# Fields v. N.Y.S.D.O.C.C.S.

> District Court, E.D. New York · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10310561

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 27, 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/10310561

## How later opinions describe it (automated extraction)

- stating that “the adequacy of a state procedural bar is determined with reference to the ‘particular application’ of the rule”
- holding that “the failure altogether to raise an issue cannot be actually relied on because no court has been notified that the issue even exists”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ANDREW FIELDS,
MEMORANDUM & ORDER
Petitioner, 20-CV-00009 (PKC)

- against -

N.Y.S.D.O.C.C.S.,

Respondent.

-------------------------------------------------------x
PAMELA K CHEN, United States District Judge:
Before the Court is Petitioner Andrew Fields’s petition, which he brings pro se, for a writ
of habeas corpus pursuant to 28 U.S.C. §2254. For the reasons stated below, the petition is denied.
BACKGROUND1
I. Factual Background

A. Petitioner’s August 30, 2013 Arrest
On August 30, 2013, Donald Bradley (“Bradley”) walked into an apartment building at
106-35 159th Street in Queens County, New York to visit his friend Bobby Garcia (“Garcia”).
(Transcript (“Tr.”),2 Dkt. 31-2, at 578:16–579:2.) In the hall of Garcia’s apartment building,
Petitioner and Marly Senat (“Senat”) who had entered the building minutes before Bradley (Tr.
606:5–608:22), approached Bradley from behind, punched Bradley in the face, and put him into a

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.”).
2 References to “Tr.” refer to the numbering created by the Court’s electronic filing system,
or “ECF,” within the transcript of the state court proceedings (Dkt. 31-2)—not to the internal
pagination thereof.
headlock. (Tr. 582–86.) While Petitioner was holding Bradley in a headlock, Senat approached
Bradley, told him to “shut up,” and hit him in the face. (Tr. 586:5–25.) Senat then showed a gun
to Bradley, and Bradley stopped struggling. (Tr. 587:3–4, 22–23.) Shortly thereafter, Petitioner
tightened his headlock on Bradley; as Bradley lost consciousness, Petitioner and Senat rummaged

through his pockets. (Tr. 587:24–588:6.) When Bradley came to, his cell phone, car keys, wallet
and approximately $1,160 in cash were missing from his person. (Tr. 588:20–589:4.)
“[M]aybe a couple of days afterward,” Bradley called his uncle, New York City Police
Department (“NYPD”) Chief Phillip Banks, a high-ranking member of the NYPD, to report the
incident. (Tr. 590:21–591:23.) About a week later, Bradley filed an official complaint with the
NYPD. (Tr. 592:7–592:19.) On September 17, 2013, NYPD officers attempted to pull Petitioner
and Senat over for driving a stolen Toyota Sienna minivan down Guy R. Brewer Boulevard in
Queens, New York; Petitioner, who was driving when the officers approached him, sped away and
crashed the vehicle. (Tr. 802–809.) Senat was unable to flee because the passenger door was
stuck; Petitioner ran from the car, but was soon apprehended. (Tr. 809:14–813.) A loaded revolver

was recovered from the vehicle. (Tr. 812:12–20.) Later that day, Bradley identified Petitioner and
Senat in two separate police line-ups as the individuals who had robbed him on August 30, 2013.
(Tr. 595:18–597:11.)
Petitioner and Senat were arrested on two sets of charges, one relating to the August 30,
2013 armed robbery of Bradley and the other relating to Petitioner’s and Senat’s September 17,
2013 attempt to flee and avoid being stopped and arrested by the police. (State Court Record
(“Record”),3 at ECF4 213–14.) Both sets of charges were later joined in a single indictment,
Indictment Number 2916/13, returned against Petitioner and Senat on December 5, 2013. (Id. at
ECF 212–14.)
B. Petitioner’s Severance Motions

Prior to trial, Petitioner moved to sever trial with respect to his two sets of charges based
on his August 30, 2013 and September 17, 2013 arrests. (Id. at ECF 214.) Petitioner argued, in
sum and substance, that the two incidents were entirely separate and distinct “criminal
transactions” under C.P.L. § 40.10(2), and that a single trial on both sets of charges “misled the
Grand Jury into speculating that” the same gun recovered on September 17 was also used in the
robbery on August 30, or that the “Grand Jury [was] improperly [led to] conclude criminal
propensity rather than considering the evidence separately for each of the criminal transactions.”
(Id. at ECF 214, 217.) The Honorable Marcia P. Hirsch of the Queens County Supreme Court
denied Petitioner’s motion, finding that the charges were properly joined pursuant to C.P.L. §
200.20[2][b]. (Id. at ECF 233.)

C. State Court Trial
Petitioner’s and Senat’s jury trial began on April 28, 2015 and ended May 18, 2015. (Tr.
2.) Donald Bradley testified extensively as to the events of August 30, 2013, including that Senat
showed him a “chrome and black” gun during his robbery (Tr. 587:18–19), and about identifying
Petitioner and Marly Senat in line-ups. (Tr. 577–99.) The prosecution also presented the testimony
of Detective Richard McCarty regarding the investigation of the August 30, 2013 robbery,

3 References to the “Record” refer to the State Court Record filed at Dkt. 31-1.

4 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
including the call he received from his former partner on September 17 and the subsequent line-
up he conducted with Petitioner and Senat (Tr. 752–61), and video surveillance footage showing
two men Bradley identified as Defendants entering and leaving the lobby, with Bradley walking
out minutes later (Tr. 606–12). In addition, the prosecution introduced the testimony of NYPD

Officers Derek Webber, who testified regarding the moment of Petitioner’s arrest on September
17 (Tr. 741–47); Robert DeFerrari, an officer who pursued Defendants on September 17 before
apprehending Senat and the loaded revolver from the stolen car (Tr. 800–19); Detective Dominic
Cappiello, a firearms examiner in the Forensic Investigation Division, who testified that the
recovered revolver was operable (Tr. 831–42); and the stolen car’s owner (Tr. 737–41).
During Bradley’s testimony and throughout the trial, the Honorable Ronald Hollie, the
presiding Queens Supreme Court Justice, asked numerous questions of the witnesses. Justice
Hollie asked Bradley to clarify who had asked Bradley for a cigarette before the incident (Tr.
580:13–16), whether Bradley had testified that Fields first punched Bradley in the face (Tr. 583:14
–584:25), how Petitioner had approached Bradley, and who had held Bradley in a headlock

