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FALAS v. PHILLIPS

United States District Court, S.D. New York


August 3, 2004.

GERARDO FALAS, Petitioner,
v.
WILLIAM PHILLIPS, Acting Superintendent, Green Haven Correctional Facility, Respondent.

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

REPORT AND RECOMMENDATION

Gerardo Falas, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a plea of guilty to one count of Criminal Possession of a Weapon in the Second Degree in New York State Supreme Court, New York County, Falas was sentenced as a second violent felony offender to ten years in state prison. Falas is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York pursuant to that judgment. For the following reasons, Falas's petition should be denied.

I. BACKGROUND

  A. Suppression Hearing

  On June 7, 1999, a pretrial hearing was held to determine the admissibility of certain statements Falas made to the police as well as the admissibility of certain items recovered from Falas's person and from the car in which he was sitting when arrested.

  Officer John Crawford and Officer Jessie Bonaparte both testified that on November 6, 1998 at approximately 10:25 p.m., they were on patrol separately and received a radio transmission concerning four males with guns in a Chevrolet Caprice with tinted windows. (Crawford: Hr'g Tr. 5-6, 41; Bonaparte: Hr'g Tr. 62-63, 69). According to the transmission, the car was located on West 109th Street between Central Park West and Manhattan Avenue. (Crawford: Hr'g Tr. 6, 40-41; Bonaparte: Hr'g Tr. 63, 69). Officer Crawford was the first officer to respond to the scene and, after inquiring into a Caprice without tinted windows parked on the north side of the street, his attention shifted to a Caprice with tinted windows parked on the south side of the street. (Crawford: Hr'g Tr. 7-8, 39-45). He observed that the car looked like an unmarked police vehicle because of the type of vehicle and the fact that it had an antenna on the trunk. (Crawford: Hr'g Tr. 8-9). There were approximately 12 police officers on the scene at this point. (Crawford: Hr'g Tr. 47, 60; Bonaparte: Tr. 64-65).

  Officer Bonaparte was first to approach the Caprice with tinted windows and as he approached, he saw a man slumping down in the front passenger seat and three other men inside the car. (Bonaparte: Hr'g Tr. 65-66, 73-75; Crawford: Hr'g Tr. 9-10). From about five feet away, he saw that the man in the front passenger seat was holding the back of a black gun which he was partially hiding in a red bandana. (Bonaparte: Hr'g Tr. 66, 75-80). The man put the gun under the seat and Officer Bonaparte opened the door and pulled him out of the car. (Bonaparte: Hr'g Tr. 67-68, 83; Crawford: Hr'g Tr. 9-10, 46-47, 49-50). Both officers identified this individual as Falas in court. (Bonaparte: Hr'g Tr. 67; Crawford: Hr'g Tr. 12). Officer Bonaparte then went into the car, grabbed the gun from under the seat, and yelled "gun." (Bonaparte: Hr'g Tr. 68, 83; Crawford: Hr'g Tr. 13, 18-19, 50). Three other individuals were removed from the car. (Crawford: Hr'g Tr. 13).

  Falas was wearing a two-way radio taped with duct tape to his chest, a second set of clothing, and a police badge around his neck. (Crawford: Hr'g Tr. 14-15). Flex cuffs were also recovered from the ground. (Crawford: Hr'g Tr. 14). In addition, a .380 semiautomatic pistol was recovered from directly behind the front passenger seat of the car and a .38 revolver from behind the driver's seat. (Crawford: Hr'g Tr. 15-16). A nine-millimeter handgun with a laser scope attached to it was also recovered from a trap inside the glove compartment. (Crawford: Hr'g Tr. 17). All three guns were loaded. (Crawford: Hr'g Tr. 17). A siren control box was also found in the glove compartment and a red bubble light was found between the two front seats. (Crawford: Hr'g Tr. 18). Two cell phones, a knife, plastic handcuffs, a second radio, and other police badges were also found inside the car. (Crawford: Hr'g Tr. 19-22). A set of license plates, two flex cuffs, plastic handcuffs, and two bags marked as ammonium nitrate were found in the trunk. (Crawford: Hr'g Tr. 23-24).

  At approximately 12:20 a.m. that night, Falas was read his Miranda rights and he indicated that he had nothing to say. (Crawford: Hr'g Tr. 36-38, 57). Around 10:30 a.m. the next day, Detective Raul Maisonet again read Falas his Miranda rights and Falas again refused to speak. (Maisonet: Hr'g Tr. 88-91). At approximately 7 p.m., Officer Crawford showed Falas a photograph of the four guns and he identified a .380 with a black handle as his gun. (Crawford: Hr'g Tr. 33-36, 57).

  The defense presented no witnesses.

  The court denied the application to suppress in all respects in an oral ruling, except that it reserved decision as to the items recovered from the trunk of the car. (Hr'g Tr. 116-17). Thereafter, in a written decision, the court credited the testimony of the police officers and found that based on the radio transmission, the police had reasonable grounds to stop and investigate the car. Decision, dated July 1, 1999 ("Hr'g Decision") (reproduced as Ex. K to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed January 9, 2004 (Docket #7) ("Resp. Opp.")), at 2, 7. Further, the court held that probable cause existed to arrest the occupants of the car once Officer Bonaparte observed Falas in possession of a gun. Id. at 7. The search of the occupants and of the interior of the car was incident to this valid arrest and the search of the trunk was justified because the police had reasonable grounds to believe that additional weapons may have been hidden in the trunk. Id. The court also found that Falas's statements to the police were made after a knowing and voluntary waiver of his Miranda rights. Id.

