United States District Court, S.D. New York
February 3, 2004.
LUIS LOPEZ, Petitioner, -against- GLENN S. GOORD, Commissioner of Department of Correctional Services, Respondent
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
Luis Lopez brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, following a jury trial in New York State Supreme
Court, Bronx County, challenging his convictions for Criminal Sale of a
Controlled Substance In or Near School Grounds, in violation of New York
Penal Law § 220.44(2), Criminal Sale of a Controlled Substance in the
Third Degree in violation of Penal Law § 220.39(1), and Criminal
Possession of a Controlled Substance in the Third Degree in violation of
Penal Law § 220.16. Mr. Lopez contends that: (1) the convictions were
obtained in violation of the Double Jeopardy Clause of the Fifth
Amendment and (2) the trial court improperly admitted unduly prejudicial
expert testimony in violation of his due process rights. For the reasons
set forth below, I recommend that the petition be denied.
On November 14, 1998, at about 6:45 p.m., Detectives Michael Walker,
Ralph Davis, Ernest Morris, and Corey Harris, Police Officer Michael
McCabe, and supervising Sergeant Hagstrom,*fn2 arrived in the area of
1815 University Avenue. (Respondent's Brief to the New York State Supreme
Court, Appellate Division ("Resp. App. Br."), attached to Affidavit of
Kimberly Morgan dated June 10, 2003 ("Morgan Aff.") as Exh. 2, at 4;
Petitioner's Brief to New York Court of Appeals ("Pet. App. Br.")
attached to Morgan Aff. as Exh. 4, at 5, 7, 8). Detective Walker, acting
in an undercover capacity, and his "ghost," Detective Davis, walked
toward 1815 University Avenue. (Resp. App. Br. at 4; Pet. App. Br. at 5).
Detective Davis positioned himself in an abandoned lot directly across
the street. (Resp. App. Br. at 4; Pet. App. Br. at 5).
As Detective Walker crossed the street, he saw Mr. Lopez and
co-defendant Melvin Rennock in front of the apartment. (Resp. App. Br. at
4; Pet. App. Br. at 5, 6). He approached Mr. Lopez and asked him for
heroin, and Mr. Lopez told the detective to go inside the building.
Detective Walker followed Mr. Rennock inside, where he was led to an area
containing mailboxes. (Resp. App. Br. at 4-5; Pet. App. Br. at 6). When
Mr. Rennock asked how many he wanted, Detective Walker said one, and Mr.
Rennock gave him a glassine of heroin marked with a medical insignia and
the words "Doctor Feelgood." Detective Walker gave Mr. Rennock two $5
bills of pre-recorded buy money. (Resp. App. Br. at 5; Pet. App. Br. at
After leaving the building, Detective Walker radioed Officer McCabe
that he had purchased the narcotics, described Mr. Lopez and Mr. Rennock
and their roles in the sale, and identified the sale location. (Resp.
App. Br. at 5; Pet. App. Br. at 6-7). About twenty minutes after the drug
sale, Detective Davis saw Mr. Lopez exit the building, get into a car,
and drive away. Detective Davis radioed that information to the field
team along with a description of the car. (Resp. App. Br. at 6; Pet. App.
Br. at 7).
Detectives Morris and Harris spotted the car, pulled it over in front
of 1683 University Avenue, and asked Mr. Lopez and the female driver to
exit the vehicle. (Resp. App. Br. at 6; Pet. App. Br. at 7-8). Officer
McCabe arrived and radioed Detective Walker to drive past the location.
(Resp. App. Br. at 6; Pet. App. Br. at
9). When Detective Walker did so, he identified Mr. Lopez as the
"steerer" who had facilitated the drug sale. (Resp. App. Br. at 5-6;
Pet. App. Br. at 9). Detective McCabe searched Mr. Lopez but did not find
the prerecorded buy money. (Resp. App. Br. at 6-7; Pet. App. Br. at 9).
Meanwhile, Detective Davis entered 1815 University Avenue and saw Mr.
Rennock leaving. He radioed Officer McCabe, who stopped Mr. Rennock in
front of the building. (Resp. App. Br. at 7; Pet. App. Br. at 9).
Detective Walker drove past the building and identified Mr. Rennock about
twenty-five minutes after the drug sale. (Resp. App. Br. at 7; Pet. App.
Br. at 9-10). Officer McCabe searched Mr. Rennock and found $40.00, but
it did not include the pre-recorded buy money. (Resp. App. Br. at 7; Pet.
App. Br. at 10). Inside the building, Officer McCabe found one glassine
of "Doctor Feelgood" heroin in the mailbox area. (Resp. App. Br. at 7;
Pet. App. Br. at 10).
On July 21, 1998, a Grand Jury in Bronx County indicted Mr. Lopez on
charges of Criminal Sale of a Controlled Substance in the Third Degree
and Criminal Possession of a Controlled Substance in the Third Degree
(two counts) in Indictment No. 5040/98. (Morgan Aff., ¶ 5). Mr. Lopez
later pled guilty to the criminal sale charge and did not proceed to
trial on that indictment. (Pet. App. Br. at 25).
On December 8, 1998, the Grand Jury returned Indictment No.
