The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Juan Roque ("Roque" or "petitioner") was convicted in the New York State Supreme Court, Kings County, after a trial by jury, of conspiracy in the first degree on April 10, 1997. The trial court sentenced petitioner to a prison sentence of twenty-five years to life.
The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment on February 4, 2002. People v. Roque, 291 A.D.2d 417 (2d Dep't 2002). On June 18, 2002, the New York Court of Appeals denied petitioner's leave to appeal. People v. Roque, 98 N.Y.2d 680 (2002).
Thereafter, petitioner filed two motions pro se. On June 10, 2003, petitioner moved to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20 claiming that the sentencing court improperly considered defendant's role in crimes for which he was acquitted. On July 3, 2002, the Kings County Supreme Court denied petitioner's motion. On October 29, 2003, the Appellate Division of the New York State Supreme Court, Second Department, denied petitioner's application for leave to appeal. The Appellate Division also denied petitioner's application for a writ of error coram nobis to vacate his conviction on the ground of ineffective assistance of counsel, People v. Roque, 7 A.D.3d 818, 776 N.Y.S.2d 864 (2d Dep't 2004), and the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Roque, 3 N.Y.3d 680, 784 N.Y.S.2d 19 (2004).
Petitioner challenges his conviction through the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the grounds that the sentencing court improperly considered the murder and arson counts, even though the jury acquitted him of those crimes, and petitioner's appellate counsel provided him with ineffective assistance because he failed to raise an ineffective assistance of trial counsel claim on appeal. In his traverse, petitioner further claims that his right to a public trial was violated by his trial counsel's consent to a temporary closure of the courtroom. For the reasons set forth below, the petition is denied.
Petitioner was charged with conspiracy in the first and second degrees (N.Y. Penal Law §§ 105.17, 105.15), murder in the second degree (N.Y. Penal Law § 125.25), and arson in the first degree (N.Y. Penal Law § 105.20), in connection with petitioner's involvement in a crack cocaine conspiracy over a five-year period beginning in 1991 in the Williamsburg section of Brooklyn. (R. at 2261-62.)*fn1 Petitioner was tried by a jury in Kings County Supreme Court along with five other co-defendants each of whom had separate counsel. After a six-week trial, petitioner was found guilty of conspiracy in the first degree and acquitted on the other charges. (Id. at 3671-72.) Petitioner received a prison sentence of twenty-five years to life. (Sentencing Hr'g Tr. at 39-40.) Petitioner was represented by the same attorney at trial and on appeal. (Pretrial Hr'g Tr. at 3.)
Relevant Events at Petitioner's Trial
1. Closure of Courtroom for Testimony of Two Undercover Police Officers
On March 5, 1997, the government requested that the court close the courtroom during the testimony of two undercover police officers because both officers were then assigned as undercover detectives to the specific area where the narcotics transaction, which was the subject of the trial, had occurred. (R. at 2896.) The prosecutor explained that Undercover Officer 5529 was active as an undercover officer in the Williamsburg neighborhood and was assigned to the 90th Precinct, the precinct where the alleged conspiracy had taken place. (Id.) The prosecutor further explained that Undercover Officer 278 was a member of the Special Operations Unit and was a participant in a long-term undercover buy operation in the Brooklyn North Narcotics District, which included the 90th Precinct and Williamsburg. (Id. at 2897.)
In response, the court directed defense counsel to consult with their clients and to advise the court of any objections to closing the courtroom during the testimony of the two officers. (Id.) The court further directed defense counsel to alert the court if alternatives to closure existed. (Id. at 2897-98.) After a brief pause in the proceedings, the court inquired of each defense counsel, in turn, if his client objected to the closure. (Id. at 2898.) Each defense attorney, including petitioner's, responded that he did not object. (Id.) And none of the defense counsel asked the court to consider alternatives to closing the courtroom. The court then ordered that the courtroom be sealed during the testimony of the two undercover police officers. (Id.)
2. Jury Charge Related to Two Witnesses' Accomplice Status
During petitioner's trial, numerous accomplice and non-accomplice witnesses testified for the government, including Yamantti Morales and Victor Velasquez. (Id. at 151, 1837.) On March 6, 1997, the court held a hearing to review the jury charges and did not include Yamantti Morales's name among the list of accomplice witnesses. (Charging Conference Hr'g Tr. at 46-47.) Petitioner's trial counsel did not lodge an objection when the court proposed submitting to the jury the issue of Victor Velasquez's accomplice status. (Id. at 47.)
On March 11, 1997, the trial court instructed the jury that they must consider eleven witnesses to be accomplices as a matter of law. Although the name "Jose Morales" appeared on the list, the name "Yamantti Morales" did not. (R. at 3551.) However, a person by the name of "Jose Morales" never testified at the trial, nor did any other witness with the surname Morales, except Yamantti. Petitioner's trial counsel did not object to this aspect of the jury instructions. (Id. at 3586-99.) With respect to Victor Velasquez, the court instructed the jury "to decide whether Victor Velasquez has participated in the conspiracy or reasonably participated in an offense charged based on the same facts, and if he did, then he is also an accomplice." (Id. at 3552-53.) The court did not enumerate a list of non-accomplice witnesses for the jury.
The court then explained the significance of a witness's accomplice status as it relates to the requirement and sufficiency of corroborative evidence under New York law. (Id. at 3553-55.) In relevant part, the court stated that, "the law requires that the testimony of an accomplice must be corroborative, corroborated by other evidence apart from the accomplice's testimony" and that the jury acts as the "sole judges of the sufficiency of this corroborating evidence." (Id. at 3553-54.) The court further instructed the jury that, if it deemed the corroborating evidence insufficient, it "must disregard the accomplice's testimony entirely," but, if deemed sufficient, it "may consider ...