Ed Sapone’s DECISIONS OF THE WEEK -March 1, 2019

by | Mar 1, 2019 | Ed Sapone’s Decisions of the Week

A couple of surprising trends this week. For the second time in three weeks (Fernandez, below, and Orlando v. Nassau County District Attorney’s Office, here), the Circuit reversed the denial of a habeas conviction in a New York State murder case after petitioners’ efforts to get justice in New York’s state courts failed. In the second surprise, Justice Roberts joined the liberal wing of the Supreme Court in two cases (after concurring with the liberal wing’s per curiam majority last week in Moore v. Texas, here).

Second Circuit

On Friday (2/22), in Fernandez v. Capra, the Circuit reversed SDNY Judge Kimba Wood’s denial of defendant’s § 2254 habeas petition. Defendant alleged that his New York State murder conviction should have been vacated because the prosecution knowingly offered perjured testimony at trial that was later recanted.

Petitioner was convicted of a 1993 murder of a rival gang member. He was convicted in Supreme Court, New York County, before Leslie Crocker Snyder.

By way of background, a man jumped out of a car and fired several shots, killing Quintero, and injuring Gomez, a bystander. Although there were witnesses, no one was immediately identified.

Two years later, Melino, an NYPD Homicide investigator, renewed the search based on two cooperators’ claim that petitioner had been hired to commit the murder. One of the cooperators claimed that petitioner had confessed to him. Melino later obtained photo-identifications by four men: Hickliff Rosario, George Rosario, Jesus Canela, and Manuel Medina.

At trial, the two cooperators testified that petitioner had been hired to do the shooting. Each of the four alleged eyewitnesses also identified petitioner as the shooter. Petitioner was convicted.

Days after the trial concluded in 1996, the prosecution disclosed that Melino had been arrested and charged with a narcotics sale based upon events that had happened before Melino had entered the police academy. The court rejected defendant’s post-trial Brady claim, finding that the evidence was disclosed as soon as prosecutors learned of it. Petitioner’s conviction was affirmed on appeal.

Seven years later, petitioner filed his first motion for a new trial based on affidavits of the Rosario brothers recanting their identifications, and claiming that they had been coerced by Melino. Petitioner also produced an affidavit from the injured bystander, Gomez, who swore that petitioner was not the man who shot him. That motion was denied after a hearing, with Justice Bruce Allen finding that the recantations and Gomez’s negative identification were not credible.

The First Department granted leave to appeal, but affirmed, and the Court of Appeals denied leave.

Another four years later, Gomez filed a second CPL 440 motion. This time, he offered an affidavit from Canela recanting his identification, also claiming that Melino had coerced his accusation. This motion, too, was denied after a hearing, with Justice Allen finding that Canela’s recantation was incredible.

Justice Manzanet-Daniels of the First Department denied leave to appeal.

In 2010, petitioner filed the current habeas, which SDNY denied.

While the Circuit found that the initial Brady claim was not incorrectly decided, and the initial CPL 440 motion was not incorrectly denied, it found that the state court’s credibility finding as to Canela’s recantation was an unreasonable determination of the facts in light of the evidence presented. In the Circuit’s words, the state court’s decision contained sound reasons to credit Canela’s recantation, and no plausible reason to reject it. The Circuit’s thorough review of the recantation-hearing evidence leaves one wondering how NY Supreme could twice reject the evidence of coerced identifications, and, perhaps even more troublingly, how the First Department could deny leave after the second hearing.

Because Melina’s knowledge of the perjury was imputed to the prosecution team, and Canela’s perjured testimony was material, petitioner was entitled to a new trial.

The Circuit’s decision can be found here.

On Monday (2/25), in United States v. Moore, the Circuit affirmed defendant’s NDNY conviction for three counts of federal bank robbery and the 135-month sentence, finding that federal bank robbery and New York’s third-degree robbery were crimes of violence subjecting defendant to a sentencing enhancement as a career offender.

