While it was a quiet week in the Circuit, there were significant and interesting decisions from three of NY’s appellate divisions. AD1’s decision in Feliciano, AD2’s decision in Hollmond, and AD3’s decision in Holtslander are all worth a read.
Second Circuit
In United States v. Castelle, in a summary order, CA2 affirmed defendant’s SDNY convictions for RICO conspiracy and participating in an illegal gambling business, following a jury trial before Judge Alvin Hellerstein. CA2 rejected defendant’s challenges to several of the district court’s evidentiary rulings and jury instructions at trial, as well as the sufficiency of the evidence on the RICO conspiracy charge and the district court’s factual findings in support of an extortion enhancement at sentencing.
CA2 found that the district court did not err when it allowed expert testimony from a special agent about the types of crimes committed by the Lucchese Family, of which defendant was alleged to be affiliated, as well as the Lucchese Family’s structure and operational methods. CA2 found that the agent’s testimony did nothing more than provide jurors with the kind of general background information that it had permitted in the past. It was also no problem, according to CA2, that the agent’s knowledge was partly informed by otherwise inadmissible hearsay, because the agent had not communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.
CA2 found that the district court did not abuse its discretion when it precluded cross-examination of a cooperating witness about a prior manslaughter conviction from 1990 and an assault on his girlfriend after he discovered that she had an affair with defendant. CA2 found that, although the assault evidence may have had some relevance to the intensity of the cooperating witness’s jealousy and motive to testify falsely against defendant, the district court did not err in determining that cross-examination concerning the violence of the witness’s initial reaction to the affair – which occurred nearly three years before trial and was directed against his girlfriend – had little relevance to determining whether the witness harbored contemporaneous bias and hostility against defendant at the time of the trial. The district court had permitted defense counsel to cross-examine the cooperator regarding the fact of the affair and his strong bias and hostility toward defendant.
CA2 found that it was not plain error for the district court to fail to instruct on the illegal gambling count that the jurors must unanimously agree that five or more persons participated simultaneously in the illegal scheme at some point during the life of the conspiracy. The district court, using language taken directly from the leading treatise on the subject, instructed the jury that “[f]ive or more people . . . must have participated during the period you found that the gambling business was in substantially continuous operation.” CA2 found it unnecessary to determine whether the instruction was legal error because the evidence clearly established that at least five individuals were simultaneously working in the gambling business.
CA2 found that there was sufficient evidence to support the RICO conspiracy conviction. The evidence adduced at trial was more than sufficient to establish that the conspiracy involved the predicate act of illegal gambling in violation of New York State Penal Law § 225.10 – which defendant did not contest. The evidence also demonstrated the separate predicate act of participating in an illegal gambling business in violation of 18 U.S.C. § 1955, since the gambling business in question involved five or more people. CA2 found that there was also enough evidence for a jury to conclude that defendant conspired to knowingly use a wire communication to transmit gambling information in interstate or foreign commerce and conspired to commit mail and wire fraud.
The district court also properly applied an extortion enhancement in calculating defendant’s Guidelines, according to CA2. The evidence before the district court established that defendant extorted money from one victim by utilizing his tight connection with the Lucchese Family, which had a reputation for using violence to ensure that people paid their debts.
CA2’s decision can be found here.
Appellate Division, First Department
In People v. Feliciano, AD1 reversed defendant’s Bronx County second-degree murder convictions, finding that Supreme Court erred when it denied defendant’s pretrial motion for severance.
After the People’s motion to consolidate the indictments was granted, co-defendant Roberts moved for a severance, in which defendant joined, arguing that a joint trial would threaten both defendants’ rights to a fair trial since their defenses were antagonistic. Defendant planned to argue at trial that he was merely present and unaware of Roberts’ intent to rob and shoot the victim, whereas Roberts’ position was that he did not participate in the charged crimes and that they were committed by defendant and an unidentified male.
