DECISIONS OF THE WEEK ENDED OCTOBER 23, 2020

| Oct 23, 2020 | Ed Sapone’s Decisions of the Week

Another week with little to report in the Circuit.

In the State courts there were two significant decisions in NYCA—Batticks and Goldman—both going against the defendants. The split decisions follow a familiar pattern. DiFiore, Garcia, and Feinman have shown themselves to be reliable votes for the prosecution in criminal cases. Rivera and Wilson have shown themselves to be open to defense arguments. Fahey and Stein are the consistent swing votes on the Court.

Second Circuit

In United States v. Maxwell, in a summary order, CA2 dismissed defendant’s appeal from SDNY Judge Alison J. Nathan’s order denying her motion to modify a protective order or, in the alternative, to issue a writ of mandamus directing Judge Nathan to modify the protective order. CA2 found it had no jurisdiction to review defendant’s claims.

Defendant Ghislaine Maxwell is being prosecuted for conspiring with Jeffrey Epstein to sexually abuse minors, and perjury in connection with sworn testimony she gave in a 2016 deposition.

CA2 concluded it had no jurisdiction to review the protective order. There is generally no right of interlocutory review in criminal cases. A narrow exception to that rule permits appeals from “decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final.” So far, the Supreme Court has identified only four circumstances in criminal cases that come within this exception: (1) motions to dismiss invoking double jeopardy, (2) motions to reduce bail, (3) motions to dismiss under the Speech or Debate Clause, and (4) the forced administration of antipsychotic medication.

CA2 also declined to issue a writ of mandamus directing the district court to modify its protective order. Writs, as an exception to the finality rule, are available “only in exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.” CA2 concluded that defendant failed to demonstrate that such exceptional circumstances existed and that the District Court usurped its power or abused its discretion.

CA2’s decision can be found here. Its decision in defendant’s related civil appeal, Giuffre v. Maxwell, denying essentially the same relief in a companion civil case, can be found here.

In Garrison v. Lee, in a summary order, CA2 affirmed EDNY Chief Judge Roslynn R. Mauskopf’s denial of petitioner’s habeas petition challenging his New York State rape conviction. CA2 concluded that the Kings County Supreme Court did not deprive petitioner of his constitutional rights by refusing to permit cross-examination of the alleged victim concerning her arrest for prostitution 16 months after the date of the crime.

Sixteen months after the alleged rape, and shortly before trial, complainant was arrested for prostitution. Defendant argued that the trial court violated his Sixth Amendment right to “conduct reasonable cross-examination,” when it granted the state’s motion in limine to exclude from trial evidence of the arrest under the state rape shield law, CPL § 60.42. Defendant argued that the arrest evidence was constitutionally required to be admitted first because complainant testified that she was falsely accused of engaging in prostitution by the detective who initially interviewed her in the aftermath of the encounter, and second on the theory that her arrest raised the possibility that complainant, under the sway of the state, biased her testimony in favor of the prosecution.

CA2 found that complainant’s prostitution arrest had no probative value to explain the differences between complainant’s and the detective’s accounts of what took place in their interview two years earlier. State and Federal rule makers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials, based on concerns about, among other things, harassment, prejudice, confusion of the issues. Those rules are proper even when exclusionary rules, like the rape shield law, diminish a defendant’s ability to confront adverse witnesses and present a defense, so long as their application is not “arbitrary or disproportionate to the purposes they are designed to serve.” CA2 found that defendant had failed to establish such a disproportion here.

CA2’s decision can be found here.

In United States v. Ketabchi, in a summary order, CA2 affirmed defendants’ SDNY convictions for conspiracy to commit fraud, and conspiracy to commit money laundering in connection with their roles in a telemarketing fraud scheme, following a jury trial before Judge Sidney H. Stein. In doing so, CA2 rejected: (1) defendant Ketabchi’s challenge to the sufficiency of the evidence to establish that he knew of the fraudulent nature of the scheme, which was a required element of both conspiracy counts; and (2) defendant Owimrin’s challenge to the procedural and substantive reasonableness of his 52-month sentence.

Defendant Owimrin was a salesperson for Olive Branch and A1, the allegedly fraudulent telemarketing companies. Telemarketers at these entities sold “business opportunities” and accompanying products and services to elderly customers, and misleadingly claimed that the customers would make significant profits from the investments. In reality, the businesses were not operational and did not have any “structure,” so “nobody made money.” Nor would customers receive the products and services for which they had paid.