(585:20–586:4). Justice Hollie also asked Bradley about various other details pertaining to the
setting of the mugging (Tr. 583:14 –584:25), about where Senat was standing when Bradley first
saw him, and what Senat had said to Bradley. (Tr. 586:5–23.) In addition, the judge asked Bradley
specific questions about what items were taken from him (Tr. 588:24–589:10), the circumstances
surrounding Bradley’s interactions with friends on the street before going to see Bobby Garcia (Tr.
593:25–595:16; 643:17–644:25), Bradley’s knowledge of the video surveillance of the incident
(Tr. 600:10–601:21; 609–12), and Bradley’s disability and employment status (Tr. 619:5–621:16).
The judge also asked questions of other witnesses, including Detective Richard McCarty regarding
his conversations with Bradley before the line-ups and what Bradley told the detective about what
items allegedly had been taken from him. (Tr. 770:6–773:13.)
Petitioner and Senat again moved at trial to sever the indictments. After Bradley and
Detective McCarty testified, Petitioner moved for severance on grounds that “Det. McCarty made

it clear that the complainant described the gun that was allegedly used in the alleged robbery as a
semi automatic gun in all the paper work within this case,” whereas the recovered gun was a
revolver. (Tr. 798:7–799:3.) The Court denied the motion without explanation. (Tr. 799:4–5.)
At the close of the prosecution’s case, Petitioner argued that the Government’s evidence regarding
the gun used in the alleged robbery and the gun recovered from the stolen car were “descriptions
of 2 different guns and 2 different firing mechanisms”—and since the firearm was the link between
the incidents “there is no basis to join the case together.” (Tr. 848:6–10.)
Near the end of the trial, Petitioner’s counsel asked the Court to give a “missing witness”
instruction as to several witnesses: (1) Garcia, who “would have been in a position to testify as to
[Bradley’s] physical appearance and injuries or . . . lack thereof” after the alleged robbery; (2)

Bradley’s mother and stepfather, who had brought Bradley an extra set of keys after the robbery
and also would have been in a position to testify as to Bradley’s injuries; and (3) Bradley’s uncle,
NYPD Chief Phillip Banks, who could have verified that Bradley contacted him about the August
30 robbery soon after it had occurred. (Tr. 878:23–879:13.) The Court rejected Petitioner’s
“missing witness” charge as to all potential witnesses. (Tr. 880:22–881:2.)
Petitioner was found guilty of Robbery in the First Degree (N.Y. Penal Law §160.15(4)),

two counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10(1), (2)(a)), Strangulation
in the Second Degree (N.Y. Penal Law § 121.12), two counts of Criminal Possession of a Weapon
in the Second Degree (N.Y. Penal Law § 265.03(1)(b), (3)) and Criminal Possession of Stolen
Property in the Fourth Degree (N.Y. Penal Law § 165.45(5)). (Tr. 1061–66.) Senat was convicted
on the same charges. (Tr. 1061:23–1063:3.) On July 21, 2015, the trial court sentenced Petitioner
to an aggregate sentence of 15 years in prison, to be followed by five years of post-release
supervision. (Tr. 1086–1103.)

II. Procedural Background

A. Petitioner’s Direct Appeal
In March 2017, Petitioner’s post-conviction attorney filed a direct appeal with the
Appellate Division, Second Department (“Appellate Division”). (Record, at ECF 1–46.)
Petitioner raised three claims in his counseled brief: (1) the trial court conducted excessive and
prejudicial questioning of trial witnesses, warranting a new trial; (2) the trial court abused its
discretion when it denied the severance motions, and (3) the trial court abused its discretion when
it failed to grant Petitioner’s missing witness charge.5 (Id. at ECF 6.) Petitioner also filed a pro
se brief raising additional claims: (1) the medical evidence of Bradley’s physical injury was
insufficient to support conviction; and (2) the police sergeant who recognized Petitioner on
surveillance video from the apartment building lobby where the August 30 robbery occurred did
not testify at trial, which denied Petitioner his due process right to a fair trial and the right to
confront his accuser, and (3) reiterating the severance argument. (Record, at ECF 47–61.)
On November 21, 2018, the Appellate Division affirmed Petitioner’s convictions on all
counts. People v. Fields, 166 A.D.3d 897 (N.Y. App. Div. 2018). The New York Court of Appeals
denied Petitioner’s motion for leave to appeal on February 19, 2019, and denied Petitioner’s
applications for reconsideration on May 28, 2019. People v. Fields, 32 N.Y.3d 1204 (2019),

5 Although Petitioner seemed to seek a missing witness charge as to multiple potential
witnesses at trial, he only appealed the denial regarding Bobby Garcia. (Record, at ECF 37–43.)
recons. Denied, 33 N.Y.3d 1031 (2019). The Appellate Division also denied Petitioner’s
application for re-argument. (Record, at ECF 283.)

B. Petitioner’s State Court Motion to Vacate His Conviction
On August 3, 2021, Petitioner filed a Motion to Vacate his Conviction pursuant to New
York Criminal Procedure Law (“CPL”) § 440.10(1)(h) (“440 Motion”) with the trial court. (Id.at
ECF 337.) Petitioner raised two claims: (1) the trial court conducted excessive and prejudicial
questioning of trial witnesses in violation of Petitioner’s Fourteenth Amendment due process right
to a fair trial, and (2) Petitioner received ineffective assistance of counsel because his attorney did

not object to the trial court’s excessive and prejudicial questioning, thereby failing to preserve this
issue for appellate review. (Id. at ECF 321–37.) The trial court denied Petitioner’s motion in its
entirety, finding the first argument both procedurally barred and meritless, and the second
argument meritless. (Id. at ECF 368–78.) The Appellate Division denied leave to appeal. (Id. at
ECF 395.)
C. Petitioner’s Federal Habeas Petition

On January 13, 2020, Petitioner timely filed the instant petition for writ of habeas corpus
pursuant to 28 U.S.C § 2254. (Dkt. 1, at ECF 1.) On December 16, 2020, Petitioner first requested
a stay and abeyance pending exhaustion of state remedies, and filed his 440 Motion in state court.
(Dkt. 16.) In response, the Court ordered Petitioner to submit a letter explaining “(1) what claim(s)
he seeks to exhaust and through which state remedies, (2) why he failed to exhaust his remedies
as to those claims prior to filing the instant petition, and (3) why those claims have merit.”
(12/21/2020 Docket Order.) After multiple extensions, on August 16, 2021, Petitioner filed his

