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declining to review petitioner's allegation that grand jury proceedings failed to conform to CPL §§ 200.60 and
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97-CV-696 (FJS/GLS).
August 31, 2000
ANGEL ADORNO, Petitioner, Pro Se, Shawangunk Correctional Facility, Wallkill, NY.
HON. ELIOT SPITZER, Attorney General of the State of New York Department of Law, OF COUNSEL, ROGER W. KINSEY, ESQ., JEFFREY M. DVORIN, ESQ., Assistant Attorney Generals, Albany, New York, FOR THE RESPONDENT.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant petition in the United States District Court for the Western District of New York on May 2, 1997. The petition was transferred to the Northern District of New York by order dated June 9, 1997. This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. fol. § 2254, ordering service of the petition on respondent and requiring service of an answer or other pleading.
Subsequently, the respondent moved to dismiss the action as time barred pursuant to 28 U.S.C. § 2244(d). Chief United States District Judge Frederick J. Scullin, Jr., rejected the Report-Recommendation by Magistrate Judge David N. Hurd which recommended dismissal of the petition. Thereafter, the respondent's motion was dismissed. Respondent has filed his answer together with the pertinent state court records and memorandum of law.
The State court records submitted by the respondent are listed on page 3 of the answer.
Petitioner complains of a judgement of conviction rendered against him on February 3, 1993, following a jury trial in Montgomery County Court where the petitioner was convicted of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a weapon in the third degree. Petitioner was sentenced to concurrent terms of twelve and one-half to twenty-five years for each possession of a controlled substance charge, and a concurrent term of twenty years to life for the weapon charge. On March 18, 1993, the petitioner filed a motion pursuant to N.Y. Crim. Proc. Law § 330.30 in which he argued that his conviction should be set aside. The trial court denied the motion. (Sentencing Tr. at 4).
Petitioner was adjudicated a second felony offender for the two counts of criminal possession of a controlled substance and as a persistent violent felony offender for the weapon charge. (Sentencing Tr. 22-23).
Petitioner's motion to set aside the verdict argued that: 1) a motion for a mistrial should not have been allowed to be withdrawn; 2) the presence and absence of the two co-defendants who pled guilty during the jury selection process tainted the jury such that curative instruction could not correct the error; 3) the prosecution's evidence was hinged on the automobile presumption, and the testimony of Raymond Alvarado rebutted the automobile presumption as a matter of law; 4) the court, upon not charging the jury with acting in concert, should not have charged the defendant with joint possession of a controlled substance and weapon; 5) the court should have instructed the jury on the charge of circumstantial evidence; and, 6) the prosecution committed reversible error by commenting in the presence of the jury about the petitioner's failure to speak to the police after his arrest and curative instruction could not cure the error.
The petitioner filed an appeal with the Appellate Division, Third Department, which affirmed the conviction on June 15, 1995. People v. Adorno, 216 A.D.2d 686, 628 N.Y.S.2d 426 (3rd Dep't 1995). The New York Court of Appeals denied leave to appeal on September 20, 1995. People v. Adorno, 86 N.Y.2d 839, 658 N.E.2d 227, 634 N.Y.S.2d 449 (1995).
On direct appeal, the petitioner argued that: 1) the court improperly amended the indictment in violation of Criminal Procedure Law § 200.70(1) and (2); 2) the prosecution unfairly commented on the petitioner's failure to exonerate himself at his arrest; 3) the jury's consideration of the automobile presumption was error; 4) the jury verdict was against the weight of the evidence; 5) the conviction was obtained in violation of his constitutional rights, and the verdict was not based upon guilt beyond a reasonable doubt; 6) the trial court's failure to dismiss the indictment was error; 7) the trial court erred when it failed to grant a mistrial; and, 8) the sentence imposed was harsh and excessive.
Petitioner raises four grounds for relief in his application for habeas corpus. He argues that: 1) the grand jury proceedings were defective because they failed to comply with New York State Criminal Procedure Law § 200.60; 2) the indictment was defective because the prosecutor improperly amended it; 3) the petitioner was deprived of his right to a fair trial because he was forced to withdraw his motion for a mistrial under duress; and, 4) the verdict was against the weight of the evidence because he had rebutted the presumption of possession outlined in New York Penal Law § 220.25(1) and § 265.15(3).
