Opinion
04 Civ. 7249 (NRB).
June 30, 2005
Raju Katharu, New York, NY, Petitioner Pro se.
Alyson J. Gill, Esq., Assistant Attorney General, New York, NY, Counsel for Respondent.
MEMORANDUM and ORDER
On July 19, 2001, Raju Katharu ("Katharu" or "petitioner") was convicted after a jury trial in the Supreme Court of New York, New York County, of Grand Larceny in the Second Degree and Criminal Possession of Stolen Property in the Second Degree. Petitioner was sentenced to concurrent indeterminate prison terms of one and one-half to four and one-half years and a fine of $5,000. Petitioner has challenged that conviction and sentence with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
BACKGROUND
During the times relevant to the charges at issue, petitioner operated a fragrance store called Perfume Plaza, which was located on Broadway between 29th and 31st Streets in Manhattan. The state alleged that, over a period of several months in 1999, petitioner and several former Macy's employees stole several thousand bottles of perfume from Macy's Herald Square store in Manhattan for the purpose of stocking them at petitioner's store for sale. At trial, the state offered the testimony of some of those former employees and several Macy's investigators and suppliers. Below, we briefly outline this testimony, as well as petitioner's evidence, before discussing petitioner's arguments in support of his request for habeas relief.
Respondent represents that its attempts to locate petitioner's trial transcript through trial counsel and the New York State Supreme Court Library have been unsuccessful. Resp't Br. at 3 n. 2. As a result, this Court was not provided with a trial transcript. The description below is therefore drawn from the parties' submissions in support of and opposition to the petition, submissions which include factual recitations submitted to the New York state courts on direct appeal.
I. The Trial
A. The State's Evidence
The state's case appears to have consisted mainly of the testimony of three Macy's employees. Shamel Reed, a former Macy's sales associate, and Richard Gilmore, a former employee of Macy's shipping department, testified that they participated in the fragrance scheme with petitioner. Malcolm Gaspard, Macy's Herald Square store's then-Director of Investigations, testified about his investigation into the fragrance thefts.
1. Shamel Reed and Richard Gilmore
Shamel Reed worked full time at Macy's as a sales associate for a French cosmetics vendor called Clarence. He worked for the most part in the sub-basement of the store, where Clarence kept its goods.
In mid-1999, Reed testified, he expressed to a former co-worker that he was having financial problems. Following that conversation, the co-worker took Reed to Perfume Plaza and introduced him to petitioner. According to Reed, petitioner and the co-worker told Reed that the co-worker had in the past taken merchandise from Macy's and delivered it to petitioner's store in exchange for cash. Reed testified that petitioner then expressed interest in making the same arrangement with Reed. As the meeting concluded, Reed testified, petitioner gave Reed a business card with the types of fragrances petitioner needed written on the back. Petitioner told Reed that he would pay $15-25 for each bottle of perfume delivered.
Reed testified that in September 1999 he began to make trips from Macy's to Perfume Plaza with his pockets stuffed with boxes of fragrances. Each time he did this, he testified, he received between $100 and $250 in cash from petitioner. As time progressed, however, Reed began to worry that he would be caught if he continued to carry merchandise out of Macy's in his pockets.
In late September 1999, Reed was introduced to Richard Gilmore by a fellow employee named Quamie. Gilmore was in charge of a Macy's program called the "mail and phone system," under which Macy's customers could arrange to have their purchased merchandise sent to their homes instead of carrying it with them. Gilmore was in charge of packing any such merchandise for shipping.
Gilmore's office was located in the same sub-basement where Reed worked. When Macy's employees sent purchased merchandise down for shipping to a customer, the merchandise would be accompanied by a triplicate sales receipt specifying the merchandise and the customer's shipping address and confirming that the merchandise had been paid for. Gilmore's job was to verify that the merchandise matched the sales receipt and, if so, to pack the merchandise into a box for shipping. After the merchandise was boxed, Gilmore would attach the sales receipt to the outside of the box and forward the whole package to the appropriate Macy's shipping office to be sent to the customer.