  B. Plea

  On February 1, 2000, voir dire in Falas's trial had already begun and ten jurors had been chosen. (See Plea: Tr. 2). The parties had not been scheduled to appear in court on that day but Falas had indicated that he was interested in accepting a plea and his counsel had asked to appear before the judge. (See Plea: Tr. 2). The judge noted that the indictment against Falas charged four counts of Criminal Possession of a Weapon in the Second Degree (one count for each of the four weapons found in the car), four counts of Criminal Possession of a Weapon in the Third Degree (for the same four weapons), and one count of Criminal Impersonation in the First Degree. (Plea: Tr. 3).*fn1

  Defense counsel indicated that Falas was prepared to go forward with a plea to Criminal Possession of a Weapon in the Second Degree with regard to the Titan 380, which he had "indicated was the weapon he was to use on that evening." (Plea: Tr. 5-7). The prosecutor stated that he would be seeking a sentence of 15 years, which was less than the sentence Falas faced if he went forward with the trial. (Plea: Tr. 3). Defense counsel indicated that Falas was prepared to enter a plea with a sentence of eight years. (Plea: Tr. 4). In support of this position, defense counsel pointed out that the driver of the car had received a sentence of five years as a prior felony offender. (Plea: Tr. 3-4). The court said that it would "consider" an eight-year sentence but "[was] not going to promise it" and observed that four months earlier Falas had been offered and rejected such a plea. (Plea: Tr. 4, 7). Defense counsel stated that his client wished to go forward. (Plea: Tr. 4). The court confirmed that Falas was prepared to admit under oath that there were two other operable handguns in the car. (Plea: Tr. 7). A copy of the violent predicate statement was provided to the court. (Plea: Tr. 7).

  After being placed under oath, Falas then stated that he wished to plead guilty to Criminal Possession of a Weapon in the Second Degree in full satisfaction of the indictment against him. (Plea: Tr. 8). He stated that he was doing so voluntarily and of his own free will after speaking with his attorney. (Plea: Tr. 8). Falas then admitted that on November 6, 1998, on West 109th Street, he possessed a loaded, operable .380 caliber firearm inside a vehicle and that he intended to use that firearm unlawfully against another. (Plea: Tr. 8-9). He confirmed that in the car there were three other people and two additional loaded, operable firearms that were going to be used unlawfully and a third firearm in a trap inside the car. (Plea: Tr. 9). Falas also stated that he understood that the court would consider a sentence of eight years but that the judge was not making a promise as to his sentence. (Plea: Tr. 9-10). Falas also stated that he understood that he was not going to be allowed to withdraw his plea on the date of sentencing. (Plea: Tr. 10). Falas then indicated that he understood that in entering a plea, he was waiving his right to a jury trial, his right to confront and cross-examine witnesses, and the right to remain silent. (Plea: Tr. 11). He also stated that nobody had forced him to plead guilty or made any promises in order to get him to plead guilty. (Plea: Tr. 11). The plea was then accepted. (Plea: Tr. 11-12).

  The court then reviewed Falas's predicate felony statement, which stated that in 1992 Falas was convicted of Attempted Criminal Possession of a Weapon in the Second Degree, a violent felony. (Plea: Tr. 12). Falas admitted that he was convicted of that crime and he stated that he did not wish to challenge the constitutionality of that conviction. (Plea: Tr. 12-13). Accordingly, the court found Falas to be a second violent felony offender. (Plea: Tr. 13).

  C. Sentencing

  On February 29, 2000, Falas appeared for sentencing. The prosecutor requested that the proposed eight-year sentence be rejected and Falas be sentenced to 15 years in prison. (Sentencing: Tr. 2-6). The prosecutor argued that Falas's criminal history — which included an incident in 1989 in which Falas discharged a firearm in the direction of another person and an assault committed in 1992 — along with the fact that he absconded from a work release program, and the facts underlying the instant conviction, warranted a 15-year sentence. (Sentencing: Tr. 3-6). In response, defense counsel pointed out that the driver of the car, who had a longer criminal history than Falas, received a seven-year sentence. (Sentencing: Tr. 6-7).*fn2 Because of this and because Falas had admitted his guilt, defense counsel urged that he receive an eight-year sentence. (Sentencing: Tr. 7).

  Falas was then given an opportunity to address the court. (Sentencing: Tr. 7). He stated:

I'm innocent. I would like to withdraw my plea of guilty which was entered because I was coerced, tricked, and intimidated into taking it by my lawyer and the District Attorney.
My decision was not intelligent or a knowing one considering that I had not received any paperwork informing me of the charges against me until we were actually picking jurors.
And I never had an opportunity to discuss the charges or the defenses with my attorney, and I had no idea what I actually was being charged with.
Furthermore, I was tricked into pleading guilty to the highest charge in the indictment and without a promised sentence.
My lawyer originally told me that I would be cop[p]ing to a weapons possession in the third degree which carries 3 to 5 years, a determinative sentence.
She also said that I'd have to cooperate fully with what the Court asked of me.
Instead, the Court has me pleading to criminal possession of a weapon in the second degree with intent to do harm to another unlawfully, a charge which the facts of the case would probably fail to establish even at trial, I believe.
The presentence report should reflect discrepancies and I have a motion to withdraw my plea for the Court with me which I'll ask the Court to accept and my attorney to adopt.
(Sentencing Tr. 7-9). The prosecutor then responded that he would be opposed to Falas withdrawing his plea and observed that defense counsel was a fine attorney. (Sentencing: Tr. 9). The court added that Falas's previous attorney, who represented him at the hearing, was also a fine attorney. (Sentencing: Tr. 9). The prosecutor noted for the record that Falas was scheduled to go to trial in the Bronx the following Monday in a robbery case involving the same individuals Falas admitted being with in the instant case. (Sentencing: Tr. 10).

  Before sentencing Falas, the court stated, "Mr. Falas clearly is lying to me now which is . . . something that certainly I have to take into consideration." (Sentencing: Tr. 10-11). The court was "shocked" and "amaze[d]" that Falas accused counsel of pressuring him and tried to withdraw his plea after swearing under oath that he understood his rights, that he was not pressured or coerced, and that he was guilty. (Sentencing: Tr. 11-12). The court took into account Falas's prior record and the circumstances of this crime — particularly the fact that the four men had all the equipment to impersonate police officers with them in the car — in determining the sentence. (Sentencing: Tr. 12-13). Falas was sentenced to ten years in prison. (Sentencing: Tr. 13).

