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VELEZ v. NEW YORK

April 3, 1996

JOSE VELEZ, Petitioner, against PEOPLE OF THE STATE OF NEW YORK, Respondent.


The opinion of the court was delivered by: ORENSTEIN

 ORENSTEIN, United States Magistrate Judge:

 Petitioner Jose Velez, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 7, 1990, Velez was found guilty after a jury trial of two counts of burglary in the second degree (N.Y. Penal Law § 140.25(2)), under indictment number 843/89. On June 14, 1990, Petitioner entered a plea of guilty to an unrelated charge of attempted burglary in the second degree (N.Y. Penal Law §§ 145.25(2) and 110.00), under indictment number 1231/89. He was sentenced as a prior felony offender on July 19, 1990, to two concurrent terms of imprisonment of six to twelve years for the crimes of burglary in the second degree, and to a two-and one-half to five-year term on the attempted burglary conviction, to run concurrently with the burglary sentences. The Appellate Division affirmed the judgments of conviction, People v. Velez, 188 A.D.2d 670, 592 N.Y.S.2d 270 (2d Dep't 1992), and the Court of Appeals denied Petitioner leave to appeal. People v. Velez, 81 N.Y.2d 894 (1993).

 On February 1, 1995, Petitioner was paroled. He remains on parole only on the judgments of conviction under indictment number 843/89. His sentence for attempted burglary in the second degree under indictment number 1231/89 has expired.

 In his application for collateral relief, petitioner raises a number of claims. First, he contends that his guilty plea to the attempted burglary charge was unlawfully induced, or, in the alternative, was made without an appreciation of the nature of the charge or the consequences of the plea. Second, he asserts that his convictions on the burglary charges were obtained by the use of evidence secured pursuant to an unlawful arrest. Third, Petitioner maintains that the prosecution used evidence at the trial that was brought to light by an unconstitutional search and seizure. Last, he alleges that his counsel's performance was ineffective, stressing that his trial attorney failed to advise him of his right to appear before the Grand Jury, waiving his right of appearance without his prior approval, and also erroneously failed to file certain pre-trial motions, including one for dismissal of the burglary charges pursuant to the New York speedy trial statute.

 The Court has reviewed carefully the submissions of the parties, as well as the full record of proceedings in the state courts. For the reasons discussed herein, this Court reports and recommends that the petition be dismissed in its entirety.

 BACKGROUND

 Petitioner's trial, before the Honorable Thomas V. Mallon in Suffolk County Court, was held from June 4 through June 7, 1990. At the trial, the prosecution introduced evidence to show that on May 23, 1989, at approximately 12:30 p.m., Ms. Ellen Brown of 97 Lakeway Drive, North Babylon, New York, saw an unfamiliar automobile parked adjacent to 93 Lakeway Drive. (Tr. at 169, 186-87.) (testimony of Ellen Brown). *fn1" Ms. Brown observed the automobile from a window in her house that was approximately 100 to 115 feet away. Id. at 188, 193.

 Shortly thereafter, as the car passed her house and turned the corner, Brown noticed that the car's rear license plate was covered with a piece of paper or cloth. Id.. at 169, 198-99. At that point, she telephoned the police to report a "suspicious" vehicle. Id.. at 169, 176. Ms. Brown's house faced both Hilltop Avenue and Lakeway, which were separated by woods. Id. at 169, 186. Five minutes later, the car reappeared and parked in the same place across the street from Ms. Brown's residence. Id. at 170. At that time, a man got out of the vehicle, opened the hatchback, and disappeared into the woods between Hilltop and Lakeway for a minute or two. Id. at 190. The man was dressed in a white tee shirt and tan pants. Id. at 173.

 When the man emerged from the woods, he opened the driver's door and retrieved a tan jacket. Id. at 173, 190. He then put the jacket on, closed the door and hatchback, and proceeded to walk westward on Lakeway Drive. Id. at 170-71. When the man reached the residence located two houses west of Ms. Brown's, he turned up the driveway, and out of Brown's view. He reappeared four or five minutes later. Id. at 171. At that point, the man headed back eastward, and walked up the driveway at 97 Lakeway Drive. He knocked on Brown's door and rang her doorbell. Brown, who looked at him through the peephole, did not answer the door. Id. at 171-72. After spending some five minutes at Brown's door, the man left. Id. at 172, 195. He continued walking eastward from Brown's house, in the direction of his car. Id. at 172, 196.

 After losing sight of the man for about five minutes, Ms. Brown went outside to retrieve her mail. Id. at 172, 197. She again espied him walking west toward his car. Id. at 173, 197. Brown then went inside and locked her door. When she looked out her window ten minutes later, the car was gone. Id. at 173. Ms. Brown made a positive courtroom identification of Petitioner as the man she witnessed engaging in the foregoing activities. Id. at 176-77.

 The prosecution's evidence also showed that police officers Charles Peck and Steven Bluethgen received a wire transmission that a suspicious vehicle, a blue Toyota, was observed in the area of Hilltop and Lakeway. (Tr. at 207.)(testimony of police officer Charles M. Peck). When the officers turned down Hilltop heading eastbound, they saw a blue Toyota parked on the wrong side of the street pull away from the curb. Officer Peck put his flashing lights on and pulled the car over. Petitioner opened his door before he stopped his car and stopped the car when the police car stopped. Petitioner got out of his car as the officers approached. Id. at 208. Officer Peck went to the driver's side of Velez's vehicle, while his partner walked to the passenger side. When asked to produce identification, Velez gave Officer Peck a photo I.D. with the name "Jose Rivera" on it. Petitioner had no driver's license and could not produce any documentation evidencing ownership of the car. Id. at 208-09.

