Opinion
No. 02 Civ. 3443 (MBM)(KNF).
September 20, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE MICHAEL B. MUKASEY, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Before the Court is the petition of Victor Perez ("Perez") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Perez alleges that his confinement by the state of New York is unlawful. Perez maintains that his due process right to a fair trial was violated because: (1) he was convicted of criminal sale of a controlled substance in or near school grounds, even though the prosecution did not present any evidence that the sales at issue occurred in or near school grounds, within the meaning of the pertinent state law; and (2) comments made by the prosecution during its closing argument denigrated the petitioner and his trial counsel and shifted the burden of proof at trial to the petitioner.
The respondent contends that both of Perez's claims are without merit and that his claim concerning the sufficiency of the evidence fails to state a federal claim and is, in part, procedurally barred.
II. BACKGROUND
During 1997, Detectives Gene Isnardi ("Isnardi") and Earl Williams ("Williams"), of the New York City Police Department, investigated complaints of narcotics trafficking in the Harlem and Washington Heights neighborhoods of Manhattan. According to their trial testimony, on four occasions during September and October 1997, Perez participated in sales of illegal narcotics to Williams, who was working undercover. On each occasion, Isnardi sat nearby in an unmarked vehicle and watched the transactions and/or monitored them using a hidden radio transmitter worn by Williams.1. September 11th Transaction
At approximately 7:00 p.m., on September 11, 1997, Williams approached Perez and Jose Santana ("Santana"), who, according to testimony given at trial, were standing together on the stoop of a residential building located at 501 West 134th Street ("134th Street building"). Williams asked Santana for cocaine and Santana said that he did not have any. After Williams started to leave, Santana called Williams back to the stoop and asked him what he wanted. Williams expressed interest in 60-80 grams of cocaine, depending on the price per gram. Santana said he would charge Williams $27 per gram, and Santana and Williams went inside the lobby of the 134th Street building to discuss the terms of the sale. Perez remained on the stoop. Santana came back out to the stoop a short while later, spoke with Perez, and then returned to the lobby. Santana and Williams agreed on the terms of a sale, and emerged from the lobby.
Thereafter, Williams, Santana and Perez walked to 1512 Amsterdam Avenue ("Amsterdam Avenue building"), a residential building located on the same block, between West 134th and West 135th Streets. Williams waited on a stoop at the rear of the building, while Santana went upstairs. When Santana returned, Williams, Santana and Perez went to the front of the building. Santana and Perez conversed briefly and then walked back to the 134th Street building, while Williams waited on the front stoop of the Amsterdam Avenue building. A short while later, Santana emerged from the 134th Street building and returned, alone, to the Amsterdam Avenue building, where Williams was still waiting on the front stoop. Santana and Williams walked to the back lobby of the Amsterdam Avenue building, and Santana gave Williams approximately two and three-eighths ounces of cocaine in exchange for $2,000.
2. September 18th Transaction
On September 18, 1997, in the evening, Williams approached Perez and Jose Toribio ("Toribio"), who were standing on the stoop of the 134th Street building. Williams asked where he could find Santana, and Toribio asked Williams what he wanted. Before Williams responded, a person standing on the other side of the street directed Toribio and Perez to take Williams inside the building. Once inside, Toribio and Williams discussed and agreed upon the terms of a sale of cocaine to Williams. Toribio directed Perez to collect payment from Williams. As Williams prepared to pay Perez, Toribio instructed them to wait, because police were nearby. Upon Perez's direction, Toribio, Williams and Perez went upstairs, to a second-floor apartment. Once inside the apartment, Williams paid Perez $2,000. Approximately twenty minutes later, someone knocked at the door of the apartment and handed Perez a package. Perez put the package on a table in the apartment, and Williams picked it up and left the building. The package contained approximately 2.5 ounces of cocaine.
On September 21, 1997, shortly after the September 18th transaction, Isnardi and another police officer stopped Perez in the vicinity of the 134th Street building, on the pretext that they were responding to a complaint about a man with a gun fitting Perez's description. The purpose of the ensuing stop-and-frisk was to ascertain Perez's identity without alerting him to the existence of the undercover investigation.