440 Motion. (Dkts. 17, 18, 21.) Shortly thereafter, this Court stayed the case pending exhaustion
of Petitioner’s claims in state court. (8/18/2021 Docket Order). On January 12, 2022, while the
case was still stayed, the Court issued a docket order administratively closing the case pending
either party’s motion to reopen it; instructing Petitioner to amend his petition to add all additional
claims not listed in the petition so as to avoid any time bar that could apply to those added claims;

and advising Petitioner that he could be barred from reopening this case if he unreasonably delayed
exhausting his claims in state court or reopening the case in this Court after exhaustion. (1/12/2022
Docket Order.) On February 16, 2022, Respondent mailed the state court record to Petitioner.
(Dkt. 24.)
On September 12, 2022, Petitioner moved to reopen the case, and to amend his petition for
writ of habeas corpus; Respondent consented, and the Court granted the motion to reopen and
amend the petition. (Dkts. 25–27; 9/26/2022 Docket Order.) Respondent answered, filed the state

court record, and served both on Petitioner on December 12, 2022. (Respondent’s Answer
(“Answer”), Dkt. 30; State Court Record and Transcript, Dkt. 31; Certificate of Service, Dkt. 32.)
On January 20, 2023, Petitioner filed the Amended Petition to include a claim of ineffective
assistance of counsel. (Amended Petition (“Am. Pet.”), Dkt. 33.)6 The Amended Petition was
fully briefed on April 25, 2023. (Petitioner’s Reply (“Pet.’s Rep.”), Dkt. 40.)
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,

6 Petitioner filed the same Amended Petition a second time on January 23, 2023. (Dkt. 34.)
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); see Ennis v. Artus, No. 09-CV-10157
(DAB) (GWG), 2011 WL 3585954, at *7 (S.D.N.Y. Aug. 12, 2011) (same) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)). A state court’s decision “involve[s] an unreasonable
application of” Supreme Court precedent if there is “no possibility fairminded 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, 38 (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 quotation marks and citation
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 quotation marks and citations
omitted)).
DISCUSSION

Petitioner raises five claims for this Court’s review: (1) the trial court’s excessive and
prejudicial questioning of trial witnesses violated his due process right to a fair trial (Dkt. 1, at
ECF 5; Dkt. 33, at 2); (2) his trial counsel’s failure to object to the trial court’s excessive
questioning constituted ineffective assistance (see generally Dkt. 33); (3) the trial court’s denial of
severance violated Petitioner’s due process right to a fair trial (Dkt. 1, at ECF 7); (4) the trial
court’s refusal to give a “missing witness” instruction violated Petitioner’s due process right to a
fair trial (id. at ECF 8); and (5) the failure of the police officer who had identified Petitioner on the
August 30 surveillance video to testify at trial violated Petitioner’s due process rights to a fair trial

and to confront his accuser (id. at ECF 10).
For the reasons set forth below, the Court denies Petitioner’s habeas petition in its entirety.
I. Petitioner’s Judicial Interference Claim is Procedurally Barred

In his direct appeal in state court, Petitioner argued that the trial court conducted excessive
and prejudicial questioning of trial witnesses, which violated Petitioner’s Fourteenth Amendment
due process right to a fair trial. (Record, at ECF 10–28.) While acknowledging that his trial
counsel “did not object to any of the Court’s judicial questioning,” Petitioner argued that “[n]o
objection was necessary . . . to preserve this error for appeal,” in light of the Appellate Division’s
ruling weeks before in a different case “that the identical error, by the same judge, was subject to
[that] Court’s interest of justice jurisdiction.” (Record, at ECF 25–26 (citing People v. Davis, 147
A.D. 3d 1077, 1079 (N.Y. App. Div. 2017)).) The Appellate Division disagreed, holding that
Petitioner’s claim was unpreserved for appellate review, and declined to consider the claim in the
“interest of justice.” Fields, 166 A.D. 3d at 898. Petitioner raised the same claim in his 440

Motion. There, the trial court held that Petitioner’s claim was procedurally barred under CPL §
440.10(2)(c), as there were sufficient facts on the record to permit appellate review of the claim.
(Record, at ECF 372–73).
A federal court “may not review federal claims that were procedurally defaulted in state
court—that is, claims that the state court denied based on an adequate and independent state
procedural rule.” Davila v. Davis, 582 U.S. 521, 527 (2017). “To qualify as an adequate
procedural ground, capable of barring federal habeas review, a state rule must be firmly established
and regularly followed.” Johnson v. Lee, 578 U.S. 605, 608 (2016) (internal quotation marks and
citation omitted). A procedural ground is independent when the state court relies solely on that
law for its disposition and clearly and expressly states that the judgment rests on that law. Garner

v. Lee, 908 F.3d 845, 859 (2d Cir. 2018).
Under New York State law, to preserve an issue for appeal, a party must lodge a
contemporaneous and specific objection at trial. N.Y. Crim. Proc. Law § 470.05(2). The Second
Circuit has long recognized New York’s “contemporaneous objection rule” to be “a firmly
established and regularly followed New York procedural rule” that “constitutes an independent
and adequate state law ground.” Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011); see also
Richardson v. Greene, 497 F.3d 212, 217–19 (2d Cir. 2007) (same). 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). Thus, a state court decision based on contemporaneous-objection grounds generally
precludes federal habeas review. See Downs, 657 F.3d at 103–04.
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 [the] rule.” Silverman v. Edwards, 69 F. App’x 489, 491 (2d
Cir. 2003) (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)). But “an allegedly uneven application of state procedural
default rules in general does not necessarily establish that the application of a procedural default
rule in a particular case is not ‘adequate.” Wedra v. Lefevre, 988 F.2d 334, 340 (2d Cir. 1993)
(quoting Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir. 1991), cert. denied, 502 U.S. 1110
(1992)).

