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Torres v. Girdich

May 9, 2006


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


Jonathan Torres brings this petition for writ of habeas corpus pro se challenging his conviction in the New York Supreme Court, New York County, for Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law ("NYPL") § 220.16(1)) and Criminal Sale of a Controlled Substance in the Third Degree (NYPL § 220.39(1)). Torres was sentenced as a second felony offender to an indeterminate prison term of 5-1/2 to 11 years' imprisonment. 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, Torres's petition is denied.


A. The Prosecution's Case

On December 13, 1999, Detective Christopher Koch, Police Officers Edwin Gomez and Myles Mahady, and Lieutenant Ortiz, conducted a "narcotics enforcement operation" in the vicinity of Tompkins Square Park, in Manhattan. (Koch: Tr. 180; Gomez: Tr. 274-75; Mahady:

Tr. 290-91).*fn1 At approximately 2:00 p.m., Detective Koch, using binoculars, observed Torres standing inside Tompkins Square Park. (Koch: Tr. 182, 186-87). Torres conversed with people for approximately ten minutes and then exited the park out of Detective Koch's view. (Koch: Tr. 186-87). Ten minutes later, Detective Koch and Officer Gomez observed Torres return to the park with Cherry Dixon. (Koch: Tr. 187-88). Detective Koch then observed Torres turn to Dixon, have a conversation with her, and hand her 3 small, pink rectangular objects. (Koch: Tr. 188). Dixon took the 3 objects with her right hand, briefly examined them, and placed them in her right front pants pocket. (Koch: Tr. 190). Dixon then reached into her purse, removed money, and handed it to Torres, who placed the money in his right front pants pocket. (Koch: Tr. 191).

After the transaction, Torres walked further into the park and Dixon exited the park. (Koch: Tr. 192-93). Based on a description from Detective Koch, Officer Gomez spotted and apprehended Dixon, frisked her, and recovered 3 pink glassine envelopes labeled "Body Bag" from her right front pants pocket. (Koch: Tr. 194-96; Gomez: Tr. 275-78).

Detective Koch radioed a description of Torres to Officer Mahady and watched Officer Mahady apprehend him. (Koch: Tr. 194). After Detective Koch confirmed on the radio that the apprehended man was Torres, Officer Mahady searched Torres and recovered 9 pink glassine envelopes labeled "Body Bag" and $291 in cash from his right front pants pocket. (Koch: Tr. 196, 201; Mahady: Tr. 295-97, 302, 308-09). Detective Koch left his post and confirmed that Dixon and Torres were the persons who engaged in the transaction. (Koch: Tr. 215-16; Gomez:

Tr. 279; Mahady: Tr. 302). The parties stipulated that there was a "reasonable degree of medical certainty" that the 12 pink glassine envelopes recovered from Torres and Dixon all contained heroin. See Tr. 314-15; Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed Sept. 8, 2004 (Docket #6) ("Resp. Mem."), at 4.

B. Testimony of Officers Gomez and Mahady

After the prosecutor's redirect of Officer Gomez, the trial judge questioned Officer Gomez with respect to the heroin bags:

THE COURT: Are all heroin bag envelopes marked Body Bag?


THE COURT: Can you explain something about the markings, if any, on other kinds of heroin bags?

THE WITNESS: Okay, each individual or group of persons that deal in narcotics have their own name brand or -- it's like name brands, it's like buying a pair of Levis. Basically you know what you're buying and whom you're buying it from.

Basically if it has another name brand that you are not looking for, you're looking for a specific name and this is what you like, you look for Body Bag, and you know where it's being sold and you know this person who is selling this name brand. It is the same group. It is not the same person, it is the same group. It is a brand name for individual sellers. (Tr. 284-85).

Following the judge's questioning, the prosecutor indicated that she wanted to question Officer Gomez further. She asked Officer Gomez, "Approximately how many different kinds of packaging or names have you seen on drugs that you've recovered?" (Tr. 285). Counsel stated "objection," and the trial judge overruled it. (Tr. 285). Officer Gomez replied:

I couldn't even tell you a number, but pretty much every different corner or different group of people have their own brand, so it's -- I mean hundreds, hundreds of different, everyone has a different name.

(Gomez: Tr. 285-86).

During Officer Mahady's testimony, the prosecutor asked, "in all of your training and experience in narcotics, have you ever seen packaging identical to what you recovered from the defendant?" (Tr. 301). Defense counsel objected and, rather than ruling on the objection, the Court engaged in a colloquy with the prosecutor, asking "what do you mean by 'identical'?" The prosecutor responded "I want to see if he's ever recovered small pink square envelopes that are stamped Body Bag." (Tr. 301). The Court stated "I will allow the answer." Defense counsel did not object to the rephrased question. Officer Mahady then responded "No, I have not." The prosecutor went on to make additional inquiry of the witness -- again without objection -- regarding how much packaging he had seen and whether this packaging was unique. (Mahady: Tr. 301-02).

C. Torres's Case

Torres testified in his own defense, stating that he was a heroin addict and that he went to Tompkins Square Park regularly to buy drugs. He needed four or five small bags of heroin a day just to avoid feeling ill. He would buy this much on a daily basis in the park and would sometimes buy more. (Torres: Tr. 340).

On the day he was arrested, Torres saw his friend Dixon at a restaurant and went with her to the park to buy heroin. (Torres: Tr. 330-32). Torres had a few hundred dollars with him that his wife had given him that morning to use for buying furniture. (Torres: Tr. 330). Torres and Dixon each bought heroin from a man named Rick in a wheelchair in the park. (Torres: Tr. 331-32). Torres bought ten glassines of heroin and Dixon bought four, and then each snorted a bag in the park. (Torres: Tr. 331-32). Afterwards, he and Dixon left the park and went to a bakery.

Dixon told Torres she had to go to work and needed subway fare. Torres handed Dixon a $3.00 Metrocard and returned to the park on his own. (Torres: Tr. 332-33). About ten minutes later, he was arrested. (Torres: Tr. 333-34).

The day before his arrest, Torres encountered Detective Koch in the park. Detective Koch drove a van through the park, stopped Torres, displayed his weapon and told Torres that he was under arrest on an outstanding warrant. Detective Koch called him by the name "Edwin Ramirez." Detective Koch released him ten minutes later, after Torres handed Detective Koch his driver's license and Detective Koch typed his information into a computer. Torres said he called Detective Koch "a scumbag, jerkoff and so on." In response Detective Koch told him to "get out the fucking park before he busted my ass." (Torres: Tr. 334-36).

D. Rebuttal

On rebuttal, Detective Koch testified that he saw Torres twice before the day of Torres's arrest, including once about five days before. (Koch: Tr. 360). On that occasion, Detective Koch was in a vehicle in Tompkins Square Park with Officer Mahady when he saw Torres with a brown paper bag. Detective Koch asked Torres what was in the bag and Torres said that it was a closed can of beer. Detective Koch told him that even closed containers of alcohol were prohibited in the park and asked Torres for ...

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