3. September 23rd Transaction
On September 22, 1997, Williams approached Perez and Santana, who were standing on the stoop of the 134th Street building. Williams expressed interest in purchasing cocaine. The petitioner said his beeper was not working, and the three agreed that Williams would return the following afternoon.
On September 23, 1997, Williams approached Toribio, who was standing on the stoop of the 134th Street building. Toribio told Williams that Perez was in an upstairs apartment and told Williams to hurry upstairs because the police were nearby. Williams went to the upstairs apartment and told the petitioner that he wanted to purchase cocaine. Perez left the apartment, and Williams waited in the apartment. Perez returned to the apartment approximately 45 minutes later with approximately 2.5 ounces of cocaine, which he gave to Williams. Williams gave the petitioner $2,000 and departed.
4. October 3rd Transaction
On September 30, 1997, at approximately 7:00 p.m., Williams approached Perez and Toribio, who were standing on the stoop of the 134th Street building. The three entered the building, went upstairs and discussed the terms of a sale of cocaine.
On October 3, 1997, at approximately 4:30 p.m., Williams returned and approached Perez, who was standing on the stoop of the 134th Street building. Perez invited Williams upstairs. After Perez and Williams entered a second floor apartment, Williams said he wanted to purchase cocaine. Perez left while Williams waited in the apartment. The petitioner returned to the apartment between ten and fifteen minutes later and pointed to a brown paper bag lying on the floor in the hallway, indicating to Williams that cocaine was in the bag. Williams took the bag and left the building. The bag contained just over three and three-eighths ounces of cocaine.
On March 13, 1998, Isnardi placed Perez under arrest. Thereafter, a New York County grand jury returned an indictment charging Perez with: four counts of criminal sale of a controlled substance in the first degree (N.Y. Penal Law § 220.43) for selling cocaine to Williams ("first degree sale counts"); and four counts of criminal sale of a controlled substance in or near school grounds (N.Y. Penal Law § 220.44) ("§ 220.44(2)") for selling cocaine to Williams in or near school grounds ("school grounds counts").
Perez proceeded to trial before a petit jury in New York State Supreme Court, New York County. Martinez and Santana were also indicted and tried as co-defendants of Perez during the same trial. During its closing argument, the prosecution told the jury that "[y]ou hear[d] a lot of grand allegations during opening statements by the defense, none of which were proven." Tr. 562. Perez objected that this remark shifted the burden of proof from the prosecution to the defendant. The trial court sustained the objection and instructed the jury that "[t]he defendants don't have to prove anything, so please don't understand [the prosecution's] argument to be that. Opening statements themselves are not evidence." Id. at 562. The trial court admonished the prosecution to "[p]lease comment on what is evidence." Id.
"Tr." refers to the portion of the trial transcript submitted by the respondent and marked "T4".
During its closing argument, the prosecution also stated that the defendants' arguments during the trial had "appealed to your emotions. They are based solely on innuendo, speculation. It's basically, ladies and gentlemen, a game of hide the ball." Id. at 562-63. Perez did not object to this comment, but Santana did. The trial court sustained the objection and admonished the prosecution, "Don't comment on counsel's motives[;] concentrate on counsels' arguments." Id. at 563.
The prosecution also noted during its closing argument that the question of the defendants' ability to speak English had been raised at several points during the trial. See, e.g., Id. 404, 408, 445. The prosecution commented: "There has [sic] been a lot of questions about English versus Spanish. Just because lawyers say their clients don't speak English doesn't mean that it's so." Id. 572-73. Perez did not object to this comment, but Santana did. In particular, Santana's attorney stated, "I resent being called a liar." In response, the trial court overruled the objection and stated, "[t]hat's not what is happening here. Lawyers make arguments all the time. The witness's credibility is to be evaluated to the extent there is an issue as to whether or not a defendant speaks English or Spanish. That's a credibility issue you are welcome to address." Id. 573.
