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McCants v. Hallenback

United States District Court, E.D. New York

September 16, 2014


Petitioner proceeds pro se.

Respondent is represented by Kathleen Rice, Nassau County District Attorney, by Tammy J. Smiely, Robert A. Schwartz, and Barbara Kornblau, Assistant District Attorneys, Mineola, NY.


JOSEPH F. BIANCO, District Judge.

Germaine McCants ("McCants" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 24, 2007 conviction in the Supreme Court of the State of New York, County of Nassau, on charges of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39(a), criminal possession of a controlled substance in the third degree, id. § 220.16(1), criminal possession of a controlled substance in the fourth degree, id. § 220.09(1), and criminal possession of a controlled substance in the seventh degree, id. § 220.03.[1] Petitioner, a prior felony offender, was sentenced to concurrent terms of incarceration-the longest being twelve years-and three years of post-release supervision. In the instant petition, McCants challenges his conviction on the following grounds: (1) the conviction resulted from the prosecution's knowing use of perjured testimony by Detective Jayson Pinsky; and (2) the prosecution suppressed several material impeachment documents in violation of Brady. For the reasons set forth below, the Court determines that the petition for habeas corpus is without merit. Accordingly, the Court denies the petition in its entirety.


A. Facts

The following facts were adduced from the petition and documents attached thereto, and the state court trial and appellate record.

1. The Evidence at Trial

On March 8, 2006, Nassau County Police Department ("NCPD") officers arrested petitioner after witnessing him selling two bags of what appeared to be cocaine in a parking lot off Hempstead Avenue in West Hempstead, New York. (T. Tr.[2] 461, 468-69, 492-93, 706.) The officers found additional bags on the console of McCants's car. (T. Tr. 475.) In addition, a search incident to arrest revealed a small plastic bag containing eleven smaller bags, each with a white, rock-like substance, tied to the buttonhole of petitioner's boxer shorts. (T. Tr. 718, 720.) Petitioner also had $1, 635 in his pants pocket. (T. Tr. 707-08, 715.) After being advised of and waiving his Miranda rights, petitioner provided a written statement to police, admitting to selling cocaine. (T. Tr. 1024, 1026.) Immediately after the sale, officers also arrested Leon McCoy ("McCoy"), who purchased the bags containing the substance from petitioner. (T. Tr. 468, 471.) Petitioner was charged under Nassau County Indictment No. 614N-06 and pleaded not guilty. Following a pre-trial suppression hearing, the trial court ruled that the police had probable cause to arrest petitioner and that the police acted lawfully when they recovered the plastic bags on the console of petitioner's car. (Resp. Br. at 2.) The court also ruled that the search of petitioner was proper, and that petitioner's oral and written statements, as well as the seized cocaine, were admissible at trial. ( Id. at 2-3.) Petitioner does not challenge the correctness of those rulings.

At trial, the prosecution presented the testimony of four police officers who observed the drug transaction and/or were involved in the arrests of McCants and McCoy; the case detective who processed the evidence and to whom McCants made his written statement; McCoy; and NCPD Detective Jayson Pinsky ("Detective Pinsky"), who analyzed the substance retrieved by the police. McCants presented the testimony of Dolin Duffy, a real estate appraiser married to defense counsel. The instant petition primarily concerns Detective Pinsky's testimony.

As of the date of his testimony, September 25, 2006, Detective Pinsky had been assigned to the NCPD Forensic Evidence Bureau for nine years and was responsible for identifying controlled substances and marijuana. (T. Tr. 1142.) He has a Bachelor of Science in Chemistry and had received specialized training, including two-week training courses with the Federal Bureau of Investigation and the Drug Enforcement Administration, and a course with Hewlett Packard Corporation regarding the use and identification of substances using high performance liquid chromatography. (T. Tr. 1142-43.) Detective Pinsky had analyzed cocaine or crack cocaine "tens of thousands" of times and previously testified approximately twenty-five times. (T. Tr. 1143.) Over the objection of defense counsel, Detective Pinsky was admitted as "an expert in the testing and analysation [sic] of cocaine and crack-cocaine." (T. Tr. 1144.)

