United States District Court, S.D. New York
WANDER ESPINAL Pro Se Green Haven Correctional Facility Stormville, NY.
Paul B. Lyons, Esq., ERIC T. SCHNEIDERMAN, Attorney General, of the State of New York New York, NY., Attorney for Respondent.
ROBERT W. SWEET, District Judge.
Petitioner, Wander Espinal ("Espinal" or the "Petitioner"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he alleges that he is in state custody in violation of his federal constitutional rights. Based upon the conclusions set forth below, the petition is denied.
From August 2007 to February 2008, Petitioner, Rafael Alvarez ("Alvarez"), Danny Joel Rodriguez ("Rodriguez"), and Carlos Hilario ("Hilario") were all members of a large-scale cocaine-trafficking organization that operated out of Manhattan and the Bronx. Alvarez, the leader, ran the drug business, with Petitioner serving as his right-hand man. Rodriguez was in charge of procuring the cocaine. Hilario oversaw the receipt and distribution of the drugs. In addition to possessing and distributing several kilograms of cocaine during that six-month period, the organization also solicited and directed at least four homicides and one attempted homicide in furtherance of the drug business.
Between January 24, 2008, and February 8, 2008, Petitioner provided Alvarez with information on the planning and progress of a plot to murder Alexander Vargas Garcia ("Pepa"). At the same time that he was conspiring to murder Pepa, Petitioner also assisted in planning and attempting to locate an individual known as "Pierero" in order to kill him. On February 8, 2008, Pepa was gunned down near his home in Santiago, Dominican Republic. Two days later, on February 10, 2008, a third plot was hatched to murder Francisco Apolinar Reynosa ("Bobo"). Three days after that, one of the organization's gunmen shot "John Doe, " mistaking him for Pierero. On February 19, 2008, Petitioner aided the hired shooter in locating Bobo, and Petitioner reported the murder-for-hire plan's progress to Alvarez. Later that day, two men entered Bobo's home and killed him. Shortly after hearing about Bobo's murder, Pierero managed to flee before the organization could find him and carry out the execution plot against him.
By New York County Indictment Number 1843/09, filed on April 22, 2009, a grand jury charged Petitioner and Alvarez with Murder in the First Degree (Penal Law § 125.27(1)(a)(vi)), Murder in the Second Degree (Penal Law § 125.25(1)), two counts of Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21(1)), and four counts of Conspiracy in the Second Degree (Penal Law § 105.15) (one count of conspiracy to commit the first-degree drug sale/possession and three counts of conspiracy to commit second-degree murder). (Lyons Aff. Ex. A.)
Petitioner filed a counseled motion to reduce the first-degree murder count to second-degree murder, arguing that a conviction under the "contract killing" statute, Penal Law § 125.27(1)(a)(vi), could not be based on accomplice liability. (Lyons Aff. Ex. B.) The People opposed the motion. (Lyons Aff. Ex. C.) The court denied the motion, holding that, "[als a plain reading of the statute reveals, and as the People detail more fully in their opposing affirmation, the only subsection of 125.27 which limits liability to an actor rather than an accomplice is (a)(vii), relating to felony murder. The ordinary accomplice liability rules apply to the other subdivisions, including (a)(vi)." (Lyons Aff. Ex. D (citing People v. Glanda , 5 A.D.3d 945 (3d Dep't 2004); People v. Reed , 265 A.D.2d 56, 62 (2d Dep't 2000)).) On October 13, 2010, the court conducted a Wade hearing regarding the admissibility of certain identification testimony. (Lyons Aff. Ex. E.)
On October 27, 2010, as jury selection was about to begin, Petitioner appeared with counsel before New York County Supreme Court Justice Richard D. Carruthers to discuss a plea offer. The proceeding began with an unrecorded bench conference between the judge, the prosecutor, and defense counsel. When the discussion resumed in open court, Justice Carruthers advised defense counsel that "the only thing on the table now" was an offer to plead guilty to the top count of the indictment, Murder in the First Degree. (Lyons Aff. Ex. F at 3-4.) In exchange, the judge promised to sentence Petitioner to the minimum term for that crime: 20 years to life. (Id. at 3-4.) The prosecutor noted that Petitioner was "facing the possibility of life without parole and certainly there's a significant chance [the People would] recommend that" sentence if Petitioner were convicted at trial. (Id. at 4.) The court added that Petitioner could also face consecutive prison sentences on the separate conspiracy counts. (Id.) Defense counsel argued that the minimum prison term "would be a realistic sentence after trial" because Petitioner "has a benevolent way about him." (Id. at 5.) The judge responded, "I don't know how benevolent one could be in aiding one in a murder for hire." (Id. at 5.)
Petitioner then conferred with his attorney and authorized him to plead guilty to one count of Murder in the First Degree (Count 24) and two counts of Conspiracy in the Second Degree (Counts 1 and 12), in full satisfaction of the indictment. (Id. at 6-7.) After being sworn in, Petitioner confirmed that he had discussed with counsel both the case and his decision to plead guilty, and that he was satisfied with the work that counsel had done on his behalf. (Id. at 7.) Petitioner also acknowledged that he had been informed of the immigration consequences of pleading guilty and wanted to do so regardless of those consequences. (Id. at 8.)
