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United States District Court, Southern District of New York

May 1, 2003


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


Juan Montero pro se ("Montero" or the "Petitioner"), currently incarcerated at the Bare Hill Correctional Facility, Malone, New York, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate and set aside his conviction after a jury trial of one count of Criminal Possession of a Controlled Substance in the Second Degree (Penal Law § 220.18[1]), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), and Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50[1]). Defendant John Sabourin (the "State") has opposed the application which is denied for the reasons set forth below.

Prior Proceedings

Montero filed his application with the Pro Se Office on September 24, 2002, and the petition was filed October 30, 2002. The petition alleges as grounds for relief those grounds raised in his state appellate proceeding, namely, violation of his Fourth Amendment rights, the prosecutor's improper summation, and the submission to the jury of a lesser included offense.

The State's opposition was filed on February 24, 2003 at which time the application was considered fully submitted. No further reply has been received from Montero.

The State Proceedings

By New York County Indictment Number 7615/97, Montero, a passenger in a car driven by co-defendant Jose Roman, which had been stopped by the police, and Julio Martinez, a fellow passenger, were each charged with one count of Criminal Possession of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Weapon in the Third Degree (possession with intent to sell), and two counts of Criminally Using Drug Paraphernalia in the Second Degree. Montero was also charged with another count of Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell) and one count of Criminal Possession of a Controlled Substance in the Fifth Degree for the drugs recovered on his person.

Montero moved to suppress the drugs, money, baking soda, ice, and gun, as well as a statement he had made to the police. On May 21 and 27, 1998, the Honorable Charles Solomon, Supreme Court of the State of New York, New York County, held a combined Mapp/*fn1Dunaway/*fn2Huntley*fn3 hearing. Pursuant to an opinion dated August 21, 1998, the court denied Montero's motion to suppress the physical evidence and statement made to the police.

On January 7, 1999, Montero proceeded to trial before Supreme Court Justice Joan Sudolnik and a jury, his co-defendants having pled guilty. The People called Officers Aliberti and Burgos and Sergeant James Glenn with the Street Crime Unit. The police officers testified to their observations, the events leading to Montero and his co-defendants' arrests and the further investigation at the police station. The People also called George Annarella, a supervisor with the Special Narcotics Prosecutor's office who testified as an expert witness in the pricing, packaging, production, and distribution of narcotics. In addition, Gamil Hanna, a chemist with the New York City police laboratory testified for the People regarding his analysis and identification of the cocaine and heroin seized by the officers.

According to the testimony at trial, at or about 10:00 p.m. on September 12, 1997, Montero was one of two passengers in a 4x4 jeep that Jose Roman was driving in upper Manhattan; Julio Martinez was the other passenger. As the jeep drove past two unmarked police cars, Officer Marc Aliberti observed that its headlights were off. The police turned their turret lights on and followed the jeep in order to ticket the driver for the moving violation. As soon as Roman pulled over into a parking spot, Montero got out of the jeep and quickly tried to cross the street.

Officer Aliberti asked Montero to stop and to return to the jeep which he did. The officer could see the bag contained baking soda, an ingredient used for converting cocaine into crack. Officer Aliberti also found ice in the bag which was used for crack production.

While that was occurring, Officer Jorge Burgos spoke with Roman who opened the jeep's driver's side door to step out into the street. Officer Burgos approached Roman to prevent him from leaving the jeep. When he did that, Burgos saw a clear plastic bag on the floor where Montero had been sitting containing a white rocky substance that looked like cocaine. At that point all three men were placed under arrest. It was later determined that the rock of cocaine weighed four and three-eights of an ounce.

In a more thorough search of the jeep at the scene, the officers recovered a black bag containing $500 and a loaded operable pistol. The three men were placed in squad cars to be transported to the precinct. Before they left the area, Burgos found envelopes of heroin where Montero had been sitting which he claimed had accidentally fallen out of his pocket.