  D. Written Motion to Withdraw Plea

  As noted in the colloquy at Falas's sentencing, Falas had also prepared a written motion to withdraw his guilty plea. See Sentencing: Tr. 9; Affidavit in Support of Motion to Withdraw Plea, dated February 26, 2000 ("Motion to Withdraw") (reproduced as Ex. L to Resp. Opp.). In it, Falas claimed that he entered a guilty plea because his counsel insisted that he do so and because he lost the suppression hearing, not because he was actually guilty. Id. at 1. He further contended that his attorney had "guaranteed" him that he would lose at trial and that he would be sentenced to consecutive sentences for each of the weapons found in the vehicle. Id. at 2. Falas also asserted that he was forced to begin the trial without receiving any Brady, Rosario, or discovery material. Id. In addition, he mentioned that his first attorney had refused to reargue the suppression motion and the court had rejected a pro se motion to reargue. Id. at 8.

  In a written decision, the sentencing court denied Falas's motion to withdraw his plea, finding that his written allegations were the same as those presented orally which the court had previously rejected. See Brief for Respondent, dated April 2001 (reproduced as Ex. B to Resp. Opp.), at 16.*fn3

  E. Motion to Vacate

  On December 12, 2000, Falas submitted a pro se motion to vacate his conviction under N.Y. Crim. Proc. Law ("CPL") § 440. See Notice of Motion to Vacate Judgement and Set Aside Sentence Pursuant to C.P.L. 440.30, dated December 12, 2000 ("440 Motion") (reproduced as Ex. C to Resp. Opp.). He argued that (1) the People had failed to show that the information received from the 911 call was sufficiently reliable to justify the actions taken in stopping the car, id. at 8-9; (2) the suppression motion should have been granted because Officer Bonaparte's testimony that he could see the butt of a gun through the tinted window as he approached the car was incredible, id. at 9-11; (3) defense counsel divulged to the prosecutor that Falas was going to maintain that he was seated in the rear of the car rather than in the front, id. at 11-13; (4) Falas's first attorney was ineffective, id. at 13-14; (5) Falas pled guilty only because his second attorney told him that "the Appellate Division would not allow the conviction to stand," id. at 14; (6) the sentence should be reduced in the interest of justice, id. at 15-17; and (7) the court improperly ignored Falas's pro se motion, telling Falas that it did not accept pro se motions, id. at 18-19.

  In a written decision, Falas's motion was denied. See Decision and Order, dated April 3, 2001 ("440 Decision") (reproduced as Ex. D to Resp. Opp.), at 1. The court found all of Falas's contentions to be without merit. Id. Furthermore, the court found that it must deny the motion under CPL § 440.10(2)(b) because the bases for Falas's motion appeared on the record and his appeal was still pending. Id.

  Falas sought leave to appeal the denial of his motion to vacate, which the Appellate Division granted and consolidated with his pending direct appeal. See Certificate Granting Leave, dated May 8, 2001 (reproduced as Ex. E to Resp. Opp.), at 1. F. Direct Appeal

  Through new counsel, Falas appealed his conviction to the Appellate Division, First Department, raising the following four grounds for relief:

Point One: The court improperly enhanced [Falas's] sentence because it believed [Falas] had lied in moving to withdraw his guilty plea.
Point Two: The court erred by denying [Falas's] motion to withdraw his guilty plea without a hearing where the court failed to offer [Falas's] counsel an opportunity to speak or accept [Falas's] motion papers.
Point Three: The court should have granted [Falas's] suppression motion because the police officer's testimony was incredible as a matter of law.
Point Four: The court should reduce [Falas's] sentence in the interest of justice to the minimum permissible term of seven years.
Brief for Defendant-Appellant, dated December 20, 2000 ("Pet. App. Brief") (reproduced as Ex. A to Resp. Opp.), at 7, 11, 13, 16. Falas also submitted a pro se supplemental brief, making the following five arguments: (1) the motion to re-argue the suppression motion should have been granted; (2) the suppression motion should have been granted because Officer Bonaparte's testimony was incredible; (3) Falas was denied his Sixth Amendment right to effective assistance of counsel at the suppression hearing and during the plea and sentencing; (4) the court failed to advise Falas that he could challenge the constitutionality of his prior convictions; and (5) the weight of the evidence was insufficient to sustain the charge. See Pro Se Supplemental Brief, dated May 25, 2001 ("Pro Se Supp. Brief") (reproduced as Ex. F to Resp. Opp.), at 5-10. After Falas's direct appeal was consolidated with his appeal of the denial of his motion to vacate, appellate counsel submitted a supplemental brief arguing that the factual basis of Falas's ineffective assistance of counsel claim was not contained in the record and thus the court erred in denying his motion to vacate without a hearing. See Brief for Defendant-Appellant, dated July 9, 2001 ("Supp. App. Brief") (reproduced as Ex. G to Resp. Opp.), at 2-4.

  On September 27, 2001 the Appellate Division unanimously affirmed Falas's conviction, holding that (1) the suppression motion was properly denied; (2) the court's summary denial of Falas's motion to withdraw his plea was proper; (3) Falas's claim that the court considered an improper factor in imposing his sentence was unpreserved; and (4) the court's summary denial of Falas's CPL § 440 motion was proper. See People v. Falas, 286 A.D.2d 651, 651-52 (1st Dep't 2001). In addition, the Appellate Division stated, "We have considered and rejected [Falas's] remaining claims, including those contained in his pro se supplemental brief." Id. at 652.

  Thereafter, Falas sought leave to appeal to the Court of Appeals, which was summarily denied on February 28, 2002. People v. Falas, 97 N.Y.2d 728 (2002).