After noting that the propriety of Isnardi's stop-and-frisk of Perez had been questioned earlier in the trial, the prosecution stated during its closing argument that "[t]he judge has already told you that's not relevant here, and, ladies and gentlemen, I submit to you that Detective Isnardi's actions were reasonable. What he did was go out and try and find out the name [sic] of the [p]eople who Detective Williams had already told him were involved in selling drugs." Id. 567. Perez objected to this statement, and the trial court overruled the objection. The prosecution continued: "That's the only way for them to find out who they are giving the money to when they are buying these drugs, and that's [the] only way without telling the individuals involved that they are the subject of a police investigation."Id. After closing arguments, Perez moved for a mistrial on the basis, inter alia, that the above-quoted portion of the prosecution's closing argument was improper because it presented the jury with hearsay about the reasonableness of the stop-and-frisk. The trial court denied the application, noting that it had previously instructed the jury not to consider the lawfulness of the stop-and-frisk.
The trial court also instructed the jury generally to disregard all statements to which an objection had been sustained. The court instructed the jury not to be influenced by such comments, not to draw inferences from them, and to focus on the evidence.Id. 586-87.
The jury found Perez guilty of all charges. Thereafter, Perez was sentenced to indeterminate prison terms of 16 years to life on each of the first-degree sale counts and indeterminate prison terms of 5 to 15 years on each of the school grounds counts, with all terms to run concurrently.
The petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"). He urged that court to upset his conviction because he had been denied, inter alia, his Fourteenth Amendment due process right to a fair trial, since: (1) the evidence adduced at trial was legally insufficient to support the jury's finding that the petitioner was guilty of criminal sale of a controlled substance in or near school grounds, since the prosecution did not offer any evidence that any of the four sales occurred in any of the seven places specified in N.Y. Penal Law § 220.00(14) ("§ 220.00[14]"), namely "sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants" located within 1000 feet of a school; and (2) the above-noted comments made by the prosecution during its closing argument were improper and prejudicial, since, inter alia, they shifted the burden of proof, denigrated the defense, and personally attacked the attorney who represented Perez during the trial. The Appellate Division affirmed the judgment of conviction. People v. Perez, 277 A.D.2d 1, 2, 715 N.Y.S.2d 398, 399 (App.Div. 1st Dep't 2000). With respect to the petitioner's first contention, the Appellate Division found that:
The drug transactions that took place on September 11 and September 18, 1997, were negotiated on a stoop and in the public lobby of buildings well within the 1000-foot radius that defines 'school grounds,' (Penal Law § 220.00[14]), for purposes of proving a sale 'in or near' such grounds (see Penal Law § 220.44[5]). With regard to the transactions of September 23 and October 3, which were initiated in a building within that radius but consummated in the privacy of a second-floor apartment, defendant's challenge to the location as an element of the crime was never presented to the trial court, and thus the point has not been preserved for appellate review. . . .Id.
Although the Appellate Division cited N.Y. Penal Law § 220.44(5) for the definition of "in or near school grounds," that paragraph of the statute applies, by its own terms, only to the offenses set forth in § 220.44(3)-(4). Perez was convicted of the offense set forth in § 220.44(2). The error is immaterial, however, as § 220.00(14) supplies — for all of Article 220 — a definition of "school grounds" that is, in pertinent part, identical to the definition referenced in § 220.44(5). Therefore, this Report and Recommendation will refer hereafter only to § 220.00(14).
Without discussion, the Appellate Division stated that it found Perez's second contention "to be without merit." Id. The petitioner sought leave to appeal to the New York Court of Appeals. That application was denied. People v. Perez, 96 N.Y.2d 737, 722 N.Y.S.2d 804 (2001).
Thereafter, Perez filed the instant petition for a writ of habeas corpus. In the petition, he raises the same points of federal law that he raised on direct appeal to the Appellate Division.
The respondent contends that Perez's claim concerning the sufficiency of the evidence: (a) does not raise a federal constitutional claim, as the claim is, in actuality, an attack upon the Appellate Division's construction of state law, to wit, § 220.00(14); (b) is barred with respect to the September 23rd and October 3rd transactions by the independent and adequate state law ground of procedural forfeiture; and (c) lacks merit. The respondent also contends that the claim concerning remarks made by the prosecution during its closing argument is without merit.
In support of his claims, Perez attached to the petition a copy of the brief he submitted to the Appellate Division in connection with his direct appeal.
III. DISCUSSION
Sufficiency of the Evidence
"Where a state court has adjudicated the merits of a claim raised in a federal habeas petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000).
