Warren v. Miller
| Decision Date | 05 January 2000 |
| Docket Number | No. CV 98-2564.,CV 98-2564. |
| Citation | 78 F.Supp.2d 120 |
| Parties | Freddie WARREN, Petitioner, v. Robert MILLER, Superintendent, Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Freddie Warren, Napanoch, New York City, pro se.
James Catterson, Jr., Suffolk County District Attorney, by Brian T. Grauer, Assistant District Attorney, Riverhead, NY, for respondent.
Presently before the court is the petition of Freddie Warren ("Warren" or "Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Warren is presently serving a sentence of twenty years to life as a persistent felony offender under New York State law. For the reasons set forth below, the petition is denied.
Warren was arrested on May 24, 1989, in connection with a "buy and bust" operation conducted by Suffolk County police officers on the previous evening, May 23, 1989. On that night, Police Officers Edward Gubinski and Dennis Murphy were patrolling Wyandach, New York, posing as individuals interested in purchasing illegal narcotics. Once the "buy" was made, it was the officers' intent to called for a marked unit with uniformed officers who would arrive on the scene and arrest the seller.
On this particular occasion, officers Gubinski and Murphy drove to Henry Street and Lake Drive in Wyandanch and drove to a house where a group of individuals were standing. The officers were approached by Warren, who sold them twenty dollars worth of crack cocaine. The officers then left the scene and radioed a description to the marked unit. Upon their arrival, however, the marked unit could not locate anyone matching the description given by the undercover officers and no arrest was made.
On May 24, 1989 (the following day), officer Gubinski returned to the Wyandanch area to find the person from whom he had purchased drugs on the previous evening. Warren was found three blocks from where the sale took place. Officer Gubinski kept Warren under surveillance until a back up unit could respond to make the arrest. Upon Warren's arrival at the precinct, Officer Gubinski, without mentioning the previous night's activities, asked Officer Murphy to look at the individual who was just brought into the precinct. When Officer Murphy viewed Warren, he, too, identified Warren as the individual involved in the previous night's drug transaction. Warren was thereafter indicted on one count of Criminal Sale of a Controlled Substance in the Third Degree (N.Y.Penal Law § 220.39) and one count of Criminal Possession of a Controlled Substance in the Third Degree (N.Y.Penal Law § 220.16).
After indictment and prior to trial or any pretrial hearings, Warren sought to have his court-appointed attorney from the Legal Aid Society (the "Legal Aid attorney") removed and new counsel appointed. In support of his claim for new counsel, Warren alleged that he and his counsel did not see eye to eye. Warren's complaint regarding counsel stemmed from the lawyer's refusal to submit part of Warren's pro se motion to the trial court. The Legal Aid attorney explained to the court that, in accord with the judge's directions, he had reviewed Warren's motion and submitted to the court only that portion of the motion that he considered to have legal merit. The remainder of the motion had not been submitted.
Warren argued that he had lost confidence in counsel and insisted, repeatedly, that new counsel be appointed. In a proceeding where counsel and Warren were both present, the trial court denied Warren's application to have new counsel appointed. The court held that counsel had acted appropriately with respect to the portion of Warren's motion that had not been submitted. The court noted counsel's competence during the course of Warren's proceedings and with respect to many other criminal matters. In view of the fact that Warren had failed to come forward with any good cause to dismiss counsel, the trial court rejected the application to appoint a new attorney. Warren was granted the right to proceed with the Legal Aid attorney or on his own, with counsel present as an advisor.
Prior to trial, the parties engaged in plea bargaining. Warren was advised on numerous occasions that, if convicted, he faced the possibility of enhanced sentencing due to prior convictions. Warren was clearly and unequivocally advised on the record that as a result of prior felony convictions he faced the possibility of sentencing as a persistent felon under the New York Penal Law. If Warren were found to be such a felon, he would be subject to a minimum term of imprisonment of fifteen to twenty five years and a maximum term of imprisonment of life. See N.Y.Penal L. § 70.10(2).
