Street, away from the corner of Hamilton Avenue, to where Joyce was standing. (Tr. 1 at 54, 195.) But Sergeant Joyce did not recall exactly when Officer Gadson told him about the Robinson transaction. (Tr. 1 at 284.) Officer Gadson testified at trial that as he was placing Gill in the car on 142nd Street and Hamilton Avenue, he looked north along Hamilton Avenue and saw Robinson. (Tr. 1 at 350-51.) He testified that he informed Sergeant Joyce of what he saw as he was placing Gill into the car. (Tr. 1 at 455.)
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 admitted on cross-examination to making a mistake at the Mapp hearing as to the precise time. (Tr. 1 at 422-27.)
Defense counsel argued that Officer Gadson mistook a friendly handshake by Robinson with an acquaintance, Louis Michael Joyner, for a drug sale, and that the police officers' lack of credibility also created reasonable doubt. (E.g., Tr. 2 at 259-62.)
Joyner testified for the defense that on the evening of May 23, 1990, he encountered his friend Robinson on Hamilton Avenue between 142nd and 143rd Streets. (Tr. 2 at 137-44.) After stopping to speak with Robinson north of 142nd St., Joyner gave Robinson a "pound", or handshake, and continued walking south along Hamilton Avenue to go to a grocery store. (Tr. 2 at 144-46, 173.) Joyner was stopped and searched by a police officer. (Tr. 2 at 145-47.) The police officer let Joyner go, and Joyner continued to walk south. (Tr. 2 at 147, 149, 199-200.) Joyner saw the police search Robinson. (Tr. 2 at 180-81, 206.)
Robinson was found guilty on May 23, 1991 of criminal possession of a controlled substance in the third degree, in violation of New York Penal Law § 220.16(1).
(Tr. 2 at 370-72; see Petition P 4.) Robinson was sentenced as a predicate felon to a term of four and one half to nine years in prison. (Sentencing Tr. dated 5/19/92 at 14; see Petition P 3.)
Robinson appealed his conviction, alleging that: (1) the drugs seized from him as evidence should have been suppressed because Officer Gadson's testimony that he observed the drug sale from a distance of 40 to 50 feet was incredible as a matter of law; and (2) his intent to sell drugs was not proven beyond a reasonable doubt, as the police testimony was contradictory and incredible. (Petition Appendix: Brief for Defendant-Appellant to App. Div., dated 8/94, at 2.)
On April 11, 1995, the Appellate Division, First Department, affirmed Robinson's conviction. People v. Deale, 214 A.D.2d 350, 625 N.Y.S.2d 493 (1st Dep't 1995). On June 19, 1995, the New York Court of Appeals denied leave to appeal. People v. Dealle, 86 N.Y.2d 734, 655 N.E.2d 711, 631 N.Y.S.2d 614 (1995).
Presently before the Court is Robinson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Robinson has exhausted his state remedies as to these claims, and thus the Court will consider his petition on the merits. 28 U.S.C. § 2254(b).
I. THE COURT IS PRECLUDED FROM REVIEWING ROBINSON'S FOURTH AMENDMENT SEARCH AND SEIZURE CLAIM
Robinson's first claim challenges the propriety of the search and seizure of evidence leading to his subsequent conviction. (Petition, P 12(A).) Robinson questions Officer Gadson's basis for probable cause for his arrest and search, and points out discrepancies between Officer Gadson's and Sergeant Joyce's testimony at the Mapp hearing and at trial. (Id.) Because this claim alleges a Fourth Amendment violation, federal habeas review of the claim is precluded:
Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at the trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.
Stone v. Powell, 428 U.S. 465, 494-95, 96 S. Ct. 3037, 3052-53, 49 L. Ed. 2d 1067 (1976); accord, e.g., Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987).
Robinson does not contend that the State denied him an opportunity to litigate the search and seizure issue. Robinson had the opportunity to litigate this claim at the state level, and did so vigorously. He had two pretrial Mapp suppression hearings. (MH 11/15/90 & 2/8/91.) At trial, in his opening statement, Robinson's attorney specifically mentioned the inconsistencies in the police testimony. (Tr. 1 at 20-22.) Defense counsel cross-examined Officer Gadson and Sergeant Joyce at length at trial to bring out the discrepancies. (E.g., Tr. 1 at 139-70, 175-271, 287-311, 386-504.) Defense counsel reiterated this claim in his closing argument. (Tr. 2 at 253-98.) Defense counsel also moved to reopen the Mapp suppression hearing during the trial outside the jury's presence. (Tr. 1 at 510-60.) Robinson also raised the suppression issue before the Appellate Division on direct appeal. See People v. Dealle, 214 A.D.2d at 350, 625 N.Y.S.2d at 493.
Because Robinson fails to prove or even allege that the State did not provide him the opportunity to fully and fairly litigate his Fourth Amendment claim, that habeas claim should be dismissed.
II. THE EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO PROVE ROBINSON'S INTENT TO SELL DRUGS
Robinson's second habeas claim contends that his intent to sell drugs, a requisite element of NYPL § 220.16(1), was not proven beyond a reasonable doubt. (Petition, P 12(B).) To support this claim, Robinson asserts that Officer Gadson's testimony was implausible and contradictory. (Id.) A review of the testimony, however, leads to the conclusion that a reasonable jury could have found Robinson guilty beyond a reasonable doubt of possession of crack with intent to sell.
"The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt . . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 -- if the settled procedural prerequisites for such a claim have otherwise been satisfied -- the applicant is entitled to habeas corpus relief 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 doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.
Petitioner Robinson bears a "very heavy burden":
The standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.