Respondent seeks dismissal of the petition on the grounds that: 1) the defects in the grand jury proceedings are moot following a petit jury verdict; 2) the alleged violation of Criminal Procedure Law § 200.70(1) and (2) is not reviewable; 3) the petitioner was not coerced to withdraw his motion for a mistrial; and, 4) there was sufficient evidence of guilt to support the verdict.
For the following reasons, this court recommends that the petition be denied and dismissed.
1. Facts
On March 26, 1992, Julio Maldonado and Raymond Alvarado purchased 400 packets of heroin, having an aggregate weight of slightly over one-half ounce, which they intended to sell in Rochester. (Trial Transcript [hereinafter Tr.] 436, 438, 635, 668, 678-679). Petitioner and his brother, Ivan Adorno, were picked up later that evening. (Tr. 712). As they were driving on the New York State Thruway at 2:50 A.M. on March 27, 1992, State Troopers Alberto David and Louis Roman observed their vehicle proceeding in a slow and erratic manner. (Tr. 146, 148, 295). After following the vehicle for a short distance, the Troopers pulled it over. (Tr. 295-296). Trooper Roman asked the driver, Julio Maldonado, for his license and rental papers for the vehicle. (Tr. 296-297). Trooper David stood at the rear of the vehicle and watched the front seat passenger, Raymond Alvarado, open the glove compartment to obtain the papers. (Tr. 149, 151). Subsequently, Trooper David observed Raymond Alvarado reopen the glove box. (Tr. 151). At that time, Trooper David shined his flashlight into the glove box and observed a sem-automatic pistol. (Tr. 152). Immediately, Raymond Alvarado was pulled from the vehicle and Trooper David warned his partner about the gun. (Tr. 153). Trooper Roman ordered the driver and both rear seat passengers, including the petitioner, out of the vehicle. (Tr. 302).
As Trooper David was retrieving the handgun from the glove box, he noticed a clear plastic bag containing 200 packets of heroin next to the gun. (Tr. 154). Thereafter, the petitioner and the other three individuals were arrested. (Tr. 303). An inventory search produced 200 additional packets of heroin in the trunk. (Tr. 308).
Raymond Alvarado pled guilty following the indictment. Julio Maldonado and Ivan Adorno pled guilty during jury selection.
2. Grand Jury Proceeding
In Ground One, the petitioner alleges that the grand jury proceedings were defective. Specifically, petitioner alleges that the grand jury proceedings failed to conform to Criminal Procedure Law § 200.60(1) and (2). However, petitioner's contentions of improprieties in the grand jury proceedings are not cognizable for federal habeas corpus review. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Beverly v. Walker, 899 F. Supp. 900, 908 (1995).
CPL 200.60(1) and (2) requqires the following: (1) When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such higher offense may not allege such previous conviction. If a reference to previous conviction is contained in the statutory name or title of such an offense, such name or title may not be used in the indictment, but an improvised name or title must be used which, by means of the phrase "as a felony" or in some other manner, labels and distinguishes the offense without reference to a previous conviction. This subdivision does not apply to an indictment or a count thereof that charges escape in the second degree pursuant to subdivision two of Section 205.10 of the penal law, or escape in the first degree pursuant to Section 205.15 thereof; (2) an indictment for such an offense must be accompanied by a special information filed by the district attorney with the court charging that the defendant was previously convicted of a specified offense. Except as provided in subdivision three, the prosecution may not refer to such special information during the trial nor adduce any evidence concerning the previous conviction alleged therein.
In United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986), the Supreme Court held that:
"the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt."
Moreover, the Second Circuit has held that "if federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in federal court." Lopez, 865 F.2d at 32.
Thus, this court finds that any improprieties that occurred in the grand jury proceedings in the petitioner's case were cured by the petit jury's guilty verdict. As such, this court recommends that Ground One of the petition be denied and dismissed.
3. Defective Indictment
In Ground Two, petitioner alleges that the indictment was defective because the prosecutor improperly amended the indictment. A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). "It is not the province of a habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-480, 116 L.Ed.2d 385 (1991); (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct 3092, 3102, 111 L.Ed.2d 606 (1990)). See also, Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-875, 79 L.Ed.2d 29 (1984).