Gilmore testified that, in exchange for cash payments, he helped various Macy's employees steal fragrances and other merchandise by disguising it as legitimately purchased goods and packaging it for shipment. He would accomplish this, he testified, by packing a box full of fragrances and labeling the outside of the box with a sales receipt for legitimately-purchased housewares of approximately the same weight as the stolen fragrances. Typically, the employee who requested shipment of stolen merchandise would obtain the housewares receipt by purchasing various housewares items for cash from the Macy's housewares department.
Both Reed and Gilmore testified that Gilmore agreed to help Reed ship boxes of fragrances out of the store for delivery to various New York City addresses. In late September 1999, Reed brought Gilmore the first such shipment, which consisted of several boxes of fragrances and which Gilmore, at Reed's direction, sent to Reed's grandmother's residence. Reed testified that, two or three days after that shipment, he picked up the boxes at his grandmother's residence and brought them to Perfume Plaza, where petitioner counted the fragrances, gave Reed between $2000 and $2500 in cash and asked Reed to arrange for several similar shipments per month. In the ensuing months, Reed brought approximately six shipments to petitioner and was paid accordingly. Although it is unclear from the parties' submissions whether Reed, in particular, requested shipments directly to Perfume Plaza, Gilmore testified that he shipped stolen fragrances to that store approximately six or seven times. As will be explained below, Macy's records confirmed that eighteen shipments of "housewares" were sent to petitioner at Perfume Plaza.
Shortly before Christmas 1999, Reed told petitioner that he had nearly resolved his financial difficulties, that he had taken a higher paying job and that he no longer wanted to continue dealing with petitioner. According to Reed, petitioner pressed him to continue shipping fragrances and repeatedly tried to contact him via phone and pager, but Reed did not return petitioner's calls.
2. Malcolm Gaspard and the Macy's Investigation
As Director of Investigations at Macy's Herald Square, Malcolm Gaspard performed duties that included identifying and investigating theft from the store. On February 7, 2000, Leo McCalla, one of Gaspard's subordinates, received an anonymous tip that merchandise was being shipped out of the store illegally that day. McCalla proceeded to one of the store's shipping offices and inspected various boxes that had been sent by Gilmore for shipping. One of those boxes, whose attached receipt stated that it contained "housewares" and was to be shipped to a "Mr. Delaware" at 130 Orchard Street in Manhattan, actually contained several boxes of fragrances.
Two days later, Gaspard and John Matas, Macy's Vice President for Security, approached Gilmore about the theft. They told Gilmore that a camera had caught him stealing and they offered him a chance to make a statement. After speaking with Gaspard and Matas for three or four hours, Gilmore signed a written statement and was then fired and told to go home. Several days later, Gilmore was called back into Macy's, where a Detective Thomas Hill interviewed him. Gilmore told Detective Hill about his agreements with other employees to ship stolen goods out of the store, including to send fragrances to Perfume Plaza. At the end of that interview, Detective Hill arrested Gilmore.
Based on the information Gilmore had given him, Gaspard initiated an investigation. Gaspard testified at trial that he found that the "shortage rate" in the Macy's fragrance department from July 1999 through January 2000 was 10.10%, approximately five times higher than normal "shortage rates" for the department and representing a dollar value of $1,374,139. Moreover, Gaspard testified that Macy's records indicated that eighteen shipments of between five and eleven boxes each had been sent from Macy's to Perfume Plaza during 1999. The documentation for fifteen of those shipments stated that the associated merchandise, which had been purchased for cash, consisted of "housewares" and had been shipped to Perfume Plaza at the direction of "Raju."
A "shortage rate" with respect to a given department at Macy's is computed by dividing the value of missing merchandise from that department by the total sales of the department within a given time frame. In the cosmetics and fragrance departments, Gaspard testified, typical shortage rates were between 1% and 2%.
According to the state's appellate brief, documentation for the remaining three shipments to Perfume Plaza was not reviewed as part of Gaspard's investigation.
