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Ramirez v. Phillips

October 30, 2007


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


Juan Ramirez ("Petitioner") petitions this Court, pursuant to 28 U.S.C. § 2254(d)(1) and (d)(2) (2007), for a writ of habeas corpus vacating his conviction of criminal possession of a controlled substance in the first degree. Petitioner claims that: (1) the trial court erred in denying his suppression motion without a hearing; (2) the trial court's behavior during jury selection improperly intimidated potential and actual jurors from disclosing any biases they may have had and thus denied him his right to a fair trial; (3) appellate counsel was ineffective because he failed to argue Petitioner's claim regarding the trial court's alleged intimidation of jurors, and (4) the trial court improperly refused to accept his guilty plea. Based on this petition, Magistrate Judge Henry B. Pitman issued a Report and Recommendation ("Report") on December 20, 2006, recommending that the Petition be denied in all respects. The Court received timely objections from Petitioner to the Report. Respondent submitted a Reply. After careful review of all the submissions in this case, the petition for a writ of habeas corpus pursuant to § 2254(d) is DENIED.


A. Evidence Presented at Trial

On the evening of December 15, 1998, two plain-clothed New York City police officers sat in an unmarked police car double-parked on Edgecombe Avenue in Manhattan. Tr. 312, 379-381. While in the car, the officers observed Petitioner walking south on Edgecombe Avenue in a "drug-prone" area. Tr. 309-311. According to one of the officers, Petitioner appeared to be clutching something under his coat. Tr. 315, 340, 355, 358, 383-84, 394. When that officer exited the police car, Petitioner looked at him, "abruptly turned around [,] and headed in the other direction." Tr. 311-15, 346, 349-51, 355, 357, 367, 371, 385-86, 392. Petitioner walked "fast," "picked up his pace," and appeared to continue clutching something under his coat. Tr. 314-315.

The officer followed Petitioner. When he was approximately ten feet behind Petitioner, the officer observed Petitioner remove a plastic bag from his jacket and throw it on the ground. Tr. 316-17. Upon closer inspection, the officer observed a package wrapped in cellophane and duct tape which came from the bag Petitioner had discarded. Tr. 316-18, 358-63, 369, 372. No other items similar in shape or appearance were lying near the package. Tr. 334-35. Petitioner was then arrested and the package was recovered. Tr. 318-19, 334, 369, 382-87, 391, 419, 422. It was later determined that the package contained one pound, nine and one-half ounces of cocaine. Tr. 417-19, 422-24.

B. Procedural History*fn3

1.Trial Court's Behavior During Jury Selection

During voir dire the trial judge asked potential jurors various questions regarding their ability to remain fair and unbiased during trial. Among the questions asked were whether jurors had themselves been victims of crimes, and more directly, whether they could be fair in the proceeding. Two potential jurors responded to these questions with rather vague statements, to which the trial judge commented at one point, "I don't believe a word you're saying. I believe you're lying under oath and I believe it's shameful that you're trying to avoid jury duty." Tr. 236-39. After dismissing these potential jurors, the trial court proceeded with jury selection. Twelve jurors were seated and three alternates were selected. Declaration of Assistant Attorney General Danielle L. Attias, dated December 13, 2004 ("Attias Decl."), Ex. A at 8. The alternate jurors did not deliberate. Id.

2. Petitioner's Motion to Suppress

On February 2, 1999, Petitioner moved in limine to suppress the recovered cocaine, pursuant to N.Y. CRIM. PROC. § 710.60. Attias Decl., Ex. 8. In the alternative, Petitioner requested a Mapp/Dunaway hearing.*fn4 Id. Petitioner argued that "the seizure of the alleged cocaine represent[ed] the fruit of the police officer's unlawful pursuit of the defendant" and, therefore, violated his Fourth Amendment rights. Id. at 4. The pursuit was unlawful, according to Petitioner, because his "alleged innocuous acts prior to the police pursuit did not justify [] police intrusion into his privacy." Id. at 3-4. Petitioner denied "acting nervously, furtively, evasively or otherwise suspiciously -- such as by gesturing toward or adjusting his waistband -- before police pursued him" and alleged that "the police did not possess any other corroborative evidence to support their suspicions of the [Petitioner] . . . ." Id.

The prosecution argued that Petitioner lacked standing to pursue a motion to suppress because Ramirez did not provide a sufficient legal basis for suppression pursuant to Criminal Procedure Law §710.60(3). Specifically, according to the prosecution, Ramirez had no reasonable expectation of privacy in the bag or its contents (and thus, lacked standing to bring a Fourth Amendment challenge) because he did not affirmatively claim possession of the objects. See Attias Decl., Ex. B at 7 ("[Ramirez] never claim[ed] that he tossed a bag to the ground, or that, if he did, that the bag and its contents belonged to him, or that he had a possessory interest in it."). Standing to challenge a search is not established by asserting a possessory interest in the goods seized. The defendant must also assert a privacy interest in the place or item searched. People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108 (1996). Thus, according to the prosecution, Petitioner could not assert standing based on the prosecution's allegations alone: "[t]he language of the felony complaint, that the officer recovered drugs 'from the ground where he observed defendant drop it'. . .[is] ambiguous. It was up to the defendant to elaborate on that circumstance in his moving papers if he felt it would establish his standing." Attias Decl., Ex. B at 7. On March 1, 1999, the trial court agreed with the prosecution, and summarily denied Petitioner's motion for suppression without a hearing on the grounds that Petitioner failed to set forth sufficient allegations to establish standing. Attias Decl., Ex. A at 5.

Thereafter, Petitioner was assigned new counsel*fn5 and moved for reconsideration*fn6 to suppress the recovered cocaine. See Attias Decl., Ex. B at 7. Petitioner repeated his earlier argument that, at the time of his arrest, he "was not engaged in any apparent criminal activity" and that "[n]othing in his words, actions or demeanor could be characterized [sic] as suspicious." Id. at 8. Petitioner also opined that:

We question such finding [of cocaine] and we further deny both the allegedly [sic] sighting and dropping of the 'brick' by Mr. Ramirez.

Id. (citation omitted). In response, the prosecution asserted that since Mr. Ramirez now alleged that he had never possessed the cocaine, he had no reasonable expectation of privacy and thus, lacked standing to assert a Fourth Amendment violation. Report at 5 (citation omitted). On April 6, 1999, in an oral decision, the trial court agreed with the prosecution and denied Petitioner's motion to suppress for failure to establish standing. Attias Decl., Ex. B at 8-9.

Petitioner raised this motion to suppress again at trial in the midst of cross-examination of one of the police officers who arrested him, urging the court to either reconsider the motion or have the motion reheard by the judge who initially denied the motion.*fn7 The trial court declined to review the previous denials of Petitioner's suppression motion without a hearing, acknowledging that it had no authority to do so. Tr. 342-345. It further stated that based on the record thus far, "[n]othing [had] been said that even slightly indicate[d] any error on the part of [Justice] Beeler." Tr. 344.

3. Petitioner's Aborted Guilty Plea

In the middle of jury selection,*fn8 Petitioner's counsel informed the trial court that Petitioner had agreed with prosecution to plead guilty to one count of criminal possession of a controlled substance in the second degree in violation of N.Y. CRIM. PROC. § 220.18(1). Tr. 102-3. In exchange, Petitioner would be sentenced to an indeterminate term of ten years to life. The trial court advised Petitioner of his rights and Petitioner agreed to allocute. Tr. 104. As the allocution began, Petitioner asked the trial court whether the ten-year sentence would be determinate and also run concurrently with a two- to four-year sentence imposed on Petitioner for another offense. Tr. 104-5. The trial court informed him that the sentence was indeterminate and would not run concurrently. Id. Petitioner then agreed to continue with the allocution. Id.

There were several other starts and stops in Petitioner's allocution. At one point, Petitioner claimed that he was "psychologically" forced to plead guilty by "everyone" present at the allocution, then immediately retracted his claim and affirmed his voluntary decision to plead guilty. Tr. 109. There were other instances throughout the allocution where it seemed Petitioner did not wish to plead guilty but affirmed his desire to proceed with the allocution. Tr. 110-113. Later, Petitioner was unclear as to whether he possessed the cocaine that was seized after his arrest. Tr. 112-126. He first claimed that when the police arrested him, he did not possess any cocaine. Tr. 118. When the trial court proceeded to ask Petitioner how the drugs came to be found fifteen feet away from him, Petitioner responded at length that he was simply walking past the police officers when they stopped him, searched ...

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