Rivera v. Kaplan
| Docket Number | 17-CV-2257 (RA)(SN) |
| Decision Date | 20 July 2020 |
| Parties | LILLIAN RIVERA, Petitioner, v. SABRINA KAPLAN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
THE HONORABLE RONNIE ABRAMS
REPORT AND RECOMMENDATION
Petitioner Lillian Rivera, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 2 (the “Petition”). Rivera is serving an aggregate sentence of twenty-five years after being convicted of conspiracy in the second degree, criminal possession of a controlled substance in the first and third degrees, and criminal sale of a controlled substance in the third degree. In support of the Petition, Rivera raises numerous arguments concerning purported violations of her constitutional rights. On April 10, 2018, the Honorable Ronnie Abrams referred the Petition to me for a report and recommendation. ECF No. 15. Because I find that each of Rivera's arguments is either procedurally barred, non-cognizable, or without merit, I recommend the Court dismiss the Petition in its entirety.
Beginning in June 2007, the New York City Police Department investigated a large-scale cocaine dealing operation led by Rivera. See ECF No. 21-7 at 88-89, 95-99. On July 11, 2008, a New York County grand jury charged Rivera, along with co-defendants Mario Bracero, William Rivera, Candido Gonzalez, Aaron Gonder, Joseph Ramirez, and Benny Garay, with Conspiracy in the Second Degree (N.Y. Penal Law § 105.15) based on conduct from August 29, 2007, through March 7, 2008. See ECF No. 21-2 at 29-40. Rivera was also charged, either alone or with one or more co-defendants, with one count of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21(1)); five counts of Criminal Sale of a Controlled Substance in the Third Degree (id. § 220.39(1)); six counts of Criminal Possession of a Controlled Substance in the Third Degree (id. § 220.16(1)); two counts of Criminal Possession of a Controlled Substance in the Fourth Degree (id. § 220.09(1)); and two counts of Criminal Possession of a Controlled Substance in the Fifth Degree (id. § 220.06(5)). ECF No. 21-2 at 52-60.
In May 2009, before trial, Rivera moved to suppress any testimony or physical evidence obtained through video surveillance, pen registers, or recordings of telephone conversations obtained through wiretaps. See ECF No. 21-2 at 88. Rivera also moved to suppress any evidence of physical property-including testimony about such property-allegedly seized from her upon arrest. Id. On August 5, 2009 New York County Supreme Court Justice Gregory Carro denied Rivera's suppression motions without a hearing. Id. at 74-87. Briefly, in denying the motion to suppress evidence obtained through video surveillance Justice Carro held that because the investigative surveillance cameras used were focused exclusively on public areas, Rivera could not make the required showing of a legitimate expectation of privacy. Id. at 77. With respect to evidence obtained by wiretapping, Justice Carro held, among other things, that the warrant authorizing the wiretapping met the exhaustion standard set forth under C.P.L. § 700.15(4) based on the affidavits of New York Police Department Detectives David Salvador and John McSherry. Id. at 78-79. Justice Carro also held that the warrant authorizing the use of a pen register and the collection of cell site location data was constitutional because the authorization was of reasonable duration and described with particularity and also because Rivera did not allege a reasonable expectation of privacy in her cell site location data. Id. at 83. Finally, with regard to the motion to suppress physical evidence, Justice Carro held that Rivera's application presented only a “general claim” attacking the “underlying basis” of the search warrants leading to the seizure of the physical evidence and that such an unsupported objection was grounds for denial of the motion. Id. at 84-87.
The trial of Rivera, Benny Garay, and Mario Bracero began on April 6, 2010, before Justice Carro in the Supreme Court of the State of New York, New York County. See ECF No. 21-6 at 96. On the second day of voir dire, Bracero pleaded guilty. Id. at 257-61, 269-276.
In 2007, the New York City Police Department (“NYPD”) initiated an investigation into a possible cocaine dealing operation based in the Dyckman Housing Project on the Upper West Side of Manhattan. See Tr. at 95-100, 1365-69, 1426 - 30, 1715-19.[2] The investigation consisted of undercover purchases of crack cocaine, surveillance, wiretapping, and analysis of cell site location information. For example, Undercover Officer 0096 (“UC 96”) carried out several purchases of crack cocaine from Rivera: on November 14, 2007, UC 96 purchased ten “twists” of crack from Rivera for $100; on November 19, 2007, UC 96 purchased 16 “clips” from Rivera for $160; on December 3, 2007, UC 96 exchanged $20 for 20 twists of crack from Rivera; and, on December 10, 2007, UC 96 purchased ten clear bags of powdered cocaine from Rivera for $200. Tr. at 546-52, 558-77, 583-87, 614.