A. Cognizability of Federal Claim
In order to seek habeas corpus relief in a federal court, a petitioner must have fairly presented the substance of his federal claims to the state courts for adjudication. See 28 U.S.C. § 2254(b)(1)(A). In the state courts, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." See Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir. 1982). However, even without alleging the violation of a specific constitutional provision expressly, a petitioner may fairly present a federal constitutional claim to a state court by: "(a) [relying] on pertinent federal cases employing [federal] constitutional analysis, (b) [relying] on state cases employing [federal] constitutional analysis in like fact situations, (c) [asserting] the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [alleging] a pattern of facts that is well within the mainstream of [federal] constitutional litigation." Daye, 696 F.2d at 194.
In the brief he submitted to the Appellate Division, Perez alleged a violation of the Fourteenth Amendment and of the rule announced in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). In support of that allegation, he argued that the evidence adduced at trial was insufficient to permit a rational trier of fact to have found him guilty of selling a controlled substance in or near school grounds. In Jackson, the Supreme Court held that a petitioner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324, 2791-92. At a minimum, Perez's appellate brief: (1) cited a federal case employing federal constitutional analysis pertinent to his claim; and (2) asserted his claim in terms sufficiently particular to call to mind a specific right protected by the Constitution.
The respondent argues that the petitioner's claim is not federally cognizable because "his claim is not really presented under Jackson, but, rather, is more appropriately raised under the rubric of In re Winship." Respondent's Memorandum of Law, at 19 (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073). Even if this is so, this argument would be unavailing to the respondent. In Winship, the Supreme Court held "that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."Id. Consequently, an appellate brief that bases a claim about the sufficiency of the evidence upon the holding of Winship, would present a claim of federal law just as plainly as one that references Jackson instead. The portion of Perez's appellate brief that addressed the sufficiency of the evidence was sufficient to "alert the [Appellate Division] to the claim's federal nature." Daye, 696 F.2d at 192.
Much of the respondent's argument on this point is, in actuality, an argument about the merits of Perez's claim. In particular, the respondent contends that the claim is meritless because, under the Appellate Division's construction of § 220.00(14), the evidence adduced at trial supports Perez's conviction on the school grounds counts. The merits of Perez's claim will be addressed below, if appropriate, after the respondent's other procedural bar argument is addressed.
B. Independent and Adequate State Law Ground
The respondent contends that this claim is procedurally barred with respect to the school grounds convictions arising out of the September 23rd and October 3rd transactions, which the Appellate Division found not to have been preserved for appellate review.
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). A judgment of conviction that is supported by an independent and adequate state law ground is considered to be procedurally defaulted. In order to obtain federal habeas corpus review of a procedurally defaulted claim, a habeas corpus petitioner must show cause for the default and prejudice attributable thereto, or that the federal court's failure to consider his claim would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S. Ct. at 2564-65.
To show cause for a procedural default, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645). In the case at bar, Perez does not allege any such external impediment, and none is apparent from the record before the Court. Therefore, Perez has not shown cause for his default, and there is no need to consider the issue of prejudice. See Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126-27 (2d Cir. 1995).
However, "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."Murray, 477 U.S. at 496, 106 S. Ct. at 2649. Typically, claims of actual innocence are founded upon newly available and reliable evidence of a petitioner's innocence. See Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995). However, the case at bar is one in which the question of the petitioner's actual innocence and the question of the constitutional sufficiency of the evidence adduced at trial are one and the same. It is uncontested that the sales of controlled substances on September 23, 1997, and October 3, 1997, were "initiated in a building within [the 1000-foot radius that defines 'school grounds,'] but consummated in the privacy of a second-floor apartment." People v. Perez, 277 A.D.2d at 2, 715 N.Y.S.2d at 399. The petitioner's contention is that the Appellate Division violated his right to due process when it affirmed his convictions for the school grounds counts arising out of the September 23rd and October 3rd transactions, since the sale of a controlled substance in a private building does not satisfy one of the elements of sale of a controlled substance in or near school grounds. If that contention is meritorious, then the petitioner is actually innocent of the pertinent school grounds counts, and the fundamental miscarriage of justice exception should be applied. If the contention is not meritorious, then the claim should be deemed procedurally barred with respect to the convictions arising out of the September 23rd and October 3rd transactions.
