) Petitioner’s counsel
suggested the following response: “due to evidentiary rules[,] this a subject that she was not
permitted to testify about and they shouldn’t draw any inference either way about that if she did
or didn’t have a conversation.” (Tr. 487.) The prosecution asked the trial court “to instruct the
jury that there is no evidence of [a conversation].” (Tr. 487.) The trial court ruled:
All the alternatives I have gone over one way or another are not fair to either party.
And suggesting that it was a result of an evidentiary ruling invites the jury to
speculate that there was a communication they’re just being kept away from. So
my response is there is nothing in the record of the trial in regard to this subject.
I’m going to leave it at that.
(Tr. 488–89.) Petitioner objected to the proposed instruction, stating, “[t]his is exactly the
prejudice that Mr. Watson suffers by [the prosecution] making that improper argument . . . about
his mother-in-law working at the 120th Precinct. . . . As well as the prejudice of not being
[allowed] to put in this otherwise admissible non-hearsay[.]” (Tr. 489–90.) The trial court then
instructed the jury, “[t]here is nothing in the record of the trial in regard to this subject.” (Tr. 490–
91.)
That same day, Petitioner was found guilty of, inter alia, criminal possession of a weapon
in the second degree. (Tr. 495–96.)
K. Sentencing
On January 7, 2016, Petitioner was sentenced to a five-year determinate sentence. (Dkt. 9-
20.) On February 25, 2016, the Appellate Division, Second Department (“Appellate Division”),
stayed Petitioner’s sentence pending the hearing and determination of the appeal. Watson, 163
A.D.3d at 855.
IV. Direct Appeal
On June 28, 2016, Petitioner filed his opening brief in support of his appeal to the Appellate
Division. (See generally Petitioner’s Appellate Division Brief (“Pet. App. Br.”), Dkt. 9-1.) In
relevant part, Petitioner raised the following claims: (1) the trial court erred in admitting the Four-
Gun and Five-Gun Photos; (2) the trial court erred in disallowing cross-examination of Det.
Muzikar about the Section 1983 lawsuits against him; (3) the trial court erred in curtailing defense
counsel’s summation and his right of fair comment on the evidence as to why Petitioner directed
the cab driver to Bay Street and Victory Boulevard rather than the 120th Precinct; and (4) the trial
court erred in improperly limiting Ms. Armstrong’s testimony regarding her conversation with
Petitioner about the Gun Buyback Program. (Id.)
On July 18, 2018, a panel majority affirmed Petitioner’s conviction, with one justice
issuing a dissent. People v. Watson, 163 A.D.3d 855 (N.Y. App. Div. 2018).

