Opinion
00 Civ. 4918 (JSM).
December 21, 2000.
Katheryne M. Martone, The Legal Aid Society Criminal Appeals Bureau, New York, N.Y. For Petitioner.
Maria Filipakis, Assistant Attorney General, New York, N.Y. For Respondent.
MEMORANDUM OPINION AND ORDER
Jose Felix ("Petitioner"), who was convicted after a jury trial in the Supreme Court, New York County on charges relating to the sale and possession of a controlled substance, brings this petition under 28 U.S.C. § 2254 seeking to set aside his conviction.
Petitioner claims that his constitutional right to due process was denied because the trial court failed to order the production or identification of a confidential informant who was present when Petitioner first met the undercover detective with whom he negotiated the narcotics transaction. In affirming Petitioner's conviction, the Appellate Division, First Department refused to consider this claim because the "defendant abandoned the claim that the informant should have been produced or that her identity should have been disclosed" in the trial court. (Filipakis Decl. Ex. C). This independent and adequate state ground for denying Petitioner's claim is fully supported by the record.
When defense counsel first raised this issue he stated:
I'm asking the Court to, at least, make an inquiry to determine the extent of the informant's involvement concerning the arrest of my client, Your Honor and whether to make a determination whether I should request the People to produce the informant.
(Tr. 318)
The prosecutor stated that the informant had not been present during the actual sale and had merely been in the car when the undercover officer first spoke to Petitioner. (Tr. 319). He further represented that he believed the informant had not been in contact with the police in many months and might be out of the State. (Tr. 319). The prosecutor mentioned that depending on the availability of the informant, the defendant might be entitled to a missing witness charge. However, he concluded: "But that remains to be seen at this point." (Tr. 320)
The Court then stated that at that point defense counsel was asking for the production of the informant, and defense counsel acknowledged that this was correct. (Tr. 320)
The above discussion occurred just before a luncheon recess. Immediately after lunch, the prosecutor reported that he had spoken to the police officer who said that the last contact he had with the informant had been ten months earlier and he had been unsuccessful in attempts to reach her since that time. (Tr. 321). The prosecutor then argued that, because the informant was not a participant in the transaction, he would oppose the application to produce the informant. (Tr. 322). The prosecutor closed by stating that he had a police officer available to testify concerning the matters he had represented to the Court. (Tr. 323)
In response defense counsel argued why the informant would have relevant testimony and concluded:
If, in fact, the witness is not available, Your Honor then we would subsequently request of the Court a missing witness charge, Your Honor, as a remedy.
(Tr. 324)
The Court then indicated that the matters raised by defense counsel might be relevant and that a missing witness charge might be appropriate, but that she would not rule at that time because her decision would depend on subsequent testimony. (Tr. 324-25).
At the end of the day, the prosecutor advised the Court that the detective was available to testify concerning his last contact with the informant and his subsequent attempts to contact her. (Tr. 408). The witness was not called at that time but was to be available the following day.
The following morning the defendant testified and both sides rested. After the motion at the close of all the evidence was denied, the Court asked for requests to charge. Defense counsel then requested, among other things, a missing witness charge and an agency defense charge. Defense counsel concluded: " And I have nothing further, Your Honor." (Tr. 448).
The Court advised the parties that she would give the missing witness and agency defense charges requested by the defendant. (Tr. 451-52). There was no further request by the defendant concerning the informant.
The above record establishes that the trial court never denied Petitioner's application for the production of the informant. Rather, it became clear from the representations of the prosecutor that the informant was not available because the police had not been in contact with her for ten months. Despite the prosecutor's repeated offers to have the detective testify to the facts establishing the unavailability of the witness, defense counsel neither asked for a hearing on that issue nor requested a continuance so that efforts could be made to locate the informant. Rather, defense counsel requested that a missing witness charge be given and the Court honored that request. Thus, the Appellate Division was correct in concluding that the "defendant abandoned his claim that the informant should have been produced or that her identity should have been disclosed." (Filipakis Decl. Ex. C)
"[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (internal quotation marks and citations omitted).
Here Petitioner can not show cause, prejudice, or a fundamental miscarriage of justice. The record in the trail court clearly indicated that the informant was not available and no request was made that any further efforts be made to locate her. It may well be that defense counsel recognized that a missing witness charge would be more favorable to the defendant than the actual testimony of the informant, who according to the police officers had very little contact with the transaction. In any event, given the strength of the prosecution's evidence and the inconsistency of the defendant's testimony concerning the informant's role in the transaction, there is no basis for a claim that the informant's absence resulted in a miscarriage of justice.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.