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June 15, 2005.

ANGEL URENA, Petitioner,
WILLIAM LAPE, Acting Superintendent of Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner Angel Urena ("Urena") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Urena was convicted in the New York State Supreme Court, New York County (the "trial court"), of criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.39(1), and criminal sale of a controlled substance in or near school grounds, in violation of N.Y. Penal Law § 220.44(2). He was sentenced, as a second felony offender, to concurrent, indeterminate prison terms of four and one-half to nine years on each count. In this petition for a writ of habeas corpus, Urena argues that he was deprived of his due process right to a fair trial, allegedly on the basis of (1) the trial court's admission of evidence of uncharged crimes; (2) prosecutorial misconduct during summation; and (3) the trial court's failure to address a jury question during deliberations. For the reasons set forth below, Urena's petition is denied. I. BACKGROUND*fn1

The evidence at Urena's trial established the following facts. On September 24, 2000, New York City Police Department ("NYPD") detectives Stephen Minogue ("Minogue") and Jose Rivera ("Rivera") observed Urena selling narcotics at the intersection of Nagle Avenue and Academy Street in Manhattan, 752 feet from St. Jude Elementary School. Detective Libby Guzman ("Guzman") arrested Urena one block away from this intersection, and he was subsequently charged with the crimes for which was convicted.

  Urena's arrest resulted from the efforts of an NYPD surveillance team composed of eight officers. Minogue and Rivera established an observation post from an unmarked vehicle that was parked across the street from the Nagle Avenue and Academy Street intersection, a location that in the past had been the site of numerous drug sales and drug arrests. They were 112 feet away from Urena and had been in their position for eighty minutes.

  The detectives focused on Urena because they observed separate transactions between Urena and two individuals, each of whom approached Urena, engaged in a transaction in which Urena gave the individual an object from his pocket in exchange for money, and then walked away. The first individual arrived in a truck, parked, got out, and walked directly to Urena. This man gave Urena money, and Urena pulled a small object from his pocket and gave it to the man, who returned to his truck and drove away. Minogue radioed a description of the man and his truck to the field team, but the team could not locate the vehicle. Some time later, a second man walked directly to Urena. He handed money to Urena, and Urena handed a small object to him. The man then walked away. Again, Minogue radioed a description of the man to other officers, but they were unable to locate him.

  Urena was not charged with criminal activity relating to his interactions with these first two individuals, but he was charged with selling crack cocaine to Harriet James ("James"). During the eighty minutes in which the detectives were positioned in their vehicle, James also approached Urena and handed him what appeared to be money. Urena then handed James a small object. Minogue testified that he could not see what Urena handed to James; Rivera testified that although he could not see what Urena handed to James, he could discern that it was a "small, shiny object." (Tr. at 92, 128, 142, 147.) James placed the object in her right front pocket and walked away. She walked past the detectives' vehicle, and Rivera stopped her. From James's right front pocket, Rivera recovered a small tinfoil package containing crack cocaine along with a crack pipe.

  After this encounter, Minogue radioed Urena's description to the other officers, and Guzman arrested him one block away from the corner where the three transactions occurred. Guzman found currency in Urena's right front pocket and a pager on his waistband.

  The first trial resulted in a mistrial because the jury could not unanimously agree on a verdict. (Trial Transcript of People v. Urena, Ind. No. 6464-00, beginning Oct. 24, 2001, Supreme Court, New York County, Criminal Term, Part 72, at 14-16.)

  New proceedings began in December of 2001. Three aspects of these trial proceedings are relevant to Urena's habeas petition: (1) over defense objections, the trial court allowed the introduction of evidence about the two earlier interactions between Urena and alleged narcotics buyers;*fn2 (2) during the prosecutor's summation, defense counsel objected to the repeated use of the phrase "don't fall for that" (Tr. at 236), which the prosecution repeated five times (Tr. at 236, 238, 244, 246, 248); and (3) in a note to the judge during its deliberations which contained multiple questions, the jury inquired, "Can we find [Urena] guilty if we think the detectives did not see the actual piece of tinfoil handed to Harriet James?" (Tr. at 288.) The judge decided that he could not answer this question with a "yes, no" answer and responded in this manner. (Tr. at 289-91.) Five minutes after the judge answered the jury's questions, the jury returned a verdict convicting Urena of both charges. (Tr. at 309, 310-11.)

  Urena appealed his conviction to the New York Supreme Court, Appellate Division, First Department (the "Appellate Division"). He presented three arguments, each asserting that the trial court's errors denied him his constitutional right to a fair trial. First, Urena argued that the trial court's admittance of the evidence of uncharged alleged criminal acts was highly prejudicial because it enabled the jury to infer that he had the propensity to commit the crime. (State Urena Br. at 1-2.) Although not at issue here, Urena also argued that the admission of the crack pipe found on James into evidence was similarly prejudicial. Id. Second, Urena contended that the prosecutor made "prejudicial and disparaging remarks" during her summation, implying that the "defense counsel was trying to deceive the jurors . . . stating numerous times, `don't fall for that.'" (State Urena Br. at 2.) Finally, he argued that the trial judge refused to respond meaningfully to the jury's question, thus denying Urena his constitutional right to a fair trial. (State Urena Br. at 2.)

  The Appellate Division unanimously affirmed the conviction on both counts. People v. Urena, 760 N.Y.S.2d 319 (App.Div. 1st Dep't 2003) ("Urena II"). The Appellate Division stated that the testimony regarding the immediately preceding uncharged drug sales was properly admitted and was relevant "since its probative value in providing a complete and coherent narrative of the offense, including an explanation of why the police targeted [Urena] for continuing observation, outweighed any prejudicial effect." Id. at 319. The court also determined that the remarks made in the summation "were responsive to defense arguments and did not exceed the broad bounds of rhetorical comment permissible in closing argument." Id. Finally, the Appellate Division held that the trial court "provided a meaningful response when it properly advised the deliberating jury that its question regarding the interpretation of circumstantial evidence could not be answered with the simple `yes' or `no' called for by the question." Urena II, 760 N.Y.S.2d at 319. The court also recognized that "[i]n view of the overwhelming evidence of defendant's guilt, the court's response could not have caused any serious prejudice." Id. The New York Court of Appeals issued a certificate denying leave to appeal on September 23, 2003. People v. Urena, 100 N.Y.2d 625 (2003).

  Urena timely filed this pro se petition for a writ of habeas corpus pursuant to § 2254, raising the same issues he brought before the Appellate Division with the exception of his challenge to the admission of the crack pipe, following the Court of Appeals' denial of leave to appeal.


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