Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marcial v. Ercole

August 19, 2010

JOSE MARCIAL, PETITIONER,
v.
ROBERT ERCOLE, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Jose Marcial ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 15, 2003, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, in absentia, of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law ("Penal Law") § 220.21 [1]), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [1]), and Criminally Using Drug Paraphernalia (Penal Law § 220.50 [2]).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

As a result of an extensive, ongoing investigation into a drug distribution ring in the City of Rochester, New York, Petitioner was charged under two indictments with several drug offenses.

Under the first indictment, Petitioner was charged jointly with Lourdes Marcial, Petitioner's niece, with criminal possession of a controlled substance in the third degree based on possession of heroin at 1283 Clifford Avenue. Those drugs were discovered on December 13, 2002 when the police executed a search warrant at a store owned by Lourdes and her husband Enrique Marcial. At the time the warrant was executed, Petitioner was at the store. Petitioner was searched and a quantity of heroin and money was found on his person. Drugs and currency were also found at various locations throughout the store. Trial Tr. [T.T.] 112-126.

Under the second indictment, Petitioner was charged jointly with Lourdes Marcial with criminal possession of a controlled substance in the first and third degrees and two counts of criminally using drug paraphernalia at 1025 Portland Avenue, a detached garage located next to 1013 Portland Avenue, the residence of Lourdes and Enrique Marcial. The drugs and associated paraphernalia were found by police, acting pursuant to a search warrant, on December 13, 2002. At this location, police also found documentation tying the location to Petitioner. T.T. 135-186.

Extensive pre-trial proceedings were conducted, including, but not limited to, a hearing to consider the People's motion to consolidate the indictments for trial. Over objection by the defense, the trial court granted the People's motion. Hr'g Mins. [H.M.] of 04/16/03, 2-7.

On May 16, 2003, a trial was held in absentia.*fn1 Petitioner was found guilty as charged. He was subsequently sentenced to twenty years to life on the criminal possession of a controlled substance in the first degree charge, five to fifteen years on each count of criminal possession of a controlled substance in the third degree, and one year imprisonment on the criminal use of drug paraphernalia in the second degree charge. All sentences were set to run concurrent, except for one sentence for criminal possession of a controlled substance in the third degree, which was ordered to run consecutive to the other sentences. Sentencing Mins. [S.M.] of 07/15/03, 3-4. After Petitioner was apprehended pursuant to the bench warrant, he was resentenced by Judge Stephen R. Sirkin on February 17, 2004. S.M. of 02/17/04, 3.

Petitioner's judgment of conviction was unanimously affirmed by the Appellate Division, Fourth Department on June 8, 2007.

People v. Marcial, 41 A.D.3d 1308 (4th Dept. 2007); lv. denied, 9 N.Y.3d 878 (2007).

No collateral motions were filed.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) ineffective assistance of trial counsel; and (2) harsh and excessive sentence. Pet. ΒΆ12, Grounds One-Two (Dkt. #1); Pet'r Traverse and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.