DECISIONS OF THE WEEK ENDED DECEMBER 25, 2020

| Feb 2, 2021 | Ed Sapone’s Decisions of the Week

Another quiet holiday week in the Circuit. But New York’s appellate divisions were relatively busy, with reversals in the Second, Third, and Fourth Departments. The Second Department’s decision in Antoine is a particularly interesting one, where the trial court appears to have jettisoned a murder conviction at the last possible moment by denying defendant his right to be present at the announcement of the verdict, an error that can only be remedied by a new trial.

Second Circuit

In United States v. Desuze, in a summary order, CA2 affirmed the 210-month sentence imposed by EDNY Judge William F. Kuntz following defendant’s guilty plea to racketeering conspiracy. In doing so, CA2 rejected defendant’s contentions that the sentence was procedurally and substantively unreasonable.

According to CA2, the District Court discussed the various positions of the parties with respect to different points of contention, adopted the facts as set forth in the PSR, and systematically considered each of the Section 3553(a) factors, both at the hearing and in its written order. As such, CA2 found that the district court adequately explained the reasons for the sentence it imposed.

CA2 also found that the court’s 210-month sentence was not substantively unreasonable. Considering defendant’s leadership of two violent gangs, his role in conspiring to murder two rival gang members, and his allocution, in which he acknowledged committing two charged racketeering acts, CA2 could not conclude that defendant’s sentence fell outside the range of permissible decisions.

CA2’s decision can be found here.

In United States v. Snow, in a summary order, CA2 reversed the WDNY’s summary denial of defendant’s motion to reduce his sentence pursuant to the First Step Act, concluding that the district court erroneously found defendant ineligible for resentencing.

In 2004, following a jury trial, defendant was convicted of, among other things, conspiracy to possess with intent to distribute 50 grams and more of crack cocaine. The district court originally imposed a life sentence, but subsequently reduced that sentence to 360 months following retroactive Guidelines amendments. In August 2010, Congress enacted the Fair Sentencing Act, which altered the threshold drug quantities necessary to trigger §841’s five- and 10-year mandatory minimum sentences for crack cocaine offenses, but those changes did not offer any retroactive relief for defendants like Snow.

That changed with the 2018 First Step Act, which provided a path to retroactive sentencing relief for those offenders whose drug quantities would have entitled them to relief from their mandatory minimum sentence based on the Fair Sentencing Act. In 2019, defendant moved to reduce his sentence pursuant to the First Step Act.

Even though the Fair Sentencing Act, together with the First Step Act, changed the statutory penalties for defendant’s crime, the district court, nonetheless, determined that defendant was ineligible for relief because the two Acts did not also alter his applicable Guidelines range. As a result, the district court found defendant statutorily ineligible for relief.

CA2, however, in accordance with its prior holding in United States v. Holloway, 956 F.3d 660 (2020), ruled that a change in Guidelines range is not determinative of whether a defendant is eligible for a First Step Act resentencing. A defendant is eligible for relief so long as his motion concerns a sentence that “was imposed ‘for a covered offense,’” which included the offense here.

CA2, therefore, remanded for the district court to assess whether, as a matter of discretion, defendant should be resentenced.

CA2’s decision can be found here.

Appellate Division, Second Department

In People v. Antoine, AD2 reversed defendant’s Kings County second-degree murder, first-degree assault, and criminal possession of a weapon convictions finding that defendant was denied his right to be present at the announcement of the verdict.

After the jury foreperson announced “guilty” on the final charge of criminal possession of a weapon in the second degree, the clerk proceeded to read back the verdict in order to inquire collectively of the jurors whether such was their verdict. Before the jurors could respond, the defendant disrupted the proceeding by using profanity and declaring his innocence. The trial court immediately directed that the court officers remove the defendant from the courtroom. The defendant repeated his protestation and again the court directed that he be removed from the courtroom. Three more times the defendant either proclaimed his innocence or uttered a one-word profanity, and in each instance the court responded by directing that the defendant be removed from the courtroom. At some point during the foregoing exchanges, the defendant was apparently removed from the courtroom. The clerk read the verdict again, and made the requisite inquiry, to which the jurors responded. The defendant’s counsel thereafter requested that the jury be polled. The jury was polled and the verdict was entered.

AD2 found that, while the defendant’s conduct was clearly disruptive and inappropriate, there was no indication that it was violent in nature, or “created an emergency necessitating his immediate removal” where “the court had no practical opportunity to issue a verbal warning that [the] defendant would be removed if he continued to engage in such conduct.” It was therefore inappropriate to remove him without first warning him that, should he continue to disrupt the proceedings, he would be removed.

AD2’s decision can be found here.

Appellate Division, Third Department

In People v. Lukosavich, AD3 reversed defendant’s Cortland County fourth-degree grand larceny conviction, finding that County Court abused its discretion when it precluded defendant from presenting an alibi defense on the grounds that the defense had not given timely alibi notice.

