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Arias v. Donilli

February 6, 2007

FAUSTINO ARIAS PETITIONER,
v.
JOHN DONILLI, SUPERINTENDENT, BARE HILL CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, pro se petitioner Faustino Arias seeks relief from the concurrent sentences imposed on him as a consequence of his conviction in New York State Supreme Court, Kings County, for Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Seventh Degree. For the reasons that follow, the petition is denied.

Background

On November 15, 2000, at approximately 6:10 p.m., Detective Arnaldo Almonte approached petitioner during an undercover buyand-bust operation at Flatbush and Woodruff Avenues in Brooklyn and asked him if he knew anyone who sold crack cocaine. Petitioner took the detective to his place of employment at 771 Flatbush Avenue and led him into a back room. There, petitioner smoked some crack cocaine before pulling out a knife and asking the detective whether he was a cop. Detective Almonte told petitioner that he was not a cop, and at petitioner's direction raised his shirt to show that he was unarmed. Petitioner thereafter gave Detective Almonte a ziplock bag containing a small quantity of crack cocaine in exchange for twenty-five dollars in pre-recorded bills.

At the conclusion of this transaction, Detective Almonte notified his back-up team that a narcotics buy had occurred. The team moved in, arrested petitioner, and recovered from his person the twenty-five dollars in pre-recorded bills as well as a rock of crack cocaine.

Petitioner was charged with Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law § 220.39(1)), Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law § 220.03), Menacing in the Second Degree (New York Penal Law § 120.14(1)), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law § 265.01(2)), and related charges.

(1)

The first four witnesses presented by the prosecution were the Brooklyn South Narcotics Division detectives who arranged the buy-and-bust operation. According to them, the November 15, 2000 operation began at approximately 4:35 p.m. Detective Almonte was assigned as the primary undercover officer, Detective Agapito Soler as the secondary undercover officer, Detective Edward Wiatrak as the arresting officer, and Sergeant Vincent Currulli as the operation supervisor. Tr. at 24-25, 114-16, 163-64, 211-12.

After arriving in the vicinity of Ocean and Parkside Avenues in two unmarked cars, the detectives began their operation by checking their equipment for functionality. Detective Almonte was wearing wires on his upper arm, which allowed him to transmit and receive messages at the press of a button. Detective Soler, whose task was to "ghost" Detective Almonte on the street, carried a concealed portable radio. Sergeant Currulli and Detective Wiatrak remained in their car and monitored the others' transmissions via radio. Tr. at 25-27, 117-18, 166-67, 214-15.

For approximately ninety minutes, Detective Almonte walked up and down Flatbush Avenue attempting to purchase narcotics. He unsuccessfully approached five or six individuals before encountering petitioner around 6:10 p.m. Tr. at 29. Detective Almonte asked petitioner if he knew who sold "rocks." According to the detective's testimony, petitioner immediately told him to "hush." Tr. at 31-32. Petitioner then told Detective Almonte to follow him across the street to a store where he worked. Upon their arrival at the store, petitioner escorted the detective into a small backroom. Tr. at 32-33.

Detective Soler, meanwhile, had been observing everything that transpired. After seeing Detective Almonte follow petitioner into the store, Detective Soler transmitted the store's location and petitioner's description back to Detective Wiatrak and Sergeant Currulli. Detective Soler then walked over to the store and stood outside. Tr. at 115-21.

By this time, Detective Almonte and petitioner were alone in the store's backroom. Petitioner asked Detective Almonte what he was looking for, and the detective replied that he wanted "a dime." After petitioner stated that he only had a twenty dollar bag, Detective Almonte handed him a pre-recorded twenty dollar bill. Petitioner took the money and then removed a glass pipe and a ziplock bag containing a white powdery substance from his pockets. He placed some the substance in the pipe and proceeded to "smoke up." Tr. at 34. Suddenly, petitioner pulled out a knife and said to the detective "[i]f you are a cop, I will kill you and I don't really give a fuck." Tr. at 35. Detective Almonte told petitioner he was not a cop, and at petitioner's direction opened his jacket and raised his shirt. Petitioner then demanded that Detective Almonte give him five more dollars. The detective handed petitioner five additional dollars in pre-recoded bills, and petitioner in return gave him the ziplock bag containing the remainder of the white powdery substance. Petitioner subsequently put the knife away and opened the door for Detective Almonte to leave. Tr. at 36-38.

The other three detectives had been listening intently to their radios while these events were taking place. Tr. at 121, 168, 216. Most the exchange between petitioner and Detective Almonte was conducted in Spanish, however, and only Detective Soler was able to fully understand what was being said. Tr. at 122. Detective Soler transmitted to Sergeant Currulli and Detective Wiatrak a translation of those parts of the conversation not in English, which happened to include petitioner's threats. Once he became aware of the threats, Sergeant Currulli ordered the team to move in. Tr. at 126, 218.

As the back-up team mobilized, Detective Almonte emerged from the store and told Detective Soler that there had been a "buy" and that petitioner was carrying a knife. Tr. at 38-39, 126. Seconds later, petitioner exited the store onto the street. Detective Soler displayed his shield, yelled "police," and grabbed petitioner from behind. Petitioner broke away and pulled out the knife. Drawing his gun, Detective Soler ordered petitioner to "drop it." Tr. at 39-40. Petitioner submitted, and Detective Wiatrak, who had just arrived on the scene, immediately handcuffed him. Detective Wiatrak then ...


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