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LOPEZ v. GOORD

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

REPORT AND RECOMMENDATION
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. Page 2

Background

  A. Facts*fn1

  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). Page 3

  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 6).

  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 Page 4 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. Page 5 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 current petition.

  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 Page 6 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). Page 7 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," Page 8 (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 Page 9 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 Page 10 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 explained:

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 Page 11 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 Page 12

 Discussion

  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 Page 13 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 Page 14 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 [1969]). The cases before us fall within the third category as each involves a single trial based on the same act, resulting in concurrent sentences.
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 [1979]). 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 Page 15 claim.

 

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 [1983]). 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 [1980]). 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 Page 16 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 Page 17 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 claim.

  2. Merits

  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 Page 18 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 Page 19 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 procedural ruling).

  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 Page 20 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: Page 21

 

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 Page 22

  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 Page 23 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 Page 24 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" Page 25 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 Page 26 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 occurred.

  This conclusion follows for several reasons. First, the plain Page 27 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 Page 28 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 Page 29 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 § 220.44(2).

  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 explained that:

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 Page 30 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 Page 31 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 Page 32 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 Page 33 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 Page 34 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 Page 35 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.

 Conclusion

  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 appellate review.


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