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SANTOS v. ZON

June 14, 2002

JUAN SANTOS, PETITIONER,
V.
ANTHONY ZON, SUPERINTENDENT, RESPONDENT



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge

DECISION AND AMENDED ORDER

Pro se petitioner Juan Santos ("Santos") filed a Petition for a Writ of Habeas Corpus, under 28 U.S.C. § 2254, on April 26, 2001 (the "Petition"), attacking his November 20, 1998 state-court conviction of criminal possession of a controlled substance, violating New York Penal Law § 220.16(1). Santos claimed that the conviction violated his right to due process, guaranteed by the Fourteenth Amendment of the United States Constitution, because the State of New York (the "State") failed to prove, with sufficient evidence, the intent-to-sell element of the charged offense.

Respondent Anthony Zon ("Zon"), Superintendent of the State's Cape Vincent Correctional Facility, opposed Santos's petition. The Court denied Santos's Petition by Order of May 31, 2002, which stated that a more detailed analysis of the Court's reasoning would be provided in a subsequent Decision.

I. FACTS

Santos was convicted, after a jury trial in the State Supreme Court, New York County, for criminal possession of a controlled substance in the third degree and sentenced to four and one-half to nine years imprisonment. Santos's conviction stemmed from an October 16, 1997 incident wherein he was observed by police officers Robert Sormani ("Officer Sormani") and Joseph Pecoraro ("Officer Pecoraro") selling crack cocaine to four different buyers.*fn1

At trial, the State presented eyewitness testimony and physical evidence. Officer Sormani testified that he witnessed, in a 15-20 minute time span, Santos engage in a pattern of activity that appeared to be drug dealing. Officer Sormani was the only police officer to actually observe, with the aid of binoculars, Santos sell the crack cocaine to four persons, who appeared to him to be buyers. At the time of the sales, Officers Sormani and Pecoraro were positioned on the rooftop of a building with a view of the street where Santos was standing. Because the officers were on top of the building and had only one pair of binoculars, Officer Pecoraro was unable to witness the actual drug sale transactions.

Officer Sormani testified that he observed Santos meet with the four buyers and that during each separate transaction Santos removed small plastic bags from either a red or black key box and exchanged them with the customer for money. Officer Pecoraro corroborated Officer Sormani's testimony by testifying that he listened to Officer Sormani describe the drug sale transactions as they took place; Officer Sormani, each time that he observed a sale with the aid of his binoculars, told Officer Pecoraro, "[t]here's another one." Further, both officers testified as to the physical evidence they recovered at the crime scene when they arrested Santos, which was directly after the fourth drug sale transaction. The physical evidence recovered at the time of Santos's arrest included $101.00 in small denominations (ranging from $20.00 to $1.00 bills) found on Santos's person, two bags of crack cocaine found in a red key box in Santos's possession, a black key box, and a beeper. Moreover, the State presented evidence that Santos possessed no drug paraphernalia at the time of his arrest and that he appeared to be sober. The State argued that the officers' testimony, combined with the circumstantial evidence recovered at the time of the arrest, proved Santos possessed the narcotics with the intent to sell them.

In his defense, Santos introduced the testimony of his employer at the time of the incident, Diana Velasquez ("Velasquez"). Velasquez testified that she paid Santos his salary "off the books" on the day of his arrest, but that she did not have any specific recollection of the denomination of the bills with which she paid him on that day. Santos argued that Velasquez's testimony offered a reasonable, alternative explanation for why he was carrying $101 in small bills on the night of the arrest.

The jury found Santos guilty. Santos appealed the conviction to the Appellate Division of the New York Supreme Court (the "Appellate Division"), arguing that his conviction violated his right to due process guaranteed by the Fourteenth Amendment because the State failed to prove, with sufficient evidence, that he intended to sell the crack cocaine in his possession. The Appellate Division summarily rejected Santos's appeal and affirmed the conviction. See People v. Santos, 717 N.Y.S.2d 536 (App. Div. 1st Dep't 2000). The instant petition followed.

II. DISCUSSION

A. STANDARD OF REVIEW

As an initial matter, where a party appears pro se, the courts are obliged to broadly construe the party's pleadings and interpret them "to raise the strongest argument they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

Santos's petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. ยง ...


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