Ed Sapone’s DECISIONS OF THE WEEK-January 25, 2019

by | Jan 25, 2019 | Ed Sapone’s Decisions of the Week

Second Circuit

On Friday, in United States v. Knight, in a summary order, the Circuit affirmed the 80- month sentence imposed by EDNY Judge Roslynn Mauskopf, following the defendant’s

conviction for being a felon in possession of a firearm. The Circuit rejected defendant’s

contention that the district court should not have applied a 10-level sentencing

guidelines enhancement because New York’s crimes of second- and third-degree

robbery are not crimes of violence under § 4B1.2(a) of the guidelines.

The Circuit found that its recent decision in United States v. Pereira-Gomez, foreclosed

defendant’s argument, because it had held that all degrees of New York robbery and

attempted robbery qualify as crimes of violence under the Guidelines. See 903 F.3d

155, 166 (2d Cir. 2018).

The Circuit’s decision can be found here.

On Wednesday, in United States v. Vazzano, in a summary order, the Circuit vacated in

part the sentence imposed by former SDNY Judge Richard Sullivan and remanded the

case for resentencing. (Now-Second-Circuit Judge Richard Sullivan was not part of the

three-judge panel, which consisted of Leval, Pooler and Raggi.)

The sentence and appeal followed defendant’s guilty plea to operating an illegal

gambling business. See 18 U.S.C. § 1955. As part of his sentence, Judge Sullivan had

ordered, among other things, that defendant forfeit $59,540. Because defendant didn’t

have the forfeiture amount, Judge Sullivan required him to make monthly payments of

10% of his gross monthly income.

The defendant, who had consented to the money judgment, apparently wanted a doover

and tried to use the Supreme Court’s decision in Honeycutt v. United States, 137

S.Ct. 1626 (2017) to get his money judgment vacated. Although the decision doesn’t

flesh out his argument, it must have been that he did not acquire, as a result of the

crime, the $59,540 that he was ordered to forfeit. The problem for the defendant,

however, is that because he consented to the judgment, he waived his argument on

appeal. See United States v. Olano, 507 U.S. 725, 733 (1993) (“[W]aiver is the

intentional relinquishment or abandonment of a known right.” (internal quotation marks

omitted)); United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir. 1995) (“[W]aiver

necessarily extinguishes the claim altogether.” (internal quotation marks omitted)).

The Circuit remanded, upon the parties’ consent, for the limited purpose of authorizing

the district court to make substitute asset determinations. See 21 U.S.C. § 853(p) and

Rule 32.2(e) of the Federal Rules of Criminal Procedure.

The Circuit’s decision can be found here.

In United States v. Serrano, in a summary order, the Circuit affirmed the 18-month

sentence imposed by EDNY Chief Judge Dora L. Irizarry, revoking the term of probation

that had been originally imposed following his conviction for conspiracy to commit mail

and wire fraud. The Circuit rejected defendant’s procedural and substantive

reasonableness challenges.

Following an evidentiary hearing, the district court found that defendant had violated the

conditions of his probation by illegally possessing and distributing a substantial quantity

of marijuana. The Circuit rejected defendant’s procedural reasonableness challenge by

which he argued that the district court did not sufficiently address why a six-month

sentence would not have been adequate punishment. The Circuit found that the district

court adequately explained defendant’s sentence, that it reflected the seriousness of his

offense, was necessary to specifically deter future criminal conduct and to protect the

public, and would provide for effective correctional treatment.

Rejecting defendant’s substantive reasonableness challenge that the 18-month

sentence was disproportionate to the severity of the underlying offense conduct, the

Circuit found that it was justified by defendant’s criminal conduct while on probation and

repeated lies to the Probation Office.

The Circuit’s decision can be found here.

On Thursday, in United States v. Felder, in a summary order, the Circuit affirmed

defendant’s SDNY conviction before Judge Valerie E. Caproni, convicting him of

conspiracy to distribute and possess with intent to distribute crack cocaine (See 21

U.S.C. 841, 846) and brandishing firearms in connection with that conspiracy (See 18

U.S.C. 924(c)), and sentencing him to 26 years’ imprisonment. The Circuit rejected his

contention, among others, that his NY youthful offender adjudication should not have

been considered an adult conviction for purposes of the career offender guideline.

