The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge
Petitioner Vergil McBean was convicted on March 14, 2003 of three counts of third degree criminal sale of a controlled substance (N.Y. PENAL LAW § 220.29(1)) after a jury trial in Tompkins County and was sentenced on May 5, 2003 to serve three concurrent indeterminate terms of two to six years in prison. Pet. at 1 (Dkt. No. 1); Resp't Mem. of Law ("Resp't Mem.") at 1 (Dkt. No. 8).*fn1
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he was denied due process by the prosecutor's failure to disclose an exculpatory police report prior to trial; (2) the prosecutor engaged in misconduct during cross-examination and in summation; (3) the trial court improperly denied his request for a missing witness charge; (4) the trial court improperly permitted hearsay testimony in violation of the Confrontation Clause; and (5) the trial court improperly refused to hold an evidentiary hearing on his motion to vacate his conviction filed pursuant to New York's Criminal Procedure Law ("CPL") §440.10.
See Pet. at 6-16 and attached pages. For the reasons that follow, the petition is denied.*fn2
According to the state court records, Petitioner and a co-conspirator, Joan Chandler, sold cocaine to undercover State Police Investigator David Fendick on December 4 and 18, 2001, and January 11, 2002 in the City of Ithaca, New York. People's Brief at 1 (Dkt. No. 7, Attach. 7); Resp't Mem. at 2.
On December 4, 2001, Fendick met with Investigator Andrew Navarro of the Ithaca Police Department. March 2003 Trial Tr. at 53-55, 114, 151-53 ("Trial Tr.") (Dkt. No. 7, Attach 11 and 12). Navarro showed Fendick a photo array, which included Petitioner's photo, in an effort to identify the person who sold drugs to Fendick on November 20, 2001. Id; see Dkt. No. 7, Exhibit A at R157.*fn3 When Fendick could not identify anyone, Navarro pointed to Petitioner's photo and identified him by name as a basis for future investigations. Id. at R157-58.
Later that day, Fendick met Chandler at a convenience store and told her he wanted to buy crack cocaine. Trial Tr. at 57-58. Chandler told Fendick to meet her at home, where they further discussed buying cocaine. Id. at 58. Chandler and Fendick drove together in Fendick's undercover police vehicle to a laundromat in downtown Ithaca. During the drive, Chandler made a telephone call and told Fendick that she was "calling Vergil" to "get the stuff." Id. at 59. At the laundromat, Fendick watched as Chandler took money from an individual known to Fendick as Dave, driving a blue pickup truck. Chandler then returned to Fendick's car and told him that "Dave wanted to get some too." Id. at 60-61. Fendick gave Chandler $100 to buy the cocaine, and an additional $20 for arranging the purchase. Id. at 66. Chandler paged Petitioner and when he returned her call, she told him she had two customers and needed "a hundred for one and the rest for the other." Id. at 62. Chandler told Fendick to drive to the Fall Creek Theaters. Id.
When they arrived at the theaters, Fendick observed a gray Dodge or Chrysler bearing New York license plate CR482U drive up to meet them. Trial Tr. at 63-64, 155-56. In December 2001, that vehicle was owned by Patricia McBean, Petitioner's mother.*fn4 The driver was a black male with dredlocks to his shoulders, a thin face and build, who was wearing a dark jacket. Fendick recognized Petitioner from the photo that Navarro had shown him, and identified Petitioner as the driver at trial. Id. at 64-65. Although Fendick watched Chandler and Petitioner exchange items, he could not see exactly what was being exchanged. Id. at 65.
Chandler returned to Fendick. She no longer had money but instead had "four pieces of drugs" that consisted of two larger pieces, known in street terminology as "50s" and two smaller pieces that Fendick called "bumpies." Trial Tr. at 67. Chandler gave Fendick the two larger pieces. Id. at 67-68. He drove Chandler back to the laundromat, dropped her off, and left the area. Fendick turned the pieces over to Investigator Navarro. Id. at 69. A police chemist determined that the pieces were cocaine. Id. at 266-97.
On December 18, 2001, Fendick again contacted Chandler to purchase cocaine. He drove to Chandler's apartment and told her he wanted a "hundred." Trial Tr. at 70. Chandler stated that she was "going to make a call to Vergil" and proceeded to make a telephone call. Id. at 71. Chandler then told Fendick that Vergil would meet them at the Fall Creek Theaters. Id. Fendick gave Chandler $100 for the cocaine and an additional $20 for arranging the sale. Id. at 75. When Fendick and Chandler arrived at the theater, Fendick saw the same gray Chrysler with license plate CR482U he had seen at the December 4 drug transaction. The car was parked on a side street. Id. at 72. Fendick was "a hundred percent sure" that it was Petitioner in the car. Id. at 73.
