Opinion
04 Civ. 2762 (AKH).
July 18, 2005
MEMORANDUM AND ORDER DENYING HABEUS CORPUS
On June 9, 2000, the Supreme Court of the State of New York, New York County (Irizarry, J.) rendered judgment, after a non-jury trial, convicting Nathaniel Walker (hereafter "Petitioner" of Criminal Sale of a Controlled Substance In or Near School Grounds (New York Penal Law (hereafter "Penal Law") § 220.44(1)) and Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39(1)). The conviction was affirmed by the Appellate Division and Petitioner was denied leave to appeal to the Court of Appeals. People v. Walker, 295 A.D.2d 258, 743 N.Y.S.2d 865 (1st Dept. 2002), lv. denied, 99 N.Y.2d 540, 782 N.E.2d 540, 782 N.E.2d 579, 752 N.Y.S.2d 601 (2002). Petitioner now asks this court to issue a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the petition is denied.
BACKGROUND
On November 5, 1998, Undercover Officers 2301 and 2717 (hereafter "UC"), Detective Kevin Santiago, and other officers in the East Harlem Initiative, attended a tactical planning meeting. Tr. 48, 107, 164. Detective Santiago, assigned as the arresting officer in that day's "buy and bust" operation (in which an undercover officer purchases drugs and his fellow officers then arrest the dealer), gave $90 of pre-recorded "buy money" (marked money used in undercover drug purchases) to UC 2301, who was assigned as the buyer. Tr. 48, 51, 108-09. UC 2301 and UC2717, who was assigned as the "ghost" (one who observes the transaction from a distance), parked their car on 130th Street, between Convent and Amsterdam Avenues, and walked separately towards the corner of 126th Street and St. Nicholas Avenue. Tr. 49-51, 165-67.
Standing on the north side of 126th Street, between St. Nicholas and Morningside Avenues, UC2301 turned left and saw Petitioner standing across the street. Tr. 54, 69-70, 79. The two made eye contact and nodded at each other. Tr. 54, 57, 50, 80, 94. UC 2301 crossed 126th Street and approached Petitioner. Tr. 54, 57, 70-71, 79-80. Meanwhile, UC 2717 watched, standing about 35 feet from UC 2301. Tr. 168, 171-72, 187. Petitioner asked UC 2301 what he was looking for, Tr. 54, 71, 96, and UC 230 responded that he wanted to buy "four nicks." Tr. 71. When Petitioner replied that he only had "dimes," UC 2301 asked him for two. Tr. 71, 80-81. Petitioner reached inside his jumpsuit, took out a tissue paper, removed two rocks of crack, which he handed to the officer. Tr. 55, 61-62, 84-85, 94, 96, 172. In exchange, UC 2301 gave Petitioner $20 of the "buy money." Tr. 55-56, 61-62.
UC 2301 put the rocks in his pocket and walked west on 126th Street. He transmitted to the field team that he had made a positive buy and gave a physical description of the seller, which was confirmed by UC 2717. Tr. 55-58, 64, 169-70, 174. When UC 2301 turned south on Morningside Avenue, he saw that Petitioner was walking behind him, and transmitted this information to the field team as well. Tr. 59, 72, 93. UC 2301 then returned to his car and placed both rocks of crack in an undercover narcotics envelope. When he returned to command, he placed each rock in a separate plastic bag and placed the bags in a manila envelope. Tr. 65.
Detective Santiago was sitting in an unmarked police car about one block from the corner of 126th Street and Morningside Avenue when he received the transmissions from UC 2301 and UC 2717. Tr. 112-23. Seconds later, Detective Santiago arrived at Morningside Avenue between 125th and 126th Streets and saw Petitioner, who matched the description he had received. No one else in the vicinity matched that description. Tr. 113-114, 129. As Detective Santiago moved to detain Petitioner, Petitioner pushed him off and threw something to the ground. Tr. 115-16, 118, 132, 157. After a brief struggle, Santiago handcuffed Petitioner and removed the $20 of "buy money" from Petitioner's jacket pocket. Tr. 121. UC 2301 and UC 2717 then confirmed with that they had "no doubt" that it was Petitioner who sold UC 2301 the crack. Tr. 61, 117, 133, 178, 186.
Although UC 2301 recalled telling Detective Santiago that Petitioner kept loose rocks of crack inside tissue paper, Tr. 96, Detective Santiago did not remember receiving that information. Santiago found no bags or bottles of crack in his search of the area around Petitioner, Tr. 119-20, 133-34, and did not recover the object which Petitioner threw to the ground. Tr. 135. Detective Santiago stated, mistakenly, when filing the criminal complaint against Petitioner, that the rocks were in plastic bags. Tr. 146-147.
