Torres v. O'Meara
| Decision Date | 12 February 2019 |
| Docket Number | 9:18-CV-0344 (DNH) |
| Citation | 353 F.Supp.3d 180 |
| Parties | Joel TORRES, Petitioner, v. Elizabeth O'MEARA, Respondent. |
| Court | U.S. District Court — Northern District of New York |
JOEL TORRES, Petitioner, pro se, 15-B-0794, Franklin Correctional Facility, P.O. Box 10, Malone, New York 12953
MICHELLE ELAINE MAEROV, ESQ., Ass't Attorney General, HON. LETITIA JAMES, Attorney for Respondent, New York State Attorney General, The Capitol, Albany, New York 12224
DECISION and ORDER
Petitioner Joel Torres ("Torres" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet.").
On March 27, 2018, the Court directed a response to T orres's petition. Dkt. No. 2, Decision and Order.
On September 11, 2018, respondent filed an opposition to the petition. Dkt. No. 10, Respondent's Answer ("Ans."); Dkt. No. 10-1, Respondent's Memorandum of Law ( ); Dkt. No. 11, State Court Records ("SCR"); Dkt. No. 12, Transcripts.
On October 10, 2018, Torres filed a reply. Dkt. No. 16, Traverse. For the reasons that follow, petitioner's habeas petition is denied and dismissed.
Prior to testifying for the prosecution, and outside the presence of the jury, the CI alerted the court and the attorneys that he intended to testify that Torres was not the one who sold him drugs. T. 261-62, 264-66.1 Instead, the CI stated that he "want[s] to cop the 5th and not say nothing[.]" T. 275-76. Shortly thereafter, the CI abruptly changed his mind, however, and agreed to answer questions if he felt they would not incriminate him. T. 284.
The trial court offered to appoint counsel for the CI, T. 279-80, 284-85, but he repeatedly declined the offer, T. 280-81, 284. Eventually, the jury was recalled and the CI was placed under oath. T. 285-86. The CI testified that he knew Detective Pratt, the officer in charge of the controlled buy, and agreed to participate in a buy for him. T. 287-88, 293-94. However, the CI could not remember where he was on the date of the controlled buy. T. 291-92. Further, the CI was unable to read, so he could not review his grand jury testimony to refresh his recollection or account for where exactly he made the controlled buys because he could not read the street signs. Id.
The CI confirmed that he knew Torres, but testified that he had never purchased drugs from him. T. 299, 301-302. The CI specifically recounted that the person he bought the drugs from was "not in th[e] courtroom, that's for sure," and that he "d[i]dn't know his name ... [he] just went up to him, and [the CI] bought the drugs." T. 294-96.
The People then questioned Detective Pratt. T. 302-376. Pratt stated that all controlled buys began with confidential informants undergoing a strip search "to make sure [the CI had] no illegal narcotics on him or money of his own[.]" T. 306-07. This buy was no different, and after the CI was searched, Pratt provided him with marked money for the controlled buy and an audio transmitter to record the CI's conversations. T.324-25. Pratt drove the CI to Voorhees Street ("Voorhees"), parked the car, and watched as the CI exited the car, walked down Voorhees, and then turned right onto East Main Street ("East Main"). T. 328. While Pratt could no longer see the CI after he turned down East Main, he could hear him speaking to people as he walked. T. 364. Pratt commented that the CI "knows everybody [in that area] in passing." T. 364-65.
When the CI turned onto East Main, his surveillance was taken over by Detective DiCaprio, who was located on East Main between Voorhees and John Street ("John"). T. 519. DiCaprio heard Pratt drive the CI to Voorhees and then saw the CI walk from the corner of Voorhees, across East Main, and then turn and proceed down John. T. 522-23. DiCaprio noted that the CI T. 526. However, DiCaprio did see the CI talking on his phone as he was walking to the controlled buy location. T. 527.
