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BROWN v. SUPERINTENDENT

April 22, 2003

ALBERT BROWN, PETITIONER, AGAINST SUPERINTENDENT, RESPONDENT.


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

OPINION

Petitioner Albert Brown pro se ("Petitioner" or "Brown"), currently incarcerated at Lyon Mountain Correctional Facility, Lyon Mountain, New York, has brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against the Superintendent (the "State") challenging his conviction in the Supreme Court of the State of New York, New York County, for Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39[1]) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). Petitioner claims that (1) his conviction was against the weight of the evidence, and (2) the comments of the trial court during voir dire deprived him of a fair trial. For the reasons set forth below, the petition is denied.

Prior Proceedings

The petition was filed on June 21, 2002, the State filed its opposition and the matter was marked fully submitted on November 26, 2002.

State Court Proceedings

By New York County Indictment Number 1783/98, filed on March 27, 1998, Petitioner was charged with one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). After a suppression hearing, the results of which are not at issue, Petitioner's trial began on September 2, 1998 before the Honorable Edward McLaughlin and a jury.

The presiding judge made the following remarks during voir dire:

Now, that is the outline of a criminal case [and] the law that controls it. It's not the only way to resolve criminal cases but it's the way you folks [] for hundreds of years have decided it best is done. Other countries, some sophisticated places, some not so sophisticated places [do] it differently. Some have judges deciding cases, some have military officers, some have civilians, some have different combinations. You folks have decided this is the way to do it. If you happen to win the lottery and you win a huge . . . [sum] of money enough to buy an island some place, you could create your own little kingdom o[r] [] empire. You can run your criminal justice [system] by the rules you want . . . so here you have the rules you have created say presumption of innocence, burden of proof. Unanimity is required. Anyone think that's ridiculous? You want to buy your island somewhere and you want to set up your own system but you'll be damned if you're going to follow these rules? Okay.
In return for the ability to decide cases and make the accuracy and credibility factual decisions as part of the process that you've created you've given up every opportunity, every right, every privilege of questioning what the law is. You have to follow what the law is. Let me allow that to register. Yes. In this one wonderful city, somebody has just told a group of New Yorkers that you have to do something. You did it to yourselves. You have created the system that says you will follow the law whether you understand why it's the law or not . . .
Do not worry about not understanding what the law is. I can communicate the meaning of the law to you easily. You have to follow it whether you understand it or not, whether you understand why it's the law or not, whether or not you have a flat out hundred percent disagreement about it. You've done that to yourself you created it.
You can see I don't want this misunderstood because I believe in the jury system. But I'm down here for the length of my term until I get hit by a truck or something happens to me. I'm here everyday. I guarantee you — I hope it doesn't sound presumptuous — I guarantee you I could get the verdict in this case correctly as in any trial as you folks could be home at work, retired, on vacation, looking for a job, looking for a better job or just hanging out but you have created the jury trial system.
(T: 64).

After giving the preliminary instructions which are at issue here, and while the prospective jurors were out of the courtroom, defense counsel objected, saying that the trial court's remarks may have incorrectly conveyed to the jury that "there should be a certain result" and that the "jury system is unnecessary." Trial counsel asked for a curative instruction in the event the court would not agree to a new panel of jurors.

Justice McLaughlin responded:

I don't think there is anything wrong or erroneous with what I said. The comments [are] in the general context of the jury trial system [and] the necessity of having jurors and how they have created a system that they basically can't get out. I specifically told them that I didn't want my comment to be misunderstood because I am in fact in favor of the jury system.
Undercover officers testified at trial that on the evening of February 13, 1998 they were engaged in a buy-and-bust operation on West 137th Street, between Fifth and Lenox Avenues in Manhattan and described the conduct of Brown. Three individuals approached Brown, who was wearing a blue and black bubble coat, blue jeans and white sneakers, and asked for "pinks, pinks," and gave him money in exchange for an object the officer could not identify. After completing two of these transactions, Brown walked about five feet away and reached into a window ledge to remove a paper cup, removed several items from the cup, and placed them in his pockets before returning the cup to the same window ledge.

Over the next forty-five minutes, Brown gave objects to an additional four individuals in exchange for money. A woman, later identified as Ruby Pool, handed money to Petitioner in exchange for an object and placed the object in her right front pants pocked. When she was apprehended, a pink vial was recovered from her right front pants pocket. When Brown was arrested the arresting officer testified that he recovered four pink-topped vials from his waistband and seventy-five dollars from his right front pants pocket.

After the arrest, the undercover officer returned to the area where he had seen Brown secreting the paper cup and recovered a paper cup with thirty-five pink-topped vials contained in a large ziplock bag which were the same color as those recovered from Ruby Pool. A chemist testified that the vials contained cocaine.

On September 8, 1998, Petitioner was convicted on both counts. On October 5, 1998, Petitioner was sentenced as a second felony offender to concurrent ...


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