  G. The Instant Petition

  Falas timely submitted the instant habeas petition to this Court's Pro Se Office on May 20, 2003. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed June 27, 2003 (Docket #1) ("Petition"), at 1. In it, he raised five grounds for relief:

Point One: The court improperly enhanced [Falas's] sentence because it believed [he] had [lied] in moving to withdraw his guilty plea.
Point Two: The court erred by denying [Falas's] motion to withdraw his guilty plea without a hearing where the court failed to offer [Falas's] counsel an opportunity to speak [o]r accept [Falas's] motion papers.
Point Three: The court should have granted [Falas's] suppression motion because the police officer's testimony was incredible as a matter of law. Point Four: The trial court improperly denied [Falas's] pro se CPL 440 motion without holding a hearing.
Point Five: [Falas] was denied his constitutional right to the effective assistance of counsel at the plea negotiations.
Id. ¶ 12-A. After the respondent submitted his opposition to the petition, see Resp. Opp.; Resp. Mem., Falas submitted a traverse which raised an additional ground for relief — ineffective assistance of counsel at the suppression hearing, see Memorandum of Law in Support of Traverse to Petitioner's Writ of Habeas Corpus, dated March 8, 2004 ("Traverse"), at 15-21. Construing Falas's pro se petition as raising this additional claim, see, e.g., Littlejohn v. Artuz, 271 F.3d 360, 363-64 (2d Cir. 2001) (permitting liberal amendment of habeas corpus petitions), the Court directed the respondent to submit a supplemental brief addressing this issue. Order, filed March 31, 2004 (Docket #12), at 1. The respondent addressed this claim by letter dated May 13, 2004. See Letter from Michael P. King to the Hon. Gabriel W. Gorenstein, filed May 17, 2004 (Docket #15) ("Resp. Supp. Mem."), at 1-6.

  II. APPLICABLE LEGAL PRINCIPLES

  A. Standard of Review

  A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). For a state court decision to constitute an "adjudication on the merits," the state court need only base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to the federal aspect of a claim or any federal law the deferential standard to apply. Id. at 312.

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). The Williams Court also held that habeas relief is only available under the "unreasonable application" clause "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

  B. Exhaustion

  Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Daye v. Attorney Gen., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented the federal nature of each claim to all levels of the state appellate courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye, 696 F.2d at 191.

  In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., Estelle, 502 U.S. at 68. Thus, "[t]he exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts." Daye, 696 F.2d at 191 (internal quotation marks and citations omitted). Without explicitly citing the Constitution, a habeas petitioner can alert the state court to a claim's federal nature by: 1) relying on federal cases employing constitutional analysis; 2) relying on state cases employing constitutional analysis; 3) asserting a claim in terms so particular as to call to mind a specific right protected by the Constitution; or 4) alleging a pattern of facts that is well within the mainstream of constitutional litigation. Id. at 194; accord St. Helen v. Senkowski, ___ F.3d ___, 2004 WL 1489873, at *1 (2d Cir. July 6, 2004) (per curiam).

  C. Procedural Default

  Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). A procedural bar is "adequate" if it is based on a rule that is "`firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Dretke v. Haley, 124 S.Ct. 1847, 1852 (2004); Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas."). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).

  III. DISCUSSION

  As noted, Falas has raised six grounds for federal habeas corpus relief. Each will be addressed in turn.

  A. Sentence

  Falas's first claim is that the state court improperly enhanced his sentence based on its conclusion that Falas had lied. Petition ¶ 12-A; see also Traverse at 21-26. At sentencing, the prosecutor argued that Falas should receive 15 years in prison; defense counsel argued that he should receive only eight years. (Sentencing: Tr. 2-7). The court had previously made clear — before Falas entered a plea of guilty — that it would consider an eight-year sentence but would not promise any particular sentence. (Plea: Tr. 4, 9-10). Speaking on his own behalf at sentencing, Falas claimed that he was innocent of the crime charged and pled guilty under coercion (Sentencing: Tr. 7-9), contradicting his previous sworn statements that he was guilty and was pleading guilty voluntarily (Plea: Tr. 8-11). The sentencing judge stated twice that he was taking Falas's lies into account. (Sentencing: Tr. 10-11, 12-13 ("I'm going to consider [the prosecutor's] remarks today, [defense counsel], I'll consider what you said, and I'll consider Mr. Falas' outright lies to me today.")).

  In raising this claim on direct appeal, Pet. App. Brief at 7-11, Falas acknowledged that the claim was not preserved for appellate review, id. at 10 ("this claim is unpreserved for appellate review"). Accordingly, the Appellate Division held as follows:

[Falas's] claim that the court considered an improper factor in imposing [the] sentence is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that [Falas's] sentence was not based on any improper criteria, and we perceive no basis for reduction of sentence. We further note that [Falas's] sentence was well within the terms of the court's sentence promise.
Falas, 286 A.D.2d at 652.

  The respondent first argues that Falas has failed to exhaust this claim because his brief to the Appellate Division and letters to the New York Court of Appeals were based solely on New York law and did not present any federal issue. Resp. Mem. at 14-15. Falas counters that his appellate counsel relied on state cases which themselves relied on constitutional arguments, see Pet. App. Brief at 7-11 (citing, inter alia, People v. Parker, 271 A.D.2d 63, 69 (4th Dep't 2000) (per curiam) (a court departing from a negotiated sentence based upon "its subjective interpretation of a defendant's conduct rather than verifiable factual information" violates due process), and also filed a reply brief which cited United States v. Grayson, 438 U.S. 41, 53-55 (1978) (consideration of a defendant's untruthfulness under oath in sentencing does not violate due process). Traverse at 21-22; see Daye, 696 F.2d at 194.

  Even this Court were to find that the federal nature of this claim was fairly presented to the state courts and thus that the claim is properly exhausted, procedural default would still bar federal habeas review. In holding that this claim was unpreserved for appellate review, the Appellate Division relied upon the contemporaneous objection rule contained in CPL § 470.05. See Falas, 286 A.D.2d at 652. The record in this case is clear that Falas did not raise any objection to the trial judge's taking into account his perceived perjury. (See Sentencing: Tr. 10-13). Indeed, Falas's appellate counsel conceded this point, Pet. App. Brief at 10, and the Appellate Division so held, Falas, 286 A.D.2d at 652.

