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October 22, 2001


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


Petitioner Rafael Tirado ("Tirado") filed the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 now before this Court challenging his conviction in New York State court for criminal sale of a controlled substance in the third degree (New York Penal Law § 220.39) and criminal possession of a controlled substance in the seventh degree (New York Penal Law § 220.03). The judgment was rendered on July 20, 1998 in the New York Supreme Court, Bronx County, following a trial by jury. Tirado was sentenced to an indeterminate prison term of four and one-half to nine years on the sale count and to one year on the possession count, with the terms to run concurrently.

On direct appeal to the Appellate Division, First Department, Tirado, through counsel, argued (1) that the trial court improperly reopened his suppression hearing, allowing the prosecution's witness, who was the arresting officer, to contradict his earlier testimony and (2) the arresting officer's contradictory testimony at the suppression hearing was not credible.

On November 30, 1999, Tirado's conviction was affirmed. See People v. Tirado, 698 N.Y.S.2d 484 (N.Y. App. Div. 1st Dept. 1999). The Appellate Division ruled that "the [trial] court appropriately exercised its discretion in reopening the suppression hearing, prior to any decision on the merits, to permit further questioning of the People's witness where the court and the parties expressed some confusion regarding one aspect of the witness's testimony." Id. The appellate court further held that the hearing court properly denied Tirado's suppression motion and that there was "no reason to disturb the court's credibility determinations, which are supported by the record." Id. Tirado's application for leave to appeal to the New York Court of Appeals was denied on December 28, 1999. See People v. Tirado, 725 N.E.2d 1106 (N.Y. 1999)

On or about March 9, 2001. Tirado's petition and supporting papers were filed in this Court. Tirado raises essentially the same issues asserted in his direct appeal. Respondent (herein, the "State") seeks denial or dismissal of the petition on the grounds that (1) the claim regarding the arresting officer's allegedly incredible testimony at the suppression hearing was unexhausted in that it was not presented to the highest state court and should be deemed forfeited and that, in any event, the credibility claim is not cognizable under federal habeas law, and, accordingly, cannot be reviewed by this Court; (2) the claim that the arresting officer's testimony at the suppression hearing and reopened hearing was "incredible" is procedurally barred from review pursuant to Stone v. Powell, 428 U.S. 465 (1976); and (3) the claim that the trial court improperly reopened the suppression hearing does not present a federal question and that, in any event, the claim is unexhausted since Tirado did not present it to the state court in federal constitutional terms.

For the reasons set forth below, the writ is denied, and Tirado's petition is dismissed with prejudice.


On December 7, 1996, New York City police Detective George Moreno ("Moreno") received radio calls stating that a woman had sold drugs to an undercover officer in the lobby of a five-story apartment building located at 675 East 140th Street, Bronx, New York. The sale involved three orange-topped vials of crack cocaine exchanged for six dollars, five of which consisted of a pre-recorded five-dollar bill. During the transaction, the woman allegedly whistled to signal an individual on a floor upstairs, and the undercover agent reportedly heard an answer in the voice of a male Hispanic. Responding to the call, Moreno arrested Denise Morris, Tirado's co-defendant, outside the building where the sale had occurred.

While Moreno was arresting Morris, a second police officer, Hector Nolasco ("Nolasco"), who was working as a "ghost" officer following the undercover agent, went inside the building. Moreno waited with Morris until the undercover officer conducted a drive-by identification of Morris shortly after the sale. Moreno then received another radio call from Nolasco stating that he saw a male Hispanic on the second floor look at him and then enter an apartment on that floor.

Moreno recovered $598.00 from Tirado, including the pre-recorded five-dollar bill used as the drug buy money. Moreno also recovered sixty-eight orange-topped vials of crack cocaine from the bedroom floor approximately two feet away from where Tirado was standing.

Tirado moved to suppress the evidence gathered at the scene of his arrest, arguing that the police had no basis to pursue him into the second floor apartment because the radio call Moreno had received from the undercover officer regarding the transaction had nothing to do with Tirado. Counsel argued that the undercover officer's side comment about having heard a male Hispanic voice upstairs did not necessarily indicate that a male Hispanic was involved in the drug transaction in any way.

The State contended that Morris went up to a second floor landing and whistled; that a Hispanic male whistled back; and that Morris then returned with the drugs to complete the sale. According to the State, the involvement of a second person in the transaction provided the police sufficient reason to enter and search the apartment where Tirado was found.

After the close of the suppression hearing, the State moved to reopen the hearing and recall Moreno. The trial court granted the motion, over Tirado's objection that it was improper to reopen the hearing to enable the State's witness to fill in gaps in his testimony.

During the reopened hearing, Moreno was asked the same question he had answered during the original hearing regarding the basis for pursuing Tirado into the apartment. He responded that after Morris had entered the lobby and whistled, another voice sounding like a male Hispanic had whistled, and then Moreno elaborated that Morris had walked upstairs and then had returned downstairs with the drugs — a fact he had omitted from his earlier testimony.

The trial court credited Moreno's account of the events, holding that under the totality of the circumstances, and weighing the additional facts that Moreno had provided at the reopened hearing, there was sufficient cause for the police to pursue Tirado into the apartment ...

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