On February 20, 2000, a Macy's fraud investigator named Eileen Carroll went to Perfume Plaza, purchased two bottles of fragrances for $72 and then gave the bottles to Gaspard. The next day, Gaspard went to Perfume Plaza and purchased approximately $279 worth of fragrances. Gaspard photocopied the bar code from one of the purchased bottles and faxed it to a Macy's representative at Cosmair, a company that distributed that particular fragrance to Macy's. From the faxed bar code, Gaspard testified, the representative concluded that the associated bottle of perfume had originally been sent by Cosmair to Macy's.
Petitioner makes much of the fact that the Cosmair representative was asked to scan a faxed photocopy of a bar code, which, petitioner argues, would necessarily be of dubious quality. However, according to respondent's submission, a Cosmair representative at trial performed a scan directly on the package that Gaspard had previously photocopied and apparently obtained an identical reading. Thus, it appears that, even if it could be established that a faxed copy of a bar code is generally not readable, it was not necessary for the jury in this case to rely on the scan of the faxed submission alone to connect the bottle taken from Perfume Plaza with Macy's missing stock.
On February 29, 2000, Detective Hill, Gaspard and five other Macy's employees executed a search warrant on Perfume Plaza. More than 5,000 bottles of fragrances were seized and brought to Macy's. Petitioner and several others were arrested.
Back at Macy's, the seized bottles' bar codes were scanned and checked against Macy's computer records to determine whether the bottles bore "lot numbers" that Macy's fragrance distributors had also sent to Macy's. Approximately $179,000 worth of fragrance bottles, representing about two thirds the value of the seized bottles, were determined to carry lot numbers identical to those of fragrances in Macy's inventory. These bottles were inventoried, photographed, inspected by petitioner's counsel and eventually restocked by Macy's employees for sale. Detective Hill testified that he returned the remaining bottles to Perfume Plaza.
B. Petitioner's Case
Petitioner's evidence consisted of the testimony of Charles Mara, an expert in "bar code technology," and Constantina Aprilakis, a former summer intern in defense counsel's law offices.
1. Charles Mara
Mara opined that it was not logical to assume that a fragrance distributor necessarily would ship two fragrance bottles carrying the same lot number to the same retailer. Based on the state's evidence, Mara testified, there would have to have been over four million bottles of perfume in each of the lots for which bar codes had been provided. It was unlikely, Mara stated, that Macy's or any other retailer would purchase four million bottles of perfume at any one time. Fragrance distributors would therefore have to break up their lots and distribute individual cases of bottles to different retailers. Mara concluded that it was therefore impossible to state with certainty based on lot numbers alone that the bottles seized from Perfume Plaza and stored at Macy's had originally belonged to Macy's.
Mara also offered an opinion on bar code scanning. He tested the bar codes of various fragrance bottles for the jury and demonstrated by scanning the codes several times that such scanning could yield different results on the same bar code. He also testified that the photocopied bar code that Gaspard had faxed to Cosmair in February 2000 was of such poor quality that a scanner would have been unable to scan the copy correctly.
It is not apparent from the parties' submissions whether Mara addressed the fact that the Cosmair representative who testified at trial apparently directly rescanned the same fragrance bar code that had originally been faxed and came up with the same result. See note 4, supra.
2. Constantina Aprilakis
Aprilakis testified that, after the search warrant had been executed at Perfume Plaza and the seized bottles stored at Macy's, she accompanied petitioner and defense counsel to Macy's to inspect the seized bottles. She testified that each box or bag of fragrances had an inventory sheet attached to it, and she took photographs of the fragrances and inventoried them herself. Petitioner's counsel apparently sought to elicit from Aprilakis at trial that Aprilakis's count of the seized bottles yielded a lower number of bottles than the inventory sheets attached to the bottles yielded. However, the trial court precluded that testimony on hearsay grounds. On the same grounds, the court also denied petitioner's counsel's request that Aprilakis be permitted to testify that various Macy's employees had told her that some of the seized bottles had gone missing from the storage area.