In addition, challenges to the sufficiency of a state indictment are generally not issues cognizable on habeas review. See e.g., United States ex rel. Mintzer v. Dros, 403 F.2d 42, 43 (2d Cir. 1967) (per curiam); Medina v. Herbert, 1998 WL 799173, at *5 (S.D.N.Y. Nov. 16, 1998); Roberts v. Scully, 875 F. Supp. 182, 194 (S.D.N.Y. 1995), aff'd, 71 F.3d 406 (2d Cir. 1995).
A defect in the indictment can form the basis for federal habeas relief only if the indictment falls below basic constitutional standards. Medina, 1998 WL 799173, at *5 (citation omitted). An indictment is constitutionally sufficient if "`it charges a crime [1] with sufficient precision to inform the defendant of the charges he must meet and [2] with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.'" De Vonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994) (quoting United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992)).
In this case, the amended portion of the indictment charged each individual with "being criminally liable for his own conduct and also criminally liable for the conduct of the co-defendants." Prior to the jury charge, the People withdrew the charge of acting in concert and the trial court instructed the jury to consider the defendant's individual culpability as an accomplice. The Appellate Division citing to People v. Mendez, 209 A.D.2d 547, 619 N.Y.S.2d 89 (1994), held that the amendment of the indictment was proper since it did not prejudice the petitioner or change the theory of the prosecution's case. Furthermore, the Appellate Division, citing to People v. Rivera, 84 N.Y.2d 766, 646 N.E.2d 1098, 622 N.Y.S.2d 671 (1995), held that no legal distinction existed between liability as a principal or criminal culpability as an accomplice.
In Mendez, 209 A.D.2d at 547, 619 N.Y.S.2d at 89, the Appellate Division held that the amendment of the indictment deleting the "acting in concert" charge prior to the jury charge was proper and that the court did not err in denying the defendant's motion for a mistrial.
In Rivera, 84 N.Y.2d at 771, 646 N.E.2d at 1101, 622 N.Y.S.2d at 674, the Appellate Division held that the court did not err in permitting the prosecution to amend the indictment prior to trial to pursue an accessorial liability theory at trial even though the indictment only charged the defendant as a principal.
This court finds that the alleged error in amending the indictment is beyond the scope of this court's review because the indictment satisfied constitutional standards. Each count of the indictment specified the time and place at which the alleged crimes occurred. Furthermore, the indictment set forth the essential elements of the crime and adequately informed the petitioner of the charges against him. Therefore, Ground Two of the petition should also be denied and dismissed.
4. Motion for Mistrial
In Ground Three, petitioner alleges that he was deprived of his right to a fair trial. Specifically, petitioner argues that he was forced to withdraw his motion for mistrial under duress. "In order to secure a writ of habeas corpus following a state-court conviction, a petitioner alleging that a trial error violated his constitutional rights, must show that the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)). In other words, the petitioner must show "actual prejudice" flowing from the alleged error. Id. at 16. Moreover, New York State law presumes that jurors will follow the court's instruction in reaching a verdict. See People v. Davis, 58 N.Y.2d 1102, 1104, 449 N.E.2d 710, 462 N.Y.S.2d 816 (1983); People v. Rodriquez, 103 A.D.2d 121, 129, 479 N.Y.S.2d 25 (1984); People v. Melo, 708 N.Y.S.2d 871 (2000).
In this case, the Appellate Division found that the petitioner's claim that he was forced to withdraw his motion under duress was not supported by the record. The court found that the motion was made after the last two co-defendants accepted plea offers. (Tr. 84). The court further stated that the petitioner withdrew his motion after he was advised that it would be six months before another trial could be scheduled. (Tr. 85-86).
The Appellate Division held that petitioner had an opportunity to discuss this issue with his attorney. (Tr. 89). Also, petitioner affirmed on the record that he had sufficient time to reflect on his decision to withdraw his motion. (Tr. 89). The Appellate Division citing to People v. Thomas, 212 A.D.2d 474, 475, 623 N.Y.S.2d 203, 203 (1995), held that petitioner was not prejudiced by the plea agreement obtained by his co-defendants since they pled guilty outside the presence of the jury and that the trial court admonished the jury not to draw any inferences from their absence.
In Thomas, 212 A.D.2d at 475, 623 N.Y.S.2d at 203. the Appellate Division found that the court did not abuse its discretion when it denied the defendant's motion for a mistrial after defendant's only remaining co-defendant pled guilty during jury selection, outside of the presence of the jury, and the court admonished the jury that they not draw any inference from the co-defendants' absence.
