DECISIONS OF THE WEEK ENDED AUG 14, 2020

| Aug 14, 2020 | Ed Sapone’s Decisions of the Week

This was a very quiet August week in the Second Circuit and the New York State appellate courts with only a single decision on a criminal matter published by the Circuit, which was on a technical point, and a single decision from each of the First and Second Departments.

Second Circuit

On Tuesday, in Lasher v. United States, CA2 dismissed defendant’s appeal from SDNY Judge Naomi Reice Buchwald’s order that denied defendant a certificate of appealability that would have given defendant permission to appeal the denial of her § 2255 motion that sought to vacate her conviction for conspiracy to misbrand drugs and related offenses.

A defendant can appeal the denial of a § 2255 motion only upon the grant of a certificate of appealability either by a district court judge, or by the circuit court. This case presented the awkward question of whether a district court’s decision denying a certificate of appealability is appealable upon the grant of a certificate of appealability. CA2 found that a decision denying a certificate of appealability is not appealable because it is not a final order.

In determining whether an order is “final” under § 2253, a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Applying that principle, CA2 had previously concluded that it is the decision denying § 2255 relief—not the decision denying a certificate of appealability—that is a final order for purposes of § 2253(a). In an order denying § 2255 relief, the district court determines whether the petitioner has met her burden of demonstrating that her sentence was unlawful; in doing so, the judge ends the litigation on the merits before that court. By contrast, an order denying a certificate of appealability does not end litigation on the merits. Instead, it decides only whether the court, having already concluded that the § 2255 motion is without merit, believes the motion to be so baseless that no reasonable jurist could differ with the court’s disposition.

CA2’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Collins, AD1 held defendant’s appeal from his NY County conviction in abeyance and remitted for further proceedings to determine whether a search of his bag by police was supported by exigent circumstances.

At a pretrial suppression hearing, the evidence showed that officers received a radio run call advising of a trespasser at a Madison Avenue, Manhattan residential apartment building. When they arrived at the address, the building’s superintendent pointed out defendant as the trespasser. Approaching the defendant, the officers asked if they could speak with him, but defendant didn’t answer and instead continued walking. When the officers told defendant to stop, he fled. The officers chased, stopped, tackled, and cuffed defendant.

They frisked defendant for weapons and patted a drawstring bag that he had been carrying. An officer felt a hard object inside the bag, which he pulled out, opened, and contained what the officer believed to be a silencer of a gun. It turned out to be a barrel extender, which of course is unlawful to possess. Supreme Court found that the officers had probable cause to arrest defendant and any search was incident to that lawful arrest.

AD1 agreed that there was probable cause to stop and arrest defendant. But it implicitly found that the search of the drawstring bag was not incident to an arrest; the search had preceded any arrest. AD1 remitted for Supreme Court to determine whether the search was justified by exigent circumstances, an issue that Supreme Court had not reached.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Sanchez, AD2 reversed defendant’s Queens County first-degree criminal contempt conviction, finding that Supreme Court erred in denying defendant’s request for a missing witness charge. This decision joins the many reversals based on erroneous curative and jury instructions.

The complainant and a date were returning to the complainant’s car, when defendant jumped out at them from a hiding place, lunging at them, threatening them, and pushing the complainant to the ground. The complainant filed a police report, and the defendant was arrested.

AD2 found that defendant met his prima facie burden to show that the complainant’s date was believed to be knowledgeable about a material issue pending in the case and was expected to testify favorably for the People, yet the People had failed to call him to testify. Complainant’s date was present and was a witness to the events. The People failed to establish that the complainant’s date was unavailable as a witness. He appeared in court pursuant to the People’s so-ordered subpoena, and his counsel stated that, although he did not wish to be a witness, he was outside the courtroom and was prepared to testify. The People did not establish that the complainant’s date was not under the People’s “control,” such that he would not be expected to testify in their favor, given that he allegedly was on a date with the complainant when the defendant lunged at them, threatened them, and pushed the complainant to the ground. Finally, the People failed to demonstrate that the testimony would have been cumulative.

AD2’s decision can be found here.

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