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Leonard Gonzalez v. William Lape

June 1, 2011

LEONARD GONZALEZ, PETITIONER,
v.
WILLIAM LAPE, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner Leonard Gonzalez ("Petitioner"), through counsel, 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 January 28, 2008, in New York State, County Court, Erie County (Shirley Troutman, J.), convicting him, after a jury trial, of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law ("Penal Law") § 220.09[1]). Petitioner was sentenced to a determinate term of imprisonment of nine years, followed by three years of post release supervision.

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

II. Factual Background and Procedural History

On December 8, 2006, at approximately 6:40 p.m., Buffalo Police Department narcotics detectives arrived at 14 French Street in the City of Buffalo to execute a search warrant, which was obtained after Detective Niemann and his partner had surveilled the house at that address for fourteen to twenty days. During that period, Detective Niemann had seen Petitioner seated in a vehicle in front of the house at least five or six times and had twice seen Petitioner enter the house. Trial Trans. [T.T.] 101-104.

The detectives and other police officers arrived on the day in question and found Petitioner sitting in a car in front of 14 French Street. Detective Niemann pulled next to Petitioner's vehicle and blocked the driver's side door to prevent him from getting out. While Officer Lopez monitored the house to make sure no one escaped, an entry team broke down the front door. Detective Niemann entered the house first to make sure it was clear, and found the house vacant. The other officers then searched the home. T.T. 108-110.

As the narcotics officers searched inside the house, Officers McCarthy and Colon detained Petitioner outside. They removed him from the car, handcuffed him, and searched him. They found a set of keys and four hundred ninety dollars in cash on his person. T.T. 173-178, 224.

Detective Redmond went into a downstairs room and found a plate and a razor. Detective Mulhern found small pieces of suspected crack cocaine on the base of a cabinet located in the first room on the right. Detectives Redmond and Mulhern notified Lieutenant Lyon, who was designated as the evidence control officer, of their respective discoveries. T.T. 162, 188, 243-247.

Officer Lopez, who had secured the perimeter, entered the house approximately five minutes after the narcotics team had started searching. Officer Lopez found fourteen plastic bags containing white rocks, and notified members of the narcotics team. T.T. 235, 240.

After the house was cleared and the warrant executed, Officer McCarthy brought Petitioner inside the house and obtained pedigree information from him, during which time Petitioner indicated that he resided at 37 French Street. T.T. 116, 174-177.

Lieutenant Lyon placed the evidence into bags and submitted them to the Central Police Services Lab for testing. Daniel Murtha, Ph.D., a forensic chemist, testified that the combined weight of the materials containing suspected controlled substances was 3.87 grams. The fourteen bags had a total weight of 3.05 grams, and the loose rocks had a total weight of 0.82 grams. A portion of each sample -- the fourteen packages and the loose rocks -- was tested for and determined to contain cocaine. T.T. 191-206, 270, 275-277. On cross-examination, Dr. Murtha testified that the sample pertaining to the loose rocks found in the cabinet also contained "stones," which, according to him, "aren't normally contained in crack cocaine." T.T. 280-281.

Under Indictment No. 00139-2007, Petitioner was charged with Criminal Possession of a Controlled Substance in the Fourth Degree. See Indict. No. 00139-2007 at Resp't Ex A. After a jury trial, he was found guilty as charged and sentenced as a second felony offender to a determinate term of imprisonment of nine years, followed by a three year period of post release supervision. Sentencing Mins. [S.M.] 4, 8.

The Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment of conviction on December 31, 2008, and leave to appeal was denied. Peoplev. Gonzalez, 57 A.D.3d 1477 (4th Dep't 2008); lv. denied, ...


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