Opinion
08 Civ. 11357 (LTS) (KNF).
March 25, 2010
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is Tyrone Council's ("Council" or "the petitioner") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. In his petition, Council contends his confinement by New York State is unlawful because: (1) the verdict was legally insufficient and against the weight of the evidence; (2) the trial court erred, when it denied the petitioner's motion to sever his trial from his co-defendants'; (3) he was denied a fair trial, when evidence of his alleged threat against a witness was admitted into the trial record; (4) the trial court erred, when, in responding to a note from the deliberating jury, it provided the jury the "written statutory text of conspiracy," without obtaining defense counsel's consent; and (5) his sentence is excessive. Respondent opposes the petitioner's application for the writ, which is analyzed below.
II. BACKGROUND
On July 17, 2000, police officers arrested Council, after he sold crack cocaine to an undercover police officer inside the Frederick Douglass Houses, in New York County. While charges were pending against him, Council traveled to Albany, New York, with Tony Council ("T. Council") and Efrain Gonzalez ("Gonzalez"), to sell 250 grams of crack cocaine. In April 2005, investigators arrested a group of individuals who were believed to be part of an organized gang of drug distributors. The petitioner was indicted, along with thirteen co-defendants, for second-degree conspiracy. Council made a pre-trial motion to have his case severed from that of his co-defendants; on June 2, 2006, the motion was denied. The petitioner — along with co-defendants Al Javier ("Javier"), T. Council, Ramon Pequero, and Michael Wilson — proceeded to trial, by jury, on November 1, 2006.At the trial, testimony established that, from August 1999, through April 2005, Javier and T. Council were leaders of a gang that sold crack cocaine in and around the Frederick Douglass Houses. Daniel Brewington ("Brewington"), who sold drugs provided to him by Javier, testified that he observed Council selling drugs in the "[s]pring, summer, [and] winter" of 2000. Specifically, Brewington testified that he "observed [Council] going in and out of the building making sales," and, that, Brewington "actually saw [Council] give a customer drugs . . . [i]n the lobby of 865 [Columbus Avenue]."
Gonzalez, who led his own drug enterprise-separate from Javier and T. Council's-testified that he began a drug-selling business, in approximately 1994. Gonzalez stated that he observed drug sales being made in and around the buildings located at 845, 865, 870 and 875 Columbus Avenue. Gonzalez also stated he knew Council since the "[e]arly nineties" and had observed Council "ma[king] sales around the building." Gonzalez clarified that, by stating he saw people "do sales in front of the building," he was referring to the process of "tak[ing] the customer in the building and sell[ing] drugs to him." Gonzalez saw Council receive drugs, to sell to others, from Javier, on at least one occasion. According to Gonzalez, in early 2001, he traveled to Albany, New York, with Council and T. Council, to "sell drugs." The three transported 300 grams of "drugs" to sell in Albany, and were able to sell 250 grams.
On July 17, 2000, at approximately 12:20 a.m., an undercover police officer, "UC 6133," was in the vicinity of 865 Columbus Avenue, in New York County. At that time, UC 6133 was a member of the "Manhattan North Narcotics Zone," and his duties that night included making drug purchases. UC 6133 explained that, when he walked into the courtyard located at 865 Columbus Avenue, he saw several men sitting on a bench. He approached the men and asked if they "had dimes," referring to a quantity of drugs. The men directed UC 6133 to go "in the building," that was a few feet away from the bench on which they were sitting. UC 6133 testified that, when he entered the building, he "observed a male approaching me. I had $20.00 United States Currency buy money in my hand, I handed him the $20.00, he handed me two vials of crack. I then exited the location." The money UC 6133 used to purchase the crack cocaine had been photocopied, before he used it for this drug transaction, to facilitate tracing the serial numbers on the currency. UC 6133 saw the man from whom he purchased drugs walk to the "bench area," and UC 6133 "transmitted the details to [his] field team." To determine whether Council had sold him drugs, UC 6133 "field tested them." UC 6133 testified that he later learned that the man from whom he purchased drugs was Tyrone Council.
