Korsuntsev v. Melecio

[[COURTLISTENER_SUBOPINION {"id":"10659501","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                                              
EASTERN DISTRICT OF NEW YORK                                              
-----------------------------------------------------------------x        
OLEG KORSUNTSEV,                                                          

             Petitioner,                                                
                                      MEMORANDUM & ORDER                
        v.                            23-CV-3208 (RPK)                  

PHILIP MELECIO,                                                           

             Respondent.                                                
-----------------------------------------------------------------x        
RACHEL P. KOVNER, United States District Judge:                           

   Petitioner Oleg Korsuntsev is currently serving a seven-year term of imprisonment after 
being convicted of first-degree attempted assault in New York state court.  The state appellate court 
affirmed  petitioner’s  conviction  on  direct  appeal,  and  he  unsuccessfully  sought  state  post-
conviction relief.  Petitioner now files a pro se petition for a writ of habeas corpus under
28 U.S.C. 
§ 2254
, contending that his Confrontation Clause rights were violated when the trial court admitted 
the prior testimony of an unavailable witness.  The petition is denied.   
                        BACKGROUND                                      
I.   Factual Background                                                   
   The following facts are taken from the state court record, viewed in the light most favorable 
to the prosecution.  See McDaniel v. Brown,
558 U.S. 120, 133
(2010) (per curiam).  
   On March 20, 2016, while his car was stopped at an intersection in Brooklyn, Agzam 
Abdulmazhitov looked out his window and saw a man, later identified as petitioner, grab a woman 
by the head and punch her.  Tr. 87–91.1  Abdulmazhitov called out to petitioner to stop.
Id.
at 91–
93.  Petitioner let the woman go, approached the car, and stabbed Abdulmazhitov in the left torso 

1 Tr. refers to the trial transcript, which is docketed over multiple exhibits.  See Dkts. #4-1 to 4-6. 
and right hand.
Id.
at 93–96.  Abdulmazhitov was transported to the hospital where he was treated 
for his injuries, including a collapsed lung.
Id.
at 457–60.             
   Over the following months, Abdulmazhitov assisted law enforcement with identifying 
petitioner as his assailant, including by identifying him in a lineup.  See, e.g.,
id.
at 431–32, 435–

36, 588–89.  After an arrest card was issued for petitioner, petitioner voluntarily turned himself in 
and was charged with attempted assault in the first degree, assault in the second degree, and related 
lesser crimes.  See
id.
at 583–84; Aff. in Opp’n ¶ 4 (Dkt. #4).           
II.  State Court Trial                                                    
   Petitioner was tried three times.  The first two trials ended in mistrials, due to the 
disappearance of a juror and then to the illness of defense counsel.  See Aff. in Opp’n ¶ 5.  
Petitioner’s third trial commenced on January 7, 2019, and concluded on January 22, 2019 with a 
conviction.  See id. ¶ 12; Tr. 952.                                       
   As relevant to the present petition, petitioner’s former girlfriend, Sabrina Nicoletti, testified 
at petitioner’s first trial that petitioner confessed to her that he was the assailant.  Specifically, 

Nicoletti testified to the following:                                     
   •  When Nicoletti and petitioner met and started dating in 2017, petitioner confided in 
     Nicoletti that he was involved in a pending legal matter but provided no details.  Tr. 
     669–72.  In August 2017, Nicoletti learned that petitioner had three children and 
     another romantic partner, Olga Medova.  Id. at 673.  When Nicoletti confronted 
     petitioner, he told Nicoletti he had recently been in touch with Medova because she 
     was going to be a witness in his case, and he did not want her to say anything bad about 
     him.  Id. at 690.  Petitioner told Nicoletti that Medova had witnessed him attack and 
     beat  someone  outside  Medova’s  apartment  building  so  badly  that  he  had  to  be 
     hospitalized.  Id. at 675–77.  During a subsequent conversation, petitioner confirmed 
     to Nicoletti that he committed the crime and that the victim had identified him in a 
     lineup.  Id. at 677.                                               

