Young v. McGinnis (411 F. Supp. 2d 278, 2006)

MEMORANDUM, ORDER AND JUDGMENT

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I. Introduction.............................................................283

II. Evidence in Two Murders .................................................284

III. Briefs in Two Cases.......................................................284

IV. Hearing.................................................................284

V. Booker Murder...........................................................285

VI. Graham Murder..........................................................289

VII. Summary of Petitioner’s Claims in Two Murders..............................295

VIII. Analysis of Contentions in Booker Murder Case..............................296

A. Failure to Instruct on Need for Accomplice Corroboration.................296

B. Limiting Cross-Examination...........................................300

C. Prior Uncharged Crimes and Bad Acts; Admissions Instructions; Prosecutor’s Summation............................................303

1. Evidence of Another Homicide ....................................304

2. Threats Against Witness..........................................305

3. Other Evidence of Prior Bad Acts or Uncharged Crimes..............306

4. Charge.........................................................306

5. Prosecutor’s Summation..........................................306

D. Proof Beyond a Reasonable Doubt of Inculpatory Statements..............307

E. Insufficient Evidence .................................................312

F. False Testimony .....................................................313

G. Inadequacy of Trial Counsel: Alibi......................................314

H. Other Possible Claims.................................................317

IX. Analysis of Contentions in Graham Murder Case..............................317

A. Uncharged Robbery Evidence to Prove Motive...........................317

B. Prejudicial Details of Uncharged Crimes ................................319

C. Ineffective Assistance of Trial Attorney.................................323

1. General Competence.............................................323

2. Argument Against Introduction of Uncharged Crime Evidence ........323

3. Strategy........................................................324

4. Failure to Move to Strike Testimony Respecting Prior Incarceration..................................................324

5. Failure to Request Curative Instructions ...........................325

6. Waiver as to Uncharged Crimes...................................325

7. Failure to Cross-Examine........................................325

8. Failure to Challenge Inadequate Police Investigation.................325

9. Failure to Investigate Claim Another Person was Perpetrator.........326

10. Failure to Prepare and Consult with Petitioner......................326

D. Rosario and Brady Failures............................................328

1. Exhibit A.......................................................328

2. Exhibit E.......................................................330

3. Exhibit F.......................................................331

E. Ineffective Appellate Counsel..........................................332

1. Denial of Right to Testify Before Grand Jury........................333

2. Failure to Cross-Examine Witnesses Using Grand Jury Testimony....................................................334

3. Failure to Utilize Phantom Murderer Theory........................334

F. Other Possible Claims.................................................335

X. Conclusion...............................................................335

I. Introduction

Petitioner is currently incarcerated pursuant to his judgments of conviction in two Brooklyn homicide cases—the murder of Andre Booker, Kings County Indictment Number 8457/89, and the murder of Calvert “Bobby” Graham, Kings County Indictment Number 6163/88.

In 1998 petitioner filed in this court separate pro se applications for a writ of habeas corpus in each case. The petition in the Booker murder case was assigned the case number 98-CV-89. The petition in the Graham murder case was assigned the case number 98-CV-281. Because the state trial defense counsel (in part) and respondent were the same in both cases, and the evidence in the state proceedings overlapped, on October 14, 1999 this court ordered these two habeas cases consolidated under one case number, 98-CV-281.

In 1999 this court assigned Harry C. Batchelder, Jr., Esq., and Tracy W. Young, Esq., to represent petitioner on his habeas applications. Mr. Batchelder and Ms. Young filed briefs and supporting materials on petitioner’s behalf. With funds provided by this court, they investigated petitioner’s claims. Mr. Batchelder and Ms. Young also filed papers on petitioner’s behalf in state court in an effort to exhaust petitioner’s claims. After exhaustion in state court, this court relieved Mr. Batchelder and Ms. Young of their assignment.

On May 16, 2005 petitioner, pro se, filed an amended habeas application in this court. This court appointed Donna R. Newman, Esq., to represent petitioner. Ms. Newman filed a supplemental brief dated September 7, 2005 on petitioner’s behalf.

On November 18, 2005, as requested by this court, respondent filed a comprehensive affidavit and brief on both homicides. The present memorandum deals first with the Booker murder and next with the Graham murder.

II. Evidence in Two Murders

A detailed analysis of the evidence in both cases need not now be rehearsed. It is adequately and fairly set forth in respondent’s brief of November 18, 2005 at pages 1-29 for the Booker ease and pages 137-144 for the Graham case.

III. Briefs in Two Cases

In addition to the various pro se communications from petitioner, and the record and briefs in the state proceedings, this court has relied on respondent’s comprehensive brief dated November 18, 2005 with affidavit and extensive appendices; the supplemental brief of petitioner’s counsel Donna R. Newman, dated September 7, 2005 (covering primarily the Booker murder, 8457/89, which occurred in Nassau County), which relies in part on a brief prepared by petitioner’s former attorneys Harry C. Batchelder, Jr. and Tracy W. Young; a supplemental memorandum of law dated July 16, 1999 and filed on July 26, 1999 by attorneys Batchelder and Young (covering the Graham murder, which occurred in Brooklyn); a pro se memorandum of law filed January 15, 1998 (covering the Graham murder); a second supplemental memorandum of law by attorneys Batchelder and Young dated March 21, 2000 and filed March 24, 2000 (covering the Graham murder); a reply memorandum of law by attorneys Batchelder and Young dated October 8, 1999 and filed October 13, 1999 (covering the Graham murder); affidavits of attorney Newman and others filed by attorneys Batchelder and Young on March 28, 2000 (dealing with the Graham murder); and the pro se habeas corpus proceedings upon the completion of the state appellate process, with extensive exhibits filed May 16, 2005 (dealing with the Graham murder). The briefs were all excellent and useful. All the other documents in the file have been considered.

IV.Hearing

A final evidentiary hearing was conducted in this court on January 24, 2006. Counsel were ordered to produce any state trial or appellate counsel who had evidence bearing on any claim of lack of adequacy of counsel in state court. Issues raised by petitioner in the Graham murder and the Booker murder were explored with the parties. They were free to put on any witnesses and to produce any relevant documents. Petitioner was present by telephone.