A. Majority Opinion
The majority held, with respect to the Four- and Five-Gun Photos:
Here, while the unredacted photographs at issue bore some marginal relevance to
the testimony in this case, we agree with the defendant that said relevance was
outweighed by the potential for prejudice arising from the depiction of what
appeared to be other firearms in the photographs. However, while the Supreme
Court improvidently exercised its discretion in declining to redact the subject
photographs, we disagree with our dissenting colleague that the defendant was
“severely prejudiced” by the error. Rather, we conclude that the evidence of the
defendant’s guilt, without reference to the error, was overwhelming, and there was
no significant probability that the jury would have acquitted the defendant had it
not been for the error.
Id. at 859 (internal citations omitted).
With respect to the cross-examination of Det. Muzikar, the majority held:
We conclude that the Supreme Court did not improvidently exercise its broad
discretion in precluding defense counsel from inquiring into the underlying facts of
two of the three federal lawsuits at issue. The complaints in those actions only
contained broad conclusory allegations of unlawful police action by large groups
of officers, and did not set forth specific acts of misconduct against Officer Muzikar
individually. . . . However, we further conclude that the court improvidently
exercised its discretion in precluding cross-examination of Officer Muzikar as to
the underlying facts of the third lawsuit. The complaint in that lawsuit specifically
alleged that Officer Muzikar and two fellow officers pulled the plaintiffs’ vehicle
over, ordered the plaintiffs out of their car, and conducted a search of the vehicle
without probable cause. Moreover, upon recovering a small folding knife from the
glove compartment, the officers allegedly falsely claimed that the object was in fact
a gravity knife, and placed the plaintiffs under arrest for its possession. In our view,
these specific allegations of misconduct, focusing on Officer Muzikar individually,
were proper material for defense counsel’s efforts to impeach the officer at trial,
and the proposed questioning with regard to the underlying facts of this lawsuit
should have been permitted.
Nevertheless, for the reasons discussed previously, we find that the error was
harmless under the circumstances of this case.
Id. at 860–61 (internal citations omitted).
With respect to defense counsel’s summation, the majority held:
[T]he Supreme Court appropriately limited the defense summation to matters of
evidence that were properly adduced at trial. The court also properly sustained the
prosecutor’s objections to defense summation comments that were based on
wholesale speculation, violated the court’s evidentiary rulings, or were not fair
comment on the evidence.
Id. at 868–69 (internal citations omitted).
With respect to Ms. Armstrong’s testimony about Petitioner’s statements regarding his
intention to return the gun, the majority held:
Here, the court appropriately exercised its broad discretion by preventing
inadmissible hearsay testimony from being elicited at trial, thereby avoiding any
improper influence such evidence might have had on the jury. The court was not
required to passively await an attempt to elicit such inadmissible testimony before
the jury, and the inevitable objection by the prosecution that would follow, before
ruling on the issue. Similarly, the court’s action did not blindside the defense.
Rather, the trial record demonstrates that the court expressed its concern over the
potential hearsay problem in advance of the witness taking the stand and patiently
discussed the issue at length with counsel outside the jury’s presence before
finalizing its ruling and resuming the trial. Contrary to the defendant’s current
contention, and the position of our dissenting colleague, the court properly ruled
that the proffered hearsay testimony regarding statements made by the defendant to
Armstrong was not admissible under a prior consistent statement theory.
A witness’ trial testimony ordinarily may not be bolstered with pretrial statements.
However, a recognized exception to the prohibition against such bolstering permits
evidence of prior consistent statements when the witness’ testimony is assailed as
a recent fabrication, provided that the proffered prior consistent statement was
made at a time before the motive arose for the witness to testify falsely. . . . Here,
as an essential part of its case-in-chief, the prosecution elicited, through the
testimony of a police officer, the defendant’s statement regarding his intent to
surrender the gun. As was his right, the defendant elected not to take the stand and
subject himself to cross-examination, instead relying upon the officer’s testimony
to establish his defense of temporary lawful possession of the weapon. Having so
elected, he foreclosed any possibility that the prosecutor would cross-examine him
and challenge his defense as a recent fabrication during such questioning. Thus,
since the requisite claim of a recent fabrication was absent, the defendant could not
adduce evidence of a prior consistent statement to rebut it.
In this regard, the defendant’s assertion that, during her opening statement, the
prosecutor accused him of a recent fabrication is without merit. Rather, the
prosecutor merely proposed to the jury that the defendant’s claim that he was going
to the precinct station house to surrender the gun would be contradicted by the
livery driver’s testimony regarding the different destination to which the defendant
had asked to be driven. Such an opening statement is not the evidentiary equivalent
of confronting the defendant on cross-examination with a claim of recent
fabrication and thus lacks the testimonial element required for the admission of a
prior consistent statement. Moreover, the prosecutor never accused the defendant
of recently altering his account or concocting a new explanation for his possession
of the gun, but instead maintained that the defendant’s explanation had been false
from its inception. Under these circumstances, the use of an alleged prior consistent
statement to rehabilitate the defendant’s credibility was unavailable. . . .
Id. at 863–66 (citing People v. Singer, 300 N.Y. 120, 124 (1949); People v. McDaniel, 81 N.Y.2d
10, 18 (1993); People v. Davis, 44 N.Y.2d 269, 277–78 (1978)).
The majority went on to state that any argument that Armstrong’s testimony regarding
Petitioner’s statements of intent, “should have been admitted as evidence of [Petitioner’s] state of
mind[,]” was “both unpreserved for appellate review and not before this Court for consideration
on the present appeal.” Id. at 866–67. The majority addressed this issue in the context of the
dissent’s reasoning:
Unlike the defendant, who solely relies on an inapplicable prior consistent
statement analysis in contending in his appellate brief that it was error to exclude
evidence of the statement he allegedly made to Armstrong, our dissenting colleague
instead primarily argues that Armstrong’s proffered testimony regarding the
defendant’s alleged statement to her of his intention to surrender the gun should
have been admitted as evidence of the defendant’s state of mind rather than for the
truth of its contents, thereby obviating any hearsay objection. However, the
defendant never advanced this ‘state of mind’ argument at the trial level, nor does
he currently contend on this appeal that his purported statement [of intent] to
Armstrong should have been admitted as evidence of his state of mind.
Id. at 866.
Separately, with respect to Ms. Armstrong’s testimony about conversations with Petitioner
regarding the Gun Buyback Program’s procedures, the majority held:
The defendant does presently argue a “state of mind” hearsay exception with
respect to the Supreme Court’s expansion of its ruling to also prohibit testimony
regarding any discussions between Armstrong and the defendant about the topic of
surrendering a gun under the buyback program . . . . [T]he court instructed
Armstrong that she could not testify as to the defendant’s prior consistent statement
to her, and that she was further prohibited from testifying “to any conversations that
you initiated with him. So no conversations back and forth will be allowed.”
Significantly, defense counsel voiced no objection of any kind to this additional
restriction, thereby suggesting that he had no evidence of such conversations to
offer, and instead went on to elicit testimony from Armstrong regarding the
buyback program. . . . Accordingly, the defendant’s current contention, raised for
the first time on appeal, that the court should have permitted unoffered evidence of
the unspecified discussions between Armstrong and the defendant regarding the
buyback program under a “state of mind” hearsay exception, is unpreserved for
appellate review . . . The defendant’s failure to place this issue on the record
precludes our effective review of the speculative arguments he now makes in this
regard.
We note that our dissenting colleague’s suggestions that such testimony was
actually offered by the defense, and that defense counsel actually argued at trial that
it was admissible to establish the defendant’s state of mind . . . are without support
in the record. Rather, the record reveals that, as a brief afterthought to his lengthy
and legally inapposite “prior consistent statement” argument, defense counsel made
only a conclusory assertion that his client’s statement to Armstrong would
constitute admissible nonhearsay. Significantly, defense counsel at no point in the
trial posited that any testimony by Armstrong regarding conversations with the
defendant should be admitted to prove the defendant’s state of mind. Moreover,
the mere perfunctory utterance that a statement was ‘not hearsay’ or was
‘nonhearsay’ completely failed to apprise the Supreme Court that the defendant was
invoking the state of mind exception to the hearsay rule.
Id. at 866–68 (emphases added) (internal citations omitted).
B. Dissenting Opinion
By contrast, the dissent stated that Petitioner was “deprived . . . of his fundamental right to
present a defense” because:
In sum, the Supreme Court’s rulings preemptively disabled the defendant from
putting on a defense. The court precluded the defendant’s key witness from
corroborating his defense. The defendant was severely prejudiced by the admission
into evidence of uncharged crimes. He was not permitted to use proper
impeachment material for cross-examination of the arresting officer. On
summation, he was not allowed to make fair comment on what was left of the
evidence supporting his defense.
Id. at 873, 879 (Barros, J., dissenting). The dissent concluded, “[s]ince these errors, in and of
themselves, deprived the defendant of his fundamental rights to present witnesses in his own
defense and to a fair trial, I would reverse the judgment of conviction and order a new trial.” Id.
at 877 (Barros, J., dissenting).

