Opinion
05 CIV. 4180 (DLC).
August 15, 2006
MEMORANDUM OPINION ORDER
Mario Moni brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his June 26, 2003 conviction, following a jury trial, for criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. Moni challenges his conviction on the grounds that his due process rights were violated by: (1) the judge's failure to instruct the jury sufficiently on the intent required for a conviction on the possession charge; (2) the judge's failure to give the jury a circumstantial evidence instruction regarding the possession charge; and (3) the admission of police testimony regarding the decision to bring a drug sale charge against Moni, but not against his co-worker.
This case was referred to Magistrate Judge Douglas F. Eaton for a Report and Recommendation ("Report"), which was issued on March 28, 2006. The Report recommends that the petition be denied. On April 12, 2006, Moni's Objections to the Report ("Objections") were received. This Opinion adopts the Report.
Background
The facts relevant to the Petition are set forth in the Report and summarized here. On November 15, 2001, New York City Police Detectives Sergio Lovera ("Lovera"), Joseph Matrenga ("Matrenga"), and a third Detective possessed a warrant to search DeLaCruz Grocery Store in the Bronx, New York. Around 6:30 p.m., Lovera entered the store dressed in civilian clothes. There were two employees in the store. Lovera observed a customer approach Moni and give him money. Moni walked into the back storeroom and returned with small objects, which he handed to the customer. The customer was later arrested and found to be in possession of two small bags — one containing cocaine, and the other containing cocaine residue.
The officers subsequently searched the back storeroom and found 38 green bags of cocaine inside a broom handle. The employees — Moni and Abelardo Callado ("Callado") — were arrested. The police found no money on Moni, but found $342 on Callado. Both Moni and Callado were charged with possession of the cocaine. Only Moni was charged with the sale of two bags of cocaine. Before trial, the charge against Callado was dismissed.
At Moni's trial in early June of 2003, Detective Lovera identified Moni as the employee who made the drug sale he observed. Detective Matrenga, who was subsequently questioned about Callado's arrest over defense objections, testified that Callado was arrested for possession with intent to sell, but that Moni was also arrested for making a sale. Moni's defense at trial was that the sale had been made solely by Callado. A defense witness testified that Callado was, in fact, "the owner of the bodega [and] the one that was dealing with drugs."
During the charging conference, Moni's attorney requested a circumstantial evidence charge with respect to the possession count. The request was denied. After the judge had given an initial instruction to the jury, counsel for Moni pointed out that it had not included the requirement that constructive possession be knowing. The judge gave a supplemental instruction to the jury that "there must be knowledge proven beyond a reasonable doubt on the part of the defendant that the substance that was constructively possessed was cocaine." Moni's lawyer did not make a further objection to the instruction. The jury convicted Moni on both counts, and on June 26, 2003, he was sentenced as a second felony offender to concurrent terms of imprisonment of 4 1/2 to 9 years.
Moni appealed, and on December 21, 2004, the Appellate Division affirmed the conviction, rejecting each of the claims raised here on the merits or because they were unpreserved. People v. Moni, 13 A.D.3d 262 (1st Dep't. 2004). On March 17, 2005, the Court of Appeals denied leave to appeal. People v. Moni, 4 N.Y.3d 833 (2005). On April 21, 2005, Moni filed this petition. Discussion
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "The referring district judge may accept those portions of the magistrate judge's report and recommendation to which no specific written objections are made, provided there is no clear error on the face of the record." Doe v. Goord, No. 04 Civ. 570 (GBD), 2006 WL 1041130, at *2 (S.D.N.Y. Apr. 18, 2006) (emphasis supplied).
In his Objections, Moni does not identify any particular portions of the Report that he believes to be erroneous. Instead, he states generally that he believes that his due process rights were violated at trial. Under these circumstances, where objections are "merely perfunctory" and amount to "an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the Report may be reviewed under the more lenient "clear error" standard. Guerrero v. Tracey, 425 F. Supp. 2d 434, 436 (S.D.N.Y. 2006) (citation omitted). Nonetheless, for the reasons stated in the Report, the claims are properly denied even on de novo review.
A. The Jury Instruction
It is well established that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, the issue of whether or not a particular jury instruction is correct under state law cannot typically be addressed in habeas review. Id. at 71-72. Defective jury instructions can only be the basis for habeas relief when there is a showing that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72. Moni has not made such a showing here.
Furthermore, with respect to the intent element of constructive possession, Moni's attorney did not make a contemporaneous objection after the judge had given the supplemental instruction. The Appellate Division therefore found that it was not preserved for appellate review. People v. Moni, 13 A.D.3d at 263. Because this is an "adequate and independent" finding of procedural default under state law, the issue is not eligible for federal habeas review. Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006) (citation omitted).
B. The Police Testimony
The Appellate Division found that Moni's counsel had not preserved his objection to Matrenga's testimony regarding the decision to charge only Moni, and not Callado, with the sale of cocaine. For the reason described above, this places it outside the scope of habeas review. Moreover, even if the issue were to be addressed on the merits, the admission of the testimony would not entitle Moni to habeas relief. In order for the admission of unfairly prejudicial evidence to amount to a denial of due process, the evidence "must have been sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (citation omitted). Matrenga's testimony does not rise to this level. He gave the allegedly impermissible testimony after Lovera had already testified that he saw Moni make the drug sale. At most, Matrenga confirmed something the jury had already heard from an eyewitness. As a result, the exclusion of Matrenga's testimony would not have created reasonable doubt about Moni's guilt, and its inclusion cannot be the basis for habeas relief.
Conclusion
The recommendation of Magistrate Judge Eaton is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Moni has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find, pursuant to United States Code, Section 1915(a) (3), that any appeal from this order would not be taken in good faith.Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED.