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WARREN v. MILLER

January 5, 2000

FREDDIE WARREN, PETITIONER,
V.
ROBERT MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Wexler, District Judge.

    MEMORANDUM AND ORDER

Presently before the court is the petition of Freddie Warren ("Warren" or "Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Warren is presently serving a sentence of twenty years to life as a persistent felony offender under New York State law. For the reasons set forth below, the petition is denied.

I. Factual Background and the Arrest and Indictment of Freddie Warren

Warren was arrested on May 24, 1989, in connection with a "buy and bust" operation conducted by Suffolk County police officers on the previous evening, May 23, 1989. On that night, Police Officers Edward Gubinski and Dennis Murphy were patrolling Wyandach, New York, posing as individuals interested in purchasing illegal narcotics. Once the "buy" was made, it was the officers' intent to called for a marked unit with uniformed officers who would arrive on the scene and arrest the seller.

On this particular occasion, officers Gubinski and Murphy drove to Henry Street and Lake Drive in Wyandanch and drove to a house where a group of individuals were standing. The officers were approached by Warren, who sold them twenty dollars worth of crack cocaine. The officers then left the scene and radioed a description to the marked unit. Upon their arrival, however, the marked unit could not locate anyone matching the description given by the undercover officers and no arrest was made.

II. Warren's Pretrial Request for New Counsel

After indictment and prior to trial or any pretrial hearings, Warren sought to have his court-appointed attorney from the Legal Aid Society (the "Legal Aid attorney") removed and new counsel appointed. In support of his claim for new counsel, Warren alleged that he and his counsel did not see eye to eye. Warren's complaint regarding counsel stemmed from the lawyer's refusal to submit part of Warren's pro se motion to the trial court. The Legal Aid attorney explained to the court that, in accord with the judge's directions, he had reviewed Warren's motion and submitted to the court only that portion of the motion that he considered to have legal merit. The remainder of the motion had not been submitted.

Warren argued that he had lost confidence in counsel and insisted, repeatedly, that new counsel be appointed. In a proceeding where counsel and Warren were both present, the trial court denied Warren's application to have new counsel appointed. The court held that counsel had acted appropriately with respect to the portion of Warren's motion that had not been submitted. The court noted counsel's competence during the course of Warren's proceedings and with respect to many other criminal matters. In view of the fact that Warren had failed to come forward with any good cause to dismiss counsel, the trial court rejected the application to appoint a new attorney. Warren was granted the right to proceed with the Legal Aid attorney or on his own, with counsel present as an advisor.

III. Plea Negotiations

Prior to trial, the parties engaged in plea bargaining. Warren was advised on numerous occasions that, if convicted, he faced the possibility of enhanced sentencing due to prior convictions. Warren was clearly and unequivocally advised on the record that as a result of prior felony convictions he faced the possibility of sentencing as a persistent felon under the New York Penal Law. If Warren were found to be such a felon, he would be subject to a minimum term of imprisonment of fifteen to twenty five years and a maximum term of imprisonment of life. See N.Y.Penal L. § 70.10(2).

The District Attorney's office offered Warren a plea that would result in a term of imprisonment of four and one half to eight years. The state judge told Warren, on several occasions, that if he accepted the District Attorney's offer, he would be sentenced to a term of imprisonment of only three to six years. Despite the possibility of substantially harsher sentencing if he were to lose at trial, Warren rejected all offers to plead guilty and opted instead to proceed to trial.

IV. Pretrial Hearings

Prior to trial the state court held a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974) (the "Sandoval hearing"), to determine the permissible scope of the District Attorney's cross-examination of Warren if he elected to testify at trial. The court also held a hearing pursuant to pursuant to United States v. Wade, 388 West Page 125 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (the "Wade hearing"), to determine the admissibility of identification evidence.

At the Sandoval hearing, which was argued vigorously by Warren's Legal Aid attorney, the court held that convictions from 1972 and 1983 could be relied upon to impeach Warren. The court also ruled that the District Attorney could refer to several misdemeanor incidents if Warren chose to testify.

The Wade hearing was thereafter held to determine whether the arresting officers could make an in-court identification of Warren based upon the identification by Gubinski on May 24, 1989 and by Murphy at the police precinct. At this hearing officers Gubinski and Murphy testified regarding the events of May 23 and 24, 1989, and the conditions under which they identified Warren. Warren's Legal Aid attorney was present and cross-examined the officers regarding their identifications. At the conclusion of the Wade hearing, the trial judge denied the defense motion to suppress any in-court identification of Warren and held that the officers could testify regarding their identification of Warren at the scene of the crime as well as the confirmatory identifications on the following day.

V. The Testimony At Trial

Officers Gubinski and Murphy testified as to the events surrounding the purchase of the drugs, the subsequent arrest, and the identification procedure.

Officer Gubinski testified that he was the passenger in the vehicle used during the buy and bust operation. He stated that he and Officer Murphy entered Henry Street at approximately 9:00 P.M. and observed a group of four individuals (two men and two women) standing near the side of a house. They drove their vehicle to the house and were approached by one of the men in the group who walked to the passenger side of the vehicle and asked what the officers needed. Murphy responded by saying, "We're looking for a twenty." The man asked to see the money and the officers produced a twenty dollar bill. Gubinski stated that the man gave him a sample of the substance. Gubinski examined it, while never taking his eye off the subject, and concluded that the substance was crack cocaine.

On cross-examination of the officers, the defense questioned whether the lighting conditions were sufficient for an accurate identification of the subject. Both Gubinski and Murphy responded by stating that a street light provided enough illumination for them to see the individual and develop an accurate description to radio to the marked unit.

