Hirsh v. McArdle

74 F.Supp.3d 525

Michael HIRSH, Petitioner

v.B. McARDLE, Superintendent; and Department of Corrections and Community Supervision, Respondents.

No. 9:13–CV–0600 DNH.

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

Signed Feb. 26, 2015.

Michael Hirsh, Baldwinsville, NY, Petitioner, pro se.

Eric T. Schneiderman, New York State Attorney General, New York, NY, Michelle E. Maerov, Esq., Ass't Attorney General, Attorneys for Respondent.

DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Petitioner Michael Hirsh filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a judgment from Oswego County Court, convicting him, upon a jury verdict, of one count each of criminal possession of marihuana in the second degree (N.Y. Penal Law (“Penal Law”) § 221.25 ), criminal possession of marihuana in the fourth degree (Penal Law § 221.15 ), and unlicensed growing of cannabis (N.Y. Pub. Health Law § 3382 ). Dkt. No. 1, Petition (“Pet.”). Respondent filed a response to the petition and pertinent records from the state court proceedings. Dkt. No. 10–1, Respondents' Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus (“R. Mem.”); Dkt. No. 11, State Court Records. Petitioner filed a reply and records from the state court in support of his claims. Dkt. No. 18, Reply; Dkt. No. 18–1, Petitioner's Records.

II. BACKGROUND

A. Pretrial Matters and Trial

The following background information is derived from the records provided by the parties. Petitioner was charged by a three-count indictment with criminal possession of marihuana in the second degree, criminal possession of marijuana in the fourth degree, and unlicensed growing of cannabis. Dkt. No. 11–19 at 5, Transcript of Arraignment; see id. at 68, Trial Transcript.¹ The charges arose when a New York State Trooper responded to a domestic violence call in the Town of Palermo. The complainant, Joy Runge, stated that petitioner, the father of her child, broke a window, entered her home without permission, pushed her into a fan and to the ground, and physically threatened her. Dkt. No. 18–1 at 7–9, Supporting Deposition of Trooper Peter Lazarek; Dkt. No. 18–1 at 94–95, Supporting Deposition of Joy Runge. Trooper Lazarek then went to petitioner's residence as provided by the complainant, and observed numerous marihuana plants outside the residence and through a window of the residence. Dkt. No. 18–1 at 94. Law enforcement obtained a search warrant and secured the evidence observed. Petitioner was subsequently indicted, and, at arraignment before counsel was assigned, asked the Court why he had not been notified of the grand jury presentation. Dkt. No. 11–19 at 7. Notice was apparently sent to the address where marijuana was discovered, but petitioner claimed that he lived in Baldwinsville, New York and was unaware of any scheduled court appearances or grand jury proceedings. Id. at 7–10. The prosecutor asserted that he took “all steps” to attempt to provide petitioner notice by sending the notice to the address on the police report. Id. at 9. At the next court appearance, assigned counsel noted that “there might be a problem with the Grand Jury” and requested motion dates. Dkt. No. 11–19 at 23, 25, Transcript of Appearance, April 21, 2011.

As is relevant here, in his omnibus motion, petitioner requested “a hearing to determine whether the warrant was properly issued and whether the police overstepped their bounds in seizing” certain items not enumerated in the warrant, including a rifle and fireworks. Dkt. No. 18–1 at 55, Omnibus Motion. The Court denied that aspect of the omnibus motion without a hearing. See Dkt. No. 11–19 at 49, Transcript of Appearance, August 1, 2011.² Petitioner declined a plea offer, and trial commenced on November 14, 2011. Dkt. No. 11–19 at 65, Trial Transcript.

The People's first witness, Trooper Lazarek, testified that on August 18, 2010, he responded to an address in Palermo, New York, for a report of a domestic dispute. Dkt. No. 11–19 at 244. There, the female occupant provided information regarding petitioner, and Trooper Lazarek responded to 215 County Route 18 in Palermo to attempt to locate him. Id. at 245. Upon arriving at that residence, Trooper Lazarek knocked on the door but received no response. Id. at 250. He walked around to the back of the house to see whether any people or vehicles were behind the house, but saw neither. Id. He heard a noise coming from the rear of the house, looked into a window where he saw a fan running, and observed “numerous marijuana plants” inside that room. Id. at 250. Trooper Lazarek could also smell marijuana and observed marijuana plants outside the residence “in various locations,” some in pots and others in the ground. Dkt. No. 11–19 at 250–252. He estimated that the closest plants to the house were about 15 yards south of the residence. Id. at 252. Trooper Lazarek called in his findings to an investigator, and other officers responded to the scene. Id. at 265. Trooper Lazarek stated that he did not have a warrant when he first went to petitioner's residence. Id. at 268.