At the precinct, the three men were searched more thoroughly. Montero had eight vials of cocaine in crack form in his shoe. The police also recovered $2,454 from Montero, $369 from Roman and $1, 032 from Martinez.

Montero called Jose Roman to testify that the police officers had lied regarding the events leading to the traffic stop, that the drugs and the gun found in the car actually belonged to him, and that he had never showed Montero the drugs.

Judgment was entered against Montero on February 26, 1999, and he was sentenced as a second felony offender to concurrent terms of ten years to life on the second degree count and two terms of seven to fourteen years for each of the third degree counts and one year for the paraphernalia count.

Montero appealed to the Appellate Division, First Department on the following grounds: (1) that the stop and frisk by the arresting officers was illegal, the investigation of the car for a moving violation was a pretext to search the car, and that the discovery of cocaine in the car when the door was opened was a violation of Montero's constitutional right to be free from unreasonable searches and seizures; (2) that the court's submission of a lesser included offense over Montero's objection deprived him of his due process right to a fair trial, and (3) that the prosecutor's summation which repeatedly disparaged Montero shifted the burden of proof denying Petitioner of a fair trial.

The Appellate Division, First Department unanimously affirmed the convictions and sentences by order dated June 12, 2001, holding that there was ample basis for the court's finding that the stop was not pretextual and that the validity of the stop was based on objective circumstances and not on the police's subjective intent. People v. Montero, 284 A.D.2d 159, 160, 726 N.Y.S.2d 102, 103 (2001). The court also held that Montero's defense case "raised a sufficient issue as to the weight of the drugs to warrant submission at the People's request and over [petitioner's] objection, of second-degree possession as a lesser included offense of first-degree possession." Montero, 284 A.D.2d at 160, 726 N.Y.S.2d at 103 (citing People v. Argro, 37 N.Y.2d 929, 379 N.Y.S.2d 840 (1975)). Finally, the court rejected on the merits of Montero's claim that the prosecution's summation deprived him of a fair trial.

Subsequently, on June 14 and July 9, 2001, Montero applied for a certificate granting leave to appeal to the New York State Court of Appeals raising two of the three issues presented to the lower appellate court.*fn4 On July 25, 2001, Montero's application for leave to appeal to the Court of Appeals was denied. People v. Montero, 95 N.Y.S.2d 868, 715 N.Y.S.2d 223 (2000).

The Standard of Review

The provisions of 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), apply to Montero's federal claims that were adjudicated on the merits in state court. Under those provisions, a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court "unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The Supreme Court clarified that clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

The AEDPA also requires that federal habeas courts apply a "presumption of correctness" to a state court's factual findings. 28 U.S.C. § 2254(e)(1) ("a determination of a factual issue made by a State court shall be presumed to be correct"); Leslie v. Artuz, 230 F.3d 25 (2d Cir. 2000). In addition, a petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


The habeas corpus statute also requires that the petitioner exhaust all state remedies before bringing his petition into federal court. 28 U.S.C. § 2254(b)(1). If he does not, a court may, but need not, deny any unexhausted claims on the merits. 28 U.S.C. § 2254(b)(2). Under the exhaustion doctrine, state prisoners must give state courts a fair opportunity to act upon their claims before presenting them in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). This rule of comity requires that any and all claims of federal constitutional violations first be presented clearly to the highest available state court, including any discretionary court in the ordinary appellate process. Id. at 847; Teague v. Lane, 489 U.S. 288, 297 (1989); Brown v. Allen, 344 U.S. 443, 447 (1953); Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000); Acevedo v. Goord, No. 00 Civ. 8924, 2002 U.S. Dist. LEXIS 3258, at *20-21 (S.D.N.Y. Feb. 22, 2002). The burden is on petitioner to demonstrate his compliance with the exhaustion requirement. Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981). Additionally, the state courts need not have actually reviewed the claims raised. Rather, they must simply have been given a fair opportunity to do so. Aparicio v. Artuz, 269 F.3d 78, 87 (2d Cir. 2001) (whether a state appellate court can properly review a claim is a different question from whether the issue was raised in state court for the purpose of exhaustion).

