Ed Sapone’s DECISIONS OF THE WEEK -January 10, 2020

by | Jan 10, 2020 | Ed Sapone’s Decisions of the Week

Not much to report this week in the Circuit, with the exception of its decision in Anderson, which contains a thorough review of the rules relating to sentencing when the defendant has related and/or contemporaneous state court charges.

A quiet week in the state courts, too, which haven’t yet returned to full speed after the annual holiday slow down.

Second Circuit

In United States v. Anderson, CA2 vacated the 120-month sentence imposed on defendant by SDNY Judge George B. Daniels. CA2 found that (1) contrary to the district court’s belief, the court did have authority to choose whether to impose a sentence concurrently or consecutively to a yet-to-be-imposed state sentence, and (2) the district court misunderstood its authority to reduce defendant’s sentence below the statutory mandatory minimum to account for the time defendant had served on his state sentence for a related offense.

As part of his plea agreement, defendant stipulated to a Guidelines offense level 33 and a mandatory minimum sentence of 10 years of imprisonment. The plea agreement provided that defendant’s two prior state convictions (one in 2013 and the second in 2016) constituted relevant conduct for purposes of defendant’s federal sentencing. Because defendant and the government did not agree on certain sentencing enhancements for criminal history, the applicable Guidelines range was in dispute: defendant advocated for an advisory range of 135 to 168 months, while the government advocated for 151 to 188 months. Defendant agreed that he would “not file a direct appeal . . . of any sentence within or below the Stipulated Guidelines Range of 135 to 188 months’ imprisonment.” Such an agreement is standard in this district in situations like this one.

Defense counsel argued that 120 months—the mandatory minimum, and the sentence imposed on several co‐defendants—would be an appropriate sentence. The sentencing memorandum also urged the court to adjust defendant’s federal sentence to account for his state sentences, including the 2016 offense (which had already been imposed) and his parole violation (which had not). Defense counsel explained that, when his federal sentencing took place, defendant would be approximately two years into his state sentence of 18‐36 months of imprisonment for the 2016 offense, which the parties agreed was relevant conduct with respect to his Federal

Offense. Counsel argued that the court should: (1) order that defendant’s federal sentence run concurrently with the remainder of his term of imprisonment for the 2016 offense, pursuant to §5G1.3(b)(2); and (2) downwardly adjust his federal sentence for time already served for the 2016 offense, pursuant to §5G1.3(b)(1). Counsel noted that when §5G1.3(b)(1) applies, the sentencing court has authority to adjust a federal sentence below the statutory mandatory minimum. Finally, counsel argued that, pursuant to §5G1.3(c), defendant’s federal sentence should likewise run concurrently with his yet‐to‐be imposed state sentence for violation of parole.

The district court imposed a 120‐month sentence, the mandatory minimum. The court stated that this was “the appropriate sentence,” having “already taken . . . into consideration” defendant’s time served. The court appeared to believe it did not have authority to impose a sentence below the 10-year mandatory minimum. The court announced up‐front a final sentence of 120 months; it never articulated a total sentence that would be reduced to account for time served pursuant to §5G1.3(b)(1). While the court was willing to order that the federal sentence run concurrently with defendant’s existing state sentence, the court stated that “there is nothing I can do about” the parole violation sentence that was yet to be imposed. The court added that it would “recommend that [defendant’s sentence] run concurrently with any pending parole violation sentence,” but that “itʹs clear it is up to the judge who decides to resentence him on parole to decide whether or not that judge wants to run it concurrently.”

On the concurrency issue, the government conceded on appeal that the district court “appeared not to realize that it had the authority to run the federal sentence concurrently to any eventual sentence that defendant would receive in state court as the result of a parole violation that the parties agreed was relevant conduct.” District courts generally have discretion to order that a sentence run concurrently or consecutively with an anticipated state sentence, Setser v. United States, 566 U.S. 231, 236‐37 (2012); and §5G1.3(c) explicitly recommends that concurrent sentences “shall be imposed” with respect to anticipated sentences for relevant conduct.

Because the government conceded on the concurrency issue, the only remaining question on appeal was whether the proceedings on remand should be limited to the concurrency issue, or whether the district court should also have the opportunity to reconsider the mandatory-minimum issue. The government argued that, because defendant had agreed to waive his right to appeal his sentence, it was the government’s prerogative to consent to a remand, and to limit the issues that the district court may consider during resentencing.

CA2 disagreed, finding that the two appellate issues were interrelated because both raised the possibility that the court misunderstood its authority to adjust aspects of defendant’s federal sentence to fairly account for time served on related state charges. Because the district court’s sentencing remarks created an ambiguity as to whether the judge correctly understood an available sentencing option, CA2 found it appropriate to remand for clarification.

CA2’s decision can be found here.