Leo Kimmel, Esq., a highly experienced criminal defense attorney, testified. He had represented petitioner in the first Graham murder trial, where the judgment for the people was reversed, and in the Booker case. While his memory of the trial was limited, he was a candid and credible witness.

He was clear on the point that petitioner was aware of, and participated in, the decision not to pursue at trial the scenario of an alternate murderer. It is apparent from his testimony that he used a competent investigator in running down possible leads and in preparing for trial. There is every reason to believe that his decision to eschew the phantom-murderer defense was made after conferring with petitioner and for good strategic reasons. See Part IX.C.9, infra.

Susan Feathers, Esq. was appellate counsel in the Graham murder. She testified by telephone. She was an experienced Legal Aid appellate counsel. Her testimony confirmed the evidence of her fine brief that the direct appeal was well conducted. While her testimony was unnecessary, there was no reason to find her work less than satisfactory. Her strategic decisions on appeal were sound, as indicated in Part IX.E., infra.

Edna Schwartz, Esq. represented petitioner in the Booker murder. She testified that she had a fairly clear recollection of the trial. She had worked for a substantial number of years as a trial attorney for Legal Aid on the most serious and complex cases. She was entirely credible.

The main criticism petitioner had of Ms. Schwartz was that she did not press a possible alibi defense—that petitioner was at a family birthday party at the time of the murder. She had interviewed the possible witnesses and was not comfortable with their credibility and their possible testimony. Her strategic reason for not using this testimony was fully explained and is justifiable on a number of grounds, including that she preferred to have the jury focus on the lack of credibility of the chief witness against petitioner rather than on the dubious alibi. See Part VIII.G., infra.

Her professional choices in this and other respects were sound. It is apparent that her lack of enthusiasm for the alibi was not due to lethargy since she had filed an alibi notice and interviewed the possible witnesses.

Both Mr. Kimmel and Ms. Schwartz testified that petitioner was an alert and active participant in his trials with a good grasp of the law and facts.

Ms. Schwartz testified truthfully that while she had advised petitioner against testifying, she did not prevent him from doing so, but made it clear that the decision was petitioner’s. See Part VIII.G., infra.

Petitioner himself testified. He was not a credible witness. He lied. He added nothing to his case.

V. Booker Murder

The evidence demonstrated that on May 6, 1987, petitioner, who was staying at his mother’s house in Elmont, Nassau County, Long Island, lured his friend, Andre Booker, down to the basement of that house. There, assisted by his brother, Enrico Young, he bound Booker’s arms, kicked him in the mouth, wound a rope around his neck, and strangled him to death. Petitioner murdered Booker because he feared that Booker might be arrested and implicate petitioner in a homicide that they had committed together in Brooklyn approximately three weeks earlier.

Petitioner and his brother wrapped Booker’s dead body in some plastic, drove to a garbage dump near Linden Boulevard in Brooklyn, and disposed of the corpse. Booker’s body was found the following day.

On September 25, 1987, petitioner’s girlfriend, Marie Somie, who arguably had deliberately assisted in the murder as an accomplice and was present in the Elmont house when the crime occurred, went to the police and identified petitioner as Booker’s killer. Later Somie implicated Enrico Young, petitioner’s brother, as an accomplice in the killing.

For this crime, petitioner was charged, under Kings County Indictment Number 8459/87, with Murder in the Second Degree, a violation of New York Penal Law Section 125.25(1).

Petitioner was originally tried in March of 1989. He was represented by Leo Kimmel, Esq. Petitioner was convicted of murder and sentenced on April 25, 1989. That conviction was reversed on appeal. Petitioner was then retried in 1993. At the retrial, petitioner was represented by The Legal Aid Society.

At the second jury trial, petitioner was convicted of Murder in the Second Degree. On June 2, 1993, he was sentenced to a prison term of twenty-five years to life.

Prior to perfecting his direct appeal from his judgment of conviction, petitioner moved, by papers dated August 25, 1995, to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law (“C.P.L. § 440.10”). On petitioner’s motion, as at trial and on his direct appeal, petitioner was represented by attorneys of The Legal Aid Society-—Edna Schwartz and Mitchell Briskey. In his motion, petitioner claimed that the State, in violation of the Rosario rule, had failed to disclose to petitioner at trial a recorded statement of prosecution witness Marie Somie. People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), codified at N.Y.Crim. Proc. Law §§ 240.44(1), 240.45(l)(a). Petitioner attached to his motion, as Petitioner’s Exhibit B, a copy of the document, a Homicide Bureau Information Sheet, which had allegedly been in the State’s possession at trial and withheld from petitioner. Petitioner’s August 1995 C.P.L. § 440.10 motion, which challenged his judgment of conviction for the Booker murder under Kings County Indictment Number 8459/87, incorporated by reference a C.P.L. § 440.10 motion, dated July 1994, in which petitioner challenged his judgment of conviction for the Graham murder under Kings County Indictment Number 6163/88. Opposing the motion, the State asserted that the document had never been in the State’s possession, and was not, in fact, genuine.

Following a hearing in Supreme Court, Kings County, the court found petitioner’s hearing testimony unworthy of belief, credited the hearing testimony of the State’s witness, A.D.A. Melanie Manner, and determined that the alleged Homicide Bureau Information Sheet was a “forged and non-authentic document which was never withheld from petitioner at any time as it never existed until fraudulently produced.” See September 19, 1996 Memorandum Decision and Order at 2-3. (The Batchelder-Young brief on petitioner’s behalf did not contest this finding of fraud.) The court denied petitioner’s C.P.L. § 440.10 motion to vacate his judgment of conviction for the Booker murder.

While his C.P.L. § 440.10 motion was pending, petitioner filed his brief on direct appeal from his judgment of conviction. Petitioner raised the following claims: First, his due process right was violated because the evidence was legally insufficient in light of the court’s charge to the jury that it must find, beyond a reasonable doubt, that petitioner strangled Andre Booker in the County of Kings. Second, citing the Fourteenth Amendment in the point heading of his brief he claimed that he was entitled to a new trial, because defense counsel had requested an accomplice corroboration charge with regard to Marie Somie and the court had erred in refusing that request. Third, he claimed that his Confrontation Clause right was violated because the court had improperly curtailed his cross-examination of Marie Somie. Fourth, he argued that his due process right was violated because the court had improperly admitted evidence of petitioner’s uncharged crimes and bad acts and because the prosecutor had delivered an improper summation. Fifth, he contended that his due process right was violated because the court failed to instruct the jurors specifically that the prosecution had to prove beyond a reasonable doubt that petitioner had made the statements attributed to him by Marie Somie and because the court allegedly removed from the jury’s consideration the factual issue of whether petitioner had made those statements to Somie.

