Opinion
02 Civ. 3700 (GEL).
June 19, 2003.
Irving Arolik, Esq., New York, NY, for Petitioner.
Darian B. Taylor, Esq., Office of the New York State Attorney General (Eliot Spitzer, Attorney General of the State of New York, of Counsel), for Respondent.
OPINION AND ORDER
Jose Santana brings this petition under 28 U.S.C. § 2254 for a writ of habeas corpus to challenge his conviction for selling crack cocaine to an undercover police officer near school grounds, and the resulting sentences totaling fifteen years to life in prison. The petition will be denied.
BACKGROUND
The principal evidence at trial consisted of the testimony of police officers Earl Williams and Gene Isnardi. Detective Williams testified that on September 11, 1997, while working as an undercover officer investigating drug sales on West 134th Street in Manhattan, he purchased nearly two and a half ounces of crack cocaine from Santana and Victor Perez for $2000. The transaction was not a momentary one. Williams testified to negotiating with Santana over the price and quantity of drugs in the lobby of a building on 134th Street; responding to questions designed to test his bona fides as a drug purchaser; observing Santana through a window while Santana went back outside to confer with Perez; walking a block or two with Santana and Perez to another building on Amsterdam Avenue; waiting at the Amsterdam Avenue building while Santana entered the building, came back out, returned to 134th Street, and then came back again; meeting inside the Amsterdam Avenue building to exchange the money with Santana for a brown paper bag containing the drugs; and obtaining a pager number from Santana. Williams also testified that he saw Santana with Perez again on September 22, and discussed purchasing additional drugs from him the next day. Although Williams made several additional purchases from Perez and other associates as the investigation continued, he never dealt with Santana again. In the interim between the two meetings, Detective Isnardi, who had observed portions of Williams' interactions with Santana and Perez on September 11, approached Santana on the street and found a pretext to ask for his identification, thus learning Santana's name and address.
On January 27, 1998, after the investigation had concluded, Williams and Isnardi went to an observation post overlooking 134th Street to look for the subjects of the operation. Isnardi spotted Santana and arrested him. (Trial Transcript ("Tr.") at 75) The next day, Williams picked Santana out of a lineup. (Tr. 238-39) He also identified Santana in court as the person from whom he had bought drugs on September 11 (Tr. 195), as did Isnardi. (Tr. 57-58, 94-97)
DISCUSSION
Santana now challenges his conviction on three grounds, arguing (1) that he received ineffective assistance of counsel because his lawyer failed adequately to challenge the admissibility of Williams' identification testimony; (2) that his Sixth Amendment right to confront Williams was denied when Williams was allowed to assert the Fifth Amendment privilege in response to questions about his involvement in a domestic violence incident; and (3) that the trial judge erred in permitting Williams to testify about identifying another Perez associate in a lineup. None of these grounds warrants the relief sought.
1. Ineffective Assistance of Counsel
Represented by new counsel on his direct appeal, Santana argued that his trial counsel had been ineffective because, in moving to suppress Williams' identification testimony, counsel had attacked only the alleged suggestiveness of the lineup, and had not pursued the argument that Williams' identification was unreliable because he had viewed a photograph of Santana repeatedly during the period between the crack purchase in September and the arrest and lineup identification in January. The Appellate Division rejected this argument on the merits, finding that "counsel's strategic decisions with regard to the making of motions to suppress . . . certain identification testimony by police officers were appropriate. In any event, defendant received a full hearing regarding identification evidence and there is no indication that defense counsel would have obtained suppression or preclusion of any evidence had his strategy been different." People v. Santana, 718 N.Y.S.2d 848 (1st Dept. 2001). Under 28 U.S.C. § 2254(d)(1), since Santana's claim was adjudicated on the merits in the state courts, habeas corpus may only be granted if the Appellate Division's decision was contrary to, or an unreasonable application of, Supreme Court precedent.
The Supreme Court standard for ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to succeed in such a claim a petitioner must demonstrate that "(1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (emphasis added) (citing Strickland, 466 U.S. at 687). As is evident from the logic of its decision, and from its citation to People v. Benevento, 91 N.Y.2d 708, 713-14 (1998) (a New York decision that cites and applies Strickland), the Appellate Division applied the correct standard.
Nor was its decision an unreasonable application of theStrickland rule. Trial counsel, who provided a vigorous defense both through motion practice and at trial, moved to suppress the identification testimony. He chose to focus on the propriety of the lineup, and pressed his objection through a full evidentiary hearing. As the Appellate Division noted, the choice to emphasize this argument rather than to pursue the claim that the identification was tainted by the officer's having reviewed a photograph was a "strategic" choice. Counsel need not pursue every possible argument, and may make reasonable decisions about which arguments present the strongest chance of success. See Jones v. Barnes, 463 U.S. 745, 754 (1983) (judges are not to "second guess reasonable professional judgments" made by counsel).
Neither on direct appeal nor here, where he is represented by yet a third lawyer, has Santana presented a coherent explanation of why the strategy he now suggests would have been more likely to obtain suppression of the evidence, and accordingly he has failed either to show that counsel's failure to pursue that strategy was deficient or that pursuing it would have affected the outcome of the trial. Santana argues that because "Officer Williams conceded to daily viewing of the Petitioner's photograph over a period of about two months," counsel should have sought suppression of the identification on this ground. (Addendum to Petition, at 1.) He presents no evidence of the circumstances under which the photograph was viewed or when the photograph was taken. The only evidence in the record regarding the viewing is a stipulation that the People advised defendant before the trial that Williams had viewed a photograph of Santana "approximately daily, . . . from on or about September 11, 1997 through November 9, 1997." (Tr. 401-02).