The State does not dispute that Montero has fully exhausted two of the three claims raised in his petition in that he presented his claims relating to the stop and lesser included offense in federal constitutional terms in his direct appeal.

However, Montero's complaint concerning the prosecutor's summation was not fairly presented to the New York Court of Appeals, as counsel omitted any reference to this issue in his leave application. While counsel's letter of July 9 included generic language that Petitioner "relies upon his briefs in the Appellate Division for his main arguments and seeks leave to appeal based upon these issues," there was no mention of the leaveworthiness of the summation claim, or any specific reference to the claim at all. In these circumstances, Montero cannot be said to have fairly presented his summation claim to the New York Court of Appeals as there is sufficient likelihood that the court was unaware that Montero was seeking leave based on this non-referenced claim. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (where petitioner's leave letter argued one claim and made no reference to other intermediate appellate claims, the fact that he appended his appellate brief to the leave application was not sufficient to present the other claims in the brief to the highest state court); Jordan, 206 F.3d at 198-99 ("arguing one claim in [a leave] letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction"). Cf. Morgan v. Bennett, 204 F.3d 360, 369-70 (when petitioner's leave application "expressly" asked the Court "to consider and review all issues outlined in his appellate briefs," all issues deemed exhausted). And, given Montero's inability to present this claim to the Court of Appeals in the future,*fn5 this Court deems the claim constructively exhausted and procedurally barred from habeas review. Grey, 933 F.2d at 120.

However, federal habeas review is appropriate provided Montero can establish cause for the procedural default and prejudice resulting therefrom, or that a failure to review his claim will result in a miscarriage of justice. Murray v. Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72 (1977).

However, the petition does not provide valid reasons for Montero's failure to raise this issue with the Court of Appeals and therefore the prejudice issue need not be reached. See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995); Stepney v. Lopez, 760 F.2d 40, 45 (2d Cir. 1985).

The miscarriage of justice exception does not apply. Montero has made no assertions of innocence and has presented no "new evidence" which would support a finding of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995).

The Fourth Amendment Claim

In his petition, Montero asserts that the traffic stop for driving without headlights was a pretext to stop and search Montero and his co-defendants, the car, and their belongings, and that the police testimony that the car's driver opened his door to reveal a large plastic bag of cocaine was incredible.

However, it is well-settled that habeas review of Fourth Amendment claims that were, or could have been, previously litigated in state court are barred by Stone v. Powell, 428 U.S. 465 (1976). Under Stone, "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 481-82; see also Grey, 933 F.2d at 121; Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978). In the Second Circuit, federal courts can review the Fourth Amendment claims otherwise precluded by Stone only "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977); accord McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983).

It has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq., for litigating Fourth Amendment claims. Capellan, 975 F.2d at 70 n. 1; Gates, 568 F.2d at 837; Gonzalez v. Artuz, No. 99 Civ. 12277, 2001 U.S. Dist. LEXIS 20807, at *15-16 (S.D.N.Y. Dec. 12, 2001). Here, Montero fully availed himself of these procedures to challenge the seizure of evidence. He filed a motion pretrial seeking the suppression of this evidence, and received a full hearing on the matter on May 21, and 27, 1998. (Mapp/Dunaway/Huntley Hearing Minutes). At the conclusion of the hearing, Justice Solomon denied the motion finding in a detailed opinion dated August 21, 1998 that the stop was lawful and not pretextual. Justice Solomon also found that when Officer Burgos discovered the drugs, the police then had probable cause to search the vehicle and any containers in the car for further contraband, weapons and any other evidence. As a result, the firearm and the money recovered inside the car were lawfully sized. In addition, the items recovered after a search of Montero and his co-defendants' persons at the precinct were lawfully recovered pursuant to a search incident to a lawful arrest based upon probable cause.

