The opinion of the court was delivered by: Lawrence E. Kahn U.S. District Judge
Petitioner Robert Lanza, a former New York State prison inmate as a result of a 1999 conviction on two counts of third degree criminal sale of a controlled substance (N.Y. PENAL LAW § 220.39(1)), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) the indictment was defective; (2) the trial court improperly denied his motion to vacate his conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10 in violation of his right to due process; (3) the evidence was insufficient; and (4) the trial court committed several errors resulting in the denial of a fair trial. Dkt. No. 1 at 5-6; Dkt. No. 10, Traverse at 4-23. For the reasons that follow, the petition is DENIED.
According to the testimony adduced at trial, Petitioner sold crack cocaine to Columbia County Sheriff Deputy Wendy J. Guntert on March 17 and March 19, 1999. See Transcript of Trial of Robert Lanza ("Trial Tr.") at R285-306.*fn1 Senior Investigator Frederick Kane, assigned to the Columbia County Drug Task Force, supervised both transactions.
Prior to the March 17, 1999 transaction, Deputy Guntert met with Investigator Kane, who showed her a photograph of Petitioner. He identified Petitioner by name, and told Guntert that Petitioner was the person she would meet that day to purchase crack cocaine. Trial Tr. at R 218-20, 287-88. Deputy Guntert and Investigator Kane each recognized Petitioner from prior police contact. Id. Guntert was given $100.00 in buy money*fn2 and a body wire. Guntert and a confidential informant went to a parking lot of a grocery store, and the informant contacted Petitioner by phone. The informant ordered two pieces of crack cocaine, and asked Petitioner to meet him in the parking lot. Id. at R313-14.
Petitioner parked his car next to Deputy Guntert's van. Trial Tr. at R289-90. Deputy Guntert was sitting inside the passenger side sliding doors of the van. Id. Petitioner exited his vehicle and the informant introduced Petitioner and Guntert. Petitioner sat next to Guntert and opened a metal cigarette lighter. He poured out ten individually wrapped pieces of crack cocaine, picked out two of them, and handed them to Guntert in exchange for $100.00. Id. at R290-94.
Deputy Guntert and the informant met with Petitioner again on March 19, 1999 in the same grocery store parking lot. This time, Petitioner got into the front passenger seat of Deputy Guntert's vehicle and handed her two pieces of crack cocaine in exchange for $100.00. Trial Tr. at R297-302.
Investigator Kane and Sergeant Paul Knott of the Columbia County Sheriff's Department conducted surveillance of both transactions. They recorded the conversations between Deputy Guntert and Petitioner on audiotapes and also made a videotape of the March 19 transaction. Trial Tr. at R227-31, 237-41, 243-45, 258.
Deputy Guntert met with Investigator Kane within minutes of each purchase and turned the crack cocaine over to him. Trial Tr. at R295-96, 318. Investigator Kane field tested the items and then sealed them with tape. Id. at R224-25. Guntert initialed and dated each piece on the tape. Id. at R224, 295. Investigator Kane then placed the cocaine in sealed evidence bags, labeled them, and assigned each bag a specific case number unique to Petitioner. Id. at R226-27, R247-49. Investigator Kane took the evidence bags to the task force office, where they were locked in a safe. On March 23, 1999, Investigator Kane removed the evidence bags and transported them to the New York State Police Crime Lab for forensic testing. Id. at R248-50. At the Crime Lab, Investigator Kane handed the bags to the receiving technician, who placed the bags into larger bags, sealed them, and gave Kane a receipt. Id. at R249.
Senior Forensic Chemist Patricia C. Rose was assigned to test the substances delivered to the lab on March 23, 1999 by Investigator Kane. Trial Tr. at R264-266. She signed the evidence out of the Crime Lab's inner vault on April 21, 1999, took it to her work area, and placed it in a locked box to which only she had the combination. Id. at 266-68. On or about May 5, 1999, Rose performed three chemical tests on the items recovered on March 17 and 19 in order to determine their molecular and chemical content. All three tests indicated the presence of cocaine. Id. at R267-69, 275. Infared tests performed on items from each date showed "a fingerprint" of "cocaine freebase," which is "known in the street as crack." Id. at R269, 275.
B. State Court Proceedings
On July 13, 1999, Petitioner was indicted on two counts of third degree criminal sale of a controlled substance (N.Y. PENAL LAW § 220.39(1)) and two counts of seventh degree criminal possession of a controlled substance (N.Y. PENAL LAW § 220.03). Dkt. No. 6, Ex. 1, Indictment. On September 24, 1999, a combined Wade*fn3 /Sandoval/*fn4 Ventimiglia*fn5 hearing was held. The court also conducted an audibility hearing the same day to determine the admissibility of the two audiotapes and the videotape taken during the surveillance of the narcotics transactions. Dkt. No. 6, Ex. 9; Ex. 17, Hearing Tr. at R103-181. After hearing the testimony of Investigator Kane and Sergeant Knott, and listening to the tapes, the trial court found that the tapes were admissible because they were "sufficiently intact and audible to go to a jury." Dkt. No. 6, Ex. 17 at R155. The court noted that there were no mechanical errors or gaps in the recordings, that they accurately reflected the depicted events as they unfolded, and that the entirety of each transaction was recorded from "beginning to end." Id. at R153-54. The court found that the video clarity was "excellent" and that any audibility problems with the videotape were moot because the audio tape of the same transaction was "quite audible." Id. at R154.
