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February 5, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Myron Warrick ("Warrick") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Warrrick contends that his confinement by the state of New York is unlawful because: 1) a pretrial determination made by one state court trial judge was not followed by another trial judge who was later assigned to preside over Warrick's case; 2) he was denied a speedy trial; 3) his statutory right to testify before the grand jury that returned an indictment against him was violated; 4) the prosecution failed to establish a complete chain of custody for evidence used at his trial and, thereby, failed to prove all the elements of the charged crimes and concomitantly denied the petitioner his right to due process; 5) the grand jury proceedings that resulted in an indictment against Warrick were infirm because police laboratory reports presented to the grand jury did not conform to state statutory requirements and, as a consequence, material information was withheld from Warrick, pretrial, in violation of the rule Page 2 set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963); and 6) Warrick received ineffective assistance from his trial counsel in violation of the Sixth and Fourteenth Amendments to the Constitution. The respondent opposes Warrick's petition for habeas corpus relief. The petition is addressed below.


  Warrick's incarceration arises out of a narcotics buy and bust operation conducted in the Harlem neighborhood of Manhattan. On September 2, 1998, Police Officer Anthony Ortiz ("Ortiz"), serving in an undercover capacity, purchased a $10 glassine envelope of heroin from Warrick using pre-recorded buy money. The transaction was observed by another police officer, commonly referred to as a "ghost officer," whose responsibility it was to observe the transaction and to ensure Ortiz's safety. After the purchase was made, Ortiz communicated a description of Warrick's race and clothing to other officers who were in the vicinity. Ortiz did not include a description of Warrick's facial features when he communicated with other law enforcement officers. According to Ortiz, he does not concentrate on a narcotics peddler's face or eyes while making a purchase because that makes such vendors nervous.

  A detective, who was working as a backup officer to Ortiz, received Ortiz's transmission and traveled to the scene of the heroin purchase. Warrick, who at the time of the instant heroin sale had previously been convicted for crimes, perceived, as the detective approached him, that he was a police officer; therefore, Warrick began to run. Warrick explained that he is a disabled veteran and had just used his disability benefit funds to purchase a sufficient quantity of heroin for his monthly consumption. As Warrick ran, he stumbled and was apprehended by the detective. After Warrick was handcuffed by the detective, 24 glassine envelopes of heroin Page 3 bearing the legend "Mr. Fieldgood" — the legend also found on the packet of heroin purchased by Ortiz — were found on the ground underneath Warrick's body. Furthermore, the detective recovered a $10 bill from Warrick's pants pocket that was later determined to be part of the prerecorded buy money that had been distributed previously to Ortiz for use in connection with the buy and bust operation.

  Approximately five minutes after purchasing heroin from Warrick, Ortiz drove past him in an automobile. At that time, Warrick was in police custody. When Ortiz drove past Warrick, he was certain that Warrick was the person from whom he had purchased heroin only minutes before because Warrick was wearing the same clothing he had been wearing when the sale was consummated.

  Following Warrick's arrest, his first attorney notified the prosecutor assigned to Warrick's case that Warrick wished to testify before the grand jury that would hear evidence concerning the events leading up to Warrick's arrest. However, after several postponements of the prosecutor's grand jury presentation — many of which were consented to by Warrick's counsel — Warrick failed to appear before the grand jury on the date reserved for him to testify before that body. When Warrick did not appear at his attorney's office on that date, and did not contact his attorney via telephone, Warrick's counsel informed the prosecutor that Warrick's prior notice to give testimony before the grand jury was being withdrawn. Warrick maintains that he neither authorized his counsel to consent to the prosecutor's postponed grand jury presentations nor authorized his counsel to withdraw his notice to give testimony before the grand jury. Therefore, he contends that his right to a speedy trial was violated and that his right to testify in his own behalf was also violated. Page 4

  A New York County grand jury returned an indictment against Warrick, charging him with criminal sale and criminal possession of a controlled substance in the third degree. Thereafter, Warrick was assigned new counsel. Warrick's second attorney made a motion that the indictment be dismissed, because Warrick had not been given an opportunity to testify before the grand jury, as he had informed the prosecutor he wanted to do. He also urged the court to dismiss the indictment because more than six months (180 days) elapsed between the filing of the felony complaint against Warrick and his arraignment on the indictment, a violation of New York's speedy trial statute. The motion was denied. The court found that Warrick had forfeited his right to testify before the grand jury when he failed to appear before that body on the date he was scheduled to testify. The court also found that, during the eight months between the date on which a felony complaint was filed against Warrick and the date on which he was arraigned on the indictment, only 109 days of delay were attributable to the prosecution, under the state's speedy trial statute, and the balance was attributable to Warrick or otherwise excluded from consideration. Therefore, Warrick's statutory right to a speedy trial had not been violated.

