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WARREN v. MILLER
January 5, 2000
FREDDIE WARREN, PETITIONER,
ROBERT MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Wexler, District Judge.
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
I. Factual Background and the Arrest and Indictment of Freddie
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.
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. §
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.
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
125 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (the "Wade
hearing"), to determine the admissibility of identification
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
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
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
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 ...