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COLON v. JONES

December 31, 1986

EDWARD COLON, Petitioner,
v.
E. W. JONES and ROBERT ABRAMS, Respondents



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Edward Colon petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. ┬ž 2254. He seeks relief from his New York State conviction by a jury, on June 20, 1979, for selling heroin on May 12, 1978 and May 26, 1978 to an undercover police officer in Manhattan.

 The first sale involved slightly less than one ounce of heroin, which Colon sold to an undercover agent of the New York Drug Enforcement Task Force. On May 26, Colon accepted $3200 from the agent in exchange for 1.7 ounces of heroin. The undercover agent had been introduced to Colon and Colon's co-defendant, Gilberto Rivera, by a registered confidential informant for the Drug Enforcement Task Force.

 Colon was convicted of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the fifth degree for the May 12 sale. *fn1" He was convicted of first degree criminal sale and second degree criminal possession of a controlled substance for the May 26 sale. He was sentenced to from fifteen years to life for first degree criminal sale, and to three concurrent terms of from six years to life on the remaining convictions.

 Colon appealed his conviction to the New York Appellate Division, arguing four grounds for relief: (1) that the evidence at trial was insufficient to prove that the May 26 sale of two bags of heroin constituted a single sale of more than one ounce; (2) that the trial court deprived petitioner of his constitutional right to trial by jury by determining that as a matter of law, the acts of May 26 constituted a single sale of heroin; (3) that the prejudicial impact of testimony by certain witnesses deprived petitioner of a fair trial; and (4) that petitioner's constitutional right to due process of law was violated by the court's erroneous jury charge regarding the defense of agency.

 Colon's conviction was affirmed by the Appellate Division on December 23, 1980 and leave to appeal to the New York Court of Appeals was subsequently denied. *fn2" Colon then petitioned this Court for habeas relief, arguing the same grounds set forth in his state appeal. *fn3"

 DISCUSSION

 A. The May 26 Sale

 The first two issues of Colon's petition center around the May 26 drug sale of two packages of heroin to the undercover agent. The record reveals that, on May 24, 1978 the undercover agent told the registered confidential informant to contact Colon's co-defendant, Rivera, to arrange the purchase of two ounces of heroin. On May 26, 1978 the agent met with Rivera. The two men (followed by members of the agent's backup team), then proceeded to a location in the Bronx. After Rivera was unable to locate heroin to sell to the agent, the two men drove to a nearby street, where they found Colon. Colon spoke to Rivera, and then informed the agent that two ounces of heroin had been ordered for him, at $1600 each. Colon told the agent to return within an hour to make the buy.

 The agent returned, and found Rivera and Colon waiting. Colon left the agent with Rivera, returning one-half hour later with a package allegedly containing one ounce of heroin. Colon then offered the agent the second ounce of heroin. As the agent spoke to Colon, the agent observed an unidentified man standing on the street, talking to Rivera. After the agent agreed to purchase a second ounce of heroin, Colon called to the unidentified man, who handed Colon a package. When Colon handed that package to the agent, the agent paid Colon $3200 for both packages of heroin.

 Colon counted the money, and handed $2400 to the unidentified man. The agent then left the scene. Colon and Rivera were arrested several months later, in September, 1978, after the Drug Enforcement Administration drug investigation had concluded.

 Colon now argues that the evidence at trial was insufficient to prove a single sale on May 26, and that the trial judge invaded the province of the jury by determining that, as a matter of law, the sale of the two packages constituted a single sale. The relevance of these two claims revolves around the fact that, at the time of Colon's trial, proof of the sale of at least one ounce of heroin was required by New York State statute in order to sustain a first degree conviction for sale of a controlled substance. Since the aggregate weight of the packages was determined to be 1.7 ounces, it is possible that neither package weighed one ounce. Had each package weighed less than the requisite ounce and been the subject of a separate sale, Colon could not have been charged with a first degree felony. The Court, however, finds both of Colon's claims to be completely without merit.

 Regarding Colon's insufficiency of evidence claim, when a petitioner challenges his state criminal conviction on this ground in a federal habeas petition, he is entitled to habeas 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 ...


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