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February 10, 2004.

JUAN CARDENA, Petitioner -against- MICHAEL GIAMBRUNO, Warden, Respondent

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.

Prior Proceedings

  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. Page 3 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. Page 4

  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 Page 5 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. Page 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 ...

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