At the conclusion of the Wade portion of the hearing, the trial court held that there had been no improper procedures used in identifying Petitioner. The only photograph in question was that shown to Deputy Guntert on March 17. The court noted that Guntert recognized Petitioner from police contact on March 16, that she had an "excellent ability to see" Petitioner during the March 17 transaction that lasted six minutes, that viewing the photograph did not "taint or undermine" her ability to recognize and identify Petitioner, and that her ability to identity Petitioner was based upon her own observations. Dkt. No. 6, Ex. 17 at R172-73. Finally, the court ruled on the admissibility and use of certain prior criminal convictions and uncharged crimes, and denied the prosecutor's request to introduce evidence of a drug transaction allegedly committed by Petitioner on March 16, 1999. Id. at R173-81.
A jury trial was held on October 4 and 5, 1999. Trial Tr. at R189-343. The jury found Petitioner guilty of both counts of criminal sale of a controlled substance. Id. at R418-19. On November 5, 1999, Petitioner was sentenced as a predicate felon to serve an indeterminate term of eight to sixteen years on each count to run concurrently. Dkt. No. 6, Ex. 12; Ex. 17, Sentencing Tr. at R436-443.
On November 21, 2000, Petitioner filed a Notice of Motion and Affidavit in which he asked the trial court to inspect the grand jury minutes in camera to determine whether the grand jury proceeding was defective and requested an Order directing that a transcript of the grand jury proceedings be provided to him for inclusion in the record on appeal. Dkt. No. 6 at Ex. 14. In a Decision and Order dated January 11, 2001, the trial court denied the motion, stating that it had already reviewed the grand jury minutes in determining Petitioner's pre-trial omnibus motion and "upheld the subject determination." Id. at Ex. 16.
Petitioner filed his first CPL §440.10 motion on or about May 22, 2001. Dkt. No. 6, Ex. 19. Petitioner alleged that (1) the trial court lacked jurisdiction over his case because the grand jury proceedings were defective; and (2) the prosecutor misrepresented evidence to the grand jury such that the integrity of the proceedings was impaired. Id. The motion centered around Petitioner's argument that Crime Lab reports were not properly certified at the time of the grand jury presentation and, as a result, the evidence presented at grand jury regarding the identity of the substance recovered from him was insufficient. The prosecutor opposed the motion in an affidavit dated June 7, 2001. Id. at Ex. 21.
In a decision dated July 27, 2001, the trial court denied the motion. Dkt. No. 6 at Ex. 22. The court explained that its review of the grand jury minutes revealed that the Crime Lab reports in question were recited therein as being "New York State Police Crime Laboratory Reports, each with attached certification." Id. at 2. The court did not have the grand jury exhibits before it when it decided Petitioner's omnibus pre-trial motion, and relied upon that information. Id. The court further noted Petitioner's assertion that the only certifications he could find were dated after the conclusion of the grand jury proceedings. Id. The court assumed, arguendo, that Petitioner was correct that the lab reports lacked the requisite certifications when they were submitted to the grand jury, but nonetheless found that "any claim pertaining to alleged insufficiency of Grand Jury evidence is foreclosed" because Petitioner was convicted "upon legally sufficient evidence" after trial. Id. The court also noted that there was other testimony before the grand jury, including that of the undercover officer regarding the purchase of what was represented as and understood to be crack cocaine, and that items were field tested. Id. at 3. In light of that evidence, the court concluded that there had been no jurisdictional defect. Id. Petitioner appealed, leave was granted, and the appeal was consolidated with Petitioner's direct appeal of his conviction. See Lanza, 749 N.Y.S.2d at 618.
On direct appeal, Petitioner re-asserted the claims presented in the CPL § 440 motion and further argued that (1) the chain of custody was insufficient to show that the substance sold to Deputy Guntert was the same substance tested at the Crime Lab; (2) the trial court erred when it denied the CPL § 440 motion; (3) Petitioner was not given an agency defense; (4) the audio and video tapes of the transactions were improperly admitted into evidence; (5) the trial court infringed upon Petitioner's right to a fair trial and the right to confront his accusers when it interfered with cross-examination, injected facts not in the record, and made erroneous evidentiary rulings; and (6) the sentence was excessive. Dkt. No. 6, Ex. 24.
