The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
In this pro se petition submitted pursuant to
28 U.S.C. § 2254, Hector Santos seeks a writ of habeas corpus to set aside a
judgment of conviction issued on May 5, 2000, by the New York
State Supreme Court, Bronx County. Following a jury trial, Santos
was convicted of Criminal Sale of a Controlled Substance in the
Third Degree (New York Penal Law § 220.39(1)) and Criminal
Possession of a Controlled Substance in the Third Degree (New
York Penal Law § 220.16(1)) and sentenced to concurrent terms of
six to twelve years. He is currently incarcerated at the Upstate
Correctional Facility in Malone, New York. For the reasons stated
below, Santos' petition must be denied.
The facts adduced at trial are not relevant to the disposition
of this petition. Nonetheless, a brief summary of the evidence is
provided to give some context for Santos's claims.
On March 15, 1999, police officers Victor Lebron, Laura
Greaney, Eusibio Santos ("Eusibio"), and Sergeant Yackle
participated in an undercover buy-and-bust operation in the area of 184th Street and Grand Avenue in the Bronx. See Brief
for Defendant-Appellant, dated August 2002 (reproduced as Ex. 1
to Opposition to Petition, filed Dec. 9, 2004 (Docket #5)
("Opp.")) ("Def. Br."), at 3; Respondent's Brief, dated Mar. 2003
(reproduced as Ex. 2 to Opp.) ("Resp. Br."), at 3.*fn1 Sgt.
Yackle supervised the operation, Lebron acted as the undercover
purchaser, Eusibio was the "ghost," and Greaney was to be the
arresting officer. Def. Br. at 3; Resp. Br. at 3.
While walking on 183rd Street, Lebron approached two women who
were engaged in conversation and asked, "[I]s anything out?" Def.
Br. at 4; Resp. Br. at 3. One of the women, Nydia Rodriguez,
replied affirmatively and suggested walking over to Grand Avenue.
Def. Br. at 4; Resp. Br. at 3. The trio, followed by Eusibio,
walked to Grand Avenue and 184th where they met Santos. Def. Br.
at 4; Resp. Br. at 3-4. Rodriguez spoke to Santos alone, then
came back to Lebron and the second woman, Debra Brown, and said,
"[G]ive me the money, they don't know you." Def. Br. at 4; Resp.
Br. at 4. Lebron handed Rodriguez $20 in pre-recorded buy money.
Def. Br. at 4-5; Resp. Br. at 4.
Rodriguez, followed by Santos, went into the courtyard of a
building located at 2333 Grand Avenue. Def. Br. at 5; Resp. Br.
at 4. Once in the courtyard, Lebron could no longer see either
Santos or Rodriguez. Def. Br. at 5. Eusibio, however, followed
Santos and Rodriguez into the courtyard. Def. Br. at 5; Resp. Br.
at 4. Santos and Rodriguez entered the building and Eusibio peered into the lobby of the building through the front
door, which had a mesh screen over the glass. Def. Br. at 5;
Resp. Br. at 4. Eusibio testified that he saw Rodriguez and
Santos touch hands, Def. Br. at 5-6; Resp. Br. at 4, but did not
see anything exchange hands and did not hear their conversation.
Def. Br. at 5-6.
Rodriguez left the building and walked to the corner of 184th
Street. Id. at 6. She handed four glassine envelopes of heroin
to Brown, who then handed two glassines to Lebron. Id.; Resp.
Br. at 5. The word "Armageddon" was stamped on each of the
glassines in green letters. Def. Br. at 6; Resp. Br. at 5.
Rodriguez walked away and Lebron and Brown walked toward 184th
and Jerome Avenue where Greaney and Yackle were parked. Def. Br.
at 6. Santos remained in the courtyard. Id. at 7; Resp. Br. at
Lebron radioed his team members to confirm that he had made a
successful buy and Santos was arrested. Def. Br. at 7. When the
officer arrested Santos, he was holding 15 glassines of heroin
marked "Armageddon" and $80 dollars in cash including the $20
prerecorded buy money. Id. at 8; Resp. Br. at 6.
The jury found Santos guilty of both sale and possession of
heroin. Def. Br. at 9. Because Santos had a prior felony
conviction for robbery, he was sentenced as a second felony
offender to two concurrent terms of 6 to 12 years. Id. at 10.
Represented by counsel, Santos raised the following two issues
The convictions should be set aside as against the
weight of the credible evidence where the sole
eyewitness purporting to establish appellant's
identity did not see appellant exchange any drugs or
money with the undercover officer or with the person
who ultimately transacted with the officer, and where
the small quantity of drugs found in appellant's possession did not prove
intent to sell. C.P.L. § 470.15(5).
Appellant's sentence of 6 to 12 years for the
street-level sale and possession of a small quantity
of heroin, where this was appellant's first felony
conviction for a drug sale, was excessive and should
be reduced in the interest of justice.
Id. at 11, 19.
The Appellate Division affirmed Santos' conviction. See
People v. Santos, 305 A.D.2d 121
(1st Dep't 2003). With respect
to the first claim, the Appellate Division held:
The verdict was not against the weight of the
evidence (see People v. Bleakely, 69 NY2d 490).
There is no basis for disturbing the jury's
determinations concerning credibility. The totality
of the credible evidence warranted the conclusion
that defendant, acting through his accomplices, sold
drugs to the undercover ...