7890/98, charging Mr. Lopez and Mr. Rennock with acting in concert with
each other to commit the crimes of Criminal Sale of a Controlled
Substance In or Near School Grounds, Criminal Sale of a Controlled
Substance in the Third Degree, and Criminal Possession of a Controlled
Substance in the Third Degree (two counts). (Morgan Aff., ¶ 6). This
indictment gave rise to the trial proceedings that are at issue in the
B. Trial Proceedings
Prior to trial, Mr. Rennock's attorney told the court that while
pre-recorded buy money had been used in the transaction, none had been
recovered. (Tr. at 200-01).*fn3 The prosecutor informed the court that
he intended to explain the absence of the buy money by introducing expert
testimony concerning "the basic background information on street level
buy operations, the various players involved in street level operations
and their roles." (Tr. at 201). In particular, the prosecutor argued that
to explain the 25-minute gap between the sale and the arrests, it was
necessary to explain that there are various roles in a street-level sale,
including the person responsible for holding the money. (Tr. at 204). He
stated that the jury may not be "expert enough to understand the
intricacies of a . . . street level drug transaction ." (Tr. at
203). The prosecutor explained that there
are five different roles in these operations steerer,
hand-to-hand, money man, stash man, and manager and that these
two defendants played all five roles. He asserted that the expert was
necessary to explain this "business" to the jury. (Tr. at 204-05).
The trial judge stated that the proposed testimony was "too much" and
set a limit on the testimony that could be admitted.
The most I would like to do is have this person
explain that it can be typical for any drug
operation to have one person act as the person who
steers the undercover to another person who sells,
and that it's not unusual to have prerecorded buy
money not be present [after] a 25 minute lapse;
very limited testimony along those lines, I think,
has been permitted, if you think that's necessary,
People, but that being the limit of it.
(Tr. at 205-06). Both Mr. Lopez's and Mr. Rennock's attorneys
objected to admission of the expert testimony. (Tr. at 207-08).
After the completion of jury selection, but prior to the start of
trial, Mr. Rennock's attorney tried for a second time to exclude the
expert. (Tr. at 414). This time he argued that the admission of the
expert's testimony would be more prejudicial than probative because it
would imply that Mr. Lopez and Mr. Rennock were involved in a large drug
operation. (Tr. at 414-16). The court disagreed but again cautioned the
prosecutor to limit the testimony to explaining the absence of buy money.
(Tr. at 419). The court also advised the prosecutor not to "suggest that
the defendants were involved in any broad scale conspiracy."
(Tr. at 419-20).
Prior to the expert taking the stand, both Mr. Rennock's and Mr.
Lopez's attorneys renewed their objections. (Tr. at 688-89).
The court overruled both objections, and Sergeant Gary McDonald was
sworn in and qualified as an expert. (Tr. at 689, 732-38). During his
testimony, Sergeant McDonald stated that "[s]treet level drug operations
[are] multi-faceted. It can have a number of different people who are
involved. The primary individual that we term the pitcher is the
hand-to-hand. . . .He has a number of people who can help him." (Tr.
at 739-40). The court sustained an objection by Mr. Rennock's attorney to
this last comment. Sergeant McDonald then went on to testify about the
definition of pre-recorded buy money, its role in the street level drug
trade, and the likelihood of recovering it after the transaction. He also
stated that it was not "unusual" for pre-recorded buy money to be absent
if there is a lapse between the time the drugs are purchased to the time
the seller is arrested. (Tr. at 743). Sergeant McDonald added that "the
purpose of a drug organization, an organization [that] sells narcotics is
to make money and, again, they go [to] lengths to protect not only the
product of the drugs but also protect their proceeds which [are] the
currency." (Tr. at 744). Finally, on redirect Sergeant McDonald described
the various ways in which pre-recorded buy money could be hidden "to
prevent it from being recovered should the individual who's selling
narcotics be arrested." (Tr. at 754).
After Sergeant McDonald left the stand, Mr. Lopez's counsel objected
that the expert's entire testimony was "pure argument,"
(Tr. at 763), and Mr. Rennock's attorney requested a mistrial. The
court denied the request for a mistrial, emphasizing that he had
interceded when the expert had mentioned "other people" and that there
was no motion to strike the testimony. (Tr. at 765-66). The court also
offered to give a curative instruction with respect to Sergeant
McDonald's reference to the participation of other people in the sale.
(Tr. at 767). Both defense attorneys declined this offer on the ground
that it would "further underscore the prejudice that has already inured."
(Tr. at 795-96).
After trial, the jury found both Mr. Lopez and Mr. Rennock guilty of
Criminal Sale of a Controlled Substance In or Near School Grounds,
Criminal Sale of a Controlled Substance in the Third Degree, and two
counts of Criminal Possession of a Controlled Substance in the Third
Degree. (Pet. App. Br. at 25; Respondent's Brief to the New York Court of
Appeals ("Resp. CoA Br."), attached to Morgan Aff. as Exh. 5, at 10). On
March 6, 2000, Mr. Lopez was sentenced to four concurrent indeterminate
terms of imprisonment of seven and one-half to fifteen years. (Pet. App.