C. Leave to Appeal
Petitioner’s leave to appeal to the New York Court of Appeals was denied on September
6, 2018. People v. Watson, 32 N.Y.3d 1009 (N.Y. 2018). Shortly thereafter, Petitioner began
serving his custodial sentence. (Pet., Dkt. 1, at 4.)
V. Federal Habeas Petition
Petitioner timely filed the instant habeas petition on September 6, 2019. (Dkt. 1.)
Respondent filed his opposition on February 25, 2020. (Dkt. 9.) Petitioner filed a reply on March
17, 2020. (Dkt. 10.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), an application for a writ of habeas corpus by a person in custody pursuant to
a state court judgment may only be brought on the grounds that his or her custody is “in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). To obtain relief,
a petitioner must show that the state court decision, having been “adjudicated on the merits in State
court proceedings,” is either “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or “based on
an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see also Johnson v. Williams, 568 U.S. 289, 292 (2013). A
claim is “adjudicated on the merits” in the state court if the state court “(1) disposes of the claim
on the merits, and (2) reduces its disposition to judgment.” Bell v. Miller, 500 F.3d 149, 155 (2d
Cir. 2007) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
A state court’s decision is “contrary to” Supreme Court precedent “if the state court applies
a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or “if the state

court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to” the Supreme Court's result. Bell v. Cone, 543 U.S. 447, 452–
53 (2005) (internal citation and quotation marks omitted). A state court’s decision “involve[s] an
unreasonable application of” Supreme Court precedent if there is “no possibility fair-minded
jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). In other words, a state court decision must be
“more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). These standards
are “difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice systems, and not as
a means of error correction.” Greene v. Fisher, 565 U.S. 34, 43 (2011) (citation and internal

quotation marks omitted).
A federal court may not grant habeas relief to a prisoner in state custody unless the prisoner
has exhausted state-court remedies. See 28 U.S.C. § 2254(b)(1); see also Aparicio v. Artuz, 269
F.3d 78, 89 (2d Cir. 2001) (“If anything is settled in habeas corpus jurisprudence, it is that a federal
court may not grant the habeas petition of a state prisoner unless it appears that the applicant has
exhausted the remedies available in the courts of the State[.]” (internal citation and quotation marks
omitted)). This exhaustion requirement includes two parts. First, “state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.” Galdamez v. Keane, 394 F.3d 68, 73
(2d Cir. 2005) (emphasis omitted) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In
New York, this means a habeas petitioner must first appeal the relevant conviction to the Appellate
Division, and then seek further review by applying to the Court of Appeals for a certificate granting
leave to appeal. Id. at 74 (citing, inter alia, Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000)).

Second, habeas petitioners must have “‘fairly presented [their] claims to the state courts,’ such that
the state court had a fair opportunity to act.” Id. at 73 (quoting O’Sullivan, 526 U.S. at 848); see
also Aparicio, 269 F.3d at 89–90 (“To satisfy § 2254’s exhaustion requirement, a petitioner must
present the substance of the same federal constitutional claim[s] that he now urges upon the federal
courts to the highest court in the pertinent state.” (internal citation and quotation marks omitted)).
DISCUSSION
Several of the trial court’s rulings in this case are troubling.16 However, the Court finds
that only the preclusion of testimony about Ms. Armstrong’s conversations with Petitioner
concerning the Gun Buyback Program’s procedures meets the requirements for granting habeas
relief. The Court therefore grants Petitioner’s request for habeas relief based on the trial court’s
erroneous exclusion of Ms. Armstrong’s testimony, which violated his constitutional right to due

process.
I. Petitioner’s Claim Regarding Ms. Armstrong’s Testimony is Granted in Part
On direct appeal, Petitioner argued that both (1) his statements to Ms. Armstrong about his
intentions to return the gun through the Gun Buyback Program, (Pet. App. Br., Dkt. 9-1, at 38–46)
and (2) his conversations with Ms. Armstrong about the Program’s procedures for voluntarily

16 These rulings include the preclusion of Ms. Armstrong’s testimony regarding her
conversation with Petitioner about the Gun Buyback Program, the admission of the unredacted
Four-Gun and Five-Gun Photos, the curtailment of defense counsel’s summation, and the
corresponding leeway given to the prosecution in its summation—as well as the cumulative effect
of these rulings on the fairness of Petitioner’s trial.
surrendering a gun, should have been admitted as non-hearsay statements to show Petitioner’s state
of mind (id. at 46–48). As to Petitioner’s first argument, the Court finds the exclusion of his
statements of intent unreviewable because Petitioner did not raise the argument in his direct appeal
and it is therefore procedurally defaulted.17

However, as to Petitioner’s second argument, the Court agrees that his conversations with
Ms. Armstrong regarding the Program’s procedures for returning firearms were admissible as non-
hearsay going to Petitioner’s state of mind. Further, the Appellate Division’s procedural bar ruling
was not an adequate state ground to support the state court judgment because the Appellate
Division unevenly and erroneously applied New York’s contemporaneous objection rule to
Petitioner. Thus, this Court is not required to defer to the Appellate Division’s conclusion
regarding Petitioner’s conversations with Ms. Armstrong about the Gun Buyback Program’s

17 In Petitioner’s direct appeal, Petitioner’s counsel only argued that Petitioner’s statements
about his intention to return the gun were admissible as prior consistent statements. (Pet. App.
Br., Dkt. 9-1, at 46.) Inexplicably, Petitioner’s counsel did not re-argue that Petitioner’s statements
of intent were also admissible as non-hearsay on appeal, despite having raised that objection at
trial. See Watson, 163 A.D.3d at 866 (finding that Petitioner “does [not] currently contend on this
appeal that his purported statement to Armstrong should have been admitted as evidence of his
state of mind. Accordingly, this issue is . . . not before this Court for consideration on the present
appeal[.]” (See also generally Pet. App. Br., Dkt. 9-1 (only asserting Petitioner’s claims regarding
his statements of intent under the prior consistent statement theory but not under the non-hearsay
theory).) Accordingly, Petitioner’s counsel did not “fairly present” or exhaust Petitioner’s claim
that his statements of intent were admissible as non-hearsay. See Torres v. O’Meara, 353 F. Supp.
3d 180, 190 (N.D.N.Y. 2019) (“To properly exhaust his claims, petitioner must do so both
procedurally and substantively. Procedural exhaustion requires that the petitioner raise all claims
in state court prior to raising them in a federal habeas corpus petition . . . Substantive exhaustion
requires that the petitioner ‘fairly present’ each claim for habeas relief in ‘each appropriate state
court . . . .’” (citations and quotation marks omitted)). As a result, Petitioner’s claim regarding his
statements of intent are procedurally defaulted and cannot be reviewed by this Court. See Shinn
v. Ramirez, 142 S. Ct. 1718, 1727–28 (2022) (“A federal habeas court generally may consider a
state prisoner's federal claim only if he has first presented that claim to the state court in accordance
with state procedures. When the prisoner has failed to do so, and the state court would dismiss the
claim on that basis, the claim is ‘procedurally defaulted.’”).
procedures. Reaching the merits of Petitioner’s claim, the Court concludes that the trial court’s
exclusion of those conversations deprived Petitioner of his constitutional right to present a defense
and violated his due process rights. The Court also finds that this error was not harmless.
Accordingly, the Court grants Mr. Watson habeas relief and vacates his conviction and sentence.

