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
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.
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).
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, ...