Br. at 25; Resp. CoA Br. at 10).*fn4
C. Post-Trial Proceedings
The petitioner appealed his convictions to the Appellate
Division, First Department. In his appeal, Mr. Lopez raised four
claims. First, he argued that the testimony of the expert deprived him of
his right to a fair trial. Second, he argued that the trial court
"impermissibly delegated" its judicial responsibility when it directed a
court officer to recite substantive legal instructions to the jury during
a recess. Third, the petitioner contended that his convictions for
Criminal Sale of a Controlled Substance In or Near School Grounds, and
for Criminal Sale of a Controlled Substance in the Third Degree, violated
his Double Jeopardy rights, and that his conviction for Criminal
Possession of a Controlled Substance in the Third Degree should be
dismissed in the interest of justice. Fourth, he maintained that his
guilty plea to one count of Criminal Sale of a Controlled Substance in
the Third Degree under Indictment No. 5040/98 should be vacated because
it was induced by a promise that he would receive a sentence concurrent
with that imposed under Indictment No. 7890/98. (Morgan Aff., ¶ 9;
Petitioner's Brief to the Appellate Division, attached to Morgan Aff. as
Exh. 1, at 2-3).
On November 20, 2001, the Appellate Division modified Mr. Lopez's
judgment of conviction by vacating his conviction on one count of
Criminal Possession of a Controlled Substance in the Third Degree as a
"non-inclusory concurrent count" of the third degree criminal sale count.
People v. Lopez, 288 A.D.2d 118, 120, 733 N.Y.S.2d 50, 51 (1st
Dep't 2001). The court rejected all of the
petitioner's other arguments and affirmed his remaining
convictions. Id. at 120, 733 N.Y.S.2d at 51. With regard to Mr.
Lopez's contention concerning expert testimony, the Appellate Division
The court properly exercised its discretion in
admitting expert testimony on street-level
narcotics transactions. The expert testimony was
not based on speculation and was relevant to
explain defendant's role in the transaction and
the absence of drugs or pre-recorded buy money on
defendant's person when arrested. Furthermore, the
testimony carried no suggestion that defendant was
involved with drug trafficking on a larger scale
than at street level. Although defendant argues
that the expert testimony was cumulative to
testimony given by the undercover officer, whether
evidence should be excluded as cumulative is a
matter that rests within the sound discretion of
the trial court, and we do not find the evidence
to be cumulative.
Id. at 119, 733 N.Y.S.2d at 51 (internal quotations
omitted). With respect to Mr. Lopez's double jeopardy argument, the
Appellate Division stated that:
Defendant's claim that his conviction at a single
trial of both criminal sale of a controlled
substance in the third degree and criminal sale of
a controlled substance in or near school grounds
violates the prohibition against double jeopardy
is without merit.
Id. at 119, 733 N.Y.S.2d at 51 (citation omitted).
On January 28, 2002, the New York Court of Appeals granted Mr. Lopez
leave to appeal. On appeal, the petitioner advanced three arguments.
First, Mr. Lopez contended that the trial court abused its discretion by
permitting expert testimony that was unnecessary. Second, he urged that
the Double Jeopardy Clause barred his convictions. Third, he argued that
his guilty plea to Indictment
No. 5040/98 should be vacated. (Morgan Aff., 112; Pet. App. Br. at
2-3). In a decision and order dated October 24, 2002, the Court of
Appeals affirmed the petitioner's convictions. People v.
Gonzalez, 99 N.Y.2d 76, 751 N.Y.S.2d 830 (2003).*fn5 It held that
Mr. Lopez had defaulted his double jeopardy claim by failing to raise an
objection during trial. Id. at 82-83, 751 N.Y.S.2d at 833. With
respect to the expert testimony claim, the Court of Appeals applied an
abuse of discretion standard and found no error in the trial court's
application of the law. Id. at 83, 751 N.Y.S.2d at 833.
Mr. Lopez then filed the instant petition, renewing two of the
arguments made on direct appeal. First, he claims that his convictions
for Criminal Sale of a Controlled Substance In or Near School Grounds and
Criminal Sale of a Controlled Substance in the Third Degree were obtained
in violation of the Double Jeopardy Clause. Second, he argues that the
introduction of expert testimony was so prejudicial that he was deprived
of due process. I will address each argument in turn.*fn6
A. Double Jeopardy
1. Independent and Adequate State Grounds
When a state court judgment rests on independent and adequate state law
grounds, including a petitioner's failure to meet state procedural
requirements, a federal habeas court may not consider the petitioner's
substantive claims. Coleman v. Thompson, 501 U.S. 722, 729-30
(1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). For
a state procedural rule to preclude federal habeas review, it must be
both "independent of the federal question and adequate to support the
judgment." Coleman, 501 U.S. at 729. A state law ground is
not independent of federal law if it is "so interwoven with the
[federal ground] as not to be an independent matter." Enterprise
Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 164
(1917). "[W]hen resolution of the state procedural law question depends
on a federal constitutional ruling, the state-law prong of the court's
holding is not independent of federal law." Ake v. Oklahoma,
470 U.S. 68, 75 (1985).
In Besser v. Walsh, 02 Civ. 6775, 2003 WL 22801952 (S.D.N.Y.
Nov. 26, 2003), a court in this District recently held that a New York
court's procedural default ruling was not sufficiently
independent of federal law to preclude federal habeas review.
Specifically, the New York Court of Appeals in that case declined
to hear the defendant's challenge to his sentence as a persistent
felony offender under Apprendi v. New Jersey, 530 U.S. 466
(2000), because he had failed to raise the claim during his sentencing;
it also determined that the "mode of proceedings" exception to the
contemporaneous objection rule did not apply. Besser, 2003 WL
22801952, at *1, 3, 5.*fn7 On habeas review, the district court held
that, in applying the "mode of proceedings" exception, the New York Court
of Appeals resolved the issue "not on purely state procedural grounds,
but rather by finding the underlying [federal constitutional] claim
meritless and then holding that a meritless claim could not qualify as a
`mode of proceeding' error." Id. at *6. The state court's
procedural ruling was therefore not "independent" of federal law, as it
was predicted on a resolution of the underlying federal constitutional
claim. Id. at *5, 12.
