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April 28, 2003


The opinion of the court was delivered by: Michael H. Dolinger, United States Magistrate Judge


Petitioner Manuel Pena seeks a writ of habeas corpus to challenge his 1995 conviction in New York State Supreme Court, New York County, on a charge of Attempted Burglary in the Second Degree. The trial court found Pena to be a persistent violent felony offender and sentenced him to an indeterminate prison term of fifteen years to life.

By his petition, Pena asserts eight grounds to vacate his conviction, several of which involve complaints about his attorneys' performance at trial and on appeal. First, Pena argues that he was denied the effective assistance of trial counsel because his attorney failed to object to the sufficiency of evidence before the grand jury. Second, he argues that the State failed to make full disclosure of Rosario material and complains that defense counsel failed to object to the States nonproduction. Third, he asserts that the prosecutor erroneously failed to seek a court ruling before introducing evidence of uncharged crimes. Fourth, Pena argues that he received ineffective assistance of counsel due to counsel's failure to comply with the mandates of People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922 (1993), when seeking Dunaway/Wade and Huntley hearings. Fifth, he asserts that his right to appeal was abridged through ineffective assistance of appellate counsel. Sixth, he argues he was denied his right to a full Fourth Amendment hearing under Dunaway. Seventh, he argues that the mandates of N.Y.C.P.L § 440.10 are constitutionally infirm because they limit the petitioner's right of access to the court by allegedly suspending the state writ of habeas corpus. Finally, he complains that under state judicial practice, he has no access to copies of any trial records.

Respondent argues that the first four claims are procedurally barred and otherwise meritless. He argues that petitioner's remaining four claims have yet to be exhausted in state court, and are also meritless.

For the reasons outlined below, we conclude that all except one of petitioner's claims are without merit and dismiss those claims with prejudice.*fn1 We further conclude that petitioner's fifth asserted ground for relief — for ineffective assistance of appellate counsel — is unexhausted and should therefore be dismissed without prejudice.

Prior Proceedings

Pena's conviction stems from a May 16, 1995 attempted entry by an intruder into a second-floor apartment at 233-235 Henry Street in Manhattan. (See Appellant's Brief ("App's Br.") at 5-6; Respondent's Brief ("Resp't's Br.") at 1-2). Petitioner was arrested after Henara Cruz, a resident of the apartment, identified him at the scene as the man who had attempted to enter her apartment from a ledge outside the building.

1. Indictment and Pre-Trial Hearings

On May 19, 1995, a New York County grand jury returned an indictment charging petitioner with Attempted Burglary in the Second Degree under N.Y. Penal Law §§ 110.00, 140.25(5). (See App's Br. at 5; Resp't's Br. at 2).

Before trial commenced, defense counsel moved to suppress the on-the-scene identification of Pena by Cruz, and also moved to suppress an on-the-scene admission Pena allegedly had made to Cruz's sister. On September 27, 1995, the Honorable Budd G. Goodman, S.C.J., held a combined Dunaway/Wade hearing to determine whether police officers had had probable cause to arrest Pena and whether the "show-up" identification before Cruz had been unduly suggestive. (Transcript of Dunaway/Wade hearing ("Dun.") at 8-10).*fn2

Testimony at the hearing established that on May 16, 1995, at approximately 3:30 p.m., the police had received a radio run of a burglary in progress by a male Hispanic, twenty years old, wearing a white t-shirt and a black leather vest. (Dun. at 19-20). Sergeant Allen Cooper responded to the call, as did Police Officer Kenneth Perez. (Id. at 18-19, 66-67)

Upon arrival at the scene, Sgt. Cooper saw the complainant in her apartment window; she threw him her keys to unlock the front door of her apartment building. (Id. at 21-23). In her apartment, Ms. Cruz told the officers that a man had tried to enter her bedroom but had run away. (Id. at 23). Ms. Cruz also provided a further description of the intruder — a male Hispanic, twenty years old, five foot seven to five foot ten in height, thin build, medium skin, wearing blue jeans, white sneakers, white t-shirt, and a black vest.*fn3 (Id. at 24, 73). Sgt. Cooper subsequently broadcast this description over the police radio. (Id. at 24).

Sgt. Cooper then left Ms. Cruz in her apartment and proceeded to the roof of her building, which adjoined the roof of the building next door, 231 Henry Street. (Id. at 25). Sgt. Cooper then broadcast instructions for officers to search the adjacent building. (Id. at 25-26). When P.O. Perez tried to enter 231 Henry Street, he found the front door locked. (Id. at 69). However, Officer Perez remained by the building's door, and after approximately five minutes, he observed Manual Pena leaving the building. (Id. at 70).

Pena "somewhat" matched the description given by Cruz — he was a male Hispanic, approximately five foot ten, wearing blue jeans. (Id. at 27, 83-84). However, Pena was wearing black boots (not white sneakers), a plaid shirt (not a white t-shirt), and a black jacket (not a black vest). (Id.).