On appeal, the defendant did not dispute that the Circuit had previously held in United

States v. Jones that where a defendant was tried and convicted in an adult court and

served his sentence in an adult prison, his New York State youthful offender

adjudication is a predicate conviction under the Career Offender Guideline. See 415 F.

3d 256, 261 (2d Cir. 2005). He argued instead that Jones was wrongly decided and

implicitly overturned by United States v. Sellers, 784 F.3d 876 (2d Cir. 2015).

The Circuit found that it could not overrule Jones unless the earlier panel’s rationale

was overruled, implicitly or explicitly, by the Supreme Court or by a decision of the court

sitting en banc. In re Sokolowski, 205 F.3d 532, 534-35 (2d Cir. 2000) (per curiam). It,

therefore, held that Jones was binding.

The Circuit’s decision can be found here.

In United States v. Ulbricht, in a summary order, the Circuit affirmed SDNY Judge

Katherine B. Forrest’s denial of defendant’s motion for an extension of time to file his

motion for a new trial based upon newly discovered evidence, finding that the evidence

on which the defendant planned to base his motion could not qualify as newly

discovered under Rule 33.

A jury convicted defendant of various counts stemming from his founding and operation

of “Silk Road,” the infamous online black market that facilitated the sale of millions of

dollars of illegal goods and services. Before trial, he’d moved to exclude evidence

obtained pursuant to five “pen/trap orders,” that had allowed the Government to, among

other things, record the IP addresses associated with users of specific networks and the

websites they visited. The district court denied Ulbricht’s motion to suppress this

evidence, and the Circuit affirmed.

Defendant sought an extension of time to file a Rule 33 motion based upon revelations

about the pen/trap evidence. The Circuit found that the data collected from the pen/

traps could not be newly discovered because defendant knew about the pen/traps

before trial. In the Circuit’s words, “evidence that was available before trial and could

have been obtained with the exercise of due diligence—does not change the fact that

the old evidence itself was known and could have been obtained with the exercise of

due diligence.”

The Circuit’s decision can be found here.

In United States v. Santos, in a summary order, the Circuit reversed in part the

judgment, vacated the 70-month sentence imposed by EDNY Judge William F. Kuntz,

and remanded the case for resentencing. The Circuit found that defendant’s prior NY

conviction for criminal possession of a controlled substance did not qualify for the

controlled-substance-offense guidelines enhancement.

Defendant argued, among other things, that the district court improperly applied a 10-

level enhancement under section 2K2.1 of the November 2016 edition of the sentencing

guidelines. The enhancement was improper, defendant contended, because his prior

New York State conviction for criminal possession of a controlled substance did not

constitute a “controlled substance offense” under the Guidelines.

The Circuit agreed, citing its recent decision in United States v. Townsend, which held

that a “controlled substance” for purposes of the Guidelines refers exclusively to

substances controlled by the Controlled Substances Act. See 897 F.3d 66, 71 (2d Cir.

2018). As the New York State drug schedule included drugs not covered by that Act at

the time of defendant’s conviction, the conviction could not serve as a predicate offense

under § 2K2.1, and resentencing was required.

The Circuit’s decision can be found here.

United States Supreme Court

The Court granted cert in New York State Rifle & Pistol Association Inc. v. City of New

York, New York, on the question of whether New York City’s ban on transporting a

licensed, locked and unloaded handgun to a home or shooting range outside city limits

violates the Second Amendment.

SCOTUSblog’s coverage can be found here.

Appellate Division, First Department

On Tuesday, in People v. Muhammad, the First Department remanded defendant’s

attempted murder conviction to Bronx Supreme Court for resentencing (Newbauer, J.),

agreeing with defendant that the court had incorrectly adjudicated defendant a second

felony offender based on his Florida narcotics conviction. AD1 found that the Florida

offense’s knowledge requirement was broader than New York’s.

The First Department’s decision can be found here.

In People v. Alston, the First Department affirmed defendant’s NY County weapons

possession conviction (Dwyer, J.), notwithstanding its finding that the court had violated

CPL 200.60(3) by arraigning defendant on a special information before the trial began,

and not after it had commenced, as required by the statute. Despite the error, the

majority found that defendant had failed to show harm.

