Ed Sapone’s DECISIONS OF THE WEEK -March 29, 2019

by | Mar 29, 2019 | Ed Sapone’s Decisions of the Week

After several weeks during which the Second Circuit was unusually active, this week was quiet with no precedential decisions and only two unexceptional summary orders. The New York Court of Appeals continued its anti-criminal-defendant direction with its decision in People v. Alvarez. Rather than pointing out the patent inadequacies of an appellate brief filed for a defendant facing a life sentence, the court complimented the brief for its brevity.

Second Circuit

On Friday (3/22), in United States v. Valerio, in a summary order, the Circuit affirmed an EDNY judgment convicting defendant of 10 child-sexual exploitation and pornography counts, and the 60-year prison term imposed by Judge Joseph F. Bianco. The Circuit rejected defendant’s claims that (1) the court erroneously denied his motion to suppress inculpatory statements, (2) the sentence was procedurally and substantively unreasonable, and (3) several of his convictions violated the double jeopardy clause of the 5th Amendment to the U.S. Constitution.

The Circuit wrote primarily about defendant’s challenge to statements he made to agents who were executing a search warrant at his home. The defendant had complained that his statements were the product of a custodial interrogation not preceded by Miranda warnings.

At a pretrial suppression hearing, an FBI agent testified that a search warrant was executed at defendant’s home at 6:00 a.m. on a winter morning by a team of 12 officers. Defendant allowed the officers entrance into his home without resistance. After a 10-minute protective sweep of the home, the agent asked defendant to sit at the dining room table to speak with him, and informed defendant that they were searching for evidence of child pornography. During their “colloquy,” defendant was seated across the

table from the agent, who was accompanied at the table by two other officers, with a third officer standing in the corner of the room. Defendant was not restrained or touched and was given a cup of water. The agent confronted defendant with copies of incriminating emails that the Government had received from defendant’s co-conspirator. In response, defendant admitted that he directed a co-conspirator to produce child pornography and that he had received it by email.

The Circuit found that, under its precedents, defendant was not in custody even though a reasonable person would not have felt free to leave where a dozen officers were executing a search warrant in his home and his freedom of movement within the home was limited. The Circuit agreed with the district court that defendant’s freedom of action was not curtailed to the degree associated with a formal arrest, because (1) he was asked, not directed, to sit for an interview in the dining room; (2) he was not ordered to remain in the dining room or to answer any questions, nor was he threatened during the interview; (3) he was never told that he was not free to leave or would be arrested after the interview; (4) he was never handcuffed or restrained at any time; and (5) he was cooperative with the agents and remained calm throughout the interview.

The Circuit also addressed defendant’s substantive-reasonableness challenge to what defendant described as a de facto life sentence. Defendant argued that, under the parsimony clause of 18 USC § 3553(a) requiring the district court to “impose a sentence sufficient, but not greater than necessary,” to comply with the purposes of the guidelines, his sentence was unreasonable. Noting that the 60-year sentence was “indisputably severe,” especially because it was in practicality a life sentence, the Circuit found that it was nonetheless an appropriate exercise of discretion because of defendant’s pattern of sexual exploitation.

The Circuit’s decision can be found here.

In United States v. Galitsa, in a summary order, the Circuit affirmed an SDNY judgment convicting defendant of illegal reentry and making false statements following a jury trial before Judge Valerie E Caproni. The Circuit rejected defendant’s challenges to the improper admission of prior bad acts, criminal charges, and convictions, and the language used to cross-examine him about those incidents.

Defendant contended that the government’s inadvertent reference to his prior arrests, rather than to his prior conduct, was error not rectified by the court’s curative instruction and compounded by the court’s decision to allow inquiry into defendant’s prior charges and convictions.

The Circuit rejected the claim, finding that the court’s limiting instruction was adequate: because the jury was instructed that an arrest is not evidence of conduct, that references to defendant’s arrests should be disregarded, and that no inferences should be drawn against him based on those arrests, there was no reason to believe that the jury was unable to follow the court’s instruction.