Montero then sought and received further review of his Fourth Amendment claim when pursuing his direct appeal. The Appellate Division affirmed the conviction, holding that the record supported Justice Solomon's finding that the traffic stop was not pretextual but was based on the officers' observation of a traffic infraction. Given that Montero was able to litigate his Fourth Amendment claim both in the trial and appellate courts of the state, habeas review is simply unavailable. "[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002); see also Judge v. Kelly, No. 98 Civ. 1796, 2001 U.S. Dist. LEXIS 20652, at *14-15 (S.D.N.Y. Nov. 30, 2001) (Fourth Amendment claim precluded from review where petitioner litigated his claim at pretrial suppression hearing and on direct appeals). Federal intrusion is warranted only where petitioner is precluded from utilizing the existing procedural mechanism by reason of an "unconscionable breakdown" in that process. Gates, 568 F.2d at 840. As such is not the case at bar, and Montero received a full and fair litigation of his Fourth Amendment claim, this claim is denied.

Prosecutor's Summation 14

Montero contended that the prosecution resorted to improper emotional appeals, denigrating tactics, and reversals of the burden of proof. This claim is procedurally barred from review and in any event is meritless.

It is well-settled that the propriety of comments made by a prosecutor on summation generally does not present a meritorious federal question. E.g., Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A prosecutor's remarks, even if improper and beyond the bounds of fair advocacy, would not warrant the granting of a writ unless the remarks caused the petitioner substantial prejudice. Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990), cert. denied, 501 U.S. 1221 (1991). As the Supreme Court has held, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainright, 477 U.S. 168, 181 (1986) (quotations omitted). The relevant question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a violation of due process." Donnelly, 416 U.S. at 643; Darden, 477 U.S. at 181. In making this determination, a federal habeas court should consider the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper statements. Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (citing Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990); see also United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam).

Montero contended that the prosecutor in her summation attempted to shift the burden of proof onto the defense by arguing that counsel had not proven all the things he promised in his opening and arguing that the search and seizure issue had already been litigated and was "legitimate." In addition, he contends that the comment, "[t]o believe Jose Roman, the jury would have to believe petitioner was `the unluckiest man in the world,'" shifted the burden of proof. The Appellate Division concluded that these remarks did not abridge Montero's due process right to a fair trial and were entirely reasonable application of the principles set forth in Donnelly and Darden.

First, the prosecutor's remarks regarding the legality of the search and nature of Roman's testimony did not suggest that the defense was required to prove or disprove anything but reminded the jurors that the question of the propriety of the search had already been determined and they need not concern themselves with that issue. People v. Conklin, 145 A.D.2d 20, 28, 537 N.Y.S.2d 695, 700 (4th Dep't 1989) (Fourth Amendment issues for court, not jury), lv denied, 74 N.Y.2d 738, 545 N.Y.S.2d 112 (1989). Second, the comment that Montero was the "unluckiest man in the world" if they believed Jose Ramon responded to defense counsel's summation wherein he urged the jury to believe that Roman was the only credible witness and that he had no motive to lie and did not shift the burden of proof. See Garcia v. Artuz, No. 00 Civ. 4921, 2002 U.S. Dist. LEXIS 8213, at *18-20 (S.D.N.Y. May 8, 2002) (habeas 16 court rejected petitioner's claim that prosecutor's remarks about weaknesses of defense case shifted burden of proof). People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572, 575 (1st Dep't 1997) (in determining propriety of prosecutor's summation, arguments raised by defendant must be taken into account since prosecutor has right to respond), lv denied, 91 N.Y.2d 976, 672 N.Y.S.2d 855 (1998); People v. Morgan, 66 N.Y.2d 255, 259, 496 N.Y.S.2d 401, 403 (1985) (prosecutor's comments in response to defense counsel's summation though harmless error, did not deprive defendant of fair trial). The prosecutor did not state that Montero had the burden of proof. See United States v. Cruz, 797 F.2d 90, 93 n. 1 (2d Cir. 1986).