In 2015, defendant pleaded guilty to three counts of robbing federal insured banks: a November 17, 2014 KeyBank robbery in Schenectady, a November 18, 2014 Adirondack Bank robbery in Utica, and a December 30, 2014 First Citizens Bank

robbery in Columbia, South Carolina. During each robbery, either appellant or his co-defendant told a teller that he had a gun and demanded money.

Following his guilty plea to three counts of federal bank robbery, the Probation Office recommended that defendant be sentenced as a career offender, because he was at least 18 when he committed the offenses, federal bank robbery is a crime of violence, and he had two prior NY third-degree robbery convictions. Defendant objected, claiming that neither federal bank robbery nor NY’s third-degree robbery are crimes of violence.

The district court rejected defendant’s arguments, and sentenced him to concurrent 135‐month terms of imprisonment on each of the three counts.

The Circuit found that federal bank robbery “by force and violence, or by intimidation,” is a crime of violence because it is specifically enumerated in what it called the Commentary Clause in the notes to Guidelines § 4B1.2(a). Even though it was listed only in the commentary, it had the same effect as if it were enumerated in the text of the Guidelines.

The Circuit also held that NY’s robbery in the third degree was categorically a crime of violence under the force clause of Guidelines § 4B1.2(a)(1), paralleling its recent decisions finding that it is a violent felony under the force clause of 18 U.S.C. § 924(3)(2)(B), and a crime of violence under the force clause of Guidelines § 2L1.2.

The Circuit’s decision can be found here.

On Monday (2/25), in United States v. Jaramillo, in a summary order, the Circuit affirmed the conviction and 144-month sentence imposed by SDNY Judge Laura Taylor Swain, rejecting defendant’s procedural- and substantive-reasonableness challenges.

Defendant argued on appeal that his 144-month sentence, which was 47 months above the maximum of the guidelines range of 78 to 97 months, was procedurally unreasonable because, among other reasons, the court should not have increased by four levels defendant’s offense level for causing five or more victims substantial financial hardship.

The Circuit disagreed, finding that, because defendant defrauded more than 26 victims, some of whom were sick, elderly, or likely to lose their homes, and each suffered financial hardship, the enhancement was appropriately considered.

As to defendant’s challenge to the sentence’s substantive reasonableness, the Circuit found the sentence appropriate. Among other things, defendant had callously defrauded unsophisticated immigrant‐investors. He never actually invested a single dollar he had collected from the investors. And he spent most of the money on himself.

The Circuit’s decision can be found here.

On Tuesday (2/26), in Lozano v. United States, in a summary order, the Circuit remanded defendant’s coram nobis writ back to SDNY Judge John G. Koetl, for further factual consideration of whether defendant’s guilty plea to Hobbs Act robbery should be vacated because defendant did not fully understand the immigration consequences of his conviction.

When defendant pleaded guilty, the parties, including defendant, seemed to be under the mistaken belief that defendant was a US citizen. Based on that misunderstanding, at the change of plea hearing, the court stated, among other things, that there were no collateral consequences to the conviction. After the guilty plea, ICE commenced deportation proceedings against defendant because he was not a citizen, and was removable based on the conviction.

Defendant filed a coram nobis petition, alleging that the conviction was involuntary because defendant was misadvised about the immigration consequence of the conviction. The district court denied the petition, finding that the Due Process Clause of the 5th Amendment did not assure defendant the right to receive accurate information about deportation.

The Circuit found the court’s ruling premature, remanding it to consider whether defendant had an excuse for his delay in filing the petition, and, whether, had he received correct advice, he would not have pleaded guilty.

The Circuit’s ruling appears to have set up a parallel to the New York Court of Appeals ruling in People v. Peque, 22 N.Y.3d 168 (2013), in which the Court held that courts are obligated to warn noncitizen defendants that their guilty pleas may result in their deportation.

In an unusual dissent from a summary order, Judge Richard Sullivan (former SDNY judge) would have affirmed the denial of the petition, because, in his view, the Circuit had consistently held that deportation is a collateral, rather than a direct, consequence of conviction and that a district court is not required to explain the possible immigration consequences of a plea to ensure its voluntariness.