As in Besser, the New York Court of Appeals in this case
declined to hear the petitioner's double jeopardy claim based on New
York's contemporaneous objection rule, New York Criminal Procedure Law
("CPL") § 470.05(2), i.e., the petitioner's failure to raise the
claim during trial. Gonzalez, 99 N.Y.2d at 82-83, 751 N.Y.S.2d
at 832-33. The Court of Appeals also assessed whether an
exception to the rule applied,*fn8 and in so doing, followed a
two-step analysis. First, the court classified double jeopardy claims
into three separate categories:
The Double Jeopardy Clause consists of three
separate guarantees: (1) "It protects against a
second prosecution for the same offense after
acquittal. (2) It protects against a second
prosecution for the same offense after conviction.
(3) And it protects against multiple punishments
for the same offense" (North Carolina v.
Pearce, 395 U.S. 711, 717, 23 L.Ed.2d 656,
89 S.Ct. 2072 ). The cases before us fall
within the third category as each involves a
single trial based on the same act, resulting in
Gonzalez, 99 N.Y.2d at 82, 751 N.Y.S.2d at 832. Based on
this classification, the Court of Appeals held, relying on state and
federal case law, that the first two categories satisfied the exception,
while the third did not. As the petitioner's claim fell into the third
category, it could not be reviewed in light of his failure to object:
The first two categories implicate the
jurisdiction and authority of the court and are
thus reviewable by this Court despite a
defendant's failure to object (see People v.
Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371,
394 N.E.2d 1134 ). As we stated in
Michael, the "obvious jurisdictional
overtones" attendant to a double jeopardy claim
presented the Court with a question of law so
fundamental that it rendered preservation of the
issue unnecessary (see Michael, 48
N.Y.2d at 7). Thus where a defendant is retried,
despite a constitutional double jeopardy defense,
a failure to object is not fatal to his
The cases before us, however, are quite different.
Each defendant faced multiple charges arising out
of a single act that led to concurrent sentences.
These cases, as contrasted to Michael,
turn not on the jurisdiction or authority of the
court but on whether the Legislature intended to
authorize such multiple punishments (see
Missouri v. Hunter, 459 U.S. 359,
366-368, 74 L.Ed.2d 535, 103 S.Ct. 673 ).
That question may only be reached following a
threshold determination of "what punishments the
Legislative Branch has authorized" (Whalen v.
United States, 445 U.S. 684, 688,
63 L.Ed.2d 715, 100 S.Ct. 1432 ). As long as the
Legislature intended to impose cumulative
punishments for a single offense, "a court's task
of statutory construction is at an end" and no
constitutional double jeopardy claim is implicated
(Missouri v. Hunter, 459 U.S. at
368-369). Since the permissibility of multiple
punishments in this situation presents a question
of statutory interpretation, a defendant is
required to preserve such a claim.
Gonzalez, 99 N.Y.2d at 82, 751 N.Y.S.2d at 832-33.
As in Besser, the Court of Appeals' ruling in this case did
not rest on an independent state ground because it determined
the merits of the underlying double jeopardy claim. In holding that the
petitioner's claim was procedurally barred, the Court of Appeals reasoned
that the petitioner's claim rested on a question of legislative intent,
and that "[a]s long as the Legislature intended to impose cumulative
punishments . . . no constitutional double jeopardy claim is
implicated"; it concluded that such matters of "statutory
interpretation" do not satisfy the exception to the contemporaneous
objection rule. Gonzalez, 99 N.Y.2d at 82, 751 N.Y.S.2d at 833
(emphasis added) (internal quotation marks
omitted). These statements suggest that the Court of Appeals
construed the petitioner's claim as purely statutory in nature,
i.e., depending solely on an exercise of statutory construction. It
therefore rejected the petitioner's constitutional claim as a
matter of law, and then based on that merits determination, held that the
exception to the contemporaneous objection rule could not apply.*fn9
However, even if the Court of Appeals' decision is not characterized as
a determination on the merits, it did not rest on an independent state
ground because in reaching its procedural ruling, the Court of Appeals
relied on United States Supreme Court cases namely, North
Carolina v. Pearce, 395 U.S. 711 (1969), Missouri v.
Hunter, 459 U.S. 359 (1983), and Whalen v. United States,
445 U.S. 684 (1980) for the proposition that the type of claim
asserted by the petitioner rests solely on a question of legislative
intent. Based on this federal law principle, the Court of Appeals
concluded that such matters do not implicate the "jurisdiction or
authority of the court" so as to justify an
exception to the contemporaneous objection rule.
Gonzalez, 99 N.Y.2d at 82; 751 N.Y.S.2d at 833. In this way,
the Court of Appeals' procedural ruling necessarily depended on federal
law and cannot be deemed an independent state ground. See Roy v.
