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Lee Roy Waterman v. Superintendent

February 24, 2011

LEE ROY WATERMAN, PETITIONER,
v.
SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY 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 Lee Roy Waterman ("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 December 20, 2005, in New York State, County Court, Wayne County, convicting him, after a jury trial, of two counts of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law ("Penal Law") § 220.39[1]) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]).

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

II. Factual Background and Procedural History

A. Introduction

On February 25-26, 2005 (over the midnight hour) and March 30, 2005, Marlin Richardson ("Richardson"), a confidential informant, made two "controlled buys" of crack cocaine from Petitioner, whom he had known for about ten years. Police electronically monitored the transactions.

On or about July 14, 2005, a Wayne County grand jury charged Petitioner with two counts of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) (one count each for the February 25-26th and March 30th transactions), and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]) (one count each for the February 25-26th and March 30th transactions).

On December 13, 2005, Petitioner proceeded to trial before the Hon. Dennis M. Kehoe and a jury.

B. The Trial

1. The People's Case

Deputy Sheriff Jonathan Hall and his supervisor, Sergeant Robert Milby, both of the Wayne County Sheriff's Office, worked with Richardson during 2004 and 2005. Trial Trans. [T.T.] 250-54, 324, 384-85. In 2004 and 2005, Richardson had assisted the Sheriff's Office in performing about thirty controlled drug transactions. T.T. 255, 360.

The officers decided that Richardson should attempt to purchase drugs from Petitioner, whom Richardson had known for about ten years. T.T. 321. Close to midnight on February 25, 2005, Richardson met with Deputy Hall and Sergeant Milby at the Sheriff's Office. T.T. 257, 323, 385. Deputy Hall had Richardson remove the contents of his pockets so that he would carry only the $40 worth of pre-recorded "buy" money that Sergeant Milby gave him for the transaction. T.T. 258, 324, 385. Deputy Hall checked Richardson's shoes, socks, and clothing hems for contraband. T.T. 258, 325, 386. With these devices, Deputy Hall and Sergeant Milby could hear any conversation that Richardson had. T.T. 259, 387.

Deputy Hall drove Richardson to 58 Water Street in Lyons, New York. Richardson knew that Petitioner would be in apartment 2 in that building. T.T. 327, 385. Deputy Hall parked his car in a spot which afforded an unobstructed view of the front door of the residence. T.T. 266, 388, 405. Sergeant Milby, in a separate car, parked on Water Street in an area that provided a view of the front door of Petitioner's residence. T.T. 266-67.

As Sergeant Milby and Deputy Hall watched, Richardson entered 58 Water Street. T.T. 267, 327. Petitioner answered the door, and Richardson asked him for a "forty." T.T. 329-30. Petitioner entered a back room and returned with two pieces of crack cocaine. T.T. 330. Richardson paid him the $40 that Sergeant Milby had previously given him. T.T. 330. Helen Marcano ("Marcano"), Petitioner's girlfriend, and Marcano's brother, Paul Sturgelli, were also in the apartment. T.T. 337, 364, 406.

After the five-minute transaction, Richardson returned to Deputy Hall's car and gave him the two unpackaged rocks of crack cocaine. They all returned to the Sheriff's Office, and Deputy Hall searched Richardson. T.T. 268, 337, 366, 389, 405.

On March 30, 2005, at about 9:00 p.m., Richardson met with Deputy Hall and Sergeant Milby at the Sheriff's Office again to outfit Richardson for another transaction with Petitioner. T.T. 270, 337-38, 383. As before, Richardson was searched and a transmitter/receiver and microphone were affixed to his body. T.T. 270. Sergeant Milby gave Richardson $50 in pre-recorded "buy" money. T.T. 270, 290, 338, 366, 383.

Deputy Hall drove Richardson to 58 Water Street and parked close by, and Sergeant Milby parked in the vicinity as well. T.T. 270-71, 339. The transaction, which the officers could hear over their receivers, took over one-half hour. T.T. 271, 394.

Regarding that transaction, Richardson testified that Petitioner again answered the door and Richardson asked for $50 worth of crack cocaine. T.T. 339. Petitioner told him that he did not have it and he had to go and get it. T.T. 339. Petitioner asked to use Richardson's cell phone, but Richardson said no; Petitioner did not want to use his ...


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