Opinion
04 Civ. 2973 (KMW) (KNF).
August 20, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Olavi Linares ("Linares"), proceeding pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by the state of New York is unlawful because: (a) his constitutional rights were violated by an unlawful arrest resulting in an unlawful search and a misidentification of him as a cocaine seller; (b) his Sixth Amendment right was violated, due to an unconstitutionally selected and empaneled jury, which jury was tainted; (c) his trial counsel rendered ineffective assistance to him; and (d) the evidence presented at his trial was legally insufficient to support his conviction. According to the petition, grounds (b) and (c) have never been presented to a state court for adjudication.
Through an order, dated June 30, 2004, which amended an order dated June 25, 2004, the Court dismissed the petitioner's unexhausted claims (b) and (c), and stayed the adjudication of the remaining claims. The Court directed the petitioner to initiate proceedings in the state court to exhaust his remedies, with respect to claims identified in the petition as grounds (b) and (c), within 30 days of the entry of the June 25, 2004 order, and return to this court, within 30 days of the conclusion of the state proceedings. The petitioner failed to initiate state-court proceedings with respect to his unexhausted claims (b) and (c).
The respondent opposes the petition contending: (1) the petitioner's only exhausted claim, that the verdict was based on legally insufficient evidence, should be dismissed because the New York State Supreme Court Appellate Division's determination of it was neither contrary to nor an unreasonable application of clearly established federal law; and (2) the petitioner's remaining claims are unexhausted and should be dismissed because he failed to comply with the Court's order to exhaust available state remedies concerning them. The petition is addressed below.
II. BACKGROUND
On September 22, 2002, a street-level, undercover, buy-and-bust drug operation was conducted in Bronx County. At around noon on that day, undercover Police Officer Juan Lebron ("Lebron") entered the lobby of the building located at 2710 Morris Avenue, Bronx County. Upon entering the building, Lebron saw a person he named "J.D. Blue" standing alone in the lobby. Lebron approached that person and asked him for "two dimes," two $10-bags of a controlled substance. Without saying a word, the person reached into a brown paper bag and retrieved two bags, called "black slabs," of what the officer suspected was cocaine, and gave them to Lebron in exchange for one $20 bill of pre-recorded "buy" money. After he received the bags, Lebron exited the building, walked to his vehicle and transmitted to other officers, who were in the vicinity, the location and description of the seller. While at his vehicle, Lebron placed the items he obtained from the seller in a bag and recorded the approximate time of purchase, the name he assigned to the seller, and the date and location of the purchase.
Within minutes of receiving the transmission from Lebron, Detective Fernando Velez ("Velez"), who was surveilling Lebron as a "ghost" officer, entered the lobby of the building from which Lebron had emerged, after his purchase, and saw an individual, matching the description he received, standing alone. Velez walked past the person, and after noticing that Detective James Taylor ("Taylor") had entered the lobby, identified himself as a police officer and placed the person against a wall. Detective Joseph Grimm ("Grimm") who entered the building to help Velez and Taylor detain the person, gave the person a quick pat-down to check for weapons. The person had a small walkie-talkie radio in his hand but no brown paper bag was recovered from the person or his surroundings. The person seized by Velez was escorted out of the building. A few minutes later, Lebron viewed the person in Velez's custody, during a drive-by-identification procedure, and confirmed he was the person from whom the purchase was made. The person in Velez's custody was Linares. Linares was placed under arrest and searched. A small bag, called a "small blue slab" of crack cocaine and some miscellaneous items were found in Linares' pants pocket. The pre-recorded $20 bill was not recovered. Subsequent testing indicated that the substances purchased by Lebron from Linares and recovered from Linares' pocket were cocaine.