As the CI proceeded down John, Detective Spaulding took over the surveillance. T. 430. Spaulding was sitting in a car, parked on John, and watched as a man stopped behind her car to meet with the CI. T. 435-36, 39-40. During the trial, Spaulding identified Torres as the man who stopped behind her car to meet with the CI. T. 436. Spaulding observed that it was just the two of them interacting with one another on the street. T. 440. She could also hear their conversation over the audio device and watched "them ... exchange hands ... [as i]f I'm handing you something and you take it from my hand." T. 441-42. After this quick exchange, petitioner retreated to a house on John and the CI beg an walking back towards the direction from which he initially came. T. 442-43.
The CI then returned into the view of Detective DiCaprio, who watched the CI walk back up John, turn left onto East Main, continue back toward Voorhees, and eventually turn left onto Voorhees. T. 527-28 (). DiCaprio noted that he had continuous sight of the CI during that time, and the CI never stopped to speak or interact with anyone. T. 529. As the CI began to leave DiCaprio's view, DiCaprio radioed to Pratt that the CI was now on Voorhees within Pratt's eyesight. Id.
Pratt testified the CI returned to his car and handed him two glassine bags and the audio transmitter. T. 332-33. Pratt and the CI went back to the precinct where the CI was again strip searched. Id. Nothing was found during the search. Id. Lastly, the substance within the bags tested positive for heroin. T. 530-31; see also T. 557-58 (); SCR 38-39 ().2
During cross-examination, Pratt acknowledged that the CI seemed to stop walking a few times on the audio recording, when the CI was outside of Pratt's line of sight. T. 365-66. All the detectives commented that the CI was speaking to people, either as he passed them on the street or during the course of a phone call, while he was walking to and from the location of the controlled buy. T. 367-68, 447-48, 526-27. Nevertheless, the jury convicted Torres of one count of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. Torres , 146 A.D.3d at 1086-87, 45 N.Y.S.3d 651.
Torres filed a counseled brief on direct appeal to the Appellate Division, Third Department. SCR 88-107. The petitioner alleged: (1) his conviction was against the weight and sufficiency of the evidence; (2) his due process rights were violated when the CI was called to the stand and permitted to testify that he, in fact, did not buy drugs from petitioner because the CI's testimony shifted the burden from the prosecution to the petitioner to prove the witness credible; (3) his Sixth Amendment right to confrontation was denied because the CI's diminished credibility prevented petitioner from effectively cross-examining him; and (4) the trial court erred in admitting evidence of the drugs because there was a break in the chain of custody. Id.
The Third Department affirmed Torres's conviction. People v. Torres , 146 A.D.3d 1086, 1087, 1088, 45 N.Y.S.3d 651 (3rd Dep't 2017). First, the appellate court explained that a person is guilty of third degree criminal sale of a controlled substance where he "knowingly and unlawfully sold a narcotic drug." Id. at 1087 (citing N.Y. Penal Law § 220.39(1) ). Further, a person is guilty of third degree criminal possession of a controlled substance where he "knowing and unlawfully possessed a narcotic drug with the intent to sell it." Id. (citing N.Y. Penal Law § 220.16(1) ). The Third Department found that:
[t]he trial testimony established that the CI was strip-searched prior to the controlled buy to ensure that he was not concealing any contraband, drugs or currency. The detectives gave the CI marked money for the controlled buy and equipped him with a wire. The detectives observed the CI approach the location for the subject transaction, and one detective testified that she witnessed the CI and [petitioner] meet on the street and that she saw them "exchange hands." [Petitioner] subsequently went inside a building and the CI walked away. The detectives continued their surveillance of the CI and watched him make no other stops as he returned to their vehicle. The CI turned over two glassine envelopes to the detectives. Upon their return to the police station, a strip search of the CI revealed nothing on his body.
Id. at 1087, 45 N.Y.S.3d 651. The Third Department ultimately concluded that the "verdict was based upon legally sufficient evidence." Id.
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