Loney v. New York State Dept. of Corrections
| Decision Date | 08 July 2009 |
| Docket Number | No. 08 Civ. 7026 (VM).,08 Civ. 7026 (VM). |
| Citation | 632 F.Supp.2d 337 |
| Parties | Jermaine LONEY, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Jermaine Loney, Gowanda, NY, pro se.
DECISION AND ORDER
Pro se petitioner Jermaine Loney ("Loney"), who is currently incarcerated at Gowanda Correctional Facility in New York ("Gowanda"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Loney was convicted in New York State Supreme Court, Bronx County (the "Trial Court") of Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.39(1). The Trial Court sentenced Loney to a prison term of four-and-a-half to nine years. The State Supreme Court, Appellate Division, First Department (the "Appellate Division"), affirmed the conviction on appeal. In his petition, Loney asserts two bases for habeas relief. First, he argues that the Trial Court's closure of the courtroom during an undercover officer's testimony violated his right to a public trial under the Sixth Amendment. Second, Loney argues that the Trial Court incorrectly admitted the undercover officer's written description of the suspect into evidence. For the reasons discussed below, Loney's petition is DENIED.
This case began with a police "buy and bust" operation in the Bronx. On February 24, 2004 at about 2:00 p.m., two New York City police officers arrived at 218th Street and Bronxwood Avenue. One of the officers, Detective Michael Rosario ("Rosario"), exited his vehicle and walked towards 217th Street, where he saw a man (the "Suspect") standing in front of a building at 901 East 217th Street. Rosario radioed the description of the Suspect to the field team. The second officer, an undercover detective (the "Undercover Officer"), then got out of his vehicle and walked toward the Suspect. The Undercover Officer also transmitted a description over his one-way radio, saying: "Male black, wearing a gray and black jacket, blue hoodie, blue jeans, blue baseball cap, Yankee." (Respondent Br. 8.) The Undercover Officer approached the Suspect and asked for "one." (Id.) The Suspect replied by pointing at the building and saying "Let's go in here." (Id.) The two then entered the building.
Once inside the vestibule of the building, the Suspect pulled a plastic bag containing 1.8 grams of crack cocaine from his pants and told the Undercover Officer: "This is my last one." (Id.) The Suspect handed the Undercover Officer the bag, and in exchange the Undercover Officer gave him ten dollars of pre-recorded "buy money." The Undercover Officer left the building and gave Rosario a positive sign, indicating that he had just purchased drugs. As he walked back toward his car, the Undercover Officer again transmitted a description of the Suspect over a point-to-point radio. The Undercover Officer also wrote down a description of the Suspect on a piece of a paper: "M/B [male black] H/H [hand to hand] Blue Jeans Yankee Cap Sweat Hoody, Beard + Mustache Med. Complexion, Grey + Black Jacket." (Id. at 9.) The Undercover Officer then sealed that description in an envelope along with the purchased narcotics.3
About one minute after the Undercover Officer purchased the drugs, the Suspect left the building, walked around the corner, and entered a cafe. Rosario radioed the field team, telling them that there had been a positive buy and that both the Undercover Officer and the Suspect had left the building. The field team then walked into the cafe, and they soon exited with a man dressed in all black. Both Rosario and the Undercover Officer saw the field team leave with the man in black, and they told the field team that the wrong man had been apprehended. Rosario entered the cafe himself, spotted Loney sitting at the bar with a bottle of beer, and pulled him out of the cafe. The Undercover Officer then radioed the field team, telling them that Loney was the man he had purchased the drugs from. Rosario searched Loney, but did not find the buy money on him. Loney was taken into custody.
On April 5, 2004, Loney was indicted by a Bronx County Grand Jury on charges of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance In or Near School Grounds.
Before trial, the prosecution moved to close the courtroom during the testimony of the Undercover Officer. The Trial Court conducted a Hinton hearing to determine whether a substantial probability of prejudice to an important state interest justified closure. See People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972).
