Anderson v. Miller
| Decision Date | 26 September 2022 |
| Docket Number | 9:19-CV-1123 (BKS) |
| Parties | GUY ANDERSON, Petitioner, v. MARK MILLER, Superintendent, Green Haven Correctional Facility[1], Respondent. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES OF COUNSEL:
GUY ANDERSON
Petitioner pro se
HON LETITIA JAMES MICHELLE ELAINE MAEROV, ESQ.
Attorney for Respondent Ass't Attorney General
BRENDA K. SANNES
DECISION AND ORDER
Petitioner Guy Anderson ("Petitioner") seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Pet."). Respondent opposed the petition. Dkt. No. 30 (Memorandum of Law in Opposition); Dkt. No. 31 (Answer); Dkt. No. 32 (State Court Records). Petitioner filed a traverse. Dkt. No. 36.
For the reasons that follow, the habeas petition is denied and dismissed.
In March 2012, Petitioner was charged, with other defendants, in a two hundred and sixty-one count indictment with conspiracy in the second degree, and other narcotic offenses. SR at 347.[3] The charges stemmed from Petitioner's involvement in an alleged conspiracy to sell cocaine and heroin in various counties in New York and Vermont. Id. at 464.
During the investigation, Supreme Court Justice Joseph C. Teresi issued a series of eavesdropping warrants. SR at 127-131, 951-1042. The first warrant, issued on October 5, 2011, authorized the Organized Crime Task Force ("OCTF") to intercept and record telephonic and electronic communications occurring over telephones subscribed to Petitioner's alleged co-conspirators. Id. at 1036-1042. Subsequent amended and extended warrants were issued from October 25, 2011 until February 1, 2012. Id. at 127-131, 9511041. The February 1, 2012 amended warrant included telephonic and electronic communication over a telephone assigned to Petitioner (the "7198 phone"). Id. at 267-271, 413.
Upon the State's applications, and pursuant to Criminal Procedure Law ("CPL") §700.50(2)[4], Judge Teresi issued sealing orders on November 3, 2011, December 1, 2011, December 9, 2011, December 23, 2011, and January 20, 2012. SR at 272, 935-936, 939944, 949-950. Supreme Court Justice Thomas Breslin issued sealing orders on November 14, 2011, November 28, 2011, and January 13, 2012. Id. at 272-274, 277-280, 283-284, 937-938, 845-948. On February 3, 2012, Albany City Court Judge Helena Heath-Roland issued a sealing order which included telephone communications from Petitioner's telephone. Id. at 285-287, 933-934.
In a counseled omnibus motion, Petitioner moved to suppress evidence obtained through the eavesdropping warrants arguing, in relevant part, that the OCTF failed to comply with the statutory requirements related to sealing the evidence. SR at 297-312. The Albany County Court held a Dunaway-Mapp[5] hearing on February 7, 2013. SH at 1.[6]
At the hearing, Investigator Dennis Guiry ("Inv. Guiry"), the lead investigator with the OCTF in relation to Petitioner's case, testified that all calls intercepted pursuant to wiretapping were preserved on DVD-ROMS. SH at 10-11. Inv. Guiry testified that two different scenarios required a sealing order from a judge; if the thirty-day warrant was about to expire or if nothing relevant was captured from the wiretap.[7] Id. at 12, 30. In this case, discs were sealed on nine different occasions. Id. at 14-15. Of relevance herein, Inv. Guiry testified he sought sealing orders from Judge Breslin in November 2011 because Judge Teresi was out of town and "unavailable." SH at 20-22. The November 14, 2011 and November 28, 2011 sealing orders involved telephone calls intercepted from Petitioner's codefendant's telephones. Id. at 18-22. On February 3, 2012, Inv. Guiry obtained a sealing order from City Court Judge Heath-Roland for communication intercepted from Petitioner's telephone. Id. at 22. Inv. Guiry testified he "utilized" Judge Heath-Roland because Judge Teresi was "out of town" and Judge Breslin was "unavailable." Id. at 24. To assist Inv. Guiry with his testimony, the prosecutor provided a document (Exhibit 3) with notes about dates, times, and the reasons for sealing. Id. at 14; SR at 338.
