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CADILLA v. JOHNSON

September 27, 2000

NELSON CADILLA, PETITIONER,
V.
SALLY JOHNSON, RESPONDENT.



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

  ORDER

In a "Report and Recommendation" dated September 11, 2000, U.S. Magistrate Judge Theodore H. Katz recommended that the petition for a writ of habeas corpus be denied and that the action be dismissed with prejudice. As of today, no objections have been received by the Court.

Upon de novo review of Magistrate Judge Katz's "Report and Recommendation" dated September 11, 2000,

IT IS HEREBY ORDERED that:

1. Petitioner's application for a writ of habeas corpus is denied and the petition dismissed on the grounds set forth in the Report and Recommendation;

2. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the AEDPA; see also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing issuance of a certificate of probable cause under standard prior to amendment of 28 U.S.C. § 2253); Alexander v. Harris, 595 F.2d 87, 90 (2d Cir. 1979).

3. Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any appeal from this Order would not be taken in good faith.

SO ORDERED:

REPORT AND RECOMMENDATION

This habeas corpus proceeding was referred to me for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(d) of the Southern District of New York Local Civil Rules. Petitioner, a former New York State prisoner currently on parole, seeks habeas relief under 28 U.S.C. § 2254, claiming that his conviction resulted from a violation of his constitutional rights, insofar as: (1) the integrity of the grand jury that indicted him was impaired by the introduction of inadmissible hearsay; (2) the indictment should have been dismissed because of denial of a speedy trial; and (3) the trial court improperly closed the courtroom during the testimony of the undercover police officer. See Petition. Respondent has moved to dismiss the action. For the reasons that follow, I respectfully recommend that the action be dismissed with prejudice.

BACKGROUND

Undercover Officer Guy Laieta testified at trial that shortly before 7:50 a.m. on March 2, 1994, he drove his unmarked van to the vicinity of Essex and Houston Streets, which was approximately four blocks from that day's targeted drug buy area. (Tr. at 134.)*fn1 Laieta testified that the only money he carried with him was pre-recorded buy money in the form of six five-dollar bills. (Tr. at 133.) Laieta testified that as he left his van, he walked toward the corner of Stanton Street and Clinton Street, where he noticed petitioner standing alone on the corner. (Tr. at 133-134.) He described petitioner as a very dark-skinned Hispanic man, with a beard and mustache, approximately 5'6" or 5'7" tall, and wearing a black leather coat, jeans, and a sweatshirt with a grey hood on his head. (Tr. at 134, 136, 138-139.)

Laieta testified that he approached petitioner and asked him if he had any "dimes." He explained that, based upon his experiences as an undercover officer, "dimes" were $10 packages of heroin. (Tr. at 135-136.) He also testified that he had always bought "dimes" at that location. (Tr. at 135, 137.) In response to his request, petitioner asked "How many?", and Laieta replied "Give me three." (Tr. at 134-135, 139.) Laieta testified that petitioner then handed Laieta three glassine envelopes containing what he believed to be heroin, and Laieta handed petitioner the $30 of pre-recorded buy money. (Tr. at 135, 141.) Laieta testified that, in his experience, heroin is usually sold in glassine envelopes, although the glassine envelopes sold to him by petitioner were "beat up as opposed to neat." (Tr. at 139-140.)

Immediately after this transaction took place, Laieta walked away and used his hidden transmitter to notify the officers in the van that he had made a positive buy. (Tr. at 135-137.) Laieta also testified that, in this transmission, he described petitioner to the other officers. (Tr. at 136.)

Laieta testified that he then drove to the location where petitioner had been apprehended by the other officers, in order to make a confirmatory identification. (Tr. at 142-144, 153, 160.) Laieta testified that he informed the field team that they had "apprehended the correct person." (Tr. at 144-145.) Laieta identified petitioner at trial as the person from whom he had purchased the glassine envelopes. (Tr. at 136.)

