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
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.
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
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 ...