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.

Boris Kolon v. S. Khalaifa

November 18, 2011

BORIS KOLON,
PETITIONER
v.
S. KHALAIFA, SUPERINTENDENT,
RESPONDENT.



OPINION

In this action, petitioner Boris Kolon seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his state court conviction for criminal possession of a controlled substance. Kolon claims that his conviction was obtained as a result of an unlawful arrest, that his sentence was harsh and excessive, and that he was denied effective assistance of counsel.

The petition is denied.

BACKGROUND

This account of the facts underlying Kolon's conviction is taken from his § 2254 petition and the State's response to his petition.

Facts

On June 8, 2004, at approximately 7:55 p.m., Officer Pedro Roche of the New York City Police Department saw two men drinking alcohol on Broadway in Manhattan between West 157th and 158th Streets. When Roche went to investigate, he saw Kolon walking toward him carrying a paper bag. Kolon then dropped the bag on the ground before walking into a nearby store. Roche picked up the bag, which contained two bottles of prescription medication. Both bottles were labeled "oxycontin," a narcotic drug, and contained a total of 331 pills. Roche subsequently entered the store and approached Kolon who denied ownership of the bag. Roche then arrested Kolon who had no additional pills on his person.

After Kolon's arrest, a police chemist tested eight of the 331 pills and on June 28, 2004, Kolon was charged with criminal possession of a controlled substance in the fourth degree. Shortly thereafter, the State offered Kolon a plea deal wherein he would serve a term of two to four years. After plea negotiations failed, the prosecutor arranged for the policy laboratory to test 196 of the remaining pills, and based on the results of these additional tests, on October 20, 2004, Kolon was charged with criminal possession of a controlled substance in the first degree.

Procedural History

Shortly after Kolon's June 28, 2004 indictment for criminal possession of a controlled substance in the fourth degree, he moved through Legal Aid counsel in Supreme Court, New York County to suppress physical evidence on the basis that his arrest was unlawful. Later, Kolon retained Matthew Myers as counsel, and Myers filed a separate affirmation in support of suppression. On September 22, 2004, the court denied this suppression motion without granting a Mapp/Dunaway hearing, which would have addressed the admissibility of evidence obtained as a result of a search and seizure, on the ground that Kolon's motion papers were "insufficient."

After the prosecutor filed a second indictment charging Kolon with first-degree possession on October 20, 2004, Myers submitted additional suppression papers. On November 3, 2004, the court again denied the suppression motion, stating that Kolon's allegations were "deliberately vague."

Subsequently, Myers submitted an application to the court to be relieved as counsel, and Kolon filed a pro se motion for appointment of new counsel. Myers presented numerous arguments for why he should be relieved, including that Kolon's wife was in the process of calling the bar association about Myers' representation, that communication between Myers and Kolon had broken down, and that Kolon had stated to Myers that he would recant statements previously made in an affidavit. On November 4, 2004, Justice Scherer denied both motions, noting that if Kolon was dissatisfied with Myers, whom he had hired privately, he could retain another lawyer.

On November 9, 2004, the scheduled date of Kolon's trial, Kolon appeared with Myers before Justice Scherer. Myers again argued that he should be relieved, stating that Kolon had been "less than truthful" with him. Myers also said that he "can't even put him [sic] the witness stand any more, and our communication has broken off to where the man just walks out of counsel visits and says, 'I want a new lawyer.'" Justice Scherer, however, responded that Myers had informed the court that his last visit with Kolon had lasted over an hour, thus suggesting that he and his client were still able to communicate. As a result, the court again declined to relieve Myers as counsel and sent the case to Justice Hayes for trial.

Later that day, Kolon appeared with Myers before Justice Hayes. During these proceedings, Myers renewed his motion to be relieved. Myers argued that he should be relieved, because if Kolon were placed on the witness stand, he might make statements that are "the opposite" of statements made previously. In addition, Myers argued that Kolon's wife claimed that she had filed a complaint against him with the bar association. Justice Hayes noted that Myers was fighting for his client "in a smart way," and that Kolon was fortunate to have a lawyer with 15 years of experience who took the time to travel to Riker's Island to meet with him on more than one occasion. Ultimately, Justice Hayes declined to rule on Myers' motion and transferred the case back to Justice Scherer, who in turn transferred the case to Justice McLaughlin.

Appearing before Justice McLaughlin later that day, Myers again renewed his motion to be relieved, reiterating the arguments presented before Justices Scherer and Hayes. Justice McLaughlin denied the motion. In addition, Justice McLaughlin raised the option that Kolon could waive his right to a jury trial, because that would enable him to consider lesser included charges. Myers also continued making efforts to negotiate a plea agreement for Kolon, including calling the prosecutor's supervisor to schedule a meeting that evening to discuss "the unique circumstances of the case." In light of that meeting, the court adjourned the trial until the next day.

On November 10, 2004, Myers informed the court that the prosecutor had refused to lower his plea offer of six years to life. Thereafter, Kolon waived his right to a jury trial and proceeded to trial before Justice McLaughlin, who found Kolon guilty of possession of a controlled substance in the third degree. On January 7, 2005, the court ...


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.