Jerry McBEE, Petitioner-Appellant, v. Superintendent John BURGE, Respondent-Appellee, 395 F. App'x 762

SUMMARY ORDER Petitioner-appellant Jerry McBee appeals from a judgment of the United States District Court for the Eastern District of New York (Irizarry, J.), denying McBee’s petition for a writ of habeas corpus and granting a certificate of appealability. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We assume without deciding that McBee’s rights under the Confrontation Clause of the Sixth Amendment — as interpreted in Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) — were violated by the admission at trial of the statements made by David Tyson and Lamont Beasley. Such an error is reviewed for harmlessness. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Specifically, this court evaluates whether the (assumed) error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted); see also Fry v.

Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (applying the Brecht standard to “assess the prejudicial impact of constitutional error in a state-court criminal trial”); Brinson v. Walker, 547 F.3d 387, 395 (2d Cir.2008) (applying the Brecht standard to assess harmlessness in the context of a Confrontation Clause violation). In so doing, “the court looks to the record as a whole,” evaluating, inter alia, “the overall strength of the prosecution’s case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial.” Brown v.

Keane, 355 F.3d 82, 92 (2d Cir.2004); see also Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431 (explaining that relevant “factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case”). “No one factor is dispositive,” but “the strength of the prosecution’s case is probably the single most critical factor.” United States v.

Reifler, 446 F.3d 65, 87 (2d Cir.2006) (internal quotation marks and alteration omitted). At the same time, “the mere fact that the properly admitted evidence, standing alone, would have been sufficient to support the conviction is not determinative of whether the improperly admitted evidence had a substantial and injurious effect.” Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.2000). We have no trouble concluding that the (assumed) error is harmless.

No evidence contradicts Tyson and Beasley’s statements in issue, and they are corroborated by McBee’s admissions and Ebony Lilly’s testimony, as well as other evidence. The overall strength of the prosecution’s case outweighs any factors favoring McBee. We reject McBee’s three primary arguments to the contrary. First, although the prosecutor referred to Beasley’s statements in her opening and both Tyson and Beasley’s statements in her summation, the references were brief, especially relative to the emphasis on other important evidence. See Gutierrez v. McGinnis, 389 F.3d 300, 309 (2d Cir.2004).

Second, although McBee’s two previous mistrials may be considered as evidence of the weakness of the prosecution’s case, these prior hung juries are not determinative, see United States v. Newton, 369 F.3d 659, 680 (2d Cir.2004), especially given the presentation of Lilly’s testimony for the first time in the third trial. Third, whatever grounds existed for the jury to doubt Lilly’s credibility, her testimony reinforced the prosecution’s theory of the case. Cf. United States v.

Payne, 591 F.3d 46, 60 (2d Cir.2010) (in the context of a sufficiency challenge, explaining that “[assessments of witness credibility ... lie solely within the province of the jury”). We have considered all of McBee’s contentions on this appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.