Here, the Appellate Division determined that Petitioner had failed to preserve his judicial
intervention claim via contemporaneous objection at trial, and did not review the claim on its
merits. Fields, 166 A.D.3d at 898. Therefore, the Appellate Division’s decision bars this Court’s
review of Petitioner’s claim, unless the Court finds that the Appellate Division unevenly applied
the contemporaneous-objection rule in this case and that its application of the rule therefore is not
“adequate” to bar federal habeas review. See Davila, 582 U.S. at 527 (holding that federal court
may not review federal claims “that the state court denied based on an adequate and independent
state procedural rule”); Johnson, 578 U.S. at 608 (“To qualify as an adequate procedural ground,

capable of barring federal habeas review, a state rule must be firmly established and regularly
followed.”).
Petitioner’s argument about the inadequacy of the Appellate Division’s application of the
contemporaneous-objection rule is based on the fact that the Appellate Division granted a number
of appeals alleging excessive and prejudicial questioning by Justice Hollie, “in the interest of
justice,” despite defense counsel having failed to object at trial. (Record, at ECF 10–24.) See

People v. Robinson, 151 A.D.3d 758, 759 (N.Y. App. Div. 2017); People v. Hinds, 160 A.D.3d
983, 984 (N.Y. App. Div. 2018); People v. Sookdeo, 164 A.D.3d 1268, 1269 (N.Y. App. Div.
2018); People v. Ramsey, 174 A.D.3d 651, 652 (N.Y. App. Div. 2019); People v. Savillo, 185
A.D.3d 840, 842 (N.Y. App. Div. 2020); People v. Martinez, 199 A.D.3d 834 (N.Y. App. Div.
2021). Even so, the Court does not find that the Appellate Division’s decision not to review
Petitioner’s excessive questioning claim constitutes an “uneven application” of the
contemporaneous-objection rule. As the Second Circuit “found in connection with another New
York rule that permits exceptions, even if New York law allows ‘some discretion to be exercised,’
the application of the procedural default rule in a particular case remains appropriate so long as
the rule is ‘evenhandedly’ applied ‘to all similar claims.’” Murden v. Artuz, 497 F.3d 178, 193 (2d

Cir. 2007) (quoting Wedra, 988 F.2d at 340). “Similarly, in Glenn v. Bartlett, [the Circuit] found
a procedural bar, based on the defendant’s failure to preserve an objection at trial, even though the
state court acknowledged that it could have reversed the conviction ‘in the interest of justice.’” Id.
(quoting Glenn v. Bartlett, 98 F.3d 721, 724–25 (2d Cir. 1996)).
The Appellate Division’s exercise of its discretion to apply the contemporaneous-objection
rule in Petitioner’s case, while not applying it in other cases involving alleged judicial intervention
by Justice Hollie, in itself, does not make the Appellate Division’s application of the rule here

“not adequate.” See Wedra, 988 F.2d at 340 (“‘[A]n allegedly uneven application of state
procedural default rules in general does not necessarily establish that the application of a
procedural default rule in a particular case is not ‘adequate.’” (quoting Andrews, 943 F.2d at
1190)). As the Supreme Court made clear in Beard v. Kindler:
We hold that a discretionary state procedural rule can serve as an adequate ground
to bar federal habeas review. Nothing inherent in such a rule renders it inadequate
for purposes of the adequate state ground doctrine. To the contrary, a discretionary
rule can be “firmly established” and “regularly followed”—even if the appropriate
exercise of discretion may permit consideration of a federal claim in some cases
but not others.

558 U.S. 53, 60–61 (2009).
In Cotto v. Herbert, the Second Circuit identified three “guideposts” for courts to
consider in determining the adequacy of a state court’s application of a procedural default
rule. 331 F.3d 217, 240 (2d Cir. 2003) (stating that “the adequacy of a state procedural bar
is determined with reference to the ‘particular application’ of the rule”) (quoting Lee v.
Kemna, 534 U.S. 362, 387 (2002)). None of these point to a finding that the Appellate
Division’s application of the contemporaneous-objection rule in this case was inadequate.
The first, “whether the alleged procedural violation was actually relied on in the trial court,
and whether perfect compliance with the state rule would have changed the trial court’s

decision,” is inapplicable here. Clark v. Perez, 510 F.3d 382, 391 n.4 (2d Cir. 2008)
(holding that “the failure altogether to raise an issue cannot be actually relied on because
no court has been notified that the issue even exists”). The second guidepost—“whether
state caselaw indicated that compliance with the rule was demanded in the specific
circumstances presented”—also clearly favors finding that the contemporaneous-objection
rule is adequate with respect to Petitioner’s judicial interference claim. See, e.g., Adams v.
Keyser, No. 16-CV-129 (GBD) (AJP), 2016 WL 4429889, at *24 (S.D.N.Y. Aug. 22, 2016)
(“The requirement that a defendant preserve a claim of judicial interference by appropriate
objection or motion for a mistrial . . . is firmly established and regularly followed by New
York state courts.” (collecting cases)). And third, Petitioner clearly did not “substantially

compl[y] with the rule given the realities of trial” when he failed to raise this issue in any
way before the trial court. Cotto, 331 F.3d at 240.
“Because of comity concerns, a decision that a state procedural rule is inadequate
should not be made ‘lightly or without clear support in state law.’” Murden, 497 F.3d at
192 (quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (citation omitted)). Federal
courts find applications of the contemporaneous-objection rule inadequate sparingly, for
example, where the “defense counsel’s request at trial was sufficient to preserve the issue”
at trial, but the Appellate Division erroneously found otherwise. Silverman, 69 F. App’x
at 491. Here, it is undisputed that Petitioner failed to lodge any objection or move for a
mistrial on the basis of the judicial interference that he only alleged post-trial. As such, the
Appellate Division’s decision to apply the contemporaneous-objection rule was a valid
application of a discretionary state procedural bar and constitutes “an independent and
adequate state ground foreclosing federal habeas review.” Wade v. Melecio, No. 21-CV-

9138 (GHW) (JLC), 2023 WL 2152489, at *11 (S.D.N.Y. Feb. 22, 2023), report and
recommendation adopted, 2023 WL 2500676 (S.D.N.Y. Mar. 14, 2023). Therefore,
Petitioner may obtain review of his claim only if he demonstrates “cause and prejudice for
the procedural default” or that the “constitutional violation has probably resulted in the
conviction of one who is actually innocent of the substantive offense.” Dretke v. Haley,
541 U.S. 386, 393 (2004) (internal quotation marks and citations omitted). Petitioner does
not maintain that he is actually innocent. And although Petitioner does not argue “cause
and prejudice” in so many words, he does argue that his counsel was ineffective for failing
to preserve the judicial interference argument at trial. (See Dkt. 5, at ECF 2.) Terrell v.
Kickbush, No. 17-CV-7027 (JFB), 2019 WL 3859512, at *5 (E.D.N.Y. Aug. 16, 2019) (“A

petitioner can demonstrate cause . . . [if] the procedural default was the result of ineffective
assistance of counsel.” (citing Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)). Because
Petitioner’s ineffective assistance arguments fail, see infra Discussion Section II, he cannot
overcome the procedural bar to federal review of his judicial interference claim, and it is
denied as procedurally barred.7