A. Independent and Adequate State Grounds
1. Legal Standard
“The independent and adequate state ground doctrine first arose in the context of direct
appeals to the Supreme Court from final judgments of the state courts. Under that doctrine the
Supreme Court ‘will not review a question of federal law decided by a state court if the decision
of that court rests on a state law ground that is independent of the federal question and adequate to
support the judgment.’” Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). The state law ground can be substantive or procedural and
applies “in the context of federal courts reviewing applications for a writ of habeas corpus[.]” Id.
“The Supreme Court repeatedly has held that ‘the question of when and how defaults in
compliance with state procedural rules can preclude . . . consideration of a federal question is itself

a federal question.’” Id. (quoting Johnson v. Mississippi, 486 U.S. 578, 587 (1988)). Specifically,
a federal court “will deem a state court’s finding of procedural default ‘adequate’ if there is a ‘fair
and substantial’ basis in state law for the state court’s determination.” Id. at 78. Thus, courts in
the Second Circuit have generally “deferred to findings of procedural default as long as they are
supported by a ‘fair or substantial basis’ in state law.” Id. (collecting cases).
New York’s codified contemporaneous objection rule preserves for review only those
questions of law where “a protest . . . was registered, by the party claiming error, at the time of
such ruling or instruction or any subsequent time when the court had an opportunity of effectively
changing the same.” N.Y. Crim. Proc. § 470.05. The rule “require[s], at the very least, that any
matter which a party wishes the appellate court to decide have been brought to the attention of the
trial court at a time and in a way that gave the latter the opportunity to remedy the problem and
thereby avert reversible error.” People v. Luperon, 623 N.Y.S.2d 735, 738–39 (1995); see also
Silverman v. Edwards, 69 F. App’x 489, 491 (2d Cir. 2003) (“[A] question of law will be

considered preserved for appellate review when it is interjected at the fact-finding level in such a
manner and at such a time as to fairly apprise the court and the opposing party of the nature and
scope of the matter contested.” (quoting People v. Jones, 440 N.Y.S.2d 248, 261 (N.Y. App. Div.
1981))).
However, “when ‘a state appellate court refuses to review the merits of a criminal
defendant’s claim of constitutional error because of his failure to comply with . . . a
“contemporaneous objection” rule,’ a federal court may review the merits of such a claim when
the state court ‘unevenly’ applies its contemporaneous-objection rule.” Silverman, 69 F. App’x
at 491 (emphasis added) (quoting Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990) and citing
Williams v. Lane, 826 F.2d 654, 659 (7th Cir. 1987)). Importantly, federal courts have found that

a state court “unevenly” applies the contemporaneous objection rule if the record shows that
defense counsel did, in fact, lodge a contemporaneous objection and properly preserve the issue.
See id. (ruling that the New York Appellate Division had “unevenly applied its contemporaneous-
objection rule because, under New York law, defense counsel’s request at trial was sufficient to
preserve the issue . . . [and] because the Appellate Division, after finding [the petitioner’s] claim
procedurally barred, did not adjudicate the claim on the merits, [the Circuit is] not obligated to
defer to that conclusion.”); Williams, 826 F.2d at 659 (rejecting state appellate court’s finding of
procedural default, premised on counsel’s failure to make a contemporaneous objection, where
record revealed that trial counsel had, in fact, made the necessary objection).
2. The Appellate Division Unevenly Applied Contemporaneous Objection
Rule
The Appellate Division unevenly applied New York’s contemporaneous objection rule to
Petitioner because his counsel did contemporaneously object, several times, to the trial court’s
exclusion of Ms. Armstrong’s testimony regarding their conversations about the Gun Buyback
Program’s voluntary return procedures.
First, under New York’s contemporaneous objection rule, a defendant’s contemporaneous
objection preserves an issue even if the objection comes before the court’s ruling, if the court’s
ruling is made in response to the defendant’s objection. See N.Y. Crim. Proc. Law § 470.05(2).
Section 470.05(2) provides:

For purposes of appeal, a question of law with respect to a ruling or instruction of
a criminal court during a trial or proceeding is presented when a protest thereto was
registered, by the party claiming error, at the time of such ruling or instruction or
at any subsequent time when the court had an opportunity of effectively changing
the same. Such protest need not be in the form of an “exception” but is sufficient
if the party made his position with respect to the ruling or instruction known to the
court, or if in re[s]ponse18 to a protest by a party, the court expressly decided the
question raised on appeal. In addition, a party who without success has either
expressly or impliedly sought or requested a particular ruling or instruction, is
deemed to have thereby protested the court’s ultimate disposition of the matter or
failure to rule or instruct accordingly sufficiently to raise a question of law with
respect to such disposition or failure regardless of whether any actual protest thereto
was registered.
Id. (emphasis added). In other words, a New York defendant is deemed to have lodged a proper
contemporaneous objection to a trial court’s ruling, if that objection is the cause of the state court’s
ruling and elicited the issue raised on appeal. See People v. Colon, 847 N.Y.S.2d 44, 47 (N.Y.
App. Div., 2007) (“A 1986 amendment to the statute defining New York’s contemporaneous-
objection rule, CPL 470.05(2), amended the second sentence thereof by adding to it a final clause