As noted above, upon completion of the sale, Gubinski radioed a description to the backup unit. Specifically, Gubinski described the seller as a Black male, between 5'10"-6'0" feet tall, in his late thirties with a dark complexion, full mustache and beard and wearing a grey hooded sweat shirt, zippered up, acid washed jeans and white high top sneakers. Because none of the individuals near the house when the back up unit arrived matched this description, no arrest was made on the night of the sale.

On May 24, 1989, officer Gubinski returned to the area in an attempt to locate the subject of the previous evenings' sale. Officer Gubinski testified that, approximately three blocks from where the sale took place on the previous night, he observed a man wearing a grey-hooded sweatshirt similar to the one worn by the missing suspect. Gubinski stated that he got to within twenty feet of this man and immediately identified him as the man who sold him the narcotics. Gubinski then radioed a sector car with a description and kept the man under surveillance until that unit arrived. When the uniformed officer began to question the subject, Gubinski returned to the precinct.

The jury convicted Warren of Criminal Sale of a Controlled Substance in the Third Degree on February 23, 1990. The second count of the indictment against Warren charging Criminal Possession of a Controlled Substance in the Third Degree was dismissed by the court after trial.

VI. Sentencing Proceedings

Prior to sentencing Warren the state court held a hearing pursuant to New York Criminal Procedure Law § 400.20 to determine whether Warren should be sentenced as a persistent felony offender, in which case a more severe sentence would be imposed. Under the applicable standard, it was the prosecution's burden to show: (1) that Warren had been previously convicted of, and not pardoned for, more than one prior felony and, (2) that the history and character of Warren, and the nature and circumstances of his criminal conduct, indicated that extended incarceration and life time supervision would best serve the public interest. See N.Y.Penal L. § 70.10.

The sentencing hearing began on June 4, 1990, with the prosecution presenting a certificate evidencing a 1972 conviction of burglary in the second degree. Petitioner claimed that he did not plead guilty to the charge and defense counsel objected to the introduction of certificate. The court granted the prosecution a continuance to obtain the plea minutes to establish what occurred in 1972 but continued the hearing for the purpose of considering other evidence.

The prosecution then presented a certificate of conviction for a 1983 felony, burglary in the third degree. Warren admitted to the authenticity of this certificate of conviction which referred to Warren as a second time felony offender. Warren admitted that he had pled guilty to the 1983 felony and that the certificate was accurate. In view of this acknowledgment, the prosecutor argued that the court should take judicial notice of the 1972 conviction. The court, noting that Warren continued to dispute the 1972 conviction, declined to take judicial notice of that conviction and adjourned the sentencing hearing until July 9, 1990, to allow the District Attorney time in which to obtain the plea minutes relating to the 1972 conviction.

At the continued hearing the prosecution presented the minutes from the 1972 plea and sentencing as well as a report prepared by the Probation Department (the "Presentence Report"). The sentencing minutes contained an extensive factual allocution detailing Warren's participation in a robbery and burglary. Because the minutes were lengthy, the court gave Warren time to read through the transcript and continued the hearing until July 11, 1990. On that date, Warren's counsel took issue with the authenticity of the plea minutes. Additionally, defense counsel argued that the District Attorney had failed to sustain the burden of proving that Warren's history and character and the nature and circumstances of his criminal conduct indicated that extended incarceration and life time supervision would best serve the public interest. Counsel argued that the Presentence Report was too short upon which to rely to support the requisite findings. He also argued that the report contained erroneous information and pointed out that the probation department had not recommended that Warren be sentenced as a persistent felony offender.

VII. Direct and Collateral Appeals

A. Warren's Direct Appeal

Warren appealed his conviction to the Appellate Division of the Supreme Court, Second Department. On appeal, he argued that the sentence imposed: (1) was excessive; (2) violated Warren's right to due process of law and to be free from cruel and unusual punishment, and (3) was imposed only after Warren refused to waive his right to appeal. Warren also argued that the sentencing court abused its discretion when sentencing Warren as a persistent felony offender. It was also argued that the persistent felony offender statute is unconstitutional for two reasons. First, because it requires proof of defendant's poor character only by a mere preponderance of the evidence and because of the alleged "untrammeled" discretion afforded the sentencing judge.

Warren's appeal also attacked the sentencing court's reliance upon the Presentence Report and the alleged failure of the court to resolve factual issues. Warren argued ineffective assistance of counsel and prejudicial error in the trial court's Sandoval and Wade rulings. Finally, Warren's appeal took issue with certain evidentiary rulings and the trial court's jury instructions.

On June 21, 1993, the Appellate Division upheld Warren's conviction and sentence. See People v. Warren, 194 A.D.2d 756, 600 N.Y.S.2d 75 (2d Dep't 1993). The appellate court rejected the claim that Warren was denied effective assistance of counsel when the trial court refused to assign new counsel. Warren's statement that he had lost confidence in his attorney was held not to rise to the level required to support substitution of assigned counsel. The Appellate Division also stated that nothing in the record supported Warren's claim that he was punished and sentenced excessively for opting to exercise his right to trial. The court similarly held that the trial court had properly exercised its discretion to sentence Warren as a persistent felony offender and that the sentenced imposed was not excessive.

With respect to Warren's remaining claims, the Appellate Division stated only that the claims were considered and found to be either without merit or unpreserved for review. Accordingly, Warren's conviction and sentence were upheld in their entirety. Petitioner sought leave to appeal his conviction to the New York State Court of Appeals. That court denied Warren's application ...


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