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MARTINEZ v. REYNOLDS

May 30, 1995

PABLO MARTINEZ, Petitioner, against EDWARD REYNOLDS, Superintendent, Mohawk Correctional Facility, Respondent,


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Pablo Martinez, proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1990, after a jury trial, of one count of Criminal Possession of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.18[1]), four counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[1]), one count of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39[1]), and one count of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09[1]). The petitioner is presently serving seven concurrent sentences, the longest of which is from five and one-half years to life.

 Petitioner asserts two distinct claims in his application for collateral relief. First, he argues that the trial record did not support a finding of his guilt beyond a reasonable doubt. Specifically, petitioner asserts that the prosecution failed to adduce sufficient evidence to prove that he exercised dominion or control over all the crack cocaine found in the grocery store/bodega at which he worked. Second, petitioner contends that he was denied a fair trial as a result of the trial court's refusal to give a circumstantial evidence charge to the jury.

 The Court has carefully reviewed the briefs of the parties, as well as the record of the state court proceedings. For the reasons discussed herein, the petition is denied in its entirety.

 BACKGROUND

 At petitioner's trial, held in May 1990, the prosecution introduced evidence to show that on November 28, 1989, petitioner sold four vials of crack-cocaine to an undercover police officer and had constructive possession over another 287 vials of crack-cocaine. On that day, petitioner was working at a small bodega/grocery store located at 148 Lewis Avenue in Brooklyn. (Tr. 5/21/90, at 306.) At approximately 6:40 p.m. that evening, an undercover police officer entered the vestibule of the bodega and observed a male Hispanic standing behind a cash register window wearing a gray and black plaid shirt, a turtle neck sweater, a gold chain, and a black cap with the words "Show Boat" written across it. (Tr. 5/17/90, at 164-65.) The area in which the man was standing was enclosed by three plexiglass walls separating him from the bodega's vestibule. (Id. at 164, 172.)

 Upon entering the bodega's vestibule, the undercover officer observed two customers standing in front of the cash register window opening. (Id. at 166.) The officer saw each customer place money through the window opening and observed the man behind the plexiglass window reaching beneath the register counter to place clear plastic, purple-capped vials on the counter top. (Id. at 165, 204-05.) The undercover officer did not hear any conversation between the two customers and the bodega employee. Moreover, although the undercover officer did hear voices coming from within the bodega, he saw no one else. *fn1"

 After the customers left the bodega, the undercover officer approached the window and handed over a marked twenty-dollar bill, without conversing with the bodega employee. The bodega employee then reached down beneath the counter and handed the undercover officer four clear plastic, purple-capped vials. (Id. at 167-169, 206) *fn2" The undercover officer took the vials and left.

 The undercover officer proceeded to radio Detective Doyle and Sergeant Rhoden, members of the arresting team, to inform them that a purchase of narcotics had been made and to describe who had sold him the drugs. (Id. at 171; 228.) Detective Doyle and Sergeant Rhoden entered the bodega and observed the bodega employee bending down beneath the cash register counter, with his arms out of their view. (Id. at 86, 234.) Detective Doyle arrested the employee, searched his person and recovered $ 254 in small bills. *fn3"

 Sergeant Rhoden and Detective Doyle conducted a search of the interior of the bodega and found four separate supplies of crack-cocaine vials. (Id. at 90-93, 244-247, 273.) Detective Doyle recovered fourteen vials of crack-cocaine, thirteen of which had purple caps and one of which had a green cap, from a brown paper bag stuffed into a box of soda straws on the cash register counter top. (Id. 90, 245.) Detective Doyle also found twelve vials of crack-cocaine, two of which had gold caps and ten of which had black caps, in a brown paper bag on the second shelf underneath the register counter. (Id. at 246, 267.) Sergeant Rhoden uncovered a third brown paper bag, which contained sixty-one purple-capped vials of crack-cocaine, placed between the radiator and the wall behind the register counter. (Id. at 90, 128-29, 246-247, 273.)

 Detective Doyle then observed a rectangular plywood platform with an opening on which the bodega employee had been standing. (Id. 90, 247, 263, 270-272.) Upon lifting some loose planks in the plywood platform with his hands, Detective Doyle retrieved two plastic bags approximately eight to ten inches beneath the opening, each containing one hundred vials of crack-cocaine. One bag had only purple-capped vials and the other bag had a combination of blue-capped and purple-capped vials. (Id. at 247, 263.) That evening, the undercover officer identified petitioner as the bodega employee who had sold him the four purple-capped crack-cocaine vials. (Id. at 96, 179.)

 The petitioner testified on his own behalf at trial and denied ever selling the four vials of crack-cocaine to the undercover police officer. (Tr. 5/21/90, at 308.) Petitioner further testified that he had just begun his employment at the bodega on the day of his arrest, that he had not seen crack-cocaine in the bodega and that he had not participated in any sale of crack-cocaine to customers. (Id. at 307, 322, 324.) Moreover, petitioner asserted that another employee always assisted him at the counter.

 Petitioner also claimed that there was no hole in the plywood platform on which he was standing at the time of his arrest. (Id. at 319.) He further insisted that even though he sold sodas to customers, he never gave straws to anyone, (Id. at 318), and that the reason he had so much cash on his person was that he had cashed his unemployment checks earlier that day. (Id at 321.) Additionally, petitioner testified that during his arrest, the bodega's plexiglass door was not rammed by the police but opened by him, (Id. at 322), and that he had not been behind the counter bending down at the time the police entered ...


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