Opinion
00 Civ. 1361 (RCC) (JCF).
November 14, 2001
REPORT AND RECOMMENDATION
Juan Luna brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County for the sale of narcotics. He contends that: (1) the evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) the trial court improperly admitted in evidence narcotics that were found in the police van in which Mr. Luna was transported after his arrest, and (3) he was denied his right to a speedy trial. For the reasons set forth below, I recommend that the petition be denied.
Background
On February 16, 1995, police officer Lisandro Rivera was on the rooftop of 201 West 105th Street in Manhattan, using binoculars to survey the corner of 106th Street and Amsterdam Avenue. (Tr. 74-75, 79-80, 82). At approximately 9:45 p.m., he observed Mr. Luna hand something to a man later identified as Tony Arujo. (Tr. 84, 92-93). Mr. Arujo then walked to Ariel White, who was sitting on a stoop, and dropped several shiny objects into a newspaper she was holding. (Tr. 94-96). Ms. White folded the newspaper and hailed a cab. (Tr. 96). Officer Rivera then radioed his back-up team with a description of the vehicle. (Tr. 96-97). Shortly thereafter, he received a report that Ms. White's cab had been stopped and three tinfoil packets of cocaine had been found on the floor. (Tr. 102, 235).
"Tr." refers to the trial transcript.
About five to six minutes after the first transaction, Officer Rivera saw a woman later determined to be Stacey Woodcock approach Mr. Luna. She handed him money and received a shiny object in return. (Tr. 102-03). Again, Officer Rivera radioed this information to his back-up team, and he observed a uniformed officer apprehend Ms. Woodcock. (Tr. 105-06). He then received a report that she had been arrested. (Tr. 123-24, 197).
Officer Rivera kept Mr. Luna and Mr. Arujo under observation as he provided his team with a description. (Tr. 124-25). The suspects were then arrested on the scene. (Tr. 198-99, 239). They were placed in a police van along with Ms. White and Ms. Woodcock. (Tr. 250). After these prisoners were delivered to the police precinct, the van was used to transport a suspect in another narcotics transaction. (Tr. 307-09). After that suspect was removed from the vehicle, police officer Jay Sias found a black zippered pouch containing thirteen tinfoils of cocaine wedged into the seat where Mr. Luna had been sitting. (Tr. 255-56). When shown the pouch, the petitioner said, "You can't put that on me. You didn't find it on me." (Tr. 148). Told that it had been recovered from his seat in the van, Mr. Luna said, "I'm fucked." (Tr. 148).
On February 24, 1995, Mr. Luna and Mr. Arujo were jointly indicted for Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law 220.39(1), for the sale to Ms. White and for Criminal Possession of a Controlled Substance in the Third and Fourth Degrees, N.Y. Penal Law §§ 220.16(1), 220.09(1), for possession of the cocaine found in the police van. Mr. Luna was separately charged with a second count of Criminal Sale of a Controlled Substance in the Third Degree for the sale to Ms. Woodcock.
The defendants then made a series of pretrial motions. On March 21, 1995, Mr. Luna moved for inspection of the grand jury minutes, dismissal of the indictment, and suppression of his post-arrest statements and of property seized from him. In a decision dated August 8, 1995, Justice James A. Yates granted the motion to dismiss the possession charge on the ground that it was not based on sufficient evidence. (Affidavit of Valerie Singleton dated Nov. 8, 2000 ("Singleton Aff."), Exh. I at 3).
The petitioner then moved to dismiss the remaining charges on the ground that his right to a speedy trial under New York Criminal Procedural Law ("CPL") § 30.30 had been violated. (Singleton Aff., Exh. E). On May 2, 1996, Justice Yates denied this motion, finding that the delay attributable to the prosecution did not exceed 180 days, the maximum allowed by statute. (Singleton Aff., Exh. G). Then, on July 15, 1996, Justice Ira Beal denied Mr. Luna's suppression motions. (Singleton Aff., Exh. D).