C. Petitioner's Motion to Exclude the Fruits of the Perfume Plaza Search
Prior to and during trial, petitioner moved to preclude the results of the Perfume Plaza search on the grounds that the underlying warrant was both overbroad and based on a deliberately false affidavit by Detective Hill. The trial court denied petitioner's motion without a hearing both times the issue was raised.
D. Verdict and Sentencing
On June 19, 2001, a jury found petitioner guilty of Grand Larceny in the Second Degree and Criminal Possession of Stolen Property in the Second Degree. Petitioner was sentenced to concurrent prison terms of one and one-half to four and one-half years and fined $5,000. Petitioner served his term of incarceration and was then released on parole.
II. Petitioner's Appeal
In August 2003, after he had been released from prison, petitioner appealed to the Appellate Division, First Department. In his appellate brief, petitioner argued that: (i) the search warrant executed on February 29, 2000 was defective because Detective Hill had lied in his supporting affidavit and because the warrant was overbroad; (ii) the prosecution had filed a "certificate of readiness" under N.Y.C.P.L. § 30.30 when the prosecution was not, in fact, ready to try petitioner's case; (iii) various documentary evidence was not produced to defense counsel until shortly before or during trial, depriving petitioner of effective representation by counsel; (iv) the trial court made several evidentiary rulings adverse to petitioner that denied petitioner his right to effective representation; (v) the state failed to prove petitioner's guilt beyond a reasonable doubt; and (vi) the sentence imposed on petitioner was harsh and excessive. On May 18, 2004, the Appellate Division affirmed petitioner's conviction and sentence in their entireties. See People v. Katharu, 7 A.D.3d 403, 776 N.Y.S.2d 476 (1st Dep't 2004).
By letter to the Court of Appeals dated June 15, 2004, petitioner's counsel requested leave to appeal the Appellate Division's decision. On August 26, 2004, Judge Rosenblatt of the Court of Appeals denied petitioner's application. People v. Katharu, 3 N.Y.3d 676, 784 N.Y.S.2d 15 (2004).
III. The Habeas Petition
On September 13, 2004, petitioner filed his habeas petitionpro se in this Court. In it, petitioner seeks relief on many of the same grounds raised in his state appeal. Specifically, he argues that: (i) the February 29, 2000 search of Perfume Plaza was unconstitutional because the search warrant was overbroad and based on a false affidavit; (ii) he was denied effective assistance of counsel because the state's allegedly false "certificate of readiness" caused the state to produce documents late; (iii) he was denied effective assistance of counsel when the trial court made several adverse evidentiary rulings at trial; (iv) he was denied effective assistance of counsel when his attorney failed to inform him of an alleged offer by the state to agree to a six month plea deal; (v) the state failed to prove guilt beyond a reasonable doubt; and (vi) the sentence imposed on him was excessive. For the reasons set forth below, the petition is denied.
DISCUSSION
I. The Search Warrant
Petitioner first argues that the search and seizure conducted on February 29, 2000 at Perfume Plaza was unconstitutional because the underlying search warrant was defective. Petitioner raised this same argument, however, both at trial and in his appeal. The Appellate Division affirmed the trial court's denial of petitioner's challenge, holding that:
the [trial] court, which had denied defendant's pretrial application for a hearing to challenge the veracity of the affiant's statements in support of a search warrant . . . properly denied his renewed requests for such a hearing made during trial. To the extent that any of the trial evidence could be viewed as contradicting the warrant application, these discrepancies were, at most, trivial and they did not suggest that the affiant made statements that were intentionally or recklessly false. . . . Furthermore, we conclude that the warrant was sufficiently narrow in scope. . . .People v. Katharu, 7 A.D.3d 403, 403-404, 776 N.Y.S. 2d 476 (1st Dep't 2004) (internal citations omitted). As noted above, the Court of Appeals then denied petitioner's request for leave to appeal this holding.