Fendick also saw the person known as Dave near a blue pick up truck in the parking lot. Chandler approached and entered the passenger side of Petitioner's car, and they drove around the block. Trial Tr. at 73-74. Approximately two minutes later, Chandler and Petitioner returned to the theater and Chandler exited the car. She approached Dave and dropped something into Dave's hand. Id. at 74. Chandler then returned to Fendick and gave him two knotted pieces of plastic wrap containing a substance. Id. at 75-76. Fendick turned the substance over to Investigator Navarro, and a police chemist determined that the substance was cocaine. Id. at 76, 165-66, 266-97.
Investigator William Barker, Jr. of the Ithaca Police Department, and Investigator Philip Juran of the Community Narcotics Team, were assigned to conduct surveillance of the December 18 transaction. Trial Tr. at 225, 240. They followed Fendick's car from Chandler's apartment to the theater parking lot. Id. at 225-26. As they approached the lot, Barker saw a gray Chrysler bearing plate number CR482U. The car passed Barker's vehicle, and Barker was "absolutely positive" that the driver was Petitioner. Id. at 233. Barker testified that once the transaction was completed, he attempted to follow Petitioner to obtain an address for a search warrant application. Id. at 236. Barker's car passed the parking lot entrance and Petitioner's car as he was waiting to exit the lot. Barker was again certain that Petitioner was the driver. Id. at 237-38. Petitioner pulled out of the parking lot behind Barker's car, and Barker eventually lost sight of him. Id. at 238-39. Investigator Navarro recorded two identifications of Petitioner by Barker at 12:21 p.m. and 12:26 p.m. Id. at 192, 195, 246-47.
Barker was familiar with Petitioner prior to December 18. He had seen Petitioner "over 75 times" and had been present for between four and five face-to-face conversations with Petitioner. Trial Tr. at 228-29. Barker saw Petitioner on December 12, 2001 when he was conducting surveillance in an unrelated case in the housing projects on Madison Street. Id. at 229. On that date, Barker was located in a second floor apartment area used as a neighborhood police office. Id. He saw Petitioner in the same gray car he was driving in December 12, 2001 traveling on Madison Street, and Petitioner passed directly by Barker within fifty feet. Id. at 229-30. Since Barker believed that Petitioner's license was suspended, he radioed to Officer Debra Lawrence and her partner, Officer Clifford Ducey, to stop Petitioner. Id. at 231-33.
Officer Lawrence stopped the gray Chrysler and asked its occupant for his license, registration and insurance information. Trial Tr. at 233. The documents revealed that the driver was Petitioner. Id. at 254. Lawrence confirmed that Petitioner's license was suspended and issued a ticket. Id. at 255. After Petitioner consented, a canine unit searched his vehicle for drugs with negative results. Id. at 256.
On January 11, 2002, Fendick contacted Chandler for the final narcotics transaction. She instructed him to meet her at the Fall Creek Theaters. Trial Tr. at 76-78. When Fendick arrived, he told Chandler he wanted "to get an eight ball" and asked whether it would cost $200. Id. at 79-80. Chandler told Fendick she had already spoken to Vergil, and that she was supposed to contact him once Fendick was at the theater. Id. Chandler asked Fendick to drive around the block to avoid sitting in the parking lot for any length of time. Id. at 80. Fendick complied, and when he returned, he parked on the street. Chandler made a call from a pay phone, and shortly thereafter Petitioner arrived and parked in front of Fendick. Id. This time, there were two people in the gray Chrysler. Petitioner was in the driver's seat, and an unidentified black male was in the front passenger seat. Id. at 81. Fendick gave Chandler $200 for the cocaine and an additional $20 for arranging the sale. Id. at 83. Chandler got into the back passenger seat of Petitioner's car, and appeared to be speaking to Petitioner. The front passenger faced forward and did not appear to move throughout the time Chandler was in the vehicle. Id. at 81-83. Fendick could see most of Petitioner's face, and he watched as Petitioner's and Chandler's hands were moving in what appeared to be an exchange of items. Id. at 82. Chandler returned to Fendick's car and gave him one knotted piece of plastic wrap containing a substance. Id. at 83-84. Fendick drove Chandler to a nearby bar, and then turned the substance over to Investigator Navarro. Id. at 84-85. A police chemist determined that the substance was cocaine. Id. at 266-97.