In light of the foregoing, it is appropriate to address the merits of the petitioner's insufficient evidence claim with respect to all four school grounds counts. C. Merits i) Section 220.00(14) and the Appellate Division's Construction Thereof
The respondent does not contend that there is an independent and adequate state law ground that supports the Appellate Division's decision to affirm the other two school grounds convictions, which arose out of the September 11th and September 18th transactions.
Section 220.44(2) provides, in pertinent part, that "[a] person is guilty of criminal sale of a controlled substance in or near school grounds when he knowingly and unlawfully sells" a narcotic drug "when such sale takes place upon school grounds."
Section 220.00(14) sets forth the definition of "school grounds" for the purposes of Article 220:
"School grounds" means (a) in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or — within one thousand feet of the real property boundary line comprising any such school — (b) any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school or any parked automobile or other parked vehicle located within one thousand feet of the real property boundary line comprising any such school. For the purposes of this section an "area accessible to the public" shall mean sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants.
In the case at bar, it is undisputed that the evidence adduced at trial showed that the four sales for which Perez was convicted under § 220.44(2) were negotiated and consummated on the stoop of private apartment buildings, in the lobby of the private buildings, and/or in certain apartments within those buildings. Indeed, the Appellate Division found that the September 11th and September 18th transactions occurred inside the apartment buildings or their lobbies. These areas are not among the seven locations that comprise the definition of "areas accessible to the public" set forth in § 220.00(14); that provision of the statute defines only "sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants" to be areas accessible to the public, for the purposes of Article 220.Id.
No party contends that the Appellate Division's findings in this respect should be disturbed. Accordingly, it is presumed to be correct. See 28 U.S.C. §§ 2254(d)(2), 2254(e)(1).
With respect to the convictions arising out of the September 11th and September 18th transactions, the Appellate Division reached the merits of the petitioner's claim. In affirming the judgment of conviction on these two counts, the Appellate Division apparently determined that "in or near school grounds," as that term is defined by § 220.00(14), includes "the public lobb[ies] of buildings well within the 1000-foot radius that defines 'school grounds.'" People v. Perez, 277 A.D.2d at 2, 715 N.Y.S.2d at 399.
ii) Due Process
As noted above, in Winship, the Supreme Court held "that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Winship, 397 U.S. at 364, 90 S. Ct. at 1073. In Jackson, the Supreme Court held that a violation of the rule announced in Winship warrants habeas corpus relief if the other, procedural prerequisites for such relief are satisfied. Jackson, 443 U.S. at 324, 99 S. Ct. at 2791-92.
The respondent contends that the evidence was sufficient to establish that all four sales occurred near "school grounds," as that term was construed by the Appellate Division. As the respondent notes, although Perez has cast his claim as one underJackson, at the core of the claim is a challenge to the Appellate Division's broadened definition of "school grounds." The respondent notes, correctly, that the re-examination of questions of state law is not, as a general matter, within the scope of habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991). The fact that habeas corpus relief does not lie for errors of state law, per se, "does not mean, however, that errors under state law cannot result in cognizable violations of a constitutional right to due process." Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001).
It has long been recognized by the Supreme Court that due process requires "that a criminal statute . . . give fair warning of the conduct that it makes a crime" and "that a deprivation of the right of fair warning can result . . . from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Bouie v. City of Columbia, 378 U.S. 347, 350, 352, 84 S. Ct. 1697, 1701-02 (1964). In Bouie, the defendants had been charged in state court with trespass under a statute that defined that offense as "entry upon the lands of another . . . after notice . . . prohibiting such entry. . . ."See id. at 351-52, 1701. The evidence adduced at trial inBouie demonstrated that the defendants received the requisite notice only after entry onto the premises at issue. Id. at 348-49, 1700. However, the state supreme court, "in affirming [the defendants'] convictions, construed the statute to cover not only the act of entry on the premises of another after receiving notice not to enter, but also the act of remaining on the premises of another after receiving notice to leave." Id. at 350, 1701.