The Circuit’s decision can be found here.

On Wednesday (2/27), in United States v. Sammy, in a summary order, the Circuit affirmed the denial by EDNY Judge Brian Cogan of defendant’s challenge to his conviction for illegal re-entry following his deportation. The Circuit rejected defendant’s claim that his original deportation order was invalid.

Defendant claimed that his original deportation order was flawed because the immigration judge gave him erroneous legal advice—he’d overstated the effect of a prior conviction on defendant’s likelihood of success should he seek cancellation of removal.

The Circuit found that, even assuming that defendant was right about the incorrect advice, he had an obligation to pursue all his administrative remedies in challenging the

deportation order, which he did not do. Because he did not seek to overturn the deportation order, he could not challenge it in district court following his illegal re-entry.

The Circuit’s decision can be found here.

On Wednesday (2/27), in United States v. Herring, in a summary order, the Circuit affirmed defendant’s SDNY Hobbs Act robbery and murder-in-aid-of-racketeering convictions and the Life-imprisonment sentence imposed by Judge Kenneth M. Karas. The Circuit summarily rejected defendant’s claims, among others, that the court erroneously declined to admit statements made by a co-conspirator. The Circuit found that defendant had failed to meet his burden under Rule 804(b)(3) to show that the statements were sufficiently corroborated by circumstances indicating that they were true.

Under the Rule 804(b)(3)(B), the statements should be admitted—putting other considerations, such as Rule 403, aside—only if “(B) [. . .] supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.”

The Circuit’s decision can be found here.

On Wednesday (2/27), in United States v. Flom, in a summary order, the Circuit affirmed defendant’s EDNY money-laundering conviction before Judge Roslynn R. Mauskaupf, summarily rejecting his challenges to the sufficiency of the evidence, the court’s exercise of discretion in certain evidentiary rulings, including the admission of evidence of a prior uncharged crime, and the court’s decision to instruct the jury on conscious avoidance.

Addressing defendant’s challenge to the admission of his involvement in a prior money-laundering scheme, the Circuit noted that it followed its “inclusionary” approach to prior crimes evidence: such evidence is admissible unless it is introduced for the sole purpose of showing the defendant’s bad character, or unless it is overly-prejudicial.

Applying that “kitchen sink” standard (my words, not the Circuit’s), the Circuit found that the district court did not err in admitting the evidence as relevant to defendant’s knowledge of the fraudulent nature of the current scheme. The decision lacks any discussion of this issue, so its difficult to know whether the Circuit got this one right. It seems that, under Rule 403, this 404(b) evidence would have been extremely prejudicial, yet the alleged probative value (knowledge) would have been minimal unless the defendant’s trial theory was that he did not engage in money laundering because he did not know how to. It appears that the real reason that the prior uncharged money laundering scheme was introduced in this money laundering trial had little to do with showing the defendant’s knowledge of money laundering and more to do with the Circuit’s “kitchen sink” approach.

Finally, the Circuit found that the district court did not err in giving a conscious avoidance charge. The charge was appropriate because part of the trial evidence included a statement by defendant to the undercover agent that the defendant did not “have to know everything” that the undercover agent does.”

The Circuit’s decision can be found here.

On Wednesday (2/27), in Amato v. United States, in a summary order, the Circuit affirmed EDNY Judge Nicholas Garaufis’ denial of defendant’s § 2255 habeas petition rejecting petitioner’s contention that his trial counsel was ineffective and conflicted.

Petitioner was indicted along with 27 others for criminal activities of the Bonanno crime family. Together with his notice of appearance, petitioner’s counsel filed a letter notifying the district court of a potential conflict of interest resulting from his previous representation of Joseph Massino, a former “boss” of the Bonanno family. Counsel assured the court that he recalled no material information, confidences, or secrets from his representation of Massino, but nevertheless stated his intention to engage co‐counsel to cross‐examine Massino if he were to testify against defendant at trial. Counsel asserted that there was no “serious potential conflict” requiring his disqualification, “and likely no potential conflict at all.” The court did not hold a Curcio hearing, and during the six‐week trial, Massino was not called as a witness.