On August 7, 1996, a hearing was held to determine the admissibility of the drugs recovered from the police van. Based on the testimony at that proceeding, which will be described in detail below, Justice Jeffrey Atlas held the evidence to be admissible. He found that the narcotics had been sufficiently linked to Mr. Luna and that the gaps in the evidence that had caused Justice Yates to dismiss the possession charge had been filled in by testimony at the hearing. Further, Justice Atlas found the drugs relevant to the charges of sale of narcotics since it could be inferred that this was the "stash" from which Mr. Luna selected the drugs that were sold to Ms. White and Ms. Woodcock. (H. Tr. 68-76).
"H. Tr." refers to the transcript of the hearing held by Judge Atlas on August 7 and 8, 1996.
Finally, the defendants moved to dismiss the indictment on the ground that the police had destroyed evidence — the cocaine seized from Ms. White and Ms. Woodcock. Justice Atlas denied this motion, finding that the loss of this evidence was unintentional. (Singleton Aff., Exh. I at 3).
The case proceeded to trial, and the jury convicted Mr. Luna of two counts of Criminal Sale of a Controlled Substance in the Third Degree. On September 13, 1996, Justice Atlas sentenced him as a second felony offender to two concurrent prison terms of eight to sixteen years.
The petitioner appealed to the Appellate Division, First Department, arguing that his speedy trial rights had been violated, that the trial court should have suppressed the drugs found in the police van, and that his sentence was excessive. (Singleton Aff., Exh. H). On May 18, 1999, the Appellate Division affirmed the conviction. People v. Luna, 261 A.D.2d 245, 690 N.Y.S.2d 534 (1st Dep't 1999). It held that the trial court had made appropriate calculations under the speedy trial statute, that the drugs found in the van had been properly admitted, and that the sentence was not an abuse of discretion. On July 12, 1999, the New York Court of Appeals denied leave to appeal. People v. Luna, 93 N.Y.2d 1004, 695 N.Y.S.2d 750 [ 690 N.Y.S.2d 534] (1999). Mr. Luna then filed the instant petition.
Discussion
The issues raised by the petitioner are most logically addressed in reverse order: whether his speedy trial rights were violated, whether the cocaine recovered from the police van should have been suppressed, and whether the verdict was based on sufficient evidence.
A. Right to a Speedy Trial
In New York, a criminal defendant's right to a speedy trial is guaranteed by both state law and federal constitutional law. CPL § 30.30 provides a defendant facing felony charges with an absolute right to be tried within six months, not counting time excluded for a variety of specified reasons. CPL § 30.30(1)(a), (4). The federal constitutional requirement is less rigid, as the Sixth Amendment provides simply that "the accused shall enjoy the right to a speedy and public trial." To determine whether the Sixth Amendment right to a speedy trial has been violated, courts examine four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) any prejudice to the defendant caused by the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997). By these standards, there was no abrogation of Mr. Luna's constitutional right to a speedy trial.
Less than nineteen months elapsed from the petitioner's arraignment on February 18, 1995 and the commencement of his trial on September 16, 1996. This delay was no greater than that in many other cases in which the courts have rejected Sixth Amendment speedy trial claims. See, e.g., Barker, 407 U.S. at 533-34 (over 5 years); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (26 months); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (over 7 years); Howard v. Lacy, 58 F. Supp.2d 157, 166-67 (S.D.N.Y. 1999) (19 months). The relative brevity of the delay in this case thus undermines the petitioner's claim.
So, too, do the reasons for the delay. In rejecting Mr. Luna's state law speedy trial motion, Justice Yates found that only 171 days of delay were attributable to the prosecution before the case was ready for trial. (Singleton Aff., Exh. G). The balance of the time was related to the filing and determination of pretrial motions, to the production of grand jury minutes, and to an adjournment sought by the petitioner. (Singleton Aff., Exh. G). Justice Yates' factual findings are presumed correct unless rebutted by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and Mr. Luna has proffered no such proof. With respect to assessing the reasons for delay,
different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.Barker, 407 U.S. at 531. Here, there has never been any evidence of deliberate delay designed to prejudice Mr. Luna, and much of the delay was either requested by him or was required in order to consider his pretrial motions. The remaining delay was, at worst, the result of negligence by the prosecution, and it was not significant in duration. Therefore, this factor, too, cuts against Mr. Luna.
