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Ikker v. Taylor

December 3, 2008

RAJAH IKKER, PETITIONER,
v.
JUSTIN TAYLOR, SUPERINTENDENT, GOUVERNEUR CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, District Judge

MEMORANDUM AND ORDER

Rajah Ikker, a prisoner incarcerated in the Coxsackie Correctional Facility pursuant to a judgment of the New York State Supreme Court, Richmond County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Ikker challenges his conviction following a jury trial of one count of criminal possession of a controlled substance in the fourth degree. Appearing pro se, Ikker seeks habeas relief on the grounds discussed below. Oral argument was held on December 3, 2008, at which Ikker appeared by teleconference from the facility in which he is serving his sentence. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The government's evidence at trial established that at approximately 7:30 p.m. on June 13, 2003, Ikker was stopped by the police while driving a tan Lexus. The basis of the stop was an observation by an officer who was waiting to execute a search warrant. The officer saw Ikker participate in a narcotics transaction at the target location. After stopping Ikker's vehicle, an officer instructed Ikker to exit the car. As Ikker complied, the officer noticed Ikker fidgeting with something in the back of his pants and ordered him to turn around. Ikker refused and began wrestling with the officer. The officer, with the help of his partner, wrestled Ikker to the ground, where he noticed the tail of a plastic bag protruding from the back of Ikker's pants. The police then handcuffed Ikker and removed the plastic bag from inside of his pants. A golf-ball-sized rock of crack cocaine weighing more than an eighth of an ounce was inside the plastic bag.

Ikker was arrested for possession of a narcotic drug weighing an eighth of an ounce or more, and was indicted in New York Supreme Court, Richmond County on two charges: criminal possession of a controlled substance in the fourth and seventh degrees.

B. The Procedural History

1. The Trial Court Proceedings

Ikker filed a motion to suppress the physical evidence seized by the police and challenging the lawfulness of his arrest. On April 28, 2004, a Dunaway/Huntley hearing was held on Ikker's motion to suppress.

At the hearing, Detective Salvatore Bellomo testified that on June 13, 2003 he was part of a field team, including Detectives George Boan and Vincent Orsini, executing a search warrant on 27 Marscher Place, Staten Island. H. 4-5.*fn1 At approximately 7:30 p.m., while sitting in his parked car 100-150 feet from the house they were planning to search, Bellomo received a radio transmission from Boan. H. 5. Boan communicated that a tan, four-door Lexus had pulled up to 27 Marscher Place. H. 5. Bellomo personally observed the Lexus and saw a man exit the car and walk onto the property at 27 Marscher Place. H. 5-6. Bellomo testified that he lost sight of the man as he approached the porch of the house. H. 6. Boan, however, had a line of sight to the porch from his position and transmitted via radio that the man, later identified as Ikker, was a black male approximately six feet in height, wearing a white shirt and black pants. H. 6. Boan also transmitted that he watched a woman come to the door of the house and, in what appeared to be a drug transaction, Ikker put his hand down the back of his pants, pulled out a plastic bag, and gave something to the woman. H. 6. As Boan transmitted that the man was returning to the vehicle, Bellomo watched Ikker get back into the driver's seat of the car and drive away. H. 7. Boan radioed that he wanted the car stopped. H. 7.

Based on this information, Bellomo stopped the Lexus approximately 150 feet from 27 Marscher Place, at the corner of Van Wyck Street and Wilbur Street. H. 7-8. Bellomo approached the car and instructed the driver to exit the car. H. 8. The driver was Ikker. He fit the description transmitted by Boan and was the only man in the car; a woman was in the passenger seat. H. 9. Bellomo testified that when Ikker exited the car, his hand was behind him, fidgeting with the back of his pants. H. 9. Bellomo instructed Ikker to turn around because he did not know what Ikker had in the back of his pants and was fearful it was a weapon. H. 21.

Ikker refused to turn around and instead began fighting with Bellomo. H. 9. With Orsini's assistance, Bellomo wrestled Ikker to the ground and handcuffed him. In doing so, they observed the "tail" of a plastic bag sticking out of the back of Ikker's pants. H. 10 & 23. When the detectives stood Ikker up and leaned him against the car, the plastic bag was still protruding from his pants. Bellomo removed the bag from Ikker's pants. It contained crack cocaine. H. 11.

On August 18, 2004, the New York Supreme Court, in a written decision by Justice Leonard Rienzi, credited the testimony of the officers, made factfindings consistent with it, and ruled that Bellomo had reasonable suspicion based on the radio transmissions from Boan to stop Ikker's vehicle. The court noted that although there was no explicit testimony on the issue, in all likelihood the search warrant was for narcotics, since the team executing the warrant was from the Narcotics Bureau. The court found that there was no basis for the suppression of the evidence because

[E]ven without meeting the threshold of probable cause, there was reasonable suspicion to stop [Ikker's] car, as the detective heard information from his fellow officer during a joint investigation that alluded to [Ikker's] violation of the law. . When [Ikker] reached into the rear of his pants, thus arousing fears as to the officer's safety, the detective properly asked [Ikker] to turn around. [Ikker's] refusal to comply and his physical struggle with the officers clearly sanctioned the right of the police to restrain defendant and remove the plastic bag found in his pants.

People v. Ikker, Pre-trial Hearing Decision and Order, Indictment No. 190/2003 at 3 (Sup. Ct. Aug. 18, 2004).

At trial, Bellomo, Boan, and Orsini testified to the events that led to Ikker's arrest on June 13, 2003. Ikker initially stated that he intended to testify, Tr. 364-65, but ultimately decided not to. Tr. 375. The jury found Ikker guilty of criminal possession of a controlled substance in the fourth degree. On March 1, 2005, he was adjudicated a predicate felon and sentenced to an indeterminate term of imprisonment of 6 to 12 years.

2. The Direct Appeal

On appeal to the New York Supreme Court, Appellate Division, Second Department, Ikker argued through counsel that (1) the hearing court erred in refusing to suppress the fruits of the stop, which he argued was not supported by reasonable suspicion; (2) the trial court denied him due process and an impartial jury by denying his for-cause challenges to three prospective jurors who worked for the New York City Police and Corrections Departments; and (3) ...


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