Linares was indicted by a grand jury for third-degree criminal sale of a controlled substance and seventh-degree criminal possession of a controlled substance. It appears, from the record, that a combined Mapp and Dunaway hearing was held in the New York State Supreme Court, Bronx County, prior to the commencement of Linares' trial. At the conclusion of the hearing, the court found that the police officers had probable cause to arrest Linares and that the evidence obtained from Linares, after: (a) Lebron identified him as the seller; and (b) he was searched, could be used as evidence at Linares' trial. The court also conducted a Hinton hearing. Thereafter, it determined that a genuine concern for Lebron's safety existed, if the courtroom were to remain open to the public while Lebron testified. Therefore, the court directed that the courtroom be closed to the public while Lebron testified. However, the court determined to allow a relative of Linares' to observe Lebron's testimony. Additionally, the court conducted a Sandoval hearing and determined that, if the petitioner testified at his trial, the prosecution would be permitted to question him about four felonies for which Linares had been convicted since 1986, at least one of which was for the sale of a controlled substance. On September 6, 2001, a jury convicted Linares for committing both charges in the indictment. He was sentenced, as a second felony offender, to concurrent terms of imprisonment from 7 ½ to 15 years for the sale conviction and 1 year for the possession conviction.
A hearing held pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961), is used to determine whether evidence was obtained in violation of a criminal defendant's Fourth Amendment right to be free from an unreasonable search and seizure.
A hearing held pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979), is used to determine whether probable cause existed to arrest a criminal defendant.
A hearing held pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885 (1972), is used to determine whether to close the courtroom proceedings to the public either entirely or partially during a trial.
A hearing held pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, (1974), is used to determine the extent to which the prosecution may inquire into a criminal defendant's prior criminal convictions, if the defendant testifies at his trial.
Linares appealed to the New York State Supreme Court, Appellate Division, First Department, from the judgment of conviction. In that court, his counsel argued that Linares' right to a public trial was violated when the trial court closed the courtroom improperly during Lebron's testimony. According to Linares' appellate counsel, the prosecution provided insufficient evidence to the court to justify the courtroom closure. Linares' appellate counsel also argued that: (1) the verdict was against the weight of evidence; and (2) Linares' sentence was excessive. In a pro se motion, Linares asked the Appellate Division — in anticipation of his federal habeas corpus petition — to hold his appeal in abeyance so that he could exhaust available remedies in the trial court respecting claims his trial counsel did not preserve for appellate review.
On May 20, 2003, the Appellate Division denied Linares' motion. It affirmed unanimously the judgment of conviction finding that: (a) the verdict was based on legally sufficient evidence and was not against the weight of evidence; (b) issues of credibility and identification were properly considered by the jury and no reason to disturb its determination existed; (c) the argument that the courtroom was closed improperly during Lebron's testimony, due to insufficient evidence justifying the closure, was not preserved for appellate review; and (d) no basis for reducing Linares' sentence existed. See People v. Linares, 305 A.D.2d 259-260, 759 N.Y.S.2d 76-77 (App.Div. 1st Dep't 2003). Thereafter, Linares sought leave to appeal to the New York Court of Appeals. On August 22, 2003, the New York Court of Appeals denied Linares' request for leave to appeal to that court. See People v. Linares, 100 N.Y.2d 596, 766 N.Y.S.2d 171 (2003). The instant petition followed.
III. DISCUSSION
An application for a writ of habeas corpus made by a prisoner in custody pursuant to a judgment entered in a state court may be granted only upon a finding that the prisoner is in custody in violation of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a).Fourth Amendment Violations
Linares maintains that he is entitled to habeas corpus relief because no probable cause existed for his arrest or for the seizure of the contraband evidence from his person, that was used against him at his trial. In addition, Linares maintains his constitutional rights were violated because he was misidentified as the seller. Although Linares contends these claims are based on the Fourteenth Amendment, they are based on the Fourth Amendment.
Where a state has a mechanism for adjudicating Fourth Amendment claims, like the petitioner's claims concerning the seizure and the concomitant search of his person or the identification procedure used to link him to the charged crimes, habeas corpus review of the claims is precluded. The United States Supreme Court has held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3046 (1976). In this judicial circuit, "federal courts can review the Fourth Amendment claims otherwise precluded by Stone only '(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.'" Montero v. Sabourin, No. 02 Civ. 8666, 2003 WL 21012072, at *5 (S.D.N.Y. May 5, 2003) (quoting Capellan v. Riley, 975 F.2d 67, 70 [2d Cir. 1992]).
