Grace v. Artuz

• Decision Date: 22 April 2003
• Docket Number: No. 00 CV 144(NG).,00 CV 144(NG).
• Citation: 258 F.Supp.2d 162
• Parties: John GRACE Petitioner, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

Page 162

258 F.Supp.2d 162

John GRACE Petitioner, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.

No. 00 CV 144(NG).

United States District Court, E.D. New York.

April 22, 2003.

John Grace, Stormville, NY, Pro se.

Amy M. Appelbaum, The Office of the District Attorney, Kings County, Brooklyn, NY, for Respondent.

ORDER

GERSHON, District Judge.

In this pro se petition for a writ of habeas corpus brought under 28 U.S.C. § 2254, petitioner, John Grace, challenges his April 1995 conviction, after a jury trial, in the New York State Supreme Court, Kings County (Harkavay, J.), of Criminal Possession of a Controlled Substance in the First Degree in violation of N.Y. Penal Law § 220.21[1], Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law (former) § 265.03, Criminally Using Drug Paraphernalia in the Second Degree (two counts) in violation of N.Y. Penal Law § 220.50[2], [3], and Criminal Possession of Marihuana in the Fifth Degree in violation of N.Y. Penal Law § 221.10[2]. Petitioner was sentenced to concurrent terms of imprisonment of twenty years to life on the Criminal Possession of a Controlled Substance in the First Degree count, five to fifteen years for the Criminal Possession of a Weapon in the Second Degree count, one year for each count of Criminally Using Drug Paraphernalia in the Second Degree and one year for the Criminal Possession of Marihuana in the Fifth Degree count.

Petitioner appealed from the judgment of conviction to the Appellate Division, Second Department, raising the following seven claims: (1) petitioner's statement to the police that he had a key to a safe and also the key itself, should have been suppressed, because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because, after reading petitioner his Miranda warnings, the police detective did not specifically ask petitioner if he wished to waive those rights before he asked petitioner to open the safe; (2) the court improperly denied suppression of various items seized by the police based on the plain view exception to the warrant requirement; (3) the court's pretrial ruling, under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), deprived petitioner of a fair trial; (4) the court erred in permitting various items into evidence because the prejudicial effect of their admission outweighed their probative value; (5) the court improperly prohibited defense counsel from calling a defense investigator, Jerry Crippen, as a witness; (6) the court erred by refusing to suppress marihuana recovered from a Premium Saltine cracker box because it was not reasonable for the police to believe that the cracker box contained a gun; and (7) petitioner's sentence of twenty years to life for the count of Criminal Possession of a Controlled Substance in the First Degree was excessive.

The Appellate Division determined that, because petitioner had not raised the specific issue concerning his Miranda rights at the hearing or in his motion papers that he raised on appeal, he had not preserved his Miranda claim for appellate review, and, in any event, petitioner had implicitly waived his Miranda rights. In addition, the Appellate Division found that petitioner's remaining claims either were without merit or did not warrant reversal. By memorandum decision and order dated December 8, 1997, the Appellate Division modified the judgment of conviction to the extent of reducing the sentence on the count of Criminal Possession of Marihuana in the Fifth Degree from one year to three months. In all other respects, the judgment of conviction and sentences were affirmed. People v. Grace, 245 A.D.2d 387, 665 N.Y.S.2d 584 (2d Dept.1997). Petitioner's application for leave to appeal to the New York Court of Appeals was denied. People v. Grace, 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890 (1998) (Kaye, C.J.).

On March 3, 1998, petitioner moved pursuant to Section 440.10 of the New York Criminal Procedure Law to vacate his judgment of conviction. Petitioner raised the following claims: (1) the prosecutor committed misconduct during summation; (2) the State failed to prove petitioner's guilt beyond a reasonable doubt and the verdict was against the weight of the evidence; (3) the trial court's charge to the jury contained various errors; (4) the trial court improperly dismissed two prospective jurors for cause; and (5) trial counsel was ineffective for failing to preserve the errors enumerated by petitioner in his Section 440.10 motion.

By decision and order dated July 12, 1999, the Supreme Court, Kings County (Harkavy, J.), denied the motion. The court ruled that all of petitioner's claims could have been raised on direct appeal and, therefore, they were procedurally barred from review by that court. Petitioner's motion for leave to appeal the decision to the Appellate Division was denied on October 27, 1999.