The Supreme Court held that "[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Id. at 354, 1703. After concluding that the text of the trespass statute and the decisional law of the state did not provide "fair warning" of the construction of the statute that was applied by the state supreme court and that the construction was not defensible by reference to the prior law of the state, the Supreme Court reversed the convictions. Id. at 355-63, 1703-07.
In affirming Perez's school grounds convictions, the Appellate Division adopted a definition of "school grounds" that was broader than that provided in § 220.00(14), since stoops and lobbies of apartment buildings are not among the seven locations specified in that statute. The Appellate Division applied that broadened definition retroactively to the facts of Perez's case. The facts of Perez's case are, in all material respects, apposite to those of Bouie; that is, evidence adduced at trial satisfies an essential element of the charged offense only if the appellate court's subsequent construction of that element is valid.
In Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693 (2001), the Supreme Court found that a state supreme court did not violate the rule set forth in Bouie when the state supreme court abolished a year-and-a-day rule retroactively and affirmed a murder conviction that would have been barred by application of that rule. The Supreme Court concluded that the year-and-a-day rule had only a tenuous basis in the state's law: no reported Tennessee decision had ever applied the rule. Id. at 464-66, 1701-02. Moreover, unlike the rule modified in Bouie, Tennessee's year-and-a-day rule was a common law rule, and so the fact that the "vast majority" of other common law jurisdictions had abolished the rule recently rendered its abolition in Tennessee foreseeable. Consequently, the Supreme Court found that the state court's abolition of the rule was not unexpected or indefensible with reference to pertinent previous statements of law. In the case at bar, since the Appellate Division's modification of the definition of "school grounds" involves the retroactive construction of a rule set forth expressly by statute, the circumstance of Rogers are not apposite.
Accordingly, it must be determined whether the Appellate Division's construction of § 220.00(14) to include the "public lobbies" of buildings within a 1000-foot radius of a school was without fair warning and indefensible by reference to New York law that had been expressed prior to the pertinent sales transactions, the earliest of which occurred on September 11, 1997.
The definition of "school grounds" provided in § 220.00(14) was narrowed, effective November 1, 1994, by act of the New York state Legislature. Whereas the statute previously defined "school grounds" as,inter alia, "within one thousand feet of the real property boundary line comprising any such school," the amended version of the statute further limited "school grounds" to the seven "areas accessible to the public" noted previously. See 1994 Session Laws of N.Y., Ch. 292 (A. 6903-B) (McKinney's). Therefore, the recent amendment of § 220.00(14) made the definition of "school grounds" narrower and more specific than it had been previously. Such a modification does not provide fair warning of a judicial expansion of the definition.
No controlling state decisional law issued prior to the conduct for which Perez was convicted addressed the question whether "school grounds" might include areas not specified in § 220.00(14), as amended. The only reported decision that addressed that question prior to the pertinent conduct was issued by a trial court in 1996. See People v. Gaines, 167 Misc.2d 923, 640 N.Y.S.2d 734 (N.Y.Sup.Ct. Queens Cty. 1996) (denying motion to dismiss indictment). In Gaines, the court held that the lobby of a private building was near school grounds, within the meaning of § 220.00[14]. Id. at 927, 736-37. However, the decisions of a trial court do not bind other courts of the jurisdiction as to pure questions of law. Additionally, although the alleged sale at issue in Gaines was completed in the interior of a private building, "the alleged negotiations as to the terms of the sale, type of drug, price and quantity took place on the sidewalk," See Gaines, 167 Misc.2d at 927, 640 N.Y.S.2d at 736, which is one of the seven areas specified in the statutory definition of school grounds, see § 220.00(14)(b). For the purposes of Article 220, to "'sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." § 220.00(1) (emphasis supplied). Consequently, the indictment in Gaines alleged that a sale, within the meaning of § 220.00(1), had occurred in one of the areas specified by § 220.00(14). Therefore, the court's recognition of a broader definition of "school grounds" was not necessary to its decision not to dismiss the school grounds counts of the indictment. A single trial court decision, under those circumstances, cannot fairly be said to provide fair warning of a change in New York law. Consequently, the legislative history of § 220.00(14) and New York's decisional law prior to September 11, 1997, do not provide fair warning of the modification of the definition of "school grounds" announced by the Appellate Division in the case at bar.