   •  Nicoletti attempted to distance herself from petitioner, and he became aggressive 
     towards her.  He would arrive at her house uninvited, kick and bang on the door, and 
     demand to be let in.  Id. at 678, 689.  Petitioner’s actions dissuaded Nicoletti from 
     coming forward as she feared for her safety.  Ibid.  As of February 15, 2018, Nicoletti 
     and petitioner were no longer together, but at the time she testified in March 2018, she 
     was three months pregnant with petitioner’s child, which made it more difficult for her 
     to come forward against him.  Id. at 679–81, 685, 689.  Regardless, Nicoletti reached 
     out to the District Attorney’s Office and ultimately testified for her own safety because 
     “someone like [petitioner] shouldn’t be walking around the streets.”  Id. at 683–84. 

   By the time of the third trial, Nicoletti had relocated to California.  Believing they would 
be unable to secure Nicoletti’s appearance at the third trial, the prosecution moved under New York 
Criminal Procedure Law Section 670.10 to have Nicoletti’s testimony from the first trial read into 
evidence.  See Aff. in Opp’n ¶ 6.  The defense opposed the motion on the grounds that the 
prosecution had not been diligent in securing Nicoletti’s appearance at the third trial.  Ibid.  On 
January 14, 2019, in the midst of trial, the trial judge held a hearing on the prosecution’s diligence 
in attempting to secure Nicoletti’s appearance.  See Tr. 333.  At the hearing, Detective Investigator 
(“D.I.”) Alfredo Nunez testified about the efforts undertaken by the state to secure Nicoletti’s 
presence during all three trials, as follows:                             
   •  Prior to the first trial, Nicoletti reached out to a trial prosecutor about what she knew.  
     While she was reluctant to speak with prosecutors and hesitant to testify against 
     petitioner, Nicoletti ultimately complied with a subpoena and testified during the first 
     trial.  Id. at 337–38.                                             

   •  For the second trial, Nicoletti indicated that she was not willing to testify so D.I. Nunez 
     sought a Material Witness Order to secure her presence, but it was never executed 
     because a mistrial was declared.  Id. at 339–40.                   

   •  On January 6, 2019, D.I. Nunez conducted a background check on Nicoletti to locate 
     her for the third trial.  Id. at 346.  Nicoletti had a car registered in New York and the 
     contact information D.I. Nunez found for her was also based in New York.  Id. at 347.  
     On January 8, D.I. Nunez attempted to serve Nicoletti with a subpoena to appear in 
     court on January 11, but he was unsuccessful.  Id. at 343.  D.I. Nunez learned from the 
     superintendent of Nicoletti’s apartment building in Brooklyn that she no longer lived 
     in New York.  Id. at 349.  Upon further investigation, D.I. Nunez learned that Nicoletti 
     had relocated to Los Angeles.  See id. at 349–50.                  

   •  Nicoletti reached out to D.I. Nunez on January 11, 2019, telling him that she was not 
     going to come back to New York and that he needed “to stop bothering people that she 
     knew.”  Id. at 351.  D.I. Nunez persuaded her to speak with the prosecutor, to whom 
     she reiterated that she did not want to have anything to do with the case, that she was 
     unavailable because she no longer lived in New York, and that under no circumstances 
     would she be returning.  Id. at 351–52.                            

   •  Nicoletti refused to provide D.I. Nunez with her address, so he suggested that she go 
     to a local police precinct and have an officer there contact D.I. Nunez to at least confirm 
     her location.  Id. at 353.  Shortly thereafter, D.I. Nunez received a call from Officer 
     Kevin Fowler of the Indio Police Department, a city southeast of Los Angeles.  Id. at 
     354.  Nicoletti was present at the police station during the call, and Officer Fowler 
     confirmed to D.I. Nunez that she was living out of her car.  Ibid.  Without an address, 
     it would be nearly impossible for D.I. Nunez to locate Nicoletti, particularly in light of 
     the fact that she was living in her vehicle and therefore completely mobile.  Id. at 355–
     56.                                                                