Detective John Rankin ("Rankin") testified that, in July 2000, he was an investigator in a "buy and bust team," in the Manhattan North Narcotics Zone. On July 17, 2000, he was acting as the arresting officer, and he received a radio transmission, at approximately 12:20 a.m., describing an individual who had sold drugs to an undercover officer. Rankin approached the address that he had been given over the radio. He saw someone who matched the description provided via the radio transmission, and the individual attempted to flee. Rankin gave chase and, ultimately, apprehended Council. Documentary evidence relating to Council's July 17, 2000 arrest and subsequent conviction was admitted into the trial record, including: (1) a certificate of disposition, indicating Council was convicted for attempted criminal sale of a controlled substance; (2) an invoice from "Undercover 6133, Property Clerk," noting the "results of [a drug] analysis [were] 2.5 grains of cocaine, two bags"; and (3) a portion of a court transcript, in which Council admitted to having sold "a narcotic drug to someone who turn[ed] out to be a police officer," and in which Council identified the drug as "crack."
Detective Mark Stewart ("Stewart"), of the New York County District Attorney's Office, testified that, on November 29, 2006, he was escorting Raynaldo Mojica ("Mojica"), a witness who testified at Council's trial — about the actions of Council's co-defendants, but not about Council — to the "twelfth floor bridge," inside of the courthouse. When Stewart and Mojica "stepped off the elevator," on the twelfth floor, Stewart observed Council "ma[k]e a gesture[, in the direction of Mojica and Stewart, and state:] boom boom, you dead, Nigger, you dead." The court instructed the jury, during Stewart's testimony, that "[t]his evidence that Detective Stewart is testifying to is coming in only as to defendant number four, Tyrone Council, on the issue of the conspiracy charge which he's charged with and consciousness of guilt which is a complicated evidentiary rule I will explain at the end of the trial next week. . . ."
The defense did not call any witnesses. At the conclusion of trial testimony, the trial judge provided instructions for the jury's deliberations. Among other things, the trial court explained:
In this case I also allowed into evidence . . . [a] piece[] of evidence which the People argue show[s], quote, consciousness of guilt, that is specifically . . . the alleged threat Tyrone Council made in the presence of the detective to Ray Mojica, a witness.
First of all, you must decide whether you believe such conduct took place.
Second, if you believe the conduct took place, whether it demonstrates to you consciousness of guilt on the part of that particular defendant.
In determining whether conduct demonstrates a consciousness of guilt, you must consider whether the conduct has an innocent explanation. If it does, you must disregard it. On the other hand, if you find in your opinion the conduct took place beyond a reasonable doubt and evinced a consciousness of guilt, you may consider that evidence offered on the guilt or non-guilt of that particular defendant.
However, standing alone, evidence of consciousness of guilt is never the basis for finding someone guilty of a charged crime.
Thereafter, the jury submitted notes to the trial judge, among them a request for "[d]efinitions of what is required for conspiracy printed on paper." Outside the presence of the jury, the trial judge asked counsel, for all co-defendants, and the prosecutor, whether, "[w]ith respect to the Conspiracy Charge, . . . anyone [would] consent to have the statutory language go in?" The following colloquy ensued:
[Co-Defendant's Counsel]: No problem, your Honor.
[Council's Counsel]: Could we just talk?
[Co-Defendant's Counsel]: What do you mean by the statutory language?
THE COURT: What I mean like the Penal Law Section.
[Council's Counsel]: CJI?
THE COURT: Just the statute, the [bare] bones of the statute?
They asked for the charge, I assume the defense will not consent to have the entire conspiracy charge go into the jury.
* * *
THE COURT: The Conspiracy Charge I'll send in, I'll mark it as Court Exhibit X. (WHEREUPON, Court's Ex. X is now received in Evidence).
THE COURT: The defense can make objections now, if they wanted to.
Council's attorney did not object to the court providing the jury, a written copy of the statutory language outlining the second-degree conspiracy offense. The jury returned a verdict, against Council, of guilty, for second-degree conspiracy.
On January 16, 2007, Council was adjudicated a second-felony offender, based upon his October 5, 1994 felony conviction for "attempt to commit the crime of criminal possession of a controlled substance in the third degree." The prosecution argued Council should be given the maximum sentence. Defense counsel asserted that sentencing Council to the minimum sentence was appropriate, since no evidence linking Council to any violent activity existed, and no evidence that Council engaged in drug deals after the year 2000 existed, even though the drug conspiracy continued through 2004. In addition, defense counsel noted that Council "[took] himself out of the conspiracy," and "did what he was supposed to do," including obtaining employment even though he earned only "thirty-five dollars a day." Defense counsel stated, "[t]he only thing [the prosecution] can tell you about Tyrone Council is that he did one drug deal in the year 2000. They couldn't tell you anything else during the trial and couldn't tell you anything else here. This is a case where he should get four and a half to nine. He should get the minimum. . . ." The court sentenced Council to an indeterminate term of six to twelve years imprisonment, to be served consecutively to "the sentence on which he has, I believe, completed." In reaching its determination on the sentence to be imposed, the court considered Council's "minor role," that he had not engaged in acts of violence, and was not a main member of the organization.
On direct appeal from the judgment of conviction, Council raised the following claims: (1) his conviction was based upon legally insufficient evidence and was against the weight of the evidence; (2) he was deprived of a fair trial, when the trial court denied his motion to sever his trial from his co-defendants'; (3) the admission of evidence of the alleged threat Council made to a witness was highly prejudicial and deprived him of a fair trial; (4) the trial court acted improperly, in providing the jury with a copy of the statutory text describing second-degree conspiracy, in response to the jury's request for the written definition of second-degree conspiracy, since the court did not obtain defense counsel's consent; and (5) his sentence was excessive. In June 2008, the New York State Supreme Court, Appellate Division, First Department, found that: (1) Council's conviction was based upon legally sufficient evidence and was not against the weight of the evidence; (2) Council's motion to sever was denied properly; (3) evidence of Council's threat to a witness was admitted properly, because it was probative of Council's consciousness of guilt, given Council's relationship with his co-defendants and the overlap of evidence, since Mojica did not testify about any acts committed by Council; (4) the record supports a finding that defense counsel assented to submitting statutory materials to the jury; and (5) no basis for reducing Council's sentence existed.See People v. Council, 52 A.D.3d 222, 223, 859 N.Y.S.2d 152, 153-54 (App. Div. 1st Dep't 2008). The petitioner applied for leave to appeal to the New York Court of Appeals. On August 19, 2008, that application was denied. See People v. Council, 11 N.Y.3d 735, 864 N.Y.S.2d 394 (2008). The instant application, for a writ of habeas corpus, followed.
III. DISCUSSION
Sufficiency of the Evidence
When challenging the sufficiency of the evidence underlying a state criminal conviction, a petitioner bears a heavy burden of demonstrating 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 v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983). When faced with a record "of historical facts that supports conflicting inferences [a federal habeas corpus court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A reviewing court must resolve all issues of credibility in favor of the jury's verdict. See United States v. Tyler, 758 F.2d 66, 68 (2d Cir. 1985) (citing United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984).
New York Penal Law ("NYPL") § 105.15 provides that, a person is criminally culpable for second-degree conspiracy when, "with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." Second-degree criminal sale of a controlled substance, the crime which the petitioner was charged with conspiring with others to perform or cause to be performed, is a class A felony. See NYPL § 220.41 ("Criminal sale of a controlled substance in the second degree is a class A-II felony"). The trial record, viewed in the light most favorable to the prosecution, would permit a reasonable fact-finder to conclude, beyond a reasonable doubt, that Council was guilty of second-degree conspiracy, because all the elements of that crime were proven through witness testimony. UC 6133 testified that he purchased crack from Council, on July 17, 2000. Gonzalez testified that he observed Council making drug sales, knew Council obtained drugs from Javier on one occasion, and testified that he traveled to Albany, with Council and T. Council, to sell 300 grams of drugs.