On July 24, 2002, a Tompkins County grand jury returned a six-count indictment charging Petitioner with three counts of third degree criminal sale of a controlled substance and three counts of third degree criminal possession of a controlled substance. Dkt. No. 7, Ex. A at R6-7. Chandler was also charged with the sale and possession of a controlled substance and conspiracy. She entered a guilty plea to three counts of third degree criminal sale of a controlled substance and three counts of conspiracy in connection with the transactions charged in Petitioner's indictment. See Dkt. No. 7, Ex. A at R98-99; B at R252, 265, 270-72 (Plea Transcript, Chandler, Sept. 16, 2002). She was not required to cooperate against Petitioner in exchange for the plea, and did not testify at Petitioner's trial. Through counsel, Chandler invoked her Fifth Amendment privilege against self-incrimination, explaining that she feared federal prosecution. Dkt. No. 7, Ex. B, at R198; Trial Tr. at 21-22. She was declared an unavailable witness on that basis without objection from either the prosecutor or defense counsel. Id.
Petitioner's first two jury trials ended with the juries being deadlocked and mistrials declared on November 22, 2002 and January 17, 2003. The third trial began on March 10, 2003. As he had done with the two previous trials, Petitioner testified on his own behalf. Petitioner admitted that in December 2001 and January 2002, he occasionally drove the gray Chrysler with plate number CR482U, that it was owned by his parents, and that he let friends and family drive the car. Trial Tr. at 442-43. Petitioner claimed that he let "a lot of friends with dredlocks" drive the car when they were in Ithaca. Id. at 442-45. He claimed that he did not know who was driving the car on the dates of the drug sales. Id. at 438-39, 465-66. Petitioner had dredlocks during the time frame of the drug sales. Id. at 463.
Petitioner admitted he knew Chandler because they previously lived in the same city building, but denied that he was friends with her or that they socialized. Trial Tr. at 437-39, 463-64. He denied selling cocaine to Chandler on any of the dates in question, and claimed that on all three days he was in Binghamton, New York and not Ithaca. Trial Tr. at 427-29, 445-47, 460-61.
Petitioner called several witnesses on his behalf. Michelle Smith, Petitioner's girlfriend, testified that she lived with Petitioner in her apartment in Binghamton. Trial Tr. at 379-80. Petitioner normally stayed at Smith's apartment Sundays through Wednesdays, and then was traveling to promote his DJ business. Id. at 381-82. She testified that their income varied and that they received financial assistance from others, and were behind on their bills in December 2001 and January 2002. Id. at 382, 401. According to Smith, Petitioner was home on January 11, 2002 because it was his mother's birthday and he did not go to her party, which was held in Ithaca. Although December 4 and 18 were Tuesdays, there was nothing otherwise noteworthy about these dates. Id. at 388-90, 394-97. Smith testified that on December 4 and 18, she and Petitioner were home alone. Id. at 390-91. It was not until several months after the crimes that Smith determined that she was with Petitioner on the dates alleged in the indictment. Id.
Emmanuel McBean, Petitioner's father, testified that Petitioner was not at his mother's party on January 11, 2002, but that he did not know where Petitioner or the gray Chrysler were on that day. Trial Tr. at 319, 334-36. He further testified that other family members had access to the gray Chrysler, and that there were either four or five sets of keys to the car. Id. at 320. He testified that in December 2001, Petitioner purchased the car from him and made payments to him. When Petitioner failed to make the payments, Mr. McBean took the car from him. Id. at 322-23.
Petula McBean, Petitioner's sister, also testified that she did not see Petitioner at their mother's party on January 11, 2002. Trial Tr. at 407-08. Although she testified that the ceiling in the Chrysler sagged to the point where it obstructed the view out the back window, she continued to drive the car, using side mirrors. Id. at 416. Petula McBean testified that her cousins also drove the car, including Rollie, Junior, Sherwin, and Steven, all black males with short hair. Id. at 423-25.
