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BLUE v. DUNCAN

May 27, 2004.

JAMES E. BLUE, Petitioner, -v.- GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

On May 11, 2000, in the New York State Supreme Court, Westchester County, petitioner James E. Blue was convicted after a jury trial of two counts of Criminal Sale of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Third Degree, one count of Criminal Sale of a Controlled Substance in the Fifth Degree, and one count of Criminal Possession of a Controlled Substance in the Fifth Degree. He was sentenced on September 6, 2000 as a second felony offender to a term of imprisonment of six to twelve years for each third-degree count and three to six years for each fifth-degree count, with the terms to run concurrently.

Blue, who is currently in prison serving his sentence, has petitioned this Court pro se under 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons stated below, his petition should be denied. I. BACKGROUND

  A. Trial

  The evidence presented at trial for the most part has no relevance to the disposition of this petition. Nonetheless, a brief summary is presented here to provide some context for Blue's claims.

  1. The People's Case

  On April 22, 1999, at approximately 7:50 p.m., Police Officer Christopher Kelly drove to the corner of Nepperhan Avenue and Orchard Street in Yonkers, New York in an unmarked police vehicle as part of a long-term undercover narcotics operation. (Kelly: Tr. 459-61). Blue was standing on the corner and, after some conversation, Officer Kelly informed Blue that he wanted two "dimes" of "base" — referring to crack cocaine. (Kelly: Tr. 461-62). Blue handed him two clear, plastic Ziploc bags containing crack cocaine in exchange for $20.00. (Kelly: Tr. 463-64; Saladin: Tr. 683).

  At Blue's request, Officer Kelly drove him to a park on Lake Avenue. (Kelly: Tr. 464). Once Blue left the car, Officer Kelly radioed his back-up team, consisting of Detectives Robin Martin and Vincent Antonecchia. (Kelly: Tr. 460, 466-67; Antonecchia: Tr. 587-88; Martin: Tr. 631). Officer Kelly told them about the sale, provided a description of Blue, and informed them of the location he had dropped Blue off. (Kelly: Tr. 466-67, 558; Antonecchia: Tr. 588-89). After receiving Officer Kelly's call, Detectives Martin and Antonecchia drove to the park in an unmarked police vehicle and spotted Blue, based on Officer Kelly's description. (Antonecchia: Tr. 587, 589-90; Martin: Tr. 632-33).

  At approximately 9:45 p.m. that evening, Detectives Antonecchia and Martin and Police Officers Thomas Powrie and Maria O'Donnell saw Blue in the area of Orchard Street and Orchard Place. (Antonecchia: Tr. 590-91; Powrie: Tr. 608-09; Martin: Tr. 633-34; O'Donnell: Tr. 651-52). Officers Powrie and O'Donnell approached Blue on foot, with their police shields displayed. (Powrie: Tr. 609, 614; O'Donnell: Tr. 652-53, 660). Blue had a bottle of beer in his hand, which the officers informed him was a violation of an open container ordinance. (Powrie: Tr. 609; O'Donnell: Tr. 653, 662). The officers then asked Blue for his name, date of birth, address, and social security number. (Powrie: Tr. 610; O'Donnell: Tr. 653). Blue produced his Social Services benefit card, which contained personal identification information. (O'Donnell: Tr. 664). The officers asked Blue to leave the area and then drove away. (Powrie: Tr. 616, 619; O'Donnell: Tr. 654).

  After this encounter between Blue and the officers, Detective Antonecchia went to police headquarters, where he obtained a photograph of Blue. (Antonecchia: Tr. 603). When the detective gave this testimony on cross-examination, Blue moved for a mistrial, arguing that Detective Antonecchia should not have "made reference to obtaining a photograph." (Tr. 604). The court denied his motion. (Tr. 604).

  At approximately 10:05 p.m. that evening, Officer Kelly returned in his unmarked police car to Nepperhan Avenue and Orchard Street where he saw Blue standing on the corner. (Kelly: Tr. 467, 560-61). Blue approached the vehicle and Officer Kelly said that he wanted "two more." (Kelly: Tr. 467). Blue handed Officer Kelly two black-tinted Ziploc bags containing crack cocaine in exchange for $20.00. (Kelly: Tr. 467; Saladin: Tr. 683).

  Thereafter, Officer Kelly worked in the area of Nepperhan Avenue and Orchard Street and saw Blue from time to time. (Kelly: Tr. 475, 521-22). On August 25, 1999, at approximately 4:50 p.m., Officer Kelly was in his undercover police car and saw Blue standing near the intersection of Orchard Place and Orchard Street. (Kelly: Tr. 470-71). Officer Kelly asked him for a "dime" of "leak," which is a street term for PCP. (Kelly: Tr. 471). At Blue's request, Officer Kelly drove him to Locust Hill Avenue, where Blue exited the car, walked to a location out of the officer's sight, and then returned with a red-tinted Ziploc bag containing PCP. (Kelly: Tr. 471-73, 573-74; Jacobs-Shulman: Tr. 737-38). Officer Kelly took the bag and gave Blue $15.00 in exchange. (Kelly: Tr. 473).

  Blue was arrested sometime in November 1999, after the undercover operation had concluded. (Antonecchia: Tr. 605-06).

  2. Proceedings Between the Close of the People's Case and the Beginning of Blue's Case

  At the close of the prosecution's case, Blue moved to dismiss all of the felony counts against him, arguing that the People had not supported them with legally sufficient evidence. (Tr. 765-67). The trial court denied Blue's motion. (Tr. 767). However, over defense counsel's objection, the court dismissed three misdemeanor counts of Criminal Possession of a Controlled Substance in the Seventh Degree that had been included in the original indictment. (Tr. 767-68, 771).

  3. Blue's Case

  Blue was the only witness called by the defense at trial. Blue contended that he was a user of crack cocaine but that he never used PCP or sold any drug. (Blue: Tr. 778, 780-81, 786-87, 794-97, 804, 806-07, 810, 812, 821, 825-28, 830, 838, 841, 848). He testified that he did not remember much of what happened in his life during 1999 due to his addition to crack cocaine. (Blue: Tr. 778, ...


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