By decision and order dated January 13, 1997 the Appellate Division affirmed petitioner’s judgment of conviction. People v. Young, 235 A.D.2d 441, 653 N.Y.S.2d 124 (2d Dep’t 1997). The Appellate Division concluded that petitioner had failed to preserve for appellate review his claim that the trial court erred by not submitting to the jury the question of whether Somie was an accomplice and by not instructing the jury that, in the event that it concluded that Somie was an accomplice, her testimony required corroboration. People v. Young, 235 A.D.2d at 442, 653 N.Y.S.2d at 125-26. It found that, in any event, the claim was meritless. People v. Young, 235 A.D.2d at 442-44, 653 N.Y.S.2d at 126-27. It also determined that petitioner’s remaining claims were either unpreserved for appellate review or without merit. People v. Young, 235 A.D.2d at 444, 653 N.Y.S.2d at 127. One justice dissented on grounds of the failure to give the accomplice charge. People v. Young, 235 A.D.2d at 444-46, 653 N.Y.S.2d at 127-28.

By decision and order dated April 7, 1997 a judge of the New York Court of Appeals denied petitioner’s application for leave to appeal from the Appellate Division’s decision. People v. Young, 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320 (1997).

By order dated April 10,1997 the Appellate Division, Second Department, denied petitioner’s application for leave to appeal from the September 19, 1996 order of the Supreme Court, Kings County, denying his motion to vacate his judgment of conviction for the Booker murder.

By papers dated January 28, 1998 petitioner moved, for a second time, pursuant to C.P.L. § 440.10, to vacate his judgment of conviction. He claimed that his judgment should be vacated on three grounds: First, pursuant to C.P.L. § 440.10(l)(c), because material evidence was adduced at trial through the testimony of Marie Somie that the prosecutor knew to be false. Second, pursuant to C.P.L. § 440.10(l)(g), because new evidence had been discovered since the entry of the judgment—namely, a photograph, allegedly of Marie Somie and Enrico Young wearing some of the victim Booker’s jewelry—and that such evidence, which could not have been discovered with due diligence at the time of trial, created a probability that the verdict would have been different. Third, pursuant to C.P.L. § 440.10(l)(h), because he was deprived of the effective assistance of trial counsel in that counsel inexcusably failed to present an alibi defense that petitioner had been attending his son’s birthday party on the day of Booker’s murder.

By application dated January 28, 1998 petitioner sought a federal writ of habeas corpus. He raised the same five claims that he had raised in his Appellate Division brief on direct appeal in state court. He informed this court that he intended to raise two of the issues from his second (and as yet undecided) C.P.L. § 440.10 motion.

Because state proceedings were still pending, by order dated April 20, 1998, this court held that petitioner’s application was “deemed withdrawn.” The court noted that “[t]he file [could] be reopened on letter to the Court upon exhaustion of state remedies.”

By memorandum decision and order dated July 6, 1998 the Supreme Court denied petitioner’s January 28,1998 C.P.L. § 440.10 motion to vacate his judgment of conviction. First, the court concluded that petitioner had failed to establish that the alleged photograph of Enrico Young and Marie Somie wearing the victim’s jewelry constituted newly discovered evidence requiring the vacatur of the judgment of conviction. Memorandum Decision and Order at 6-7. Second, the court held that petitioner’s claim that the prosecutor had suborned perjury with regard to Somie’s testimony was without merit. Id. at 7-9. The court noted that the alleged discrepancies between Somie’s testimony at the first and second trials were insufficient to establish that she had testified falsely at the second trial regarding any material issue, and that, in any event, petitioner possessed the information so that he either presented or could have presented the alleged inconsistencies to the jury. Id. at 8-9. Third, the court held that petitioner’s claim of ineffective assistance of trial counsel was procedurally barred from review because petitioner had failed to show that he could not have raised the issue in his previous C.P.L. § 440.10 motion. Id. at 5, 9-10; see N.Y.Crim. Proc. Law § 440.10(3)(c) (court may deny C.P.L. § 440.10 motion to vacate a judgment of conviction when the petitioner could have raised the issue in a previous C.P.L. § 440.10 motion and unjustifiably failed to do so). The court also noted that petitioner’s motion papers were insufficient to prove his claim that counsel was ineffective for not calling petitioner’s family members to establish an alleged alibi. Id. at 10. The court rejected other aspects of petitioner’s ineffective assistance of counsel claim and concluded that in the context of the entire trial, petitioner had received meaningful representation. Id. at 11. Fourth, the court determined that all of petitioner’s other claims were procedurally barred from its review because the claims appeared on the record and were decided on appeal or because the claims could have been raised in his previous C.P.L. § 440.10 motion. Id. at 5,11-12.

By order dated November 20, 1998 a judge of the Appellate Division denied petitioner’s application for leave to appeal to the Appellate Division from the order of the Supreme Court, Kings County, denying his second C.P.L. § 440.10 motion.

Petitioner then filed in this court an application, dated December 4, 1998 for habeas relief. Respondent construed that petition as raising one of the same claims raised in the original petition (namely, “ground two” of the January 1998 petition), as well as raising three new claims, similar to those raised in his second C.P.L. § 440.10 motion. Petitioner submitted papers, dated April 21, 1999, in which he asserted that he had never abandoned the other three claims raised in his original petition (namely, grounds one, three, and four). By order dated June 16, 1999 this court ruled that petitioner was deemed to have amended his December 4, 1998 petition to present all the claims raised in his original January 28, 1998 petition. Respondent then filed an affidavit and memorandum of law, dated August 27, 1999, addressing those remaining claims.

In the meantime, petitioner had filed an application for a writ of habeas corpus with regard to his judgment of conviction for the Graham murder under Kings County Indictment Number 6163/88. This court assigned Harry C. Batchelder, Jr., Esq., and Tracy W. Young, Esq., to represent petitioner in connection with that application—case number 98-CV-281. On October 14, 1999 the parties appeared before this court, and the two cases were, as already noted, consolidated under case number 98-CV-281.