18 There is a typographical error in New York Criminal Procedure Law § 470.05(2).
providing that a timely protest is sufficient to preserve a question of law if, inter alia, ‘in reponse
[sic] to a protest by a party, the court expressly decided the question raised on appeal[.]’”); id. at
48 (noting the crucialness of rule’s “requirements of a timely ‘protest by a party’ and a causal
nexus between the protest and the question ‘expressly decided’ . . . .”); People v. Reyes, 908

N.Y.S.2d 14, 19 (N.Y. App. Div. 2010) (“[A] ruling preserves an issue of law only if there is a
causal nexus between the ruling and a protest by a party[.]” (McGuire, J., concurring)).
Here, the Appellate Division held that Petitioner’s argument—that a “‘state of mind’
hearsay exception [applied] with respect to the Supreme Court’s . . . ruling to . . . prohibit testimony
regarding any discussions between Armstrong and [Petitioner] about the topic of surrendering a
gun under the buyback program”—was not preserved for review under New York’s
contemporaneous objection rule. Watson, 163 A.D.3d at 867–68. Specifically, the state appellate
court recounted that in the record, the trial court “instructed Armstrong that she could not testify
as to the defendant’s prior consistent statement to her, and that she was further prohibited from
testifying ‘to any conversations that you initiated with him[,]’” to which “defense counsel voiced

no objection of any kind to this additional restriction . . . and instead went on to elicit testimony
from Armstrong” pursuant to the Court’s ruling. Id. at 867. However, the Appellate Division
inexplicably ignored the fact that the trial court’s “additional restriction” was a part of the court’s
“ruling” in response to Petitioner’s non-hearsay objection. Indeed, even the trial court
characterized its ruling as such:
[Petitioner’s counsel]: . . . Our position is that [Petitioner’s statements to Ms.
Armstrong are] not hearsay. . . . [T]his is something that was said prior to the arrest
and, therefore, it could be considered by the jury [for] the fact it was said and the
timeline. Even if you reject[,] which I disagree with[,] the prior consistent
statement argument, it’s still admissible and non-hearsay for that purpose.
[The court:] That’s added to the record. I adhere to my decision. As I said
yesterday and I will repeat today, you have an exception. . . . Please bring Ms.
Armstrong in . . . I just want to advise her of my ruling.
(Tr. 327–38.) Once Ms. Armstrong was brought in, the court advised her of its ruling in response
to Petitioner’s non-hearsay objection:
I just want to advise you that you understand that I have made a ruling in this case
that you may not testify to any statement made to you by the defendant in regard to
his intentions in regard to the weapon . . . specifically that it was his intention to
turn the weapon into the precinct. . . . And, in addition, you may not testify to any
conversations that you initiated with him. So no conversations back and forth will
be allowed. Do you understand that ruling?
(Tr. 329.) Thus, the Appellate Division’s—and Respondent’s—singular focus on Petitioner’s lack
of objection after the ruling is completely inapposite. Here, the objection of Plaintiff’s counsel
before the trial court’s ruling satisfies New York’s contemporaneous objection rule because the
objection elicited the court’s ruling. N.Y. Crim. Proc. § 470.05(2).
Next, the Appellate Division reasoned that even if Petitioner did object, the objection was
a “mere perfunctory utterance that [their conversation] was ‘not hearsay’ or was ‘nonhearsay’
[which] completely failed to apprise the [trial court] that [Petitioner] was invoking the state of
mind exception to the hearsay rule.” Watson, 163 A.D.3d at 868. This Court has reviewed the
record, and finds that defense counsel did, in fact, lodge several contemporaneous objections to
the trial court’s exclusion of Petitioner’s statements, which sufficiently apprised the trial court that
Petitioner was seeking to admit the evidence as non-hearsay evidence of Petitioner’s state of mind.
First, after the trial court further explained its rejection of counsel’s prior-consistent-statement
theory, but before Ms. Armstrong testified, Petitioner clearly argued that his statements to Ms.
Armstrong were admissible for non-hearsay purposes:
[The Court:] I just want to add something to the record in regard to the legal
argument that we had yesterday in regard to the defense’s contention that they could
put witnesses on the witness stand to testify that the defendant told them that he
was going to surrender the weapon either to the precinct or pursuant to the buyback
program.
First, I generally cite for the record People v. Reynoso, 73 N.Y.2d 816 (1988). . . .
[Petitioner’s counsel:] Our position is that it’s not hearsay. That hearsay is an out-
of-court declaration used to prove for the truth of the matter asserted. However,
this is something that was said prior to the arrest and, therefore, it could be
considered by the jury the fact it was said and the timeline. Even if you reject which
I disagree with the prior consistent statement argument, it’s still admissible and
non-hearsay for that purpose.
[The court:] That’s added to the record. I adhere to my decision. . . .
(Tr. 326–28.)19 Then after the prosecutor’s summation, Petitioner’s counsel reiterated his non-
hearsay objection:
[Petitioner’s counsel:] I just want the record to be clear that I objected to the portion
of the closing argument regarding the mother-in-law. Especially when the People
know that I was prohibited from allowing her to testify about that exact issue.
[The court:] What issue?
[Petitioner’s counsel:] [T]hat his mother-in-law works at the precinct and the
discussions that were had before he went to the precinct and how it was affected by
her working there.
[The court:] Al[right]. Well, there again, that would have been hearsay. I would
not have allowed it.
[Petitioner’s counsel:] And again, as I stated on the record it is not hearsay. It is
permissible --
[The court:] Is there anything else? I have already decided that.
[Petitioner’s counsel:] I understand that you have decided it, Judge. But based on
that, considering that they know that we were prohibited from eliciting testimony
on that, they shouldn’t have been able to argue to the jury that particular argument
knowing that the facts are there, but I wasn’t allowed to do it because of your
Honor’s interpretation of hearsay.
[The court:] But it would have been – if you had offered evidence he had called –
his mother-in-law said he called me, he was turning in the gun on that day. Does
that make any sense that she wasn’t working that day?

