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.
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.
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.
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).
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
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
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
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 ...