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ORTIZ v. ARTUZ
September 8, 2000
BYRON ORTIZ, PETITIONER,
CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Gershon, District Judge.
Petitioner Byron Ortiz seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner, along with his codefendant Danny
Torres, was convicted on February 24, 1993 after a jury trial of
Murder in the Second Degree (depraved indifference) (N.Y.Penal
Law § 125.25) and Criminal Possession of a Weapon in the
Second Degree (N.Y.Penal Law § 265.03). Both he and Torres were
acquitted of intentional murder. The victim was Danny Rojas, who
was shot in the head from a passing car while standing on a
sidewalk with a group of people. Petitioner was sentenced to
concurrent indeterminate prison terms of twenty-five years to
life for the murder, and five to fifteen years for the weapon
possession. He raises nine grounds that he claims undermine the
validity of his convictions: (1) and (4) the police lacked
probable cause for petitioner's arrest, and the subsequent
identification of petitioner and petitioner's statements must be
suppressed as fruits of an illegal arrest; (2) the identification
procedure used by police was impermissibly suggestive and
rendered the witness's identification unreliable; (3) petitioner
did not give a knowing, voluntary and intelligent waiver of his
Miranda rights so as to validate the use of his statements; (5)
petitioner was deprived of his rights to due process and a fair
trial by the state trial court's failure to properly respond to
the jury's request for instructions; (6) petitioner's guilt was
not proven beyond a reasonable doubt; (7) petitioner was deprived
of his right to the effective assistance of counsel when his
defense counsel slept during the trial; (8) petitioner was
deprived of his right to due process and a fair trial by the
introduction of uncharged crimes and prior bad acts; (9)
statements of the non-testifying codefendant were improperly
admitted; and (10) the Appellate Division denied petitioner's
right to adequate appellate review of disputed issues of law and
fact by refusing to allow petitioner to submit a pro se
supplemental reply brief during the appeals process.
The evidence at the hearing was as follows:
On September 24, 1991, Detectives Richard Sica and Raymond
Murtha approached petitioner on the corner of 150th Street and
Hillside Avenue in Queens, and told him that they wanted to speak
to him about several outstanding complaints against him. Sica
testified that petitioner accompanied the detectives to the 103rd
Precinct at about 3:00 p.m., where Detective Murtha arrested him
on two unrelated outstanding criminal complaints for menacing and
reckless endangerment. Detective Murtha had been assigned to
those outstanding cases, and the complainants in those cases had
identified petitioner as the perpetrator. However, Detective
Murtha did not recall placing Ortiz under arrest himself.
Petitioner's counsel placed into evidence Detective Sica's
booking sheet from the night of September 24, 1991, which
indicated that petitioner was arrested for Murder in the Second
Degree at 3:00 p.m. Sica denied the accuracy of this report.
Previously, Karina Veliz had advised Detective Sica that she
had seen the man who shot Danny Rojas. She identified the man as
petitioner, said she had known the petitioner for several years
and she described him and his home. At approximately 6:45 p.m.,
on September 24th, Veliz came to the precinct and observed
petitioner through a one-way glass window and identified him to
Detective Sica as the one who had shot Danny Rojas. Sica
testified that at approximately 7:50 p.m. he arrested petitioner
for Rojas's murder and advised petitioner of his Miranda
rights. Detective Sica told Ortiz that he had been identified by
witnesses and asked if he wanted to tell
him what happened the night Danny Rojas was shot.
Petitioner twice orally described his version of the events
surrounding Danny Rojas's murder. During the second recitation,
Detective Sica transcribed the story. Petitioner then read the
written transcription and signed it. The statement read,
I don't remember the date it was at night. We were
drinking me, Jose, and a third person I won't
mention. I got a gray car from someone it was a
medium size car I don't remember what type. I was
driving another person was sitting next to me in the
passengers seat and Jose was in the back. I drove
around by the park. I drove down 153 St once, then I
passed by again. As I drove by the second time, Jose
took out a black gun and fired one shot when we got
to 90 Av. There was people standing on 90 Av. across
from the park. When I first heard the shot I slowed
then I got scared and drove away fast, towards
Hillside Av. We started arguing I said why did you
shot. After we argued I drove the car to Kew Gardens
and left it.
