Opinion
99 Civ. 2407 (HB).
September 29, 2000.
OPINION ORDER
Petitioner Luis Torres filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 29, 1999, Judge Sprizzo referred this matter to Magistrate Judge Michael H. Dolinger who on November 5, 1999, issued a Report and Recommendation ("the Report") and recommended that the petition be denied. The petitioner filed timely objections ("Petitioner's Objections"). For the reasons set forth below, the Report is adopted in its entirety and Torres' petition is DENIED.
The case was first assigned to Judge Sprizzo who referred it to Magistrate Judge Dolinger. On February 4, 2000, the case was re-assigned to this Court.
I. BACKGROUND
On September 4, 1996, a jury convicted the petitioner of Criminal Sale of a Controlled Substance in the Third Degree (N Y Penal Law § 220.39(1)). The petitioner was sentenced to an indeterminate prison term of four-and-one-half to nine years. The First Department of the Appellate Division affirmed the conviction see People v. Torres, 252 A.D.2d 364, 364, 676 N.Y.S.2d 51 (1St Dept. 1998), and the Court of Appeals later denied petitioner's application for leave to appeal. See People v. Torres, 92 N.Y.2d 1039, 684 N.Y.S.2d 504 (1998). On April 1, 1999, the petitioner filed a petition for a writ of habeas corpus challenging: (1) the trial court's decision to close the courtroom as violating his constitutional right to a public trial; (2) the sufficiency of the evidence to support the jury's verdict; and (3) the admission into evidence of an undercover officer's confirmatory identification on the ground that the identification was the result of an arrest and detention that were made without probable cause.
DISCUSSION
A. Standard of Review
In reviewing a Report and Recommendation, a district court applies the clearly erroneous standard. Upon review, the court may accept, modify, or reject the Report in whole or in part. See Fed.R.Civ.P 72(b); 28 U.S.C. § 636 (b)(1)(B) (C).
B. Petitioner's Objections
The petitioner objects to the report on three grounds: (1) that his constitutional right to a public trial was violated by the court's decision to partially close the courtroom; (2) that the evidence was constitutionally insufficient to support the jury's verdict; and (3) that an undercover officer's confirmatory identification of the petitioner should not have been admitted at trial because the arrest that it was based upon was not supported by probable cause.
1. Closure of the Courtroom
Petitioner argues that the trial court violated his constitutional right to a public trial when the court closed the courtroom during a portion of the trial. However, as Judge Dolinger correctly states in his opinion, in certain circumstances a court may close a courtroom in a criminal trial without running afoul of the Sixth Amendment. See Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997); see also Waller v. Georgia, 467 U.S. 39, 48 (1984); Woods v. Kuhlman, 977 F.2d 74, 76 (2d Cir. 1992). In order to determine when a court may permissibly close its doors to the public during a criminal trial, the court applies the test laid out in Waller, 467 U.S. at 48. Petitioner does not dispute that the Waller standard is the correct test, but instead he claims that the Magistrate failed to apply the law correctly to these facts. Specifically, the petitioner contends that the trial court failed to conduct a sufficient inquiry to support its decision to close the court. Petitioner points to the court's examination of the undercover officer regarding the need to close the courtroom as insufficient and submits that the trial court failed to consider alternatives to closure.
In Waller, the Supreme Court established a four-prong test to determine whether closure of a courtroom is justified: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced if the courtroom remains open; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make adequate findings to support the closure. Id. at 48.See also United States v. King, 140 F.3d 76, 80 (2d Cir. 1998).
Here, the trial court satisfied the test laid out in Waller. First, the trial court held a hearing in which the court determined that the undercover officer's safety would be jeopardized if he testified in open court and that such testimony would impede the officer's on-going investigations in the neighborhood. These findings constitute the advancement of an "overriding interest likely to be prejudiced." Bobb v. Senkowski, 196 F.3d 350, 352 (2d Cir. 1999) (per curiam). And, the transcript reflects that findings made by the court at the hearing support the decision to close the courtroom. See Bobb, 196 F.3d at 352-54; Ayala, 131 F.3d at 72; Woods v. Kuhlmann, 977 F.2d at 77.