Defendant did not timely file alibi notice pursuant to CPL §250.20 (1). Instead, about three weeks prior to the scheduled trial date, defendant sent an email to the People with a “Notice of Potential Alibi-type Witnesses.” The People, by letter, asked the court to preclude these witnesses because the notice was untimely and the testimony would be prejudicial to the People. The next day, the court signed a decision and order, granting the People’s request for preclusion of the witnesses. Defendant was not provided an opportunity to oppose the People’s application or to set forth good cause for the delay. Defendant moved for reconsideration of the court’s decision to preclude the alibi witnesses, arguing that the People were not prejudiced as they already knew that his father was a potential witness in that they provided defendant an unsigned statement taken by a police officer. The court treated defendant’s motion as one to renew or reargue and denied it, holding that defendant did not meet the standard for either type of relief. The court also held that, if it were to reach the merits, it would reach the same conclusion, as defendant failed to show good cause and did not comply with the Criminal Procedure Law requirements.

AD3 disagreed. The court rested its entire conclusion on the failure to comply with the Criminal Procedure Law and that good cause was not shown, despite the fact that defendant was not given an opportunity to respond to the People’s informal motion to preclude the alibi testimony. The court did not make any findings that defendant had an improper purpose in providing the late notice nor did it weigh the possibility of prejudice to the People against the right of defendant to present a defense. Instead, the court, without hearing from defendant, implemented the most drastic sanction without considering any lesser sanctions that may have protected the People from potential prejudice.

AD3’s decision can be found here.

In People v. Drayton, AD3 reversed defendant’s Sullivan County third-degree sale of a controlled substance conviction, finding that defendant’s guilty plea was not knowingly entered and that County Court improperly enhanced defendant’s sentence.

AD3 found that the plea colloquy was inadequate to insure a voluntary plea. County Court advised defendant that, by pleading guilty, he would be giving up “all of [his] constitutional rights, [his] presumption of innocence, [his] rights to a jury trial, suppression hearings, also all of [his] appellate rights.” There was no mention of defendant’s right to be confronted by witnesses or the privilege against self-incrimination. The record also failed to disclose whether the court ascertained if defendant conferred with his counsel regarding the trial-related rights that were being forfeited upon his guilty plea. Instead, the court merely asked him whether he had enough time to talk with his counsel about “the facts of [the] drug charges, going to trial, not going to trial[] and things like that” and “[his] jury trial rights, all [his] other rights.” AD3 found that, in the absence of any affirmative showing that defendant fully comprehended and voluntarily waived his constitutional rights, the plea must be vacated as invalid.

AD3 also found that County Court improperly enhanced defendant’s sentence. By pleading guilty, it was agreed that the People would recommend that defendant be sentenced to concurrent prison terms of 3½ years, each to be followed by a period of post-release supervision. This period of incarceration was not disputed, but the People opposed defendant’s request to be placed in the Willard drug treatment program — a matter that the parties ultimately left to the court’s discretion. At sentencing, defendant and the People each stated their respective positions on Willard. Without further discussion, the court abruptly sentenced defendant to concurrent prison terms of nine years, each to be followed by a period of post-release supervision, and directed that the sentence be served under the supervision of Willard. AD3 found that County Court abused its authority by changing the terms of the plea agreement.

AD3’s decision can be found here.

Appellate Division, Fourth Department

In People v. Caswell, AD4 reversed the order of Supreme Court, Monroe County, that resentenced defendant following his convictions for robbery in the second and third degrees, finding that defendant was deprived of his right to counsel when the court permitted defendant to represent himself at the resentencing proceeding without properly ruling on his multiple requests for assignment of counsel.

AD4’s decision can be found here.

In People v. Diroma, AD4 reversed defendant’s Monroe County conviction for tampering with a witness in the third degree, finding that it was not supported by legally sufficient evidence. Although the evidence established that defendant assaulted the victim in violation of an order of protection and a few days later left the victim voicemails threatening her with violence if she pressed charges against him, defendant had not yet been arrested or charged with a crime in connection with the violation of the order of protection at the time he left the voicemails. Thus, at that time, the victim was not “about to be called as a witness in a criminal proceeding,” a requirement of Penal Law §215.11.

AD4’s decision can be found here.

In People v. Z.H., AD4 reversed defendant’s Onondaga County second-degree assault conviction and, in its place, substituted a youthful offender adjudication. The charges arose from a fight between two high school students. After defendant was confronted and struck in the face by another student, she lashed out with a knife that she’d concealed in her clothing. Even though the prosecutor had recommended YO status, the court denied the application, at least in part, because other felony charges were pending against defendant.

While AD4 found no abuse of discretion, it nonetheless exercised its own discretion. Among other things, AD4 cited the fact that defendant was a young black woman, and that it was appropriate to consider the potential for the discriminatory use of discretion, including the fact that prosecutors are less likely to exercise discretion to dismiss cases against black women.

AD4’s decision can be found here.

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