Coxon, 907 F.2d 385, 388-91 (2d Cir. 1990) (finding state ground
not independent where Vermont court applied federal law to
determine whether defendant's claim constituted "per se" exception to
contemporaneous objection rule); cf. Michigan v. Long,
463 U.S. 1032, 1038 n.4 (1983) ("[I]f, in our view, the state court `felt
compelled by what it understood to be federal constitutional
considerations to construe . . . its own law in the manner it did,'
then we will not treat a normally adequate state ground as independent.")
(quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)).
For the foregoing reasons, the Court of Appeals' procedural default
ruling did not rest on an independent state ground. Accordingly, it is
necessary to proceed to the merits of the petitioner's double jeopardy
a. Standard of Review
Prior to the passage of the Antiterrorism and Effective Death Penalty
Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996), factual
findings made by a state court after an evidentiary hearing were presumed
correct in a federal habeas proceeding, but federal
courts were not required to defer to state court determinations of
law and of mixed questions of law and fact. See Thompson v.
Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz,
283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, federal courts
may not grant a writ of habeas corpus unless the state court's decision
was either "contrary to, or involved an unreasonable application of,
clearly established Federal law." 28 U.S.C. § 2254(d)(1); see
also Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001). This deference
is only required where the state court "adjudicated [the claim] on the
merits," 28 U.S.C. § 2254(d); otherwise, the pre-AEDPA, de
novo standard of review applies. Noble, 246 F.3d at 98;
Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001).
In Williams v. Tavlor, 529 U.S. 362, 405-08 (2000), the United States
Supreme Court differentiated between the "contrary to" and "unreasonable
application" clauses of 28 U.S.C. § 2254(d)(1). It held that a state
court decision is "contrary to" federal constitutional law if the
decision either "arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law," or "confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [it]." Id. at 405. By contrast,
a state court decision involves an "unreasonable application" of Supreme
Court precedent if the state court "identifies the correct governing
legal rule from [Supreme Court] cases but unreasonably applies it
to the facts of the particular state prisoner's case," or if the
court either "unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply."
Id. at 407.
In this case, the Court of Appeals held that the petitioner had
procedurally defaulted his double jeopardy claim. However, this
procedural ruling, as noted above, relied on an implicit determination of
the merits of the petitioner's claim. In such a case, the Court of
Appeals' decision would be an "adjudication on the merits" under
28 U.S.C. § 2254(d), to which the deferential AEDPA standard would
apply. See Besser, 2003 WL 22801952, at *12 (applying AEDPA
standard where state court resolved merits of underlying claim in issuing
However, if the Court of Appeals' decision is construed as
not having reached the merits of the petitioner's claim, this
Court may be required, in lieu of conducting de novo review, to
review the prior decision of the Appellate Division under the AEDPA
standard. See Cotto v. Herbert, 331 F.3d 217, 231 (2d. Cir
2003) (leaving open question of whether AEDPA should apply to
intermediate state court's adjudication on merits, where highest court
subsequently dismisses claim on procedural grounds). The Appellate
Division's ruling in which it stated, "Defendant's claim that his
conviction . . . violates the prohibition against double jeopardy
is without merit," Lopez, 288 A.D.2d at 119, 733 N.Y.S.2d
at 51 clearly qualifies as an "adjudication on the merits," to
which the AEDPA standard would normally apply. See Sellan, 261
F.3d at 314 (deeming summary denial to be "adjudication on the merits").
Whether the Court of Appeals or Appellate Division decision is more
appropriately the focus of analysis need not be decided. As discussed
below, while the Court of Appeals' ruling was "contrary to" clearly
established federal law, a de novo review of the petitioner's
claim shows that the ruling was harmless error. Accordingly, it is
unnecessary to consider the Appellate Division's decision in the
alternative, since review of that decision under the AEDPA standard would
necessarily yield the same conclusion,
b. Clearly Established Federal Law
To warrant habeas relief under the AEDPA, a state court's decision must
be contrary to or unreasonably apply "clearly established Federal law,"
defined as "the holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant state-court decision."
Williams, 529 U.S. at 364; Overton v. Newton,
295 F.3d 270
, 275-76 (2d. Cir. 2002). The "clearly established" Supreme Court
precedents applicable to this case pertain to the standards governing
"multiple punishment" claims under the Double Jeopardy Clause of the
Fifth Amendment. In the following often-quoted passage in
Pearce, 395 U.S. at 717, the Supreme Court stated:
That guarantee [against double jeopardy] has been
said to consist of three separate constitutional
protections. It protects against a second
prosecution for the same offense after acquittal.
It protects against a second prosecution for the
same offense after conviction. And it protects
against multiple punishments for the same offense.
Multiple-punishment claims can arise both from a single prosecution
of a defendant, see, e.g., Whalen, 445 U.S. at 685-86
(prosecution of same crime under two different statutes), and from
successive prosecutions, see, e.g., Pearce, 395 U.S. at 713-15
(retrial on same offense following reversal of conviction).
It is "clearly established" that in the context of a single
prosecution, the question of whether the imposition of multiple
punishments violates double jeopardy is a matter of legislative intent.