The court recited the facts of the conspiracies. Petitioner admitted that he and his co-defendants, Alvarez, Hilario, and Rodriquez, were "in the drug business, " possessing and distributing kilograms of cocaine in New York and Bronx counties from about August 2007 to February 2008. Petitioner affirmed that, between January 28 and 29 of 2008, he had engaged in several phone conversations with Alvarez and Hilario. (Id. at 8-9.) Specifically, Petitioner and Alvarez directed Hilario to meet someone in the vicinity of Pelham Parkway in the Bronx and receive four kilograms of cocaine. (Id. at 9.) During one of the phone conversations, Petitioner warned Alvarez that "the police might be in the [vicinity] of the meet." (Id.) Petitioner also confirmed that he and Alvarez had, through Hilario, possessed the four kilograms of cocaine Hilario had received. (Id.) Petitioner stated that his duties in the drug business included meeting with suppliers and customers, as well as receiving drugs and money. (Id. at 13.)
In addition, Petitioner acknowledged that he and Alvarez had also engaged in an unlawful agreement to kill Pierero. (Id. at 9-10.) Petitioner verified that he was specifically tasked with locating Pierero in the Dominican Republic so that a hired killer could murder him. (Id. at 10.) Petitioner spoke with several people about the contract killing, including a man named "Laca" who was eventually hired for the job. (Id. at 15-16.) Petitioner stated that he was aware that another man who was mistaken for Pierero was shot, but Petitioner did not know who the shooter was. (Id. at 16.)
Next, Petitioner admitted that he "assist[ed]" Alvarez in having Francisco "Bobo" Apolinar Reynosa killed. (Id. at 16.) In particular, Petitioner affirmed that he and Alvarez, with the intent to kill Bobo, agreed to hire one or more people in the Dominican Republic to execute Bobo. (Id. at 10, 16.) Petitioner further confirmed that, pursuant to the agreement, he had hired and wired money to a gunman who had, in fact, murdered Bobo. (Id. at 10, 16.)
After these factual allocutions, Petitioner acknowledged that he understood that, by pleading guilty, he relinquished his right to trial by jury, to confront witnesses, to remain silent, and to require the State to meet its burden of proving his guilt beyond a reasonable doubt. (Id. at 11.) Petitioner also understood that he was giving up the right to present any possible defenses at trial. (Id.) After confirming that Petitioner would receive 20 years to life on the murder count and 8-1/3 to 25 years on each conspiracy count, all to run concurrently, the judge warned Petitioner, "egally, if and when I accept this plea today, you will not be able to tell me you want the plea back and go to trial." (Id. at 12.) Petitioner acknowledged that he understood those terms. (Id.) Petitioner further affirmed that he had not been threatened or coerced into pleading guilty. (Id.) Rather, Petitioner confirmed that was doing so "of [his] own free will" and because he was, in fact, guilty of those crimes. (Id.)
The prosecutor then questioned Petitioner further about the details of the Bobo murder conspiracy. Petitioner affirmed that he had made phone calls to the Dominican Republic in an effort to find Bobo for the murder. (Id. at 17.) Specifically, Petitioner had made "many" calls to people in the Dominican Republic in order to locate Bobo and obtain a description of what he was wearing. (Id. at 17-18.) Petitioner subsequently relayed that information to Alvarez and others in the Dominican Republic. (Id. at 18.) Petitioner stated that he was "just following orders" and did not know what Alvarez's problem with Bobo was "all about." (Id. at 17.) Petitioner acknowledged that he knew of a man named Alex Pepa. (Id.) But when asked if the "whole problem ar[o]se when Alex Pepa had a dispute with [Alvarez's] brother, " Petitioner responded, "I really don't know." (Id.) Petitioner did admit, however, that he knew the killing of Bobo "was related to that problem." (Id.)
Eventually, Petitioner said, "I'm ready to plead guilty, I don't know why you are asking me so many questions." (Id. at 18.) Petitioner stated that he did not know who was originally supposed to kill Bobo. (Id.) When asked if it was Augustine Espinal who actually killed Bobo, Petitioner responded "No.... I don't know who it was." (Id.) Petitioner also confirmed that he had seen the People's evidence of the wiretapped conversations between Alvarez and himself, and acknowledged that all of the facts he had admitted to during the plea allocution were contained in those conversations. (Id. at 19.) Petitioner then stated, "I don't want to answer any more questions" (Id.), at which point the following conversation occurred:
THE COURT: Well, if you don't want to answer them then I may not accept the plea. I have to be satisfied that you are, in fact, guilty of the crimes charged.
[THE PROSECUTOR]: Is it true that all the things that you talked about today you did for and with [Alvarez]?
THE DEFENDANT: Yes.
[THE PROSECUTOR]: And you did them all ...