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PEREZ v. GREINER

United States District Court, S.D. New York


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 parties' attorneys. At the conclusion of the conference, the trial judge informed the prospective juror that she was excused from serving on the jury.

  On September 26, 1996, following a trial by jury in New York State Supreme Court, New York County, petitioner was convicted for one count of criminal possession of a controlled substance in the first degree, see N.Y. Penal Law § 220.21(1), and one count of criminal possession of a weapon in the third degree, see N.Y. Penal Law § 265.02(4). Petitioner was sentenced to concurrent indeterminate terms of imprisonment of fifteen years to life for his conviction for first degree drug possession, and one and one-half to four years imprisonment for his conviction for third degree criminal possession of a weapon. Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Petitioner urged that court to upset his conviction because: (i) the trial court erred in failing to give a circumstantial evidence instruction to the jury; (ii) the trial court denied his request for a Mapp hearing improperly; and (iii) he was denied his constitutional right to be present at all material stages of trial when he was excluded from a portion of the jury selection process.

  The Appellate Division affirmed petitioner's conviction unanimously. See People v. Perez, 259 A.D.2d 274, 687 N.Y.S.2d 84 (App. Div. 1st Dep't 1999). After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied. See People v. Perez, 93 N.Y.2d 976, 695 N.Y.S.2d 62 (1999). The instant petition for a writ of habeas corpus followed.

  III. DISCUSSION

  Fourth Amendment Claim

  In his petition, Perez claims that he was entitled to a pretrial Mapp hearing to determine whether tangible evidence sought to be used against him should be suppressed at trial, because there was a reasonable view of the facts that would support a finding that no probable cause existed for the entry into and search of the apartment where the evidence was found. According to Perez, the trial court's denial of his request for a Mapp hearing violated his Fourth Amendment right to be free from unlawful searches and seizures and his Fourteenth Amendment right to due process.

  In Stone v. Powell, 428 U.S. 465, 481-82, 96 S.Ct. 3037, 3046 (1976), the United States Supreme Court held that "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." In this judicial circuit, "federal courts can review the Fourth Amendment claims otherwise precluded by Stone only (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Montero v. Sabourin, No. 02 Civ. 8666, 2003 WL 21012072, at *5 (S.D.N.Y. May 5, 2003) (quoting Capellan v. Riley, 975 F.2d 67, 70 [2d Cir. 1992]).

  Furthermore, where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  New York Criminal Procedure Law ("CPL") §§ 710 et seq. provide a procedure for litigating Fourth Amendment claims. Specifically, CPL § 710.60 provides for a pretrial hearing, or hearings, to determine whether evidence sought to be used at trial is inadmissible because it violates the rules set forth in Mapp and Dunaway. In this case, Perez availed himself of these procedures by filing a pretrial motion seeking, inter alia, the suppression of the evidence seized at the time of his arrest and a hearing to determine whether his arrest was supported by probable cause. Although the trial judge determined that a Mapp hearing was unnecessary in this case, as noted earlier in this writing, a Dunaway hearing was held on July 26, 1996. On that occasion, the matter of whether probable cause existed to arrest the petitioner was fully explored through questioning of a police officer, Sgt. O'Laughlin, who was present at the time of the arrest. In addition, during the questioning of Sgt. O'Laughlin, the matter of whether probable cause existed to enter and search the apartment where the evidence sought to be used against petitioner was found also was examined. Hence, although the trial court denied petitioner's motion for a Mapp hearing, petitioner nevertheless enjoyed a full and fair opportunity to litigate his claim concerning the propriety of the search in state court. Consequently, the petitioner was not precluded from using the relevant state corrective mechanism because of an "unconscionable breakdown" in the process.

  Furthermore, Perez sought and received further review of his Fourth Amendment claim by way of the direct appeal of his conviction. The Appellate Division affirmed the conviction and petitioner's application for leave to appeal to the New York Court of Appeals was denied. Therefore, since the petitioner had a full and fair opportunity to litigate his Fourth Amendment claim in both the trial and appellate courts of the state, habeas corpus review of that claim is precluded. Moreover, as the presiding judge determined at the time petitioner filed his pretrial omnibus motion, a Mapp hearing was not required in this case because the petitioner failed to demonstrate standing to challenge the search of the apartment where the contraband was found. "A defendant has no right to have evidence suppressed on Fourth Amendment grounds unless the breached privacy expectation was his own rather than that of a third party." United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990) (citations omitted). A defendant may demonstrate an infringement of a legitimate expectation of privacy "by showing that he owned the premises or that he occupied them and had dominion and control over them by leave of the owner." Id. Thus, if a defendant, at the time of a search, neither owned nor occupied the relevant premises, nor had any dominion or control over them, then that defendant has no standing to contest a search of the premises. See id.

