Opinion
01-CV-1325 (JBW), 03-MISC-0066 (JBW)
December 15, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was arrested as part of a "buy and bust" undercover narcotics operation. The undercover detective testified that he parked his car in front of a pharmacy and began speaking with a man whom he later identified as petitioner. He asked petitioner whether he was "working" (i.e., selling drugs), Trial Tr. at 733, Petitioner responded by asking, "What do you need?" Id. The detective indicated that he needed "two dimes," meaning twenty-dollars worth of narcotics. Id. According to the detective, petitioner turned and approached another man — whom the detective identified as co-defendant Laity Young — who was further down the block. Although he could not hear their conversation, he observed petitioner tap Young and indicate "two" with his fingers. Id. Young approached the window of the detective's car and, apparently without saying anything, handed him two yellow bags of crack cocaine and took from the detective twenty dollars in prerecorded buy money. A short conversation ensued between the detective and Young concerning the quantity of narcotics in the bag.
Another detective testified that in response to a radio signal from The undercover several minutes after the sale, he arrested petitioner and Young, No drugs or pre-recorded buy money was recovered from either defendant.
Neither petitioner nor his co-defendant presented any evidence in their defense.
Petitioner was convicted of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. He was sentenced to 10 to 20 years in prison.
His conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied, No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner raised the following five claims: (1) that the evidence of his participation in the drug transaction was insufficient to prove that he acted with the mental culpability necessary to satisfy an element of the crime of the sale of a controlled substance; (2) that the court erred in failing to dismiss the charge of criminal sale of a controlled substance in the third degree near a school ground because there was insufficient evidence that the sale took place within 1000 feet of the school property line; (3) the trial court's acting-in-concert charge was improper; (4) that the trial court should have dismissed one of the two concurrent, non-inclusory counts; (5) that trial counsel was ineffective for admitting petitioner's guilt in the presence of the jury; and (6) that a detective's arrest report was inconsistent with his testimony at trial and that as a result petitioner's conviction cannot be upheld.
Only the first four of these claims was properly exhausted in the state courts. The fifth was not exhausted but may be deemed exhausted because it would be futile to raise the claim in state court due to an inevitable, mandatory procedural bar. The sixth claim, concerning the detective's report and trial testimony, has also not been exhausted but could, in theory, be raised in the state courts without incurring a procedural bar. Because the claim did not appear on its face to be patently meritless, this court offered petitioner the option of (1) having the habeas proceedings stayed to allow him the opportunity to exhaust his claim in the state courts; or (2) move to dismiss the unexhausted claim so that the petition could be adjudicated. Petitioner chose the latter option, abandoning his unexhausted claim. Aside from noting that habeas corpus relief appears unwarranted with respect to that claim, this court will address it no further.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular contest," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings." of Supreme Court decisions), The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App, LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1),
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue),
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless (he prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following;
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial" and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S.362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n, 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are `'situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence," U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel," McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. (5, 2003) (quoting Strickland, 466 U.S. at 694), Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hotline, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)), Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar, 18, 2002) (Magistrate's Report and Recommendation),
VI. Certificate of Appeal ability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the dental of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003), The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit"),
VII. Analysis of Claims
A
Petitioner first claims that the evidence of his participation in the drug transaction was insufficient to prove (hat he acted with the mental culpability necessary to satisfy an element of the crime of the sale of a controlled substance. In particular, he contends that there was insufficient evidence that he had anything to do with the drug sale, since he "never possessed drugs, handled drugs, or money, [and was] never seen, by no one, selling or handling drugs or money." Petition at 5,
The Appellate Division rejected this claim on the merits, stating: "Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence." People v. Youmans, 699 N.Y.S.2d 304, 304 (App, Div. 1999) (citations omitted). Review proceeds under the deferential standards of AEDPA.
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
New York's Penal Law with respect to criminal liability for the conduct of another is as follows: "When one person engages in conduct which constitutes an. offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." N.Y. Penal L. § 20.00. Viewing the evidence in the light most favorable to the prosecution, petitioner's negotiations with the undercover detective and his subsequent interactions with his co-defendant are sufficient to establish beyond a reasonable doubt that petitioner was criminally liable for the conduct of his co-defendant.