In Whalen, a defendant was convicted after a single trial of
rape and of killing the victim in the perpetration of the rape (i.e.,
felony murder). Whalen, 445 U.S. at 685-86. In considering the
defendant's claim that "the pertinent statutes impose[d] on him multiple
punishments for the same offense in violation of the Double Jeopardy
Clause," id. at 687, the Supreme Court held that because "the
District of Columbia Court of Appeals was mistaken in believing that
Congress authorized consecutive sentences in the circumstances of this
case,. . . that error denied the petitioner his constitutional
right." Id. at 690.*fn10
Despite its ultimate outcome, however, Whalen did not
definitively hold that a multiple punishment claim is solely,
and in all cases equivalent to, a question of legislative intent
in other words, that where there is legislative intent to impose multiple
punishments for a single offense, the constitutional standard under the
Double Jeopardy Clause is automatically satisfied. For this reason,
Justice Blackmun wrote in a concurring opinion, "I believe that the Court
should . . . hold clearly that the question of what punishments are
constitutionally permissible is not different from the question of what
punishments the Legislative Branch intended to be imposed." Id.
at 698. In a separate dissent, Justice Rehnquist further suggested that,
"if the only question confronting this Court is whether Congress intended
to authorize cumulative punishments . . ., this Court need decide no
constitutional question whatsoever." Id. at 702.
In Albernaz v. United States, 450 U.S. 333 (1981), the Supreme Court
resolved the conflict in Whalen by adopting Justice Blackmun's
view of the constitutional standard to be applied in double jeopardy
cases premised on multiple punishments arising from a single prosecution.
In Albernaz, a defendant was convicted at a single trial of
conspiracy to import marijuana and conspiracy to
distribute marijuana under two separate sections of a federal
narcotics statute. Id. at 334. The Supreme Court first
considered the defendant's statutory claim, holding that the two
punishments were permissible because "Congress intended to permit the
imposition of consecutive sentences for violations of [the two
sections]." Id. at 343. The Court then went on to address the
defendant's constitutional claim, specifically, the contention that "even
if cumulative punishment was authorized by Congress, such punishment is
barred by the Double Jeopardy Clause of the Fifth Amendment."
Id. at 336, 343. Adopting the phrasing from Justice Blackmun's
concurring opinion in Whalen, the Supreme Court held that the
finding of Congressional authorization in Albernaz was, without
more, sufficient to resolve the constitutional issue:
[T]he question of what punishments are
constitutionally permissible is not
different from the question of what
punishments the Legislative Branch intended to be
imposed. Where Congress intended, as it did here,
to impose multiple punishments, imposition of such
sentences does not violate the Constitution.
Albernaz, 450 U.S. at 344 (emphasis added).
The rule, as established in Albernaz, has been applied in
subsequent Supreme Court cases concerning multiple punishment double
jeopardy claims. In Missouri v. Hunter, 459 U.S. 359 (1983),
the defendant was convicted in state court of robbery in the first
degree, and of armed criminal action for committing the robbery with the
use of a dangerous or deadly weapon. Id. at 361-62. Like the
Supreme Court in Albernaz, the state court found that
the Missouri legislature had intended to impose separate
punishments for the two offenses; nevertheless, it held that the Double
Jeopardy Clause independently precluded the multiple punishments because
the two offenses at issue were the "same offense" under the test set
forth in Blockburger v. United States, 284 U.S. 299
(1932).*fn11 Hunter, 459 U.S. at 363-64. In reversing the
state court, the Supreme Court held again that the finding of legislative
intent was sufficient to satisfy the constitutional standard under the
Double Jeopardy Clause. As the Court stated, "[w]here, as here, a
legislature specifically authorizes cumulative punishment under two
statutes, regardless of whether those two statutes proscribe the `same'
conduct under Blockburger, a court's task of statutory
construction is at an end and the prosecutor may seek and the trial court
or jury may impose cumulative punishment under such statutes in a single
trial." Id. at 368-69.
c. Court of Appeals' Decision
In Williams, 529 U.S. at 405-06, the Supreme Court offered an
example of a case that would be encompassed by the "contrary to" clause
of 28 U.S.C. § 2254(d)(1). It stated that, if a state court were to reject
an ineffective assistance of counsel claim because a defendant had failed
to show by a "preponderance of the evidence"
that the outcome of his criminal proceedings would have been
different absent his attorney's deficient performance, such a ruling
would be "contrary to" federal law because under Strickland v.
Washington, 466 U.S. 668 (1984), a defendant is only required to
demonstrate a "reasonable probability" of a different outcome. In this
way, the application of an erroneous legal rule that contradicts a rule
established by the Supreme Court falls within the "contrary to" clause of
28 U.S.C. § 2254(d)(1).
The Court of Appeals in this case applied an erroneous legal rule in
the manner described by the Williams court. In dismissing the
petitioner's claim as procedurally barred, the Court of Appeals reasoned
first, that the petitioner's claim fell into the third category of double
jeopardy claims identified by the Supreme Court in Pearce. It
then stated, citing Whalen and Hunter, that such
"multiple punishment" claims turn on a question of legislative intent,
and that "[a]s long as the Legislature intended to impose cumulative
punishments . . . no constitutional double jeopardy claim is
implicated." Gonzalez, 99 N.Y.2d at 82, 751 N.Y.S.2d at 833
(emphasis added) (citation omitted). The Court therefore concluded that
since the petitioner's claim did not implicate the Constitution (i.e.,
because it was a purely "statutory" claim), it failed as a matter of law
and could not be reviewed under the exception to New York's
contemporaneous objection rule. This holding, however, is contrary to the
Supreme Court's decisions in
Whalen, Albernaz, and Hunter. While those cases
established the rule that multiple punishment claims are solely a matter
of legislative intent, they did not hold that the Double
Jeopardy Clause is not implicated in such cases.*fn12
The fact that the Court of Appeals' decision violates the AEDPA
standard, however, does not end the inquiry, as it is necessary to
determine whether the error was harmless. See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (identifying harmless error
standard on habeas review as "whether the error had substantial and
injurious effect or influence in determining the jury's verdict")
(internal quotation marks and citation omitted). In this case, the
harmless error inquiry can be resolved by a de novo review of
the two statutes upon which the petitioner's conviction was based.
