Velez v. People of the State of New York

• Decision Date: 20 July 1996
• Docket Number: CV 93-3812 (ADS).
• Citation: 941 F.Supp. 300
• Parties: Jose VELEZ, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.
• Court: U.S. District Court — Eastern District of New York

941 F.Supp. 300

Jose VELEZ, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.

CV 93-3812 (ADS).

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

July 20, 1996.

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Jose Velez, Ryker's Island, OBCC, North Facility, East Elmhurst, NY, pro se.

James M. Catterson, Jr., Suffolk County District Attorney, by Barbara Rose, Assistant District Attorney, Riverhead, NY, for respondent.

SPATT, District Judge:

There having been no objections filed to the April 3, 1996 Report and Recommendation of United States Magistrate Judge Michael L. Orenstein, that the petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 be denied in its entirety, it is hereby

ORDERED, that the April 3, 1996 Report and Recommendation of United States Magistrate Judge Michael L. Orenstein, that the petition for a writ of habeas corpus be denied, is adopted as the decision of this Court, it is further

ORDERED, that this action be dismissed and no certificate of probable cause be issued, and it is hereby

ORDERED, that the Clerk of the Court is directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

ORENSTEIN, United States Magistrate Judge.

Petitioner Jose Velez, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 7, 1990, Velez was found guilty after a jury trial of two counts of burglary in the second degree (N.Y.Penal Law § 140.25(2)), under indictment number 843/89. On June 14, 1990, Petitioner entered a plea of guilty to an unrelated charge of attempted burglary in the second degree (N.Y.Penal Law §§ 140.25(2) and 110.00), under indictment number 1231/89. He was sentenced as a prior felony offender on July 19, 1990, to two concurrent terms of imprisonment of six to twelve years for the crimes of burglary in the second degree, and to a two-and one-half to five-year term on the attempted burglary conviction, to run concurrently with the burglary sentences. The Appellate Division affirmed the judgments of conviction, People v. Velez, 188 A.D.2d 670, 592 N.Y.S.2d 270 (2d Dep't 1992), and the Court of Appeals denied Petitioner leave to appeal. People v. Velez, 81 N.Y.2d 894, 597 N.Y.S.2d 956, 613 N.E.2d 988 (1993).

On February 1, 1995, Petitioner was paroled. He remains on parole only on the judgments of conviction under indictment number 843/89. His sentence for attempted burglary in the second degree under indictment number 1231/89 has expired.

In his application for collateral relief, petitioner raises a number of claims. First, he contends that his guilty plea to the attempted burglary charge was unlawfully induced, or, in the alternative, was made without an appreciation of the nature of the charge or the consequences of the plea. Second, he asserts that his convictions on the burglary charges were obtained by the use of evidence secured pursuant to an unlawful arrest. Third, Petitioner maintains that the prosecution used evidence at the trial that was brought to light by an unconstitutional search and seizure. Last, he alleges that his counsel's performance was ineffective, stressing that his trial attorney failed to advise him of his right to appear before the Grand Jury, waiving his right of appearance without his prior approval, and also erroneously failed to file certain pre-trial motions, including one for dismissal of the burglary charges pursuant to the New York speedy trial statute.

The Court has reviewed carefully the submissions of the parties, as well as the full record of proceedings in the state courts. For the reasons discussed herein, this Court reports and recommends that the petition be dismissed in its entirety.

BACKGROUND

Petitioner's trial, before the Honorable Thomas V. Mallon in Suffolk County Court, was held from June 4 through June 7, 1990. At the trial, the prosecution introduced evidence to show that on May 23, 1989, at approximately 12:30 p.m., Ms. Ellen Brown of 97 Lakeway Drive, North Babylon, New York, saw an unfamiliar automobile parked adjacent to 93 Lakeway Drive. (Tr. at 169, 186-87.) (testimony of Ellen Brown).¹ Ms. Brown observed the automobile from a window in her house that was approximately 100 to 115 feet away. Id. at 188, 193.

Shortly thereafter, as the car passed her house and turned the corner, Brown noticed that the car's rear license plate was covered with a piece of paper or cloth. Id. at 169, 198-99. At that point, she telephoned the police to report a "suspicious" vehicle. Id. at 169, 176. Ms. Brown's house faced both Hilltop Avenue and Lakeway, which were separated by woods. Id. at 169, 186. Five minutes later, the car reappeared and parked in the same place across the street from Ms. Brown's residence. Id. at 170. At that time, a man got out of the vehicle, opened the hatchback, and disappeared into the woods between Hilltop and Lakeway for a minute or two. Id. at 190. The man was dressed in a white tee shirt and tan pants. Id. at 173.