On or about March 14, 2006, Detective Pinsky received heat-sealed, clear plastic evidence bags containing eleven bags of substance (off-white, and chunky or powdery) from Detective-Sergeant Robert Nemeth. (T. Tr. 1145-46.) After confirming that the heat seals were intact and that the bags did not appear tampered with, Detective Pinsky opened the bags and attempted to ascertain the weight of the substances therein to determine how much would be necessary to make a particular charge, because different classifications of misdemeanors and felonies have a certain weight associated with them. (T. Tr. 1147, 1150.) Detective Pinsky first weighed all eleven bags and found that the total weight of the contents exceed one-eighth of an ounce, but was less than one-half of an ounce. This precluded any half-ounce charge, but ensured that he "just needed to get above an eighth of an ounce total aggregate weight" to bring the one-eighth ounce charge.[3] ( Id. ) Detective Pinsky then tested the substances in four randomly selected bags retrieved from petitioner; their weight came out to 4.073 grams total, which is equivalent to 0.143 ounces (while oneeighth of an ounce is 0.125 ounces). ( Id. ) Detective Pinsky then conducted a three-part analysis on the four bags, including: (1) a color test (to look for a specific family of substance) on all four bags; (2) a thin layer chromatography test (hereinafter "TLC") on all four bags; and (3) molecular confirmation testing using gas chromatograph mass spectrometry (hereinafter "GC/MS") on one bag. (T. Tr. 1148-49.) Those tests resulted in a finding of cocaine. (T. Tr. 1149-50.) He did not analyze the other three bags, and he did not know the chemical composition of the substances therein. (T. Tr. 1258-59.)

Detective Pinsky performed the color test by placing a portion of the questioned sample into a test tube and adding a reagent to it. (T. Tr. 1205.) A reagent is a liquid substance added to another substance that produces a chemical reaction, which itself produces a color change that would indicate (in this case) whether the questioned sample is consistent with cocaine. (T. Tr. 1205-06.) The color test indicated that the substance petitioner possessed was cocaine. ( Id. ) TLC is a comparative test in which the sample being tested is compared with a certified known sample of cocaine. (T. Tr. 1148.) Both samples are placed on a coated glass plate and in a solution of ethyl acetate, and are allowed to move up the plate for a period of time. (T. Tr. 1148-49.) The known and questioned sample are then sprayed with reagents and viewed to compare their color and positions on the plate. ( See T. Tr. 1148-49, 1208-13, 1219.) The rate of movement depends upon the solubility of the substance, which in turn depends on the polarity of the compound.[4] (T. Tr. 1210.) In this case, Detective Pinsky verified that the known sample was cocaine, and he then compared it with the sample in evidence to determine that the substance McCants possessed was cocaine. ( See T. Tr. 1176, 1178, 1222-23.) Finally, Detective Pinsky conducted a GC/MS test of one of the substances attributed to petitioner to determine the molecular composition of the questioned substance.[5] Detective Pinsky first testified as to the maintenance of the GC/MS unit used in this case ( see T. Tr. 1181, 1216-18, 1245-47), and he then established the reliability of the GC/MS instrument by: (1) running the control sample to ensure the instrument was calibrated; (2) running a check sample (an internal sample of certified cocaine standard) through the instrument; (3) running the questioned substance through the instrument; and (4) running the control sample again. ( See T. Tr. 1255.)

With respect to the two bags sold to McCoy, which weighed between five hundred milligrams and one-eighth of an ounce, Detective Pinsky testified that he performed the same three-part analysis. (T. Tr. 1159-60.) He also performed additional testing because "if a substance falls between 500 milligrams and an eighth of an ounce, under the law, we have to determine pure substance." (T. Tr. 1160.) Thus, because he found that the bags contained a certain amount of cocaine, he then used high performance liquid chromatography testing, with and without ultraviolet, to determine the pure substance of the item in question. ( Id. ) Detective Pinsky determined the starting weight to be 1.97 grams, and that converting it to pure substance equaled 1, 168 milligrams of pure cocaine. ( Id. )

2. Direct Appeals

Assisted by counsel, petitioner appealed his conviction to the New York Supreme Court, Appellate Division, Second Department. The court affirmed the conviction on November 10, 2009. People v. McCants, 888 N.Y.S.2d 200 (N.Y.App.Div. 2009). Counsel then applied for leave to appeal to the New York Court of Appeals on December 4, 2009. The application was denied on January 15, 2010. People v. McCants, 13 N.Y.3d 940 (2010). Counsel sought reconsideration on May 11, 2010, which the Court of Appeals ...

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