Mr. Batchelder and Ms. Young prepared a supplemental memorandum of law dated January 24, 2000 in support of petitioner’s habeas application regarding the Booker murder case. In that memorandum, counsel discussed the claims they considered most telling that petitioner had raised in his petition and amended petition, but did not abandon any other of petitioner’s claims.

Following consolidation of the two cases under case number 98-CV-281, petitioner’s application for habeas relief in both cases was held in abeyance by this court while Mr. Batchelder and Ms. Young, on petitioner’s behalf, returned to state court to exhaust a claim of ineffective assistance of counsel with regard to the Graham murder case. Once that claim was exhausted, petitioner, on May 16, 2005 filed, pro se, an amended petition with this court. To that petition, petitioner attached the memorandum of law by Mr. Batchelder and Ms. Young. Ms. Donna R. Newman, Esq., who was assigned by this Court in April of 2005 to represent petitioner on his consolidated habeas applications, has also attached a copy of that Batchelder-Young memorandum of law to her papers.

Ms. Newman, in her September 7, 2005 supplemental brief in support of petition for writ of habeas corpus, focuses on four of the claims that petitioner had originally raised in points II, III, and IV of his brief on direct appeal, and then again in his petition for habeas relief, without abandoning any of petitioner’s claims.

VI. Graham Murder

On November 6, 1986 some time between 2:00 and 3:00 a.m., in an alley between Schenectady Avenue and President Street in Brooklyn,- the evidence shows that petitioner shot Calvin “Bobby” Graham in the back of the head, killing him.

For this crime, petitioner was charged, by Kings County Indictment Number 6163/88, with Murder in the Second Degree, N.Y. Penal Law § 125.25(1), Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(4).

Petitioner was represented by Leo Kimmel, who had represented him at the first Booker murder trial. On November 8, 1989 at a pre-trial hearing pursuant to People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), the prosecutor moved for permission to introduce on the State’s direct case evidence 1) that petitioner and Bobby Graham (the homicide victim) had committed a robbery in Nassau County together in October, 1986; 2) that some crack cocaine had been part of the loot from the robbery; and 3) that it was because Graham had not given petitioner his proper share of the money obtained from the sale of the crack cocaine that petitioner had killed Graham.

The prosecutor argued that he should be permitted to present the testimony of the victims of the robbery to dispel any possible speculation on the jury’s part about whether the robbery had in fact occurred. Police records show that, by the time of the Molineux hearing, at least two of the four victims from the Nassau County robbery had been shown photographic arrays and two victims had identified petitioner’s photograph, stating that petitioner was one of the men who had robbed them.

Petitioner’s trial counsel opposed introduction of evidence regarding the Long Island drug robbery. He argued that the admission of the uncharged robbery evidence by the prosecutor was highly prejudicial and potentially not even relevant, since there was no conclusive evidence that petitioner had participated in the Long Island robbery. Defense counsel also argued that certainly the independent evidence of the robbery should be excluded, because admitting such evidence would essentially force the defense to “try two cases” at once. Although the trial court reserved decision on the matter, it is apparent from the trial record that the court eventually agreed with defense counsel regarding the independent evidence of the robbery, since the court precluded the introduction of any such evidence.

At the Molineux hearing, which was attended by petitioner, defense counsel mentioned the fact that, according to police reports in his possession, an individual named Harrison Wilder had accused a man named “Sincere” of murdering Graham. The police reports indicated that in late November 1986 Wilder told the police that a drug dealer, whose street name was “Sincere,” had shot the victim, Bobby Graham. Eventually, Sincere, whose real name was Demengious Allen, was arrested and held by the police so that an identification could be made by Wilder. Wilder could not be found, and Allen was released. A few days after Allen’s release, his attorney, A.H. Maddox, Jr., contacted the police and informed them he was representing Allen. In the months that followed, the police made extensive efforts to find Wilder with no success.

After defense counsel mentioned the Wilder/Sincere issue at the November 8, 1989 Molineux hearing, the prosecutor noted that he himself had made efforts to locate Wilder, but had been unable to do so. He stated that it was the'State’s belief that the evidence proffered by Wilder had been an attempt by petitioner or someone associated with petitioner to deflect the police investigation away from petitioner, whom the police had interviewed the day after the homicide. No evidence to refute or further support this belief was furnished at pretrial or at the trial.

At the jury trial, the State presented the testimony of Robert Graham, who was the younger brother of the victim, Calvert “Bobby” Graham; Brenda Graham, the victim’s mother; and Michelle Haile and Marie Somie, two of petitioner’s former girlfriends. The State also presented medical evidence and called Detective Stanley Long.

In the midst of trial, just prior to Detective Long’s testimony, the prosecutor made a motion in limine, seeking an order precluding defense counsel from questioning Detective Long about another detective’s interview of Harrison Wilder regarding Demengious “Sincere” Allen. Defense counsel acknowledged that he knew about the Wilder/Sincere matter and that he had in his possession all of the police reports on the matter. Defense counsel then told the trial court, “Although I would have liked to question this officer on anything with regard to the other arrest, I spoke with my client and as a trial tactic I’m not going to ask any questions of this detective with respect to the other arrest they had made. Let the record indicate, though, it is the defense trial tactic.” (99— 100) (emphasis added). The trial court granted the State’s motion in limine “in any event.” This court credited the defense attorney’s testimony in this court that petitioner participated in this strategic decision. See Part IV, supra.

Petitioner was convicted of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. On December 4, 1989 he was sentenced, as a second violent felony offender, to concurrent prison terms of twenty-five years to life on the murder count and seven and one-half to fifteen years on the weapon possession count. This term was consecutive to the term in the Graham murder.

Petitioner appealed from his judgment of conviction. He claimed that 1) the trial court improperly allowed the State to introduce evidence of an uncharged robbery to establish petitioner’s motive for murdering Bobby Graham, the court provided insufficient limiting instructions on the use of such evidence, and as a result, petitioner was denied his due process right to a fair trial; and 2) he was denied effective assistance of trial counsel, in that counsel did not properly deal with the uncharged crimes evidence, counsel developed inflammatory facts regarding the uncharged crimes evidence on cross-examination, and counsel highlighted this prejudicial evidence in his summation. In a pro se supplemental brief, petitioner additionally claimed that he had been denied a fair trial by the prosecutor’s opening statement, summation, and allegedly knowing use of perjured testimony. One of the exhibits attached to his pro se brief was a Homicide Bureau Information Sheet concerning an audiotaped statement given by Marie Somie to an assistant district attorney.

