Cotto v. Fischer

Decision Date23 August 2012
Docket Number09 CV. 9813 (SAS)(MHD)
PartiesEDDIE COTTO, Petitioner, v. BRIAN FISCHER, Commissioner, NYS Department of Correctional Services, Respondent.
CourtU.S. District Court — Southern District of New York

EDDIE COTTO, Petitioner,
v.
BRIAN FISCHER, Commissioner, NYS Department of Correctional Services, Respondent.

09 CV. 9813 (SAS)(MHD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 23, 2012


REPORT & RECOMMENDATION

TO THE HONORABLE SHIRA A. SCHEINDLIN, U.S.D.J.:

Pro se petitioner Eddie Cotto seeks a writ of habeas corpus to challenge his conviction, entered on October 25, 2006, in New York State Supreme Court, New York County, on one count of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Sale of a Controlled Substance in the Third Degree. The court sentenced him to concurrent determinate sentences of six years with three years of post-release supervision for each charge. Cotto appealed to the Appellate Division, First Department, which affirmed the conviction, and the Court of Appeals denied his application for leave to appeal. Cotto is currently serving his term of post-release supervision, which has a maximum expiration date of January 28, 2014.

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In his timely petition1, Cotto asserts seven grounds on which he claims he is being held unlawfully. First, he raises a legal-sufficiency claim, alleging that the evidence at trial was insufficient to show that he had sold a controlled substance to an undercover officer. Second, he argues that he was denied due process by the trial court's ruling that permitted into evidence the money recovered from his person at the time of his arrest in order to prove his intent to sell. Third, he alleges that one of the undercover officers gave perjured testimony and asserts that the court should therefore have dismissed the charges. Fourth, he asserts that there was no probable cause to arrest him. Fifth, he claims that he was denied his due-process right to a public trial by the trial court's closure of the courtroom and decision to allow the two undercover officers to testify anonymously. Sixth, he

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claims that the trial court failed to adequately respond to a note from the jury requesting clarification of the acting-in-concert theory. Seventh, he alleges that two officers testified under different shield numbers in the grand jury and at trial. (Pet. 5-6(i)).

Respondent opposes the petition. He contends that petitioner's legal-sufficiency claim is partially procedurally barred and, regardless, meritless. He further argues that the evidentiary claim is meritless and the Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976). With respect to petitioner's courtroom-closure claim, he argues that the claim is procedurally barred but also meritless. Petitioner's jury note claim and perjured testimony claim, he argues, are also meritless. And lastly, he contends that the claim concerning the differing shield numbers is unexhausted, procedurally barred, and frivolous. (See generally Resp't's Opp'n Mem. of Law ("Resp't's Opp'n")).

For the reasons that follow, we recommend that the writ be denied and the petition dismissed with prejudice.

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BACKGROUND

Petitioner's conviction stems from his alleged participation in a sale of narcotics on January 7, 2006. On that date, in the vicinity of 110th Street and Lexington Avenue in Manhattan, a team of New York City Police Department ("NYPD") officers from the Manhattan North Narcotics Unit ("MNN") conducted a "buy and bust" operation -- an operation in which an undercover officer attempts to purchase narcotics from a suspect and a team of other officers apprehends the individual involved if the officer is successful. (See Tr. I 307-09, 327-28)2. The team included two undercover ("UC") officers -- UC 5550, who was assigned to attempt to purchase narcotics, and UC 2772, who was assigned to be the operation's "ghost," monitoring UC 5550 for his safety. (Tr. I 331; see also Traverse3 ¶ 13). Shortly before 10:00 a.m., UC 5550 was in the vicinity of 1760 Lexington Avenue, and petitioner walked into the building. (Tr. I 340, 402). UC 5550 approached Cotto and asked him for heroin. (Tr. I 340). Cotto stated that he had run out but would return with more. UC 5550 then left the building and crossed the street, and after about fifteen minutes, the officer observed Cotto

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also exit the building. (Tr. I 345, 347). Cotto made eye contact with UC 5550 and pointed to a pouch around his waist, but then he stopped and said "hold on . . . there is a cop across the street." (Tr. I 348; see also Resp't's Opp'n at 5-6). Cotto then entered a van stationed at the southwest corner of 110th Street and Lexington Avenue. (See Tr. I 348; Resp't's Opp'n at 5-6).