  In this case, petitioner failed to demonstrate the infringement of a legitimate expectation of privacy. As noted above, an investigation conducted by the office of the Special Narcotics Prosecutor revealed that petitioner was not the tenant of record of Apartment 5C, 34 Bogardus Place, at the time of the search of those premises. In addition, petitioner, who gave his home address as 211 West 109th Street, Apartment 1D, New York, New York, has not shown that he occupied or had dominion or control over the apartment at 34 Bogardus Place at the relevant time. Moreover, during the pretrial hearing held on July 25, 1996, counsel for the petitioner acknowledged that "there is no question the defendant has no connection with [34 Bogardus Place]." Therefore, since the petitioner had no standing to challenge the entry into and search of the apartment where the contraband was found, his claim that he was improperly denied a pretrial Mapp hearing is without merit. As noted above, the standard of review set forth in the federal habeas corpus statute is limited to claims that were "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). "A state court `adjudicates' a petitioner's federal constitutional claims `on the merits' when `it (1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 [2d Cir. 2001]). The Second Circuit has "given a broad reading to state court dispositions, noting that `[a] state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.'" Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 93-94 [2d Cir. 2001]). In fact, an issue raised may be considered adjudicated on its merits "even when the state court does not specifically mention the claim but uses general language referable to the merits." Id.

  All of the claims presented by the petitioner in his application for habeas corpus relief were adjudicated on the merits by the Appellate Division. In disposing of petitioner's Fourth Amendment claim, the Appellate Division stated: "We have considered and rejected defendant's remaining claims including those set forth in his pro se supplemental brief." Perez, 259 A.D.2d at 275, 687 N.Y.S.2d at 85. Although the Appellate Division declined to articulate its rationale for rejecting this claim, its finding is sufficient to trigger the standard of review set forth in the federal habeas corpus statute. See Burgess v. Bintz, No. 00 Civ. 8271, 2002 WL 727011, at *4 (S.D.N.Y. Apr. 24, 2002) (finding that habeas corpus petitioner's claim was adjudicated on the merits where the Appellate Division stated that it had "considered and rejected" the claim). The Appellate Division's rejection of this claim was neither contrary to nor an unreasonable application of the standard set forth in Stone. Furthermore, petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the trial court's finding of facts.

  Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. In like manner, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court, petitioner's claim that he is entitled to habeas corpus relief because the trial court improperly denied his request for a Mapp hearing is without merit.

  Sixth Amendment Claim

  Petitioner claims that he was denied his Sixth Amendment right to be present at every material stage of his trial when he was excluded from a sidebar conference concerning the qualifications of a prospective juror to serve as a member of the jury. Specifically, petitioner claims that he did not waive his right to be present at the sidebar conference and that his attorney's waiver of this right cannot be imputed to him because the waiver, on petitioner's part, was neither knowing, intelligent, nor voluntary.

  The impaneling of the jury is a material stage of trial at which a defendant has a constitutional right to be present. See Youngblood v. Greiner, No. 00 Civ. 7984, 2003 WL 21386251, at *7 (S.D.N.Y. June 16, 2003). However, the right to be present during jury selection may be waived provided the waiver is knowing and voluntary. See Moe v. Walker, No. 97 Civ. 4701, 1998 WL 872417, at *3 (S.D.N.Y. Dec. 15, 1998).

  As noted above, petitioner's claim concerning his exclusion from a sidebar conference during the voir dire process was adjudicated on the merits by the Appellate Division.*fn4 However, the Supreme Court has not articulated a clearly established law which makes the Appellate Division's rejection of this claim contrary to or an unreasonable application of that law. Therefore, the claim should be denied. See Youngblood, 2003 WL 21386251, at *7.

