The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Juan Cardena ("Cardena"), currently incarcerated at the Wyoming
Correctional Facility, petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging that his New York State Court conviction
on September 13, 2002 violated his rights under the U.S. Constitution.
For the reasons set forth below, the petition is denied.
Cardena's conviction arose from the sale of crack cocaine to an
undercover police officer on the afternoon of April 11, 2000. Following a
jury trial, a judgment of conviction was entered on September 13, 2000,
by Judge Carol Berkman of New York Supreme Court, New York County, for
criminal sale of a controlled substance in the third degree and criminal
possession of a controlled substance in the seventh degree. As a second
felony offender, Cardena was sentenced to concurrent terms of 5 to 10
years and one year.
Cardena's conviction was affirmed on April 18, 2002 by the Appellate
Division, First Department. People v. Cardena, 293 A.D.2d 355,
742 N.Y.S.2d 3 (1st Dep't 2002). On June 28, 2002, the Court of Appeals
denied leave to appeal that affirmance. People v.
Cardena, 98 N.Y.2d 673, 746 N.Y.S.2d 462 (2002). Cardena did not
seek review of the conviction by the United States Supreme Court.
Cardena timely filed the present habeas petition, pro se, on May 9,
2003, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after
first exhausting his remedies in state court.
At trial, the prosecution presented evidence showing that Cardena, his
co-defendant, Ronald Kelly ("Kelly"), and an un-apprehended third man
sold the drugs on the afternoon of April 11, 2000. Two undercover police
officers testified that they conducted the operation where one made the
purchase and one observed the transaction from about a half a block away.
The undercover officer directly involved in the sale approached Kelly and
asked where he could buy some crack. Kelly took the officer to stand
underneath a nearby awning and called Cardena over to them. Kelly told
the officer that it would cost fifteen dollars for three bags and the
officer gave the money to Kelly who in turn gave the money to Cardena.
Cardena left the two men to wait and the officer observed Cardena
approach an unidentified man on a corner and make a hand-to-hand exchange
and then return to a corner on the street he had previously been
standing. Kelly walked over to Cardena and then returned to the officer
and indicated that his partners suspected he was a cop.
The officer testified that about twenty to twenty-five minutes had
elapsed by this time, and he told Kelly to either give him his drugs or
return his money. Kelly returned to Cardena and the officer observed the
two make a hand-to-hand exchange before Kelly returned to the officer and
told him to follow him. Kelly led the officer to the vestibule of an
apartment building a few blocks away and Kelly told the officer that he
thought he was a cop and that they should go inside and smoke the crack
together. The officer refused and asked for his drugs. Kelly gave only
one bag of crack to the officer before shutting the inner doors of the
building. The officer did not pursue Kelly because he could no longer see
his partner and was concerned for his safety.
The officer further testified that he returned to the street and found
his partner. They returned to their unmarked vehicle and radioed to their
field team that a purchase had been made and gave a description of Kelly
and Cardena as well as their last known locations. The officers also
canvassed the area in their unmarked vehicle but did not find Kelly or
Cardena that day. Four days later the officers spotted Kelly walking down
the street in the vicinity of the purchase and radioed in his description
for a field team to arrest him. The officers proceeded to the same corner
the purchase was made and spotted Cardena standing in the same location
he had been four days earlier. The officers radioed in his location and
described Cardena as a black male wearing the same baseball cap and
glasses from the day of the purchase. After
Cardena was apprehended, the officer discovered that Cardena was
actually Hispanic. Cardena was arrested with a bag of crack cocaine in
his pants pocket.
During a Hinton hearing prior to the start of the jury trial (see
People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972),
cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973)), the
People presented evidence that the judge found sufficient to warrant
closing the courtroom to all persons but Cardena's family during the
undercover officers' testimony. In the hearing, the court found that the
officers were still actively engaged in ongoing undercover operations in
the specific area of the instant arrest. In addition, the officers had
previously been threatened in the area of the arrest by drug dealers and
other persons and the officers had taken precautions to protect their
identity while at the courthouse.
Cardena argues that the trial evidence was insufficient because there
was no physical evidence and because the undercover officer who
identified him gave an incorrect description. He claims that his guilty
verdict for third degree criminal sale of a controlled substance was
against the weight of the evidence, thus depriving him of due process
under the Fourteenth Amendment of the U.S. Constitution and the New York
Constitution Art. 1, § 6.
Cardena also claims that because the trial court closed the courtroom
during the testimony of the undercover officers without sufficient
evidence to do so, the petitioner was deprived of his right to a public
trial under the sixth and Fourteenth Amendments, New York Civil Rights
Law § 12, and New York Judicial Law § 4.
The Appellate Division found that the trial court's verdict was based
on legally sufficient evidence and was not against the weight of the
evidence. The court did not find a reason to disturb the jury's
credibility determinations as to the officer's identification of the
defendant. The court also found that the People made a sufficient showing
as to warrant closing the courtroom ...