  Application of the guideposts laid out by the Second Circuit in Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), demonstrates that the procedural bar relied on by the state court is one that is "firmly established and regularly followed." Id. at 240 (citing Lee v. Kemna, 534 U.S. 362, 381-85 (2002). New York courts have routinely held that the failure to make a contemporaneous objection at sentencing waives appellate review. See, e.g., People v. Ruz, 70 N.Y.2d 942, 943 (1988); People v. Mariani, 6 A.D.2d 1206, 1206 (4th Dep't 2004); People v. Harris, 272 A.D.2d 225, 225 (1st Dep't 2000). See generally Garcia, 188 F.3d at 79-82 (finding that CPL § 470.05 constitutes an "adequate" state ground precluding habeas review); Peterson v. Scully, 896 F.2d 661, 663 (2d Cir.), cert. denied, 497 U.S. 1038 (1990). Thus, federal habeas review is precluded unless Falas can show cause and prejudice or a fundamental miscarriage of justice, see, e.g., Harris, 489 U.S. at 262, which he has not done in the record before this Court.

  Even were the merits of this claim to be reached, habeas relief would be denied. The Second Circuit has held that, apart from a defendant's due process right not to be sentenced on the basis of information that is materially false, see, e.g., Townsend v. Burke, 334 U.S. 736, 740-41 (1948) (sentence based on "materially untrue" assumptions or "misinformation" violates due process), a judge's discretion in sentencing is "`largely unlimited either as to the kind of information he may consider, or the source from which it may come.'" Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). The Supreme Court has noted that

[i]t is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures [him]self in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process. The perjuring defendant's willingness to frustrate judicial proceedings to avoid criminal liability suggests that the need for incapacitation and retribution is heightened as compared with the defendant charged with the same crime who allows judicial proceedings to progress without resorting to perjury.
United States v. Dunnigan, 507 U.S. 87, 97-98 (1993) (sentence enhancement for perjury proper under federal Sentencing Guidelines); see also Grayson, 438 U.S. at 54-55 (rejecting argument that sentence enhancement for perjury "chills" a defendant's right to testify because "[t]here is no protected right to commit perjury"). The sentencing judge thus could properly take into account the fact that Falas had made contradictory statements to the court — first swearing that he was guilty of the offense and was pleading guilty voluntarily during the plea allocution (Plea: Tr. 8-11), and then stating that he was innocent and pled guilty under coercion during the sentencing hearing (Sentencing: Tr. 7-9). Furthermore, Falas's sentence of ten years (Sentencing: Tr. 13) was within the range authorized by state law, see N.Y. Penal Law §§ 70.04(3)(b), 265.03 (authorizing sentence between seven and 15 years for a second violent felony offender convicted of Criminal Possession of a Weapon in the Second Degree). Accordingly, habeas relief is not available on this ground. See Harris v. New York, 202 F. Supp.2d 3, 7-8 (S.D.N.Y. 2001) (where trial judge considers petitioner's perjury in imposing sentence, habeas relief not available as long as sentence falls within the range prescribed by state law).*fn4

  B. Denial of Motion to Withdraw Without a Hearing

  Falas's second ground for relief is that the state trial court erred in denying his motion to withdraw his plea without a hearing. Petition ¶ 12-A. He contends that by not allowing his attorney a chance to speak and by not accepting his pro se motion papers, the court deprived him of due process. Id.; see also Pet. App. Brief at 11-13. This issue was raised on direct review and the Appellate Division reviewed the claim on the merits:

The court's summary denial of [Falas's] application to withdraw his guilty plea was proper (see, People v. Fiumefreddo, 82 N.Y.2d 536, 543-544). [Falas] was afforded a suitable opportunity to be heard orally and the record establishes that the court considered his written motion. [Falas's] application was in total contradiction of his statements during the plea allocution, where the court carefully ascertained from [Falas] that he was knowingly and voluntarily pleading guilty and that he was acknowledging that he had possessed a loaded weapon with intent to use it unlawfully.
Falas, 286 A.D.2d at 651-52. Thus, habeas relief is unavailable unless this decision was "contrary to" or "an unreasonable application of" clearly established federal law.

  As an initial matter, the respondent argues that this claim is unexhausted because Falas failed to raise it in federal terms in state court. Resp. Mem. at 14-15, 21. Rather than parse whether the state courts were alerted to the federal nature of the claim, however, the Court will exercise its option to simply adjudicate the claim on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

  In Hines v. Miller, 318 F.3d 157, 161-62 (2d Cir.), cert. denied, 538 U.S. 1040 (2003), the Second Circuit considered a claim that the state court's refusal to hold an evidentiary hearing on a petitioner's motion to withdraw his guilty plea offended due process. The Second Circuit determined that the "proper analytical approach to deciding whether state criminal procedural rules violate due process is to determine if they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. (quoting Medina v. California, 505 U.S. 437, 445 (1992) (in turn quoting Patterson v. New York, 432 U.S. 197, 202 (1977))). Applying this standard, the court held that under federal and state precedent "a defendant is not entitled as a matter of right to an evidentiary hearing on a motion to withdraw a guilty plea." Id. at 162 (citing cases); accord Cosey v. Walsh, 2003 WL 1824640, at *3 (S.D.N.Y. Apr. 8, 2003); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997). Thus, "the failure to hold an evidentiary hearing . . . does not offend a deeply rooted or `fundamental' principle of justice." Hines, 318 F.3d at 162 (quoting Medina, 505 U.S. at 445). The failure to hold a hearing is especially understandable in Falas's case where he "did nothing more than contradict his own statements at the time he entered the plea," Hutchings v. Herbert, 260 F. Supp.2d 571, 581 (W.D.N.Y. 2003).

  In light of the lack of a federal constitutional right to an evidentiary hearing in this situation, the Appellate Division's ruling upholding the failure to hold such a hearing did not result in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d).