7 The Court notes that, although Petitioner’s constitutional claim is procedurally barred
from federal review, Justice Hollie’s conduct in this case is similar in nature—although not
necessarily in degree—with his conduct in other cases where the Appellate Division has found
defendants’ rights to have been violated. In People v. Robinson, for example, the Appellate
Division found that Justice Hollie “effectively took over the direct examination of a complaining
witness while the prosecutor was eliciting details related to . . . the physical altercations at issue”
and Justice Hollie “posed at least eight fact-specific questions about [the witness’s] physical
II. Petitioner’s Trial Counsel Was Not Ineffective

location in relation to that of the attacker.” 151 A.D. 3d at 759; see also Ramsey, 174 A.D. at 652,
(describing Justice Hollie as “engag[ing] in extensive questioning of witnesses, usurp[ing] the
roles of the attorneys, elicit[ing] and assist[ing] in developing facts damaging to the defense on
direct examination of the People’s witnesses, bolster[ing] the witnesses’ credibility, interrupt[ing]
cross-examination, and generally create[ing] the impression that it was an advocate on behalf of
the People.”); see also People v. Davis, 147 A.D. 3d at 1079 (reversing conviction and noting,
“[i]n last analysis, [the trial judge] should be guided by the principle that his [or her] function is to
protect the record, not to make it. The line is crossed when the judge takes on either the function
or appearance of an advocate at trial. Indeed, even proper questions from trial judges present
significant risks of prejudicial unfairness, particularly when the trial judge indulges in an extended
questioning of witnesses.” (internal citations and quotations omitted)).
Here, Justice Hollie asked Bradley, the complaining witness, seven consecutive questions
about Petitioner’s positioning relative to him as the alleged assault unfolded (Tr. 583:14–
584:19)—and then, after the Government asked several questions, the Court interjected again to
ask seven more questions about the sequence of the attack and the actions of his alleged attackers
(Tr. 585:20–596:23). The Court intervened several more times during the complaining witness’s
direct examination to develop key aspects of the record by asking between five and seven
consecutive fact-specific questions. (Tr. 588:24–589:10; 590:5–15; 595:6–17; 600:5–25; 601:1–
22; 600:13–22; 611:14–612:17; 619:5–621:16; 590:12–17 (“The Court: So you contacted relatives
and they came into Queens. The Witness: Yes. The Court: People. [The Government]: That was
my next question your Honor. Where did you go immediately after the robbery?”).) Justice Hollie
also took over defense counsel’s questioning of Detective Robert McCarty regarding the
conversations he had with Bradley before the lineups in which he identified Petitioner and his co-
defendant, eliciting testimony regarding the items Bradley reported as having been stolen (Tr. 770,
771:3–22, 772:13–773:13), and regarding Bradley’s description of the alleged perpetrators of his
robbery (Tr. 778:20–779:11; 781:22–782:20). Justice Hollie also asked Detective Robert
DeFerrari numerous questions about the pursuit of Petitioner and Senat on September 7, 2013.
(Tr. 807:22–808:14; 809:23–812:2; Tr. 813:10–814:5; see People v. Hinds, 160 A.D. at 984 (“The
court elicited step-by-step details from several officers regarding their observations and actions
during their apprehension of the defendant”).) The Court did not make similar interventions to
develop facts relating to Petitioner’s defense, but instead repeatedly admonished defense counsel
(Tr. 635:9–15, 601:1–22, 629:2–8), denied defense attempts to impeach the complaining witness
(Tr. 636:21–638:11, 720:4–24) and testifying officers (Tr. 770:6–771:22), and elicited facts that
defense counsel did not intend to seek (Tr. 644:6–21).
However, in light of the procedural bar on federal habeas review as to this claim, the
“substantial burden of showing reversible error,” United States v. Bejasa, 904 F.2d 137, 141 (2d
Cir. 1990), and Justice Hollie’s use of a curative instruction (Tr. 960:20–25), the Court does not
make a determination as to whether the trial court engaged in excessive and prejudicial questioning
that deprived Petitioner of his right to a fair trial.
Petitioner contends that he received ineffective assistance of counsel because his attorney
failed to object to the trial court’s frequent questioning of witnesses. (Dkt. 33.) Petitioner also
raised this claim in his 440 Motion. In denying that motion, the trial court found that Petitioner’s
ineffective assistance claim was “not procedurally barred,” but that it lacked merit. (Record, at
ECF 376 (finding that Petitioner “failed to show that counsel’s lack of objecting to the trial court’s
actions deprived him the effective assistance of counsel.”).) Therefore, Petitioner’s ineffective
assistance claim is subject to federal habeas review and entitled to AEDPA deference, which only
permits habeas relief if the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United

States,” or “resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented.” 28 U.S.C. § 2254(d).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-
part test for ineffective assistance of counsel claims: (1) “that [the] attorney’s performance ‘fell
below an objective standard of reasonableness’”; and (2) “that there was prejudice, meaning a
‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016) (quoting
Strickland, 466 U.S. at 688, 694). Under AEDPA, “it is not enough to convince a federal habeas
court that, in its independent judgment, the state-court decision applied Strickland incorrectly.”
Cone, 535 U.S. at 699. “[A] petitioner must show ‘that the [state court] applied Strickland to the
facts of his case in an objectively unreasonable manner.’” McPherson v. Keyser, No. 20-161-PR,
2021 WL 4452078, at *3 (2d Cir. Sept. 29, 2021) (quoting Cone, 535 U.S. at 699); see also Cullen
v. Pinholster, 563 U.S. 170, 190 (2011) (describing review of state-court applications of Strickland
in the habeas context as “doubly deferential” and “highly deferential”); Rosario v. Ercole, 601
F.3d 118, 123 (2d Cir. 2010) (“[S]tate courts are granted even more latitude to reasonably
determine that a defendant has not satisfied that [Strickland] standard.” (cleaned up)). Further,
“[t]he more general the rule [applied by the state court], the more leeway courts have in reaching
outcomes in case by case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 653 (2004).