The Circuit also rejected defendant’s argument that the district court erred when it allowed testimony about a 2014 forgery charge that was ultimately dismissed, a 2015 conviction for petit larceny, and a 1997 conviction for burglary. The Circuit found that those decisions “may well have been error,” but were harmless because of what it characterized as “a veritable avalanche of evidence” against defendant.

The Circuit’s decision can be found here.

New York Court of Appeals

Yesterday (3/28), in People v. Alvarez, in an opinion by Judge Leslie E. Stein, the Court affirmed the denial of defendant’s petition for a writ of error coram nobis which had alleged that defendant was denied his right to effective assistance of appellate counsel due to counsel’s failure to challenge defendant’s sentences as unduly harsh and severe, and claimed deficiencies in the quality of both the appellate brief and appellate counsel’s communication with defendant.

In 1996, when defendant was only 19 years of age, he was convicted of two counts of murder 2 and other charges arising out of his involvement in a narcotics trafficking gang. Justice Leslie Crocker Snyder hit him with 66-2/3 to life.

On appeal, assigned counsel filed a brief that can be described only as shockingly inadequate. It is available here. Defendant argued in his coram nobis petition that appellate counsel was ineffective because he failed to communicate with defendant during the pendency of his direct appeal, submitted an appellate brief that was poorly structured and that did not challenge the length of the minimum portion of the indeterminate sentence imposed as unduly harsh and severe in the interest of justice, and neglected to file a leave application to the Court of Appeals.

In spite of this, the majority of the Court found that counsel had afforded defendant meaningful representation under the New York State Constitution, and had not violated the Sixth Amendment’s right to the effective assistance of counsel. Judge Stein’s defense of the brief is shocking in itself, explaining that its brevity was a virtue, and that it demonstrated appellant’s grasp of the relevant facts and the law.

Judges Rivera and Wilson dissented separately. Both found the brief unacceptable and a denial of defendant’s right to meaningful representation. Judge Wilson also would have found appellate counsel ineffective for failing to challenge the length of the sentence imposed.

The Court’s decision can be found here.

In People v. Martin, in a memorandum decision, the Court dodged the question of whether the court below had erroneously permitted testimony of defendant’s response

to custodial interrogation by police during the execution of a search warrant as falling within the pedigree exception to the requirements of Miranda v Arizona. Instead, it found that, “assuming, without deciding” that it was error, the claimed error was harmless, because there was no reasonable possibility that the jury, but for the error, would have acquitted defendant. One can only assume that its decision not to reach the question on which a judge of the Court had granted leave reflected a split on how the six judges taking part would have decided it.

The Court’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Hollmond, AD2 remitted defendant’s Kings County manslaughter and attempted second-degree murder convictions for a hearing to assess whether defendant should be permitted to withdraw his guilty plea based on his allegations that his plea was involuntary.

Defendant, charged with a 2012 Kings County murder, was housed pretrial at Coxsackie Correctional Facility more than 120 miles north of the courthouse. When the case was sent out for trial in 2014, he was moved to Ulster Correctional Facility, approximately 100 miles north of the courthouse. Every court appearance required approximately five hours of travel time each way. At defense counsel’s request, the court issued repeated orders directing that defendant be moved closer to the courthouse so that he could consult with him to prepare for the trial. Nothing changed. One day after the court stated that the trial would commence regardless of whether defendant was moved, defendant pleaded guilty. At sentencing two weeks later, defendant moved to withdraw his guilty plea on the ground that it was involuntarily entered. The court denied the motion without a hearing, stating only that the plea had been a favorable one.

AD2 disagreed. Because the record substantiated defendant’s allegations that he’d been coerced into pleading guilty, he was entitled to a hearing to attempt to show whether he was entitled to withdraw his plea.

AD2’s decision can be found here.

In People v. McLean, AD2 reversed defendant’s Nassau County second-degree criminal possession of a weapon conviction, and dismissed the indictment, finding that the court had improperly allowed the People to amend the date in the indictment on which the defendant was alleged to have possessed the weapon.

The case arose from defendant’s former girlfriend’s claim that defendant had arrived at her apartment in the early morning hours of October 20, 2015, carrying a revolver, and

then left her several threatening texts and voicemails. As a result of her claims, the police obtained a search warrant for the defendant’s residence, a house owned by his mother. During the search, the police discovered a loaded revolver in a desk drawer and mail with the defendant’s name on it. The search warrant was executed and the gun was discovered on October 22, 2015.