The District Attorney's office offered Warren a plea that would result in a term of imprisonment of four and one half to eight years. The state judge told Warren, on several occasions, that if he accepted the District Attorney's offer, he would be sentenced to a term of imprisonment of only three to six years. Despite the possibility of substantially harsher sentencing if he were to lose at trial, Warren rejected all offers to plead guilty and opted instead to proceed to trial.
Prior to trial the state court held a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974) (the "Sandoval hearing"), to determine the permissible scope of the District Attorney's cross-examination of Warren if he elected to testify at trial. The court also held a hearing pursuant to pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (the "Wade hearing"), to determine the admissibility of identification evidence.
At the Sandoval hearing, which was argued vigorously by Warren's Legal Aid attorney, the court held that convictions from 1972 and 1983 could be relied upon to impeach Warren. The court also ruled that the District Attorney could refer to several misdemeanor incidents if Warren chose to testify.
The Wade hearing was thereafter held to determine whether the arresting officers could make an in-court identification of Warren based upon the identification by Gubinski on May 24, 1989 and by Murphy at the police precinct. At this hearing officers Gubinski and Murphy testified regarding the events of May 23 and 24, 1989, and the conditions under which they identified Warren. Warren's Legal Aid attorney was present and cross-examined the officers regarding their identifications. At the conclusion of the Wade hearing, the trial judge denied the defense motion to suppress any in-court identification of Warren and held that the officers could testify regarding their identification of Warren at the scene of the crime as well as the confirmatory identifications on the following day.
Officers Gubinski and Murphy testified as to the events surrounding the purchase of the drugs, the subsequent arrest, and the identification procedure.
Officer Gubinski testified that he was the passenger in the vehicle used during the buy and bust operation. He stated that he and Officer Murphy entered Henry Street at approximately 9:00 P.M. and observed a group of four individuals (two men and two women) standing near the side of a house. They drove their vehicle to the house and were approached by one of the men in the group who walked to the passenger side of the vehicle and asked what the officers needed. Murphy responded by saying, "We're looking for a twenty." The man asked to see the money and the officers produced a twenty dollar bill. Gubinski stated that the man gave him a sample of the substance. Gubinski examined it, while never taking his eye off the subject, and concluded that the substance was crack cocaine.
On cross-examination of the officers, the defense questioned whether the lighting conditions were sufficient for an accurate identification of the subject. Both Gubinski and Murphy responded by stating that a street light provided enough illumination for them to see the individual and develop an accurate description to radio to the marked unit.
As noted above, upon completion of the sale, Gubinski radioed a description to the backup unit. Specifically, Gubinski described the seller as a Black male, between 5'10"-6'0" feet tall, in his late thirties with a dark complexion, full mustache and beard and wearing a grey hooded sweat shirt, zippered up, acid washed jeans and white high top sneakers. Because none of the individuals near the house when the back up unit arrived matched this description, no arrest was made on the night of the sale.
On May 24, 1989, officer Gubinski returned to the area in an attempt to locate the subject of the previous evenings' sale. Officer Gubinski testified that, approximately three blocks from where the sale took place on the previous night, he observed a man wearing a grey-hooded sweatshirt similar to the one worn by the missing suspect. Gubinski stated that he got to within twenty feet of this man and immediately identified him as the man who sold him the narcotics. Gubinski then radioed a sector car with a description and kept the man under surveillance until that unit arrived. When the uniformed officer began to question the subject, Gubinski returned to the precinct.
Later that evening, Gubinski told Murphy to look at the man the sector car brought in without suggesting who that person might have been. Murphy went to the uniformed squad room and observed the man through a door. He immediately identified him as the subject from the previous night. In addition to this testimony, the prosecution offered evidence from the Suffolk County Crime Lab which established that the substance sold to the officers was, in fact, crack cocaine. Warren...
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