Cruz-Checo v. Smith, 16-CV-04642 (AMD)
| Decision Date | 09 September 2019 |
| Docket Number | 16-CV-04642 (AMD) |
| Parties | MANUEL CRUZ-CHECO, Petitioner, v. BRANDON SMITH, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
The pro se petitioner, currently on supervised release,1 petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted after a jury trial of three counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[12]) and one count of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09[1]), and sentenced to an aggregate, determinate prison term of six years and two years of post-release supervision.
The petitioner claims that the trial court should have granted his motion to suppress physical evidence (ECF No. 2 at 5), and that the evidence against him was legally insufficient (Id. at 7). He also claims that the judge should have charged the jury on circumstantial evidence (Id. at 8), and that his trial lawyer was ineffective because he did not ask for the charge (Id. at 9). For the reasons that follow, the petition for a writ of habeas corpus is denied.
On August 23, 2012, police officers Jennifer Cinque and Collin Wynter were on uniformed patrol in Queens when they saw the petitioner and his co-defendant, Christopher Dunleavy, sitting in a parked van. (ECF No. 10-2 at 330:4-11, 332:20-23, 420:19-422:20.) Dunleavy had two crack pipes in his lap, and the petitioner's hand was near a compartment "flap" underneath the front passenger seat (Id. at 334:16-22, 425:17-426:17), which was closing when the officers reached the van (Id.). The officers took the petitioner and Dunleavy out of the van, and handcuffed them. (Id. at 429:2-429:8.) They brought the van back to the precinct, got a search warrant, and found 159 bags of cocaine, 228 decks of heroin, and $343 in cash in the compartment. (Id. at 433:4-434:6, 436:25-437:8.)
The petitioner was charged with three counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[12]), one count of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09[1]), and one count of Criminal Possession of a Controlled Substance in the Seventh Degree. (N.Y. Penal Law § 220.03). (ECF No. 10-2 at 600:9-600-19.)
The defense moved to suppress the two crack pipes. On August 13, 2013, Judge Ronald Hollie held a combined Dunaway/Mapp hearing on the petitioner's motion. (Id. at 1:15-1:18.) Officer Jennifer Cinque testified for the prosecution. (Id. at 3:7-3:9.)
Officer Cinque, an officer in the 104th Precinct Street Narcotics Enforcement Unit, testified that on the evening of August 23, 2012, she and her partner, Officer Wynter, were onuniformed conditions patrol when she saw the petitioner, a known drug dealer, driving a van. (Id. at 7:4-19, 8:6-25.) The van stopped near a fire hydrant and another man, Christopher Dunleavy, approached the passenger side. (Id. at 9:12, 11:7-25.) Officer Cinque pulled up in front of the van, and she and Officer Wynter got out and approached the vehicle. (Id. at 13:10-17, 14:21-15:5.)
The petitioner's right hand was near a compartment "flap" underneath the van passenger seat; the flap was closing. (Id. at 15:10-16:15.) Officer Cinque was concerned that there might be a weapon in the car, so she removed the petitioner from the van, handcuffed him, and placed him on the sidewalk. (Id. at 17:9-18.) Officer Wynter removed Dunleavy from the van and handcuffed him after a brief struggle. (Id. at 17:19-21, 19:4-8.) Officer Wynter handed Officer Cinque the two crack pipes that Dunleavy had on his lap. (Id. at 22:12-15.) Officer Cinque examined the passenger area and saw a compartment, which she tried unsuccessfully to open. (Id. at 20:15-20, 23:14-15, 45:8-13.)
Next, the officers took the petitioner, Dunleavy, and the van to the precinct. (Id. at 23:20-22.) Officer Cinque did a license plate check and found that the van was not registered to the petitioner. (Id. at 31:6-32:11.) She got a search warrant for the van, opened the compartment with a crowbar, and found 159 bags of crack cocaine, 228 decks of heroin, and $343. (Id. at 24:3-21, 25:8-16.)
The petitioner's counsel argued that Officer Cinque did not have probable cause to arrest the petitioner, and that the two crack pipes should be suppressed.3 (Id. at 47:12-50:2.) Judge Hollie denied the motion to suppress.
The petitioner went to trial before Judge Robert C. Kohm and a jury in January of 2014. (Id. at 59.) The prosecution called two witnesses - Officer Cinque and Officer Wynter - and two experts -N.Y.P.D. chemist Radha Kalra, and N.Y.P.D. criminalist Adam Schlessel. The defense did not put on a case. (Id. at 487:13-17.)