New York Criminal Procedure Law ("CPL") §§ 710, et seq. provide a procedure for litigating Fourth Amendment claims. Specifically, CPL § 710.60 provides for a pretrial hearing, or hearings, to determine whether evidence sought to be used at a trial is inadmissible because it violates the rule set forth, inter alia, in Mapp. In the instant case, not only does New York State provide a corrective mechanism to address the alleged constitutional violations concerning search and seizure, but Linares used that mechanism when he attended the pretrial hearing. Although it does not appear that the pretrial hearing was also conducted pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967), the trial court determined at the hearing that: (1) probable cause existed for Linares' arrest; (2) the police had probable cause to arrest him and search him, after the confirmatory identification was made; and (3) the contraband evidence obtained from Linares' person could be used at his trial. Since Linares does not allege that he was precluded from using the procedure New York provides for challenging (i) arrests alleged to have been made without probable cause, (ii) evidence obtained through such an arrest or (iii) the propriety of the identification made of a criminal suspect, due to an unconscionable breakdown in the underlying procedure, the Court finds that Linares' claims, that probable cause for his arrest was lacking, the contraband evidence was seized unlawfully and he was misidentified as the seller, are not cognizable in this habeas corpus proceeding. Deficient Chain of Custody
A hearing held pursuant to Wade is used to determine whether the pretrial identification of a criminal defendant, as the perpetrator of a crime(s), was the result of impermissibly suggestive procedures.
Linares asserts his constitutional rights were violated because the controlled substance evidence was not maintained in accordance with the applicable "chain of custody" protocol and it "was not proven beyond a reasonable doubt that it was obtained from the defendant."
An alleged deficiency in the chain of custody protocol, for evidence seized by law enforcement officials, is an issue respecting the weight to be accorded the evidence and, as such, is not cognizable on habeas corpus review because the weight of the evidence is a state-law claim grounded in CPL § 470.15(5). Inasmuch as habeas corpus relief is available only for violations of federal law, the petitioner may not obtain the relief he seeks based on this claim. See 28 U.S.C. § 2254(a); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990).
Unconstitutionally Selected and Empaneled Jury
Linares asserts his Sixth Amendment right was violated because the jury at his trial was hastily selected and empaneled and his trial counsel could have exercised peremptory challenges in a "more meaningful manner."
The Sixth Amendment grants a criminal defendant the right to a trial "by an impartial jury." See U.S. Const. amend.VI. "The right to an 'impartial jury' is also grounded on principles of due process." United States v. Barnes, 604 F.2d 121, 169 (2d Cir. 1979). It includes "the right to take reasonable steps designed to insure that the jury is impartial" and one of the most important devices for doing so is the jury challenge, of which there are two types: "'for cause,' where actual bias is admitted or presumed" and "'peremptory,' where bias is suspected or inferred." Id.
Linares fails to assert any factual allegations demonstrating the basis for his claim that the jury was unconstitutionally selected and empaneled. The record demonstrates that, after the voir dire was conducted on March 19, 21, 22 and 23, 2001, the jury was selected and empaneled. It also shows that during the jury selection process, Linares' counsel exercised the right to make jury challenges. Linares' counsel used challenges for cause and exhausted all fifteen peremptory challenges allotted to the petitioner. The petitioner does not meet his burden of demonstrating a constitutional violation occurred in connection with the jury selection and empanelment by stating, in a conclusory fashion, that the jury was hastily selected and that his peremptory challenges could have been made in a more meaningful manner. Without more, no basis exists for finding that a Sixth Amendment violation occurred, as alleged by Linares. Consequently, he is not entitled to habeas corpus relief on that ground.
Tainted Jury
Linares also contends the jury was "prejudiced and tainted by the introduction of the defendant's photograph that conveyed and portrayed the message that 'this is the defendant who sold the drugs.'"
The "Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S. Ct. 843, 853 n. 6 (1983). "Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived [him] of a fundamentally fair trial." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) (emphasis in the original). Trial errors occurring during the presentation of the case to the jury are subject to a harmless-error analysis under which "an error requires reversal only if it 'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253).
