The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.
Petitioner Harold Chestnut ("Chestnut" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, Chestnut's petition is DENIED.
Petitioner was convicted by a jury in the County Court of Nassau County, on June 22, 2004, of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39 ) and Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.26 ) and sentenced as a second felony offender to two intermediate terms of six to twelve years imprisonment to be served concurrently.
Petitioner appealed his conviction to the Appellate Division, Second Department. On appeal, Petitioner claimed that
(1) his right to be present was violated when he was absent for a conference between the court and a prosecution witness, (2) the verdict was repugnant, (3) the court erred by failing to charge the jury that a witness was his accomplice as a matter of law and that the witness's testimony was not sufficiently corroborated, and (4) he received ineffective assistance of counsel due to counsel's failure to request a pre-trial hearing to suppress physical evidence and challenge the legality of Petitioner's arrest.
On December 5, 2005, the Appellate Division confirmed the conviction. The court found that Petitioner was not deprived of his right to be present at trial by his exclusion from an informal conference with respect to the waiver of a witness's right against self-incrimination. The Appellate Division also found that the verdict was not repugnant because the count for which Petitioner was acquitted (N.Y. Penal Law § 220.06 ) contained an element not present in the two counts for which Petitioner was convicted (N.Y. Penal Law §§ 220.16 , 220.39 ). People v. Chestnut, 24 A.D.3d 463, 464, 806 N.Y.S.2d 224, 225 (2d Dep't 2005). It further determined that while the County Court of Nassau County should have charged the jury that the witness to whom Petitioner sold cocaine was an accomplice as a matter of law, the error was harmless because the evidence of the Petitioner's guilt was overwhelming and there was no reasonable probability that the error affected the verdict. Id. Finally, the court noted that Petitioner's last claim was meritless. Id.
On April 12, 2006, Petitioner's request for leave to appeal to the New York Court of Appeals on the same grounds as those raised in the Appellate Division was denied. People v. Chestnut, 6 N.Y.3d 846, 849 N.E.2d 975, 816 N.Y.S.2d 752 (2006).
His state remedies thus exhausted, Petitioner now seeks a federal writ of habeas corpus from this Court based on four grounds. First, Petitioner claims that he was denied the right to be present at "a material stage of the court proceedings" against him, namely an informal conference in which the court made an inquiry to determine whether a prosecution witness understood his rights before giving testimony that incriminated himself. Additionally, Petitioner claims that his conviction should have been set aside because it was repugnant. Finally, Petitioner claims that the County Court of Nassau County improperly failed to charge the jury that one witness was his accomplice as a matter of law, and that the accomplice's testimony at trial was not sufficiently corroborated.
On May 23, 2003, shortly before 4:40 p.m., Phillip Pinckney ("Pinckney") went inside a 7-Eleven store in Long Beach. Pinckney placed a telephone call to Petitioner via a pay phone at 7-Eleven and asked, "could I get that now[?]" (Pinckney: T. 287).*fn1
When Pinckney asked for "that" he was referring to crack-cocaine. (Pinckney: T. 288). Petitioner told Pinckney to buy him a Sprite soda, and the two men arranged to meet at the Leroy Conyers Park Playground in Long Beach, Nassau County, New York. (Pinckney: T. 287).
On that same day, Long Beach Police Department Detective James Canner ("Canner") and his partner Detective Orlando Garcia ("Garcia") were sitting in an unmarked police car on a street running adjacent to Leroy Conners Playground. The detectives were conducting surveillance on an unrelated matter. Canner soon noticed Petitioner standing by himself in the middle of the playground. Petitioner was not speaking to anyone and was waiting on and around a bench in the middle of the playground. (Canner: T. 191-94, 226, 229-33; Garcia: T. 360-62, 366).
Canner subsequently saw Pinckney approach Petitioner and observed the two men looking around the park. Pinckney handed Petitioner a Sprite soda, which Petitioner placed on a nearby table. Petitioner reached into his right front pants pocket and pulled out several small items, which he then placed into Pinckney's outstretched left hand. Pinckney looked at the bags, clenched his fist, and put his hand into his left front pants pocket. The two men then exited the park and walked away in separate directions. (Canner: T. 194-95, 211-13, 235-39, 280-84; Pinckney: T. 289-90, 306-08; Garcia: T. 362-63).
Canner had been a member of the Narcotics Task Force for six years, received extensive training in the field of controlled substance enforcement and identification, and attended the Drug Enforcement Administration ("DEA") drug school. (Canner: T. 190-91, 260-61). He immediately suspected that a drug transaction had taken place. (Canner: T. 194). Canner quickly contacted two fellow detectives, Detective-Sergeant Howard Domitz ("Domitz") and Detective William Roche ("Roche"), who were working on the opposite side of the park, and told them what he had just observed. Canner described what Pinckney and Petitioner looked like. Canner, Domitz, Roche, and Garcia then watched Pinckney and Petitioner as they walked out of the park in different directions. Canner and Garcia exited their car and followed Petitioner, but before he could be stopped, Petitioner slipped into a nearby house. Canner ...