On cross examination by Petitioner's counsel, Inv. Guiry testified that Judge Teresi directed them to "go to Judge Breslin" if Judge Teresi was out of town. SH at 29. On cross examination by co-defendant's counsel, Inv. Guiry testified that, on November 14, 2011, November 28, 2011, and February 3, 2012, an OCTF staff member called Judge Teresi's chambers and was told that the judge was not available or out of town. Id. at 42, 44, 46, 48. Based upon Judge Teresi's directives, Inv. Guiry met with Judge Breslin on November 14, 2011 and obtained the sealing order. Id. at 44. On November 28, 2011, upon learning that Judge Teresi was in Baltimore, Maryland, Inv. Guiry made the decision not "to drive five hours to see the judge." Id. at 45. With respect to the February 3, 2012 sealing order, Inv. Guiry testified Judge Breslin was "not in the building at the time that we wished to seal."
SH at 49-50. Inv. Guiry's staff attempted to locate another Supreme Court judge available at that date and time. Id. at 51. Inv. Guiry was unaware if any efforts were made to locate any other Supreme Court judges in the Third Judicial District. Id. at 51-52. Inv. Guiry was "directed by the prosecutor and/or [his] supervisor" to meet with Judge Heath-Roland. Id. at 52.
At the conclusion of the suppression hearing, the court afforded the parties an opportunity to submit additional briefing. SH at 123. On February 13, 2013, Petitioner's counsel submitted a Memorandum of Law in support of his motions for suppression and/or dismissal. SR at 339-341.
In a Decision and Order dated February 19, 2013, the Albany County Court denied Petitioner's motion to suppress. SR at 346-355. Of relevance herein, the court addressed Petitioner's claim that the statutory sealing requirements were not met. Id. at 353-354. The court found that Petitioner had standing to challenge only the February 3, 2012 sealing order signed by Judge Heath-Roland as that was the only order involving a wiretap of Petitioner's telephone. Id. at 354. The court cited to CPL § 700.50(2) and noted, "[c]ourts have consistently held that the sealing requirement of the statute be strictly construed to 'effectuate the purposes of preventing tampering, alterations, or editing of the tapes, aiding in establishing a chain of custody and protecting the confidentiality of the tapes.'" Id. The court noted that "unavailability of the issuing justice is not a valid excuse for the failure to timely seal tapes" and that the People must seek "on call judges who are capable of issuing a sealing order." Id. at 354-355. The court credited Inv. Guiry's testimony that his search for an alternate Supreme Court justice was "fruitless" due to the late nature of the request and concluded that the sealing order signed by Judge Heath-Roland satisfied the statutory sealing requirement. SR at 355.
At the conclusion of the joint jury trial, on May 20, 2013, Petitioner was convicted of conspiracy in the second degree, criminal sale of a controlled substance in the first degree (four counts), criminal sale of a controlled substance in the second degree (three counts), criminal sale of a controlled substance in the third degree (two counts), attempted criminal possession of a controlled substance in the first degree (two counts), attempted criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and operating as a major trafficker. SR at 464. Petitioner was sentenced as a persistent felony offender and a violent predicate offender to an aggregate prison term of 165 years to life. Id.
Appellate counsel filed a brief in the Appellate Division, Third Department.[8] SR at 178. Petitioner filed a pro se supplemental brief and appendix. Id. at 79-375. In the pro se brief, of relevance herein, Petitioner argued that he had standing to challenge the People's compliance with the sealing requirements related to the November 14th and November 28thsealing orders and asked the court to consider his challenges to the People's compliance with the sealing requirements. Id. at 90-98. Petitioner also argued that the February 3, 2012 sealing order did not comply with CPL § 700.50(2) because it was issued by a city court judge. Id. at 103-110. The People opposed. Id. at 376-462.
To continue reading
Request your trial