Owimrin argued on appeal that the district court erred by not applying a two-point reduction to his offense-level calculation, asserting that he was a “minor” participant in the scheme under the standards established by U.S.S.G. § 3B1.2. To secure such an adjustment, Owimrin was required to prove his entitlement to it by a preponderance of the evidence.

CA2 found that the district court’s conclusion that Owimrin did not carry this burden, and instead was an average participant in the scheme, was eminently reasonable. The court focused on the following factors: the nature and degree of Owimrin’s participation in the scheme; the particular acts that he performed; and the extent of his decision-making authority relative to that of other participants. It recognized Owimrin as standing at “the core of the criminal activity,” because “salesmen are the workhorses of this operation.” Salespeople like Owimrin lured the victims to the scheme by nurturing relationships with them and making them attractive false promises. Although Owimrin was not as culpable as leaders of the scheme, he was still more culpable than some participants, such as the “appointment setters” and “secretaries,” who simply routed “all the calls” to the salespeople.

CA2 also found the sentence to be substantively reasonable. Although the Guidelines recommended a sentence for Owimrin of 87 to 108 months, he received a sentence of 52 months, nearly three years lower than the bottom of the Guidelines range. The district court granted this downward variance after considering all of the relevant factors, including: the nature of his role and conduct in the scheme, his extenuating personal circumstances, lack of criminal history and desire to reform, the need that the sentence reflect the devastation wrought on victims and be appropriate in light of codefendants’ sentences, and the types of sentences available by statute and under the guidelines.

CA2’s decision can be found here.

New York Court of Appeals

In People v. Batticks, in a 4-3 decision, NYCA affirmed defendant’s New York County second-degree assault conviction, finding that the trial court’s response to a sworn juror’s outburst in open court, without conducting a Buford inquiry, was not an abuse of discretion.

This appeal presented the same question NYCA had found unpreserved in People v. Bailey, 32 N.Y.3d 70 (2018), involving a co-defendant: whether the trial court abused its discretion as a matter of law in giving the jury a curative instruction without any individualized inquiry after a sworn juror exclaimed that she was “very offend[ed]” by the repetitive use of the “n-word” by defendant Bailey’s counsel while cross-examining complainant.

Writing for the majority, Chief Judge DiFiore concluded that the record supported the trial court’s findings that the juror’s reaction was triggered by counsel’s fifth and gratuitous use of the epithet, and provided no basis to indicate she was grossly unqualified. Since the entire incident unfolded in open court, a Buford inquiry (69 N.Y.2d 290 (1987) of the juror was unnecessary, as the court was able to adequately assess that her outburst was not a transformative one and her sworn oath to be impartial remained intact. The court’s remedy of admonishing the juror and counsel and issuing a carefully crafted curative instruction—which included a mechanism for any juror to advise the court if they could not be fair and impartial due to anything that occurred at trial—was not an abuse of its discretion.

Writing for the three-judge dissent (Wilson, Rivera, and Fahey), Judge Wilson would have found that a Buford inquiry was required, because the integrity of the right to trial by an impartial jury required the court to inquire of the juror or, given the agreement of the People and defense counsel, to replace the juror with an alternate.

NYCA’s decision can be found here.

In People v. Goldman, in a 4-1-2 decision, NYCA affirmed defendant’s Bronx County second-degree murder conviction, finding that (1) defendant’s constitutional right to be free from unreasonable search and seizure did not require that, prior to a neutral magistrate’s issuance of a search warrant to obtain DNA evidence from a suspect’s body by buccal swab, the suspect must receive—in addition to notice and the opportunity to be heard—discovery as to the demonstration of the probable cause in the warrant application and an adversarial hearing; and (2) the People adequately established a foundation for the admission of a YouTube video that the prosecutor argued established motive for the shooting by showing defendant rapping about how his crew operated, including participating in drive-by shootings.

Writing for the majority, Judge DiFiore found, first, that there was no Fourth Amendment violation. In Matter of Abe A., 56 NY2d 288 (1982), NYCA had previously allowed the use of a search warrant pursuant to CPL article 690 for the seizure of corporeal evidence from an uncharged suspect. Because the seizure required a bodily intrusion, NYCA set forth a three-prong standard, requiring the People to demonstrate probable cause to believe the individual committed the crime, a “clear indication” that material and relevant evidence will be found, and that the means of obtaining the evidence is “safe and reliable.” In balancing the need for a search warrant against any unwarranted intrusion, a court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other. When the corporeal evidence sought is not subject to alteration or destruction, there is no exigency and the search warrant application must be brought on notice to the suspect. Here, NYCA held that there was no violation of any constitutional rights, as defendant, provided with an opportunity to be heard on the issuance of the warrant, directed no argument to the magistrate as to the reasonable nature of the bodily intrusion sought.