   Meanwhile, while the motion to permit Nicoletti’s prior testimony under Section 670.10 
was pending, the prosecution continued to make efforts to bring Nicoletti to New York.  On January 
11, 2019, the prosecution had applied for a certificate to secure Nicoletti’s attendance as a material 
witness pursuant to N.Y. Criminal Procedure Law Section 640.10, on the grounds that Nicoletti 
expressed fear and reluctance to testify during the first two trials and had stated on several 
occasions since the second mistrial occurred that she would not testify again.  See Aff. in Opp’n 
¶ 21.  The trial court issued a certificate pursuant to Section 640.10, stating that Nicoletti “cannot 
be expected to be amenable to service of process to compel her attendance at the trial of this matter 
in New York” and “recommended that [she] be taken into immediate custody by the appropriate 
law enforcement agency in California, and be delivered to the custody of detective investigators 
from the Kings County District Attorney’s Office.”  Ex. G to Resp., Certificate Under C.P.L. 
§ 640.10, at ¶¶ 3–4 (Dkt. #4-7); see Aff. in Opp’n ¶ 22.                  
   An investigator with the Los Angeles County District Attorney’s Office located Nicoletti 
and served on her a subpoena to appear in Los Angeles County court on January 15, 2019.  Tr. 526, 
528.  Nicoletti appeared in the California court and was ordered to make immediate travel 
arrangements to attend the trial in New York.  Id. at 634.  The California judge declined to take 
Nicoletti into custody, however, and instead directed Nicoletti to travel on her own accord.  Id. at 
636–42.  Nicoletti called the trial prosecutor after she left the Los Angeles court and told him that 
she would not be returning to New York, even if the state covered her expenses.  Id. at 634.  She 
stressed that she wanted nothing to do with petitioner’s case and claimed to have forgotten her 
previous testimony: “If you bring me in cuffs, I will go off on a tangent, I will talk about anything 

other than this case, I will not testify for you guys.”  Id. at 635; see id. at 634–42. 
   After Nicoletti made clear that she would not appear at trial, the trial court granted the 
prosecution’s motion to introduce Nicoletti’s prior testimony pursuant to Section 670.10, laying 
out four specific reasons for its decision.  See Aff. in Opp’n ¶ 30.  First, “the District Attorney’s 
Office went to extraordinary lengths and pains to locate the witness in California, and to have her 
brought before a judge on an application for an out-of-state witness order . . . within plenty of time 
to have secured her testimony at trial, had she cooperated with the California Judge and directive 
to return to New York voluntarily.”  Tr. 650.  Second, the California court’s decision not to place 
Nicoletti into custody was outside the prosecution’s control and, “although they could have moved 
more quickly . . . to realize she was in California, as it turned out that made no difference at all.”  

Id. at 650–52.  Third, the same attorney who represented petitioner in the third trial had fully cross-
examined Nicoletti during the first trial, “so it’s kind of the gold standard.”  Id. at 652.  Fourth, 
there was “no strategic preference being exercised here, since the District Attorney’s Office was 
clearly prepared to fly her here today and greet her when she came off the plane and take whatever 
happened when she testified.  What the law requires is due diligence, not every conceivable effort.”  
Id. at 653.                                                               
   Accordingly, Nicoletti’s testimony from the first trial was read into evidence during the 
third trial.  Id. at 667.  At the conclusion of trial, the jury returned a verdict of guilty on the charge 
of attempted assault in the first degree.  Id. at 952.  The trial court sentenced petitioner to seven 
years in prison followed by three years of post-release supervision.  Aff. in Opp’n ¶ 66.   
III.  Post-Conviction Proceedings                                         
   Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, 

Second  Department  (“Appellate  Division”),  arguing  that  the  trial  court  erred  in  allowing 
Nicoletti’s prior testimony into evidence because her unavailability “was the direct result of the 
[prosecution’s] failure to exercise due diligence in securing her presence.”  See Appellant’s Br. on 
Appeal 1–3 (Dkt. #4-7).  Specifically, petitioner alleged that (1) the prosecution waited until the 
last minute to attempt to locate and contact Nicoletti, (2) the trial court erroneously concluded that 
Nicoletti’s failure to appear was beyond the prosecution’s control, (3) the conclusion that the 
prosecution’s failure to exercise due diligence made no difference was clearly erroneous, and 
(4) admitting Nicoletti’s prior testimony was not harmless error.  See id. at 2–50. 
   The  Appellate  Division  affirmed  petitioner’s  conviction,  finding  that  the  trial  court 
“providently exercised its discretion” because the witness was out of state and could not with due 