Specifically, while the Court of Appeals erred by ignoring the legal rule
that a "multiple punishment" type of double jeopardy claim must be
resolved by actually determining the legislature's intent in
enacting the statues at issue, a de novo review of those
statutes shows that even if the Court of Appeals had applied the correct
rule, it would have found that the punishments were in fact authorized by
the legislature, and that, accordingly, no double jeopardy violation
This conclusion follows for several reasons. First, the plain
language of the statutes at issue, Penal Law §§ 220.39 and
220.44(2), shows that separate punishments were contemplated by the
legislature. These statutes prohibit, respectively, the "criminal sale"
of certain controlled substances, and the criminal sale of those
substances "in or near school grounds."*fn13 The statutes therefore
prohibit two distinct acts, and under Penal Law § 70.00(2), a
separate and higher penalty is assigned for a violation of Penal Law
§ 220.44(2),*fn14 While this language is concededly less explicit
than that considered by the Supreme Court in Hunter,*fn15 it
nevertheless suggests that the legislature intended to punish the two
acts separately. Cf. Albernaz, 450 U.S. at 336 (plain language
shows intent to impose separate punishments where statutes are
"unambiguous on their face and each authorizes punishments for a
violation of its terms").
Second, the New York statute defining "lesser included offenses" shows
that the "criminal sale" of controlled substances under Penal §
220.39 was not intended to be a lesser included offense of criminal sale
"in or near school grounds" under Penal § 220.44(2). Under CPL §
1.20(37), "[w]hen it is impossible to commit a particular crime without
concomitantly committing, by the same conduct, another offense of lesser
grade or degree, the latter is, with respect to the former, a `lesser
included offense.'" Therefore, a defendant commits a lesser included
offense if he necessarily commits a greater offense by the same conduct,
and if the lesser offense is of a "lesser grade or degree" than
the greater. In such cases, the lesser offense is considered an
"inclusory count," and a trial judge is required to submit only the
greater offense, or both the greater and lesser offenses in the
alternative, to the jury. See CPL § 300.40(3)(b). For
"non-inclusory counts," the trial judge has the discretion to submit all
charges to the jury. See CPL § 300.40(3)(a).
In this case, the petitioner's "criminal sale" offense satisfies the
first prong of the "lesser included offense" definition, but not the
second. As to the first, it is "impossible to commit" the "in or near
school grounds" offense without also
violating the "criminal sale" provision because the same controlled
substances are enumerated in both statutes;*fn16 by selling any of those
substances on school grounds, a defendant commits both a "criminal sale"
under § 220.39 and a criminal sale "in or near school grounds" under
However, the "criminal sale" offense is not an offense of "lesser grade
or degree," as defined by New York law. In People v. Flores,
42 A.D.2d 431, 348 N.Y.S.2d 425 (4th Dept. 1973), the Appellate Division
A crime of lesser degree is a lower level of the
same general crime classified by statute in
degrees of seriousness depending upon the presence
of additional elements. While the constituents of
the common-law crime of robbery include those of
assault, obviously assault second degree, as
defined by statute, is not a lesser degree of
robbery second degree, i.e., robbery third degree.
Criminal acts are also classified by grade as to
felonies, misdemeanors or offenses.
Id. at 434, 348 N.Y.S. at 427 (internal citation
omitted). In this case, "criminal sale" is not of a lesser "grade" than
the "in or near school grounds" offense because both are classified as
felonies. See Penal §§ 220.39, 220.44(2). "Criminal sale" is also not
a lesser "degree" offense as defined by statute because, while both
offenses are grouped into the same "general crime" category of Article
220 "Controlled Substances Offenses" the § 220.44(2)
offense is not classified as a higher degree of § 220.39 "criminal
sale of controlled substances in the third degree," i.e., criminal
sale in the second degree. Instead, two other sections §§
220.41 and 220.43 respectively prohibit the criminal sale of
controlled substances in the second and first degrees; and, these crimes
are classified as "Class A-II" and "Class A-I" felonies respectively,
while § 220.39 and § 220.44 are "Class B" felonies.
This interpretation of Penal Law § 220.39 and § 220.44(2) is
mirrored not only in Justice Smith's concurring opinion in this case, but
also in numerous other New York cases considering double jeopardy
challenges to the same statutes at issue here. In People v.