19 As further evidence of the trial court’s understanding that Petitioner’s counsel was
raising—or would raise—a state-of-mind objection, the Court notes that People v. Reynoso was a
case specifically about when testimony qualified as non-hearsay going to a defendant’s state of
mind. See supra note 14 (discussing Reynoso, 73 N.Y.3d at 818–19.)
[Petitioner’s counsel:] It absolutely makes sense in light of the instructions she gave
him.
[The court:] No. All right. I have made my decision.
[Petitioner’s counsel:] I just want to make sure that’s in the record.
[The court:] It’s absolutely in the record.
(Tr. 448–449.) And again, after the jury sent a note requesting to see Ms. Armstrong’s testimony
about whether she and Petitioner ever discussed him turning in the firearm, Petitioner’s counsel
argued that such a question verified that his client was prejudiced by “not being able to put in this
otherwise admissible non-hearsay” testimony from Ms. Armstrong. (See Tr. 489–90 (emphasis
added).) To this final objection, the trial court responded, “I fundamentally disagree with you . . . .
[but] if I made a mistake it can be reviewed.” (Tr. 490.) Nonetheless, in the face of these repeated
objections, the Appellate Division concluded that Petitioner had not preserved the issue, reasoning
that “the mere perfunctory utterance that a statement was ‘not hearsay’ or was ‘nonhearsay’
completely failed to apprise the Supreme Court that the defendant was invoking the state of mind
exception to the hearsay rule.” Watson, 163 A.D.3d at 868. But the Appellate Division’s analysis

is contrary to the trial record, as well as New York and federal evidentiary law.
The Guide to New York Evidence explains that “a statement which is not offered to prove
the truth of the matter asserted therein is not hearsay” and specially denotes that “[t]here are many
non-truth purposes for statements offered into evidence which the Court of Appeals has recognized
[including] [a] statement of a declarant which provides evidence of the declarant’s state of mind,
or a statement of a declarant which is heard by another and provides evidence of the hearer’s state
of mind (Guide to NY Evid [R]ule 8.41, State of Mind).” See Note, Guide to N.Y. Evid. Rule
8.00(1). In turn, Rule 8.41 defines the non-hearsay use of state-of-mind evidence as:
An out-of-court statement of a declarant describing the declarant’s state of mind at
the time the statement was made, such as intent, plan, motive, design, feeling or
mental condition as it may bear on whether a person is of sound mind, but not
including a statement of memory or belief to prove the truth of a fact remembered
or believed, is admissible, even though the declarant is available as a witness.
Id. at Rule 8.41. Indeed, the Appellate Division has recognized state-of-mind evidence as “non-
hearsay” in other cases. See, e.g., People v. Arnold, 147 A.D.3d 1327, 1328 (N.Y. App. Div. 2017)
(“Defendant contends that [his phone calls made from jail arranging for a relative to pick him up
from jail] were nonhearsay evidence of his state of mind, that they were relevant to his claim that
the police coerced his confession by promising him that he would be released if he confessed. . . .
[W]e agree with defendant that the calls were admissible as circumstantial evidence of his state of
mind.” (emphasis added)); People v. Machicote, 804 N.Y.S.2d 76, 77–78 (N.Y. App. Div. 2005)
(“The [trial] court properly received limited testimony by an eyewitness as to information she
received from other persons, since this evidence was not received for its truth, but for the

legitimate, non-hearsay purpose of explaining that witness’s state of mind, including the thought
processes leading up to her identification of defendant.” (emphasis added)). Federal evidentiary
rules similarly recognize the non-hearsay use of state-of-mind evidence. See Smith v. Duncan,
411 F.3d 340, 346 n.4 (2d Cir. 2005) (explaining that under the Federal Rules of Evidence,
“[o]ffering evidence under the state of mind exception to the hearsay rule is different than offering
it for a non-hearsay purpose—here, to show declarant’s state of mind. The exception to the hearsay
rule is invoked when the statement is offered for the truth of the matter asserted and shows the
declarant’s state of mind (e.g., ‘I hate X.’). In contrast, ‘the mere utterance of a statement, without
regard to its truth, may indicate circumstantially the state of mind . . . of the declarant’ and is not
hearsay (e.g. ‘I am Napoleon.’).” (emphasis added) (quoting William Payson Richardson &

Jerome Prince, PRINCE–RICHARDSON ON EVIDENCE §§ 8–106, 8-611 (Richard T. Farrell
ed., 11th ed.1995).)).
Thus, under New York law, defense counsel’s objection—“[o]ur position is that it’s not
hearsay. . . . [T]his is something that was said prior to the arrest and, therefore, it could be
considered by the jury the fact it was said and the timeline. . . . [It’s] admissible and non-hearsay
for that purpose” (Tr. 327–28)—was sufficient to preserve an objection on the basis that the

statements were admissible for non-hearsay purposes. See Silverman, 69 F. App’x at 491 (“[A]
question of law will be considered preserved for appellate review when it is interjected at the fact-
finding level in such a manner and at such a time as to fairly apprise the court and the opposing
party of the nature and scope of the matter contested.” (quoting People v. Jones, 440 N.Y.S.2d
248, 261 (N.Y. App. Div. 1981)).
Although Petitioner’s counsel never explicitly referred to “state of mind,” it was clear from
the context of counsel’s repeated non-hearsay objections that he was relying on that ground for
admissibility. Indeed, the trial court expressed no confusion as to the basis for Petitioner’s non-
hearsay objections, and each time responded that Petitioner’s objections were properly noted on
the record and that the court’s rulings on those objections would be reviewed for error. (See, e.g.,