The record demonstrates that, during Lebron's testimony, the prosecution introduced in evidence a photograph of Linares. When asked what he recognized it to be, Lebron answered that it was "Olavi Linares, the man who sold me the drugs on that date" and that the photograph fairly and accurately depicted the way Linares looked on the date of the crime. Linares' counsel objected to the introduction of the photograph into evidence on the ground that it constituted "improper bolstering" and because it would be unduly prejudicial: "[i]t puffs up the identification, of any independent recall." The trial judge concluded that, because the defendant asserted a misidentification defense, the photograph would assist the jury in determining whether the identification was appropriate and overruled the objection.
Other than stating that the jury was tainted by the receipt of the photograph into evidence, Linares does not explain how the trial judge's determination to receive the photograph into evidence or his reasoning for doing so was erroneous, and deprived him of a fundamentally fair trial. Moreover, Linares fails to demonstrate that the trial judge's determination, if erroneous, had a substantial and injurious effect or influence in determining the jury's verdict. The Court finds that Linares failed to satisfy the burden imposed on him by the standard governing claims of constitutional violations resulting from evidentiary rulings and, therefore, he is not entitled to the relief he seeks based on his tainted-jury claim. Ineffective Assistance of Trial Counsel
Linares contends his trial counsel rendered ineffective assistance to him because his counsel: (a) committed errors that prevented the facts from being developed at his trial; (b) failed to introduce testimony challenging the credibility of the police officers and their informants; and (c) failed to introduce clear and convincing evidence that would have changed the outcome of the trial.
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 104 S. Ct. at 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 104 S. Ct. at 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 104 S. Ct. at 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different."Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome."See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066.
Linares failed to explain what errors, allegedly committed by his counsel, prevented the facts from being developed at his trial or what facts would have been developed save for his trial counsel's errors. He also failed to indicate what evidence could have been presented to the jury to challenge the credibility of the police officers and their informants. Furthermore, Linares did not explain, with particularity, what the clear and convincing evidence is that his trial counsel failed to present to the jury, that would have changed the outcome of the trial. The record demonstrates that Linares' trial counsel rendered effective assistance to him when he, inter alia: (a) made an application for a Sandoval hearing, seeking to prevent any questioning of Linares about his prior convictions; (b) requested and obtained a Mapp and Dunaway hearing, at which he argued no probable cause existed for Linares' arrest and, further, that any contraband evidence obtained as a result of the subsequent search of the petitioner should be suppressed; (c) cross-examined all the witnesses and attempted to impeach their credibility; (d) made objections during the trial; (e) made an application, at the end of the prosecution's case, to dismiss both charges, arguing that the prosecution failed to make a prima facie showing either that Linares sold cocaine to Lebron knowingly and unlawfully or possessed cocaine; and (f) made appropriate requests respecting issues of law to be included by the court in its instructions to the jury. Nothing in the record indicates that Linares' trial counsel's performance fell below an objective standard of reasonableness measured by prevailing professional norms. Moreover, as noted above, Linares has failed to identify errors that he maintains counsel committed that demonstrate ineffective assistance was rendered to him. Therefore, the Court finds that habeas corpus relief is not warranted based on the instant ground.
Insufficient Evidence
Linares asserts, without providing any specifics, that he was deprived of his Due Process right to a fair trial because the evidence presented at his trial was legally insufficient for a finding that he was criminally culpable and the prosecution failed to prove beyond a reasonable doubt that any controlled substance was obtained from him. On his direct appeal, Linares asserted that because (i) the brown paper bag and the prerecorded "buy" money were not recovered from him upon his arrest, and (ii) Lebron's testimony was incredible, the prosecution failed to establish his guilt beyond a reasonable doubt.
When challenging the sufficiency of the evidence underlying a state criminal conviction, a petitioner bears a heavy burden of demonstrating that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983). "[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A reviewing court must resolve all issues of credibility in favor of the jury's verdict. See United States v. Tyler, 758 F.2d 66, 68 (2d Cir. 1985).