Following his conviction, petitioner argued, among other things, that his 2255 should have been granted because his counsel had an actual conflict of interest that adversely affected his performance. To demonstrate that a conflict adversely affected counsel’s representation, defendant was required to show that at least some plausible defense strategy was forgone as a consequence of counsel’s conflict of interest. According to defendant, the main government witness against him was Vitale, an underboss of the Bonanno family. Vitale testified about statements made to Vitale by Massino, defendant’s co‐conspirator. Defendant argued that counsel’s dual loyalties to Massino and defendant created the actual conflict of interest, and that the conflict prevented him from adequately challenging that testimony by, among other things, using exculpatory evidence, calling Massino as a defense witness, and otherwise employing defense strategies that could conflict with Massino’s interests.

The Circuit found that it was unclear whether an actual conflict existed based on the successive representation (successive representation certainly tends to be more favored than concurrent representation). And, in any event, defendant failed to show that counsel’s alleged conflict caused him to forgo a plausible defense strategy.

The Circuit’s decision can be found here.

On Thursday (2/28), in United States v. Bishunath, in a summary order, the Circuit affirmed defendant’s SDNY conviction, before Judge William Pauley, convicting him of

arson and conspiracy to commit arson and sentencing him to 67 months of imprisonment.

The Circuit summarily rejected defendant’s claim that the evidence was insufficient to show that his competitor’s vacant store to which he set fire was used in interstate commerce.

Defendant argued on appeal that because the store was closed, it was not “used in interstate commerce.” The Circuit rejected that argument. A business that is closed temporarily may nonetheless satisfy the interstate commerce requirement if there is trial evidence of “sufficiently definite plans to return the property to the stream of commerce.”See United States v. Iodice, 525 F.3d 179, 184 (2d Cir. 2008).

Here, the government elicited evidence at trial that the owner was planning to reopen the store.

The Circuit found that a rational trier of fact could have therefore concluded that the owner had “sufficiently definite plans” to reopen the store. See Iodice, at 184.

Defendant’s second point on appeal, that his conviction should be reversed because his co-conspirator’s testimony was incredible as a matter of law, also failed.

The Circuit found that, viewed in a light most favorable to the government, the jury was permitted to credit the accomplice’s testimony, as it was not “patently incredible,” and it did not “def[y] physical realities.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). Instead, it was “facially coherent and consistent” and it was corroborated by other evidence.

The Circuit’s decision can be found here.

On Thursday (2/28), in United States v. Williams, in a summary order, the Circuit affirmed defendant’s convictions of Hobbs Act robbery and murder through the use of a firearm in connection with the robbery. Defendant was convicted after an 8-day jury trial before SDNY Judge Analisa Torres.

The Circuit rejected defendant’s claims that the court abused its discretion when it precluded defendant from admitting the entirety of a government cooperating witness’s videotaped interview with an Assistant District Attorney. The defendant wanted the jury to see the entirety of the 20-minute interview, because the cooperator made certain statements that were untrue and contradicted his trial testimony against defendant.

Initially, the district court granted the government’s objection and allowed defendant to play only a limited amount of the recorded interview, as the cooperator admitted during cross-examination that he had lied during his prior interview. The court then reversed its prior ruling and allowed the defendant to play more of the recording, because “[e]xtrinsic evidence of a prior inconsistent statement is more persuasive to a jury than a witness’ acknowledgment of inconsistencies in a prior statement.” United States v. Strother, 49 F.3d 869 (2d Cir. 1995).

Defendant argued on appeal that he should have been permitted to play the entire 20-minute recording. The Circuit disagreed.

Under Federal Rule of Evidence 403, the trial court may preclude relevant evidence if, among other reasons, admitting it would waste time and confuse the issues before the jury.

