United States District Court, S.D. New York
July 7, 2004.
CESAR DANIEL ROJAS, Petitioner,
BRIAN FISCHER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On August 27, 2001, pro se petitioner Daniel Rojas ("Rojas")
filed this timely petition for a writ of habeas corpus pursuant
to Title 28, United States Code, Section 2254, seeking to vacate
his 1996 conviction on drug charges following a jury trial. Rojas
contends that the evidence presented at trial was legally
insufficient to support his conviction. The petition was referred
to the Honorable Theodore H. Katz for a report and recommendation
("Report"), which was issued on March 8, 2004. The Report
recommends that the petition be denied. Rojas has filed objections to the Report. For the following reasons, the
Report is adopted and the petition is denied.
The evidence presented at Rojas's trial was collected during a
five month investigation by New York City police of an
organization selling heroin under the brand name "Good Job" in
the area of 136th Street and Amsterdam Avenue. Rojas was tried
with five co-defendants, including Enrique Serra ("Serra").
As described in detail in the Report, an undercover officer
made thirteen purchases of heroin that were recorded on video and
audiotape. Rojas directly participated in sales on October 10 and
December 12. On October 10, the officer complained about the
quality of the drugs he had previously purchased. Rojas came over
and asked what was wrong. Rojas told the officer that the price
was $85 per bundle unless he bought thirty or more. Rojas sold
the officer $860 worth of heroin, and gave him his beeper number
so that he could order drugs in advance.
On December 14, the officer asked Rojas about the possibility
of getting some heroin on consignment or credit. Rojas told him
to speak to Serra, who subsequently indicated that he had to talk
to "the man." Serra then spoke with Rojas, and returned to the
officer and told him that the sale on credit was approved. Serra
and the officer exchanged $4,000 for fifty-five bundles of heroin
marked "Good Job". Serra told the officer that if he came back
and paid on time, he would extend him more credit. Rojas then
approached and told the officer that it was "okay."
Two co-conspirators testified against Rojas. Both testified
that they worked for Rojas selling "Good Job" heroin and that
Rojas was the head of the organization. Rojas's sister testified
for the defense. She testified that the Rojas had no prior
criminal history and that he was a responsible family member.
Rojas was convicted of criminal sale of a controlled substance in
the third degree, N.Y. Penal Law § 220.39(1), criminal sale of a
controlled substance in the second degree, N.Y. Penal Law §
220.41(1), and second degree conspiracy, N.Y. Penal Law §
The petitioner appealed his conviction to the Appellate
Division, First Department asserting that there had been
insufficient evidence to support the verdict. The Appellate
Division unanimously affirmed his conviction, holding that "the
verdict was based on legally sufficient evidence and was not
against the weight of the evidence." People v. Rojas,
281 A.D.2d 294 (1st Dep't 2001). On May 23, 2001, Rojas was denied
leave to appeal to the New York Court of Appeals.
A reviewing court "may accept, reject or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." Title 28, United States Code, Section 636(b)(1)(C). The
court shall make a de novo determination of those portions of the
report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). A federal habeas
court must provide a "sufficiently informative" opinion to permit
"meaningful appellate review." Rudenko v. Costello,
286 F.3d 51, 64 (2d Cir. 2002).
A petitioner bears a "very heavy burden" in presenting a
petition on the grounds of insufficient evidence. Ponnapula v.
Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citation omitted).
The petitioner must show that a state court's finding that there
was sufficient evidence to support a verdict was "an unreasonable
application of clearly established federal law." Id. at 180.
Determining the credibility of testifying witnesses is the
responsibility of the jury. Maldonado v. Scully, 86 F.3d 32, 35
(2d Cir. 1996).
The Report sets out the elements of the crimes on which the
petitioner was convicted. Under New York law, a person is guilty
of criminal sale of a controlled substance in the second degree
when he knowingly sells one-half ounce or more of a narcotic
drug. N.Y. Penal Law § 220.41. This is a Class A felony. A person
is guilty of criminal sale of a controlled substance in the third
degree when he knowingly sells a narcotic drug. N.Y. Penal Law §
220.39(1). A person is guilty of second degree conspiracy when
he intends for a Class A felony to be committed, agrees with
others to engage in or cause that felony, and one of the conspirators commits overt acts in furtherance of the
criminal scheme. N.Y. Penal Law § 105.15.
Rojas contends that Magistrate Judge Katz did not conduct an
independent inquiry into the facts and law of the case. In his
fifteen-page Report, Judge Katz describes the facts presented at
trial and the applicable law in this Circuit. It is clear that
Judge Katz conducted an independent and careful analysis.
Rojas also argues that there was insufficient evidence before
the trial jury to convict him. The Report correctly found that
the evidence at trial was sufficient to support the conclusion
that Rojas directly participated in the sale of over one-half
ounce of heroin and participated in a conspiracy to sell heroin.
The conviction is supported by the testimony of an officer who
dealt directly with Rojas in heroin transactions on October 10
and December 14. Testimony at trial established that Rojas set
the sale price, authorized sales on consignment, and as described
in the Report, controlled access to a building where heroin was
stored. Furthermore, two co-conspirators testified that they
worked for Rojas and that he headed the conspiracy to sell "Good
Job" heroin. No more is required to sustain Rojas's conviction.
Rojas challenges the credibility of the testimony of the two
co-conspirators, contending that they faced long prison sentences
and colluded to testify against him to obtain leniency. The Report correctly concluded that the determination of a witness's
credibility is for the jury. Rojas cites Lilly v. Virginia,
527 U.S. 116 (1999), to support his claim that the evidence at trial
was legally insufficient because the testimony of the
co-conspirators was not credible. Lilly held that the exception
to the hearsay rules that permits receipt of out of court
statements against penal interest is not "a firmly rooted
exception to the hearsay rule as that concept has been defined in
our Confrontation Clause jurisprudence." Id. at 133. The
testimony at Rojas' trial from two accomplices was presented by
those accomplices and not through an exception to the hearsay
Rojas contends that the evidence is insufficient because there
was no evidence of how he obtained, manufactured or packaged the
heroin. Proof of these activities is not necessary to convict the
petitioner on any of the three counts.
Finally, Rojas claims in his objections that he was not a
seller of drugs, but only an agent of the buyer. New York Law
recognizes that a person purchasing drugs as a favor for a friend
may escape liability as a seller of drugs. People v. Lam Lek
Chong, 45 N.Y.2d 64, 74-75 (N.Y. 1978). This defense is a
factual question for the jury, and was not raised at trial or on
appeal (or in the habeas petition). Having failed to assert this
defense at trial, Rojas is procedurally barred from asserting it now. In any event, Rojas has not shown that the evidence at trial
would have supported such a defense.
The recommendation of Magistrate Judge Theodore H. Katz is
adopted and the petition is dismissed. In addition, I decline to
issue a certificate of appealability. The petitioner has not made
a showing of a denial of a federal right, and appellate review is
therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235
(2d Cir. 1998). I also find pursuant to Title 28, United States
Code, Section 1915(a)(3), that any appeal from this order would
not be taken in good faith. Coppedge v. United States,
369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.
© 1992-2004 VersusLaw Inc.