The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.
REPORT AND RECOMMENDATION
Pro se petitioner Harvey Roberts seeks a writ of habeas corpus from his 1998 convictions in Supreme Court, New York County, of third degree criminal possession of a controlled substance and third degree criminal sale of a controlled substance, for which he was sentenced to concurrent terms of six to twelve years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) Roberts' petition alleges that the trial court violated his Fourteenth Amendment right to a fair trial by allowing the prosecutor to make comments in summation that "shifted the burden of proof" and "mis-characterized the defense evidence, and arguments." (Pet. ¶ 13.) Roberts further alleges that there was no probable cause for his arrest. (Pet. ¶ 13.)
For the reasons set forth below, Roberts' petition should be DENIED.
On November 25, 1997, Harvey Roberts and Hawkins Freeman were arrested by Officer Aubrey Pegram, an undercover officer in the Thirty-Second Precinct Street Narcotics Enforcement Unit ("SNEU"). (Dkt. No. 10:3/23/98 Suppression Hearing Transcript ["H."] 6, 7, 10.) Officer Pegram had observed Roberts and Freeman engaging in what he determined to be "street level narcotics sales" on West 127th Street between Lenox and Fifth Avenues in Manhattan. (Pegram: H. 10-11, 16-17, 26-29, 57-60, 63.)
A Wade/Mapp*fn1 suppression hearing was held on March 23, 1998. Roberts moved to suppress identification testimony by Officer Pegram and physical evidence recovered at the time of Roberts' and Freeman's arrest, arguing that "[t]here was no probable cause to believe that Mr. Roberts had engaged in any criminal activity at the time the observations were made by the officer or at the time that Mr. Roberts was apprehended." (H. 84.)
Officer Pegram testified at the hearing that on November 25, 1993 he was assigned to watch for narcotics activity from an observation post on the roof of a seven-story building on West 127th Street. (Pegram: H. 8-10, 25-26.) Officer Pegram used binoculars to survey the area (Pegram: H. 15-16), and at approximately 4:30 pm, he began observing Roberts and Freeman standing on the stairs of 51 West 127th Street, 350 feet from his observation post (Pegram: H. 11, 16, 26-27, 29, 52). At 4:50 pm, Officer Pegram saw a woman approach Freeman, speak briefly with him, and hand money to him. (Pegram: H. 11-12, 57-58, 61-64.) Freeman walked to the far eastern corner of an adjacent vacant lot. (Pegram: H. 12-13, 55, 64-67.) Freeman "lift[ed] up something that [Officer Pegram] later found out was a rug" (Pegram: H. 13, 33), picked up an object from underneath it, and returned to the street where he handed the object to the woman (Pegram: H. 13, 67-68). Approximately four minutes later, Officer Pegram observed virtually identical transactions between Roberts and two successive buyers. (Pegram: H. 13-15, 27, 30-38, 70-72.)
Based on the three transactions, Officer Pegram, who had participated in "[h]undreds" of similar surveillance activities and had received significant training in street level drug transactions (Pegram: H. 9-10), determined that Roberts and Freeman "were transacting drugs to individuals that were coming up to them" (Pegram: H. 17). After each transaction, Officer Pegram made a radio transmission to his "apprehension" team with a description of Roberts, Freeman and the "buyers," but none of the buyers were apprehended. (Pegram: H. 17-18, 35-36, 38-40, 45-48, 68-69, 73-76.)
A few minutes after the conclusion of the third transaction, Officer Pegram observed Roberts and Freeman enter a blue Honda and drive away. (Pegram: H. 18, 76-77.) Officer Pegram immediately radioed the apprehension team with the car's description and license plate number, and team members pulled over the car. (Pegram: H. 18-20, 76-78.) Roberts and Freeman were detained until Officer Pegram could arrive from his observation post and identify them, which he did. (Pegram: H. 20, 39-41, 43-48, 78-79.)
Based on his positive identification of Roberts and Freeman as the men he had observed selling drugs on 127th Street, Officer Pegram arrested and frisked them for weapons. (Pegram: H. 20-21, 40-48, 72, 78-80.) Officers recovered $13 and a beeper from Roberts and $1412 in small denominations from Freeman. (Pegram: H. 21, 48-49, 80-81.)
Neither Roberts nor Freeman presented any evidence at the suppression hearing. (H. 83.) At the close of the hearing, Roberts and Freeman moved to have Officer Pegram's identification testimony and the physical evidence suppressed as fruit of an arrest that lacked probable cause. (H. 83-84.) The court found that Officer Pegram was a "credible officer" (H. 85) and concluded that "the activity of the officer was lawful in all respects. [The officers] had the right to stop the defendants and after the identification to search the defendants and retrieve the money" (H. 89). Based on these findings, the court denied Roberts' motions to suppress the physical evidence and the identification. (Id.)
Roberts' Trial and Sentencing
Roberts and Freeman were tried before Justice John Stackhouse and a jury in Supreme Court, New York County. Roberts did not present any evidence in his defense, while two witnesses testified on behalf Freeman, as did Freeman himself. (Dkt. No. 11: Trial Transcript ["Tr."] 847-54, 859, 878-79, 918.)
During the prosecutor's closing arguments, the Court permitted certain comments by the prosecutor over the objection of Freeman's counsel; Roberts' counsel did not object. The prosecutor said, "[n]ow, [Freeman's counsel] . . . said to you in her opening that if this were a simple open and shut case we wouldn't be here today. Well, one of the defendant's [sic] most basic rights under the Constitution is the right to a fair trial no matter how guilty they are." (Prosecutor's Summation: Tr. 1000.) Freeman's objection was overruled. (Tr. 1000.) The prosecutor also stated that "[t]his case all boils down to one thing. Either you believe Officer Pegram and his testimony or you believe the Defense witnesses" (Tr. 1001), and again Freeman's objection was overruled (id.). The prosecutor further explained to the jury that "if you believe Officer Pegram's testimony, then that is proof beyond a reasonable doubt; and you have a duty to follow the law and to find these defendants guilty," but conversely if the jury believed Freeman's story about where he got the money, with all its inconsistencies, then the jury should find the defendants not guilty. (Tr. 1001-02.) Neither defense counsel objected. (Id.)
The prosecutor argued, "[n]ow, [Roberts' counsel] suggested to you that the police concocted a scenario. They came up with a whole scenario. The police didn't come up with any scenario. They didn't create anything. . . . It's not a big scenario created by anyone except the defendants." (Tr. 1003.) Neither defense counsel objected. (Id.) Later, the prosecutor added: "I submit that what you heard from the Defense was absurd in all aspects. In fact, I would call it an insult to your intelligence." (Tr. 1004.) Again, there were no objections. (Id.)
The prosecutor pointed out that Freeman's counsel in her opening promised an explanation for why Freeman had $1412 in his pocket when arrested, and added that "this is the most important thing for the Defense to explain because people don't walk around" (Tr. 1006), Freeman's counsel's objection was sustained:
[Freeman's Counsel]: Objection. That's burden
shifting, your honor. The defense doesn't have to
THE COURT: Correct. The ...