United States District Court, S.D. New York
June 22, 2004.
ALBERTO PEREZ, Petitioner,
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
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 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
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.
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
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
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 ). 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 ). 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 ). 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.
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).