At the hearing, the Undercover Officer testified that he had made five to six buys in the vicinity of 901 East 217th Street as part of his work with the New York City Police Department. He stated that he expected to perform further undercover work in the area, planning to return there "at any given time." (Hinton Tr. at 15.) The Undercover Officer added that he expected to continue to perform undercover work in the area around the Bronx Supreme Courthouse. He also testified to various precautions he took in testifying at the courthouse, such as making sure not to publicly associate with prosecutors and dressing casually. In addition, the Undercover Officer said he wanted the courtroom to be closed out of both fear for his own safety and a desire to ensure that future undercover operations were successful.
The Trial Court granted the prosecution's application to close the courtroom, stating that the record indicated that there was a substantial probability of prejudice to state interests. The Trial Court's decision resulted in the exclusion of the general public from observing the Undercover Officer's testimony, but the defendant's parents were allowed to attend, and the Trial Court offered to discuss allowing other individuals to attend on a case-by-case basis. A transcript of the Undercover Officer's testimony was also made available to the public.
During the trial, both Rosario and the Undercover Officer testified as to what happened in the February 24, 2004 buy and bust operation, and both identified Loney as the man who sold the narcotics to the Undercover Officer. The defense advanced a theory of mistaken identity during the trial.
Initially, the Undercover Officer's written description of Loney was not admitted into evidence, as the Trial Court ruled that it was a prior consistent statement and was therefore inadmissable under New York State evidentiary rules. The Undercover Officer, however, was permitted to testify that he wrote down a description of the suspect. On summation, defense counsel argued that the identification testimony was not credible, as neither officer had enough time to adequately observe the suspect. The prosecution objected, arguing that in questioning the Undercover Officer's credibility, the defense had "opened the door" to allowing the written description into evidence. Over the defense's objection, the Trial Court admitted the written description. The Trial Court then read the description to the jury, and the defense counsel continued with its summation. Following summation, the Trial Court instructed the jury that the police identification testimony was admitted for a limited purpose: "as evidence of the witness's opportunity to observe and remember the alleged seller and to explain the conduct of the people to whom the information was given." (Appellate Br. 16).
During deliberations, the jury sent out four notes. One of those notes asked that the jury be permitted to re-examine the Undercover Officer's written description along with a read-back of part of his testimony. The jury was initially deadlocked, and the Trial Court delivered an Allen charge, asking the jurors to continue deliberating. The jury subsequently found Loney guilty of Criminal Sale of a Controlled Substance in the Third Degree.4
Judgment was entered against Loney on August 23, 2005. Loney was sentenced to four-and-a-half to nine years in prison.
Loney appealed the verdict to the Appellate Division, where he raised two arguments. First, he argued that the Trial Court abused its discretion in closing the courtroom during the Undercover Officer's testimony, which violated his Sixth Amendment right to a public trial. Second, he argued that the Trial Court improperly admitted a prior consistent statement into evidence because the defense summation did not open the door to the Undercover Officer's written description.
On September 20, 2007, the Appellate Division affirmed the conviction, finding that the Trial Court properly closed the courtroom and properly admitted the written description into evidence. See People v. Loney, 43 A.D.3d 726, 841 N.Y.S.2d 444 (1st Dep't 2007). On November 30, 2007, the New York Court of Appeals denied Loney leave to appeal. See People v. Loney, 9 N.Y.3d 991, 848 N.Y.S.2d 609, 878 N.E.2d 1025 (2007).
Loney filed the instant petition seeking relief under 28 U.S.C. § 2254 on July 12, 2008, advancing the same two claims he asserted in his appeal. First, he argues that the Trial Court deprived him of his Sixth Amendment right to a public trial by closing the courtroom during the Undercover Officer's testimony because the prosecution failed to meet "the substantial probability of prejudice" standard. Second, he argues that the Trial Court improperly allowed the Undercover Officer's written description into evidence because the description impermissibly bolstered the prosecution's identification testimony.
As an initial matter, the Court is mindful that Loney is proceeding pro se, and that his submissions should thus be held to "less stringent standards than formal pleadings drafted by lawyers." Ferran v....
To continue reading
Request your trial
-
Jordan v. Lamanna
...Waller's fourth prong satisfied by information support the closure "gleaned" from the trial record); Loney v. N.Y. State. Dep't of Corr., 632 F. Supp. 2d 337, 347 (S.D.N.Y. 2009) (Waller's fourth prong "met if the trial judge grounds his reasoning on facts contained in the record that are s......