  Thereafter, a pretrial hearing was held to determine whether: (a) probable cause existed to arrest Warrick; (b) evidence concerning the identification of Warrick by the undercover officer should be suppressed at his trial; and (c) physical evidence seized from Warrick should also be suppressed at his trial.*fn1 After the pretrial hearing was concluded and determinations adverse to Warrick were rendered, Warrick proceeded to trial before a jury. Page 5

  At the trial, Ortiz and the detective who arrested Warrick testified about the events on September 2, 1998, that led to Warrick's arrest. The prosecution also offered testimony from two chemists employed by the New York City Police Department, who explained that the substances found in the glassine envelope purchased by Ortiz and in the 24 glassine envelopes recovered at the time of Warrick's arrest, tested positive for the presence of heroin.

  Warrick testified in his own behalf He stated that he had become addicted to heroin while serving in the United States military during the Vietnam War and that he suffered with AIDS. Warrick explained to the jury that the $10 in pre-recorded buy money that was recovered from him, was obtained from a narcotics peddler as change, when he paid $250 for the 24 glassine envelopes of heroin that were recovered at the time of his arrest. Warrick was found guilty of both charges contained in the indictment returned against him by the grand jury. He was later sentenced, based upon his status as a predicate felony offender, to concurrent terms of 5 to 10 years incarceration.*fn2

  Approximately one month later, in February 2000, Warrick made an application, pursuant to New York's Criminal Procedure Law ("CPL") section 440.10, that his conviction be vacated because: (a) he had received ineffective assistance from his trial counsel; and (b) the police laboratory controlled substance report presented to the grand jury that returned an indictment against him was defective, in that it did not contain a certified transmittal memorandum as required by CPL § 190.30(2)(a). Therefore, according to Warrick, the grand jury proceeding and the indictment returned by the grand jury were invalid. Warrick also alleged that the evidence Page 6 presented to the grand jury was not legally sufficient to permit it to return an indictment against him and, furthermore, that the grand jury members were not given proper legal instructions by the prosecutor. With respect to Warrick's claim that he received ineffective assistance from his counsel, Warrick claimed that his counsel failed to investigate the case properly and, thus, did not prepare adequately for his trial. In addition, Warrick alleged that his counsel failed to challenge the use at his trial of the defective laboratory analysis reports.

  The trial court, perforce of CPL § 440.10(2)(b), was constrained to deny Warrick's motion because the judgment entered against him could be appealed and because sufficient facts appeared on the trial record with respect to the contentions made by Warrick, through his motion, to permit an appellate court to review those issues. However, notwithstanding the statutory constraint which barred the trial court from entertaining Warrick's motion, that court indicated that it found the claims raised by Warrick to be meritless.

  Warrick sought leave from the New York State Supreme Court, Appellate Division, First Department, to appeal from the denial of his CPL § 440.10 motion. That application was denied by a justice of the Appellate Division.

  In September 2000, Warrick appealed from the judgment of conviction entered in the New York State Supreme Court, New York County, following his trial. He asked the Appellate Division to upset his conviction because: (i) statements made by the prosecutor in his closing arguments to the jury were improper and violated Warrick's right to due process; and (ii) inasmuch as Warrick was a veteran who suffered from serious health problems, the sentence imposed upon him was excessive and harsh. In addition to the brief submitted to the Appellate Division by Warrick's counsel, Warrick submitted a pro se supplemental brief to that court. In Page 7 that document, he urged the court to vacate his conviction because: (a) his trial counsel consented to pre-indictment adjournments without authorization from Warrick; (b) his trial counsel waived Warrick's statutory right to a speedy trial and his right to testify before the grand jury without Warrick's consent; ...

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