In United States v. Pizzaro, in a summary order, CA2 affirmed defendant’s SDNY convictions, following a jury trial before Judge Gregory H. Woods. Defendant was convicted of (1) conspiracy to distribute powder and crack cocaine, (2) the murder of a rival gang member through the use of a firearm in connection with the drug conspiracy, and (3) discharging a firearm, on occasions other than the murder, in connection with the drug conspiracy. CA2 rejected defendant’s challenges to the (1) sufficiency of the evidence supporting the use of the firearm during the conspiracy and that the murder was premeditated, (2) court’s failure to provide a premeditation instruction to the jury, and (3) alleged duplicity of the indictment because it alleged three distinct occasions on which defendant used, carried, or possessed a firearm in furtherance of the narcotics conspiracy, each of which constituted a separate offense.

On the sufficiency issues, CA2 found that there was sufficient evidence to show that the firearm was used during the conspiracy, because defendant had purchased this specific weapon to protect himself from a rival drug gang with which defendant competed for customers, and was carrying it on the day of the murder to protect himself. Premeditation was overwhelmingly established, CA2 found, because defendant had been involved in a drug war involving multiple back-and-forth shootings with the deceased for a period of years. Also, a videotape of the murder showed, among other things, defendant chasing after the deceased. Because the evidence allowed no other conclusion than that defendant had acted with premeditation, any failure to provide a more complete premeditation instruction was not error.

As to the duplicity claim, because defendant had not objected below, CA2 applied the plain-error standard and found no error. The court’s general unanimity instruction was sufficient because the jury need not be unanimous as to a specific gun that a defendant possessed, used, or carried.

CA2’s decision can be found here.

New York Court of Appeals

In People v. Muhammad, NYCA, in a memorandum decision, affirmed defendant’s New York County sexual abuse conviction. NYCA found that defense counsel had impliedly consented to the submission of written copies of the court’s entire final instructions to the jury, which is prohibited absent consent by CPL §310.20 or §310.30. By NYCA’s description, defense counsel not only failed to object when the copies were distributed or while the judge was delivering the instructions, which discussed the written copies, but also verbally confirmed to the court, outside the hearing of the jury, that he had no exception to the final jury instructions, which provided that the jurors may take their written copies with them to deliberate.

NYCA’s decision can be found here.

Appellate Division, First Department

In People v. Martin, AD1 reversed the NY County order that had summarily denied defendant’s CPL 440.10 motion to vacate his convictions for, among other things, murder in the second degree, finding that defendant’s ineffective assistance of counsel claims warranted a hearing.

On the 440.10 motion, defendant’s counsel submitted an affirmation stating that defendant’s trial counsel had told him that he was unaware that he could call an expert witness regarding whether defendant was incapable, based on his ingestion of drugs, of possessing the required mental state of depraved indifference. The motion was also supported by the affidavit of an expert who represented that he would have testified at trial that defendant did not possess that statutorily required mental state. On the other hand, the prosecutor represented in an affirmation that trial counsel had told him that he was aware that he could have called an expert but chose not to do so for certain strategic reasons, the validity of which the parties dispute.

AD1 found that, because it could not be said that there was no reasonable probability that defendant’s allegations were true, a factual hearing was necessary to resolve the motion.

AD1’s decision can be found here.

Appellate Division, Second Department

In People v. Alleyne, AD2 reversed defendant’s Kings County conviction for first-degree assault, finding that the court improperly replaced a juror. After both sides had rested but before closing arguments, the court, over defendant’s objection, excused juror No. 10 and replaced her with an alternate on the basis that juror No. 10 had to travel to Maryland for an evening work obligation the next day, which was a Friday.

AD2 found that the record did not demonstrate that Juror No. 10 was unavailable as that term is used in CPL 270.35. Juror No. 10’s work obligation did not render her unavailable for jury service, because her own convenience or potential financial hardship were insufficient to render her unavailable under CPL 270.35 The People’s contention that Juror No. 10 may have been distracted over her work conflict had she not been excused or may not have appeared on the following Monday was pure speculation without support in the record.

AD2’s decision can be found here.

In People v. Zachary, AD2 affirmed defendant’s Orange County convictions for second-degree assault, attempted third-degree assault, unlawful possession of marijuana, resisting arrest, and criminal possession of a controlled substance in the seventh degree. But AD2 modified defendant’s conviction for tampering with physical evidence, reducing it to attempted tampering.

The charge of tampering with physical evidence was based on defendant’s act of discarding a plastic bag containing marijuana as he was being pursued by police for violating the City of Newburgh’s open-container law.

AD2 found that defendant’s act of discarding the bag did not constitute an act of concealment within the meaning of Penal Law § 215.40(2). Nevertheless, since the defendant “engage[d] in conduct that tends to effect, and comes dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence,” AD2 found that there was legally sufficient evidence to sustain a conviction of attempted tampering with physical evidence.

AD2’s decision can be found here.