Furthermore, the trial court limited the closure of the courtroom and considered alternatives. The trial court's willingness to consider alternatives is evidenced by it decision to close the courtroom only during the testimony of the undercover officer and to allow the petitioner's family and friends to attend the proceeding. See Bobb, 196 F.3d at 350;Ayala, 131 F.3d at 71; Mason v. Schriver, 14 F. Supp.2d 321, 324 (S.D.N.Y. 1998).
Therefore, the trial court had sufficient reason to close the courtroom in this limited manner and, this closure did not violate the petitioner's constitutional right to a public trial.
2. Sufficiency of the Evidence
Petitioner also argues that the evidence presented at trial was insufficient to sustain his conviction, thereby violating his constitutional right to due process of law.
A federal court reviewing a habeas corpus petition may not weigh the evidence or determine the credibility of the witnesses,see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469 (1942), but instead must "view the evidence in the light most favorable to the government and construe all possible inferences in its favor." United States v. Salerno, 868 F.2d 524, 530 (2d Cir. 1989), cert. denied, 491 U.S. 907, 109 S.Ct. 3192 (1989);see also United States v. Martino, 759 F.2d 998, 1002 (2d Cir. 1985). A conviction must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). In addition, a reviewing court must consider the evidence as a whole. United States v. Kahn, 53 F.3d 507, 513 (2d Cir. 1995).
Under New York law, to establish accomplice liability for criminal sale of a controlled substance in the third degree, Penal Law § 220.39(1), the prosecution has the burden of proving that the defendant acted in concert with another who actually carried out the sale. Essentially, the prosecution must prove that the petitioner shared the intent to complete the crime and aided in its completion. See People v. Kaplan, 76 N.Y.2d 140, 146-147, 556 N.Y.S.2d 976, 979 (1990). Here, the evidence presented at trial, particularly Detective Molina's testimony, was ample to establish all of the elements of the crime of sale of a controlled substance in the third degree. Petitioner's challenge to the credibility of Detective Molina's testimony is misplaced as this was a question for the jury and not for this court on habeas review. See e.g., Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y 1996).
3. Admissibility of Confirmatory Identification
Finally, petitioner argues that the police had no probable cause to arrest him and therefore that the trial court erred in admitting evidence of the confirmatory identification conducted after his arrest. The petitioner acknowledges that, in most cases, challenges based on questions of the Fourth Amendment are barred from review in habeas proceedings, but petitioner argues that his challenge to the confirmatory identification stems from the Fifth and Sixth Amendments and thus are appropriate for habeas review. Specifically, petitioner contends that the trial court's admission of the confirmatory identification affected the trial proceeding, thereby triggering Fifth and Sixth Amendment concerns.
I agree with the Judge Dolinger that despite the petitioner's attempt to frame his claim in terms of the Fifth and Sixth Amendments, petitioner's objection to the confirmatory identification is a challenge based on lack of probable cause and as such falls squarely within the purview of the Fourth Amendment. As Fourth Amendment claims are barred for habeas review except in certain circumstances not present here, the petitioner is not able to maintain this challenge. See Dunway v. New York, 442 U.S. 200, 206 (1979).
In rare circumstances a petitioner may be able to bring a Fourth Amendment challenge in a habeas petition when the petitioner can show that (a) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) the state has provided a corrective mechanism, but the defendant was precluded from relying on that mechanism due to an "unconscionable breakdown" in the underlying process.See Capellan v. Riley, 975 F.2d 67, 70 (2d. Cir. 1992). Here, petitioner does not claim to fall within these exceptions nor do I believe that he does.
Furthermore, even if the petitioner's challenge to the confirmatory identification was not barred, the confirmatory identification was properly admitted at trial. According to the Detective Hinds' testimony, he received a clear and detailed description of the individuals and, if so, he had probable cause to arrest them. See e.g., United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). Since Detective Hinds had probable cause to arrest the individuals who matched the transmitted descriptions, the confirmatory identification by Detective Molina was properly admitted at trial. See e.g., People v. Vidal, 214 A.D.2d 347, 348, 625 N.Y.S.2d 892 (1st Dept 1995).
CONCLUSION
For the reasons set forth above, defendants' motions to dismiss the complaint are granted and the complaint is hereby dismissed with prejudice as to all defendants.
SO ORDERED.