The prosecutor's comment that defense counsel had failed to prove at trial all the things he had promised in his opening to demonstrate, did not constitute improper burden-shifting. While a prosecutor may not suggest that a defendant has an affirmative obligation to present evidence on his own behalf, the Second Circuit has recognized that once a defendant does in fact put on a defense case, the prosecutor may fairly comment on the defense's failure to call witnesses to support his factual theory. United States v. Yuzary, 55 F.3d 47, 53 (2d Cir. 1995) (compiling cases); see also Diaz v. Mantello, No. 99 Civ. 12275, 2002 U.S. Dist. LEXIS 16577, at *4 (S.D.N.Y. Sept. 4, 2002).

The other remarks to which Montero objects likewise fall far short of violating Montero's due process rights. The Second Circuit has established that "a prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation." Maddaloni v. Griener, No. 97 Civ. 3034, 1999 U.S. Dist. LEXIS 15686, at *48 (S.D.N.Y. Oct. 7, 1995) (quoting United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1999)). In Maddaloni, the habeas court found comments such as "it was snowing in July," that the defendant's argument "was made up out of whole cloth," and that if the jury was to believe the defense, then "this was the most spectacular suicide in the history of mankind" to fall within "the category of hyperbole or colorful adjectives and promote a more zealous advocacy." 1999 U.S. Dist. LEXIS 15686, at *48.

Montero claims that the prosecutor unfairly attacked Jose Ramon's testimony by suggesting it was scripted. "If he forgot to say something, he was prompted very well by [petitioner's counsel]." According to Montero, the prosecutor tried to berate Montero's overall claim of innocence by asking sarcastically, "if these are not the [petitioner's], if these are Jose Roman's bag of drugs, what is the concern"? and her comment, "referring to the overwhelming evidence against [petitioner], what does [defense counsel] argue to you? Truth be told," was inappropriate. Montero claims the prosecutor committed misconduct in describing the defense as "throw[ing] everything at you but the kitchen sink," and that counsel wanted "to distract you from the evidence in this case." These comments, however, fall within the realm of "hyperbole and colorful adjectives" where the prosecutor was zealously advancing her position. Maddaloni, 1999 U.S. Dist. LEXIS 15686, at *48.

In the defense summation, the police witnesses were referred to as power hungry individuals with god complexes "who lied their butts off . . . about a lot of things." A statement that defense counsel's attacks on the police officers was an attempt to divert attention away from the central testimony has been held to be a proper response to defense counsel's challenges to the officers' credibility. Everett v. Fischer, No. 00-CV-6300, 2002 U.S. Dist. LEXIS 12075, at *7-8 (E.D.N.Y. July 3, 2002); see also Connery v. State, No. 93 Civ. 1448, 1993 U.S. Dist. LEXIS 4850 (S.D.N.Y. 1993). The prosecutor was entitled to respond to defense counsel where he referred to the traffic stop as a "pretext stop" and the officers' descriptions of the stop was so preposterous that "if you believe the cops in this case, there is a bridge not too far from here, that's the Brooklyn Bridge, because you know . . . these cops lied."

In addition, the trial judge sustained objections to comments made by the prosecutor, and where appropriate, struck the comments from the record. (See, e.g., id. at 36, 40, 44, 48, 50, 52, 54, 57, 58, 62, 63, 64, 65, 66, 71, 72); see also Everett, 2002 U.S. Dist. LEXIS at *10. The trial judge, in her charge, properly instructed the jury that statements made in summation were not evidence.