Police Officer David Warner, a member of the Manhattan South Strategic Narcotics and Guns Unit, testified that he was the arresting officer accompanying Laieta on the buy operation. (Tr. at 164.) Warner testified that, upon receiving Laieta's radio transmission, he immediately drove to the intersection of Clinton Street and Stanton Street, looking for the individual Laieta had described. (Tr. at 167-168, 171.) Warner observed petitioner standing in that area and Warner arrested him. (Tr. at 167-169, 171, 183-184, 186-189.) Warner testified that petitioner appeared to be counting money, although petitioner dropped the money he was counting when Warner approached him. (Tr. at 170.) Warner testified that he recovered a total of $34.00 from the ground — six five-dollar bills and four one-dollar bills. (Tr. at 171.) Warner further testified that the serial numbers of the six five-dollar bills recovered from petitioner matched the pre-recorded buy money. (Tr. at 171-172, 174-179.) Additionally, Warner testified that he recovered five glassine envelopes from petitioner's left pants pocket. (Tr. at 172). Warner identified petitioner at trial. (Tr. at 169.)

Mariem Megalla, a chemist in the New York City Police Department, testified that she tested the three glassine envelopes that Officer Laieta had purchased from petitioner, and that the three glassine envelopes contained heroin. (Tr. at 196-198.) Megalla also testified that the weight of the heroin she tested was "less than 1.0 gram." (Tr. at 198.) On cross-examination, Megalla testified that the amount present in each envelope could not accurately be measured "because it's a little amount." (Tr. at 209.) She also testified on cross-examination that she used her memory to compare the colors generated by the tests to those indicative of heroin, instead of relying on standard color cards. (Tr. at 213.)

Josephine Bishara, a chemist in the New York City Police Department, testified that she tested the five glassine envelopes that Officer Warner had recovered from petitioner's clothing. Bishara testified that each envelope tested positive for heroin, and that she too assessed the colors generated by the tests based on her memory, instead of using any standard chart. (Tr. at 230-233.) Bishara also testified that the weight of heroin in each bag was "less than a gram." (Tr. at 229.)

Petitioner then testified in his own defense. Petitioner testified that he was a drug addict who had abused heroin for ten to fifteen years. (Tr. at 237, 246, 255-256.) Petitioner testified that on the morning of March 2, 1994, he was approached by a man who asked him if he "had any dimes." (Tr. at 237.) Petitioner testified that he "knew something was wrong, because dimes are not used for heroin, you don't use the term `dimes.'" (Tr. at 237.) At first, petitioner ignored the man and walked away. (Tr. at 237, 243, 245, 249.) The man followed petitioner, and said, "I'm late for work, would you please help me out." (Tr. at 237.) Petitioner then "gave him three glassine bags," and the man gave petitioner thirty dollars and walked away. (Tr. at 237-238.) Petitioner testified that the bags he gave the man were "in very bad conditions," and that "you could tell it was opened, it was used before." (Tr. at 241.)

Petitioner testified that the bags he sold the man had contained baking soda, rather than heroin. (Tr. at 238.) Petitioner testified that on the day before this sale, he had purchased four glassine envelopes of heroin, and the bags that he sold the man "came from the ones I used the night before." (Tr. at 238, 249-250.) After using all of the heroin in the envelopes, petitioner filled three used glassine envelopes with baking soda, about the amount of an aspirin tablet, which he hoped to "pass off" as heroin or some other drug. (Tr. at 238-239, 241, 246-254.) Petitioner also testified that he had picked up five additional glassine envelopes which he hoped to use for the same purpose. (Tr. at 250.) Petitioner testified that the understanding between the man and petitioner was that petitioner would give him heroin for money, but that, to petitioner's knowledge, there was no heroin in the bags. (Tr. at 239-240.) Petitioner further testified that he was arrested approximately five minutes after the sale. (Tr. at 242-245.)

Dr. Max Solomon, a retired chemical analyst with a Ph.D. in Chemistry and a consultant in the field of chemical forensics, testified on petitioner's behalf. Dr. Solomon testified that the tests used by the police department chemists produced a wide spectrum of colors, and that to rely on one's memory, instead of a standardized color chart, could not possibly result in an accurate result. (Tr. at 265.) Additionally, Dr. Solomon testified that the tests used by the police department chemists were neither reliable nor acceptable for identifying controlled substances, and that one of the tests performed has "nothing to do with heroin." (Tr. at 261-262, 266, 271-272.) Dr. Solomon admitted that he had not personally tested the contents of the eight glassine envelopes in evidence in this case. (Tr. at 273).

The prosecution then re-called Dr. Bishara to testify as a rebuttal witness. She testified that, based on her ten years of experience of performing drug analyses at the New York City Police Department laboratory, she believed that the tests used on the contents of the eight glassine envelopes in evidence in this case yielded "reliable" results for determining the presence or absence of controlled substances. (Tr. at 280-281.) She also testified that she relied on her ...


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