The Appellate Division, Third Department affirmed, finding that evidence presented at trial was "sufficient to establish a complete chain of custody." People v. Lanza, 749 N.Y.S.2d 618, 620 (N.Y. App. Div., 3d Dep't. 2002). The court rejected Petitioner's argument that references in the Crime Lab reports to "powder" demonstrated that the substance tested could not be the same substance Petitioner sold to Deputy Guntert, which had the appearance of crack cocaine, because the chemical analysis of the substance revealed that it was crack cocaine. Id. Accordingly, the discrepancy based upon the term "powder" was relevant to the weight of the evidence and not its admissibility. Id. For the same reason, the court rejected Petitioner's arguments that the weight of the items submitted by Investigator Kane was different than the weight listed on the lab reports. It noted that Petitioner argued this theory to the jury, which rejected it. Id. at 621. The court concluded that any error in the admission of the audio and video tapes was harmless in light of the testimony of the undercover officer and the "weight and nature of the proof of defendant's guilt without" them. Id. The court further found no evidence to support an agency defense, and rejected Petitioner's claim that the sentence was excessive. Id. Finally, the court ruled that, based upon its review of the record, there was no merit to Petitioner's "claims that the Crime Lab reports submitted to the grand jury were not certified."
Id. Petitioner's remaining arguments were "considered and rejected." Id. The New York Court of Appeals denied leave on May 29, 2003 (People v. Lanza, 793 N.E.2d 419 (N.Y. 2003), and denied reconsideration on June 23, 2003. People v. Lanza, 795 N.E.2d 46 (N.Y. 2003). See Dkt. No. 6, Exs. 28-29.
On or about August 13, 2003, Petitioner filed a second CPL § 440 motion. Dkt. No. 6, Ex. 31. Petitioner again argued that the evidence presented at the grand jury was defective because the Crime Lab reports were not properly certified at the time they were presented to the grand jury. Id. He further argued that the "submission of the alleged uncertified Crime Lab reports constituted prosecutorial misconduct, divested [the trial court] of jurisdiction, prevented the prosecution from providing the Grand Jury with adequate legal instructions and, further, violated [Petitioner's] due process rights under the respective constitutions of the United States and New York State." Dkt. No. 6, Ex. 33 at 2, n. 1. In a Decision and Order dated September 16, 2003, the trial court denied the motion pursuant to CPL §440.10(2)(a) because the "linchpin" of the motion was that the lab reports were uncertified at the time of grand jury, and the Appellate Division had rejected that argument on the merits. Id. at 2-3. The court further noted that each of the arguments in the motion appeared on the record and "could have been addressed" on appeal. Id. at 3 (citing CPL §440.10(2)(c)). The Appellate Division denied leave to appeal on December 8, 2003. Dkt. No. 6, Ex. 34. The New York Court of Appeals dismissed Petitioner's application for leave on February 4, 2004 (Lanza, 808 N.E.2ed 1287 (2004)), and denied reconsideration of that dismissal on April 16, 2004. Lanza, 811 N.E.2d 43 (2004). See Dkt. No. 6, Exs. 36-39.
C. Proceedings in This Court
Petitioner filed his Petition for a writ of habeas corpus on June 14, 2004. Dkt. No. 1. On November 8, 2004, the Office of the Attorney General for the State of New York, acting on Respondent's behalf, filed a response and memorandum of law in opposition to the Petition, along with the relevant state court records. SeeDkt. No. 6. Petitioner filed a Traverse on January 27, 2005. Dkt. No. 10.
A. Lanza's Release from Prison
According to publicly available records maintained by the New York State Department of Correctional Services ("DOCS"), and Petitioner's Notice of Change of Address letter, Petitioner was released from state custody on the conviction at issue on November 14, 2005. See http:// nysdocslookup.docs.state.ny.us; Dkt. No. 11, Notice of Change of Address letter. It also appears that Petitioner has now completed his sentence. According to the DOCS website, Petitioner had a "Parole Board Discharge Date" of July 9, 2007, which "indicates that the parolee has been discharged from parole supervision before the maximum expiration date or the maximum expiration date for parole supervision. The parolee's sentence is deemed completed as of this date." See http:// nysdocslookup.docs.state.ny.us, Inmate Information Data Definitions.
Since Petitioner was released from custody and apparently completed his sentence pending the disposition of his habeas petition, the Court has not been briefed by the parties on whether it lacks jurisdiction over the Petition, or whether it has been rendered moot. However, "[w]hether a federal court has subject matter jurisdiction is a question that 'may be raised at any time . . . by the court sua sponte.'" McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001) (quoting Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000)).
Habeas corpus relief is available to a state prisoner if he is "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a). Regardless of a petitioner's subsequent release, it is within the jurisdiction of a federal court to issue a writ of habeas corpus if the petitioner was "in custody" at the time his application for relief was filed. Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). Petitioner was in custody at the time he filed his Petition, and thus, the Court retains jurisdiction over the Petition. Id.; see Stephens v. Superintendent, No. 04-CV-1443, 2008 WL 755278, at *3 (N.D.N.Y. Mar. 19, 2008) (McAvoy, S.J., adopting Report-Recommendation of Bianchini, M.J.) (retaining jurisdiction over petition after the petitioner's release because it was filed while the petitioner was incarcerated).
Subject matter jurisdiction, however, is limited by Article III, Section 2 of the United States Constitution to cases that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). Habeas petitioners no longer in custody and whose sentences have expired must demonstrate the existence of a "concrete and continuing injury" or some " 'collateral consequence' of the conviction" in ...