In February 2008, the NYPD obtained eavesdropping warrants for a cell phone belonging to Julian Silva, whom the investigation revealed supplied cocaine to Rivera. ECF No. 21-3 at 164 n.7; ECF No. 21-4 at 93. On March 7, 2008, surveillance and intercepted telephone calls revealed that Rivera planned to procure a kilogram of cocaine from Silva that afternoon. Tr. at 1833-44. After additional surveillance and communication between officers, Detective Salvador, along with other NYPD detectives, concluded that Rivera and Silva's cousin were consummating the cocaine sale at a location near the Dyckman Houses. Tr. at 1868, 1873-76, 1878, 1999. Detectives followed Rivera and Garay as they traveled together in one car from Rivera's apartment building at 2181 Wallace Avenue to the nearby transaction location and back. Id.
Upon returning to her apartment building, Rivera exited a car driven by Garay and entered the building, at which time detectives observed her holding a “white and blue bag” in the shape of a rectangle. Tr. at 1751-55, 1769-71. Garay parked and followed Rivera into the building. Tr. at 1755. About thirty minutes later, Garay emerged from the building, got back in the car, and drove a short distance before Detectives Salvador and Hourican stopped him, arrested him, frisked him, and placed him in the detectives' car. Tr. at 1448-53, 1887-90. Detective Hourican later searched Garay and recovered a quantity of cocaine wrapped in a dollar bill, as well as $2,478 in cash. Tr. at 1456-59, 1485-87, 1615-17. At about the same time, Detective McLoughlin observed Rivera leave the building, walking her dog. Tr. at 1755-56. He immediately notified Detective Salvador, who drove around the block, saw Rivera with her dog, and arrested her. Tr. at 1453-54, 1476, 1891-93. Detectives immediately searched Rivera and recovered cash, a set of keys, a wallet, and “personal papers.” Tr. at 1477-79, 1487-90, 149596, 1898-99, 1912-17.
Shortly thereafter, Detective Salvador and other officers executed a search warrant at Apartment 1L at 2181 Wallace Avenue (the “Apartment”), where they found Rivera's brother, William Rivera, whom they also arrested. Tr. at 1758, 1903-04, 1923-27, 1934-37, 2065-66. The officers determined that one of the keys recovered from Rivera upon arrest opened a padlock to a bedroom in the Apartment. See Tr. at 1905, 1911, 1922. Officers searched the bedroom and found a brick of cocaine wrapped in plastic and concealed in a shoebox, as well as drug-packaging materials and multiple items associated with Rivera including her clothing, personal papers, and photographs. Tr. at 1467-68 1904-05, 1908-10, 1922, 2039-40. The same day, Detective Salvador also arrested three other individuals whom the investigaion linked to the Apartment, including one individual from whom undercover officers had made cocaine purchases. Tr. at 91-92.
On May 13, 2010, the jury returned a verdict convicting Rivera of conspiracy in the second degree, criminal possession of a controlled substance in the first and third degrees, and five counts of criminal sale of a controlled substance in the third degree. See ECF No. 21-2 at 28; ECF No. 21-9 at 743-49. On June 23, 2010, Justice Carro sentenced Rivera to an indeterminate term of imprisonment of 5 to 15 years on the conspiracy count, to run consecutively to a determinate prison term of 20 years and 5 years of post-release supervision on the first-degree drug possession count, along with lesser concurrent terms on the remaining drug counts, for an aggregate sentence of 25 years. ECF No. 21-9 at 787-88. V. Post-Conviction Proceedings
Rivera by counsel, timely appealed her conviction to the Appellate Division, First Department on the following grounds: (1) the evidence presented at trial was insufficient to support Rivera's possession conviction, which was against the weight of the evidence; (2) the trial court erroneously denied Rivera a pretrial hearing to determine whether there was probable cause for her arrest and whether the physical evidence from her apartment was lawfully obtained; (3) her sentence of twenty-five years was unduly harsh and excessive; (4) the state court erroneously denied Rivera's motion for a severance, based on statements made during Rivera's co-defendant's summation; (5) the state court improperly admitted evidence including testimony and physical evidence portraying Rivera, and her co-conspirators, as violent; (6) the trial court erred by admitting evidence obtained by wiretapping; (7) the prosecution...
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