Petitioner argues that his attorney’s performance was deficient because despite believing
that the trial court’s questions were excessive and prejudicial, Petitioner’s counsel failed to object
to the court’s questions. (Dkt. 33, at 2, 3.) Further, Petitioner contends that but for counsel’s
failure to object, there is a reasonable probability that the result of the proceedings would have
been different. (Dkt. 33, at 4 (“If counsel would have inform [sic] the court of this [prejudicial
questioning] from its onset, than [sic] the court would have had a chance to cure this misconduct,
refrained from continuing to question the witnesses in that manner and given Petitioner a chance

of justice with a fair trial.”).)
The trial court examined Petitioner’s ineffective assistance claim under New York’s
constitutional standard for ineffective assistance, which requires that a defendant receive
“meaningful representation,” and “is ultimately concerned with the fairness of the process as a
whole rather than its particular impact on the outcome of the case.” (Record, at ECF 376 (quoting
People v. Benevento, 91 N.Y.2d 708, 712, 714 (1998)).) “The Second Circuit has repeatedly

recognized that the New York ‘meaningful representation’ standard is not contrary to the
Strickland standard. . . . For this reason, ‘[t]he only avenue of reprieve available to [Petitioner]
then is to establish that the state court unreasonably applied Strickland.’” Arena v. Kaplan, 952
F.Supp.2d 468, 489 (E.D.N.Y. 2013) (internal citations omitted) (quoting Rosario, 601 F.3d at
126).
As to the first prong—trial counsel’s allegedly substandard performance—Petitioner “must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Cone, 535 U.S. at 698. The decision of when to object and on
what grounds is a matter of trial strategy and tactics, and is “virtually unchallengeable absent

exceptional grounds for doing so.” Broxmeyer v. United States, 661 F. App'x. 744, 748 (2d Cir.
2016) (summary order) (citation omitted). While Petitioner’s counsel might have felt that Justice
Hollie’s frequent questioning was detrimental to Petitioner, she also could have reasonably made
the strategic calculation that registering a complaint with the judge carried greater risks than
dealing with the results of that questioning through cross-examination and/or argument. Further,
although the trial judge did intervene on numerous occasions, many of his interventions were to
clarify the witness’s testimony and were not explicitly biased or prejudicial. Neutral questions
posed by the court can illicit responses that are injurious to the defense, but that does not make
them improper or violative of a defendant’s right to a fair trial. Daye v. Att’y Gen. of State of N.Y.,
712 F.2d 1566, 1572 (2d Cir. 1983). Therefore, counsel’s decision not to object to questions posed

by the trial court—especially where those questions merely clarified admissible and relevant
testimony—does not fall below an objective standard of reasonable performance.
Further, Petitioner has not established how the outcome of the proceedings would have
been different if counsel had objected to the judge’s questioning. Tavarez, 814 F.3d at 648. Even
if the Petitioner’s counsel had objected to that questioning, there was “no significant probability”
that Petitioner would have been acquitted. People v. Vasquez, 76 N.Y.2d 722, 725 (N.Y. 1990).

Given the victim, eyewitness, and law enforcement testimony, and video surveillance evidence,
presented to the jury, there was overwhelming evidence of Petitioner’s guilt, and Petitioner has
provided no basis for finding that the verdict would have been different if his counsel had objected
to the trial court’s questions. Thus, Petitioner was not prejudiced.

Accordingly, the state court did not unreasonably apply Strickland, and Petitioner’s
ineffective assistance of counsel claim is denied as meritless.
III. Petitioner’s Severance Claim Fails on the Merits

Petitioner alleges that his Fourteenth Amendment due process right to a fair trial was
violated when the trial court denied his motion to sever for trial the charges stemming from the
alleged August 30 robbery from those stemming from the events of September 17. (Dkt. 1, at ECF
7 (“The 2 case’s [sic] are not from the same incident, they are not a continuous incident, they do
not occur on the same day, they are not similar in criminal statu[t]e and nothing of the two have
anything in common to combine them.”).) Petitioner raised this claim on direct appeal. In
affirming the trial court’s denials of Petitioner’s severance motions, the Appellate Division found
that “the nature of the evidence for each of the offenses was material and admissible as evidence
upon the trial of the other counts in the indictment.” Fields, 166 A.D.3d at 897. The Appellate
Division also held that the trial court lacked the authority to sever the counts, since the offenses
“were properly joined in one indictment from the outset” pursuant to CPL § 200.20(2)(b). Id.
Petitioner’s appeal application to the New York Court of Appeals reiterated all of the claims from

his direct appeal, including the severance claim. (Record, at ECF 284.) He has therefore properly
exhausted his state law remedies with respect to this claim, and it is subject to AEDPA deference.
The improper joinder of charges against a defendant is a matter of state law and does not
amount, on its own, to a constitutional violation. McKinnon v. Superintendent, Great Meadow
Corr. Facility, 422 F. App’x 69, 72 (2d Cir. 2011) (citing United States v. Lane, 474 U.S. 438, 446
n.8 (1986)); McCall v. Artus, No. 06-CV-3365 (SAS) (DF), 2008 WL 4501834, at *8 (S.D.N.Y.
Sept. 29, 2008) (“As a preliminary matter, it should be stressed that the issue for this Court is not
whether the consolidation of the indictments in this case was proper under state law” because
“[f]ederal habeas relief ‘does not lie for errors of state law.’” (quoting Estelle v. McGuire, 502
U.S. 62, 67 (1991)). “Joinder of offenses rises to the level of a constitutional violation only if it

actually render[s] petitioner’s state trial fundamentally unfair and hence, violative of due process.”
Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (internal quotations marks and citations
omitted). In evaluating whether the joinder of claims rises to the level of a constitutional violation,
only the consequences of that action—not the joinder itself—can be assessed. Conroy v. Racette,
No. 14-CV-5832 (JMA), 2017 WL 2881137, at *13 (E.D.N.Y. July 6, 2017) (quoting Herring, 11
F.3d at 377). Therefore, to succeed on a federal habeas claim of improper joinder, Petitioner must
“go beyond the potential for prejudice and prove that actual prejudice resulted from the events as
they unfolded during the joint trial.” Herring, 11 F.3d at 377–78.

