Morman v. Superintendent
| Decision Date | 20 September 2021 |
| Docket Number | 9:18-CV-1338 (MAD/DJS) |
| Parties | JESSE J. MORMAN, Petitioner, v. SUPERINTENDENT, [1] Respondent. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
JESSE J. MORMAN Petitioner, Pro Se
HON LETITIA JAMES Attorney General of the State of New York Attorney for Respondent
OF COUNSEL:
PAUL B. LYONS, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER [2]
Pro se Petitioner Jesse Morman is currently incarcerated at Mid-State Correctional Facility. He seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner's incarceration stems from his conviction on May 15, 2013 for, inter alia, four counts of Criminal Possession of a Controlled Substance in the Third Degree and two counts of Criminal Sale of a Controlled Substance in the Third Degree. Dkt. No. 18-1, State Court Record (“SR.”) at pp. 166-169.[3] Petitioner was found to be a second felony offender by the trial court, and on June 27, 2013, was sentenced to a determinate aggregate term of 30 years imprisonment and three years of post-release supervision. SR. at pp. 8-9; Dkt. No. 18-2, Trial Transcripts (“TR.”) at pp. 609-612.[4] The Appellate Division Fourth Judicial Department, unanimously affirmed the conviction, but reduced Petitioner's sentence by half, to a determinate aggregate term of 15 years imprisonment. People v. Morman, 145 A.D.3d 1435 (4th Dep't 2016); People v. Morman, 145 A.D.3d 1439 (4th Dep't 2016).
Petitioner asserts the following grounds for habeas relief: (1) that his trial counsel was ineffective because he failed to object to the alleged improper sealing of his drug sale indictment and failed to move to suppress certain evidence; (2) that evidence was obtained pursuant to an unconstitutional inventory search; (3) that the trial jury violated his constitutional rights because two prospective jurors were overheard making comments indicating that Petitioner was already guilty; (4) that the trial court erred by permitting a police investigator to offer improper hearsay and opinion testimony; and (5) that certain isolated remarks of the prosecutor during summation were improper. Dkt. No. 1, Pet.
Respondent opposes the Petition and contends that the application should be denied. Dkt. No. 16, Resp.'s Mem. of Law. Petitioner has submitted a Traverse. Dkt. No. 27. For the reasons that follow, it is recommended that this action be dismissed in its entirety.
On January 5, 2012, Sgt. Jeremy Young, working an undercover detail for the Onondaga Sherriff s Department and acting on a tip from a confidential informant, organized a controlled buy with Petitioner Jesse Morman. SR. at pp. 45 & 431; Tr. at pp. 98-99 & 365-372. In particular, Sgt. Young called Mr. Morman on a cell phone and asked him to meet him on Gifford Street in Syracuse to sell him cocaine. SR. at pp. 45 & 431; Tr. at pp. 98-99. Immediately before going to location, Sgt. Young viewed a photograph of Petitioner. SR. at pp. 45 & 431; Tr. at pp. 99-101. According to Sgt. Young, he met with Petitioner at the agreed-to location at 6:30 p.m. and climbed inside Petitioner's car where Petitioner sold him $120 worth of cocaine. SR. at pp. 45-46 & 431; Tr. at pp. 99, 103, & 360. After the controlled purchase, Sgt. Young went back to his office and identified Petitioner from the same photograph he looked at before the transaction. SR. at pp. 46 & 431; Tr. at p. 99.
On January 10, 2012, at 5:20 p.m., Sgt. Young again participated in an undercover purchase of $80 worth of cocaine at the same location, inside Petitioner's car. SR. at pp. 46 & 434; Tr. at pp. 100 & 104. Once again, Sgt. Young viewed Petitioner's photograph both before and after the transaction. SR. at pp. 46 & 434; Tr. at p. 102. Petitioner was not arrested immediately after either of these drug transactions. Tr. at p. 370.
Three months later, on April 12, 2012, Petitioner was pulled over by the New York State Police in Syracuse for speeding. SR. at pp. 105-110. After discovery of an outstanding warrant, Petitioner was arrested and detained. Id. As detailed at length hereafter, an inventory search of Petitioner's vehicle was conducted, which discovered 17.23 grams of powder cocaine, baggies, and a digital scale. SR. at pp. 109 & 113. $1200 in currency was also found on Petitioner's person. SR. at p. 109. Miranda warnings were administered. SR. at p. 105; Tr. at p. 21. Petitioner allegedly told the police that he was “relieved the madness was over and he smoked a lot of stuff, cocaine, at the Red Roof” and he had purchased $700 of cocaine in Syracuse and smoked some of it earlier with “a girl.” SR. at pp. 123 & 132; Tr. at pp. 23 & 78.