  C. Suppression Motion

  Falas argues that the hearing court should have granted his motion to suppress because the testimony of Officer Bonaparte that he could see a gun through the tinted car windows was incredible as a matter of law. Petition ¶ 12-A. Falas made this argument to the state courts both in his pro se motion to vacate, 440 Motion at 9-11, and in his direct appeal, Pet. App. Brief at 13-16; Pro Se Supp. Brief at 5-7. The Appellate Division rejected the claim, ruling that the "suppression motion was properly denied" and that "[t]here is no basis upon which to disturb the court's credibility determinations, which are supported by the record." Falas, 286 A.D.2d at 651 (citation omitted). Because this claim involves only a Fourth Amendment issue — specifically whether there was probable cause to support removing Falas and the other occupants from the car and the subsequent search — habeas review is precluded.

  It is well-established that a federal habeas court may not review a Fourth Amendment claim arising out of a state criminal proceeding unless the state denied the petitioner a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 481-82 (1976); accord, e.g., Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992). In light of Powell, the Second Circuit has held that review of Fourth Amendment claims in habeas corpus petitions may be undertaken only in two circumstances: (1) "[i]f the state provides no corrective procedures at all to redress Fourth Amendment violations" or (2) "where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process." Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978); accord Capellan, 975 F.2d at 70.

  Neither circumstance applies here. First, New York has a procedure for litigating Fourth Amendment claims. See CPL §§ 710.10-.70. Second, Falas actually "utiliz[ed] it" through his participation in the pretrial suppression hearing as well as in his motion to vacate and on direct appeal. Although Falas argues that he was denied a full and fair opportunity to litigate his Fourth Amendment claims because the state court refused to consider his pro se motion to reargue the suppression issue, see Traverse at 18-19, there is nothing unfair about requiring a criminal defendant to proceed by counsel unless and until his attorney is relieved and the defendant is authorized to proceed pro se exclusively. Moreover, the Appellate Division ultimately reviewed all of his pro se claims, which included claims relating to the suppression hearing. In sum, Falas's Fourth Amendment claim cannot be reviewed by this Court. See, e.g., Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) ("once it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief"); Capellan, 975 F.2d at 70 n. 1 ("`federal courts have approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate'" (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989))); Valtin v. Hollins, 248 F. Supp.2d 311, 316-17 (S.D.N.Y. 2003) (where trial court held a pretrial hearing concerning the circumstances of petitioner's arrest and Appellate Division affirmed, petitioner's claim that he was arrested without probable cause is unreviewable); Senor v. Greiner, 2002 WL 31102612, at *10-*11 (E.D.N.Y. Sept. 18, 2002) (same).

  D. Denial of Motion to Vacate Without a Hearing

  Falas argues that the trial court improperly denied his pro se motion to vacate without holding an evidentiary hearing. Petition ¶ 12-A. As detailed above, Falas's motion to vacate raised seven claims, many of which duplicated claims raised in his direct appeal. See Supp. App. Brief at 2 ("Most of the claims [Falas] raised in his pro se CPL § 440 motion are duplicative to the arguments asserted by appellate counsel on the direct appeal."). Compare 440 Motion at 8-19 with Pet. App. Brief at 7-18 and Pro Se Supp. Brief at 5-10. The state court denied the motion to vacate on the merits and because, under CPL § 440.10(2)(b), the court must deny a motion to vacate when "`the judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal.'" 440 Decision at 1 (quoting CPL § 440.10(2)(b)). Falas's appellate counsel conceded that, to the extent the claims in the motion to vacate were the same as those raised in the direct appeal, the court properly denied Falas's motion to vacate without holding a hearing. Supp. App. Brief. at 2. However, appellate counsel also argued that the facts underlying Falas's ineffective assistance of counsel claims did not appear on the record and therefore the court erred in denying those claims without a hearing. Id. at 2-4. The Appellate Division held: The court's summary denial of [Falas's] CPL article 440 motion was appropriate because [Falas's] papers did not raise a factual issue warranting a hearing (see, People v. Satterfield, 66 N.Y.2d 796). [Falas's] assertion that his counsel engaged in conduct that prejudiced [Falas's] case is speculative and unsubstantiated.

 Falas, 286 A.D.2d at 652.

  Again, the respondent argues that this claim is unexhausted because Falas never alerted the state court to the federal nature of the claim. Resp. Mem. at 14-15, 27. But this claim must in any event be denied on the merits, see 28 U.S.C. § 2254(b)(2), simply because "[f]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Diaz v. Greiner, 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000) (internal quotation marks and citations omitted); accord Franza v. Stinson, 58 F. Supp.2d 124, 151-52 (S.D.N.Y. 1999); see, e.g., Jones v. Duncan, 162 F. Supp.2d 204, 217-19 (S.D.N.Y. 2001) ("[petitioner's] assertion that the failure to hold a hearing on his CPL § [] 440.10 . . . motion[] violated due process is not cognizable on federal habeas review" (citing cases)); Diaz, 110 F. Supp.2d at 236 ("Petitioner's unsupported assertion that the trial court denied his (third) CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review.").

  E. Ineffective Assistance of Counsel at Plea Negotiations

  Falas next contends that he was denied his constitutional right to effective assistance of counsel during the plea negotiations because "counsel led [him] to believe if he went to trial he would lose and consecutive sentences [would be] imposed." Petition ¶ 12-A. Falas raised this issue in his pro se supplemental brief on direct appeal. Pro Se Supp. Brief at 9; see also Motion to Withdraw at 2; 440 Motion at 13. In his state court submissions, Falas made additional allegations regarding counsel's performance, see Pro Se Supp. Brief at 8-10; Motion to Withdraw at 2-3, 8; 440 Motion at 11-13, which he has not raised here. The Appellate Division adjudicated this claim on the merits by stating that "[Falas's] assertion that his counsel engaged in conduct that prejudiced [his] case is speculative and unsubstantiated" and "[w]e have considered and rejected [Falas's] remaining claims, including those contained in his pro se supplemental brief." Falas, 286 A.D.2d at 652.