Smith, 304 A.D.2d 364, 364, 758 N.Y.S.2d 33, 35 (1st Dep't 2003);
People v. Guretez, 300 A.D.2d 192, 193, 750 N.Y.S.2d 864, 864
(1st Dep't 2002); People v. Johnson, 299 A.D.2d 287, 287,
750 N.Y.S.2d 78, 79 (1st Dep't 2002); People v. Bernabel,
299 A.D.2d 186, 186, 749 N.Y.S.2d 521, 522 (1st Dep't 2002); and People
v. Spence, 290 A.D.2d 223, 224, 735 N.Y.S.2d 756, 756 (1st Dep't
2002), the Appellate Division rejected identical double jeopardy
challenges to Penal Law §§ 220.39 and 220.44(2) by stating, "we
decline to invoke our interest of justice jurisdiction to dismiss the non
inclusory concurrent count." These cases make clear that the Appellate
Division has consistently interpreted New York law as authorizing the
trial judge, at his discretion, to submit both the § 220.39 and §
220.44(2) charges to the jury as "non-inclusory
concurrent counts" under CPL § 300.40(3)(a).*fn17 Such
interpretations by a state court of that state's statutes is entitled to
deference. Hunter, 459 U.S. at 368; Brown v. Ohio,
432 U.S. 161, 167 (1977),*fn18
Finally, the evidence of legislative intent in this case is
sufficiently strong to outweigh what appears to be a clear satisfaction
of the Blockburger test. Under this test, a single act that
violates two distinct statutory provisions is considered to be "one
offense" unless "each provision requires proof of an
additional fact which the other does not." Blockburger,
284 U.S. at 304. In this case, Penal Law § 220.44(2) requires proof
of an additional fact, i.e., "in or near school grounds," beyond the sale
of the enumerated substances in Penal Law § 220.39. However, the
converse is not true because § 220.39 only requires that a sale of
the enumerated substances occur, and this element is contained completely
within § 220.44(2).*fn19
In spite of this result, however, the Supreme Court has clarified that
"regardless of whether  two statutes proscribe the `same' conduct under
Blockburger," there is no double jeopardy violation where "a
legislature specifically authorizes cumulative punishment under [those]
two statutes." Hunter, 459 U.S. at 368-69. It has also stated
that the Blockburger test is merely a rule of "statutory
construction," not "a constitutional rule requiring courts to
negate clearly expressed legislative intent." Id. at 368. No
Supreme Court case has decided whether two statutes that address distinct
acts, but do not contain the express authorizing language considered in
Hunter, would demonstrate a "clearly expressed legislative
intent" sufficient to overcome the Blockburger test. In this
case, however, the plain language of the statutes in question, New York's
statutory definition of "lesser included offenses," and the abundance of
state court decisions
construing these statutes as permitting multiple punishments all
support the conclusion that the New York legislature did in fact
authorize separate punishments for a violation of Penal Law §§ 220.39
and 220.44(2) arising from the same act. Consequently, the Court of
Appeals' error in declining to conduct a statutory interpretation of
these provisions was harmless,
d. Appellate Division's Decision
As noted above, if the Court of Appeals' decision is deemed to be a
procedural ruling that did not adjudicate the merits of the petitioner's
claim, a review of the Appellate Division's decision under the AEDPA
standard would be required. See Cotto, 331 F.3d at 252. Such
review is unnecessary here, however, since a de novo review of
the petitioner's claim has shown that the punishments imposed on the
petitioner did not violate double jeopardy.*fn20
B. Expert Testimony
The petitioner's second claim is that the trial court erred by
admitting the expert testimony of Sergeant McDonald. "[A] district court
shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254 (a). Accordingly, "it is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Thus, if the alleged violation is not of federal constitutional
proportions, this Court is without jurisdiction to issue a writ of
habeas corpus under § 2254(a).
In this regard, it is clear that "[a] state court's erroneous ruling on
an issue of state evidentiary law rises to a federal constitutional
violation only if the error deprived the defendant of a fundamentally
fair trial." Crawford v. Artuz, 165 F. Supp.2d 627, 635
(S.D.N.Y. 2001); see Tavlor v. Curry, 708 F.2d 886, 891 (2d
Cir. 1983). Thus, the threshold question in this case is whether the
admission of the expert testimony, even if admitted in violation of state
law, violated Mr. Lopez's right to a fair trial.
In Dunnicran v. Keane, 137 F.3d 117 (2d Cir. 1998), the
Second Circuit articulated the governing standard for assessing
fundamental fairness in trial proceedings:
Where the prejudicial evidence is probative of an
essential element in the case, its admission does
not violate the defendant's right to due process.
For the erroneous admission of other unfairly
prejudicial evidence to amount to a denial of due
process, the item must have been sufficiently
material to provide the basis for conviction or to
remove a reasonable doubt that would have existed
on the record without it. In assessing
materiality, we must review the erroneously
admitted evidence in light of the entire record
before the jury.
Id. at 125 (internal quotation marks and citations omitted).
In this case, the allegedly prejudicial evidence, even if admitted
erroneously, was not sufficiently material to cause a constitutional
violation. Sergeant McDonald's testimony as an expert did not add any
material facts with regard to the actual commission of the crimes.
Rather, it served only to explain the nature of typical drug transactions
and the absence of buy money. Moreover, Mr. Lopez was not charged with
conspiracy or another crime as to which his participation in an
"organization" would be relevant.
Consequently, the alleged error could not have deprived Mr. Lopez of a
fundamentally fair trial.
For the reasons set forth above, I recommend that Mr. Lopez's
application for a writ of habeas corpus be denied. Pursuant to
28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and (e) of the Federal Rules of
Civil Procedure, the parties shall have ten (10) days from this date to
file written objections to this Report and Recommendation. Such
objections shall be filed with the Clerk of the Court, with extra copies
delivered to the chambers of the Honorable Richard C. Casey, Room 1350,
and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New
York, New York 10007. Failure to file timely objections will preclude