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United States District Court, S.D. New York

April 15, 2005.

LUIS MENDEZ, Plaintiff,
HONORABLE ELLIOT SPITZER (Attorney General of New York State) and HONORABLE ROBERT J. EBERT (Superintendent of Prison Facility, Defendants.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


This is a petition for a writ of habeas corpus by a state prisoner, filed under 28 U.S.C. ยง 2254. Pursuant to the rules governing such cases, the court has examined the petition and has determined that it must be summarily dismissed.

Petitioner was convicted in Supreme Court, Bronx County, of attempted murder and assault. The conviction was affirmed by the Appellate Division, First Department. Leave to appeal to the New York Court of Appeals was denied.

  Petitioner is relying on precisely the same ground urged on his direct appeal. Petitioner has filed nothing on the present application except his brief on that appeal.

  Petitioner urges that he was denied due process, a fair trial, and his right of confrontation when the trial court admitted testimony, including hearsay, that implicated petitioner as a drug seller. Petitioner argues that, among other things, the prejudicial nature of the testimony far exceeded any prohibitive value, and the prosecution had failed to disclose, in advance of trial, its proposed introduction of evidence of prior criminal activity. The failure to give notice is said to violate the requirement announced in People v. Ventimiglia, 52 N.Y.2d 350 (1981).

  The Trial

  The relevant evidence is as follows. The victim, a man by the name of Adon, testified that he was standing near a street corner and observed petitioner arguing with an individual named Joe. Over the defense's objection, Adon testified that he had frequently seen Joe selling drugs at this corner. He also stated that he had frequently seen petitioner at this location. Adon was casually acquainted with both Joe and petitioner. The argument ended and petitioner walked away. Joe came over to Adon. Again over the defense's objection, Adon testified that Joe told him (Adon) that petitioner wanted Joe to leave this place. A few seconds later Adon heard a voice yelling at Adon to be careful. Adon turned and saw someone give an object to petitioner, which object petitioner held in both hands. At this time Adon was between petitioner and Joe. Adon believed that the object was a gun. Adon then felt that he was wounded and he fell to the ground. Adon testified that he did not know why petitioner had shot him, except that he was in petitioner's line of fire. Apparently this meant that petitioner was attempting to shoot Joe.

  When it came to instructing the jury, the judge included the following:

During the direct examination of the complainant, Ruben Adon, the Court permitted him to testify that he had seen the defendant, Luis Mendez, as well as other individuals on occasions on the corner of East Tremont and Walton Avenue in the Bronx. Mr. Adon also testified that he was aware that one of these individuals, a man named Joe, was involved in drug selling at that location. I instruct you that there is no evidence in this record that the defendant, Luis Mendez, is in any way involved in any such activity, and you may not consider any of that testimony to establish that fact, or to create any inference, that the defendant is involved in that activity.
  There are several problems with petitioner's application. In the first place, the prosecution did not literally introduce evidence that petitioner had engaged in the sale of narcotics. The evidence showed the setting in which the shooting took place, including evidence about an argument between petitioner and Joe. A possible inference, of course, was that the argument was about drugs. But this was not the only possible inference. In any event, the judge gave a strong instruction that there was no evidence in the trial record that petitioner was involved in drug selling, and told the jury that they could not treat the testimony as creating any inference that petitioner was involved in that activity.

  There is no indication that petitioner's rights under the Constitution were violated at the trial. The petition is dismissed.



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