Here, Petitioner fails to show that he was actually prejudiced as a result of the August 30
and September 17 charges being joined into a single indictment and for trial. On direct appeal,
Petitioner argued that he was prejudiced “because proof of the identity of the robbers was not
strong,” and “the jury may have relied on the flight and apprehension” evidence from Petitioner’s
September 17 arrest to prove the robbery crime on August 30. (Record, at ECF 35–36.) Even
assuming that evidence relating to the two arrests bolstered each other—a perfectly logical
assumption—that fact did not “actually render petitioner’s state trial fundamentally unfair and
hence, violative of due process.” Herring, 11 F.3d at 377 (noting that the Supreme Court

“explicitly accept[s]” that prejudicial effect will inhere when several crimes are tried together,
nevertheless, “[j]oinder of offenses rises to the level of a constitutional violation only if it actually
render[s] petitioner’s state trial fundamentally unfair and hence, violative of due process.”). This
is because the prosecution was entitled to use the evidence from the September 17 arrest to prove
the identities of the perpetrators of the August 30 robbery. CPL § 200.20(2)(b) allows joinder of
offenses based on separate criminal acts into one indictment where “proof of the first offense
would be material and admissible as evidence in chief upon a trial of the second, or proof of the

second would be material and admissible as evidence in chief upon a trial of the first[.]” Here, the
charges from the two incidents were necessarily and inextricably related: the gun recovered on
September 17 was material and admissible evidence of both Petitioner’s role in the August 30
robbery and his relationship with co-defendant Senat. (Record, at ECF 91–93.) Thus, evidence
relating to Petitioner’s and Senat’s September 17 arrest was properly admitted at trial as proof of
their involvement in the August 30 robbery. Dayton v. LaValley, No. 11-CV-1261 (DG) (CLP),
2021 WL 3848148, at *14 (E.D.N.Y. July 29, 2021) (denying a severance habeas claim where
“the same evidence would have been presented” at both severed trials and severance “would create
an undue burden upon the People to necessarily bring many of the same witnesses forward once
again.” (citation omitted)). Petitioner’s argument that there were fundamental discrepancies

between Bradley’s description of the gun used in his robbery and the gun recovered on September
17 is also unpersuasive; Bradley described a “chrome and black” handgun that was largely
consistent with the gun recovered on September 17. (Compare Tr. 686:12–16 (describing “top”
of gun as chrome and handle as black) with Tr. 106:15–18 (“It’s a silver revolver . . . a 44 Magnum
with a black handle.”).) Although Petitioner contends that Bradley initially described the gun
brandished during his robbery as an ”automatic” gun, on cross-examination Bradley did not seem
to be able to describe the difference between an automatic gun and a revolver, and did not recall
telling the NYPD that the gun was automatic. (Tr. 685:20–21 (“I don’t know what type of gun it
was. I don’t recall telling him what type of gun it was.”); 686:2–9.) Further, the trial court
carefully instructed the jury separately on each element of each of the seven charges stemming
from the two arrests. (See generally Tr. 978–1021, 1028:9–1029:18, 1054:17–1058:8.) Burke v.
Smith, No. 07-CV-3098 (NG), 2012 WL 2394718 (E.D.N.Y. June 21, 2012) (denying joinder
habeas claim where “[a]lthough the trial judge did not give specific instructions regarding the

independent nature of each of the charges, he did instruct the jury as to each element of each charge
separately.”).
Second, Petitioner’s claims that joinder caused actual prejudice are based on speculation
rather than evidence. Rolling v. Fischer, 433 F. Supp. 2d 336, 344 (S.D.N.Y. 2006) (denying
habeas claim premised on “mere speculation” that joinder caused prejudice). Since Petitioner
provides no proof that he was actually prejudiced by the denials of his severance motions, his claim
is denied. See e.g., Matthews v. Artuz, No. 97-CV-3334 (DC), 1999 WL 349694, at *4 (S.D.N.Y.

May 27, 1999) (“Here, petitioner’s claim fails on the merits because he cannot demonstrate actual
prejudice.”). Petitioner has not shown—and would be hard-pressed to show, given the surveillance
video and witness testimony identifying him at both the robbery and with the stolen car and
recovered firearm—that, “but for the joint trial, he would have been acquitted of the charges arising
from either of the two incidents.” McCall, 2008 WL 4501834, at *10.
For the foregoing reasons, Petitioner fails to carry his “onerous burden” of demonstrating

actual prejudice as a result of the consolidation of his two sets of charges into a single indictment
and for trial. Herring, 11 F.3d at 378. Therefore, habeas relief is denied on this ground.
IV. Petitioner’s Claim Based on the Failure to Give a Missing Witness Charge Is Meritless

Petitioner argues that his right to a fair trial was violated when the trial court denied his
motion for a “missing witness charge”—i.e., an instruction that the jury could draw an adverse
inference from the state’s failure to call a witness in their control—regarding Bobby Garcia. (Dkt.
1, at ECF 8.) Petitioner raised this claim at the end of the presentation of all of the evidence at
trial (Tr. 879), and again on direct appeal (Record, at ECF 37–43). The Appellate Division held
that the request was untimely, and that Petitioner had failed to show that Garcia was knowledgeable
about a material issue in the case and would have provided non-cumulative testimony. Fields, 166

A.D.3d at 897.
While the failure to provide a missing witness charge is a matter of state law and is
therefore not cognizable under federal habeas review, Estelle, 502 U.S. at 67–68, federal courts
may consider whether the failure to provide the missing witness charge violated a petitioner’s
constitutional rights. Bisnauth v. Morton, No. 18-CV-4899 (JFB), 2021 WL 3492746, at *14
(E.D.N.Y. Aug. 9, 2021). Habeas relief is available only if the trial court’s failure to provide a
missing witness charge “so infected the entire trial that the resulting conviction violated due
process.” Klosin v. Conway, 501 F. Supp. 2d 429, 444 (W.D.N.Y. 2007) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). Further, “[w]here, as here, the alleged error is one of
omission, it ‘is less likely to be prejudicial than a misstatement of the law,’ thereby making the

petitioner’s ‘burden . . . especially heavy.’” Crews v. Herbert, 586 F. Supp. 2d 108, 114 (W.D.N.Y.
2008) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
Under New York law, the decision to give a missing witness charge to the jury is at the
discretion of the trial judge. Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992). To obtain a
missing witness charge, the party requesting the charge bears the burden of establishing that (1)
“the witness’s knowledge [is] material to the trial”; (2) “the witness [is] expected to give

noncumulative testimony favorable to the party against whom the charge is sought”; and (3) “the
witness [is] available to that party.” Zimmerman v. Conway, No. 10-CV-1393 (ER) (PED), 2018
WL 6413144, at *6 (S.D.N.Y. Dec. 6, 2018) (quoting People v. Savinon, 100 N.Y.2d 192, 197
(2003)).