diligence be brought before the New York trial court.  People v. Korsuntsev,
169 N.Y.S.3d 852
, 
852 (App. Div. 2022).  It agreed with the trial court that “the People’s failure to produce the witness 
was not the result of a strategy to avoid confrontation” and “[i]ndeed, the same trial attorney for 
[petitioner] cross-examined the witness at the first trial regarding the same charges.”
Id.
at 852–
53.  Accordingly, the Appellate Division held that there was no error and that “a transcript of the 
witness’s prior testimony was properly admitted into evidence.”
Ibid.
The New York Court of 
Appeals denied petitioner leave to appeal the Appellate Division’s decision.  People v. Korsuntsev,
198 N.E.3d 781
(N.Y. 2022) (Troutman, J.).                                
   Petitioner filed additional post-conviction pleadings in state court, including a motion to 
set aside his sentence and a N.Y. Criminal Procedure Law Section 440.10 motion to vacate his 
judgment of conviction.  Both motions were denied by the trial court, but neither directly raised 
nor referenced the issue addressed on direct appeal and now presented for federal habeas review. 

   Petitioner timely filed the instant petition for a writ of habeas corpus under
28 U.S.C. 
§ 2254
, wherein he claims that the admission of Nicoletti’s prior testimony violated his Sixth 
Amendment Confrontation Clause rights.  See Pet. 5 (Dkt. #1); Reply to Aff. in Opp’n (“Reply”) 
7–14 (Dkt. #6).                                                           
                     STANDARD OF REVIEW                                 
   A person in custody pursuant to a state-court judgment may seek a writ of habeas corpus 
on the ground that he is being held “in violation of the Constitution or laws or treaties of the United 
States.”
28 U.S.C. § 2254
(a).  Under Section 2254, subject to exceptions not applicable here, a 
federal court may review a petitioner’s claims only if the applicant has exhausted the remedies 
available to him in the courts of his state.
Id.
§ 2254(b)(1)(A).  “State remedies are deemed 
exhausted when a petitioner has: (i) presented the federal constitutional claim asserted in the 

petition to the highest state court . . . and (ii) informed that court (and lower courts) about both the 
factual and legal bases for the federal claim.”  Ramirez v. Att’y Gen. of State of N.Y.,
280 F.3d 87, 
94
(2d Cir. 2001) (citing Picard v. Connor,
404 U.S. 270
, 276–77 (1971)). 
   Federal review of state convictions is circumscribed by the related doctrine of procedural 
default.  “[A] claim is procedurally defaulted for the purposes of federal habeas review where ‘the 
petitioner failed to exhaust state remedies and the court to which the petitioner would be required 
to present his claims in order to meet the exhaustion requirement would now find the claims 
procedurally barred.’”  Reyes v. Keane,
118 F.3d 136, 140
(2d Cir. 1997) (quoting Coleman v. 
Thompson,
501 U.S. 722, 735
(1991)) (emphasis omitted).  “Out of respect for finality, comity, 
and the orderly administration of justice,” federal courts generally may not entertain such defaulted 
claims through habeas unless the petitioner shows “cause and prejudice to excuse the default.”  
Dretke v. Haley,
541 U.S. 386, 388
(2004).  A state prisoner who fails to make those showings can 
only receive habeas review if he “advance[s] . . . a credible and compelling claim of actual 

innocence,” Hyman v. Brown,
927 F.3d 639, 656
(2d Cir. 2019) (quoting Rivas v. Fischer,
687 
F.3d 514, 540
(2d Cir. 2012)), such that “failure to consider the claim[] will result in a fundamental 
miscarriage of justice,” Coleman,
501 U.S. at 750
.                        
   AEDPA also constrains federal review of claims that have been preserved.  So long as a 
state court adjudicated a litigant’s claim on the merits, a federal court may grant habeas relief only 
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 “was based 
on an unreasonable determination of the facts in light of the evidence presented in the State court 
proceeding.”
28 U.S.C. § 2254
(d)(1)–(2).                                 
   “Clearly established Federal law” refers to “the holdings, as opposed to the dicta, of the 