Tr. 326–28, 448–49, 489–90.) Thus, the Court finds that the Appellate Division’s conclusion, that
Petitioner’s claim regarding his conversations with Ms. Armstrong about the Gun Buyback
Program’s procedures was procedurally barred, did not have a “fair and substantial” basis in state
law, Garcia, 188 F.3d at 76, and that the Appellate Division unevenly applied the
contemporaneous-objection rule to Petitioner.
Consequently, the Court is not barred from reviewing Petitioner’s claim. Moreover,
because the Appellate Division did not adjudicate the claim on the merits after finding it
procedurally barred, the Court is not obligated to defer to the state court’s conclusion. Silverman,
69 F. App’x at 491.
B. Federal Habeas Review of State Court Evidentiary Errors
1. Legal Standard
“[P]urported evidentiary errors are rarely a basis for habeas relief.” Guerrero v. Lamanna,
No. 18-CV-6774 (DC), 2023 WL 1070459, at *4 (E.D.N.Y. Jan. 27, 2023) (Chin, J.). However,
a “federal habeas court may, of course, review an error of state evidentiary law to assess whether
the error deprived the petitioner of his due process right to a ‘fundamentally fair trial.’” Freeman

v. Kadien, 684 F.3d 30, 35 (2d Cir. 2012) (citing Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir.
2004)); see also Washington v. Texas, 388 U.S. 14, 19 (1967) (“The right to offer the testimony of
witnesses . . . is in plain terms the right to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. . . .
[A]n accused . . . has the right to present his own witnesses to establish a defense. This right is a
fundamental element of due process of law.”); but cf. United States v. Mi Sun-Cho, 713 F.3d 716,
721 (2d Cir. 2013) (“[A] defendant does not have an unfettered right to offer testimony that is
inadmissible under the rules of evidence.” (quoting Washington v. Schriver, 255 F.3d 45, 56 (2d
Cir. 2001)).

“The erroneous admission [or exclusion] of evidence constitutes a denial of due process
‘only if the evidence in question was sufficiently material to provide the basis for conviction or to
remove a reasonable doubt that would have existed in the record without it.’” Guerrero, 2023 WL
1070459, at *4 (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)). To assess whether
an erroneous exclusion of evidence in a state court trial constitutes a federal constitutional
violation, “[federal courts] consider the importance of the wrongly [excluded] evidence, and the
overall strength of the prosecution’s case.” Jackson v. Conway, 763 F.3d 115, 140 (2d Cir. 2014)
(quoting Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011)). Specifically, courts assess the strength
of wrongly excluded “evidence by considering (1) the ‘prosecutor’s conduct with respect to the
evidence,’ (2) whether the evidence ‘bore on an issue plainly critical to the jury’s decision,’ and
(3) whether the evidence ‘was material to the establishment of the critical fact, or whether it was
instead corroborated and cumulative.’” Id. at 141 (emphasis added) (internal citations, quotation
marks, and ellipses omitted).

2. Trial Court’s Exclusion of Petitioner’s Conversations with Ms. Armstrong
Deprived Him of Constitutional Due Process
Having found that Ms. Armstrong’s testimony regarding the Gun Buyback Program’s
procedures for voluntarily surrendering a firearm was properly admissible as non-hearsay,20 the
Court analyzes whether the trial court’s erroneous exclusion of that evidence deprived Petitioner
of his constitutional right to due process of law.
The Court turns to the first factor in determining the strength of the erroneously excluded
conversations: the prosecutor’s conduct with respect to the evidence. Conway, 763 F.3d at 141.
Here, the prosecutor opportunistically capitalized on the limited nature of Ms. Armstrong’s
testimony during her summations. The prosecutor argued to the jury that Petitioner knew his
mother-in-law worked at the 120th Precinct, yet did not enlist her help to return the gun:
[Prosecutor:] So what’s really in dispute here? I submit to you, ladies and
gentlemen, that we have proven that the defendant was not voluntarily surrendering
this firearm to the police. And there are several reasons why we know he was not
surrendering this firearm to the police.
Reason number one. His mother-in-law works at the 120th Precinct. You heard
from Ms. Armstrong that she testified that she was a senior police administrative
aide. She’s been working at the precinct for eleven years. He has a direct line to
the precinct. If he was really turning this gun in why not give to his mother-in-law?
She testified that she helps civilians quite a few times turn in guns for cash. Does
that make any sense to you? If he was in the act of voluntarily surrendering that
firearm, give it to your mother-in-law who works there.
Another reason we know he wasn’t turning this gun in, Ms. Armstrong testified she
wasn’t working that Saturday, October 26th. Why wait for a day that your mother-

20 See Guide to N.Y. Evid. Rule 8.00(1); Rule 8.00 notes; Rule 8.41.
in-law is not working at the precinct? If you’re going to take this risk of
transporting this firearm to turn it in, why wait for a day she is not there to help
you? Does that make any sense?
Reason number two we know the defendant was not in the act of voluntarily
surrendering his firearm. He’s been to the 120th Precinct before and we learned
from his mother-in-law. So you can infer he knows where it’s located, right? . . .
He knows where that precinct is. Yet he doesn’t call his mother-in-law. He doesn’t
call 911 to have the police come and pick up the gun. He doesn’t wait for a day she
is working. Because he was never on his way of surrendering this gun to the
precinct.
(Tr. 428–29 (emphases added).) However, the prosecutor knew that Mr. Watson had spoken to
Ms. Armstrong about returning a gun to the Precinct, and that specifically Ms. Armstrong had
explained how to voluntarily return a gun through the Precinct’s Gun Buyback Program but that
she had been precluded from telling the jury about those conversations by the trial court. (Tr. 448–
49 (Petitioner’s counsel objecting to the prosecution’s argument because the People knew that Ms.
Armstrong was prohibited from testifying about how she gave him instructions on how to
voluntarily turn in the gun at the Precinct).) Such evidence would have explained why Petitioner
elected to go to the Precinct on a day when his mother-in-law was not working, but the prosecutor
exploited the exclusion of the evidence, wielding Petitioner’s seeming lack of knowledge
regarding the Program as evidence of his guilt.
Second, the Court assesses whether the evidence bore on an issue plainly critical to the
jury’s decision, and finds that it did. Conway, 763 F.3d at 141. During deliberations, the jury sent
only a single note with two questions, one of which asked to see “Ms. Armstrong’s testimony
regarding the turning in of the firearm [and] if it was ever discussed between her and the defendant
on the day of the arrest and prior to.” (Tr. 486.) The trial court struggled with the right response:
[The court:] All the alternatives I have gone over one way or another are not fair to
either party. And suggesting that it was a result of an evidentiary ruling invites the
jury to speculate that there was a communication they’re just being kept away from.
So my response is there is nothing in the record of the trial in regard to this subject.
I’m going to leave it at that.
(Tr. 488–89.) Petitioner objected to the proposed instruction, stating, “[t]his is exactly the
prejudice that Mr. Watson suffers by [the prosecution] making that improper argument . . . about
his mother-in-law working at the 120th Precinct. . . . As well as the prejudice of not being
[allowed] to put in this otherwise admissible non-hearsay[.]” (Tr. 489–90.) Nevertheless, the trial