On March 13, 2003, the jury convicted Petitioner on all three counts of criminal sale of a controlled substance. Trial Tr. at 361, 576-78.*fn5
B. State Court Proceedings
On April 14, 2003, McBean's attorney moved to set aside the verdict pursuant to CPL § 330.30(1). Dkt. No. 7, Ex. B, at R220-36. Counsel first argued that the District Attorney's Office failed to disclose that Sherwin McBean, Petitioner's cousin, was arrested by Ithaca police on January 2, 2002 for criminal possession of a controlled substance and driving with a suspended license while driving the gray Chrysler. See Dkt. No. 7, Ex. B at R223-27. When he was arrested, Sherwin McBean was in possession of crack cocaine and told police he sold it to earn extra money. Id. at R224. According to Petitioner's attorney, the prosecutor was obligated to disclose this information because it constituted Rosario*fn6 and Brady*fn7 material. Id at R225-27. Counsel also argued that prosecutor engaged in misconduct during the cross-examination of witnesses and in summation when, despite this information, he argued that no one but McBean could have been driving the gray Chrysler and selling cocaine. Id. at R227-28.
Counsel further argued that the prosecutor committed a Brady violation because he failed to disclose a statement by Chandler that she had no memory of "Virgil McBean being in a gray car during January 2002 or December 2001 during any drug transactions" or that he gave her any drugs on "the dates stated." Dkt. No. 7, Ex. B at R228-29, 244. Counsel also argued that this statement by Chandler constituted new evidence. Id. at R229-30.
Counsel also asserted that there was additional newly discovered evidence that impacted upon the verdict, including a statement by Heather McEver that provided an additional alibi for Petitioner and a statement by Balinda McCoy that incriminated her and provided exculpatory evidence for Petitioner. Dkt. No. 7, Ex. B at R230-33. Finally counsel asserted that the trial court should have given a missing witness jury instruction for Chandler, and that the trial court erred when it admitted Chandler's hearsay statements at trial. Id. at R233-34.
On April 17, 2003, counsel submitted an additional ground in support of his motion to set aside the verdict. Counsel argued that Investigator Navarro gave false and misleading testimony that the police department did not have the means to gather photographs or video of the undercover drug transactions. According to counsel, Navarro took photographs in an unrelated case in February 2003. Id. at R277-78.
The District Attorney opposed the motion on May 1, 2003. Dkt. No. 7, Ex. B at R339-47. On May 5, 2003, the trial court stated that it reviewed Petitioner's motion and the response by the People, but that it did "not find a sufficient basis to set aside this verdict in the application before this Court[.]" and denied the motion. Sentencing Tr., 5/5/03, at 2. Petitioner was sentenced to three concurrent indeterminate terms having a minimum of two years and a maximum of six years in prison. Id. at 10.
Petitioner filed a Notice of Appeal on May 7, 2003. See Dkt. No. 7, Ex. F, Appellate Brief, at Appendix ("A") 1. Before his appeal was perfected, Petitioner filed a motion to vacate his conviction pursuant to CPL § 440.10 on December 16, 2004. Dkt. No. 7, Ex. B at R368-416; Ex. C at R416-650; Ex. D at R651-899. In the motion, counsel raised the same grounds he raised in his section 330.30 motion. Id. The prosecutor opposed the motion in an affidavit dated February 15, 2005. Dkt. No. 7, Ex. E, at R901-16.
In a Memorandum Decision and Order dated February 15, 2005, the trial court denied the section 440 motion. Dkt. No. 7, Ex. E, at R917-18. The court read Petitioner's motion to raise the following grounds: (1) the prosecutor's late production of a January 2, 2002 police report constituted Rosario and Brady violations; (2) Chandler's statement was improperly received into evidence; and (3) Chandler's statement, and statements made by others, constituted newly discovered evidence. Id. at R917. The court concluded that there was no "reasonable possibility that the failure to provide earlier disclosure of the January 2nd police report materially contributed to the result of the trial," citing CPL § 240.75. Id. at R918. The court further found that the statements and affidavits Petitioner produced did not constitute evidence that "could not have been produced by the defendant at the trial even with due diligence on his part" and that the statements did not constitute newly discovered evidence within the meaning of section 440.10(1)(g). Id. Finally, the court found that Chandler's statement, admitted at trial, was not the type of " 'testimonial' " hearsay that has been rendered inadmissible under the ruling in Crawford v. Washington." The court denied the section 440 motion in its entirety without granting an evidentiary hearing. Id.
Petitioner, through his counsel, sought permission to appeal the denial of his section 440 motion in the Appellate Division, Third Department. Dkt. No. 7, Ex. E, at R920-27. He also sought to have that appeal consolidated with his direct appeal. Id. The prosecutor took no position regarding Petitioner's requests. Id. at R928. In an Order dated August 4, 2005, the Appellate Division granted ...