The only appellate decisions prior to the conduct at issue in Perez's case that reference § 220.00(14) do not address whether "school grounds" includes areas not mentioned in the statute. People v. Gonzalez, 240 A.D.2d 255, 658 N.Y.S.2d 305 (App.Div. 1st Dep't 1997) (prosecution need not prove that defendant knew sale occurred in or near school grounds); People v. Zelaya, 232 A.D.2d 261, 648 N.Y.S.2d 93 (App.Div. 1st Dep't 1996) (officer's testimony was competent evidence that sale occurred within the requisite radius of a school); and People v. Rexach, 220 A.D.2d 362, 633 N.Y.S.2d 131 (App.Div. 1st Dep't 1995) (federal conviction for distribution of cocaine supported finding that defendant was a second felony offender, notwithstanding differences between federal statute and §§ 220.44, 220.00[14]).
Additionally, the modification of the definition is not defensible by reference to the above-noted legislative history and decisional law. As noted above, the one state court decision that addressed the question prior to September 11, 1997, lacked precedential force and addressed the question unnecessarily. More significant to this analysis, however, is the legislative history. Although the Appellate Division and the respondent do not articulate any rationale for the Appellate Division's enlargement of the definition of "school grounds," a concurring opinion authored by one of the Appellate Division justices attempted to do so. The concurring justice maintained that a "literal" construction of the statute "would clearly frustrate the overall design of the [statute by the] Legislature and create an absurd result. . . . [A] stoop is no less accessible to the public than the sidewalk adjoining it." People v. Perez, 277 A.D.2d at 3, 715 N.Y.S.2d 399-400 (concurrence of Saxe, J.). The concurring justice stated further that, "the clear intent and purpose of this statute to create 'drug free corridors' around schools." Id.
That defense of the Appellate Division's construction of § 220.00(14) by reference to legislative intent is undermined, however, by the fact that, as a practical matter, the construction renders the legislature's express modification of the definition of "area accessible to the public" a nullity. As construed by the Appellate Division, the pertinent part of the definition of "school grounds" is: any area within a radius of 1000 feet of a school that is "accessible to the public," where the definition of "accessible to the public" is, apparently, to be determined by judicial construction, rather than according to the pertinent provision of the 1994 amendment to § 220.00(14). Consequently, fidelity to legislative intent is not a persuasive justification for the Appellate Division's construction of the statute. The Appellate Division's construction of § 220.00(14) is not defensible by reference to the statute's text or its legislative history.
The respondent contends that the proposition that the Appellate Division's construction of § 220.00(14) runs afoul of due process fair notice requirements is "completely unsupportable," since Article 220 "clearly prohibited" the sale of controlled substances "from a building within 1000 feet of a school." Respondent's memorandum of law, at 21 n. 12. That contention is without merit, as it does not take account of the 1994 amendment to § 220.00(14). The respondent also cites Ponnapula v. Spitzer, 297 F.3d 172 (2d Cir. 2002). However, that case is inapposite to the case at bar, as Ponnapula involved "a natural step in refining a principle long-enunciated by New York courts,"id. at 184, and the case at bar involves a novel interpretation of an unambiguous statutory definition of very recent vintage.
In light of the foregoing, the Court finds that the Appellate Division's construction of § 220.00(14) was an unexpected and indefensible retroactive expansion of a criminal statute, contrary to the rule announced in Bouie.
In the absence of such a construction of § 220.00(14), the uncontroverted evidence adduced at Perez's trial demonstrates that the pertinent transactions occurred in areas that were not in or near "school grounds," within the meaning of that statute. Accordingly, no rational trier of fact could have found Perez guilty of sale of a controlled substance in or near school grounds, and the judgement of conviction of the school grounds counts violated the rule of due process set forth in Jackson. iii) Application of Standard for Habeas Corpus Relief
A state court decision is contrary to federal law if it applies a rule that "contradicts the governing law set forth" in decisions of the Supreme Court. Williams, 529 U.S. at 405, 120 S. Ct. at 1519; see also Francis S. v. Stone, 221 F.3d 100, 108 (2d Cir. 2000). The Appellate Division adjudicated the merits of Perez's claim about the sufficiency of the evidence with respect to convictions arising out of the September 11th and September 18th transactions. As discussed above, the decision of the Appellate Division was contrary to the rule stated inWinship and Jackson and the rule stated in Bouie. Accordingly, it is contrary to federal law, within the meaning of 28 U.S.C. § 2254(d)(1), and habeas corpus relief is warranted with respect to this part of the claim.