court instructed the jury, “[t]here is nothing in the record of the trial in regard to this subject.” (Tr.
490–91.) Petitioner’s counsel noted the following for the record regarding the jury’s reaction:
When the jury was listening to the read backs their response was fairly flat as to the
first question. However, when you told them that there is nothing in the record
about the conversation [between Ms. Armstrong and Petitioner], that [Petitioner]
wasn’t allowed to elicit, several heads started nodding. Just wanted to make sure
that the record is complete.
(Tr. 494.) Later that afternoon, Petitioner was found guilty of, inter alia, criminal possession of a
weapon in the second degree. (Tr. 495–96.) Based on this record, the Court finds that the excluded
conversations between Petitioner and his mother-in-law clearly affected an issue essential to the
jury’s decision.
Lastly, the Court analyzes whether the evidence was material to the establishment of a
critical fact, or whether it was instead cumulative. Conway, 753 F.3d at 141. Petitioner’s intent—
whether it was to surrender the gun to the Gun Buyback Program, as he told the arresting officers,
or simply to possess it (without legal authority to do so)—was the only disputed element in the
case, which the prosecution bore the burden of proving beyond a reasonable doubt. Petitioner’s
knowledge of the Gun Buyback Program and the proper procedures for voluntarily surrendering a
firearm through the Program was crucial to his defense, and he was prevented from fairly
presenting that defense at trial. (See generally Tr.) Thus, the conversations between Mr. Watson
and Ms. Armstrong of the Program’s procedures were material to establishing a critical fact, and
was neither cumulative nor corroborative of other evidence.
***
In sum, the excluded testimony was sufficiently material such that its exclusion could have
“remove[d] a reasonable doubt” that otherwise would have existed in the record. See Ross, 955
F.2d at 181. Accordingly, the Court grants Mr. Watson’s habeas petition on the basis that the
erroneous exclusion of Ms. Armstrong’s testimony regarding her conversations with Mr. Watson

about the Gun Buyback Program’s voluntary return procedures constituted a denial of his
constitutional right to due process.
II. Petitioner’s Cumulative Errors Claim is Denied
Petitioner’s other argument on habeas review is that “[t]he culmination of errors during
Mr. Watson’s trial unduly prejudiced Mr. Watson and struck at the heart of Mr. Watson’s defense,
thus rendering his trial fundamentally unfair.”21 (Pet., Dkt. 1, at 10.) However, Petitioner’s claim
is denied because it is procedurally barred.
While Petitioner did raise claims on direct appeal in state court as to each of the individual
errors that he identifies as part of his cumulative error argument on habeas review, he did not raise
a specific cumulative-error claim in his direct appeal; rather, he simply stated that “[t]he
culmination of the trial court’s errors undoubtedly deprived Mr. Watson of a fair trial.” (Pet. App.

Br. at 61.) This is insufficient to meet Petitioner’s burden of demonstrating that his cumulative
error claim was “fairly presented” to the Appellate Division. See Jimenez v. Walker, 458 F.3d 130,
149 (2d Cir. 2006) (“[I]solated phrases do not give the state court fair notice of a distinct
cumulative-error claim.”). “A habeas petitioner fairly present[s] a federal claim . . . when the legal
basis of a claim made in state court is the substantive equivalent of the habeas claim.” Holder v.
Lamanna, No. 18-CV-7431 (PKC), 2020 WL 804902, at *5 (E.D.N.Y. Feb. 18, 2020). Courts

21 Specifically, Petitioner argues that the trial court’s decisions to admit two photographs
of multiple firearms, curtail the cross-examination of Det. Muzikar, and preclude trial counsel’s
summation, in combination, violated his due process rights. (Pet., Dkt. 1, at 10–26.)
consider four factors in determining whether a “habeas petitioner has fairly presented a federal
claim:
(a) reliance on pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like fact situations, (c)
assertion of the claim in terms so particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.

Daye, 696 F.2d at 194.

In his reply to Respondent’s opposition, Petitioner argues that, in his brief before the
Appellate Division in support of his claims of denial of a fair trial, he cited several state cases
“employing constitutional analysis in like factual situations.” (Dkt. 10, at 5.) However, these
cases do not address any arguments related to a cumulative error claim. Rather, they were cited in
support of the specific individual claims that Petitioner raised on direct appeal. Petitioner did not
make a cumulative-error claim on his direct appeal and, as a result, the Appellate Division did not
rule on any such claim. Therefore, as the cumulative error claim was not fairly presented to the
state court, it is unexhausted and procedurally defaulted. Jimenez, 458 F.3d at 149 (“Accordingly,
because [the petitioner] has not properly exhausted his state remedies by fairly presenting his claim
to the state courts, and may no longer do so, we agree with the respondent that [the petitioner] has
procedurally defaulted his cumulative-error claim.”).22 As a result, Petitioner’s claim for habeas
relief on cumulative-error grounds is denied.
CONCLUSION
Accordingly, Petitioner’s writ for habeas corpus pursuant to 28 U.S.C. § 2254 is
GRANTED. The conviction for criminal possession of a weapon in the second degree and

22 Procedural default can be overcome by a showing of cause for the default and actual
prejudice. Maples v. Thomas, 565 U.S. 266, 280 (2012). Petitioner has made neither showing as
to his cumulative error claim.
Petitioner’s sentence pursuant to the conviction are VACATED. Respondent is ordered to
discharge Petitioner from parole or provide him a new trial within forty-five (45) days of this
Order.23 Should Respondent choose to appeal this Order, it shall advise the Court whether it is
seeking to stay this Order pending appeal. The Clerk of Court is respectfully directed to enter

judgment accordingly.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 18, 2023
Brooklyn, New York

23 The Court notes that Petitioner appears to have been released from custody on April 28,
2022, to parole. Incarcerated Lookup, https://nysdoccslookup.doccs.ny.gov/ (last visited Sept. 18,
2023) (enter “16R0403” in “DIN” search field).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310416. Public record. Not legal advice.