On October 18, 1999, petitioner filed an application for a writ of error coram nobis in the Appellate Division claiming that his appellate attorney was ineffective because he failed to raise the following claims on direct appeal: (1) the State failed to prove petitioner's guilt beyond a reasonable doubt and the verdict was against the weight of the evidence; (2) the prosecutor improperly vouched for the credibility of the people's witness during summation; (3) the trial court erred in refusing to permit defense counsel to call another witness, Mr. Palmer; and (4) the court's instruction to the jury contained various errors. By order dated February 14, 2000, the Appellate Division denied petitioner's application. People v. Grace, 269 A.D.2d 466, 702 N.Y.S.2d 907 (2d Dept.2000). In his petition for a writ of habeas corpus, petitioner raises all of the claims he raised on direct appeal, in his motion to vacate the judgment, and in his application for a writ of error coram nobis.

Background

On September 28, 1994, at approximately 7:30 a.m., the Emergency Service Unit ("ESU") of the New York City Police Department executed a warrant to search apartment 1-A at 716 East 105th Street in Brooklyn and petitioner, if he was present, for a .32 caliber semiautomatic pistol, which may have been used in the shooting of a police officer. The ESU broke down the door of the apartment with a battering ram and secured petitioner, his mother (Ms. Grant) and another female (Ms. Bartey¹) in handcuffs in the kitchen. In one of the bedrooms, the police found a loaded .38 caliber semiautomatic handgun between a mattress and box spring; a box containing the word "Beretta" on it which had the outline of a Beretta nine millimeter weapon on the inside; a box containing twenty-two nine millimeter cartridges as well as a loose .38 caliber cartridge; a bag containing more than one and one-half ounces of marihuana; a beeper; a ski mask; a clear plastic envelope containing approximately one hundred small, clear plastic bags; more than one thousand clear plastic vials and caps; a bulletproof vest; a small electronic scale; and a photograph of petitioner. A search of the safe that was found in the same bedroom closet revealed two bags of cocaine weighing more than five and one-half ounces, a vial of crack cocaine, $1200.00 in cash and two cellular telephones. Petitioner was arrested and the two women were released.

Suppression Hearing

Prior to trial, petitioner moved to suppress the physical evidence recovered from the apartment on the grounds that the detectives had no authority to seize items not listed in the search warrant and that several items seized did not fall under the "plain view" exception to the warrant requirement. Petitioner also moved to suppress his statements to police and the key to the safe that he gave the police on the grounds that he did not receive his Miranda warnings prior to giving his statements or turning over the key.

At a hearing on the motions, held on March 28, 29 and 30, 1994, Detective John Swift, a Detective Investigator for the New York City Police Department testified that, on September 28, 1994, at approximately 7:30 a.m., he executed a search warrant at 716 East 105th Street, in Kings County. The warrant authorized him to search for a .32 caliber semiautomatic weapon in Apartment 1A and on the person of John Grace, if he was present, at anytime without prior notice. Detective Swift testified that the Warrant Execution Squad of the ESU used a hydraulic ram to force entry to the apartment and placed petitioner, petitioner's mother and another woman in the hallway. Petitioner and the two women were handcuffed and then returned to the kitchen where they were placed in chairs facing the wall. Detective Swift testified that he read petitioner his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from a card that he carried with him, but did not ask petitioner the last question printed on the card, whether he was willing to speak to the police, because he was not going to question petitioner at that time. Detective Swift also testified that petitioner stated that he understood all of the Miranda warnings.

Detective Swift testified that he found a safe on the floor of one of the bedroom closets and asked petitioner to give him the combination or key to the safe or else he would have ESU come back and open it. Swift testified that petitioner told him that it wasn't necessary to call ESU back and he gave Swift a key to the safe. Detective Swift found two packages of cocaine, a vial of crack, two cellular telephones and $1,200.00 in United States Currency in the safe. In the same bedroom, detectives recovered a loaded .38 caliber semiautomatic handgun from between the mattress and boxspring of the bed; a bag of marihuana and a brown paper bag containing numerous clear plastic vials and caps from under the bed; numerous small plastic bags from inside the desk drawer; a...