  Moreover, a defendant's presence at a sidebar is not required by the United States Constitution. Rather, the right to be present at a sidebar conference during the voir dire process derives from New York law. Therefore, since questions of state law do not constitute grounds for federal habeas corpus relief, petitioner's claim is not cognizable on habeas corpus review. See, e.g., Johnson v. McGinnis, No. 99 Civ. 11231, 2001 WL 740727, at *3 (S.D.N.Y. June 29, 2001); McKnight v. Superintendent Albauch, No. 97 Civ. 7415, 2000 WL 1072351, at *6 (S.D.N.Y. Aug. 2, 2000).

  Furthermore, petitioner's claim fails on the merits. The record in this case shows that the petitioner was in the courtroom at the time the trial judge asked Perez's counsel whether Perez waived his right to be present at the sidebar. Thus, petitioner was informed of his counsel's intention to waive that right on petitioner's behalf. However, there is no indication in the record that petitioner objected to the proposed waiver or made an attempt to invoke his right to be present at the conference. Thus, the record shows that Perez knowingly, voluntarily and intelligently waived his right to participate in the sidebar conference. See Johnson, 2001 WL 740727, at *3 (finding that since defendant had ample opportunity to raise any concerns about his waiver since he was present throughout voir dire, waiver was knowing, voluntary and intelligent); Moe, 1998 WL 872417, at *3 (finding that where defendant's counsel was present at sidebar conference and defendant did not claim his right to be present, defendant waived that right). Accordingly, petitioner's claim that he was deprived of his constitutional right to be present at every material stage of trial when he was excluded from a sidebar conference during the jury selection process should be dismissed.

  Jury Instruction Claim

  Petitioner claims that the trial court erred by failing to charge the jury on circumstantial evidence, thereby depriving him of his constitutional right to due process. This claim was denied by the Appellate Division on the merits.

  The adequacy of a jury instruction in a state proceeding is a matter of state law. See Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117 (1993). Therefore, a claim of error involving a state trial jury instruction is "not reviewable on a petition for a writ of habeas corpus absent a showing that a jury charge deprived the defendant of a federal constitutional right." Llaca v. Duncan, No. 01 Civ. 9367, 2004 WL 964113, at *27 (S.D.N.Y. May 4, 2004) (citing Blazic v. Henderson, 900 F.2d 534, 540 [2d Cir. 1990]). Additionally, to obtain habeas corpus relief, "the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Blazic, 900 F.2d at 540 (quoting Casillas v. Scully, 769 F.2d 60, 63 [2d Cir. 1985]).

  The Supreme Court has articulated general principles concerning claims of improper jury instruction, holding that a state prisoner making such a claim faces a substantial burden. See DelValle v. Armstrong, 306 F.3d 1197, 1200-1201 (2d Cir. 2002) (citing Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737 [1977]). Specifically, the standard of review of state jury instructions in a habeas corpus petition is not whether "the instruction is undesirable, erroneous, or even universally condemned," but, rather, whether "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400 [1973]). The Supreme Court has also held that, in determining whether the trial court's instructions were fair, the challenged portion of the charge must be considered in the context of the overall charge. See id. at 146-47, 400.

  Under New York law, "a special instruction on [circumstantial evidence] is required only when the prosecution's case rests on circumstantial evidence alone." People v. Ruiz, 52 N.Y.2d 929, 437 N.Y.S.2d 665 (1981); see also Floyd v. Miller, 2003 WL 21845995, at *7 (E.D.N.Y. Aug. 6, 2003) (citing People v. Barnes, 50 N.Y.2d 375, 429 N.Y.S.2d 178 [1980]). In this case, as the Appellate Division explained, since the prosecution's case against the petitioner did not rely exclusively on circumstantial evidence, the trial court properly declined to deliver a circumstantial evidence charge. See Perez, 259 A.D.2d at 274, 687 N.Y.S.2d at 84. There was, rather, direct evidence of petitioner's constructive possession of the contraband found in the apartment where the search was conducted, namely, petitioner's "close proximity, in a small studio apartment, to about $10,000 worth of cocaine and a gun, both of which were in plain view." Id. (citations omitted). Thus, the trial court did not err in choosing not to provide the jury with a circumstantial evidence charge and, therefore, petitioner was not deprived of his right to a fair trial, so as to amount to a denial of due process. Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the general principles concerning improper jury instructions set forth in Henderson and Cupp. Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. In like manner, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court, petitioner's claim that he is entitled to habeas corpus relief because the trial court failed to deliver a circumstantial evidence instruction to the jury is without merit. Accordingly, the claim should be dismissed.

  IV. RECOMMENDATION

  For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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