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NIEVES-DELGADO v. PEOPLE

June 9, 2003

FELIX NIEVES-DELGADO, PETITIONER, AGAINST THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.


The opinion of the court was delivered by: Laura Taylor Swain, District Judge

MEMORANDUM OPINION AND ORDER

Pro se petitioner Felix Nieves-Delgado ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on January 11, 1996, in New York State Supreme Court, New York County. This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 2254. After a jury trial, Petitioner was convicted of Criminal Sale of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Third Degree, and Criminal Possession of a Controlled Substance in the Seventh Degree. Petitioner was sentenced to two concurrent prison terms of nine to eighteen years and one concurrent term of one year.

The Court has considered carefully all submissions relating to this matter. Petitioner's request for a writ is denied for the following reasons.

BACKGROUND

The following facts are undisputed, except where otherwise noted.

Petitioner's Arrest

On March 3, 1995, Detective Junior Edwards, Officer Marcos Vasquez, and Officer Edward Bennet of the Manhattan North Narcotics District were working as undercover officers. (Trial Transcript ("Tr.") at 21, 23-24, 27). They received approximately $100.00 in pre-recorded buy money from Detective Richard Ramos, who was the designated arresting officer for the undercover operation. (Id. at 24).

That afternoon, Edwards purchased $20.00 worth of heroin with the pre-recorded buy money from Petitioner at West 136th Street and Amsterdam Avenue in New York City. (Id. at 28, 29). During the trial, Edwards testified that after the purchase he radioed a description of Nieves-Delgado.wpd version 6/9/03 2 the Petitioner to Ramos, the arresting officer. (Id. at 25, 30). Ramos testified that he was in an unmarked car on Amsterdam Avenue and West 133rd Street and that, after hearing Edwards' description, he responded to Amsterdam Avenue and 136th Street. (Id. at 57, 59-61). Ramos approached Petitioner, identified himself, and placed Petitioner under arrest.

After arrest, Ramos searched Petitioner and found $970.00, including $20.00 of the pre-recorded buy money and twenty-one glassine bags of heroin in Petitioner's possession. (Id. at 64-65, 68). Three bags found on the ground near Petitioner also contained heroin. (Id. at 65). A dollar bill containing cocaine was also in Petitioner's possession at the time of arrest. (Id.). Detective Edwards identified Petitioner as the man who sold him the drugs. (Id. at 33).

Sandoval Hearing

At a pre-trial Sandoval hearing,*fn1 the trial court held that if Petitioner testified in his own defense, the prosecution would be allowed to question him regarding his prior convictions in order to impeach his testimony, specifically Petitioner's 1988 conviction for attempted sale of a controlled substance, as well as Petitioner's two felony convictions in 1989, although evidence of the nature of those felonies would not be admissible.*fn2 (Hearing Transcript ("Hr'g Tr.") at 3). The defense objected to this ruling. (Id. at 4). The trial judge also precluded the prosecution from questioning Petitioner regarding an arrest that took place on January 6, 1989, the disposition of which is unknown. (Id.).

Petitioner did not testify during the trial.

Subsequent Proceedings

Petitioner was sentenced on January 11, 1996. On February 9, 1996, Petitioner filed a timely notice of appeal with the Appellate Division, arguing that he was entitled to a new trial because the trial court had erred in its Sandoval ruling and that the sentences imposed were excessive. On December 1, 1998, the Appellate Division affirmed Petitioner's conviction, but modified Petitioner's sentence, which it found excessive, to two concurrent sentences of six to twelve years and one concurrent term of one year. People v. Nieves, 682 N.Y.S.2d 22 (1998). It also found that the Sandoval ruling "properly permitted the prosecution to question defendant about the fact that he was convicted of selling drugs in 1988 despite the similarity of this conviction to the crime charged in this case." Id. Petitioner next applied for leave to appeal to the Court of Appeals of New York, which, on February 15, 1999, found no question of law which ought to be reviewed and denied permission to appeal. People v. ...


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