The Circuit found that the district court did not abuse its discretion, as the portions of the video that weren’t played would have been only “of marginal use to the jury.” The Circuit found no error, and even if it had found error, there was plenty of other evidence that contributed to the conviction.

The Circuit’s decision can be found here.

United States Supreme Court

On Wednesday (2/27), in Garza v. Idaho, in a 6-3 decision, the majority opinion was written by Justice Sotomayor, and joined by Roberts, Ginsburg, Breyer, Kagan, & Kavanaugh.

The Court held that when a criminal defense lawyer decides not to file a notice of appeal following a guilty plea despite his client’s request, he renders ineffective assistance of counsel. This is so, even if the defendant waived his right to appeal by agreeing to a plea agreement that included an appellate waiver. And the defendant need not show prejudice. When an entire proceeding such as an appeal has been forfeited, it is impossible to gauge the defendant’s likelihood of success on the merits. Prejudice will be assumed. See Strickland v. Washington, 466 U.S. 668 (1984). Moreover, an appellate waiver does not waive a defendant’s constitutional rights. And the plea agreement is a contract, which may include favorable or conflicting language that may benefit the defendant notwithstanding the waiver.

Putting aside the question of whether or not counsel will ultimately perfect the appeal, file an Anders brief, or seek to be relieved or replaced, Garza requires that the NOA be filed if requested by the defendant.

The Supreme Court’s decision can be found here.

On Wednesday (2/27), in Madison v. Alabama, in a 5-3 decision, with the majority opinion written by Justice Kagan, joined by Roberts, Ginsburg, Breyer, & Sotomayor, the Court held that the 8th Amendment may permit executing a prisoner even if he cannot remember committing his crime. The 8th Amendment may, nonetheless, prohibit executing a prisoner who suffers from dementia or another disorder rather than psychotic delusion. The Court remanded to the state court to assess defendant’s competency under the correct standard, i.e., whether defendant can reach a rational understanding of why the State wants to execute him.

The Supreme Court’s decision can be found here.

Appellate Division, First Department

On Thursday (2/28), in People v. Tatis, the First Department found that language in NYC Administrative Code § 10-131(i)(3), which makes it a crime to possess pistol or revolver ammunition unless authorized to possess a pistol or revolver, is an exception and not a proviso. Because exceptions must be affirmatively pleaded as an element in an accusatory instrument, and the People bear the burden of proving them, and the People did not prove lack of authorization to possess a pistol or revolver, defendant’s conviction was reversed. Unfortunately for defendant, this argument did little for him, because the First Department upheld his convictions, among others, for attempted first-degree assault.

The First Department’s decision can be found here.

Appellate Division, Second Department

On Wednesday (2/27), in People v. Rosario, the Second Department reversed defendant’s Kings County first-degree assault and reckless endangerment convictions in the interest of justice, once again finding that the court committed reversible error by failing to adequately convey to the jury that if it found the defendant not guilty of attempted murder in the second degree based on justification, then it should cease deliberations and acquit him of the lesser counts of assault in the first degree and reckless endangerment in the first degree. As noted in recent weeks, both the First and Second Departments have reversed on this error perhaps more often than any other in recent years.

The Second Department’s decision can be found here.

On Wednesday (2/27), in People v. Torres, the Second Department reversed defendant’s 2001 Queens County conviction for criminal sale of a controlled substance in the third degree, after a nonjury trial before former Supreme Court Judge Seymour Rotker. AD2 agreed with defendant that the court should have granted his request for an adverse inference charge where People failed to turn over duly requested tape recordings and other police records related to taped interactions between the undercover officer and a witness to the sale, who was also the defendant’s unindicted co-defendant.

The Second Department’s decision can be found here.

Appellate Division, Third Department

On Thursday (2/28), in People v. Youngs, the Third Department held defendant’s Madison County convictions for predatory sexual assault against a child, criminal sexual act in the first degree, sexual abuse in the first degree and endangering the welfare of a child, in abeyance, agreeing with defendant that County Court erred by failing to rule on defendant’s motion to suppress oral and written statements to law enforcement officers.

