Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SANTOS v. ALLARD

April 8, 2005.

HECTOR SANTOS, Petitioner,
v.
M. ALLARD, Superintendent, Franklin Correctional Facility, Respondent.



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.

I. BACKGROUND

  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.

  A. Trial and Verdict

  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 5.

  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.

  B. Direct Appeal

  Represented by counsel, Santos raised the following two issues on appeal:
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.