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ATKINS v. MILLER

August 26, 1998

NATHANIEL ATKINS, Petitioner, against DAVID L. MILLER, Superintendent Eastern Correctional Facility, Respondent.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Petitioner Nathaniel Atkins was convicted in September 1994 on two counts each of Criminal Sale and Criminal Possession of a Controlled Substance in the Third Degree in violation of New York Penal Law §§ 220.39[1] and 220.16[1]. On October 18, 1994, Atkins was sentenced to concurrent indeterminate prison terms of eleven to twenty-two years for the convictions for the sales of controlled substance and lesser concurrent terms for the remaining convictions. Atkins is currently serving his sentence. The Second Department of the Appellate Division affirmed the conviction on appeal, People v. Atkins, 232 A.D.2d 648, 649 N.Y.S.2d 449 (2d Dept. 1996), and the New York Court of Appeals denied leave to appeal. People v. Atkins, 89 N.Y.2d 939, 655 N.Y.S.2d 890, 678 N.E.2d 503 (1997).

 Proceeding pro se, Atkins now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that the jury verdict was against the weight of the evidence, that the trial court erred in failing to sanction the government for its destruction of material in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), and that his trial and appellate counsel were ineffective. For the reasons set forth below, petitioner's petition for writ of habeas corpus is denied.

 BACKGROUND

 On July 1, 1993 around 7:30 p.m., an undercover narcotics officer investigating drug sales in the Washington Heights section of Newburgh, New York, Christopher Sager, was sitting in his vehicle, when he was approached by petitioner Nathaniel Atkins, who showed Sager a substance that he represented to be crack cocaine. After Sager determined that the substance was not crack cocaine and refused to accept it, Atkins left Sager and returned a short time later with a small piece of an off-white, chunky substance. Sager believed the substance to be crack cocaine and purchased it for twenty dollars. Sager had a clear view of the Atkins' face and particularly remembered his eyebrows because they had vertical lines shaved into them. After the sale, Sager provided a description of Atkins to his back-up unit, but the unit was unable to locate him.

 On July 22, 1993 at about 7:30 p.m., Sager was in his vehicle in the same area of Newburgh when Atkins again approached him. Sager recognized him and asked where he had been. Atkins replied that he had been "around" and asked Sager if he was "looking for a rock." Atkins entered Sager's vehicle, sat in the front passenger's seat, and directed Sager to drive to a nearby location. At the new location, Atkins exited the vehicle and returned a few minutes later, reentered the car, and instructed Sager to drive back to the area where he had picked up Atkins. Upon their return, Atkins handed Sager a white chunky substance, for which Sager again paid twenty dollars.

 After the sale, Sager gave his back-up unit a description of the Atkins' physical appearance and clothing. On the basis of Sager's description, Officer Lawrence Perlitz, who was assigned to Sager's back-up unit, approached Atkins. Perlitz identified himself as a police officer and asked Atkins for identification, stating that Atkins was a suspect in a robbery. At trial, Perlitz testified that he did not notice whether Atkins' eyebrows were shaved. As Perlitz spoke to Atkins, Sager watched from a nearby car and confirmed that Atkins was the person from whom Sager had just purchased crack cocaine. Because Atkins did not have any identification on his person, Perlitz accompanied Atkins to his apartment to obtain identification.

 The police waited for laboratory reports to confirm that the substances sold to Sager were crack cocaine. Once the laboratory report was complete, the Newburgh police department issued a warrant for Atkins' arrest. Atkins voluntarily surrendered to police.

 At trial, after the jury was selected and before the first witness was called, the prosecutor disclosed that two envelopes used to temporarily hold the narcotics had been destroyed. The prosecutor further represented that detective Jason Clickner, a member of Sager's back-up unit, had written on the envelopes some "scratch marks," the "sum and substance" of which were transferred onto the plastic bag containing the cocaine at the time of trial. Although the original envelopes were destroyed, Clickner would be available at trial to testify as to what he had written on the envelope. After a hearing to determine if the destruction of this evidence prejudiced Atkins' defense, the trial court concluded that the defendant had not shown that he was prejudiced by the destruction of the envelopes. The court did, however, agree to allow the defendant an opportunity during trial for cross-examination about the destroyed envelopes, and agreed to make an appropriate instruction to the jury if necessary. Atkins did not object to this ruling.

 At trial, Clickner testified as to what he had written on the envelopes. The defense attorney cross-examined him with respect to the writings on the envelopes and the envelopes' destruction. Clickner stated that, to the best of his recollection, there was nothing on the envelopes other than what he had previously testified to at trial. The defense attorney did not request an adverse inference charge regarding the destruction of the envelopes, and one was not given. Defense counsel made no exceptions to the jury charge.

 On September 6, 1994, the jury convicted Atkins on all counts, and Atkins was sentenced to concurrent indeterminate prison terms of eleven to twenty-two years for the convictions for sale of controlled substance and lesser concurrent terms for the remaining convictions.

 Atkins filed a direct appeal to the Appellate Division, Second Department from the judgment of conviction, arguing that the jury verdict was against the weight of the evidence, that the trial court erred in failing to sanction the prosecution for the loss of the envelopes, that both counts of third-degree criminal drug possession should have been dismissed as inclusory concurrent offenses to the third-degree criminal drug sale counts, and that Atkins' sentence was unduly harsh and excessive. In addition to the brief filed by his counsel, Atkins filed a supplemental brief pro se in further support of his claim that he was prejudiced by the destruction of the envelopes.

 The Second Department affirmed Atkins' conviction and sentence on both counts, People v. Atkins, 232 A.D.2d 648, 649 N.Y.S.2d 449 (2d Dept. 1996), and the New York Court of Appeals denied Atkins' leave to appeal. People v. Atkins, 89 N.Y.2d 939, 655 N.Y.S.2d 890, 678 N.E.2d 503 (1997). On October 14, 1997, the Second Department denied Atkins' application for writ of error coram nobis to grant him a de novo appeal on the basis of ...


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