On November 9, 1992 the Appellate Division unanimously affirmed the judgment of conviction for the Graham murder. People v. Young, 187 A.D.2d 548, 590 N.Y.S.2d 756 (2d Dep’t 1992). It “reject[ed]” petitioner’s claim that the admission of uncharged crimes evidence constituted reversible error. The Appellate Division also concluded that petitioner’s claim that he was denied the effective assistance of counsel was without merit. Id. Finally, the Appellate Division held that petitioner’s remaining claims, including those raised in petitioner’s supplemental brief, were either unpreserved for appellate review or without merit. Id.

On March 30, 1993 a judge of the New York Court of Appeals denied petitioner’s application for leave to appeal from the Appellate Division’s decision. People v. Young, 81 N.Y.2d 895, 597 N.Y.S.2d 957, 613 N.E.2d 989 (1993).

By pro se papers dated March 26, 1993 petitioner moved in the trial court, pursuant to § C.P.L. 440.10, for an order vacating his judgment of conviction. He claimed that the judgment of conviction should be vacated on the ground that the State had failed to turn over a Homicide Bureau Information Sheet, which, petitioner claimed, constituted newly discovered evidence and Rosario material. The sheet, which petitioner attached to his papers as an exhibit, summarized an audio-taped statement that one of the prosecution witnesses, Marie Somie, had made to an assistant district attorney. The sheet also mentioned statements made by a police detective who was not a witness at trial.

Before the trial court decided petitioner’s March 26, 1993 motion to vacate his judgment of conviction, petitioner filed a second pro se motion dated July 22, 1994 in which he cited two new grounds for the vacatur of his judgment of conviction pursuant to C.P.L. § 440.10. In his July 22, 1994 papers, petitioner claimed that 1) he had not received at trial a Homicide Bureau Information Sheet concerning the prosecution witness, Marie Somie, and this nondisclosure constituted a Rosario violation, and 2) he had not received at trial a Homicide Bureau Information Sheet concerning Harrison Wilder, and that such nondisclosure constituted a Brady violation.

The court reviewing petitioner’s C.P.L. § 440.10 motion regarding Indictment Number 8459/87 (the Booker murder) concluded that a hearing was necessary to determine the authenticity of the Homicide Bureau Information Sheet and to determine whether this document had been improperly withheld from petitioner at trial. The court reviewing petitioner’s motion regarding Kings County Indictment Number 6163/88. (the Graham murder), also concluded that such a hearing was necessary, since the same document was also the subject of petitioner’s Rosario claim in his July 22, 1994 motion to vacate his judgment of conviction under Indictment Number 6163/88. Robert Fisher, Esq., was appointed by the court to represent petitioner on Indictment Number 6163/88. Edna Schwartz, Esq., of The Legal Aid Society represented petitioner on Indictment Number 8459/87.

On February 13, 1996 petitioner, represented by both of his counsel, appeared in Supreme Court. Petitioner consented to the consolidation of the two indictments for the purpose of a hearing .on the authenticity of “Exhibit E.” A hearing was held.

By a memorandum decision and order dated September 19, 1996 regarding Kings County Indictment Number 8459/87, the Supreme Court rejected petitioner’s testimony, credited the testimony of the State’s witness, and determined that Exhibit E was a “forged and non-authentic document which was never withheld from petitioner at any time as it never existed until fraudulently produced.” Id. (emphasis supplied). The court denied petitioner’s C.P.L. § 440.10 motion to vacate his judgment of conviction under Kings County Indictment Number 8459/87.

By a memorandum decision and order dated February 24, 1997 covering the Graham murder case, the Supreme Court denied both petitioner’s March 1993 C.P.L. § 440.10 motion and his July 1994 C.P.L. § 440.10 motion to vacate his judgment of conviction.

With respect to the 1993 motion, the court concluded that, even assuming that petitioner had not received the Homicide Bureau Information Sheet summarizing Somie’s interview with an assistant district attorney (the same sheet that petitioner had attached to his pro se supplemental brief to the Appellate Division), the sheet did not provide a basis for vacating the judgment of conviction. Memorandum Decision and Order at 3-6.

With respect to the 1994 motion, the court noted that petitioner had failed to provide sufficient allegations of fact to establish that he had not received the Homicide Bureau Information Sheet about Harrison Wilder, and thus, petitioner’s motion could be denied pursuant to C.P.L. § 440.30(4)(b) and (d). Id. at 7-8. Additionally, citing the procedural bar of C.P.L. § 440.10(3)(a), the court declined to review petitioner’s Brady claim regarding the Homicide Bureau Information Sheet about Harrison Wilder. The court found that, in any event, the Homicide Information Sheet concerning Harrison Wilder was not Brady material and did not provide a basis for vacating petitioner’s judgment of conviction. Id. at 8-10. It also concluded that the sheet labeled “Exhibit E” was a forgery, was not Rosario material, and did not provide a basis for vacatur. Id. at 6-7. The court noted that petitioner should have raised the claim in his original motion papers, and that the motion, insofar as it relied on this Rosario claim, could be denied under C.P.L. § 440.10(3)(c). Id. at 7.

By order dated July 15, 1997 the Appellate Division denied petitioner’s application for leave to appeal from the trial court’s order denying petitioner’s motions to vacate his judgment of conviction under Kings County Indictment Number 6163/88.

By papers dated July 22, 1997 petitioner moved before the Appellate Division for an order granting a writ of error eoram nobis on the ground that he had been deprived of the effective assistance of appellate counsel. Petitioner claimed that appellate counsel had been ineffective for failing to incorporate in the claim of ineffective assistance of trial counsel that appellate counsel did raise, a claim that trial counsel was ineffective for not using grand jury testimony to cross-examine the prosecution witnesses and for not using the Homicide Bureau Information Sheet that summarized an audiotaped statement made by Marie Somie to an assistant district attorney that petitioner previously had attached to his pro se supplemental brief on direct appeal and to his March 1993 C.P.L. § 440.10 motion.