  To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate: (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). This same two-part standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985). With respect to the first prong, the relevant question in the context of a guilty plea is "not . . . whether a court would retrospectively consider counsel's advice to be right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970); accord Hill, 474 U.S. at 56-57. In evaluating this prong "`[j]udicial scrutiny . . . must be highly deferential'" and "`every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence). "[I]n order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).

  Falas is unable to establish deficient performance with respect to the representation he received in the plea negotiations. Counsel was under an obligation to provide Falas with her professional assessment of the case against him and the sentence to which he would be exposed should he lose at trial. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 721 (1948) ("an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered"); Gordon, 156 F.3d at 380 ("knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty" (internal quotation marks and citation omitted)); Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) ("`A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable.'" (emphasis omitted) (quoting Model Code of Prof'l Responsibility EC 7-7 (1992)).

  Here, the court had ruled, prior to Falas entering a plea of guilty, that all of the items recovered from the car in which Falas was sitting — which included four guns and a variety of items which indicated that the four men were intending to impersonate police officers — as well as Falas's statement identifying one of the guns as his, were admissible. See Hr'g Decision at 7. Thus, counsel's assessment that he would likely be convicted by a jury was certainly reasonable.

  As for Falas's claim that he was misadvised that he would be subject to consecutive sentences for each weapon that was found in the car, the respondent asserts, citing only N.Y. Penal Law § 70.25, that Falas could have faced consecutive sentences for one count of Criminal Possession of a Weapon in the Second Degree, each of four counts of Criminal Possession of a Weapon in the Third Degree, and one count of Criminal Impersonation in the First Degree. See Resp. Mem. at 32. In fact, it is not clear that such sentences could have run consecutively inasmuch as N.Y. Penal Law § 70.25(2) provides that sentences for "two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other . . . must run concurrently." While the meaning of a "single act or omission" is open to interpretation, some case law supports the view that multiple sentences for possession of multiple weapons arising from the same incident must run concurrently. See, e.g., People v. Cleveland, 236 A.D.2d 802, 802 (4th Dep't 1997) (consecutive sentences improper where defendant held a gun in each hand while chasing a single victim); People v. Williams, 144 A.D.2d 1012, 1012 (4th Dep't 1988) (consecutive sentences improper where possession of knife and scissors motivated by same intent and part of same criminal transaction); People v. Murphy, 115 A.D.2d 249, 249 (4th Dep't 1985) (consecutive sentences improper were defendant possessed one gun with intent to harm two people).

  On the other hand, there is case law that arguably supports the notion that the sentences in Falas's case could have run consecutively. See, e.g., People v. Smith, 309 A.D.2d 1081, 1083 (3d Dep't 2003) (consecutive sentences for weapon possession and drug possession permissible even though both were possessed at the same time); see also People v. Malave, 271 A.D.2d 204, 204 (1st Dep't 2000) (upholding consecutive sentences for Criminal Possession of a Weapon in the Second Degree and Criminal Impersonation in the First Degree). It appears that the New York Court of Appeals has not spoken on this question.

  The issue, however, is not "not . . . whether a court would retrospectively consider counsel's advice to be right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771. Assuming that Falas's attorney did in fact advise him that he would receive consecutive sentences if convicted after trial, this Court cannot say that that advice was outside the "range of compentence" of attorneys in criminal cases given that N.Y. Penal Law § 70.25 is not entirely clear. Certainly, this Court cannot say that the Appellate Division engaged in an "unreasonable application" of federal law in so concluding. See Singh v. Kuhlmann, 1995 WL 870113, at *11 (S.D.N.Y. Aug. 25, 1995) (counsel not ineffective where counsel's advice that petitioner possibly faced consecutive sentences was "not necessarily erroneous"). Counsel's view that Falas may have faced more than 15 years in prison after trial — a result that is only possible if he were sentenced consecutively on some charges — was supported by the state court's statement, prior to accepting Falas's plea, that 15 years was "less than what [Falas] faces after trial" (See Plea: Tr. 3).

  Because the Appellate Division did not unreasonably apply Strickland in concluding that Falas's counsel was not deficient with respect to the representation Falas received during the plea negotiations, this Court need not address the prejudice prong of the Strickland analysis.

  F. Ineffective Assistance of Counsel at the Suppression Hearing

  Falas's final claim is that he received ineffective assistance of counsel at the suppression hearing. See Traverse at 15-21. He asserts that his first attorney "abandoned" him when he tried to submit a pro se motion to reargue the suppression motion, which supposedly alleged that counsel had (1) failed to object to a picture of the vehicle taken in broad daylight which misrepresented what the vehicle looked like at night; (2) improperly handled the contradictory testimony and reports of Officer Bonaparte; (3) failed to object to the use of the 911 call as probable cause; and (4) failed to object to the hearing court's improper application of the plain view doctrine. Id. at 19; see also Pro Se Supp. Brief at 7-8. The hearing court apparently rejected the motion to reargue stating that it did not accept pro se motions and counsel refused to adopt it, despite Falas's repeated requests. Traverse at 19; see also Motion to Withdraw at 8; Motion to Vacate at 13-14, 18-19; Pro Se Supp. Brief at 5. Further, Falas contends that his first attorney submitted an improper CPL § 30.30 motion. Traverse at 19

  The Appellate Division adjudicated this claim on the merits, holding that "[Falas's] assertion that his counsel engaged in conduct that prejudiced [his] case is speculative and unsubstantiated" and "[w]e have considered and rejected [Falas's] remaining claims, including those contained in his pro se supplemental brief." Falas, 286 A.D.2d at 652.

  Again, to prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate: (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.

