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Parker v. State

April 5, 2006

ROY LEE PARKER, PETITIONER,
v.
THE STATE OF NEW YORK AND JOHN J. DONELLI, RESPONDENTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Roy Lee Parker, proceeding pro se, brings this petition for a writ of habeas corpus challenging his July 2001 conviction in the Supreme Court of the State of New York, New York County, following a jury trial, for Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law ("N.Y.P.L.") § 220.39(1)), Criminal Possession of a Controlled Substance in the Third Degree (N.Y.P.L. § 220.16(1)), and Criminal Sale of a Controlled Substance in or near School Grounds (N.Y.P.L. § 220.44(2)). Parker was sentenced to concurrent, indeterminate prison terms of four-and-a-half to nine years on each count. Parker is currently incarcerated at Lyon Mountain Correctional Facility. The parties have consented to the disposition of this case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is denied.

I. INTRODUCTION

A. The Trial

The facts presented at trial are of limited relevance to this petition. We set them forth briefly only to provide some context for Parker's claims.

On September 26, 2000, members of the Manhattan North Narcotics squad participated in an undercover buy-and-bust operation on Hamilton Place between West 137th and West 138th Streets in Manhattan. (Piliouras: T. 21-23).*fn1 One of the officers approached an individual named Jamal Lee and asked him if he was "working." (Piliouras: T. 28). Lee called over Parker, who had been standing 5 to 7 feet away, and asked him if he knew the officer. (Piliouras: T. 28-29). Parker replied, "Yeah, he's cool." Parker then asked the officer, "How many you want?" The officer responded, "Let me have $20." (Piliouras: T. 29). Parker turned around and walked to a third man, later identified as James Foye, who handed him a small purple Ziploc bag of what was later determined to be crack cocaine. (Piliouras: T. 29; Lin: T. 161-62). Parker returned to the officer and requested the money. The officer gave him $20 of pre-recorded buy money, and Parker handed him the bag. (Piliouras: T. 30-31). Officers then placed the three men under arrest. (Chalmers: T. 116-17). Ten dollars of pre-recorded buy money was recovered from Lee's pocket. (Chalmers: T. 129-30). The drug sale took place approximately six feet from a school, P.S. 192. (Chalmers: T. 144-46). On July 30, 2001, the jury convicted Parker on all charges. (T. 218-20). On August 27, 2001, the court sentenced Parker to concurrent prison terms of four-and-a-half to nine years on each count. (S. 5-6).

B. Other State Proceedings

1. Habeas Petition

On May 22, 2001, prior to the commencement of his trial, Parker filed a pro se petition in state court for a writ of habeas corpus. While this petition borders at times on the incomprehensible, it appears to have raised the following grounds: (1) there had been a violation of the state's "speedy trial" statute; (2) the court unlawfully displayed a military flag; and (3) the indictment was defective because it did not contain adequate pleadings under the Public Health Law. See Verified Petition, dated May 22, 2001, and attached pages (reproduced in Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed Nov. 2, 2005 (Docket #8) ("Opp. Decl.")). The State opposed the petition on speedy trial grounds and did not address the other grounds raised. See People's Response to Defendant's Writ of Habeas Corpus (30.30 issues only), dated July 6, 2001 (reproduced as Ex. B to Opp. Decl.), at 2-7. The trial court denied the petition on July 19, 2001, just prior to trial, holding that "[t]he only issue meriting consideration is the speedy trial claim which, from the People's response, appears to be without merit." See Writ of Habeas Corpus, dated July 19, 2001 (reproduced as Ex. C to Opp. Decl.). On August 20, 2001, just after his conviction, Parker sought leave to appeal this denial to the Appellate Division, First Department. The Appellate Division denied the motion as moot on November 8, 2001. The New York Court of Appeals subsequently dismissed Parker's motion for leave to appeal on April 30, 2002. See Exs. D, E, and F to Opp. Decl.

2. Direct Appeal

In November 2003, Parker, through appellate counsel, submitted his brief in support of the direct appeal of his conviction. He argued that: (1) he was arrested and searched without probable cause; (2) the verdict was against the weight of the evidence; and (3) the charge of Criminal Sale of a Controlled Substance in the Third Degree should be dismissed as a "noninclusory concurrent count" to the charge of Criminal Sale of a Controlled Substance in or near School Grounds. See Brief for Defendant-Appellant, dated Nov. 2003 (reproduced as Ex. G to Opp. Decl.), at 14-27. Parker also filed pro se a supplemental brief in which he argued that he was arrested without probable cause and that all of the seized evidence should have been suppressed. See Supplementary Brief, dated Oct. 24, 2003 (reproduced as Ex. I to Opp. Decl.).

The State argued in response that: (1) Parker's guilt was proven beyond a reasonable doubt and the verdict was not against the weight of the evidence; (2) the hearing court properly denied Parker's motion to suppress the physical evidence; and (3) the interest of justice would not be served by dismissal of the third-degree sale count of the indictment. See Brief for Respondent, dated Apr. 2004 (reproduced as Ex. H to Opp. Decl.), at 13-35.

The Appellate Division, First Department, affirmed Parker's conviction on June 22, 2004. See People v. Parker, 8 A.D.3d 149 (1st Dep't 2004). The court held that the verdict was not against the weight of the evidence, and stated that "[i]ssues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations." Id. at 149 (citation omitted). The court also found that the trial court had properly denied Parker's motion to suppress, noting that the Appellate Division had "repeatedly rejected the precise argument raised by defendant concerning the sufficiency of an undercover officer's radio transmissions in a multiple-participant drug transaction." Id. (citation omitted).

Finally, the court declined to invoke its interest-of-justice jurisdiction to dismiss the "noninclusory concurrent count," and stated that it had "considered and rejected" Parker's remaining claims, "including ...


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