THOMAS P. GRIESA, U.S.D.J.
This is a habeas corpus petition by a state prisoner, filed under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings, the court has examined the petition and has determined that it should be summarily dismissed.
Petitioner was convicted in Supreme Court, New York County, of criminal sale of a controlled substance and criminal possession of a controlled substance. He was sentenced to concurrent terms of imprisonment of 7 1/2 to 15 years. The judgment of conviction was entered on July 1, 1996. The conviction was affirmed by the Appellate Division, First Department, on March 31, 1998, and leave to appeal to the New York Court of Appeals was denied on June 12, 1998.
It was undisputed at the trial that petitioner had in his possession a plastic bag containing 20 vials of crack. However, there was a dispute about whether petitioner possessed these vials for his personal use or intended to sell them.
The prosecution sought to introduce testimony by a police officer to the effect that in her 140-145 arrests of street-level purchasers, the maximum number of bags of drugs she had recovered from any such purchaser was three. The proposed testimony was to rebut any defense contention that petitioner had 20 vials of crack solely for his own use. The trial judge originally sustained an objection to this testimony. The judge later reopened the issue, and stated that the testimony of the officer would be relevant as rebuttal if there was evidence in the defense case that petitioner had the drugs for his use, not to sell. The judge decided to admit the testimony of the officer in the prosecution's main case rather than to have the officer wait for rebuttal. The judge said that the testimony would be stricken if the issue did not come up in the defense case. As it turned out, petitioner did not testify, and the judge struck the officer's testimony.
On the present habeas corpus petition, petitioner claims that it was error to admit the testimony and that this was not cured by the trial judge striking it. However, the issue on this habeas corpus petition is whether there was a violation of petitioner's constitutional rights. There was no such violation in allowing testimony about what a police officer observed in a large number of arrests of purchasers of drugs. Even if the judge's striking of the testimony was arguably less than effective, there was no constitutional issue raised by the procedures which were followed.
The second ground of the habeas corpus petition is a claim that the trial judge took away the fact finding role of the jury when the jury asked if a "physical offer of goods" amounted to "a sale under the law," in response to which the trial judge answered "yes." Again, there was no deprivation of federal constitutional rights. If there is an issue, it is one of interpretation of New York narcotics law. A constitutional question is not presented.
The petition is denied and dismissed.
No certificate of probable cause ( 28 U.S.C. § 2253 and 2255) will issue because it is not believed that there are any questions of substance on which the Court of Appeals should rule. In respect to the in forma pauperis statute ( 28 U.S.C. § 1915 (a)), it is certified that an appeal from this order would not be taken in good faith, because it would be frivolous.
SO ORDERED.