Petitioner subsequently identified Jose Martinez as the shooter,
and Danny Torres as the third person in the car.
On June 5, 1992, the hearing court rendered a written decision
denying petitioner's motion to suppress the identification of
petitioner and petitioner's statements. In its findings of fact,
the court found that Sica had arrested petitioner on the corner
of 150th Street and Hillside Avenue. The court concluded that
there was probable cause to arrest petitioner at this time
because the eyewitness to Danny Rojas's murder was personally
acquainted with petitioner and had identified him by name.
Moreover, the court found that petitioner had knowingly and
intelligently waived his Miranda rights before making
statements to the police. Finally, because the eyewitness to
Danny Rojas's murder had known petitioner for years and
identified him by name, the hearing court held that the
identification was confirmatory, and as a result there was no
issue as to suggestiveness.
The People's evidence was as follows:
On April 28, 1991, approximately forty guests, including Eric
Oliva, Angel Ruiz, Karina Veliz, and Alexander Rosales, attended
a party at 89-51 153rd Street. The party ended at 11:00 p.m., and
a crowd of people exited the building. Danny Rojas, who had not
attended the party, spoke to several of these people outside of
the building. He was speaking to Karina Veliz as a car with
tinted windows drove down 153rd Street.
Eric Oliva testified that he heard a pop, followed by screams
of "Danny got hit." Oliva turned around and saw Rojas falling
down, then noticed the car driving away and ran after it. He
testified that the car was going only around 2 miles per hour,
then slowly began to take off. He could see only the back and
driver's side of the car and could not see inside the car,
because the back and driver's side black tinted windows were
closed. Alex Rosales also did not see the car until he heard the
pop, and joined Oliva in chasing after it.
Angel Ruiz testified that he saw the car passing by very slowly
before the shot was fired. He heard the pop and saw a flash in
the back passenger-side window of the car. Although the car's
window's were tinted, he could see the flash because the back
passenger-side window was partially open. Ruiz further testified
that there had previously been some conflict between the group of
people exiting the party and a group with which the defendants
Karina Veliz testified that the front passenger-side window of
the car was open, and through it she could see two individuals in
the front seat. She recognized the driver as codefendant Torres,
and the front seat passenger as petitioner. She had known both
individuals for five years from the neighborhood, and codefendant
Torres had attended high school with her.
Veliz testified that, as the car drove by, petitioner fired a
handgun out of the front passenger-side window. It seemed that
the car came to a very brief stop, just before the shot was
fired, and then sped up again. The shot struck Danny Rojas, and
he fell backwards against Veliz. When Detective Sica first
interviewed Veliz about the incident, she told him that she did
not know who had done it. She testified that she lied to Sica
because she was frightened, and that she had previously been
threatened. Veliz testified that she later spoke to Sica a second
time about these events when she went to the 103rd Precinct to
file a complaint.
Detective Sica testified that, after speaking to Veliz on
September 24, he had occasion to speak to petitioner. Sica
testified that he read petitioner his Miranda rights, see
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), and that petitioner waived these rights and made an
oral statement. Petitioner made a correction to his statement and
signed the transcription. Sica read this statement (quoted
supra at pp. 332-333) in court.
Detective Sica also read codefendant Torres's oral statement,
in court, in which Torres admitted to being in the car when Rojas
was shot, but claimed that petitioner was driving and that Jose
Martinez shot Rojas. This statement read:
A while ago, a few months back I was at 150th Street,
89th Avenue. Byron drove up in a two-door gray car.
The guy in the back seat, I think Jose was also in
the car. We drove around the area for about an hour.
