Opinion
9:97-CV-1901 (TJM)(GLS)
November 30, 2000
Rupet Neish, St. Mary Jamaica, West Indies, Annotto Bay, Petitioner, Pro Se.
Eliot Spitzer Office of the Attorney General, Keith E. Kammerer, Esq., Ass't Attorney General, Albany, NY, for Respondent.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Rupet Neish ("petitioner" or "Neish") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on December 30, 1997. This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing the Office of the Attorney General for the State of New York ("Attorney General") to file a response to Neish's petition. Docket No. 3.
The Attorney General filed his response and a memorandum of law in support of his request that this court deny the petition. Docket Nos. 9 and 10. On February 23, 2000, the Clerk received a change of address from petitioner which indicated that he had been released from prison. Docket No. 29. Since that notice, petitioner has advised the court that he resides in the West Indies. Docket No. 30.
II. Discussion
A. Effect of Petitioner's Release from Prison
Initially, the court notes that the substantive claims relating to the conviction do not appear to be moot by Neish's release. Petitioner filed his habeas petition while he was in custody, and the collateral consequences which the court may presume still exist as a result of his conviction do not render this matter moot. Spencer v. Kemna, 523 U.S. 1, 12 (1998) ("it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40 (1968)); Binder v. Szostak, 1997 WL 176353 (N.D.N.Y. Apr. 11, 1997) (Pooler, D.J.) (citations omitted). Therefore, the court will review the substance of the petition.
B. State-Court Proceedings
On February 10, 1994, a detective for the Village of Endicott Police Department, Edward R. McCulskey ("Detective McCulskey"), applied for and obtained warrants to search two apartments located in a complex at 7 1/2 Adams Avenue in the Village of Endicott. Trial Tr. of Rupet Neish (10/26/94) ("Tr."), testimony of Detective McCulskey, at 4-5. These warrants which were executed on February 10th, authorized the search of these apartments and any individuals located therein. Id. at 9. In searching the upstairs apartment which was being rented by Celeste Mohamed ("Mohamed"), police discovered Neish, searched him and discovered cocaine in his underwear. Id. at 11. In executing the warrant on the downstairs apartment, the officers came upon its tenant, Ronald Hardy ("Hardy"), and found 30 vials of cocaine, as well as numerous plastic bags that also contained cocaine. Id. at 26.
The pages of the trial transcripts are separately numbered for each witness.
The search of this apartment also uncovered 41 vials of cocaine. Id. at 13.
Petitioner was arrested and given his Miranda warning. He then provided the Endicott police with a written statement in which he acknowledged buying the drugs that were found on his person so he could "use it and give a little here and a little there away at this party." Statement of Rupet Neish to the Endicott Police Department (2/10/94) ("February Statement") at 2.
Miranda v. Arizona, 384 U.S. 436 (1966).
Neish and Hardy were each indicted for criminal possession of a controlled substance ("CPCS") in the first and third degrees in connection with the drugs found in Hardy's apartment ("Class A felony charges"). Neish was also charged with CPCS in the third and fourth degrees in connection with the narcotics found on his person. People v. Neish, 232 A.D.2d 744, 745 (3d Dep't 1996). A pre-trial motion to suppress the February Statement and the seized cocaine was denied by the Hon. Patrick H. Mathews. Id.
Two days before his trial was to begin, Neish requested that the trial court, inter alia, allow Neish to represent himself pro se at the criminal trial. Id. at 746. After an extensive in camera hearing held on October 21, 1994, between Judge Mathews, Neish's attorney, Joseph Cawley, Esq. ("Cawley"), and Neish ("October Colloquy"), the trial court denied Neish's request.
Neish was tried before a jury in Broome County Court before Judge Mathews, who dismissed the Class A felony charges after the close of proof due to insufficient evidence. The jury found Neish guilty on the two remaining counts. People v. Neish, 232 A.D.2d at 745.