On August 23, 2012 at around 8:00 p.m., police officers Cinque and Wynter of the Street Narcotics Enforcement Unit were on uniformed patrol in the 104th precinct. (Id. at 330:4-18, 418:24-419:5.) When they saw Christopher Dunleavy approach the passenger's side of a van parked near a fire hydrant (Id. at 331:25-332:23, 420:19-422:14), Officer Cinque, the driver, pulled up in front of the van. (Id. at 333:11-333:19, 419:19-20.) Officer Cinque went to the driver's side of the van, while Officer Wynter approached the passenger's side. (Id. at 334:8-19, 425:16-426:10.)
The petitioner, who was in the driver's seat, was in the process of pulling his hand away from what looked like a compartment under the passenger's seat. (Id.) The "flap" was closing. (Id. at 425:16-426:10, 463:2-4.) At that point, Officer Cinque opened the driver's side door, removed the petitioner from the van, and handcuffed him. (Id. at 429:2-16.) Meanwhile, Officer Wynter saw that Dunleavy had two crack pipes in his lap. (Id. at 334:8-19, 354:7-355:6.) Officer Wynter took the crack pipes, put them in his pocket, and handcuffed Dunleavy after a brief struggle. (Id. at 336:2-5, 337:10-24.) Officer Wynter handed Officer Cinque the crack pipes for vouchering. (Id. at 339:7-340:4.)
Officer Cinque then looked inside the van, and found the compartment underneath the passenger's seat. (Id. at 431:3-17.) She took the van to precinct, and got a search warrant tosearch the compartment.4 (Id. at 431:21-433:3.) She used a crowbar to open the compartment, and found 159 bags of cocaine, 228 decks of heroin, and $343 cash. (Id. 433:13-25, 435:8-10, 436:25-437:8.) Radha Kalra, an N.Y.P.D. chemist, confirmed that the bags contained cocaine, and the decks contained heroin. (Id. at 378:15-386:2.) Adam Schlessel, an N.Y.P.D. criminalist, tested one of the two crack pipes and determined that it contained cocaine residue. (Id. at 406:5-12.)
On January 16, 2014, the trial court held a charging conference. (Id. at 482:18-485:19.) Neither side requested a circumstantial evidence charge. (Id.) The judge charged the jury the next day, January 17, 2014. (Id. at 490.)
The jury found the petitioner guilty of three counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[12]) and one count of Criminal Possession of a Controlled Substance in the Fourth Degree. (N.Y. Penal Law § 220.09[1]). (Id. at 586:7-587:1, 587:8-21.) The jury acquitted the petitioner of Criminal Possession of a Controlled Substance in the Seventh Degree, (N.Y. Penal Law § 220.03). (Id. at 587:2-6, 587:8-21.)
On February 24, 2014, Judge Kohm sentenced the petitioner to concurrent determinate prison terms of six years on each of the Third Degree possession charges and four years on the Fourth Degree possession charge, as well as two concurrent terms of post-release supervision. (Id. at 600:9-602:3.)
The petitioner, represented by counsel, appealed his conviction to the Appellate Division, Second Department. (See ECF No. 10 at 1-35.) He argued that the police did not have reasonable suspicion to stop the van, and that the evidence from the compartment should have been suppressed. (Id. at 8.) He also argued that the evidence was legally insufficient,5 and that the trial court should have given a circumstantial evidence charge. (Id. at 15, 21.) Finally, he contended that his sentence was excessive. (Id. at 26.)
On February 10, 2016, the Appellate Division unanimously affirmed the petitioner's conviction. People v. Cruz-Checo, 136 A.D.3d 840 (2d Dep't 2016). The Appellate Division rejected the petitioner's claims, concluding that they were "unpreserved for appellate review" and otherwise meritless. Id. at 840. The court found that the evidence "was legally sufficient to establish the defendant's guilt beyond a reasonable doubt," and that a circumstantial evidence jury charge was unnecessary because "the evidence was not wholly circumstantial." Id.
The petitioner's application for leave to appeal to the Court of Appeals was denied on May 3, 2016. People v. Cruz-Checo, 27 N.Y.3d 1067 (2016).
The petitioner filed this pro se habeas petition in July of 2016. (ECF No. 2.) He renews his claims that the hearing court should have suppressed the evidence from the van (ECF No. 2 at 5), that the prosecution did not prove his guilt beyond a reasonable doubt (Id. at 7), and that the trial judge should have given a circumstantial evidence charge (Id. at 8). He also claims that histrial lawyer was ineffective because he did not request a circumstantial evidence instruction. (Id. at 9). For the reasons that follow, the petition for a writ of habeas corpus is denied.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires a federal court reviewing a state prisoner's habeas petition to give deference to a state court's decision on the merits. 28 U.S.C. § 2254(a). The federal court may not issue a writ of habeas corpus unless the state court's decision ...
To continue reading
Request your trial