The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Jose L. Cruz ("Cruz") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court following a jury trial on charges of third degree criminal sale of a controlled substance and second degree menacing. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Cruz was arrested in July 2000, in connection with the shooting death of Victor Omar Rivera-Gomez ("Rivera-Gomez") on January 29, 2000. An Ontario County grand jury returned an indictment charging Cruz with one count of second degree murder with respect to RiveraGomez's death, one count of third degree criminal sale of a controlled substance for allegedly selling heroin to Jose Rivera (a/k/a "Chucho"), and one count of second degree menacing with respect to actions allegedly taken by Cruz which placed or attempted to place Chucho in reasonable fear of serious physical injury or death.
Cruz's jury trial commenced in Ontario County Court on February 20, 2001. Chucho testified that in January 2000, Cruz gave him ten bundles of heroin to sell. (This occurred prior to the murder of Rivera-Gomez.) Chucho testified that he was a heroin addict and used eight to nine bags of heroin a day. Chuco sniffed four of the bundles given to him by Cruz and, based on his experience with using heroin, testified that the substance given to him by Cruz made him "high." Chucho also testified that there came a point in time after the murder where he began cooperating with the police and participated in a taped conversation with Cruz. The tape recording was received into evidence at trial, along with a transcript. Eduardo Alvarez-Castillo testified that in mid-January 2000, he witnessed Cruz give about ten bundles of heroin to Chucho.
Johanna Herrera ("Herrera") testified that Cruz came to her apartment on January 28, 2000, looking for Chucho, who allegedly owed him drug money. Cruz informed Herrera that Rivera-Gomez's hours were "counting" because he was a snitch. Herrera testified that Cruz asked her to sell heroin for him, in place of Rivera-Gomez, because Rivera-Gomez owed Cruz money. Arlene Gonzalez ("Gonzalez") also testified that Cruz came to Herrera's apartment on the night before Rivera-Gomez was killed and said that he was looking for Chucho. Cruz said that Gonzalez would "get hers too" if she was hiding Chucho. At that time, Chucho was hiding in a closet in fear because he owed Cruz money for the heroin that Cruz earlier had given Chucho to sell.
On February 28, 2001, the jury returned a verdict acquitting Cruz of second degree murder but convicting him of the remaining two charges in the indictment alleging criminal sale of a controlled substance and menacing. He was sentenced on May 25, 2001, to a term of six to eighteen years on the criminal sale conviction and a concurrent one-year term on the menacing conviction.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on direct appeal. The New York Court of Appeals denied leave to appeal.
Cruz subsequently filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 alleging that (1) the trial court "lacked subject matter jurisdiction over the second count of the indictment of Criminal Sale of a Controlled Substance" because "the accusatory instrument" did "not contain non-hearsay allegations" since "no drugs [were] confiscated"; (2) he could not be found guilty of criminal sale of a controlled substance because no drugs were confiscated and no tests were performed on them; and (3) he was denied his right to due process and equal protection because he was "charged and indicted for Criminal Sale of a Controlled Substance . . . without the recovery of any drugs." See Respondent's Exhibit O. The motion court denied the application on the basis that "the claims asserted . . . were either previously determined on the merits upon the defendant's direct appeal from the judgment (see, CPL 440.10(2)(a); People v. Su, 213 AD2d 502), or could have been, but were not raised upon the direct appeal (see, CPL 440.10(2)(c))[.]" See Respondent's Exhibit P.
This timely habeas petition followed in which Cruz asserts verbatim the three grounds raised in support of his C.P.L. § 440.10 motion. See Attachment to Petition (Docket No. 1). He also alleges that an "[u]nqualified witness [i.e., Chucho] testified as [an] expert[.]" See Petition at ¶22(a); Attachment to Petition (Docket No. 1). In his argument under the point heading "Was the State[']s Witness Unqualified" Cruz states that trial counsel was ineffective in failing to object to the admission of the tape-recording of Chucho's conversation with him.
For the reasons set forth below, the petition is dismissed.