After this verdict but prior to sentencing, Hardy was convicted after a bench trial held before Judge Mathews. During the course of the Hardy trial, a letter dated March 23, 1994, from Neish to Mohamed which contained admissions that Neish, and not Hardy, was primarily responsible for the cocaine found in Hardy's apartment, was admitted into evidence ("March Letter"). In sentencing Neish, Judge Mathews (who was aware of this letter as finder of fact in the Hardy trial) took into account the March Letter and sentenced Neish to six to eighteen years imprisonment on the conviction for CPCS in the third degree, and a concurrent term of two to six years on the charge of CPCS in the second degree.
Petitioner appealed the conviction to the Appellate Division, Third Department ("Appellate Division"). The Appellate Division unanimously affirmed, and the Court of Appeals denied Neish leave to appeal. People v. Neish, 89 N.Y.2d 927 (1996).
Petitioner asserts four Grounds in support of his petition. Neish argues that Judge Mathews improperly denied Neish's request to represent himself pro se at the criminal trial. The Second Ground contends that the trial court improperly took into consideration the March Letter in determining the sentence to be imposed on petitioner.
Neish next argues that the search warrant which led to his arrest was overbroad, invalid and not supported by probable cause. Finally, petitioner states that Judge Mathews improperly received into evidence an unredacted copy of Neish's February Statement, which contained evidence of an uncharged crime concerning Neish.
B. Merits of the Petition
(1) Ground One
In support of this Ground, petitioner alleges that, prior to the commencement of trial, he advised Judge Mathews "in unequivocal terms that he wish[ed] to proceed pro se." Pet. at unnumbered p. 8. Petitioner contends that "the trial Court dishonored [sic] Petitioner's properly invoked right, and erroneously denied Petitioner his unequivocally invoked right to proceed pro se." Docket No. 11 at 11-12. Respondent argues that petitioner's right to self-representation was not violated by the trial court.
A criminal defendant may waive his right to counsel by timely, unequivocally and intelligently requesting permission to proceed pro se. People v. Perry, ___ A.D.2d ___, 2000 WL 1673873, at *1 (2nd Dep't Oct. 30, 2000); Williams v. Bartlett, 44 F.3d 95, 100 (2nd Cir. 1994). A court must deny a request by a defendant for self-representation where his conduct vacillates on the issue or when he abandons the request altogether. Williams, 44 F.3d at 100 (citation omitted).
Respondent does not contend that Neish's request was untimely, rather he claims that because Neish's request was not unequivocal, the trial court properly denied his request.
During the October Colloquy, Neish advised Judge Mathews that he was dissatisfied with his attorney's representation. October Colloquy at 22. For example, Neish expressed his belief that his attorney should have been able to succeed in having the Class A felony charges dismissed prior to trial. Id. at 24. Judge Mathews informed petitioner that his attorney had already filed such a motion which was considered and denied by the court. Id. at 24, 25. Upon questioning by Judge Mathews as to his proposed defense, Neish stated that his defense would be his contention that he was not guilty, however, he was unable to articulate any strategy he would offer in support of this "defense." Id. at 39. Toward the end of the Colloquy, it became apparent that a principle reason for Neish's desire to represent himself related to the fact that his attorney did not wish to assert a defense Neish wished to present at trial. Id. at 49-50. When the judge assured Neish that his attorney would present this defense, Neish agreed to allow Cawley to represent him. Id. at 51, 54, 55.
He also indicated that he was not aware of the prosecution's function in the context of a criminal trial. Id. at 40.
In determining whether an individual seeks an unequivocal and intelligent waiver of his right to counsel, trial courts are to "undertake a sufficiently searching inquiry in order to be reasonably certain that a defendant appreciates the dangers and disadvantages of giving up the fundamental right to counsel." People v. Smith, 92 N.Y.2d 516, 520 (1998) (citations and internal quotations omitted). "When a record lacks the requisite searching inquiry or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective." Id. (citations and internal quotation omitted).