Habeas corpus relief on this claim is not warranted.
B
Petitioner next claims that the court erred in failing to dismiss the charge of criminal sale of a controlled substance in the third degree near a school ground because there was insufficient evidence that the sale took place "within one thousand feet of the real property boundary line comprising any [educational] facility." N.Y. Penal L. § 220.44(5). This claim was rejected by the Appellate Division as "either unpreserved for appellate review or without merit," Yowmans, 99 N.Y.S.2d at 305. Although sufficiently preserved for consideration by this court, it is meritless under any standard of review.
A detective and a topographical expert testified at trial concerning measurements from the location of the sale to the school property. The detective made a physical measurement and the topographical expert analyzed a map of the area, with both determining that the distance was less than 1000 feet. Petitioner contends that because neither witness knew precisely where the "real property boundary line" of the school was, they of necessity failed to establish an element of the crime. The contention is frivolous. The actual measurement and the topographical analysis both measured from the far corner of the block on which the school sits rather than the corner nearest to location of the narcotics sale. The measurements were therefore generous to petitioner, obviating the need to establish where the real property boundary line was located. Habeas corpus relief on this claim is not warranted.
C
Petitioner claims that the trial court's acting-in-concert charge was improper. The charge was as follows;
Section 20 of the penal law of our state reads as follows; When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when[,] acting with the mental culpability required for the commission thereof, he solicits, requests, commands importunes or intentionally aids such person to engage in such conduct. Any person who intentionally, that is knowingly, solicits, requests, commands, importunes, or intentionally aids such person in the commission of a crime, is just as guilty as if he had committed that very crime himself, He is considered primarily liable under the law to the same extent as the other person whom he is aiding. It makes no difference what part he played so long as you find he did play a part in the commission of any or all of the crimes charged. When two people act as partners in the commission of a criminal act, the law does not apportion the percentage of guilt which may attach to either or both of them, So that even though one person may have been responsible for the commission of 99 percent of the acts constituting the crime, and the other may have committed but one percent, so long as you find they were aiding one another, acting together, acting in concert in the eyes of the law, they are equally guilty. They're [sic] mere presence at the scene of the crime is not sufficient for you to find acting in concert. You must find the defendant played a part in the commission of the crime charged.
Trial Tr. at 1164-66 (emphasis supplied).
Petitioner contention is that he was denied a fair trial because the court neglected to inform the jury that an acting-in-concert finding required the jury to find that petitioner played a part in the commission of the crime with the necessary intent. This claim was rejected on the merits by the Appellate Division, which stated that, "Contrary to the defendant's contention, the court's charge, when read as a whole, was proper," Youmans, 699 N.Y.S.2d at 305. Review proceeds under the deferential standards of AEDPA.
"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law," Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
In mounting his argument in the instant case, petitioner neglects to quote the first sentence of the court's charge as reproduced above. The jury was informed of the statutory requirement of a finding of mental culpability. The charge was not erroneous and did not deny petitioner due process. Habeas relief on this ground is not warranted.
D
Petitioner contends that the trial court should have dismissed one of the two concurrent, non-inclusory counts. More specifically, he contends that it was inappropriate for the court to have allowed him to be convicted of both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, He discussed this claim, in part, on double-jeopardy grounds when it was presented to the Appellate Division, The Appellate Division rejected the claim as "either unpreserved for appellate review or without merit," Youmans, 99 N.Y.S.2d at 305. Because the respondent argued both procedural bar and the merits of the claim before the Appellate Division, it is not clear whether the federal double-jeopardy issue was or was not in fact resolved by the Appellate Division on the merits. Pursuant to a recent decision of the Court of Appeals for the Second Circuit, it is possible that the claim should be reviewed de novo. See Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003) ("our cases seem to contemplate situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required"), In an abundance of caution, review of this claim proceeds under a de novo standard.
Among other things, the Double Jeopardy Clause "protects against multiple punishments for the same offense," North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Whether two offenses are "the same" is determined by the standard set forth in Blockburger v. United States; "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. 299, 304(1932).