Where a state court has not adjudicated the merits of a claim raised in a habeas corpus petition, the standard set forth in 28 U.S.C. § 2254(d) does not apply, and questions of law are reviewed de novo. See Cox v. Miller, 296 F.3d 89, 101 (2d Cir. 2002). As noted above, the Appellate Division affirmed Perez's conviction on the school grounds counts arising out of the September 23rd and October 3rd transactions by reference to a state procedural rule. The court did not reach the merits of Perez's due process claim with respect to those two convictions, and so Perez need not satisfy the standard set forth in § 2254(d)(1) in order to obtain relief from those convictions. Since the convictions arising out of the September 23rd and October 3rd transactions violated the rule of due process set forth inJackson, habeas corpus relief is warranted with respect to this part of the claim.
Prosecutorial Misconduct
Under federal law, an improper statement to a jury by a prosecutor will require reversal of a conviction only where the remark so infected the trial as to make it fundamentally unfair, thereby denying a defendant due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974). "Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. Instead, . . . the remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." United States v. Young, 470 U.S. 1, 11-12, 105 S. Ct. 1038, 1044 (1985); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471 (1986) ("It is not enough that the prosecutors' remarks were undesirable or even universally condemned.").
In order to be entitled to habeas relief on a claim of prosecutorial misconduct, a petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict. Habeas relief is not appropriate when there is merely a 'reasonable possibility' that trial error contributed to the verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).
The trial court issued a curative instruction in connection with each of the four comments by the prosecution of which Perez complains. It is not unreasonable for a state appellate court to conclude that a trial judge's instructions to the jury are "sufficient to cure any potentially misleading effect" the prosecution's comment may have had. See, e.g., Cortijo v. Bennett, No. 03 Civ. 5102, 2004 WL 1516801, at *10 (S.D.N.Y. July 7, 2004). The trial court sustained an objection to the prosecution's comment concerning "grand allegations" that the defendants allegedly had not proven, and, immediately thereafter, instructed the jury that the defendants "don't have to prove anything." The trial court then admonished the prosecution, in the presence of the jury, to comment only about the evidence. The trial court also sustained an objection to the prosecution's comment that the defendants' counsel had appealed to the jurors' emotions and based their arguments on "innuendo" and "speculation." Immediately thereafter, the trial court instructed the prosecution, in the presence of the jury, not to comment on the motives of defendants' counsel. The judge also instructed the jury not to be influenced by or draw any inferences from any comments to which objections had been sustained.
Although the trial court overruled an objection to the prosecution's statement that "[j]ust because lawyers say their clients don't speak English doesn't mean that it's so," the trial court found that the statement was not an improper attack upon the credibility of defense counsel. Nevertheless, the trial court also instructed the jury that it should concentrate only on the credibility of the pertinent witnesses. Although it overruled Perez's objection to the prosecution's comments about the propriety of Isnardi's stop-and-frisk of Perez — and denied Perez's subsequent request for a mistrial on the same ground — the trial court had instructed the jury previously that the lawfulness of Isnardi's stop-and-frisk of Perez was not a question before the jury and that the jury should not consider it.
Perez does not contend that the Appellate Division's adjudication of this claim was contrary to federal law. In light of the above-noted instructions to the jury, the Court finds that it was not an unreasonable application of federal law for the Appellate Division to conclude that the trial court cured any prejudice that the prosecution's comments might have caused. Perez has not presented any argument to the contrary. In the absence of a showing of actual prejudice, Perez is not entitled to habeas corpus relief because of the statements made by the prosecution during its closing argument.
IV. RECOMMENDATION
For the reasons set forth above, a writ of habeas corpus should be granted with respect to ground one of Perez's petition but not with respect to ground two of that petition.
V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, United States District Judge, 500 Pearl Street, Room 2240, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).