In these circumstances, the state "has provided an opportunity for full and fair litigation of [petitioner's] Fourth Amendment claim," and federal habeas relief is therefore not available to petitioner. Stone v. Powell, 428 U.S. 465, 489-95 (1976) ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."); see also Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991) (same). Accordingly, petitioner's claim on this ground is denied.
II. Effective Assistance of Counsel
Petitioner claims that he was denied effective assistance of counsel on three grounds. First, petitioner argues, the state falsely claimed that it was ready for trial when it was not, which caused the state to be late in producing relevant documents to petitioner's trial counsel. Second, the trial court ruled against petitioner on various evidentiary issues at trial. Third, petitioner contends that his counsel failed to advise him that the state had offered to accept a six month plea agreement from petitioner.
A. Speedy Trial and Document Production
Petitioner contends that the state declared under the New York speedy trial statute, C.P.L. § 30.30, that it was ready for trial before it was actually ready. Petitioner argues that his trial was therefore scheduled too soon to allow the state to produce documents to his counsel sufficiently in advance of trial.
The speedy trial issues that petitioner raises are issues of state, not federal, law and therefore are not appropriate to consider on a petition for habeas relief. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Moreover, with respect to his claim of late document production, petitioner offers no explanation for how that production impeded his counsel's effectiveness at all, let alone how it could have rendered his trial fundamentally unfair on a constitutional level. Indeed, the trial court apparently offered petitioner's counsel additional time to review the subject discovery at the time it was produced. We fail to see why this remedy did not cure any prejudice that petitioner might otherwise have suffered. Accordingly, this claim is denied.
B. The Trial Court's Evidentiary Rulings
Petitioner contends that the trial court erred in ruling that: (i) David Galante, a representative from Cosmair, would not be permitted to conduct an in-court scan of the bar code of one of the allegedly purloined fragrance bottles; (ii) Aprilakis would not be permitted to testify that she had learned from lost inventory sheets and from conversations with various Macy's employees that some of the fragrance bottles seized from Perfume Plaza and stored at Macy's had gone missing after they were seized; and (iii) the jury would not receive an adverse inference charge based on the absence of a videotape of an "undercover purchase" of fragrances from Perfume Plaza. Petitioner argues that these rulings denied him his right to effective representation.
In his submission to this Court, petitioner also alleges a "denial of cross-examination" by the trial court. However, because petitioner offers no factual basis for this claim (and we can discern none), we will not treat it as a stand-alone claim but rather assume that petitioner means to argue that the evidentiary rulings listed above denied his counsel the ability effectively to cross examine the state's witnesses.
Wholly apart from petitioner's questionable effort to characterize his evidentiary challenges as an ineffective assistance claim, federal courts are extremely reluctant to grant habeas relief based on challenges to state evidentiary rulings.See, e.g., Estelle, 502 U.S. at 67-68; Crane v. Kentucky, 476 U.S. 683, 689 (1986) (noting the "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state courts"). Even erroneous rulings on state evidentiary issues warrant habeas relief only if they rise to the level of constitutional error by rendering a habeas petitioner's trial fundamentally unfair. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988).
There is scant support in this record for petitioner's contention that the challenged evidentiary rulings were incorrect. Indeed, as noted above, the Appellate Division affirmed each of those rulings. Moreover, even if the rulings were erroneous under New York law, we cannot see how they could have rendered petitioner's trial fundamentally unfair. At most, petitioner's evidentiary challenges could have cast doubt on several small pieces of what appears to have been an abundance of evidence in support of the state's case. Accordingly, habeas relief on this ground is denied.
C. Counsel's Failure to Advise Petitioner of a Plea Offer
Petitioner's contention that his counsel failed to advise him of an offer by the state to accept a plea involving six months of incarceration is more worrisome than petitioner's other claims. The Second Circuit has held that an attorney's failure to advise his client of a plea offer may constitute ineffective assistance of counsel under the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 688 (1984). See Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (holding that "[a] defendant suffers a Sixth Amendment injury where his attorney fails to convey a plea offer" and that "a significant sentencing disparity in combination with defendant's statement of his intention is sufficient to support a prejudice finding").