By decision and order dated November 10, 1997 the Appellate Division denied petitioner’s motion for a writ of error coram nobis. People v. Young, 244 A.D.2d 441, 665 N.Y.S.2d 557 (2d Dep’t 1997).

By papers dated January 9, 1998 petitioner applied, pro se, to this court for federal habeas corpus relief. He raised the same claims that he had raised 1) on direct appeal to the Appellate Division; 2) in his two C.P.L. § 440.10 motions attacking his judgment of conviction for the Graham murder; and 3) in his motion for a writ of error coram nobis.

This court assigned Tracy W. Young, Esq. and Harry C. Batchelder, Esq., to represent petitioner on this application for federal habeas relief. Ms. Young and Mr. Batchelder submitted a supplemental memorandum of law, dated July 16, 1999 in support of petitioner’s habeas petition. In that supplemental memorandum of law, petitioner raised two claims. First, as he had in the Appellate Division on direct appeal, that he had been denied due process by the admission of evidence concerning an uncharged robbery that petitioner had committed with Bobby Graham (the murder victim) and concerning details about that robbery, and by the trial court’s failure to deliver sufficient limiting instructions concerning the jury’s use of the uncharged crime evidence. Second, that he had been denied the effective assistance of trial counsel, in that counsel unjustifiably: 1) failed to prevent the admission of prejudicial uncharged crime evidence; 2) elicited damaging uncharged crime evidence and referred to that evidence in his summation; 3) failed to request limiting instructions concerning the jury’s use of the uncharged crime evidence; 4) failed to investigate or explore allegedly exculpatory evidence (i.e., Harrison Wilder’s accusation of Demengious “Sincere” Allen); and 5) failed to cross-examine a prosecution witness with an allegedly prior inconsistent statement. Although petitioner had previously raised in State court a claim of ineffective assistance of trial counsel based on the first three grounds, petitioner had never previously cited in support of a claim of ineffective assistance of trial counsel the fourth and fifth grounds that he set forth in his petition.

On October 14, 1999 the parties appeared for oral argument before this court. The court found that petitioner had not exhausted his claim of ineffective assistance of counsel based on trial counsel’s alleged failure to investigate and explore the Harrison Wilder information concerning Demengious “Sincere” Allen. So that petitioner could decide whether he wanted to 1) drop the unexhausted claim and have this court rule on the remaining claims of his petition or 2) go to state court and exhaust the claim, this court granted petitioner $1,000 to investigate the allegation of Harrison Wilder concerning Demengious Allen. In light of the court’s request that the State cooperate with defense counsel’s investigation of Wilder’s allegation, an assistant district attorney sent Ms. Tracy W. Young on November 4, 1999 copies of numerous DD-5 police reports, the crime scene photographs, the autopsy report, the District Attorney’s Office’s homicide bureau information “scratch sheets,” and various miscellaneous police documents which were contained in the State’s trial folder in petitioner’s case under Kings County Indictment Number 6163/88. Defense counsel retained the services of Roland Thomas, an investigator.

In a December 1999 motion requesting additional funds for further investigation, petitioner’s counsel, Ms. Young, observed that none of the materials provided by the State noted whether petitioner’s photograph had ever been positively identified by the victims of the Long Island robbery. The State responded to Ms. Young’s motion and noted that positive identifications had been made. Attached to the response submitted by the State were police reports from Nassau County.

By a supplemental memorandum of law dated March 21, 2000 defense counsel, Mr. Batchelder and Ms. Young, expanded on their previously raised arguments in support of petitioner’s application for a federal writ of habeas corpus.

On May 9, 2000 the parties again appeared before this court. At that time, this court reaffirmed its earlier ruling that petitioner’s claim of ineffective assistance of counsel was unexhausted. This court stated that it would hold the federal petition in abeyance until the claim had been exhausted, and the court directed defense counsel to move promptly in state court.

By papers filed in January 2001 petitioner, represented by Ms. Young and Mr. Batchelder, moved in the Supreme Court for an order, pursuant to C.P.L. § 440.10(l)(h), vacating his judgment of conviction. As the sole claim in support of that motion, petitioner contended that he was denied the effective^ assistance of trial counsel in that counsel allegedly unjustifiably: 1) failed to prevent the admission of prejudicial uncharged crime evidence; 2) elicited damaging uncharged crime evidence and referred to that evidence in his summation; 3) failed to request limiting instructions concerning the jury’s use of the uncharged crime evidence; 4) failed to cross-examine Marie Somie with portions of her audiotaped statement; 5) failed to draw the jury’s attention to the allegedly “negligent” police investigation; and 6) failed to “investigate the Wilder/Sincere scenario.”

By memorandum decision and order, dated September 7, 2001 the Supreme Court denied petitioner’s January 2001 motion to vacate his judgment of conviction. The court concluded that petitioner’s claim of ineffective assistance of trial counsel could have been raised in one of his previous C.P.L. § 440.10 motions. It held that the claim was procedurally barred from its review pursuant to C.P.L. § 440.10(3)(c). Memorandum Decision and Order at 12-14. The court also found that, in any event, the claim was meritless. Id. at 14-21.

In October 2002 petitioner’s counsel, Mr. Batchelder, and respondent appeared before this court in order to report on the progress of petitioner’s efforts to exhaust his ineffective assistance of trial counsel claim. Petitioner followed the proceedings via telephone from his place of incarceration. Mr. Batchelder informed this court that he intended to seek leave to appeal to the Appellate Division from the trial court’s order denying petitioner’s C.P.L. § 440.10 motion. Apparently, neither Mr. Batchelder nor Ms. Young ever moved for leave to appeal from the denial of that motion.

On October 26, 2004 respondent appeared before this court. Petitioner participated in the proceedings via telephone from his place of incarceration. This court relieved Mr. Batchelder and Ms. Young as petitioner’s counsel. This court urged petitioner to promptly seek leave to appeal from the denial of his C.P.L. § 440.10 motion.

By papers dated November 4, 2004 petitioner, pro se, moved before the Appellate Division for an order granting him leave to appeal from the trial court’s September 7, 2001 order denying his C.P.L. § 440.10 motion to vacate his judgment of conviction under Indictment Number 6163/1988. By decision and order dated January 12, 2005 a judge of the Appellate Division denied petitioner’s leave application.