The facts with respect to the petitioner's diligence in pursuing his speedy trial rights are more ambiguous. On one hand, he promptly moved to dismiss the indictment when he believed that the state speedy trial clock had expired. This was in March 1996, thirteen months after his arrest. On the other hand, the prosecution was ready for trial as of March 7, 1996, but trial did not begin until the following September, and there is no indication that Mr. Luna objected to this hiatus. Accordingly, this factor does not favor either party.
The petitioner's motion is dated January 19, 1996 but was not served until March 7, 1996. (Singleton Aff., Exh. E, Exh. F ¶ 3).
Finally, the petitioner has failed to demonstrate prejudice as a consequence of the delay in coming to trial. One potential source of prejudice is a defendant's pretrial incarceration. In this case, Mr. Luna was apparently at liberty until he failed to appear for a hearing on July 15, 1996 and his bail was revoked. (S. Tr. 2, 75). Thus, he was detained for less than a month until trial commenced. That is far shorter than in other cases where pretrial incarceration was found not to be prejudicial. See, e.g., Howard, 58 F. Supp. at 169-70 (18 months);McKenzie v. Herbert, 969 F. Supp. 1, 3 (E.D.N Y 1997) (15 months);Burress v. Henderson, 814 F. Supp. 313, 322 (W.D.N.Y. 1993) (19 months). Prejudice may also arise if the delay impairs the ability of the accused to present a defense. See Barker, 407 U.S. at 532. But Mr. Luna does not contend that any specific evidence was lost or that the memory of witnesses deteriorated.
"S. Tr." refers to the transcript of a suppression hearing held on July 15, 1996.
As noted above, the police discarded the narcotics recovered from the two buyers. However, Mr. Luna has not suggested that this loss of evidence was in any way linked to the delay in proceeding to trial.
In light of the four Barker factors, then, the petitioner's Sixth Amendment speedy trial claim must be rejected.
B. Suppression Motion
Mr. Luna next argues that the cocaine recovered from the police van should not have been admitted in evidence. Notably, the petitioner does not contend that the evidence was obtained in violation of specific constitutional rights; for example, he does not claim that it was recovered as the result of an unreasonable search or in violation of hisMiranda rights. Rather, he maintains that because there was insufficient proof linking him to the drugs, their admission at trial violated his due process rights.
"'[F]ederal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000), and erroneous evidentiary rulings rarely rise to the level of a constitutional violation. See Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Morales v. Portuondo, 154 F. Supp.2d 706, 722 (S.D.N.Y. 2001). Accordingly, habeas relief will only be available if a petitioner can show that an evidentiary error deprived him of a fundamentally fair trial. Washington, 255 F.3d at 56; Hincapie v. Greiner, 155 F. Supp.2d 66, 69 (S.D.N.Y. 2001); Morales, 154 F. Supp.2d at 723.
In this case, the admissibility of the drugs found in the van was tested at a pretrial hearing held pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981). At that hearing, the prosecution presented evidence that the police van, which had three separate bench seats for prisoners, was searched before anyone connected with Mr. Luna's drug sales were placed in it. (H. Tr. 6-8). After Ms. White and Ms. Woodcock were arrested, they were handcuffed and placed in the van, where they sat in the middle bench. (H. Tr. 8, 33). Neither moved from that seat while they were being transported. (H. Tr. 24, 54). Thereafter, Mr. Luna was arrested. The police handcuffed him behind his back and patted him down. (H. Tr. 9-11, 21). Although an officer removed items from the petitioner's front right pocket, he was interrupted before he completed the search. (H. Tr. 10-12, 20-21). Mr. Luna was then placed in the van where he sat on the left side of the rear bench seat. (H. Tr. 34, 59). Mr. Arujo, the petitioner's co-defendant, was then escorted to the van and sat in the first bench seat. (H. Tr. 34, 53). When the van arrived at the precinct, the prisoners were removed and the interior of the van was visually inspected. (H. Tr. 12-13, 34-35). However, the area between the seat cushions and the seat backs was not physically searched. (H. Tr. 35). The van was then locked. (H. Tr. 35).