It was dark out, about 12:00 midnight. Then Jose
said: Let's pass by 153rd Street. Byron drove up from
Archer Avenue on 153rd Street. Jose rolled the
passenger side window down a little. Jose pulled out
a black gun. I think Jose said: Slow down. When we
got by the entrance of the park, Byron slowed down.
Jose fired one shot in the crowd and then Byron sped
off towards Hillside Avenue and turned left. Then
Byron drove me home in Brooklyn. Both Byron and Jose
stayed with me in Brooklyn. They left the next day.
We were drinking before the shooting. We never had a
problem Danny Rojas. We had problems with George and
Alex, but I settled my problem with George.
Detective Sica also testified that he conducted an investigation
of Jose Martinez and interviewed Martinez about Rojas's death,
but never arrested him.
Torres called one witness, as to his character. Ortiz called
none. Petitioner's counsel challenged Veliz's credibility on
cross-examination and during his summation, emphasizing her
failure to identify the perpetrators immediately after the
accident and the inability of any of the other witnesses to
identify the perpetrators. Counsel claimed that it was impossible
for Veliz to see into the car, given the conditions present at
the time of the shooting, and urged that Veliz had a motive for
lying, because petitioner had been cooperating with the Queens
County District Attorney's Office in its prosecution of Veliz's
friend, Alex Rosales. Counsel also challenged the voluntariness
of petitioner's statement, arguing that he was intimidated by
being held in custody for many hours and claiming that Sica
edited his statement to make it more inculpatory.
In March, 1995, petitioner filed his direct appeal with the
Appellate Division, Second Department, in which he claimed the
following: a) the police arrested petitioner without probable
cause; b) the identification procedure was unduly suggestive; c)
petitioner's statement should have been suppressed given his
limited command of the English language; d) the results of the
identification procedures and petitioner's statements should have
been suppressed as "fruit of the poisonous tree"; e) the court's
failure to meaningfully respond to the jury's note deprived
petitioner of a fair trial; f) the evidence was insufficient to
establish petitioner's guilt beyond a reasonable doubt, and the
was against the weight of the evidence; and g) petitioner's
sentence was excessive. In February, 1996, petitioner, pro se,
filed a supplemental brief with the Appellate Division, in which
he claimed: a) that he was denied the effective assistance of
trial counsel; b) that he was denied a fair trial because the
prosecutor failed to request a hearing prior to eliciting
evidence of petitioner's uncharged crimes; and c) the court's
failure to order that petitioner's trial be severed from his
codefendant's denied petitioner a fair trial.
After the People filed their response to petitioner's pro se
supplemental brief, petitioner sought leave to file a pro se
supplemental reply brief to respondent's brief. In an order dated
June 13, 1996, the Appellate Division, Second Department, denied
petitioner's application. Thereafter, petitioner sought leave to
appeal the Appellate Division's order to the New York State Court
of Appeals. On September 25, 1996, petitioner's leave application
was dismissed. People v. Ortiz, 88 N.Y.2d 1023, 651 N.Y.S.2d 22,
673 N.E.2d 1249 (1996).
On July 8, 1996, a four-judge panel of the Appellate Division,
Second Department, affirmed petitioner's judgment of conviction.
People v. Ortiz, 229 A.D.2d 451, 644 N.Y.S.2d 794 (2d Dept.
1996). The court found that, viewing the evidence in the light
most favorable to the prosecution, the evidence was legally
sufficient to establish petitioner's guilt beyond a reasonable
doubt. The court further found that the verdict was not against
the weight of the evidence. In addition, the Appellate Division
held that the hearing court properly found that the police had
probable cause to arrest petitioner, and it held that
petitioner's sentence was not excessive. Finally, the court
determined that petitioner's remaining contentions were
unpreserved for appellate review, without merit, or constituted
Petitioner then moved for leave to appeal to the New York Court
of Appeals. In a certificate dated November 27, 1996, the Court
of Appeals denied petitioner's leave application. People v.
Ortiz, 89 N.Y.2d 866, ...