The "Second Circuit has looked to surrounding statements and jury instructions to cure the error and has been reluctant to set aside convictions" even when a prosecutor has made a statement shifting the burden. Shannon v. Senkowski, No. 00 Civ. 2865, 2000 U.S. Dist. LEXIS 16217, at *22 (S.D.N.Y. Nov. 9, 2000) (citing United States v. Cruz, 797 F.2d 90. In Cruz, 797 F.2d at 93, the Second Circuit upheld a district court's denial of a habeas writ where the prosecutor's admittedly burden-shifting statement was cured by surrounding corrective instructions.

Finally, any impropriety in the prosecutor's remarks, insufficiently addressed by the trial court, was harmless. The prosecutor's conduct was limited to her summation and it "did not permeate the trial." Matthews v. Artuz, No. 97 civ. 3334, 1999 U.S. Dist. LEXIS 8013, at *15 (S.D.N.Y. May 26, 1999) (quoting Bradley v. Meachum, 918 F.2d 383, 343 (2d Cir. 1990); see also Tankleff v. Senkowski, 135 F.3d 235, 253 (2d Cir. 1998) (prosecutorial misconduct claim rejected on habeas where "prosecutor's comments were short and fleeting and, thus much less likely to have had a substantial effect on the jury's verdict"). The evidence against Montero was strong. Montero has not demonstrated that the prosecutor's comments had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also Valdez v. Mazzuca, No. 00-CV-4961, 2002 U.S. Dist. LEXIS 11739, at *8 (E.D.N.Y. June 21, 2002) (comments by prosecutor that defendant was making up his story and was a mockery which was insulting to jury's intelligence, as well as being disrespectful to oath harmless error).

The acquittal of Montero by the jury on the count of first degree possession as well as the weapons possession charge stemming from the gun recovered from the jeep, demonstrates that the prosecutor's summation did not so inflame the jury as to make them unable to complete a fair and reasoned evaluation of the evidence.

No issue of constitutional dimension has been presented.

Lesser Included Offense

The Supreme Court has never held that the question of submission of lesser included offenses in a non-capital case implicates a federal constitutional right so as to render the claim cognizable for habeas review. See Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1998); Brown v. People, No. 97 Civ. 4416, 2000 U.S. Dist. LEXIS 2230, *22 (S.D.N.Y. Feb. 11, 2000) (citing Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996)). And, in the context of a claim that a lesser included offense should have been submitted, "[t]he circuit courts that have considered the issue are divided," Rice, 846 F.2d at 164, on whether the issue raises a federal claim. In these circumstances, a habeas court's finding that the Constitution is implicated when a state court makes a determination regarding the submission of a lesser included offense in a non-capital case would violate Teague v. Lane, 489 U.S. 288, which prohibits the imposition of new rules on the states through habeas review. Jones, 86 F.3d at 48.

While lesser included offense claims usually contend that the trial judge erred by failing to include a lesser included offense, federal habeas courts in this district have analyzed the submission of a lesser-included offense over defense objection in a similar manner, i.e., that it raises a pure state law issue. Wright v. Sullivan, No. 86 Civ. 2314, 1989 U.S. Dist. LEXIS 14812, at *17 (S.D.N.Y. Aug. 3, 1989) ("Where the accused has objected to the giving of instructions on a lesser included offense, . . . the issue under the law of New York is the same as where the accused has requested a lesser included offense . . ."), adopted by 1989 U.S. Dist. LEXIS 14006 (S.D.N.Y. Nov. 27, 1989); see also No. 99 Civ. 1188, Sira v. Artuz, 2000 U.S. Dist. LEXIS 17909, at *9 (E.D.N.Y. Dec. 5, 2000) (ruling decision to submit lesser included offense of attempted robbery in first degree instead of robbery in first degree was neither contrary to nor unreasonable application of clearly established Supreme Court law). "It is not the province of a federal habeas court to reexamine state court determinations on state-law questions" and, in conducting habeas review, federal courts are limited to determining whether the Constitution, laws or treaties of the United States have been violated. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing 28 U.S.C. § 2241); Rose v. Hodges, 423 U.S. 19 (1975).