Petitioner contends that the trial court was "improperly pressur[ing] petitioner" during the October Colloquy. Pet. at unnumbered p. 8. However, it is apparent that the conduct to which petitioner refers was, in fact, the trial court undertaking the inquiry it was required to conduct in evaluating the propriety of Neish's request. Smith, 92 N Y2d at 520. Moreover, at the conclusion of the hearing, petitioner himself agreed that the best course of action was to have Cawley represent him. October Colloquy at 55.
In light of the fact that petitioner's request to represent himself was not unequivocal, Judge Mathews properly denied Neish's request, and he is not entitled to habeas relief on this theory.
(2) Ground Two
Ground Two contends that the trial court improperly considered the March Letter in determining Neish's sentence. Petitioner contends that by relying on this letter, Judge Mathews sentenced petitioner "in an unconstitutional manner." Docket No. 1 at unnumbered p. 9.
Judge Mathews clearly based the sentence in part on the March Letter. Judge Mathews noted that statements in that letter, when viewed in conjunction with the other evidence seized from Hardy's apartment, implicated Neish in the drugs found in that apartment. Sentencing Tr. at 8-13. Thus, the issue is whether the trial court's conduct violated petitioner's constitutional rights.
This included approximately eleven ounces of cocaine in a black duffle bag. Tr. testimony of Clifford E. Brant at 39.
Due Process requires that a defendant be afforded "notice of and an opportunity to respond to information to be considered by the sentencing court, in order that he not be sentenced on the basis of misinformation." U.S. v. Harris, 38 F.3d 95, 98 (2nd Cir. 1994) (internal quotation and citation omitted), cert. denied, 513 U.S. 1198 (1995); People v. Seplow, 226 A.D.2d 178, 179 (1st Dep't) ("[t]he standard for determining whether a sentencing has been fairly conducted 'is whether the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court'") (quoting People v. Perry, 36 N.Y.2d 114 (1975)), appeal denied, 88 N.Y.2d 969 (1996).
Judge Mathews provided Neish's counsel with a copy of the March Letter prior to sentencing, and he reviewed it and provided a copy to Neish. Sentencing Tr. at 7. At sentencing, Neish's counsel argued that this letter was "equivocal at best" and should not be a factor considered by that court in imposing sentence. Id. at 5-7. Thus, Neish's counsel clearly had both notice of, and an opportunity to respond to, the information contained in the letter prior to sentencing. Petitioner himself declined to offer any statement prior to sentencing, despite being afforded this opportunity by the trial court. Id. at 7. Additionally, the trial court expressly noted that petitioner had not been convicted of the Class A felony charges, and that, prior to his arrest, Neish had had a "clean record," factors which the trial court also considered in arriving at petitioner's sentence. Id. at 11, 12. Thus, the trial court simply took into account all of the relevant facts and circumstances surrounding the crimes of which Neish was convicted in determining the sentence which is consistent with both state and federal sentencing jurisprudence. See People v. LaVeglia, 215 A.D.2d 836, 837 (3rd Dep't 1995); U.S. v. Lee, 818 F.2d 1052, 1055 (2nd Cir.), cert. denied, 484 U.S. 956 (1987).
Since Neish and his counsel were aware that: (i) Judge Mathews would consider the March Letter in determining the sentence; (ii) Neish's counsel presented an argument to Judge Mathews stating Neish's position as to the relevance of the March Letter; and, (iii) Judge Mathews explicitly considered Neish's acquittal on the Class A felony crimes in determining the sentence, this court cannot find that the sentence imposed on Neish was unconstitutional, or that petitioner is otherwise entitled to relief on this Ground.
(3) Ground Three
In his next Ground for relief, Neish argues that the search warrant which led to his arrest was overbroad, invalid and not supported by probable cause. Pet. at unnumbered p. 10. Respondent argues that this claim is unavailable for review in this proceeding because petitioner was afforded the opportunity to fully and fairly litigate this claim in state court. Docket No. 10 at 11.