The defendant was indicted for possessing a loaded revolver on or about October 20. On the first day of the trial, the People moved pursuant to CPL 200.70 to amend the date of the incident on the indictment from “October 20, 2015,” to “on or about October 20, 2015, to October 22, 2015.” The People contended that this was a minor temporal correction that did not change the theory of the People’s case, nor prejudice the defendant. Defense counsel objected, contending that the proposed amendment did, in fact, change the theory of the prosecution and prejudice the defendant. The court granted the People’s application, and the defendant was convicted of criminal possession of a weapon in the second degree.

AD2 disagreed, finding that the amendment was improper because it changed the People’s theory of the case. The original indictment accused the defendant of possessing a loaded weapon on October 20, 2015, at the apartment of his former girlfriend. When the defendant was arrested on October 21, 2015, no weapon was recovered from his person. The subsequent search of the defendant’s residence on October 22, 2015, resulted in the discovery of a loaded weapon. By seeking, on the eve of trial, to amend the indictment to include the days following the purported incident with the former girlfriend, the People changed the theory of their case from the defendant’s actual possession of a weapon, as witnessed and attested to by the former girlfriend, to constructive possession, meaning his exercise of dominion or control over an area of the defendant’s residence where a loaded weapon was found.

AD2’s decision can be found here.

In People v. Sauri, AD2 reversed defendant’s third-degree criminal possession of a weapon conviction, finding that the verdict was against the weight of the evidence because the evidence did not establish that the knife defendant possessed was a gravity knife.

Penal Law § 265.00(5) defines a “[g]ravity knife” as a “knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

AD2 found that the evidence did not establish that defendant’s knife was a gravity knife: “Although an officer demonstrated the operation of the knife at trial, the record contained ‘no contemporaneous description of what the jury saw’ during that demonstration.” There was also “no other evidence in the record that established whether or how the blade locked.

AD2’s decision can be found here.

Appellate Division, Fourth Department

On Friday (3/22), in People v. Pendergraph, AD4 reversed the order of the Onondoga County Court that had denied defendant’s CPL § 440.10 motion to vacate his second-degree murder conviction on ineffective assistance of counsel grounds.

Defendant contended in his motion, among other things, that his counsel was ineffective because he told the jury that defendant would testify without first discussing that option with him. In support of his motion, defendant submitted his own affidavit stating that his trial counsel never discussed with him whether testifying would be a good or bad idea, and that he never told counsel that he would testify at trial, and that trial counsel nevertheless told the jury that defendant would testify. Defendant’s account was also supported by the affirmation of defendant’s appellate counsel, who stated that trial counsel admitted that defendant did not tell him before trial that he would testify.

AD4 found that defendant was entitled to a hearing to establish his contentions because, “it cannot be said that there is no reasonable possibility” that his allegations were true.

AD4’s decision can be found here.

In People v. Givans, AD4 reversed defendant’s Jefferson County conviction, finding that the People failed to produce adequate proof of a confidential informant’s account, on which a search warrant was based.

AD4 had previously remitted the case for a Darden hearing. At that hearing, the People offered only the alleged confidential informant’s death certificate. After the hearing, the court concluded that the People could not produce the informant despite their diligent efforts and had established the existence of the informant through extrinsic evidence.

AD4 found this was error. Generally, the People must produce a confidential informant for an ex parte hearing upon defendant’s request where, as here, they rely on the statements of the confidential informant to establish probable cause. The People are excepted from this requirement if they make a showing that the informant “is unavailable and cannot be produced through the exercise of due diligence.” If so, they are permitted instead to establish the existence of the informant by extrinsic evidence.

Here, AD4 found that the People failed to make this showing. The evidence established only that a deposition was executed in the name of the alleged confidential informant, that the police obtained a search warrant using the deposition, and that a death certificate was later issued for a person having the same name as the confidential

informant. There was no evidence that the alleged informant actually made the statements attributed to her.

AD4’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP One Penn Plaza/ 53rd Floor/ 23rd Floor New York, NY 10038

646-844-3445 www.saponepetrillo.com