In order to succeed in challenging Williams' identification of Santana in court and at the lineup, Santana would need to show that the identification procedures were tainted by suggestiveness and that the identifications were not independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 114 (holding that "reliability is the linchpin in determining the admissibility of identification testimony");Raheem v. Kelly, 257 F.3d 122, 133-34 (2d Cir. 2001) (discussing standards for challenging identification testimony).
Santana cannot meet this test. First, in the absence of any evidence of the circumstances under which Williams obtained the photograph in question, there is no basis to infer that the viewing of the photograph was unduly suggestive.
Second, even if the viewing of the photograph was suggestive, a suggestive procedure "does not in itself intrude upon a constitutionally protected interest" unless it contributed significantly to the identification of the defendant. Manson, 432 U.S. at 113 n. 13. Here, the circumstances of the identification strongly support a finding that the identification testimony was independently reliable. In determining whether a witness' in-court identification of the defendant has reliability independent of unduly suggestive identification procedures, courts take into account such factors as "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
This is not the case of a lay victim who observed a robber under stressful circumstances in an unexpected and fleeting encounter. Williams, a trained police officer, had a lengthy interaction with Santana, under relatively calm circumstances in which his attention was focused on identifying and remembering the persons with whom he was dealing. The lineup identification took place only a few months after the incidents in question, not a particularly long time in light of the other factors. Furthermore, Santana points to no indication in the lengthyWade hearing nor in the trial testimony that Williams' description of the perpetrator was in any way inconsistent with Santana's appearance, or that he was less than decisive in either the in-court or lineup identification.
Santana thus does not come close to showing that the evidence would likely have been suppressed if counsel had made the suggested motion. Absent such a showing, the Appellate Division's rejection of his ineffectiveness argument was a reasonable application of Strickland.
Santana also argues, in passing, that trial counsel should have objected that Williams' testimony was further tainted by the rooftop observation with Isnardi the day before the lineup. (Addendum at 2.) He fails to explain why there is anything improper or suggestive about having the undercover officer and the surveillance officer scan the street to see if they can identify any of the suspects.
2. Sixth Amendment Right to Confrontation
At the time of the trial, Williams was on modified duty, having been arrested in November 1997 and charged with a domestic assault. On cross-examination, Williams admitted that he had been arrested and charged with various crimes, including endangering the welfare of a child, and that if he were convicted "it could be the end of [his] career." (Tr. 246) Williams then proceeded to assert his Fifth Amendment privilege in response to a series of questions in which counsel asked him about the details of the offenses, essentially asking him whether he had committed various acts alleged in the complaint and/or police reports of the incident. (Tr. 247-50) Santana now argues that the trial judge denied him his confrontation rights by permitting Williams to invoke the privilege.
The State argues that Santana never presented this argument to the state courts, and that the argument is therefore unexhausted and procedurally defaulted (Resp. Opp. at 13, 23); Santana attempts to argue that the point was somehow encompassed in his ineffective assistance argument (Pet. Reply at 8-9). This dispute need not be resolved, since the trial judge's ruling was correct on the merits.
It is well established that when a witness invokes his Fifth Amendment privilege on cross-examination, the defendant's confrontation rights under the Sixth Amendment are abridged only if the subject of the inquiry is not collateral to the witness' direct testimony and the defendant is thereby deprived of a meaningful opportunity to test the truth of the witness' direct examination. See Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir. 1991). The incident about which Williams declined to testify had nothing to do with the drug transactions with which Santana was charged, nor with his direct testimony. Thus, the testimony concerned an entirely collateral matter, bearing at most on the officer's credibility. Moreover, Santana had a full opportunity to cross-examine Williams about the substance of his testimony, his general credibility, and his motive to testify favorably to the prosecution, including to elicit that he had been charged with a crime and to put before the jury, by means of the questions that Williams declined to answer, the details of the offense. See United States v. Yip. 930 F.2d 142, 147 (2d Cir. 1991). Santana thus had a full opportunity to confront Williams.
There is no question that Williams' assertion of the privilege was proper. The defense was asking him to admit that he had committed the very acts that he was being prosecuted for at the time of his testimony.
3. Admissibility of Other Identification Testimony
Finally, Santana claims that the trial court improperly permitted the prosecution to "bolster" Williams' testimony by permitting him to testify that he had identified another alleged associate of Perez, one Jose Toribio, from a lineup. (Addendum at 3-4) Whether or not this testimony was admissible presents at most a question of state law, which has already been decided against Santana. Santana, 718 N.Y.S.2d at 848. Such evidentiary rulings will generally not present questions of federal constitutional right cognizable on habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (stating that an inquiry into an admissibility ruling under state law "is no part of a federal court's habeas review of a state conviction"). Here, far from being able to show that the ruling denied him a fundamentally fair trial, Santana cannot even explain how the identification of another person who was not even present during the offenses with which he was charged could possibly have prejudiced his mistaken-identity defense.
CONCLUSION
Because none of Santana's claims have merit, the petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).