When the man emerged from the woods, he opened the driver's door and retrieved a tan jacket. Id. at 173, 190. He then put the jacket on, closed the door and hatchback, and proceeded to walk westward on Lakeway Drive. Id. at 170-71. When the man reached the residence located two houses west of Ms. Brown's, he turned up the driveway, and out of Brown's view. He reappeared four or five minutes later. Id. at 171. At that point, the man headed back eastward, and walked up the driveway at 97 Lakeway Drive. He knocked on Brown's door and rang her doorbell. Brown, who looked at him through the peephole, did not answer the door. Id. at 171-72. After spending some five minutes at Brown's door, the man left. Id. at 172, 195. He continued walking eastward from Brown's house, in the direction of his car. Id. at 172, 196.

After losing sight of the man for about five minutes, Ms. Brown went outside to retrieve her mail. Id. at 172, 197. She again espied him walking west toward his car. Id. at 173, 197. Brown then went inside and locked her door. When she looked out her window ten minutes later, the car was gone. Id. at 173. Ms. Brown made a positive courtroom identification of Petitioner as the man she witnessed engaging in the foregoing activities. Id. at 176-77.

The prosecution's evidence also showed that police officers Charles Peck and Steven Bluethgen received a wire transmission that a suspicious vehicle, a blue Toyota, was observed in the area of Hilltop and Lakeway. (Tr. at 207.) (testimony of police officer Charles M. Peck). When the officers turned down Hilltop heading eastbound, they saw a blue Toyota parked on the wrong side of the street pull away from the curb. Officer Peck put his flashing lights on and pulled the car over. Petitioner opened his door before he stopped his car and stopped the car when the police car stopped. Petitioner got out of his car as the officers approached. Id. at 208. Officer Peck went to the driver's side of Velez's vehicle, while his partner walked to the passenger side. When asked to produce identification, Velez gave Officer Peck a photo I.D. with the name "Jose Rivera" on it. Petitioner had no driver's license and could not produce any documentation evidencing ownership of the car. Id. at 208-09.

When Officer Bluethgen approached Petitioner's car, he looked through the hatchback window and saw a television set situated upside down, as well as what appeared to be a white typewriter behind the television. He also spotted a black vinyl camera bag sitting on the front passenger seat. Bluethgen asked Petitioner whether he had any other identification in the camera bag, and Velez handed over certain papers from the bag. None of the papers contained Mr. Velez's name. (Tr. at 232-33.) (testimony of police officer Steven Bluethgen). Subsequently, Officer Bluethgen noticed the tape holder of a videocassette recorder ("VCR") sticking out of a white pillow case. When asked whose VCR it was, Petitioner stated that it was his mother's. Id. at 233. After Bluethgen glimpsed a credit card from the black bag with a woman's name on it, he asked Velez if he knew her. Velez replied that it was his aunt that he had just visited, although he could not state where she lived. Id. at 239. The woman apparently had been dead for a year or two. Id. at 239. At that moment, Petitioner proceeded to push Officer Peck and run down the street. Id. at 233. Officer Peck chased after him on foot and caught up with Velez one-half block up the street. A "violent struggle" ensued, with Petitioner kicking and punching Peck. Peck eventually subdued Velez and placed him under arrest for certain traffic infractions and for physically attacking him. Id. at 210, 226.

Seeing four or five police cars outside of her house, Ms. Brown walked out and identified herself to the police officers as the person who had telephoned the police to report the suspicious automobile. Detectives Gerard J. Grant and Bryan Burton, who had arrived on the scene, took a statement from Brown. (Tr. at 250.) (testimony of Detective Gerard J. Grant). Brown identified Velez for the detectives as the man who had appeared at her door earlier. (Tr. at 176.) (testimony of Ellen Brown). In the meantime, officers had been canvassing the area to see whether any of the nearby houses had been burglarized. (Tr. at 251.) (testimony of Detective Gerard J. Grant). The Detectives eventually were summoned to 88 Hilltop, where they discovered an open rear window. Id. at 250-51. After asking neighbors where the residents of 88 Hilltop might be located, the detectives returned to the police precinct, leaving some of the officers at the scene. Id. at 252.

Shortly thereafter, the detectives were notified that a resident of 88 Hilltop had returned home, and responded back to that address. (Tr. at 287.) (testimony of Detective Bryan Burton). Detective Grant spoke with Desmond P. Ellis, who resided in the downstairs apartment, while Detective Burton took photographs and searched for...