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August 2, 1996

TROY ROBINSON, Petitioner,

Andrew J. Peck, United States Magistrate Judge. HONORABLE JOHN E. SPRIZZO, United States District Judge.

The opinion of the court was delivered by: PECK

TO THE HONORABLE JOHN E. SPRIZZO, United States District Judge:

 Petitioner Troy Robinson, also known as Brian Dealle, seeks a write of habeas corpus, alleging that: (1) seven vials of crack cocaine seized from him as evidence should have been suppressed, because the "testimony of the arresting officers was patently tailored to nullify constitutional objections" (Petition for Writ of Habeas Corpus, dated 12/5/95 ["Petition"], P 12(A)); and (2) the evidence presented by the prosecution was insufficient to prove his intent to sell crack cocaine (Petition P 12(B)). For the reasons set forth below, I recommend that Robinson's petition for a writ of habeas corpus be denied.


 Robinson's Arrest

 On May 23, 1990, Police Officer Rudolph Gadson was working as a back-up member of a "Tactical Narcotics Team," supervised by Sergeant Michael Joyce, near West 142nd Street and Hamilton Avenue in Manhattan. (Mapp Hearing ("MH"), 11/15/90 at 9-10; Trial Transcript, dated 5/10/91 to 5/17/91 ["Tr. 1"], at 340-42, 392-94.) The team arrested James Gill in an unrelated narcotics transaction in front of 509 West 142nd Street. (Tr. 1 at 42-54, 342-50, 398.) The various officers estimated the time of Gill's arrest as between 6:15 and 7:00 p.m. (MH 11/15/90 at 44-45; Tr. 1 at 156, 417.) Officer Gadson walked Gill along W. 142nd Street to an unmarked police car parked on the corner of W. 142nd Street and Hamilton Avenue. (MH 11/15/90 at 13-14; Tr. 1 at 53, 347-50.)

 Officer Gadson observed Robinson on Hamilton Avenue talking with another man and engaging in what Gadson had "a hunch" was a drug transaction. (MH 11/15/90 at 15-16, 84; Tr. 1 at 350-53, 371-79, 449-58.) There is conflicting evidence as to when Officer Gadson saw Robinson's drug transaction and when he told his supervisor, Sergeant Joyce, about what he had seen. At a Mapp hearing held on November 15, 1990, Gadson stated that he first saw Robinson while walking Gill to the police car. (MH 11/15/90 at 16, 44.) At the February 8, 1991 Mapp hearing, Sergeant Joyce testified that Officer Gadson told him he had observed another drug sale on the way to arresting Gill or while they were processing Gill's arrest, but Sergeant Joyce did not remember the precise moment at which Officer Gadson told him of the second sale. (MH 2/8/91 at 11-12, 17, 25-26.) Sergeant Joyce additionally stated that he did not "have a vivid recollection of the case." (Id. at 18.) At the end of the February 8, 1991 hearing, Judge Atlas reconciled the discrepancies between Officer Gadson's and Sergeant Joyce's testimony at the hearings, stating that "there is nothing in Sergeant Joyce's testimony which is so inherently inconsistent with Detective Gadson's as to require me to reject Detective Gadson's testimony, and I, therefore, do not reject it." (MH 2/8/91 at 61-65.)

 There was also conflicting evidence as to how far Officer Gadson was from Robinson. Officer Gadson testified at the Mapp hearing that Robinson stood 40 to 50 feet away from him on Hamilton Avenue. (MH 11/15/90 at 16.) At trial, however, Officer Gadson approximated the distance between him and Robinson as 30 feet. (Tr. 1 at 372, 457.) Robinson's counsel cross-examined Officer Gadson about this discrepancy. (Tr. 1 at 457-58.) Detective Byron McLean, another member of the Narcotics Team, also testified that Robinson stood about 30 feet from the corner of 142nd Street and Hamilton Avenue, where Officers Gadson was located. (Trial Transcript dated 5/21/91 to 5/23/91 ["Tr. 2"] at 91-92.) The testimony of a defense witness, Louis Michael Joyner, estimated the distance as about 15 feet. (Tr. 2 at 170-73, 177, 198.)

 Officer Gadson testified that he saw an unidentified man hand money to Robinson. (MH 11/15/90 at 16-17; Tr. 1 at 353, 377-78.) Robinson then reached into his jacket, removed four small objects with red caps, which Officer Gadson believed to be crack cocaine vials, and gave them to the other man. (MH 11/15/90 at 16, 18-20; Tr. 1 at 352-53, 487-88, 502-03.) Officer Gadson further testified that he could see Robinson dropping the vials from his fist one by one, "like he was counting them," into the buyer's hand. (MH 11/15/90 at 59; Tr. 1 at 378-79.) Officer Gadson admitted that in the initial criminal complaint he referred to a vial, not four vials. (MH 11/15/90 at 70-73; Tr. 1 at 499.)

 The buyer then began to walk south on Hamilton Avenue, toward the police officers, but crossed the street and fled north upon seeing the police officers. (MH 11/15/90 at 20-21, 60-69; Tr. 1 at 353-56, 460-63; Tr. 2 at 122.) Sergeant Joyce instructed Officer Hernandez to chase the buyer and Officer Gadson to apprehend Robinson. (Tr. 1 at 207-08, 356-57; Tr. 2 at 39, 61-62, 65-66.)

 Officer Hernandez ran after the buyer, but was unable to catch him. (MH 11/15/90 at 23; Tr. 1 at 357, 384; Tr. 2 at 40, 121-22.) Officer Gadson and Officer Hernandez described the buyer as a black male. (Tr. 1 at 463; Tr. 2 at 66.) On cross-examination, Officer Hernandez admitted that at a pre-trial meeting with defense counsel in the district attorney's office, Hernandez had indicated that the person he chased was a Hispanic male. (Tr. 2 at 66-69.) Officer Hernandez explained on redirect that at the pre-trial meeting he was mistakenly referring to a different chase at the same location, and that he had communicated his error to the assistant district attorney and defense counsel after the meeting. (Tr. 2 at 71-72, 85.)

 After leaving Gill in the custody of Sergeant Joyce and other police officers, Officer Gadson approached Robinson and placed him under arrest. (MH 11/15/90 at 60; MH 2/8/91 at 15; Tr. 1 at 195; Tr. 2 at 92.) Officer Gadson searched Robinson and retrieved money and seven red-topped vials containing a substance later determined to be crack cocaine. (MH 11/15/90 at 21-23, 86-87; Tr. 1 at 59-60, 76, 358, 366-67, 505-06; Tr. 2 at 26-27, 92-93.) Officer Gadson testified that the vials recovered were similar to the vials he saw Robinson give to the buyer. (Tr. 1 at 371.)

 At the Mapp hearing, Officer Gadson first testified that he saw and arrested Robinson at between 6:15 and 6:35 p.m., but upon reviewing his Daily Activity Report revised the time frame to between 6:35 and 7:05 PM. (MH 11/15/90 at 45, 47-48.) At trial, Officer Gadson placed the sighting and arrest of Robinson at closer to 7:00 p.m., having arrested Gill at between 6:45 and 7:00 p.m. (Tr. 1 at 156, 417.) Officer Gadson ...

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