In papers dated November 4, 2004 petitioner, pro se, moved before the Appellate Division, for the second time, for an order granting him a writ of error coram nobis. He claimed that he was denied effective assistance of appellate counsel because counsel, when raising the claim of ineffective assistance of trial counsel, unjustifiably failed to cite the following alleged defects in trial counsel’s performance: 1) that trial counsel allegedly failed to investigate, explore, or pursue Harrison Wilder’s implication of “Sincere” in the murder of Bobby Graham and 2) that trial counsel failed to “use exculpatory material” and to draw the jury’s attention to the allegedly “negligent” police investigation. This claim of trial counsel’s ineffectiveness resembled the one that petitioner had raised before the Supreme Court in his third C.P.L. § 440.10 motion, which was rejected by that court in its decision dated September 7, 2001. On March 14, 2005 the Appellate Division denied petitioner’s application for a writ of error coram nobis. People v. Young, 16 A.D.3d 527, 792 N.Y.S.2d 510 (2d Dep’t 2005).

On July 5, 2005 petitioner’s application for leave to appeal from the Appellate Division’s March 14, 2005 order was denied by a judge of the New York Court of Appeals. People v. Young, 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 (2005).

In April 2005 this court appointed new counsel, Donna R. Newman, Esq., to represent petitioner. Ms. Newman submitted a supplemental brief, dated September 7, 2005 in which she focused on claims concerning petitioner’s judgment of conviction for the Booker murder under Kings County Indictment Number 8459/87. In this brief, Ms. Newman declares that none of the habeas claims previously raised by petitioner regarding his judgment of conviction of the Graham murder under Kings County Indictment Number 6163/88 have been abandoned.

Following the appointment of Ms. Newman, petitioner filed additional pro se papers with this court. Among those papers is a memorandum of law, dated May 5, 2005, entitled “Habeas Corpus Proceeding upon the Completion of State Appellate Practice.” In these papers, petitioner reasserts the ineffective assistance of trial counsel claim that he had raised in his third C.P.L. § 440.10 in state court and the ineffective assistance of appellate counsel claim that he raised in his second application for a writ of error coram nobis in state court.

VII. Summary of Petitioner’s Claims in Two Murders

With regard to the Booker murder case, petitioner is now raising eight claims; Ms. Newman’s Supplemental Brief focuses on the first four claims set out below.

1. Petitioner’s due process and Sixth Amendment rights were violated by the trial court’s failure to instruct the jury to find whether Marie Sonne was an accomplice, and that if it did so find, her testimony required corroboration.

2. Petitioner’s rights under the Confrontation Clause were violated by the trial court’s curtailment of cross-examination of Somie.

3. Petitioner’s due process right to a fair trial was violated by the admission of evidence of petitioner’s prior bad acts and by the prosecutor’s summation.

4. Petitioner’s due process right to a fair trial was violated by the court’s charge regarding petitioner’s confession to Somie.

5. Petitioner’s due process right to a fair trial was violated because the evidence was legally insufficient.

6. Petitioner’s due process right to a fair trial was violated by the admission into evidence of Somie’s allegedly perjured testimony.

7. Petitioner’s due process right was violated by the state court’s denial of a new trial despite the allegedly newly discovered evidence.

8. Petitioner’s right to the effective assistance of trial counsel was violated by counsel’s failure to put forth an alibi defense that petitioner was at a birthday party on the day of the crime.

With respect to the G'raham murder case, petitioner is raising the following claims; Mr. Batchelder and Ms. Young in their supplemental papers focus on the first and the second claim set out below:

1. Petitioner’s due process right to a fair trial was violated by the admission into evidence of petitioner’s pri- or uncharged robbery and the trial court’s allegedly inadequate limiting instructions.

2. Petitioner was deprived of the effective assistance of trial counsel because counsel allegedly 1) failed to prevent the admission of uncharged crimes evidence; 2) elicited damaging uncharged crimes evidence and referred to that evidence on summation; 3) failed to request detailed limiting instructions concerning the jury’s use of the uncharged crimes evidence; 4) failed to cross-examine Somie with portions of her audio-taped statement; 5) failed to draw the jury’s attention to the allegedly negligent police investigation; and 6) failed to investigate the “Wilder/Sincere scenario.”

3. The prosecutor violated the Rosario and Brady rules by failing to turn over 1) a Homicide Bureau Information Sheet about Somie’s audiotaped statement; 2) a Homicide Bureau Information Sheet about Somie (the state court determined that this document was a forgery); and 3) a Homicide Bureau Information Sheet about Harrison Wilder.

4. Petitioner was denied the effective assistance of appellate counsel in that appellate counsel 1) failed to raise a claim that, as a result of a violation of the notice provisions N.Y.Crim. Proc. Law § 190.50, petitioner had been denied his right to testify at the grand jury and 2) failed to incorporate into the ineffective assistance of trial counsel claim that was raised on appeal a claim that trial counsel was ineffective because counsel i) did not cross-examine prosecution witnesses using their grand jury testimony; ii) did not somehow use at trial the Homicide Bureau Information Sheet summarizing Somie’s audiotaped statement; iii) did not investigate, explore, or pursue Harrison Wilder’s implication of “Sincere” in the murder of Bobby Graham; and iv) did not “use exculpatory material” and draw the jury’s attention to the allegedly negligent police investigation.

VIII. Analysis of Contentions in Booker Murder Case

A. Failure to Instruct on Need for Accomplice Corroboration

The only troublesome issue in the Booker murder case was the failure of the trial court to deliver an accomplice corroboration instruction covering the State’s chief witness, Marie Somie. It seems apparent that without her testimony a conviction would not have been possible. At petitioner’s request she had locked the cellar door presenting escape while defendant and his brother beat and strangled Booker. She took other family members to the movies to permit the two murderers to wrap the body and take it to Brooklyn where it was dumped. She gave evidence of many corroborating details. It was she who turned petitioner in to the police some months after the event. It can be assumed that she might have been charged as a coconspirator.

