Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


September 8, 2000


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[2]) 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 Pretrial Hearing

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 Trial

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 associated.

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.

Procedural History

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 verdict 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 harmless error.

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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.