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PEREZ v. GREINER

June 22, 2004.

ALBERTO PEREZ, Petitioner,
v.
CHARLES GREINER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, Respondent.



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

REPORT and RECOMMENDATION

TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Alberto Perez ("Perez"), proceeding pro se, has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by New York state is unlawful because: (1) the trial court's denial of his motion for a pretrial Mapp*fn1 hearing violated his Fourth Amendment right to be free from unlawful searches and seizures and his Fourteenth Amendment right to due process; (2) the trial court violated his Sixth Amendment right to be present at every material stage of trial when it excluded him from a discussion concerning the qualifications of a prospective juror to serve as a member of the jury at his trial; and (3) the trial court deprived him of his Fourteenth Amendment right to due process when it declined to deliver a circumstantial evidence instruction to the jury.

  Respondent opposes petitioner's application for a writ of habeas corpus. Respondent contends that petitioner's claim that he was improperly denied a Mapp hearing is without merit because, inter alia, petitioner lacked standing to challenge the admissibility of the evidence obtained during a search of the premises where the evidence was recovered. In addition, respondent asserts that petitioner's claims concerning his right to be present at every material stage of his trial and his right to a proper jury instruction are not cognizable on habeas corpus review because they do not involve the deprivation of a constitutionally recognized right. Moreover, the respondent argues, these claims are meritless. For the reasons set forth below, I recommend that the petitioner's application for a writ of habeas corpus be denied.

  II. BACKGROUND

  On April 26, 1995, at approximately 8:00 p.m., New York City Police Sergeant Brian O'Loughlin, accompanied by seven police officers, drove to the apartment building located at 34 Bogardus Place in Manhattan, in response to an anonymous telephone call. When they arrived, Sgt. O'Loughlin, New York City Police Sergeant Roy and Police Officers Spinola and Gemanani took the elevator to the fifth floor where Sgt. O'Loughlin knocked on the door of Apartment 5C and identified himself as a police officer. Hearing sounds of rapid movement from within the apartment, Sgt. O'Laughlin knocked louder and again identified himself. After approximately two minutes, petitioner opened the door.

  Through the doorway, Sgt. O'Loughlin and Officer Spinola observed a gun lying on top of a dresser. Sgt. O'Loughlin pushed petitioner against a wall and Officer Spinola searched him. Meanwhile, Sgt. O'Loughlin seized the gun, a Torres 9-millimeter semi-automatic pistol loaded with fifteen bullets. Petitioner was placed under arrest. A search of the apartment yielded three plastic bags containing cocaine, an Ohaus triple beam scale, and aluminum foil, all found on a kitchen counter, as well as $1,634 in United States currency and a set of keys which fit the locks on the front door of the apartment.

  The petitioner was taken to the 34th police precinct where he was questioned by Officer Spinola. Petitioner stated, inter alia, that his home address was 211 West 109th Street, Apartment 1D, New York, New York. Petitioner was then taken to the precinct's robbery unit where he was interviewed by New York City Police Detective Michael Guedes. Det. Guedes, speaking to the petitioner in Spanish, questioned him about the circumstances surrounding his arrest. Petitioner stated that he had been at Apartment 5C, 34 Bogardus Place, with an individual named Jose. According to petitioner, Jose received a message on his "beeper" and then went out to make a telephone call; while Jose was out, police officers came to the apartment. Petitioner stated that he did not know Jose's last name.

  On April 28, 1995, the gun and ammunition recovered at the time of the arrest were tested by the New York City Police Department Ballistics Squad and determined to be operable. In addition, the contents of the three plastic bags found during the search of the apartment where the arrest took place was determined to be cocaine. The weight of the cocaine recovered at the apartment was discovered to be approximately one pound and six and three-quarters ounces. Before trial, in July 1996, an investigation was conducted by the office of the Special Narcotics Prosecutor; the investigation revealed that the tenant of record of Apartment 5C, 34 Bogardus Place, at the time of petitioner's arrest, was Francisco A. Cabrera, but that, as of May 1995, the apartment had been abandoned.

  On May 11, 1995, by Indictment Number 3972/95, petitioner was charged with one count each of criminal possession of a controlled substance in the first degree, see N.Y. Penal Law § 220.21, criminal possession of a controlled substance in the third degree, see N.Y. Penal Law § 220.16, criminal possession of a weapon in the third degree, see N.Y. Penal Law § 265.02, and criminal use of drug paraphernalia in the second degree, see N.Y. Penal Law § 220.50.

  On June 14, 1995, petitioner filed an omnibus motion, seeking, inter alia, a combined Mapp/Dunaway*fn2 Huntley*fn3 hearing. The state-court judge who presided at the pretrial proceedings granted petitioner's request for, among other things, a Huntley hearing, but denied his request for a Mapp/Dunaway hearing. A Huntley hearing was held on July 25, 1996, to decide the question of the admissibility at trial of certain statements petitioner had made to the police following his arrest. On that occasion, the presiding judge determined that, upon reconsideration, a Dunaway hearing also was necessary to resolve the matter of the propriety, under the Fourth Amendment, of petitioner's arrest. The presiding judge also affirmed her previous decision to deny petitioner's request for a Mapp hearing on the ground that he had failed to demonstrate standing to challenge the search of the apartment from which the items seized during his arrest were recovered.

  A Dunaway hearing was held the following day. At the hearing, testimony was elicited from Sgt. O'Laughlin, by way of both direct and cross examination, concerning the pertinent events of April 26, 1995, including petitioner's arrest and the search of the premises where the contraband was found.

  Thereafter, during the jury selection process, at which the petitioner was present, a prospective juror asked to be excused from jury service for reasons related to her employment. The record in this case shows that the trial judge directed the parties' attorneys to decide whether to excuse the juror. Counsel for the petitioner requested a sidebar conference. The trial judge then asked petitioner's counsel if she "[w]ould waive her client's appearance." Counsel for petitioner responded in the affirmative. The trial judge then held an off-the-record sidebar conference with the ...


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