Inasmuch as sufficient evidence to support Council's conviction exists in the trial record, Council is not entitled to habeas corpus relief on his claim that the evidence was insufficient to support his conviction.
Conviction Against the Weight of the Evidence
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991). Unlike a "legal sufficiency claim[, which] is based on federal due process principles," a "'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5)," and "the Court is precluded from considering the claim." Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001); see also Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002) ("A federal habeas court cannot address 'weight of the evidence' claims because a challenge to a verdict based on the weight of the evidence is different from one based on the sufficiency of the evidence," because a "weight of the evidence argument is a pure state law claim") (internal quotations and citations omitted). As a result, Council's challenge to the weight of the evidence is barred from federal habeas review and, therefore, does not provide a basis for federal habeas corpus relief.
Trial Court Erred in Denying the Motion to Sever
"The joinder of offenses for trial is a matter of state law, and federal habeas corpus relief does not extend to mere errors of state law"; however, "[a] federal habeas court may correct an error of state law that rises to the level of a constitutional violation," if the error has had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Harris v. Burge, 04 Civ. 5066, 2008 U.S. Dist. LEXIS 22981, at *22, 2008 WL 772568, at *7 (Mar. 25, 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714). Pursuant to New York Criminal Procedure Law ("CPL") § 200.40(1), "[t]wo or more defendants may be jointly charged in a single indictment provided that . . . (b) all the offenses charged are based upon a common scheme or plan; or (c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10." CPL § 40.10(2) defines "criminal transaction" as "conduct which establishes at least one offense, and which is comprised of two or more of a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements of integral parts of a single criminal venture." New York state courts and federal courts give deference to the strong public policy favoring joinder. See Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct. 933, 937 (1993) (acknowledging federal system's preference for joint trials of defendants indicted together); United States v. Cardascia, 951 F.2d 474,482 (2d Cir. 1991) ("The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted");People v. Cardwell, 78 N.Y.2d 996, 997, 575 N.Y.S.2d 267 (1991) ("'[I]n all cases a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses.'") (quoting People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 773).
The denial of a motion for severance "'will be reversed only upon a showing of clear abuse of that discretion,'" and the defendant must show "he was so severely prejudiced by the joinder as to have been denied a fair trial." Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990); see also United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732 (1986) (finding that, in federal criminal proceedings, "an error [of] misjoinder 'affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict'") (citation omitted). "[T]he inevitable tolerance of some slight prejudice to codefendants, . . . is deemed outweighed by the judicial economies resulting from the avoidance of duplicative trials."Cardascia, 951 F.2d at 482-83; see also Zafiro, 506 U.S. at 537, 113 S. Ct. at 937. However, it has been "recognized that a joint trial is fundamentally unfair where codefendants present mutually antagonistic defenses." Grant, 921 F.2d at 31; see Zafiro, 506 U.S. at 538, 113 S. Ct. at 937.
Council has not shown that the denial of his motion for severance was an abuse of discretion. Since he was on trial for conspiracy, evidence of Council's conduct with others, his co-defendants, would be admissible whether Council faced trial alone or with his coconspirators. Council does not allege, nor does the record show, that Council's co-defendants presented "mutually antagonistic defenses" to Council's defense. Id. The prejudice that Council claims to have suffered, from the admission of evidence that detailed his co-defendants' activities, was not prejudice flowing from the denial of his motion to sever; the admission of evidence of his co-conspirators' conduct was necessary to prove the existence of a conspiracy. Therefore, the petitioner has not shown the existence of "severe[] prejudice[]" flowing from the denial of his motion to sever his trial from his co-defendants'. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993) ("the fact that testimony against a codefendant may be harmful is not a ground for severance if that testimony would also be admissible against the moving defendant tried separately. . . . Evidence at the joint trial of alleged coconspirators that, because of the alleged conspiratorial nature of the illegal activity, would have been admissible at a separate trial of the moving defendant is neither spillover nor prejudicial").
