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JONES v. MILLER

June 25, 2004.

CLIFF JONES, Petitioner,
v.
DAVID L. MILLER, Superintendent, Eastern Correctional Facility, Respondent.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Cliff Jones brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, Bronx County, Jones was convicted of one count of Criminal Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02(3). He was sentenced as a persistent violent felony offender to an indeterminate prison term of 15 years to life. Jones is currently incarcerated pursuant to that judgment at the Eastern Correctional Facility in Napanoch, New York. For the reasons stated below, Jones's petition should be denied.

I. BACKGROUND

  A. Evidence at Trial

  The evidence presented at trial for the most part is not relevant to the disposition of this petition. Nonetheless, a brief summary is presented here to provide some context for Jones's claims.

  On March 27, 1991, Detective Michael O'Brien and Sergeant George Griffo were driving in an unmarked police vehicle on Boston Road toward the East Tremont Avenue intersection. (O'Brien: Tr. 59-60, 123; Griffo: Tr. 232-33). A tan, two-door, 1980 Chevrolet sedan was traveling in the same direction, directly in front of the officers' vehicle. (O'Brien: Tr. 60, 62, 150). When the traffic light at the intersection changed from yellow to red, the Chevrolet accelerated and then suddenly stopped inside the intersection. (O'Brien: Tr. 60; Griffo: Tr. 233). The officers noticed that either a tail light, a brake light, or a blinker of the Chevrolet was not functioning. (O'Brien: Tr. 60, 63, 141-43; Griffo: Tr. 233). After the light turned green, the officers pulled over the Chevrolet because of its broken light and the driver's failure to stop before the intersection. (O'Brien: Tr. 60-61, 64, 141; Griffo: Tr. 233-34).

  The officers exited their vehicle and approached the Chevrolet on foot. (O'Brien: Tr. 65; Griffo: Tr. 234-35). There were three people in the Chevrolet: a male driver, a female in the passenger's seat, and a male in the back seat behind the driver. (O'Brien: Tr. 66; Griffo: Tr. 234). Jones was the individual seated in the back seat. (O'Brien: Tr. 66; Griffo: Tr. 234). Detective O'Brien noticed that Jones had a jacket on his lap, over his waist, and that Jones's hands were moving underneath the jacket. (O'Brien: Tr. 67-68). Detective O'Brien asked Jones to move to the right, behind the passenger's seat. (O'Brien: Tr. 68-69). As Jones was moving, his jacket fell to the floor of the car. (O'Brien: Tr. 70, 164). Detective O'Brien looked down and saw a gun protruding from underneath the jacket. (O'Brien: Tr. 70-71, 111-13, 164).

  Upon seeing the gun, Detective O'Brien grabbed Jones and alerted Sergeant Griffo that there was a gun in the car. (O'Brien: Tr. 71, 73; Griffo: Tr. 235-36). Sergeant Griffo reached into the back of the car, took the gun, and handed it to Detective O'Brien. (O'Brien: Tr. 71-72, 74, 78, 100-01; Griffo: Tr. 236, 241). Detective O'Brien unloaded one bullet from the chamber and three from the clip of the gun and noticed that the serial number had been scratched off. (O'Brien: Tr. 74, 78-79, 99-100). The officers handcuffed the three occupants of the car and transported them to the police precinct, where the police identified Mark Brown as the driver of the vehicle, Bonita Lee as the female in the passenger's seat, and Jones as the individual in the back seat. (O'Brien: Tr. 61, 66, 79-80, 149, 153).

  Jones presented no evidence at trial.

  B. Procedural History Prior to Trial

  Jones was originally indicted along with Brown and Lee under Indictment No. 2933/91, which charged them with acting in concert on March 27, 1991 to commit the crime of Criminal Possession of a Weapon in the Third Degree. See Affidavit of William K. Clark in Opposition, filed February 17, 2004 (Docket #10) ("Clark Aff."), ¶ 7; Order, dated September 17, 1998 ("CPL § 330.30 Order") (reproduced as Ex. 1 to Clark Aff.), at 1. This indictment was superseded by Indictment No. 6491/91, which charged Jones and Brown alone with the same offense as in the earlier indictment. See Clark Aff. ¶ 7; CPL § 330.30 Order at 1.

  On September 30, 1992, following various pre-trial proceedings, Jones failed to appear for a scheduled court appearance and the New York State Supreme Court, Bronx County issued a bench warrant for his arrest. See Clark Aff. ¶ 8; CPL § 330.30 Order at 1-2. After remaining a fugitive for over four years, Jones was arrested on unrelated charges on January 11, 1997 in Ulster County, New York, under the alias Cliff Morris. See Clark Aff. ¶ 9. He was returned involuntarily to Bronx County on the bench warrant on July 21, 1997. See id.; CPL § 330.30 Order at 2.

  On August 6, 1997, Jones moved to dismiss the indictment on the ground that he was denied his right to a speedy trial pursuant to N.Y. Crim. Proc. Law ("CPL") § 30.30. See Clark Aff. ¶ 10; Notice of Motion, dated August 6, 1997 ("CPL § 30.30 Motion") (reproduced as Ex. 3 to Clark Aff.), at 1. In the alternative, Jones requested a hearing in order for the People to demonstrate due diligence in locating him or that he was attempting to avoid prosecution. See Clark Aff. ¶ 10; CPL § 30.30 Motion at 5. On February 5, 1998, the trial court denied Jones's motion without a hearing, holding:
Where the People have announced their readiness for trial before a fugitive defendant becomes absent or unavailable, the People need not demonstrate their due diligence in searching for such defendant to avail themselves of speedy trial exclusion relating to fugitive defendants. . . .
In light of the People's announced readiness, and [Jones's] subsequent failure to return to Court, the People are not chargeable with any time between [Jones's] decision to become a fugitive, and his ultimate return on the warrant. As such, [Jones's] motion is denied.
Decision and Order, dated February 5, 1998 (reproduced as Ex. 6 to Clark Aff.), at 1.

  On March 11, 1998, a third grand jury indicted Jones for two counts of Criminal Possession of a Weapon in the Third Degree and one count of Criminal Possession of a Weapon in the Fourth Degree, all of which stemmed from the March 27, 1991 incident. See Clark Aff. ¶ 14; CPL § 330.30 Order at 2; see also Indictment No. 1753/98, dated March 11, 1998 (reproduced as Ex. 7 to Clark Aff.). The People had been granted leave to re-present the case to cure a defect in the second indictment caused by a change in New York law resulting from the decision of the Court of Appeals of New York in In re Rodney J., 83 N.Y.2d 503 (1994). See Clark Aff. ¶ 14; CPL § 330.30 Order at 2.

  C. Verdict and Sentence

  On June 2, 1998, a jury convicted Jones of one count of Criminal Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02(3) for his possession of a firearm that had been defaced for the purpose of concealment. (Tr. 446). He was acquitted of the other third-degree possession count, which related to his possession of a loaded firearm. (Tr. 446).*fn1 On October 8, 1998, Jones was sentenced as a persistent violent felony offender to an indeterminate ...


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