The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of judgment, with respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #11.
Petitioner, proceeding pro se, challenges his conviction following a jury trial before the Hon. Mario J. Rossetti, J.S.C., on the charge of criminal possession of a controlled substance in the second degree in violation of section 220.18(1)*fn1 of New York's Penal Law on the grounds that he was denied a speedy trial pursuant to section 30.30*fn2 of New York's Criminal Procedure Law and the United States Constitution and that the evidence was insufficient to support his conviction. Dkt. #1. For the following reasons, the petition is denied.
An accusatory instrument was filed in Buffalo City Court against petitioner and his girlfriend, Kelly Nati, on June 1, 1999, following the execution of a search warrant and discovery of 4.57 ounces of powder containing cocaine, a scale and $3,677.00 at 72 East Depew Street in the City of Buffalo. Petitioner was arrested on June 10, 1999 and arraigned on June 11, 1999.
On November 19, 1999, the district attorney and counsel for petitioner appeared before the Hon. Sheila DiTullio, Erie County Court Judge, for a bail application. Petitioner was not present. Judge DiTullio released petitioner on $5,000 bail and counsel for petitioner stated, "I would have no objection or hesitancy in waiving the speedy trial time clock for ninety days from today."
Petitioner was indicted on one count of criminal possession of a controlled substance in the second degree on December 30, 1999. At petitioner's arraignment on January 7, 2000, the People declared their readiness for trial.
Counsel for petitioner moved to dismiss the indictment pursuant to section 30.30(1) of New York's Criminal Procedure Law, alleging that the People's statutory period of 184 days to announce readiness expired on December 2, 1999. The People responded that counsel for defendant waived 90 days of additional time with respect to the speedy trial statute on November 19, 1999, noting that counsel can waive time pursuant to the speedy trial statute in the absence of his client and that the People delayed presentation of the case to the grand jury at the request of petitioner's counsel so that the parties could negotiate a possible plea, but that petitioner reneged upon his promise of cooperation. By Decision and Order entered July 25, 2000, Justice Rosetti determined that counsel's waiver of 90 days under the speedy trial statute was valid and that the People's declaration of readiness was timely.
Trial commenced on July 31, 2000. The testimony at trial established that petitioner arrived at Brian Watkins home at approximately 5:00 p.m. on June 1, 1999, and Mr. Watkins gave petitioner approximately five ounces of cocaine on credit with the expectation that petitioner would pay Mr. Watkins "as soon as he moved it." T.*fn3 44, 124 & 137-138. Mr. Watkins testified that he had known petitioner since 1996 and knew that he lived at 72 East Depew Street in the City of Buffalo with his girlfriend, Kelly Nati. T. 119. Mr. Watkins' girlfriend, Liza Constantino, also testified that petitioner lived at 72 East Depew Street with his girlfriend, Kelly Nati. T. 41 & 56.
At approximately 7:00 p.m. on June 1, 1999, Buffalo Police executed a search warrant at 72 East Depew Street and discovered a box containing 4.57 ounces of powder containing cocaine, a scale and $3,677.00 underneath the night stand in the bedroom. T. 57-58, 60-61, 65, 88 & 92. Petitioner was not present at the time of the search but police officers observed mail addressed to petitioner at 72 East Depew, as well as mail addressed to petitioner's girlfriend as both Kelly Nati and Kelly Jenkins at 72 East Depew. T. 63, 68-69. Police officers also observed men and women's clothing in the bedroom closet. T. 59 & 103. Kelly Nati was present during the search.
Petitioner spoke to Mr. Watkins and Ms. Constantino after the search and informed them that he was making a delivery when the police arrived. T. 43 & 122. When petitioner was arrested on June 10, 1999, he provided police with an address of 72 East Depew Street. T. 69-70 & 73. Although not identified to the jury as such, petitioner's parole officer also testified that petitioner resided at 72 East Depew Street with his girlfriend, Kelly Nati. T. 157-158.
On September 29, 2000, petitioner was sentenced as a second felony offender to a minimum term of imprisonment of ten years and a maximum term of life imprisonment.
On appeal, petitioner argued, inter alia, that the trial court erred in failing to grant petitioner's motion to dismiss the indictment pursuant to section 30.30 of New York's Criminal Procedure Law and that the conviction was against the weight of the evidence. The New York ...