  Beginning with Falas's claim that his attorney improperly abandoned him when he attempted to submit a pro se motion to reargue, the record demonstrates that Falas's ineffective assistance of counsel claim on this score lacks merit. The motion to reargue was based on Falas's argument that the anonymous 911 call was insufficient to establish probable cause. See Notice of Motion to Renew Pursuant to C.P.L.R. Rule 2221, dated November 2, 1999 (reproduced as Ex. A to Resp. Supp. Mem.), ¶¶ 1-3. Counsel competently argued the original motion to suppress, albeit unsuccessfully (see Hr'g Tr. at 109-11), and the hearing court concluded that the radio transmission following from the 911 call provided "reasonable grounds to stop and investigate the car," Hr'g Decision at 7. The court continued, "Once Bonaparte observed the defendant Falas in possession of a gun, probable cause existed to arrest the defendants." Id. Clearly, the hearing court credited the testimony of Officer Bonaparte that he had seen a gun. See id. at 1, 3. In light of this decision, counsel had no reason to seek reargument and "[f]ailure to make a meritless argument does not amount to ineffective assistance," United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999), cert. denied, 531 U.S. 811 (2000); accord Highsmith v. Donnelly, 2004 WL 1071246, at *9 (W.D.N.Y. Mar. 30, 2004) (counsel's failure to move to suppress evidence not ineffective assistance where record indicated no basis for the motion).

  As for counsel's failure to object to the introduction of a picture of the car that was taken in daylight, Officer Crawford testified that the photograph was a fair and accurate representation of what the vehicle looked like on the date in question, although he admitted that the photograph was not taken on the day of the arrest. (Hr'g Tr. 10-11). The photograph was not introduced into evidence to show the lighting at the time of the arrest and Officer Crawford's testimony was sufficient to authenticate it. Thus, defense counsel cannot be found ineffective for failing to object to the admission of the photograph.

  Falas's claim that counsel was ineffective in cross-examining Officer Bonaparte is also unavailing. The Second Circuit has repeatedly held that "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987), cert. denied, 484 U.S. 1061 (1988); accord Eze v. Senkowski, 321 F.3d 110, 127 (2d Cir. 2003) ("`The conduct of examination and cross-examination is entrusted to the judgment of the lawyer. . . .'" (quoting United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998))). Here, defense counsel cross-examined Officer Bonaparte at length as to the details of what he was able to see as he approached the car (Bonaparte: Tr. 72-81) — which was the only real issue in the hearing — and argued to the court that it was "beyond belief" that the officer could have seen the gun (Tr. 110-11). Although Falas contends that written reports prepared by Officer Bonaparte were inconsistent with his testimony as to where in the car Falas was sitting, see Traverse at 19, during the hearing, Officer Bonaparte testified consistently that Falas was sitting in the front passenger seat (see Bonaparte: Tr. 65-67, 74). The choice by defense counsel not to focus his cross-examination of Officer Bonaparte on Falas's position in the car can be justified as a matter of trial strategy and thus will not be second-guessed by this Court.

  Falas's claim as to counsel's failure to object to reliance on the 911 call for probable cause is also meritless, insofar as the hearing court's decision reflects that it was Officer Bonaparte's observation of a gun and not the 911 call that provided the basis for probable cause to search and arrest. See Hr'g Decision at 7. Falas does not dispute that the 911 call was sufficient to justify the police approaching the car, which exactly matched the description and location given in the radio transmission. See Traverse at 17; see also People v. Munford, 2004 WL 535973, at *3 (N.Y.Sup.Ct. Mar. 19, 2004) ("the officers' suspicion in the instant matter was not premised only on an unverified anonymous informer, but rather from observing defendant's specific physical characteristics and conduct near the scene of the alleged crime"). The 911 call became irrelevant once Officer Bonaparte, lawfully approaching the car to inquire, saw the gun. Thus, counsel was not ineffective for failing to object to the officer's reliance on the 911 call.

  Falas's contention that counsel failed to object to the improper use of the plain view doctrine is equally unavailing. Under the plain view doctrine, "if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Here, the officers received a radio transmission stating that "four suspicious males with guns were inside of a Chevrolet Caprice, which had tinted windows, and was in the area of 109th Street between Central Park West and Manhattan Avenue." Hr'g Decision at 2; see also Crawford: Hr'g Tr. 5-6, 40-41; Bonaparte: Hr'g Tr. 62-63, 69. Thus, the "police had reasonable grounds to stop and investigate the car," Hr'g Decision at 7, which matched this description, id. at 2-3; see also Crawford: Hr'g Tr. 7-9, Bonaparte: Hr'g Tr. 64-66, 72-74. Officer Bonaparte testified that he saw from five feet away that the man in the front passenger seat was holding a gun under a red bandana. Hr'g Decision at 3; see also Bonaparte: Hr'g Tr. 66, 75-80. Thus, under the plain view doctrine, the subsequent seizure of the gun and arrest of Falas was supported by probable cause. See Hr'g Decision at 7. Defense counsel had no legally valid reason to object to the application of the plain view doctrine in these circumstances.

  Finally, Falas offers nothing but his own conclusory allegation to support his claim that defense counsel improperly submitted a motion under CPL § 30.30, relating to his speedy trial rights under state law. See Traverse at 19. Nor has Falas presented any evidence that had the motion been submitted on a later date, as Falas argues that it should have been, id., it would have been successful. See Douglas v. Hollins, 2004 WL 187130, at *5 (S.D.N.Y. Jan. 29, 2004) ("Because [petitioner] has not shown any likelihood that a second § 30.30 motion would have . . . succeeded where the first one failed, he has not shown that counsel's refusal to file such a motion prejudiced him in any way."). Thus, counsel was not ineffective in filing the motion before Falas believed that it should have been filed. See Davis v. McLaughlin, 122 F. Supp.2d 437, 443-44 (S.D.N.Y. 2000) (no ineffective assistance where counsel failed to make a § 30.30 motion that would have been unsuccessful).

  In sum, Falas has failed to establish his claim that his counsel provided ineffective assistance of counsel with respect to the suppression hearing.

  Conclusion

  For the foregoing reasons, Falas's petition should be denied.

 

PROCEDURE FOR FILING 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 have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. P. Kevin Castel, 500 Pearl Street, New York, N.Y. 10007, and to the undersigned at 40 Centre Street, New York, NY. Any request for an extension of time to file objections must be directed to Judge Castel. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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