On May 16, 2012, the first Indictment against Petitioner was handed up by the Onondaga County Grand Jury. SR. at pp. 66-68, Indictment 2012-0466-1. Petitioner was charged in that Indictment with two counts of Criminal Possession of a Controlled Substance in the Third Degree, two counts of Criminal Use of Drug Paraphernalia in the Second Degree, driving while ability impaired, [5] operating outside restrictions, and driving in excess of the speed limit. Id. These charges all arose out of the April 12, 2012 traffic stop. Id.
On November 21, 2012, the People of the State of New York filed a second four-count Indictment charging Petitioner with two counts of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Possession of a Controlled Substance in the Third Degree. SR. at pp. 13-15, Indictment 2012-1102-1. These charges related to the January 2012 undercover buys with Sgt. Young. Id.
Defense counsel filed Omnibus Motions in relation to both Indictments, including a request that the county court review the grand jury record and the sufficiency of the Indictments. SR. at pp. 17-23 & 70-91. Hearings were held and the state court ruled that the evidence before each grand jury was legally sufficient. SR. at pp. 44-47 & 149-157. The prosecutor then moved to consolidate the two Indictments, which Motion was opposed by defense counsel. Tr. at p. 108. On April 2, 2013, the County Court granted the Motion to Consolidate. Id. Thereafter, a three-day jury trial was held from May 13, 2013 to May 15, 2013. Tr. at pp. 119-598. Petitioner was found guilty on all counts. SR. at pp. 166-169; Tr. at pp. 594-597.
On June 27, 2013 the Onondaga County Court sentenced Petitioner to an aggregate 30-year prison sentence. SR. at pp. 8-12; Tr. at pp. 602-612. Petitioner appealed his conviction and sentence to the Appellate Division, Fourth Department, which affirmed the conviction but modified the sentence as a matter of discretion in the interest of justice by reducing the sentence on each count of Criminal Possession of a Controlled Substance in the Third Degree to a determinate term of five years of imprisonment. People v. Morman, 145 A.D.3d at 1440. Leave to appeal to the New York Court of Appeals was denied. People v. Morman, 29 N.Y.3d 999 (2017).
On November 28, 2016, Petitioner filed a Pro se Motion pursuant to New York Criminal Procedure Law (“CPL”) section 440. SR. at pp. 333-396. That Motion, which was later supplemented, SR. at pp. 403-419, argued that Petitioner was denied effective assistance of counsel on the grounds that his attorney did not object to the alleged defective second sealed Indictment; that counsel did not properly argue that the inventory search was improper; that his attorney failed to properly challenge the police officer's identification of him; and that there was insufficient corroboration for the January drug sale charges. SR. at pp. 338-358 & 403-419. The People opposed the Motion, noting that the claim was both procedurally barred and devoid of substance. SR. at pp. 397-400.
On December 27, 2017, Petitioner's CPL § 440 Motion was denied. SR. at pp. 463-468. Judge Doherty agreed that his claim was procedurally barred because there were sufficient facts in the record to have raised these issues on direct appeal, but Petitioner failed to do so. SR. at p. 465. Proceeding beyond the procedural bar, the Judge concluded that Petitioner's claims were meritless. The court ruled that there was no obligation of the District Attorney's Office to notify Petitioner of the grand jury action because there was no current undisposed felony charge pending in local court. SR. at p. 466. The court also noted that it was perfectly appropriate to seek a sealed indictment in light of the involvement of an undercover police officer, thereby protecting the disclosure of his identity. Id. Accordingly, it did not represent ineffective assistance for counsel not to challenge the sealing of the second Indictment, especially where defense counsel had already moved the court to inspect the grand jury minutes to determine whether legally sufficient evidence was presented to the grand jury and whether the grand jury proceedings were defective. SR. at p. 466. Counsel also moved to suppress evidence by arguing that it was improperly acquired, moved to suppress statements made to law enforcement personnel, and moved to suppress an in-court identification. SR. at pp. 466467. In conclusion, the court reviewed the performance of defense counsel and concluded that such counsel did provide meaningful representation to Petitioner, and therefore denied Petitioner's 440 Motion. SR. at p. 467. This proceeding followed.
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