Here, Petitioner fails to show that the trial court abused its discretion by failing to give a
missing witness charge as to Garcia. Petitioner contends that the allegedly “missing witness,”
Garcia, should have been produced to testify regarding Bradley’s physical condition after the
robbery—an issue material to one of the second degree robbery charges, which required proof that
the complaining witness suffered “physical injury,” N.Y. Penal Law § 160.10(2)(a)—and that
Garcia’s testimony would have been non-cumulative because there was no other witness besides
Bradley to testify about his physical condition. Notably, Petitioner does not explain how Garcia
would have testified regarding Bradley’s injuries or even if Garcia could have testified about that
subject. Petitioner therefore cannot demonstrate that Garcia’s testimony would have been

probative or helpful to the jury, whether it would have been non-cumulative of Bradley’s own
testimony, or whether it would have been favorable to Petitioner. Arena, 952 F. Supp. 2d at 489
(“A missing witness charge is not appropriate when the witness’s testimony would merely
corroborate the testimony of other witnesses.” (citing People v. Keen, 94 N.Y.2d 533, 539 (2000)).
Further, there is no indication that Garcia was available to the prosecution; indeed, Bradley
repeatedly testified that he had not been in touch with Garcia since the day he was robbed in
Garcia’s lobby. Thus, Petitioner fails to demonstrate that the Appellate Division erred in finding
that the trial court did not abuse its discretion in denying his requests for a missing witness charge.

Even assuming arguendo that the trial court erred by not giving the missing witness charge,
Petitioner has not demonstrated that this error “so infected the entire trial that the resulting
conviction violated due process.” Klosin, 501 F. Supp. 2d at 444 (quoting Cupp, 414 U.S. at 147).
Indeed, in the face of overwhelming evidence of Petitioner’s guilt—e.g., surveillance video
footage, Bradley’s line-up identifications of Petitioner and Senat, the recovery of a firearm from
Petitioner and Senat similar to Bradley’s description—Petitioner offers nothing to show that the
absence of the missing witness charge as to Garcia so “infected the entire trial” as to deprive
Petitioner of due process. Petitioner’s claim—that the absence of Garcia’s testimony as to one

largely uncontested element of one charge so infected the entire trial that the resulting conviction
on seven separate charges violated due process—is pure conjecture. Toland v. Walsh, No. 04-CV-
0773 (GLS), 2008 WL 65583, at *14–15 (N.D.N.Y. Jan. 4, 2008) (denying habeas relief where
possibility that missing witness would give favorable testimony was “based upon nothing other
than mere conjecture” and stating that “federal habeas relief cannot be granted upon claims that
are rooted in speculation”). Therefore, habeas relief is denied as to Petitioner’s missing witness
charge claim.

V. Petitioner’s Confrontation Clause Claim is Meritless

Lastly, Petitioner argues that his due process right to “confront his accuser” because the
NYPD officer who had identified Petitioner on “a video of [the] alleged robbery” never came “to
any form of the proceedings.”8 (Dkt. 1, at ECF 10.) The Court assumes that Petitioner’s argument
is that the NYPD officer, Sgt. Demma, should have testified at trial. Petitioner first raised this
claim on direct appeal, in his pro se supplemental brief, (Record, at ECF 53–57), and the Appellate
Division held that it was unpreserved. Fields, 166 A.D.3d at 898. Petitioner’s motion for leave to
appeal to the New York Court of Appeals, which was denied, included this claim, and so the claim
is exhausted even though he did not raise it in his 440 Motion. Watson v. New York, No. 19-CV-
0707 (CM), 2019 WL 6117711, at *2 (S.D.N.Y. Nov. 15, 2019) (“[A] petitioner need not give the

8 At a pre-trial hearing, NYPD Detective Richard McCarty testified that he and one
Sergeant (“Sgt.”) Demma reviewed surveillance video from the date of the Bradley robbery, and
Sgt. Demma indicated that he knew Petitioner “from a previous incident.” (Tr. 10:5–13.)
state court system more than one full opportunity to rule on his claims; if he has presented his
claims to the highest state court on direct appeal he need not also seek collateral relief.” (quoting
Daye v. Att’y Gen. of the State of N.Y., 696 F.2d 186, 191 n.3 (2d Cir. 1982))).

Petitioner’s claim is procedurally barred by the Appellate Division’s finding that he failed
to preserve the issue for appeal. Davila, 582 U.S. at 527. As discussed supra, New York State’s
preservation rule is “a firmly established and regularly followed New York procedural rule,” and
is therefore an independent and adequate state ground foreclosing federal habeas review. Downs,
657 F.3d at 104. The Appellate Division relied solely on this procedural ground for its
determination. Fields, 166 A.D. 3d at 898. Although the Appellate Division ruling simply stated
that “[t]he defendant’s remaining contentions, including those raised in his pro se supplemental
brief, are unpreserved for appellate review, . . . and we decline to consider them in the interest of

justice,” id. (internal citations omitted), and did not specifically reference the contemporaneous-
objection rule, the Appellate Division’s decision is sufficient to foreclose federal habeas review.
See Wade, 2023 WL 2152489, at *11 (finding a claim procedurally barred for federal habeas
review where the Appellate Division “declined to review . . . based on lack of preservation,” but
failed to cite the contemporaneous-objection rule statute, C.P.L. § 470.05(2)).
With respect to this claim, Petitioner argued in his pro se motion for reconsideration of his

application for leave to appeal to the Court of Appeals that “[t]he failure of defendant to object at
trial, to the identification by Sgt. Demma is hardly a waiver, since defendant made an appropriate
pretrial motion to suppress the identification” and “no purpose would be served by renewing it [at]
trial.” (Record, at ECF 293.) But Petitioner’s pretrial motion to suppress the photo array and line-
up identifications clearly did not involve the same issue he raised post-trial or raises now about
Sgt. Demma not testifying at trial about his identification of Petitioner. (See Record at ECF 166
(Petitioner moving to suppress the photo array as suggestive); Tr. 148–52 (denying Defendants’
suppression motions on grounds that they are “reasonably enough non-suggestive”).) “New
York’s highest courts uniformly instruct that to preserve a particular issue for appeal, [a] defendant
must specifically focus on the alleged error.” Garvey v. Duncan, 485 F.3d 709, 714–15 (2d Cir.

2007) (collecting cases). Thus, Petitioner simply did not preserve the argument that he should
have been permitted to cross-examine Sgt. Demma at trial.
Finally, Petitioner’s claim that Sgt. Demma’s “testimony would have had a vital impact on
the outcome of this case” (Record, at ECF 56–57) is purely speculative and fails to establish cause
for default and actual prejudice, or a miscarriage of justice due to absolute innocence. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Therefore, Petitioner’s claim is procedurally barred and
denied.

CONCLUSION
For the reasons explained above, the Court denies Petitioner’s habeas petition in its
entirety. Moreover, the Court declines to issue a certificate of appealability because Petitioner has

not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
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 27, 2023
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310561. Public record. Not legal advice.