The court denied the motion and instead implemented a “dual jury” procedure. The trial proceeded with both juries hearing the People’s evidence common to the charges against both defendants and both hearing cross-examination of the People’s witnesses, conducted by defendant and co-defendant’s counsels, respectively. One jury was excused when the People presented evidence that was admissible only before the other, and during cross examination concerning the same. Separate defense cases, summations and jury charges were also employed. After the dual jury trial, defendant was found guilty of second-degree murder, whereas his co-defendant was acquitted.
AD1 found that the dual juries offered inadequate protection. To establish that both defendants participated in the crimes, the People were necessarily required to establish that both defendants were present. However, co-defendant Roberts’ cross examinations, mostly presented to both juries, undermined defendant’s defense, that he was merely present with Roberts and did not share Roberts’ intent to commit robbery or murder, which was antagonistic to, and irreconcilable with, Roberts’ defense that he was not there at all. Defendant’s jury simply “could not have credited both defenses.”
AD1’s decision can be found here.
Appellate Division, Second Department
In People v. Bellucci, AD2 reversed defendant’s Richmond County first-degree murder conviction, finding that, where the defendant had been found incompetent on four previous occasions, and an expert had concluded that the defendant would likely decompensate if he stopped taking his medication, and evidence was presented that defendant had, in fact, stopped taking his medications, and was not able to communicate rationally with his attorney, the Supreme Court should have granted the joint applications of the People and the defense to have the defendant examined pursuant to CPL 730.30(1) to determine his fitness to proceed.
AD2’s decision can be found here.
In People v. Hollmond, following a remittal for a hearing on the issue of whether defendant should be permitted to withdraw his guilty plea, AD2 reversed defendant’s Kings County first-degree manslaughter conviction, finding that defendant was not provided with an adequate opportunity to consult with his attorney due to the circumstances of his confinement at an upstate facility prior to trial and that, as a result, his attorney was not prepared to try the case. The defendant testified that he felt compelled to plead guilty because the trial was set to commence on a date certain regardless of whether his attorney was prepared and notwithstanding the challenges posed by the daily transportation schedule that was utilized by the Department of Corrections that interfered with defendant’s ability to communicate with counsel and prepare for trial.
AD2’s decision can be found here.
Appellate Division, Third Department
In People v. Holtslander, AD3 reversed defendant’s Otsego County first-degree sexual abuse conviction, finding that the timing of County Court’s decision to dismiss multiple counts of sexual abuse as duplicitous—deferring that dismissal until after a guilty verdict had been rendered—required a new trial.
Defendant was indicted for 13 counts of first-degree sexual abuse for allegedly sexually abusing the victim from October 2014 to October 2015, when she was six to seven years old. Prior to trial, County Court rendered a Molineux ruling that the victim could testify regarding previous, ongoing uncharged sexual conduct by defendant, with a limiting instruction to be given upon introduction of that evidence. Immediately before the trial began, defendant moved to vacate the court’s ruling, arguing for the first time that counts 2 through 13 should be dismissed as duplicitous based on the testimony presented to the grand jury. The court denied the motion. During trial, defendant twice unsuccessfully renewed his motion to dismiss counts 2 through 13. The defendant was convicted of all counts. He then moved to set aside the verdict on counts 2 through 13 as duplicitous. The court granted that motion.
AD3 found that the failure to dismiss those counts pretrial required reversal. Rather than hearing evidence related to one count addressing a single instance of sexual contact on a single day, the direct evidence addressed 12 additional incidents of sexual conduct occurring throughout the ensuing year. In its Molineux ruling, County Court permitted evidence of uncharged crimes — namely, that the same type of sexual contact occurred beginning when the victim was five years old and continued mostly every time she was at defendant’s residence, which at times was weekly — based on the victim’s young age and inability to pinpoint dates on which the abuse occurred, except for the incident in count 1 that was memorable as it occurred on the same day as her father’s arrest.
AD3’s decision can be found here.