The Supreme Court has explained, however, that Blockburger merely sets forth a rule of statutory construction, and that me "assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the `same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Whalen v. United States, 445 U.S. 684, 691-92 (1980), In Missouri v. Hunter, the Court emphasized that where "`the offenses are the same . . . cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.'" 459 U.S. 359, 367 (1983) (emphasis in original; quoting Whalen, 445 U.S. at 693). In sum, where there is a clear indication of legislative intent, cumulative punishment for the same crime does not violate the Double Jeopardy Clause, since the Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended," Hunter, 459 U.S. at 366.
The New York courts have not failed to recognize that the Double Jeopardy Clause is implicated with respect to convictions for both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. The only difference between the two crimes is that conviction for the latter crime requires a showing that the third-degree criminal sale of the narcotic have taken place within 1000 feet of school grounds. They are therefore the "same offense" for Blockburger purposes. The Appellate Division has on at least two occasions found no double jeopardy violation in the identical circumstances presented in the instant case, invoking Hunter for the proposition that the legislature intended to allow cumulative punishments for these separately defined crimes. See People v. Rivera, 738 N.Y.S.2d 842 (App.Div. 2002); People v. Bernabel, 749 N.Y.S.2d 521 (App.Div. 2002).
Recently, the New York Court of Appeals refused to reach the merits of a double jeopardy claim raised on these same grounds because the issues was deemed unpreserved. In a dissent and concurrence, one judge argued that preservation of double jeopardy claims was unnecessary under state law, and proceeded to addness the underlying substantive issue at length;
On the merits, when conduct results in the violation of two statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not ( see, Missouri v. Hunter, supra, 459 US at 366, quoting Blockburger v. United States, 284 U.S. 299, 304, 76L. Ed. 306, 52 S.Ct. 180 [1932]), This presumption, however, can be rebutted by a "clear indication of contrary legislative intent" id., quoting Whalen v. United States, 445 U.S. at 692 [emphasis omitted]).
As the People in [the instant] case conceded during oral argument, the application of Blockburger leads to the conclusion that criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, as charged and proved, are the "same offense." This is so because only me school ground sale requires proof of an element not required by third-degree sale ( see, Penal Law 220.44 [2J, incorporating by reference all of the operative subdivisions of Penal Law § 220.39), Third-degree criminal sale, however, does not require proof of elements not required by criminal sale in or near a school ( id.) Thus, the two statutes are like "concentric circles rather than overlapping circles" (4 LaFave, Israel and King, Criminal Procedure § 17.4 [b] (2d ed]).
As noted, the presumption resulting from the concentric nature of both statutes can be rebutted by a clear indication of contrary legislative intent. That intent is found in the interplay of the two statutes in the Criminal Procedure Law and Penal Law Section 1, 20 (37) of the Criminal Procedure Law provides that "when it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a `lesser included offense.'" While it is impossible to commit sale in or near a school without also committing third-degree sale, they are both class B felony offenses, and thus, one is not of a "lesser grade or degree" than the other. Since both counts are concurrent ( see, CPL 300.30 [3]; Penal Law § 70.25 [2]), and the third-degree sale count is not a lesser included offense of sale in or near a school, they are "non-inclusory," and the trial court had the discretion to submit both counts to the jury (CPL 300.40 [3] [a]). Had the Legislature intended not to punish the same conduct with two statutes, it would have ensured that the two counts met the definition of "inclusory concurrent counts" ( see, CPL 300, 30 [4]; 300.40 [3] [b]).
The Legislature's intention to allow for simultaneous convictions for third-degree sale and sale in or near a school is further evidenced by Penal Law § 70.25(2), which addresses situations where, as here, "more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act," and mandates that the sentences run concur really. That the Legislature did not provide for cumulative sentencing is not evidence to the contrary since, as the Supreme Court held in Ball, a conviction is detrimental even if its sentence runs concurrently.
Thus, while the merits of the double jeopardy argument should be addressed, defendants' contention must be rejected. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended" ( Missouri v. Hunter, 459 U.S. at 366), It is clear that the New York Legislature intended to punish both crimes for which each defendant was found guilty.People v. Gonzalez, 781 N.E.2d 894, 900-01 (N.Y. 2002) (Smith, J., concurring and dissenting).