In dissent, Justice Renwick agreed with defendant that traditional harmless-error

analysis does not apply to such an error. She would have reversed.

The First Department’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Dessasau, the Second Department reversed defendant’s

CPW2 conviction, finding that Queens Supreme Court had erroneously denied his

suppression motion, sua sponte, on lack-of-standing grounds. The weapon was

recovered from a minivan in which defendant was a passenger. Defendant’s statement

to the police that the minivan was his “work van” was sufficient to establish standing.

The Second Department’s decision can be found here.

In People v. Gross, the Second Department modified defendant’s Suffolk County

convictions, affirming most of them, but finding that the People had not presented

sufficient evidence to prove first-degree grand larceny.

In this scheme to sell improperly-sourced prescription drugs, it was the People’s theory

that the defendants committed grand larceny by false pretenses, falsely representing to

pharmacies that the medications they were selling were lawful to sell and dispense. The

Second Department accepted defendant’s contention that the People failed to prove

that such a false representation of past or existing fact was made to the pharmacy

purchaser because a high managerial employee of the pharmacy knew that the

medications were not lawful to sell and dispense, and thus, the pharmacy, by

imputation, also knew this fact.

The Second Department’s decision can be found here.

In People v. Krivak, the Second Department reversed the order of Putnam County

Court, which had denied defendant’s CPL § 440.10 motion to vacate his 1997 seconddegree

murder conviction on newly discovered evidence grounds without a hearing.

Krivak was the co-defendant of Anthony DiPippo, whose conviction was vacated by the

Court of Appeals on the grounds that the court had erroneously excluded third-party

culpability evidence. See People v. DiPippo, 27 N.Y.3d 127 (2016). Following a retrial,

DiPippo was acquitted. Before the retrial, defendant Krivak’s attorney made a CPL §

440.10 motion to vacate his conviction. After DiPippo was acquitted, Krivak’s attorney

submitted a supplemental affirmation describing evidence that had been presented at

DiPippo’s retrial. Nonetheless Putnam County Court denied the motion without a

hearing. The Second Department reversed, finding that a hearing was necessary,

because, among other reasons, it would “promote justice.”

The Second Department’s decision can be found here.

In People v. Stephans, the Second Department reversed defendant’s bribery and

falsely reporting an incident convictions, finding that Queens Supreme Court had

improperly denied defendant’s motion to suppress her statements to law enforcement,

rejecting the court’s conclusion that defendant was not in custody.

The Second Department found that, “considering the totality of the circumstances

leading up to the subject statement, it cannot be said that the defendant’s statement

was genuinely spontaneous and not the result of provocation.” The officer to whom that

statement was made “should have known that in telling the defendant that she needed

to come to the precinct station house in connection with his investigation into the

allegations her husband had made against her, allegations about which she had already

been told she would be arrested, placing her in an interview room, and then confronting

her with the allegations and the evidence against her, including the existence of the

order of protection, he was reasonably likely to elicit from the defendant an incriminating


The Second Department’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Barr, the Third Department modified defendant’s sentences

for grand larceny as a hate crime and conspiracy in the fifth degree as a hate crime,

finding that the sentence imposed for conspiracy was required to run concurrently with

the sentence imposed for grand larceny.

Defendant was charged in 17 counts of a larger indictment with various crimes

stemming from his involvement in a ring of hate crimes targeting elderly victims. In

satisfaction of the indictment, he pleaded guilty to fourth degree grand larceny as a hate

crime (two counts) and conspiracy in the fifth degree as a hate crime. Supreme Court

determined defendant to be a second felony offender and imposed consecutive prison

sentences on all counts, with an aggregate sentence of 7½ to 15 years.

On a prior appeal AD3 had rejected counsel’s Anders brief, withheld decision and

assigned new counsel to represent defendant on appeal. On this appeal, AD3 found

that the People failed to satisfy their obligation of establishing that the act underlying the

grand larceny charge was separate and distinct from the actus rei of the conspiracy


The Third Department’s decision can be found here.


Edward V. Sapone

Sapone & Petrillo, LLP