This court finds that the petitioner was not coerced to withdraw his motion for a mistrial. The petitioner affirmed on the record that he had time to reflect on his decision to withdraw his motion, that he had discussed the decision with his attorney and that he did not require more time to discuss the decision with his attorney. (Tr. 89).
Moreover, the petitioner was not prejudice by the withdrawal of the motion because the motion was made outside the presence of the jury. The trial court expanded the curative instruction to include a presumption of innocence charge. (Tr. 91-93). Furthermore, the court instructed the jury to draw no inferences from the absence of the other defendants. (Tr. 81, 92). The record does not indicate that the jury disregarded the court's instruction. Thus, the petitioner has failed to show that the alleged trial error had substantial and injurious effect or influence in determining the jury's verdict. Therefore, Ground Three of the petition should also be denied and dismissed.
5. Sufficiency of Evidence
In Ground Four, petitioner claims that the verdict was against the weight of the evidence. Petitioner alleges that the presumption of possession should not have been applied in this case because the testimony from co-defendant, Raymond Alvarado, effectively rebutted the automobile presumption of possession as defined in New York Penal Law § 220.25(1) and § 265.15(3). However, on habeas corpus review, a state verdict must be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992); Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993). In evaluating the sufficiency of the evidence, "[g]uilt beyond a reasonable doubt may be established entirely by circumstantial evidence, and this evidence must not be reviewed piecemeal, but rather as a whole." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (internal citations omitted).
"220.25(1): Criminal possession of a controlled substance; presumption 1. The presence of a controlled substance in an automobile, . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants."
"265.15(3): The presence in an automobile, . . . of any firearm, defaced firearm, . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, . . . is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same."
The habeas court does not weigh the evidence nor determine the credibility of witnesses. Id. at 35 (citing United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993). It is up to the jury to determine the credibility of a witness, and the court must defer to the jury's decision to believe or disbelieve a witnesses' testimony. See United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995); see also, Williams v. McCoy, 7 F. Supp.2d 214, 221 (E.D.N.Y. 1998). However, the court must decide "whether the record is `so totally devoid of evidentiary support that a due process issue is raised.'" Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting Mapp v. Warden, N.Y. State Correctional Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir. 1976).
The petitioner is "entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324, 99 S.Ct. at 2791. This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324, n. 16, 99 S.Ct. at 2792, n. 16. The New York presumption of possession law can be "rebutted by evidence to the contrary and, even `if no contrary proof is offered, the presumption is not conclusive, but may be rejected by the jury.'" Dixon v. Miller, 56 F. Supp.2d 289 (E.D.N.Y. 1999) (citing People v. Lemmons, 40 N.Y.2d 505, 510, 354 N.E.2d 836, 840, 387 N.Y.S.2d 97,100 (1976)). See Gray v. Babbie, 1998 WL 178824, at *4 (E.D.N.Y. Feb. 12, 1998).
This presumption, as applied in Lemmons, was upheld on federal habeas corpus review in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Moreover, "whether the rebuttal evidence is sufficient to overcome the presumption is a matter for the fact finder, not the court." People v. Verez, 83 N.Y.2d 921, 924, 638 N.E.2d 951, 953, 615 N.Y.S.2d 306, 308 (1994).
In this case, the petitioner claims that the presumption of possession was rebutted by his co-defendants' testimony that the petitioner did not know about the handgun and drugs. This court finds that after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The testimony at trial of the petitioner's only witness revealed that the petitioner and his brother were familiar with the Rochester area where Raymond Alvarado was not. (Tr. 657, 684).
Also, the testimony revealed that the petitioner and his brother paid for the gas for the trip to Rochester. (Tr. 750-751, 753). The petitioner warned Alvarado not to speed due to radar and the presence of State Troopers. (Tr. 756). In addition, the petitioner's phone number was found in the witness' phone book even though they were presumed strangers prior to that evening. (Tr. 714-715). Given these factors, a rational trier of fact could find that the petitioner was guilty of the charged crimes beyond a reasonable doubt. Thus, Ground Four of the petition should also be denied and dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN (10) DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). It is further
ORDERED, that the Clerk of the Court issue copies of this Report-Recommendation to the parties by regular mail.