However, petitioner never presented this claim to the New York state courts on direct appeal. Under the habeas statute, a federal court may not consider a habeas claim unless the petitioner has exhausted his available state remedies. 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, petitioner "must have `fairly presented' each federal claim to the highest state court." Fama v. Comm'r of Correctional Servs., 235 F.3d 804, 808-09 (2d Cir. 2000) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). However, petitioner included nothing in his state submissions alleging that his trial counsel had failed to advise him of any plea offer. Accordingly, petitioner's ineffective assistance claim based on this allegation must be dismissed as unexhausted.
Petitioner is advised that, should he wish to exhaust his state remedies on this claim in order to refile his habeas petition, he should do so forthwith because his one-year time within which to file a (properly exhausted) habeas petition challenging his conviction is currently set to expire on or about November 26, 2005.
Petitioner's one-year clock, see 28 U.S.C. § 2244(d)(1), started to run on November 26, 2004, when his time to appeal to the Supreme Court of the United States expired. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). The clock did not stop running during the pendency of the present petition. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
III. Proof of Guilt
Petitioner claims that there was a "lack of evidence of guilt" at trial because, "at best, only one bottle of perfume (not thousands) could possibly have been proven to have once been Macy's property." Apparently relying on Mara's opinion that identical lot numbers on different fragrance bottles does not necessarily mean that the bottles came from the same retail store, petitioner appears to be arguing that the only bottle taken from his store that could have been "proven" to have come from Macy's was the bottle whose bar code the Cosmair representative confirmed had been sent to Macy's.
To succeed on a claim of insufficient evidence under the habeas statute, petitioner must show that, considering the evidence in the light most favorable to the state, no rational trier of fact could have found petitioner guilty beyond a reasonable doubt.See, e.g., Dixon v. Miller, 293 F.3d 74, 81-82 (2d Cir. 2002). Petitioner cannot meet this "heavy burden," id. (quotingUnited States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995)). Petitioner's argument that Cosmair could conclusively trace only one of the seized fragrance bottles to a shipment that the company had sent to Macy's ignores the myriad of other evidence tending to prove petitioner's guilt. The state's case consisted of, among other things, the testimony of people who had sold stolen goods and delivered them to petitioner in exchange for money, the Macy's paper trail confirming boxes having been sent to petitioner at Perfume Plaza and the bottles seized from petitioner's store, of which thousands shared the same lot numbers as those corresponding to actual bottles on Macy's shelves. We cannot say that, based on the totality of the evidence, no rational jury could reasonably have convicted petitioner. Accordingly, this claim is denied.
IV. The Sentence
Petitioner's final claim is that his "sentence was excessive because it was based on the assumption that [petitioner] possessed thousands of bottles of perfume from Macy's, rather than, perhaps, just one." As discussed above, there was a sufficient basis for the jury to conclude that petitioner possessed many bottles of purloined perfume. When a conviction is supported, a federal habeas court has no ground to challenge any sentence that falls within the legally permissible range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Because petitioner's sentence fell well within that range, the sentence was permissible and petitioner's habeas challenge to it must be denied.
As noted at the outset, petitioner was convicted of Grand Larceny in the Second Degree and Criminal Possession of Stolen Property in the Second Degree. Both of these crimes are Class C felonies under New York law and are punishable by a maximum term of fifteen years in prison. Petitioner received concurrent sentences of one and one-half to four and one-half years and a fine of $5000.
CONCLUSION
The portion of the petition that is based on an alleged failure by petitioner's trial counsel to advise petitioner of a plea offer is dismissed without prejudice to refiling once petitioner has exhausted his state remedies. The remainder of the petition denied for the reasons set forth above. Moreover, constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253; see also Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). In addition, we certify that any appeal from this decision would not be taken in good faith. See 28 U.S.C. § 1915(a) (3). The Clerk of the Court is respectfully requested to close this case on the Court's docket.
IT IS SO ORDERED.