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Graham v. Lape

February 28, 2007


The opinion of the court was delivered by: John G. Koeltl, District Judge


New York State prisoner Michael Graham, the petitioner, who is currently incarcerated at the Marcy Correctional Facility in Marcy, New York, brings this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial, the petitioner was convicted of one count of criminal sale of a controlled substance in the third degree and sentenced to an indeterminate term of imprisonment of five to ten years. The petitioner asserts that a writ of habeas corpus should be granted for two reasons. First, he claims that the evidence was legally insufficient to establish that he committed the offense. Second, he claims that the trial court's refusal to give an agency charge to the jury denied him his constitutional rights to present a defense and to a fair trial. For the reasons explained below, the petition for a writ of habeas corpus is denied.


There was sufficient evidence at trial for the jury to conclude as follows. On the evening of June 13, 2002, an undercover police officer, accompanied by a "ghost"*fn1 partner, was assigned to purchase drugs as part of a police "buy and bust" operation run by the Manhattan South Downtown Narcotics Division. (Trial Tr. vol. 1 ("Tr."), 32, Nov. 21, 2002.) On this particular evening, the undercover operation was looking to purchase crack, cocaine, or marijuana. (Id. at 34.)

At about 7:00 p.m., the undercover officer walked toward the corner of 40th Street and Eighth Avenue, where he saw the petitioner leaning against a cement divider. (Id. at 36-38.) With a cigarette in his mouth, the undercover officer approached the petitioner, whom he had never seen or heard of before, and asked the petitioner for a light. (Id. at 37-38, 46.) The undercover officer asked the petitioner "if anybody was out" and if "anybody had crack." (Id. at 38.) The petitioner responded, "Yeah, come on." The undercover officer followed the petitioner a short distance, where they came upon two individuals, Jeremiah Murphy and Wesley Dietz. The petitioner told Murphy and Dietz, "Hook him up, he is okay," which the undercover officer interpreted as "vouchering [sic] for me." (Id.)

Dietz then asked the undercover officer, "What you looking for?" The undercover officer responded that he was looking for a "20 of rock," which was the street word for crack cocaine. (Id.) Dietz said, "Okay," and Murphy told the undercover officer to follow him. (Id. at 38-39.) The undercover officer, Murphy, and the petitioner walked around the corner, stopping underneath some scaffolding. (Id. at 39.) At that point, Murphy handed the undercover officer two small ziplock bags bearing a Superman logo and containing what appeared to be crack cocaine in exchange for twenty dollars of pre-recorded buy money.*fn2 (Id. at 39, 86-87.)

While the petitioner and Murphy were still standing with the undercover officer, Dorothy Mickles abruptly approached Murphy and handed him money. (Id. at 39, 43). Murphy then handed Mickles two ziplock bags, also bearing a Superman logo. (Id. at 43). After this exchange, Murphy headed toward Eighth Avenue while the petitioner and Mickles walked together in the opposite direction, toward Ninth Avenue. (Id. at 44.) The undercover officer followed the petitioner and Mickles. (Id.)

While he was following the petitioner and Mickles, the undercover officer informed his field team of the transactions and the direction in which the petitioner and Mickles were walking. (Id.) The arresting officer identified the petitioner and Mickles at 40th Street and 9th Avenue and arrested them at the corner of 39th Street and 9th Avenue, as the undercover officer and the ghost officer watched. (Id. at 119-20.)

The undercover officer, who had maintained visual contact with the petitioner during the entire incident, radioed the arresting team that the correct suspects had been apprehended. (Id. at 94). A search of Mickles produced the two Superman bags she had purchased from Murphy, but the arresting team recovered nothing from the petitioner. (Id. at 120.) The arresting team apprehended Murphy and Dietz about thirty minutes later. (Id. at 120-21.) The undercover officer confirmed their identity shortly after the arrest. (Id. at 45-46, 92.) The parties stipulated that a New York Police Department chemist would testify that all four ziplock bags-the two Superman bags that the undercover officer purchased from Murphy and the two Superman bags recovered from Mickles after her arrest- contained crack cocaine. (Id. at 128.)

The court declined to charge the jury with respect to an agency defense.*fn3 (Id. at 140.) The jury found the petitioner guilty on the single charge of criminal sale of a controlled substance in the third degree arising from the crack cocaine sale to the undercover officer.*fn4 (Id. at 232.) The sentencing court imposed on the petitioner an indeterminate sentence of five to ten years of incarceration. (Sentence Tr., 7, Dec. 18, 2002.)

The petitioner appealed his conviction to the Appellate Division, First Department, asserting the same two grounds for reversal that he presents in this habeas petition. (Br. for Def.-Appellant to Appellate Div., First Dep't, Aug. 2003, at 2, attached as Ex. A to Decl. of Thomas B. Litsky in Opp'n to Pet. for a Writ of Habeas Corpus, Aug. 30, 2006.) The Appellate Division unanimously upheld the conviction, stating that "[t]he verdict was based on legally sufficient evidence and was not against the weight of the evidence" and that an agency charge was "properly declined" because "[t]here was no reasonable view of the evidence, viewed most favorably to the defendant, that he was acting on behalf of the buyer." People v. Graham, 771 N.Y.S.2d 660, 660 (App. Div. 2004). The petitioner requested leave to appeal these rulings to the New York State Court of Appeals, which that court denied. People v. Graham, 814 N.E.2d 471 (N.Y. 2004) (table).


Because a state court previously adjudicated the petitioner's claims on the merits, this Court evaluates the petitioner's claims using the deferential standard of review set forth in 28 U.S.C. § 2254(d). That section provides, in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...

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