Accordingly, in order to prevail on his claim that the submission of the lesser included offense violated his due process rights, Montero must show that the Appellate Division unreasonably misapplied state law in this area and that this erroneous application "deprived [him] of a fundamentally fair trial." Thomas v. Breslin, No. 01 Civ. 6657, 2002 U.S. Dist. LEXIS 160, at *23 (S.D.N.Y. Jan. 9, 20002) (quoting Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988)). This Montero has not done.

In New York, a trial court must submit any lesser included offense to the jury if it is requested by either party to do so, and "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. N.Y. Crim. Proc. Law § 300.50; Caban v. Mitchell, 897 F. Supp. 759, 763 (S.D.N.Y. 1995).

A defendant seeking a lesser included offense charge must demonstrate that (1) "it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense," and (2) "there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater." People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S. 660, 661 (1982) (per curiam); see also Rice, 846 F.2d at 165.

In determining whether to charge a jury on a lesser included offense, the evidence must be viewed in a light most favorable to the defendant. People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 420 (1983); People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 566 (1976). The court is not permitted to weigh the evidence in arriving at its determination. See Henderson, 41 N.Y.2d at 236, 391 N.Y.S.2d at 566 ("The court's appraisal of the persuasiveness of the evidence indicating guilt of the higher count is irrelevant"). The standard, therefore, is not whether there is "any view" of the evidence to support a conviction on the lesser offense only, but rather, whether there is a "reasonable view" to warrant such an instruction.*fn6 People v. Scarborough, 49 N.Y.2d 364, 373, 426 N.Y.S.2d 224, 230 (1980); see People v. Ford, 66 N.Y.2d 428, 497 N.Y.S.2d 637 (1985) (trial judge did not abuse discretion in submitting lesser included offense over defense objection).

In this case, Montero had questioned whether the chemist properly calibrated the scales, thereby raising doubt as to the weight of the drugs. Montero argued the jury should have only been instructed on the first degree possession charge and should not have been permitted to consider any lesser included offenses. However, as the trial court correctly determined, the second degree possession charge "is a lesser included offense as a matter of law. And although I believe the evidence is more than sufficient to establish more than four ounces because of the questioning of the chemist, I am going to submit criminal possession in the second degree as a lesser included offense."

By cross-examining Hanna at trial, defense counsel raised an issue as to the reliability and accuracy of the scales, thereby proffering a reasonable view of the evidence that Montero possessed at least two, but less than four, ounces of cocaine. The Appellate Division agreed, noting there was more than a reasonable view of the evidence here which would support a finding that Montero possessed at least two but not four ounces of cocaine, so as to warrant submission of the lesser included offense. Accordingly, the trial court should have and did submit the lesser included offense of second degree possession to the jury. Therefore, Montero's claim is without merit and should be denied.

Defense counsel also objected at trial that since Montero was not indicted on the second degree possession charge, the court could not include the lesser included offense. "Under New York law, it has always been regarded as proper for the Trial Judge to submit to the jury crimes now defined as `lesser included offenses' even though such offenses may not have been specifically charged in the indictment." Sira, 2000 U.S. Dist. LEXIS 17909, at *9 (quoting People v. Udzinski, 146 A.D.2d 246, 254, 541 N.Y.S.2d 9, 15 (2d Dep't 1989)).

As the trial court's ruling makes clear, there was a reasonable view of the evidence in the particular case that would support a finding that Petitioner committed the lesser offense but not the greater. Glover, 57 N.Y.2d at 63, 453 N.Y.S.2d at 661. Therefore, to the extent Montero is claiming a due process violation as a result of an error in state law, he has not met his burden.


Accordingly, for all of the foregoing reasons, Montero's application for a writ of habeas corpus is denied.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.

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