Federal law does not require a coconspirator charge to the jury requiring corroborating evidence, although, of course, on the issue of credibility the judge in a federal trial will emphasize that an unindicted witness-coconspirator may be testifying against the accused to save her own neck. In the state trial the credibility of the witness was adequately attacked on cross-examination.

As one of the grounds in support of his petition for habeas corpus relief, petitioner claims that his due process right to a fair trial was violated by the trial court’s failure to instruct the jury to find whether Marie Somie was an accomplice as a matter of fact, and if it did so find, that her testimony required corroboration pursuant to New York’s accomplice corroboration rule.

The New York rule provides that “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” N.Y.Crim. Proc. Law § 60.22(1).

In attorney Newman’s supplemental brief petitioner asserts that both his due process and Sixth Amendment rights were violated by the court’s failure to give this instruction. Petitioner did not mention the Sixth Amendment with regard to this claim at trial, in his brief in the Appellate Division or in his application to the New York Court of Appeals. To the extent that petitioner now claims a Sixth Amendment violation, that claim is arguably unexhausted, having never been fairly presented in any state court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732-3, 144 L.Ed.2d 1 (1999). Because the claim is one that could have been raised on direct appeal, petitioner would be barred by state procedural rules from now trying to exhaust the claim. See N.Y.Crim. Proc. Law § 440.10(2)(c). Thus, the claim may be deemed procedurally barred. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). Petitioner has failed to establish cause and prejudice that would excuse him from the effect of his procedural default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986). Nor has he established that the failure to consider his claim would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Thus, this court could decline to review petitioner’s Sixth Amendment claim on the ground that the claim is procedurally barred from federal habeas review.

Petitioner arguably raised this same claim as a federal due process violation in an aspect of the second point in his brief to the Appellate Division by citing the Fourteenth Amendment in the briefs point heading. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir.1992). Insofar as petitioner’s application for habeas relief rests on this claim, the petition is denied for three reasons. First, it is procedurally barred from this court’s review, because the Appellate Division invoked a state procedural rule when rejecting petitioner’s claim. Second, it does not present a federal constitutional issue. Third, it involves a discretionary ruling by the trial court.

A federal court, when reviewing a habeas petition from a state prisoner, generally cannot consider the merits of a federal constitutional claim when the state court refused to review the merits of the claim based on an adequate and independent state ground. See Lambrix v. Singletary, 520 U.S. 518, 522-23, 117 S.Ct. 1517, 1522-23, 137 L.Ed.2d 771 (1997); Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81-91, 97 S.Ct. 2497, 2503-9, 53 L.Ed.2d 594 (1977). New York’s contemporaneous objection rule, which requires that a party make his position with respect to a ruling or instruction known to the trial court, is an adequate and independent ground for decision. See N.Y.Crim. Proc. Law § 470.05(2); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990); Washington v. LeFevre, 637 F.Supp. 1175, 1176-77 (E.D.N.Y.1986); see generally Wainwright v. Sykes, 433 U.S. at 85-90, 97 S.Ct. 2497.

The Appellate Division rejected petitioner’s accomplice charge claim on the basis of the adequate and independent state ground of New York’s contemporaneous objection rule. On petitioner’s direct appeal, the Appellate Division held that petitioner had failed to preserve for appellate review the claim that the trial court had erred in failing to submit as a factual question for the jury to resolve Marie Somie’s alleged status as an accomplice. People v. Young, 235 A.D.2d 441, 442, 653 N.Y.S.2d 124, 125-26 (2d Dep’t 1997) (“This contention is unpreserved for appellate review.... [T]he defense counsel failed to alert the court to the contention now raised on appeal.”). Thereafter, the New York Court of Appeals denied petitioner’s request for leave to appeal. People v. Young, 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320 (1997). . Since the Appellate Division was the last court to pass on the issue, and it expressly rested its judgment on procedural default grounds, petitioner’s claim is procedurally barred from habeas review.

When “a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of a federal claim,” a federal habeas court is foreclosed from reviewing the claim. Velasquez v. Leonardo, 898 F.2d at 9; accord Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997); see Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (federal habeas court cannot review a claim if a state court explicitly invoked a state procedural bar rule as a separate basis for decision). In this case, although the Appellate Division addressed the merits of the accomplice charge claim and found the claim to be without merit, it did so in the alternative to its plain statement that petitioner had failed to comply with New York’s contemporaneous objection rule, foreclosing this court’s review of the accomplice charge claim. See Dowtin v. Cohen, 99-CV-323, 2005 WL 697981, at *14-15, 2005 U.S. Dist. LEXIS 4731, at *39-40 (E.D.N.Y. March 25, 2005) (because Appellate Division found petitioner’s accomplice charge claim to be unpreserved for appellate review, federal court is procedurally barred from reviewing the claim in light of this independent and state ground); Nieves v. Fischer, 03 Civ. 9803(DC), 2004 WL 2997860, at *13-14, 2004 N.Y. Dist. LEXIS 25921, at *13-14 (S.D.N.Y.2004) (same).

The fact that one judge dissented does not change the result. As the majority of the Appellate Division noted, defense counsel, by requesting only that the trial court charge the jury that Somie was an accessory, had failed to alert the court to the contention that he was raising on appeal'—that Marie Somie’s alleged status as an accomplice should have been submitted to the jury for resolution. People v. Young, 235 A.D.2d 441, 442, 653 N.Y.S.2d 124, 125-26 (2d Dep’t 1997). Under New York State’s contemporaneous objection rule, see N.Y.Crim. Proc. Law § 470.05(2), in order for a party to preserve a question of law for appellate review, the party must raise a timely protest that is sufficiently clear to draw the attention of the trial court to the specific issue to be preserved. See People v. Robinson, 88 N.Y.2d 1001, 1002, 648 N.Y.S.2d 869, 870, 671 N.E.2d 1266 (1996). Defense counsel’s failure to mention “accomplice,” “corroboration,” or Section 60.22 of the New York Criminal Procedure Law arguably obscured the nature of her accomplice charge request. While arguably an extremely narrow view of the issue, the Appellate Division did properly invoke the state procedural bar and determined that petitioner’s claim of error was unpreserved for appellate review.

No cause for the procedural default and resulting prejudice or fundamental miscarriage of justice has been shown. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.

Petitioner’s accomplice charge claim can also be rejected on the ground that the claim does not present a federal constitutional issue for this court