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GRANT v. ABRAMS

March 28, 1984

EDWARD GRANT, Petitioner, against ROBERT ABRAMS, Respondent.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

 This petition for a writ of habeas corpus is brought by a state court probationer pursuant to 28 U.S.C. § 2254. Petitioner, Edward Grant, challenges his sentence on two grounds: (1) that the trial court admitted evidence which arose after the crimes charged in the indictment, and (2) that the trial court introduced the testimony of petitioner's co-defendant in violation of the Bruton Rule. I find both grounds without merit and dismiss the petition.

 FACTS

 While posing as a clerk as part of an undercover drug operation at Bellevue Hospital, Police Officer Catherine DeLaRionda purchases thirty grains of cocaine from a hospital employee, Issac Blaine, on November 3, 1977. DeLaRionda electroncially recorded this and several other transactions. One week later, when DeLaRionda indicated her desire to purchase more cocaine, Blaine referred her to the petitioner. Record at 73-74.

 On November 15, 1977, Grant sold DeLaRionda one-eighth of an ounce of cocaine which he delivered to her the next day in exchange for $350. Record at 83-85. DeLaRionda also approached Grant on November 22, 1977, to arrange for the purchase of some pills. Grant, however, informed the police officer that he was unable to obtain them at that time.

 The Department of Investigation ordered DeLaRionda to discontinue her investigation of grant on November 23, 1977. Grant, however, made several further attempts to sell cocaine to DeLaRionda, without any initiation by the undercover officer. Finally, on March 14, 1977, Grant appeared at DeLaRionda's office and called her into the hall. There he informed her that he had received a new shipment of cocaine, and he offered her a sampling of the drug. In addition, the recorded conversation reveals that Grant advised DeLaRionda that she could recover her investment in the cocaine more easily if she diluted it twice. Record at 195-197. On March 19, 1978, DeLaRionda completed her assignment at Bellevue Hospital without making any further drug purchases from the petitioner. Record at 202.

 Grant was convicted of criminal possession of a controlled substance in the fifth and seventh degrees and criminal facilitation in the first degree. The Supreme Court of New York County sentenced him to five years probation.

 On April 5, 1983 the Appellate Division, First Department affirmed Grant's conviction without opinion, and leave to appeal was denied by the Court of Appeals on July 5, 1983. Grant filed this petition for a writ of habeas corpus with the pro se office on December 1, 1983. Both grounds raised by Grant have been properly exhausted in the state courts.

 DISCUSSION

 The first ground of Grant's petition for habeas corpus review is that the state introduced evidence of statements that he had made after the crimes charged in the indictment, and that this introduction violated the Constitution. The trial record demonstrates, however, that petitioner did not make a contemporaneous objection to the introduction of these statements at trial. When Grant attempted to raise this first ground before the Appellate Division, the state responded by arguing that he was procedurally barred. State procedural law generally bars a defendant from raising alleged errors on appeal that the defendant failed to object to at trial. See People v. Thomas, 50 N.Y.2d 467, 471-474, 407 N.E.2d 430, 429 N.Y.S.2d 584 (1980); N.Y. Crim. Proc. Law § 470.05(2).

 The Appellate Division affirmed Grant's conviction without opinion. By the Appellate Division's summary affirmance, this court should infer that the conviction was affirmed on procedural grounds. See Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied, 459 U.S. 849, 103 S. Ct. 109, 74 L. Ed. 2d 97 (1982). An affirmance on procedural grounds precludes habeas corpus review, "since there was an adequate and independent state ground for affirming the conviction, unless appellant can show cause for failure to object and prejudice from the alleged constitutional violaton." Edwards v. Jones, slip. op. at 89 (2d Cir. Nov. 1, 1983) (citing Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977)). Grant has suggested neither cause for failure to object to the introduction of this evidence nor prejudice from the alleged constitutional violation, and I cannot discern any. Therefore, habeas corpus review is denied on this issue.

 Grant's second ground for habeas corpus review is that the trial court admitted inculpatory statements by a co-defendant who did not testify at trial and that this violated the Bruton rule and the Sixth Amendment. See Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). In this instance, Grant's counsel made a contemporaneous objection to the introduction of Blaine's hearsay statements, but the trial court received them, "subject to connection, subject to a motion to strike later on." See Record at 74. Although petitioner's counsel did not subsequently make this motion to strike, I find Grant's initial objection preserved review of his second claim. Therefore, I will proceed to the merits of Grant's second claim.

 Bruton protects a defendant's Sixth Amendment right to confrontation by prohibiting the introduction of a co-defendant's inculpatory statements when the co-defendant is unavailable for cross examination. 391 U.S. at 137. In certain circumstances, however, the court may admit the hearsay statements provided they bear some "indicia of reliability." See Ohio v. Roberts, 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). Such reliability "can ...


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