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Verdel v. Cunningham

July 14, 2008

MICHAEL VERDEL, PETITIONER,
v.
SUPERINTENDENT RAYMOND J. CUNNINGHAM, WOODBOURNE CORRECTIONAL FACILITY; AND WOODBOURNE CORRECTIONAL FACILITY, RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Petitioner Michael Verdel, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of Criminal Possession of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.16(1) ("Penal Law"), and Criminal Possession of a Controlled Substance in the Fourth Degree, in violation of Penal Law § 220.09(1). The petitioner was sentenced to two concurrent indeterminate prison terms of six to twelve years. For the reasons explained below, the petition is denied.

I.

The record reflects the following relevant facts. On September 13, 2000, New York City police officers William Meyer ("Meyer") and Jack Konstantinidis ("Konstantinidis") arrested the petitioner upon suspicion of possession of a controlled substance. (Hr'g Tr. 8-11, Jan. 22, 2002.) Prior to the trial, the petitioner sought to exclude evidence seized by Meyer. The trial court conducted a pretrial suppression hearing where Meyer testified to the events that occurred leading up to the petitioner's arrest.

According to Meyer, at approximately 4:10 a.m. on September 13, 2000, the officers observed the petitioner kicking at the bottom of the doorway of a supper club and approached the petitioner after he crossed the street. (Hr'g Tr. 8.) Officer Meyer testified that he held onto the petitioner while Konstantinidis investigated the doorway. (Hr'g Tr. 8-9.) Meyer testified that the petitioner was dragging his right foot as they moved towards a wall, which prompted Meyer to ask the petitioner to lift his foot, under which he found a clear plastic bag containing 34 small, blue bags of what was later determined to be cocaine. (Hr'g Tr. 9.) Following this discovery, Meyer testified that he proceeded to search the petitioner, where he recovered a similar bag in the petitioner's waistband. (Hr'g Tr. 9-10.) At the stationhouse, the petitioner was searched again and the police recovered a cell phone, $528 in United States currency, and £100 in British pounds. (Hr'g Tr. 11.)

The petitioner moved to suppress the drugs and money seized by the police. During the pretrial suppression hearing, the petitioner's trial counsel, Frederick C. Hayes ("Hayes"), requested additional time to review material produced by the prosecution pursuant to People v. Rosario, 173 N.E.2d 881 (N.Y. 1961). Defense counsel said he had only had about five minutes to review the material, and the court urged him to focus on what would be useful for the hearing. (Hr'g Tr. 3-5.) The Judge denied Hayes's requests for additional time and allowed Meyer's testimony to proceed despite Hayes's refusal to participate. (Hr'g Tr. 4-5.) At the conclusion of Meyer's brief direct testimony, which consumes about seven pages of the transcript, the court offered defense counsel another five minutes. Hayes, however, refused to cross-examine the witness. (Hr'g Tr. 13-14.) As a result, Hayes's participation in the hearing was limited to an objection during direct examination and two requests for Meyer to repeat himself. (Hr'g Tr. 5, 10, 11.) At the conclusion of the hearing, the trial court denied the motion to suppress. (Hr'g Tr. 20.)

Officer Meyer also testified at trial to the events that occurred on September 13, 2000, and was cross-examined by Hayes. At the conclusion of the prosecution's case, the petitioner's trial counsel sought an adjournment to secure Konstantinidis's presence as a defense witness, which was denied. (Trial Tr. 407-408.) Alternatively, defense counsel moved to admit Konstantinidis's grand jury testimony. (Trial Tr. 400.) The court denied this motion but gave a missing witness charge to the jury in which the court instructed the jury that "you have a right . . . to decide if you think it appropriate that his testimony would not -- his testimony, rather, would contradict some aspect of the People's case." (Trial Tr. 448.)

Following the petitioner's conviction, the trial judge sentenced the defendant to a term of six to twelve years for Criminal Possession of a Controlled Substance in the Third Degree, to run concurrently with a term of six to twelve years for Criminal Possession of a Controlled Substance in the Fourth Degree, and consecutive to the sentence imposed in another case. (Sent. Tr. 17-18, Jan. 16, 2003.)

The petitioner subsequently filed a motion to set aside the verdict pursuant to N.Y. CPL § 300.30(1) on the grounds that it was error to fail to grant a continuance so that Konstantinidis could be called as a witness. The trial court denied the motion. (See Dannelly Decl. Ex. A.) The trial court found that there was no fault on the part of the prosecutor, who also sought the testimony of Konstantinidis. The trial court noted that the proposed testimony was not exculpatory and that at most the defense could have argued that inconsistencies were the "byproduct [of] a clumsy police attempt to frame [the defendant]," but there was "no other independent evidence of a frame-up. . . ." (Id. at 6.)

The petitioner timely appealed the judgment to the New York State Supreme Court, Appellate Division, First Department. On appeal, the petitioner argued that: 1) his defense counsel was ineffective for refusing to participate in cross-examination and argument at the suppression hearing; 2) he was denied his due process right to a fair trial and to present a defense when the trial court refused to grant additional time to review Rosario material, and refused to grant a one-day extension to secure Konstantinidis's presence at trial, or to admit his grand jury testimony; and 3) the interests of justice called for a reduction in the petitioner's sentence. (See Dannelly Decl. Ex. B.)

On October 13, 2005, the Appellate Division, First Department, unanimously affirmed the petitioner's conviction, People v. Verdel, 804 N.Y.S.2d 294 (App. Div. 2005), and on February 24, 2006, Judge Graffeo denied leave to appeal to the New York Court of Appeals. People v. Verdel, 845 N.E.2d 1290 (N.Y. 2006).

By petition dated January 19, 2007, the petitioner brought this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner raises four grounds for relief. First, the petitioner claims that the state court's failure to grant an adjournment to secure Konstantinidis's presence at trial violated his right to confront or cross-examine a witness.

Second, the petitioner claims that the prosecution withheld evidence that would have assisted the defendant at trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Third, the petitioner argues that the trial court's refusal to grant him additional time to review the Rosario material violated his Fourth and Fourteenth Amendment rights to due process. Finally, the petitioner claims that he received ineffective assistance of counsel when his defense counsel refused to participate in the suppression hearing following the trial court's refusal to grant additional time for preparation.

II.

Before obtaining relief under 28 U.S.C. § 2254, a petitioner must exhaust his available state remedies. 28 U.S.C. § 2254(b)(1); see O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Jimenez v. Walker, 458 F.3d 130, 148 (2d Cir. 2006). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence ...


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