P.O. Perez asked Pena what he was doing in the building. (Id. at 70). Pena responded that he had been visiting a friend. (Id.). Upon request, Pena took Officer Perez to the apartment where his friend allegedly lived. (Id. at 70-71). When nobody answered the door at the apartment, P.O. Perez radioed in a request for a further description of the suspect. (Id. at 73-74). No further details were provided, but Sgt. Cooper instructed Officer Perez to bring Pena to the front of the building for a "show up". (Id. at 27, 74)

Once Pena was in front of the building, Sgt. Cooper brought Ms. Cruz to a window overlooking the scene and asked her if Pena was the person who had attempted to enter her apartment. (Id. at 30). At the time, Pena was not in handcuffs, but several uniformed and plainclothes officers were standing close to him. (Id. at 53-54). When Ms. Cruz first viewed Pena, she stated that she was unsure whether he was the intruder. (Id. at 31). She twice asked to see profile views of the suspect. (Id.). When she saw Pena's left profile, she positively identified him as the intruder. (Id.). Pena was thereafter handcuffed and placed under arrest. (Id. at 32).

Justice Goodman denied Pena's motion to suppress in its entirety, finding that probable cause had existed for his arrest and that the "show-up" had not been unduly suggestive. (Id. at 97-99). The court apparently credited the testimony of the officers in making this determination. (Id. See also App's Br. at 7; Resp't's Br. at 7).

2. Trial Proceedings

Jury selection proceeded before Justice Goodman on October 3, 1995, and the trial began on October 6, 1995. (Tr.I*fn4 at 13, 102).

Henara Cruz testified that she had been at home on May 16, 1995 when she saw a man on the ledge of her building attempting to enter her apartment through a partially-open window. (Tr.II at 64-65). Upon seeing this, Cruz coughed and made other noises to scare away the intruder, which apparently succeeded in causing him to retreat. (Id. at 67-69). During her testimony, Cruz identified petitioner in open court as the man who had attempted to enter her apartment. (Id. at 68). Ms. Cruz further testified that Pena had been wearing blue jeans, black sneakers, a striped shirt, a black leather vest, and glasses on the day of the incident. (Id. at 76). On cross-examination, Ms. Cruz denied ever telling the police that the intruder had worn white sneakers and a white t-shirt. (Id. at 98-99)

Sgt. Cooper and P.O. Perez recounted the sequence of events of the day in their testimony, which was substantially similar to that given at the Dunaway/Wade hearing described above. However, upon cross-examination, Sgt. Cooper admitted that he did not have a description of the suspect until he personally interviewed Ms. Cruz — and that his previous testimony to the contrary had been mistaken. (Id. at 22, 28-29). Furthermore, both Sgt. Cooper and Officer Perez recounted on cross-examination that Ms. Cruz's description to them had been of a male Hispanic, twenty years old, wearing a white t-shirt, white sneakers, and black vest, with no mention of glasses. (Id. at 31-33, 183-84)

Henara Cruz's sister, Maricella, also gave testimony. She explained that she resided in the same apartment with Cruz and that she had been previously acquainted with petitioner. (Id. at 121, 131-33). On the day of the crime, she had noticed police activity in front of her building after a stroll in Tompkins Square Park. (Id. at 126-28). Maricella ran upstairs to her apartment, found her sister in a hysterical condition, and tried to calm her down. (Id. at 128-29). When Maricella saw Pena being detained in front of her building, she went downstairs and confronted him with angry curses and questions about what he had done. (Id. at 131-32). According to Maricella, petitioner responded, "I'm sorry. I didn't know it was your apartment . . . I'm sorry MC." (Id. at 132).

Police Officer Dennis Morales also testified about the general sequence of events leading to the "show-up" and arrest of Pena. On direct, P.O. Morales stated that he had arrived on the scene approximately one minute after the radio call, and that nobody had left any of the buildings in the vicinity of 233-235 Henry Street after he arrived. (Tr.I at 200, 213-14). Upon cross-examination, Morales admitted that he had previously told Detective Lopez that he had indeed seen people exiting the building. (Id. at 220-23). Officer Morales maintained that his earlier statement had been a mistake. (Id. at 221)

Police Officers Dean Leser and Kaymoon Shen provided corroborating testimony about the general sequence of events leading to Pena's arrest. Police Officer Charles Covatti recounted that he had searched for fingerprints at the crime scene, but had been unable lift any prints due to "dirt and grime." (Tr.II at 220)

In closing argument, defense counsel stressed the inconsistencies between the testimony of Henara Cruz and that of Sgt. Cooper. (Tr.II at 243-50). Counsel also focused on the weakness of Cruz's identification testimony and argued that the "show-up" had been unduly suggestive. (Id. at 248-60). Finally, counsel attacked the credibility of the People's witnesses and highlighted contradictions that had been brought out on cross-examination. (Id. at 260-77).

In his closing argument, the prosecutor stressed the strength and simplicity of the case against Manuel Pena. (Id. at 278-305).

On October 16, the jury convicted petitioner of Attempted Burglary in the Second Degree. (Id. at 353). On November 9, 1995, Justice Goodman sentenced Pena, a persistent violent felony offender, to an indeterminate prison term of fifteen years to life. ...

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