UC 5550 was then approached by another individual -- Benito Acevedo, petitioner's co-defendant -- who asked him if he was looking to purchase narcotics. (See Resp't's Opp'n at 6; Tr. I 349, 353). Acevedo said he needed to "re-up" -- meaning restock -- and then went over the van that Cotto had entered. Cotto handed an object to Acevedo through the lowered window. Acevedo then sold UC 5550 two glassines of heroin, and the officer paid Acevedo $20 for them in "prerecorded buy money". (See Tr. I 353-57; Resp't's Opp'n at 6-7). The field team of police officers arrested Acevedo while UC 5550 pretended to escape, and other officers simultaneously arrested Cotto. UC 5550 then returned to identify both Acevedo and Cotto. The arresting officers recovered eight more glassines of heroin from Acevedo as well as the prerecorded buy money. From Cotto they recovered $146 in unmarked bills. (See Tr. I 360-61; Tr. II 31-32, 39, 98-99; Resp't's Opp'n at 7-8).

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On January 13, 2006, a New York County grand jury indicted Cotto and Acevedo on one count of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Sale of a Controlled Substance in the Third Degree. (See Resp't's Opp'n at 3).

PROCEDURAL HISTORY

I. Pretrial Proceedings

Before trial, Cotto moved to suppress the $146 seized from him incident to his arrest, arguing the it was the fruit of an illegal search, as the arresting officer did not have probable cause to arrest him. (Oct. 17, 2006 Tr. ("Mapp Tr.") 122-26).

At a Mapp4 hearing held October 16-17, 2006, Justice Rena K. Uviller of New York Supreme Court heard testimony from two NYPD officers -- Detectives Fleming and Briecke -- regarding the circumstances of the "buy and bust" operation, Acevedo's arrest, Cotto's arrest and the search incident to Cotto's arrest. (Mapp Tr.

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2-140). The court found, based on the testimony provided, that the officers had had probable cause to arrest Cotto based on radio transmissions to them from UC 2772 about a positive buy and that the $146 seized from Cotto was seized incident to his lawful arrest. (Mapp Tr. 135-39). Accordingly, the court denied suppression of the $146 recovered from Cotto. (Mapp Tr. 139).

The court also ruled on a request by defense counsel pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), to prohibit the prosecution from inquiring into facts surrounding any of petitioner's prior sales or attempted sales convictions. Petitioner had eight prior convictions for the sale or attempted sale of controlled substances, several of which the prosecution wished to inquire about should Cotto choose to testify. (Oct. 18, 2006 Tr. ("Sandoval Tr.") 17-22). The court ruled that the prosecutor would be permitted to bring out the fact that Cotto had eight prior felony convictions in total and that the last three of those convictions were for sales or attempted sales of controlled substances. (Sandoval Tr. 26).

Lastly, just prior to the start of trial, the court held a

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Hinton5 hearing on October 19, 2006, ruling that the courtroom would close for the testimony of the two undercover officers. (Tr. I 164). At the hearing, both UC 5550 and UC 2772 testified as to the risks undercover agents face by testifying in open court (see, e.g., Tr. I 140, 153-54), threats they had received in their capacity as undercover officers (see, e.g., Tr. I 138, 150-51) and the precautions needed to prevent discovery of their true profession. (See, e.g., Tr. I 142, 155). Petitioner's counsel opposed the prosecution's application for a closed courtroom and for the undercover officers to testify under their badge numbers instead of their names. In support of this position, he argued that UC 2772 had already been identified by Cotto during the "buy and bust" operation and yet the officer had received no threats and had not been subjected to any interference with his work. (Tr. I 162-63). Petitioner's counsel reasoned further that the application for closure, based on the "generalities and assumptions and presumptions" that UC 2772 had made, applied to other people but not to Cotto. (Tr. I 163). As a result of this, he argued, the officers faced no threat from Cotto and the courtroom should not be closed. (Tr. I 163). Counsel also requested that if the court was inclined

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to close the courtroom, Cotto's girlfriend should be permitted to stay. (Tr. I 163). The Court ruled that it would close for the testimony of the two undercover officers on the basis that they both had open cases with "lost subjects"6, continuing investigations in the area in which Cotto was arrested, and subjects out on bench warrants. (Tr. I 164). However, the Court made an exception for the significant others of both defendants as well as an additional Legal Aid attorney. (Tr. I 165).

II. Trial Proceedings

Trial commenced on October 19, 2006, and the prosecution brought forth -- primarily through the testimony of the two undercover officers and the two arresting detectives -- evidence detailing the circumstances that had led to Cotto's arrest, the arrest itself, and the search incident to Cotto's arrest. (See, e.g., Tr. I 339-41, 347-51, 353-61; Tr. II 134-50). The prosecution also submitted as evidence various photographs of the neighborhood where Cotto had been arrested, the narcotics seized from Acevedo at the time of his arrest, the $20 of prerecorded buy...

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