Trial Court's Evidentiary Rulings
Challenges to state-court evidentiary rulings are not generally amendable to federal habeas corpus review, unless they deprive a defendant of a fair trial. See Estelle, 502 U.S. at 67-68, 112 S. Ct. at 480 ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions");id. at 72, 112 S. Ct. 482 (stating that the "only question" related to state-court rulings that may be analyzed on federal habeas corpus review, is whether the state-court ruling "by itself so infected the entire trial that the resulting conviction violates due process") (internal quotations and citations omitted).
A. Admission of Evidence that Council Threatened a Prosecution Witness
Under New York law, "[e]vidence of threats made by the defendant against one of the People's witnesses, although evidence of prior bad acts, [is] admissible on the issue of consciousness of guilt." People v. Reyes, 162 A.D.2d 357, 357, 556 N.Y.S.2d 916, 917 (App. Div. 1st Dep't 1990). In his petition, Council maintains that the admission of the threat he allegedly made to Mojica was, "[a]t most[,] . . . slight evidence of consciousness of guilt. Yet the jury would likely use the Petitioner's threat as evidence that the Petitioner was another of the violent gang members, despite there being no evidence to support such a belief. The jury may have convicted the Petitioner of conspiracy just based on the threat evidence alone. . . ."
Council's claim is meritless. The trial court instructed the jury that, "standing alone, evidence of consciousness of guilt is never the basis for finding someone guilty of a charged crime." A jury is presumed to follow the instructions of the trial judge.See Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733 (2000). Therefore, Council's claim that the jury may have considered the evidence of the threat made against a prosecution witness, as the exclusive basis for his conviction for second-degree conspiracy, is unavailing. The trial court's instruction to the jury was sufficient to convey that the jury could consider evidence of the threat made by Council for the purpose of demonstrating consciousness of guilt; however, the trial court explained that this evidence could be discounted or dismissed by the jury and it could not serve as the sole basis for finding Council guilty for second-degree conspiracy. Consequently, habeas corpus relief is not warranted with respect to Council's challenge to the admission of evidence of the threat made to a prosecution witness.
B. "Meaningful Response" to Jury Note
CPL § 310.30 provides that, during its deliberations, a jury may request further instruction or information from the court, and
[u]pon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper.
As noted above, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 68, 112 S. Ct. at 480.
Council alleges the trial court provided the jury a copy of the text of the relevant penal law provision, without first obtaining his counsel's consent, in violation of CPL § 310.30. Since this claim, like Council's weight of the evidence claim, is grounded in New York's CPL and does not implicate the Constitution, laws or treaties of the United States, this claim is not amenable to federal habeas corpus review. See Estelle, 502 U.S. at 68, 112 S. Ct. at 480.Excessive Sentence
The Second Circuit has explained that, in the habeas corpus context, "[n]o federal constitutional issue is presented where . . . the sentence [imposed by a state court] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Rather, "when a statute provides for punishment thought to be violative of the [Eighth] [A]mendment[,] the constitutionality of the statute itself must be attacked."United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968).
The petitioner argues that his sentence is excessive, because "he had already faced a prison sentence for the sole overt act he had committed in this case, for selling drugs to an undercover officer, and [] had served his prison sentence for those charges." Council was sentenced to an indeterminate sentence of six to twelve years for his participation in the conspiracy. Pursuant to NYPL § 105.15, second-degree conspiracy is a class B felony. Council was adjudicated a second-felony offender, based on a previous felony conviction, and was, therefore, subject to a minimum sentence of four and one-half to nine years imprisonment, and to a maximum sentence of twelve and one-half to twenty-five years imprisonment, see NYPL §§ 70.06(3)(b), (4)(b).
Petitioner's sentence falls within the range prescribed by the relevant statutes. Accordingly, the Court finds that Council's excessive sentence claim presents no federal constitutional violation upon which his request for habeas corpus relief may be granted.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Council's petition for a writ of habeas corpus, Docket Entry No. 1, be denied.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 500 Pearl Street, Room 755, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).