Later that evening, the van was used to transport another suspect, Juan Cuencas, from whom two clear plastic bags of crack cocaine had been recovered. (H. Tr. 36). Mr. Cuencas was handcuffed, frisked, and searched and placed in the van where he sat on the left side of the middle bench seat. (H. Tr. 37-41). After he was removed from the van at the station house, an officer discovered the pouch containing tinfoil packets of cocaine wedged behind the seat cushion on the left side of the rear bench. (H. Tr. 15-16, 59-60).
On the basis of this evidence, Justice Atlas found the narcotics admissible against Mr. Luna. He determined that the search of the petitioner had been interrupted such that he could still have possessed the pouch when he entered the van. Justice Atlas further found that Mr. Luna was the only prisoner who sat in the seat where the pouch was found. (H. Tr. 70). He also noted that the visual inspection of the van after the petitioner was removed would not have led to discovery of the contraband at that time. (H. Tr. 70-71). As noted above, such factual findings are presumed correct, and they have not been rebutted by clear and convincing evidence. Moreover, these facts form a sufficient basis from which the jury could infer that the cocaine contained in the pouch belonged to Mr. Luna.
Justice Atlas went on to determine that the drugs recovered were relevant. They corroborated the testimony that Mr. Luna had provided tinfoil packets of cocaine to Mr. Arujo to sell and that he had sold some himself. (H. Tr. 73-74). Thus, the evidence was probative and was not offered merely to prejudice the petitioner. (H. Tr. 74-76). These legal determinations, while not subject to the presumption of correctness, certainly cannot be characterized as so erroneous as to deprive Mr. Luna of a fundamentally fair trial. The petitioner's due process claim therefore fails.
C. Sufficiency of the Evidence
Finally, the petitioner argues that there was not sufficient evidence to support his conviction. The standard for habeas corpus review of the sufficiency of the evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal quotations and citations omitted). A petitioner may be granted federal habeas corpus relief only "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." Jackson v. Virginia, 443 U.S. 307, 324 (1979). Furthermore, a habeas court is required to consider the trial evidence in the light most favorable to the state and construe all possible inferences in its favor. United States v. Salerno, 868 F.2d 524, 530 (2d Cir. 1989); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir. 1988). In this regard, the jury is "exclusively responsible for determining a witness's credibility."Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)). The court must defer to the jury's resolution of any conflicts in the testimony and its assessment of the witness's credibility. Jackson, 443 U.S. at 319; United States v. LeRoy, 687 F.2d 610, 616 (2d Cir. 1982); see also Herrera v. Collins, 506 U.S. 390, 401 (1993) (Jackson inquiry asks only whether decision to convict was rational, not whether it was correct).
This claim was never advanced in the state courts and is therefore unexhausted. However, the respondent has not requested that the petition be dismissed on exhaustion grounds, and a claim may be denied notwithstanding a failure to exhaust. 28 U.S.C. § 2254(b)(2).
In this case, there was ample evidence supporting Mr. Luna's conviction. A police officer testified to seeing him engage in two hand-to-hand transactions, after which the ultimate purchaser in each case was arrested in possession of tinfoils of cocaine. Narcotics packaged in the same way were then found in the seat of the police van where only the petitioner had sat, and when confronted with this evidence, he said, "I'm fucked," implying his guilt.
At trial, defense counsel attacked the ability of the surveillance officer to see clearly the events he testified to, but the jury was entitled to credit the officer's testimony. Similarly, the jury could rationally accept laboratory reports concerning the drugs recovered from Ms. White and Ms. Woodcock even though the evidence itself had been lost. And, as discussed above, the jury was entitled to find that the cocaine recovered from the police van belonged to Mr. Luna and therefore corroborated the testimony against him. A rational jury therefore could have determined that the petitioner was guilty beyond a reasonably doubt.
Conclusion
For the reasons set forth above, I recommend that Mr. Luna's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey, Room 1950, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.