 When Officer Bluethgen approached Petitioner's car, he looked through the hatchback window and saw a television set situated upside down, as well as what appeared to be a white typewriter behind the television. He also spotted a black vinyl camera bag sitting on the front passenger seat. Bluethgen asked Petitioner whether he had any other identification in the camera bag, and Velez handed over certain papers from the bag. None of the papers contained Mr. Velez's name. (Tr. at 232-33.)(testimony of police officer Steven Bluethgen). Subsequently, Officer Bluethgen noticed the tape holder of a videocassette recorder ("VCR") sticking out of a white pillow case. When asked whose VCR it was, Petitioner stated that it was his mother's. Id. at 233. After Bluethgen glimpsed a credit card from the black bag with a woman's name on it, he asked Velez if he knew her. Velez replied that it was his aunt that he had just visited, although he could not state where she lived. Id. at 239. The woman apparently had been dead for a year or two. Id. at 239. At that moment, Petitioner proceeded to push Officer Peck and run down the street. Id. at 233. Officer Peck chased after him on foot and caught up with Velez one-half block up the street. A "violent struggle" ensued, with Petitioner kicking and punching Peck. Peck eventually subdued Velez and placed him under arrest for certain traffic infractions and for physically attacking him. Id. at 210, 226.

 Shortly thereafter, the detectives were notified that a resident of 88 Hilltop had returned home, and responded back to that address. (Tr. at 287.)(testimony of Detective Bryan Burton). Detective Grant spoke with Desmond P. Ellis, who resided in the downstairs apartment, while Detective Burton took photographs and searched for fingerprints. Id. Mr. Ellis testified that when he returned home that day, his quarters had been "ransacked" and things were missing from the apartment. (Tr. at 328.)(testimony of Desmond Paul Ellis). After Detective Burton inventoried the contents of the blue Toyota that Velez had been driving, Mr. Ellis came to the precinct to view the items found in the car. He identified a necklace, earrings, VCR, VCR cover, camera, television, and black bag, in addition to a box filled with Susan B. Anthony silver dollars, Canadian coins, Jamaican coins, and Traveler's Checks he had endorsed. Id. at 331-35. Mr. Ellis did not give Velez permission to take the property from his home. Id. at 336.

 Ivanhoe Lattray, the owner of the house at 88 Hilltop who lived in the upstairs apartment, testified that when he returned home at 3:00 p.m. on May 23, 1989, the apartment looked like a "hurricane." (Tr. at 352.)(testimony of Ivanhoe Lattray). Lattray also went to the police precinct to review the items located in Velez's car. Id. at 345. He identified Bible cassette tapes, a tape recorder, a pillow case, a VCR, and his wife's watch and wedding ring. Id. at 345-47. Mr. Lattray testified that he did not give Petitioner permission to either enter his home or take any of these personal possessions. Id. at 344. Petitioner did not testify on his own behalf at the trial. Based on the foregoing evidence, Petitioner was convicted on June 7, 1990, of two counts of burglary in the second degree.

 Velez appealed the judgments of conviction to the New York State Supreme Court, Appellate Division, Second Judicial Department. On direct appeal, Petitioner argued that his guilt had not been established beyond a reasonable doubt. He further maintained that he had been denied a fair trial on the grounds that: (1) evidence introduced to obtain his conviction was secured pursuant to an unlawful arrest; (2) statements involuntarily made by him subsequent to his arrest were admitted into evidence; (3) the show-up he was subjected to violated his due process rights in that it was unduly suggestive; (4) he was denied his statutory right to testify before the Grand Jury; (5) the trial judge's Sandoval ruling, which allowed Velez's prior felony convictions into evidence, was unduly prejudicial; (6) evidence of uncharged crimes, along with a pair of gloves and a screwdriver recovered from the blue Toyota, were improperly admitted; (7) a mistrial should have been declared due to the occurrence of certain "highly prejudicial acts" at trial; (8) the prosecution's summation exceeded the bounds of fair comment; and (9) his trial counsel ineffectively represented his interests. In addition, Velez contended that his sentences on both of the burglary convictions, as well as the attempted burglary conviction, were excessive.

 On December 28, 1992, the Appellate Division unanimously affirmed the burglary convictions. In an opinion reported at People v. Velez, 188 A.D.2d 670, 592 N.Y.S.2d 270 (2d Dep't 1992), the Appellate Division concluded that Velez's guilt indeed had been proven beyond a reasonable doubt. See id. at 270. They also found that the reasonable suspicion the police had for stopping Velez in the first instance rose to the level of probable cause prior to his subsequent arrest, thereby making the arrest lawful. See id. Furthermore, the Appellate Division ruled that the show-up identification of Velez by Brown was proper. Id. The court ruled Petitioner's remaining contentions as "either unpreserved for appellate review or without merit." Id.

 On March 25, 1993, the New York State Court of Appeals denied Velez's application for leave to appeal, People v. Velez, 81 N.Y.2d 894 (1993), which led to the filing of the instant petition on August 20, 1993.

 The procedural history of this petition having been set forth above, the Court now turns to address whether it may reach the merits of Petitioner's claims.

 DISCUSSION

 I. Availability of Federal Judicial Review of the Merits of Petitioner's Claims

 A. The "In Custody" Requirement

 For a federal court to exercise jurisdiction over a habeas corpus petition, the applicant seeking the writ must be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1988). A habeas petitioner need not be confined physically to satisfy the "in custody" requirement. Maleng v. Cook, 490 U.S. 488, 491, 104 L. Ed. 2d 540, 109 S. Ct. 1923 (1989)(per curiam). All petitioners whose convictions cause them to suffer substantial restraints not shared by the public generally come within the statute's purview, and parole has long been held to constitute such a restraint. See Jones v. Cunningham, 371 U.S. 236, 242-43, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. ...


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