Supreme Court’s decisions as of the time of the relevant state-court decision.”  Green v. Travis,
414 F.3d 288, 296
(2d Cir. 2005) (alterations omitted) (quoting Williams v. Taylor,
529 U.S. 362, 
412
(2000)).  A state court decision is “contrary to” clearly established federal law as determined 
by the Supreme Court if it “arrives at a conclusion opposite to that reached by [the Supreme] Court 
on a question of law or if the state court decides a case differently than [the Supreme] Court has 
on a set of materially indistinguishable facts.”  Williams,
529 U.S. at 413
.  A decision involves an 
“unreasonable application” of clearly established federal law if the state court “identifies the 
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies 
that principle to the facts of the prisoner’s case,” ibid., meaning there is “no possibility fair-minded 
jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents.”  
Harrington v. Richter,
562 U.S. 86, 102
(2011).  Finally, a determination that a state-court decision 
was “based on an unreasonable determination of the facts,”
28 U.S.C. § 2254
(d)(2), requires more 
than that a federal court conducting habeas review “would have reached a different conclusion in 

the first instance,” Brumfield v. Cain,
576 U.S. 305
, 313–14 (2015) (quotation marks omitted) 
(quoting Wood v. Allen,
558 U.S. 290, 301
(2010)).  “If the state record is ‘ambiguous’ such that 
two different views of the facts find fair support in the record,” AEDPA “mandates deference to 
the state court’s fact-finding.”  Washington v. Schriver,
255 F.3d 45, 55
(2d Cir. 2001) (citation 
omitted).                                                                 
   These standards are “intentionally difficult to meet,” Woods v. Donald,
575 U.S. 312, 316
(2015) (citation and quotation marks omitted), because federal habeas review is “a ‘guard against 
extreme malfunctions in the state criminal justice systems,’” not “a means of error correction,” 
Greene v. Fisher,
565 U.S. 34, 43
(2011) (quoting Richter, 562 U.S. at 102–03). 
                         DISCUSSION                                     
   Petitioner fails to demonstrate that the state court’s decision regarding the introduction of 

Nicoletti’s prior testimony was contrary to or an unreasonable application of clearly established 
federal law.  Accordingly, his petition for a writ of habeas corpus is denied. 
   “Supreme Court law clearly establishes that, under the Sixth Amendment’s Confrontation 
Clause, a criminal defendant must have a meaningful opportunity to cross-examine witnesses 
against him.”  Alvarez v. Ercole,
763 F.3d 223
, 229–30 (2d Cir. 2014) (citation and quotation 
marks omitted).  “Testimonial statements of witnesses absent from trial [are] admi[ssible] only 
where the declarant is unavailable, and only where the defendant has had a prior opportunity to 
cross-examine the witness.”  Crawford v. Washington,
541 U.S. 36, 59
(2004).  The government 
must establish the declarant’s unavailability.  Ohio v. Roberts,
448 U.S. 56
, 74–75 (1980), 
overruled on other grounds by Crawford, 541 U.S. at 68–69.  A witness is not “unavailable” for 
the purposes of this exception to the Confrontation Clause “unless the prosecutorial authorities 
have made a good-faith effort to obtain [her] presence at trial.”  Barber v. Page,
390 U.S. 719
, 
724–25 (1968).  The Supreme Court has explained that “[t]he lengths to which the prosecution 

must go to produce a witness . . . is a question of reasonableness,” Hardy v. Cross,
565 U.S. 65, 
70
(2011) (per curiam) (quoting Roberts,
448 U.S. at 74
), and has cautioned that “the Sixth 
Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how 
unpromising,”
id.
at 71–72.  Indeed, the deferential standard of review set out in AEDPA “does 
not permit a federal court to overturn a state court’s decision on the question of unavailability 
merely because the federal court identifies additional steps that might have been taken.”
Id. at 72
.  
“[I]f the state-court decision was reasonable, it cannot be disturbed.”
Ibid.
Here, the state court’s decision on the question of Nicoletti’s unavailability was reasonable.  
As detailed above, the trial court heard evidence of the extensive efforts taken by the state to locate 
Nicoletti and bring her in to testify at the third trial.  After learning that Nicoletti had relocated 