Detective Santiago used a round wheel measuring device to measure the distance from the spot where the sale took place to St. Joseph's school (on Morningside Avenue between 126th and 127th Streets, diagonally across the street from the sale location) and found the distance to be 280 feet. Tr. 68, 92, 127-28, 158, 179, 192.
Police chemist Josephine Bishara tested the two rocks that UC 2301 had purchased from Petitioner and concluded that they contained cocaine. Tr. 215, 217.
ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act
The Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA), 28 U.S.C. § 2254, provides the standard of review for federal habeas corpus petitions. Under AEDPA, federal judges are to issue writs of habeas corpus when a state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In order for a sate court decision to be contrary to federal law as decided by the Supreme Court, the state court must reach either a conclusion opposite that of the Supreme Court on a question of law or an opposite conclusion to the Supreme Court on a set of facts that are materially indistinguishable from a Supreme Court case. Williams v. Taylor, 529 U.S. 362, 405, 529 S.Ct. 1495, 1519 (2000). A state court action is an unreasonable application of Supreme Court precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of Petitioner's case. Id. at 413.
In his appeal, Petitioner contends that he was convicted on legally insufficient evidence and that the trial court, by erroneously qualifying Ms. Bishara as an expert witness, denied Petitioner a fundamentally fair trial. For the following reasons, these arguments are without merit.
Petitioner's claim that he was convicted on legally insufficient evidence
Evidence is legally sufficient if, "after viewing the evidence in the light most favorable to the prosecution," any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Petitioner maintains that the Appellate Division unreasonably applied this law when it affirmed Petitioner's conviction. Walker, 295 A.D.2d 258, 743 N.Y.S.2d 865.
Petitioner bases his argument of legal insufficiency on the discrepancies between the recollections of UC 2301 and Detective Santiago as to their conversations concerning whether the drugs were sold in bags or in loose form. Petitioner asserts that UC 2301 lied when testifying that he had informed Santiago that the drugs he had purchased from Petitioner were in loose form, and that the inconsistencies between the criminal complaint (which stated that the drugs were sold in bags) and Detective Santiago's testimony (that the drugs were sold in loose form) cast doubt on whether Petitioner sold drugs to UC 2301 at all.
These claims are unfounded. The accusation that UC 2301 lied discounts that UC 2301 may have been mistaken in his recollection, or that he did radio the information but that Santiago did not hear it. Regarding Detective Santiago's report in the criminal complaint that the drugs were sold in bags, Detective Santiago who, as an experienced officer, had participated in numerous "buy and bust" operations, had never seen crack sold without packaging before, and it is reasonable to believe that Detective Santiago assumed that the drugs were sold in the bags he saw them in at the Police Station. Furthermore, the testimony of UC 2301 and UC 2717, both of whom were at the scene of the crime and saw Petitioner sell UC 2301 drugs, and Petitioner's possession of the "buy money" are sufficient to convince a rational juror of Petitioner's guilt beyond a reasonable doubt.
Petitioner also contends that, since Detective Santiago failed to calibrate and test the wheel he used to measure the distance between the spot of the alleged drug deal and the school, the measured distance of 280 feet that Detective Santiago calculated is insufficient to prove beyond a reasonable doubt that Petitioner sold drugs within 1,000 feet of a school (Penal Law § 220.44(1)). Although Detective Santiago did not calibrate the wheel, and his measurement would have been more precise had the wheel been calibrated, the judge acted well within the bounds of reason in concluding that the distance was less than 1,000 feet from a school.
For these reasons, the evidence was legally sufficient to find Petitioner guilty beyond a reasonable doubt.
Petitioner's claim that the trial court improperly qualified Ms. Bishara as an expert
Evidentiary errors deprive a defendant of due process only if "the error was so pervasive as to have denied him a fair trial."Collins v. Scully, 755 F.2d 16 (2nd Cir. 1985); Rosario v. Kulhman, 839 F.2d 918, 924 (2nd Cir. 1988). Petitioner claims that the Appellate Division unreasonably applied this law when it affirmed his conviction, Walker, 295 A.D.2d 258, 743 N.Y.S.2d 865.
Petitioner bases his claim on the fact that Ms. Bishara was not licensed, either in New York State or with the United States Department of Justice, to conduct research, instructional activities, or analysis of controlled substance. However, as Ms. Bishara testified, she was not required to obtain a license. Tr. 210. Rather, she had a bachelor's degree in chemistry and physics, had been a police department chemist for more than fifteen years, during which time she received additional on-going training and had testified in numerous trials, and had worked privately as a research chemist. Tr. 206-07. The trial court, in qualifying Ms. Bishara as an expert witness, did not deprive Petitioner of a fundamentally fair trial.
CONCLUSION
For these reasons, the petition for habeas corpus is denied. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
The Clerk of the Court is directed to mark this matter as closed.
SO ORDERED.