Trooper John Evans, an investigator with the Community Narcotics Enforcement Team, responded to the residence, and he and other officers entered the residence after a search warrant was obtained. Id. at 289–290, 292–294. Evans observed marijuana plants hanging to dry in a closet and, in a bedroom, marijuana plants were growing under “grow lights.” Id. at 295–296. In another bedroom, Evans observed larger marijuana plants. Dkt. No. 11–19 at 297. Investigators collected the marijuana found inside and outside the residence, packaged the substances and transported them to the Southern Tier Crime Laboratory for analysis. Id. at 313, 317, 326.

In August 2010, petitioner was renting the property from Gregory Stupp. He moved out around the time that he was arrested. Id. at 369–370. Petitioner's “wife or girlfriend” also initially lived with petitioner, but she moved out of the property “months before” petitioner moved out. Id. at 370–371.

Julie Romano, a forensic scientist with the New York State Police Southern Tier Regional Crime Laboratory, tested the plants and determined that they were marijuana. Dkt. No. 11–19 at 378, 387. Prior to testing, Romano ensured that the packaging was sealed and removed the substance from its packaging. Id. at 385. Using a calibrated scale, she determined that one package of marijuana found at the scene weighed 82 grams, or just under 3 ounces, and marijuana contained in another package—a box holding the substance “loose”—weighed 783 grams, or approximately 27 ounces. Dkt. No. 11–19 at 388, 390–392. After completing her examination, she sealed the evidence and returned it to the vault from which it had been taken for analysis. Id. at 388, 392.

On cross examination of Romano, counsel requested on multiple occasions to “open the box” to “see what's inside,” and then added that he wanted to “weigh it” with a scale he brought from home. Id. at 398, 399–401, 405. The Court stated counsel could open the box, but denied the request to weigh it because an expert witness and a calibrated scale was necessary for that purpose. Id. at 400, 404, 405. The prosecutor did not object to simply opening the box, but ultimately, counsel did not do so. Counsel expressed frustration with the Court's ruling and noted that he brought a scale and was “trying to save money for the taxpayers” in not retaining an expert witness. Id. at 401. Counsel also cross-examined Romano regarding handwritten numerical markings on the box, which did not match Romano's determination of the weight of the marijuana and which she did not write. Id. at 394–396, 399–400, 401–403. Romano reiterated that she tested and weighed the substance that was inside the box. Dkt. No. 11–19 at 404.

Petitioner did not call any witnesses at trial, but stipulated that he did not possess a license to grow marijuana. Dkt. No. 11–19 at 288–289, 421. On summation, counsel focused on the box of marijuana and attempted to cast doubt on its weight and contents. Id. at 428 (“I want you to consider this. You haven't seen the contents. I don't have to open up a box. I don't have to show you anything. You have not seen the contents of this box.”); 429 (“Is this the marijuana from this case? Is this the marijuana from another case? ... No one opened it, no one weighed it here in your presence ... I would ask you to consider that.”).

On November 15, 2011, the jury returned a guilty verdict on all three counts. Dkt. No. 11–19 at 421, 472–473. The Court sentenced petitioner to a determinate term of two-and-a-half years imprisonment and one year postrelease supervision on the second degree criminal possession of marijuana count, and concurrent one-year definite terms on the fourth-degree criminal possession of marihuana charge and the growing cannabis without a license charge. Dkt. No. 11–19 at 494, Sentencing Transcript.

B. Post–Trial Matters

1. First Motion to Vacate

In August 2012, petitioner filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedural Law (“CPL”) § 440.10. Dkt. No. 11–1, Affidavit and Memorandum of Law in Support of CPL § 440.10 Motion. Petitioner contended that: (1) trial counsel was ineffective in failing to investigate the propriety of Trooper Lazarek's actions and the legality of the search warrant issued in relation to petitioner's residence; and (2) police unlawfully entered onto his property without a warrant, despite posted “no trespassing” signs. Id. at 9–14. Petitioner attached an affidavit from Stupp, the property owner, in which Stupp asserted, among other things, that the property was “posted” and that the windows of the residence were “too high to see into” from outside. Dkt. No. 11–1 at 16, Affidavit. The prosecution opposed petitioner's motion and urged the Court to deny the motion pursuant to CPL § 440.10(2)(b) because petitioner was “in the process of perfecting” a direct appeal and could...