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Capellan v. Riley, 975 F.2d 67, 70 (2nd Cir. 1992) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)). The Second Circuit has noted that review of Fourth Amendment claims in habeas petitions may only be undertaken in one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective procedure, but the petitioner "was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citation omitted); Martinez v. Senkowski, 2000 WL 888031, at *7 (N.D.N.Y. June 28, 2000) (Scullin, C.J.). Thus, "[a] federal habeas court cannot review the merits of a Fourth Amendment claim merely because it might have decided the claim differently, but must focus its inquiry on the existence and application of the corrective [state] procedures themselves . . . ." Capellan, 975 F.2d at 71 (internal quotation and citation omitted).
New York provides criminal defendants an opportunity to fully and fairly litigate Fourth Amendment claims. See New York Crim.Proc.L. § 710; Capellan, 975 F.2d at 70 n. 1; Jackson v. Lacy, 74 F. Supp.2d 173, 176 (N.D.N.Y. Sept. 29, 1999) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge Ralph W. Smith, Jr.).
Petitioner availed himself of this opportunity and unsuccessfully sought to suppress the evidence. This issue was also raised on appeal. See Br. for Appellant by James Rothe, Esq. at 6.
Since petitioner was afforded a corrective procedure to redress his Fourth Amendment claim, federal habeas review is available only if the court finds that Neish was precluded from using this mechanism because of an "unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70. No breakdown is alleged by petitioner or apparent to this court after review of the record. Thus, petitioner has failed to establish that the search warrants were, in any way, invalid, and the court therefore recommends that Ground Three of Neish's petition be denied.
(4) Ground Four
In his final Ground, petitioner states that Judge Mathews improperly admitted into evidence an unredacted copy of his February Statement to the police. Neish appears to claim that the trial court's failure to redact the portion of this statement, which indicated that Neish bought and consumed $200.00 worth of cocaine just prior to his arrest, was unfairly prejudicial to his case and warrants the granting of his petition. Pet. at unnumbered p. 11, Docket No. 11 at 13.
At a criminal trial, all relevant evidence is admissible unless its admission violates some exclusionary rule. People v. Scarola, 71 N.Y.2d 769, 777 (1988). Relevant evidence can be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly mislead the jury. People v. Rosado, 273 A.D.2d 325 (2nd Dep't 2000) (emphasis added) (citation omitted).
Judge Mathews's ruling to admit an unredacted copy of petitioner's February Statement was clearly a discretionary evidentiary ruling. Habeas corpus claims alleging improper evidentiary rulings may be granted "only in the rare case where the petitioner can demonstrate that the erroneous evidentiary ruling deprived him or her of a fundamentally fair trial." DeLeon v. Hanslmaier, 1996 WL 31232 (E.D.N.Y. Jan. 19, 1996) (citing Taylor v. Curry, 708 F.2d 886 (2nd Cir.), cert. denied, 464 U.S. 1000 (1983)); see also, Richter v. Artuz, 77 F. Supp.2d 385, 392 (S.D.N.Y. 1999). To meet this burden, a petitioner must show that the ruling "'had a substantial and injurious effect or influence in determining the jury's verdict.'" Senor v. Senkowski, 1999 WL 689477, at *12 (E.D.N.Y. 1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)) (other citations omitted).
In this case, petitioner has not demonstrated that the disputed ruling influenced the jury's verdict in any way. Moreover, a review of the record reveals that there was ample evidence to support the jury's verdict, including the unchallenged portion of the February Statement and the testimony of Detective McCulskey, who testified that Neish was arrested with cocaine on his person in an apartment containing 41 vials of cocaine. Tr. testimony of Detective McCulskey at 13.
Since petitioner has not established that admission into evidence of an unredacted copy of his February Statement deprived Neish of a fundamentally fair trial, this court recommends that this Ground for relief be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Neish's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.