On the first day of trial, defendant advised the court that it had not ruled on his suppression motion. The court disagreed, stating that it had ruled on the admissibility of his statements at the Huntley hearing. The Third Department agreed with defendant: although the court conducted a Huntley hearing, the record did not reflect that it issued a decision on the motion.

The Third Department remitted to County Court for it to set forth on the record or in a written decision its determination on the suppression motion in accordance with CPL 710.60 (6).

The Third Department’s decision can be found here.

In People v. Newman, the Third Department reversed defendant’s narcotics convictions, finding that defendant had not received meaningful representation as a result of a number of errors.

First, the Third Department found it “troubling” that counsel elicited damaging testimony from a detective during cross-examination. Upon defense counsel’s inquiry as to why police had not tested items found in the apartment for fingerprints, the detective responded that “based on [the] investigation, [police] had information that both parties were selling narcotics.” Defense counsel initially objected, but then withdrew his objection.

The Third Department found that, although there may have been valid strategic reasons to ask the question, it unintentionally elicited prejudicial evidence connecting defendant to the sale of drugs that would not otherwise have been before the jury.

Alone, this single error would not have been so prejudicial as to deny defendant a fair trial. But there was more. During cross-examination, defense counsel elicited admissions from an officer that he had made certain mistakes in obtaining the search warrant — first, by specifying in the warrant that defendant’s vehicle was to be searched when the application had instead sought authority to search his apartment, and second, by an error as to the timing of the investigation. When the officer could not recall the answer to one of defense counsel’s questions about the application, counsel used it to refresh his recollection, and then offered it into evidence. The People objected on the ground of relevance, and defense counsel responded that the application showed that the officer who had testified as an expert on drug investigations, had nevertheless made mistakes in applying for the warrant. County Court overruled the objection and admitted the application. Problematically, however, the warrant application contained damaging

information, including the fact that defendant had sold crack to a CI in the apartment, and that the CI had identified a photo of defendant as the person who had sold him drugs.

The cumulative effect of the errors deprived defendant of the effective assistance of counsel.

The Third Department’s decision can be found here.

In People v. Stone, the Third Department reversed defendant’s Broome County conviction for course of sexual conduct against a child in the first degree.

The Third Department had previously reversed defendant’s conviction for predatory sexual assault against a child and remitted the matter for a new trial on that count of the indictment, noting in doing so that the crime for which defendant was convicted was committed after much of the alleged molestation had occurred. Upon remittal, defendant moved for a reinspection of the grand jury minutes and dismissal of the count on the ground of legal insufficiency. County Court reinspected the minutes and agreed that the People had not presented sufficient proof to establish that the requisite conduct occurred after the crime of predatory sexual assault against a child was created. Because County Court found sufficient support for a lesser-included offense, it ordered that the count be reduced to course of sexual conduct against a child in the first degree. Following a nonjury trial, defendant was convicted of the reduced count. County Court sentenced her to 15 years in prison, to be followed by 20 years of post-release supervision.

On appeal, defendant challenged the court’s jurisdiction to prosecute her for the reduced charge. When a court reduces a charge contained in an indictment and the People fail within 30 days to take any action in response to this decision, the order directing the reduction shall take effect and the People are obligated, if they intend to pursue a prosecution, to either file an instrument containing the reduced charge or obtain permission to re-present the matter to a grand jury.

Here, the People did nothing after the County Court ordered a reduction: specifically, the People never filed a reduced indictment.

Even though defense counsel never objected, and the conviction was supported by sufficient evidence, the Third Department reversed because the conviction was jurisdictionally defective.

The Third Department’s decision can be found here.

On Thursday (2/28), in People v. Sumter, the Third Department reversed defendant’s Albany County attempted third-degree sale conviction, finding that the Albany County

Public Defender’s Office was precluded, as a matter of law, from representing defendant at a resentencing hearing, because the Public Defender, prior to being appointed to that position, was the County Judge who presided over and initially sentenced him in the matter.

The Third Department’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP