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Shire v. Costello

June 2, 2008

IVORY SHIRE, PETITIONER,
v.
JOSEPH J. COSTELLO, RESPONDENT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior U.S. District Judge

DECISION AND ORDER

I. Background

A. State Court Proceedings

The following factual summary is derived from the state court records. On November 11, 1995, New York State Department of Correctional Services Investigator James Bezio posed as the brother of prison inmate Frank Albanese and arranged to make a drug transaction with Petitioner and Petitioner's wife, Yolanda Shire. Dkt. No. 9, Ex. D at 250-51.*fn1 During a three-way phone call that took place at approximately 9:56 a.m. on November 11, 1995, the three arranged for Bezio to meet Mrs. Shire near the prison. Id. at 251, 291. At the meeting, Bezio would pay Mrs. Shire $400.00 in exchange for marijuana, heroin and cocaine. Id. at 251-53. During a second three-way phone call that same afternoon, Mrs. Shire advised Bezio that she would be arriving at the prison by bus at 6:00 a.m. on November 12, 1995. Id. at 252-53. Both conversations were recorded and admitted into evidence at trial. Id. at 252-59.

On November 12, 1995, at approximately 7:30 a.m., Bezio and Mrs. Shire met in the visitors processing area of the Clinton Correctional Facility annex as planned. Dkt. No. 9, Ex. D at 260. The two left the facility and drove to a restaurant. While in the parking lot, Mrs. Shire gave Bezio a balloon containing heroin, cocaine and marijuana, and Bezio gave her the $400.00. Id. at 260-63. The money was photocopied prior to the exchange. Id. at 261-64. Mrs. Shire was arrested, and Investigator James Ferro recovered the $400.00 from Mrs. Shire's pocket. Id. at 263. Bezio photocopied the money a second time on November 27 or 28, 1995. Id. at 264.

The balloon contained a cellophane bag with two glassine envelopes of powder, two ziplock bags of vegetation and a plastic baggie of powder. Dkt. No. 9, Ex. D at 333-34. Bezio sealed the items and placed them in a secure filing cabinet at his residence, where they remained until he returned from vacation. Id. at 268-70, 272-74. Bezio removed the items from the cabinet on November 28, 1995 and took them to the Albany State Police Crime Lab for further testing. Id. at 270-71. Andre P. LaVigne, a forensic scientist, tested the substances. Id. at 333-37. One of the two glassine envelopes tested positive for a mixture of heroin and cocaine weighing 0.066 grams, and one of the bags of vegetation tested positive for marijuana. Id. at 335-39, 344-45. The plastic baggie of powder tested positive for cocaine and weighed 0.64 grams. Id. at 338.

On November 12, 1995, Bezio ordered the transport of Petitioner from the prison to the New York State Police barracks. Dkt. No. 9, Ex. D at 275. At approximately 9:00 a.m., Investigator Ferro interviewed Petitioner. Investigator Bezio was present during the interview and was processing evidence. Id. at 275, 279. Petitioner was aware that his wife had been arrested and was at the same state police barracks. Id. at 314-15, 317, 707-08. Ferro advised Petitioner of his Miranda*fn2 warnings, and had Petitioner read each right out loud, initial each right, and sign his name underneath them. Id. at 309-312, 707-11. Petitioner indicated that he understood each right. Id. Petitioner did not ask for a lawyer and agreed to speak to Investigator Ferro. Id. at 714-17. Petitioner admitted to participating in the three-way phone calls with his wife and Bezio, and told Ferro that he talked his wife into making the drug exchange and that he did it because he was poor. Id. at 311, 714. Petitioner read his statement out loud, made a correction, and signed it at approximately 9:25 a.m. Id. at 313, 725.

An indictment was returned by a Clinton County grand jury charging Petitioner with third degree criminal sale of a controlled substance (N.Y. PENAL LAW § 220.39) and fourth degree conspiracy. N.Y. PENAL LAW §105.10.*fn3 The Honorable Patrick R. McGill, Clinton County Court Judge, presided over Petitioner's trial proceedings. Petitioner was represented during pre-trial and trial proceedings by John Carter, Esquire.

A Huntley*fn4 hearing was held on August 26, 1996 before County Court Judge Andrew Halloran. Dkt. No. 9, Ex. D at 686-747. The trial court denied Petitioner's motion to suppress his statement to police, finding that Petitioner was advised of his Miranda warnings, that he knowingly, voluntarily and intelligently waived his rights, that his statement was voluntary, and that he in fact made the written statement in evidence before the court. Id. at 744-45.

A jury trial began on September 30, 1996 and concluded on October 4, 1996. At the close of the People's case, Petitioner testified in his own behalf. He told the jury that he was convicted in December 1994 for third degree criminal sale of a controlled substance and that in June or July 1995 he was transferred to Building 3, Merrill-Cooper Unit, at Clinton Correctional Facility, where he met Frank Albanese. Dkt. No. 9, Ex. D at 353-56. They shared meals, and Albanese gave Petitioner sneakers, a sweat suit, cigarettes and food from care packages. Id. at 358-61, 388, 497-98. Albanese paid Petitioner's home phone bill, and frequently spoke to Petitioner's wife. Id. at 361-62. Albanese made Petitioner believe that he owed Albanese because Albanese "looked out" for Petitioner, and asked him to have his wife bring drugs to the prison. Id. at 363-67, 392-93. Petitioner testified that he was afraid for his life. Id. at 367, 377. He acknowledged that he participated in the phone calls to arrange the drug exchange, and that it was his voice on the taped conversations, but denied making the written confession. Id. at 376-79, 397-404, 406-09.

Petitioner called two witnesses. Clinton Correctional Facility Assistant Superintendent Ralph J. Santor testified he met with Bezio to arrange the transfer of Petitioner to the same building as Albanese and that they were housed two rooms apart. Dkt. No. 9, Ex. D at 508-11. Frank Albanese testified that he contacted the District Attorney's Office about narcotics being brought into Clinton Correctional Facility. Id. at 483-85. Albanese met with Bezio on November 10, 1995, and agreed to pass Bezio off as his brother. Id. at 286, 484, 490. Albanese led Petitioner to believe that he would be speaking with Albanese's brother to arrange the drug exchange. Id. at 500-03. He denied putting any pressure on Petitioner or that he or his friends threatened Petitioner. Id. at 487-88. Albanese testified he cooperated because he wanted to get drugs out of the prison. Id. at 488. Albanese was transferred to Woodbourne Correctional Facility on Staten Island, near his home, in exchange for his cooperation. Id. at 304, 488, 500.

On October 4, 1996, the jury convicted Shire of both counts in the indictment. On February 6, 1997, Petitioner was sentenced as a persistent felony offender to an indeterminate term of fifteen years to life for third degree criminal sale of a controlled substance and a concurrent term of one and one-half to three years for fourth degree criminal conspiracy. Dkt. No. 9, Ex. H (Decision and Order, Dec. 6, 2004, McGill, J.,) at 9-11; Dkt. No. 9, Ex. D at 993-94.

Shire appealed his conviction to the New York State Supreme Court Appellate Division, Third Department. While preparing the appeal, appellate counsel Cheryl Maxwell, Esquire, tried to obtain pre-trial, trial and sentencing transcripts. The transcripts of the Huntley hearing, transcribed by court reporter Jeffery T. Glanda, and the sentencing hearing, transcribed by court reporter Jeffrey Schneider, were missing. Neither reporter worked for the Unified Court System when the transcripts were requested.*fn5 Court reporter Thomas Bess reconstructed the transcripts for Petitioner's arraignment, pre-trial and trial proceedings. See Dkt. No. 9, Ex. A (letter dated April 6, 1999 from Terry James Gordon to Michael Novack and attached list of transcripts).

On February 8, 2002, Maxwell wrote to Judge McGill advising that she and the prosecutor had not been able to settle the record. Counsel asked for a meeting to review the court's notes of the proceedings. See Dkt. No. 9, Ex. H at 3. In an Order dated March 5, 2002, Judge McGill requested that counsel provide copies of the transcripts at issue and specific objections and proposed amendments to the transcripts, with particular emphasis on the identification of areas relevant to the appeal. Id. at 3. Counsel complied with the order in a submission dated March 12, 2003. Id.

Counsel proposed several amendments to the transcript of the trial, and the District Attorney accepted each proposed amendment. Dkt. No. 9, Ex. H at 4. The transcript was then produced with the additions and deletions to which the parties stipulated. Id. at 5. The parties signed a certification of the record on September 22, 2004 that included those changes. Id. They were unable to reach an agreement, however, regarding the missing Huntley hearing and sentencing transcripts, and other gaps in the transcripts. Dkt. No. 9, Ex. D, at 774-76.

Three reconstruction hearings were held in an effort to settle the record. At the first hearing on August 19, 2003, the parties advised the court that an uncertified copy of the Huntley hearing transcript had been located in Petitioner's trial counsel's file. Dkt. No. 9, Ex. Hat 5; Ex. D at 751-54. The transcript revealed that the Huntley hearing was held before County Court Judge Andrew J. Halloran on August 26, 1996. Dkt. No. 9, Ex. D at 686. The reconstruction hearing was adjourned to give Petitioner an opportunity to review various documents and the Huntley hearing transcript.

On November 10, 2003, at the second reconstruction hearing, Petitioner objected to the use of the Huntley hearing transcript because it was uncertified and because it did not include: (1) his request to Judge Halloran that he be permitted to proceed pro se; (2) Petitioner's claim that appointed trial counsel demanded $10,000.00 from him; and (3) Inspector Ferro's testimony did not include an alleged promise he made to Petitioner that if he cooperated, his wife would not be charged. Dkt. No. 9, Ex. D at 787-89; Ex. H at 6. The court ordered counsel to contact Judge Halloran and request that he review the transcript and advise the court of its accuracy. Dkt. No. 9, Ex. D at 800-03; Ex. H at 7.

In the final reconstruction hearing held on February 11, 2004, handwritten sentencing notes of the assistant district attorney assigned to Petitioner's trial and of Judge McGill, along with documents that formed the basis of Petitioner's sentence, were submitted to the court. Dkt. No. 9, Ex. Hat 7; Ex. D at 813-18. Counsel also informed the court that Judge Halloran confirmed the authenticity of the uncertified Huntley hearing transcript to the extent that he had no reason to doubt its authenticity as to the portions attributed to him. Dkt. No. 9, Ex. Hat 7-8; Ex. D at 810-11. On November 29, 2004, counsel submitted a letter from Glanda to Judge Halloran in which he stated that the Huntley hearing transcript had not been produced by his secretary or by himself. Id. at 8.*fn6 Judge Halloran indicated in a letter dated November 30, 2004, that the Glanda letter did not change his opinion as to the authenticity of the transcript. Id.*fn7

In a Decision and Order dated December 6, 2004, Judge McGill found that the uncertified transcript of the Huntley hearing was "authentic and an accurate record of the proceeding" and concluded that there was "no need to reconstruct same." Dkt. No. 9, Ex. Hat 8. The court then concluded that a review of the exhibits introduced at the November 10, 2003 reconstruction hearing, along with the court's recollection and notes of the sentencing*fn8 , was adequate to reconstruct ...


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