Second, on the YouTube foundation issue, Judge DiFiore found that the video met the applicable standard, i.e., that the People demonstrated that the video “accurately represent[ed] the subject matter depicted.” The defendant did not dispute that he was the individual who appeared in the video reciting certain words. The video contained distinctive identifying characteristics: it depicted defendant and two of the other individuals who were present during the shooting in similar attire to what they were wearing on the night of the homicide and the background demonstrated that it was evidently filmed in defendant’s neighborhood. The video was uploaded to YouTube close in time to the homicide. In addition, the video was introduced for its relevance to defendant’s motive related to territorial gang activity—which is not an element of the offense—rather than specifically offered for its truth. Under the circumstances, the court concluded that a witness’s testimony as to the source of the video and how it was discovered, and identifying the defendant as the person depicted, was sufficient to allow the jury to conclude that the video was what the government claimed it to be.

In dissent, Judges Rivera and Wilson would have found that the minimally intrusive nature of a buccal swab did not create an exception to the Fourth Amendment requirements spelled out in Abe A., and the YouTube evidence was inadmissible because the People had not provided an adequate foundation to show that the video was unaltered.

Judge Fahey agreed with the majority on the Fourth Amendment point. He agreed with the dissent on the YouTube authentication point, but would have found the error harmless.

NYCA’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Acevedo, AD2 modified defendant’s Kings County second-degree manslaughter, criminally negligent homicide, and leaving the scene of a motor-vehicle accident without reporting convictions, by vacating the manslaughter and homicide convictions and vacating the sentences imposed on the leaving the scene convictions and remanding for resentencing on those counts, because the evidence was insufficient on the homicide counts.

The convictions arose from a traffic accident where defendant’s speeding car hit another car at an intersection, killing two occupants. AD2 found the evidence insufficient because there was no affirmative evidence of recklessness or negligence beyond evidence that defendant was speeding.

AD2’s decision can be found here.

In People v. Grant, AD2 granted defendant’s application for a writ of error coram nobis finding that he received ineffective assistance of appellate counsel because counsel had failed to raise an O’Rama violation on defendant’s 1995 appeal from his Suffolk County second-degree murder, first-degree robbery, and assault convictions.

On the afternoon of the first day of jury deliberations, the Supreme Court received a jury note stating “11 of the 12 jurors find the defendant guilty on all counts. One juror after lengthy discussion still has a reasonable doubt on 9 counts. Juror feels we cannot change her/his mind no matter what we say or do. We need direction.” The record does not indicate that the court read the contents of the note to the parties, discussed its contents with counsel, or allowed trial counsel an opportunity to propose a response for the jury.

AD2 found that the failure to provide counsel with meaningful notice of a substantive jury note required reversal, even though Supreme Court may have provided the jurors with a meaningful response to their note. It also found that there was no strategic or other legitimate explanation for appellate counsel’s failure to raise the O’Rama issue. People v. O’Rama, 78 N.Y.2d 270, had been decided in 1991, four years before the appeal here. AD2 found this to be the rare case in which a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive the defendant of his constitutional right to the effective assistance of counsel.

AD2’s decision can be found here.

In People v. Rodriguez, AD2 reversed defendant’s Queens County convictions for attempted use of a child in a sexual performance and disseminating indecent material to a minor, finding that the admission into evidence of five screenshots purporting to depict selected portions of a text message conversation between the defendant and the complainant was improper, because there was insufficient proof that defendant was their author.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Chappell, AD3 held defendant’s Broome County second-degree murder conviction in abeyance and remitted for a factual hearing to determine whether defense counsel consented to County Court’s statutorily unauthorized notations on the verdict sheet.

County Court made notations on the verdict sheet under each count, which included statutory language as well as the victims’ names and the date of the offenses. The court advised the jury of the general nature of these notations and that they were for the “sole purpose” of distinguishing between the counts and that the notations were not “a substitute” for the court’s full instructions on meeting the elements of each charge. While some of the notations were statutorily authorized, others were not.

At the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative.

AD3 held that, if it were apparent from the record that defendant had had an opportunity to review the verdict sheet, it would find that defense counsel’s conduct constituted implied consent to the unauthorized annotations. But the record did not show whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers.

AD3 reserved decision, and remitted for a reconstruction hearing to determine whether defense counsel had the opportunity to review the annotated verdict sheet.

AD3’s decision can be found here.

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