The following witnesses testified at Linares' trial: (1) Lebron; (2) Velez; (3) Grimm; and (4) Ramilaben Panchal, a chemist with the New York City Police Department. Lebron testified that he purchased cocaine from Linares and that upon his transmittal of the seller's description to the other members of his police-officer team, Linares was apprehended. He testified further that, within minutes, Linares was taken outside the building where the sale was made and identified by him positively when Lebron made a drive-by-identification. The lack of corroborating evidence, namely, the brown paper bag from which Linares retrieved the cocaine sold to Lebron and the prerecorded "buy" money, apparently, did not affect the jury's assessment of Lebron's testimony. Lebron explained to the jury, during his testimony, that prerecorded "buy" money is not always recovered in buy-and-bust operations. If the jury had any doubts about the credibility of Lebron's testimony, they were resolved against Linares.
Linares argued, on appeal, that Lebron's identification of him was of questionable accuracy because of Lebron's impaired vision. On a cross-examination, Lebron testified that, although he wears prescription eyeglasses for viewing objects at a distance, and that his prescription is for one eye only, he did not wear any corrective lens when he identified Linares, from a distance of fifteen feet. Moreover, according to Lebron, he had an unobstructed view of Linares, when he identified Linares as the seller. Lebron testified further that, in his past work experience, he had situations when, upon making a drive-buy identification, he found the person apprehended was not the person from whom he had made a controlled-substance purchase; in such a circumstance, the apprehended person would be released. The jury did not disregard this testimony. On the contrary, the record demonstrates that, during their deliberations, the jurors requested that the trial court permit them to hear Lebron's testimony concerning his vision and the distance from which he identified Linares and then to hear Lebron's entire testimony. The jury's requests show that the jurors considered all the evidence presented and resolved any conflicts in favor of the prosecution.
Linares also argued, on appeal, that Velez's claim that the substance, allegedly purchased by Lebron, tested positive for marijuana, claiming only later that he had made an error, amounted to "a glaring, reasonable-doubt weakness." Although Velez testified, on cross-examination, that he signed a field test report indicating that the substance Lebron had purchased from Linares tested positive for marijuana, he stated that his error was an honest mistake and, on redirect examination, testified that in another area of the report he indicated the substance was crack cocaine.
Even in the absence of the brown paper bag and prerecorded "buy" money, a rational trier of fact could have accepted Lebron's testimony, that Linares was the seller, based on the hand-to-hand purchase he made from Linares. A rational trier of fact could have found that Lebron's identification of Linares, as the seller, was credible because it was made based on an unobstructed view, during daylight hours, from a distance of fifteen feet, despite Lebron's testimony that he has impaired vision in one eye. Furthermore, a rational trier of fact could have concluded that Velez made an honest error when he marked marijuana on the substance report when the substance involved was cocaine. Accordingly, because a rational trier of fact could have found reasonably that Linares committed the crimes charged, Linares has not satisfied the heavy burden of demonstrating that, upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. The Court finds that, because Linares is not in custody in violation of the Constitution, he cannot obtain habeas corpus relief based on his insufficient-evidence claim.
Biased Trial Judge
Linares contends the trial judge "was prejudiced by his knowledge of defendant's prior convictions which infected trial motions and requests with error of constitutional dimensions."
The Due Process Clause requires that an impartial judge preside at a criminal proceeding. See Tumey v. State of Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 441 (1927). To prevail on a constitutional-violation claim based on the partiality of a judge, a petitioner must rebut the presumption of impartiality accorded those who have sworn to administer justice evenhandedly.See Aetna Life Inc. Co. v. Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 1585 (1986) (quoting 3 W. Blackstone, Commentaries *361 "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea."). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality [claim]." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). Moreover, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality [claim] unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.
During the Sandoval hearing, the trial judge considered Linares' prior criminal record and determined the extent to which the prosecution would be permitted to inquire into Linares' prior criminal convictions if Linares elected to testify at his trial. Linares points to no particular ruling(s) or error(s) that demonstrates judicial bias resulting from a deep-seated favoritism or antagonism that made fair rulings impossible for the court to render throughout the trial. Therefore, the Court finds that Linares has failed to establish a constitutional violation occurred because of judicial bias.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petition be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).