from New York to Los Angeles, D.I. Nunez attempted to reach Nicoletti and contacted law 
enforcement officers in California in hopes of confirming her location.  When that proved fruitless, 
the prosecution sought and the trial court issued a Section 640.10 certificate requesting that a 
California court aid in securing Nicoletti’s return to New York to appear for petitioner’s trial, going 
so far as to ask the California court to take Nicoletti into custody to ensure her return.  When the 
California court declined to take her into custody, Nicoletti contacted the trial prosecutor and stated 
that she would not be returning to New York under any circumstances and that even if she were 
brought to the trial in handcuffs, she still would not testify.  The state court also reasonably 
concluded that the prosecution’s “failure to produce [Nicoletti] was not the result of a strategy to 
avoid confrontation on the witness stand.”  Korsuntsev, 169 N.Y.S.3d at 852–53; accord Tr. 653.  
Rather, the trial record demonstrates that the prosecution was “clearly prepared to fly [Nicoletti]” 
to New York and “take whatever happened when she testified.”  Tr. 653.    
   Petitioner argues that the prosecution failed to exercise due diligence by waiting until after 

the third trial started to attempt to locate Nicoletti, see Pet. 50–51; Reply 9–10, and that contrary 
to the trial court’s conclusion, the prosecution’s delay made a difference in the outcome, see Pet. 
55.  This argument is factually inaccurate, as D.I. Nunez testified that he began efforts to locate 
Nicoletti  before  trial  commenced.    See  Tr.  346.    Moreover,  in  examining  the  question  of 
unavailability, the Supreme Court has “focused on the extent of the government’s effort” and has 
not  “indicated  that  it  considered  the  timing  of  the  government’s  effort  to  be  of  particular 
significance.”  United States v. Casamento,
887 F.2d 1141, 1170
(2d Cir. 1989) (discussing 
Roberts, 448 U.S. at 74–77); see
ibid.
(holding witness “was unavailable  . . . although the 
government’s effort to procure him was made after the trial began”); Wiggins v. Greiner,
132 F. 
App’x 861, 863
(2d Cir. 2005) (“In light of Casamento, we can hardly conclude that the state 

courts unreasonably applied Roberts in focusing on the extent, rather than the timing, of the 
prosecution efforts to locate the missing eyewitness.”).                  
   Petitioner also argues that the prosecution’s application for a certificate pursuant to N.Y. 
Criminal Procedure Law Section 640.10 did not ask the California court to take Nicoletti into 
custody, thus rendering erroneous the state court’s conclusion that the California court’s decision 
not to take Nicoletti into custody was outside the prosecution’s control.  Pet. 53–54.  However, the 
Section 640.10 certificate explicitly “recommended that Sabrina Nicoletti be taken into immediate 
custody by the appropriate law enforcement agency in California,” noting that “[b]ased on 
representations of the People,” merely ordering her to return to New York would be insufficient.  
Ex. G to Resp., Certificate Under C.P.L. § 640.10, at ¶¶ 3–4.             
   As such, petitioner’s arguments are unpersuasive, and petitioner has not demonstrated an 
entitlement to federal habeas relief.                                     

                         CONCLUSION                                     
   For the foregoing reasons, the petition is denied.  And because petitioner has not shown 
“that reasonable jurists could debate whether . . . the petition should have been resolved in a 
different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 
further,’” Slack v. McDaniel,
529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle,
463 U.S. 880
, 
893 n.4 (1983)), a certificate of appealability under
28 U.S.C. § 2253
(c)(2) is also denied.  The 
Clerk of Court is directed to enter judgment and close the case.          
   SO ORDERED.                                                          
                            /s/ Rachel Kovner                           
                            RACHEL P. KOVNER                            
                            United States District Judge                

Dated:  September 25, 2024                                              
        Brooklyn, New York