There is thus substantial and persuasive state court authority for the proposition that the New York legislature intended to allow cumulative punishments where a defendant has been convicted of both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. Guided by the teachings of the Supreme Court in Hunter, this court concludes that there was no double jeopardy violation in the instant case.
It should also be noted that, pursuant to general New York practice, petitioner was ordered to served both sentences concurrently. Based on that practice, it was appropriate for the New York Court of Appeals to impliedly suggest that there was no double punishment in (.he instant case. In contrast, the Court of Appeals of the Second Circuit has stated that dual convictions that result in concurrent sentences and that present no demonstrable prejudice to a defendant may nonetheless be unconstitutional. See Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir. 1998) ("with the multiplication of repeat offender sentencing schemes in various states, it is more than possible that [petitioner] could receive enhanced jail time (should he commit future criminal offenses) precisely because of the existence of the improper . . . conviction in his criminal record"); cf Ball v. United Stews, 470 U.S. 856, 865 (19S5) (stating in federal context that even if a second conviction results in no greater sentence, a "separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored"); United States v. McCormick, 992 F.2d 437, 441 (2d Cir. 1993) ("Among the potential collateral consequences of conviction the Court mentioned [in Ball] are increased sentences under recidivist statutes and the extra societal stigma that comes from conviction, including possibly effects upon other state proceedings, past or present.").
Where comity between federal and state courts is involved, the issues are intensely practical. Invocation of imaginative conceptual bases for attacking run-of-the-mill convictions might be appropriately made by the Supreme Court in its supervisory role over the lower federal courts, but such an approach should not be encouraged where state convictions are at issue — Where two convictions for the "same offense" result in concurrent sentences, the more sensible way of dealing with the problem is not to find a double jeopardy problem immediately, but rather to allow a challenge on double jeopardy grounds if and when the second, improper conviction is conjured by the state to supply grounds for a new or enhanced punishment for the petitioner, Cf, Kermit Roosevelt III, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum. L. Rev. 1888, 1913 (2003) ("The federal court is effectively reviewing the judgment on its own terms and looking for significant errors, It is asking whether the judgment was correct when rendered — not whether the federal court itself would reach the same result."). Until the petitioner has been doubly punished, the question of whether there has been a violation of the Double Jeopardy Clause has simply not presented itself and cannot be ripe for decision.
Habeas corpus relief on this ground is not warranted.
E
Finally, petitioner claims that trial counsel was ineffective for admitting petitioner's guilt in the presence of the jury. This claim has never been presented to the state courts and is therefore unexhausted. Because the basis of the claim is apparent from the face of the trial record, petitioner's failure to have raised it on direct appeal would presumably require the state trial court, if addressing the claim in a motion to vacate judgment, to deny it on mandatory procedural default grounds. See N.Y. Crim. Pro. L. § 440.10(2) ("the court must deny a motion to vacate a judgment when; . . . (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him"),
It is at least arguable that this procedural bar would be inadequate to preclude federal review of petitioner's claim under the present circumstances. It is a relatively close question whether to deem "adequate" a state rule that precludes a petitioner from raising a claim of ineffective assistance of trial counsel in a collateral proceeding where the claim might have been raised on direct appeal, Cf. Massaro v. United States, 123 S.Ct. 1690, 1696 (2003) (invoking its supervisory powers over the federal courts in holding that "failure to raise an ineffective — assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255"). At any rate, because the ineffective assistance claim lacks sufficient merit under any standard of review, this procedural argument need not be decided in the instant case.
Defense counsel did not admit petitioner's guilt to the jury. He argued vigorously and at length that the police had arrested the wrong man, pointing to the failure to recover drugs or prerecorded buy money from petitioner, as well as to the lack of videotape or photographic evidence of his involvement, Counsel did argue in the alternative that even if the jury was convinced that petitioner had been correctly identified, he still was not guilty because his participation was insufficient to establish his intent to sell drugs, This was a tactical decision that will not be second-guessed. Habeas corpus relief on this claim is not warranted.
VIII. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appeal ability is granted with respect to petitioner's claim that he was unconstitutionally subjected to don We jeopardy by his conviction and sentence for both criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds.
No certificate of appealability is granted with respect to any of petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right. He may apply for a further certificate from the Court of Appeals for the Second Circuit.
SO ORDERED.