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
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 ...