DECISIONS OF THE WEEK ENDED FEBRUARY 6, 2021

| Feb 11, 2021 | Ed Sapone’s Decisions of the Week

Another quiet week in the Circuit. The summary order in United States v. Rosario is a good example of how a criminal defendant can win a case on appeal and still get no relief. CA2 had previously vacated defendant’s § 924(c) brandishing conviction after the Supreme Court ruled that Hobbs Act robbery conspiracy no longer qualifies as a predicate “crime of violence.” The case was remitted to the district court for plenary resentencing on the remaining counts and the district court reimposed the same sentence. Defendant appealed his sentence and the Circuit affirmed.

There were many interesting reversals in New York’s Second and Fourth Department, the latter of which released its first decisions this year.

Second Circuit

In United States v. Rosario, in a summary order, CA2 affirmed SDNY Judge Valerie E. Caproni’s resentence of defendant to a 180-month prison term for Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, and the denial of defendant’s motion for compassionate release.

In 2015, Defendant was sentenced principally to 180 months of imprisonment for his convictions of Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, and brandishing a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). The predicate “crime of violence” of the § 924(c) conviction was the Hobbs Act robbery conspiracy. Following the Supreme Court’s decision in Davis, CA2 determined that Hobbs Act robbery conspiracy no longer qualified as a “crime of violence,” and the government agreed to vacatur of the § 924(c) conviction and to plenary resentencing on the remaining counts.

The case was remitted to the district court, where Judge Caproni re-imposed a 180-month sentence. CA2 found that the district court’s decision to resentence defendant to the same term of imprisonment that had previously been imposed before the vacatur of defendant’s 924(c) brandishing conviction was neither procedurally nor substantively unreasonable.

The sentence was not procedurally unreasonable, because the district court followed all the required steps. Judge Caproni explained that, in the absence of the § 924(c) count, the guidelines range was 110 to 137 months, down from the original range of 161 to 180 months. The court gave the parties opportunities to raise “any factual issues in dispute” or other issues that would bear on sentencing, and neither party did. The court explained why the above-guidelines 180-month sentence was appropriate, resting both on the applicability of an upward departure under § 4A1.3(a)(1) and on an upward variance after consideration of the § 3553(a) factors. The court stated that a departure was warranted, because reliable information indicated that defendant’s criminal history category substantially under-represented the “seriousness of his criminal history.” The court also explained that it arrived at the particular sentence of 180 months by weighing the § 3553(a) factors. Although the § 924(c) count had been vacated, the court concluded that the nature and circumstances of the offense and defendant’s history and characteristics remained the same. Judge Caproni concluded that because the § 3553(a) factors had not changed since the 2015 sentencing, the same sentence as before—180 months of imprisonment—was appropriate. CA2 also found no substantive unreasonableness. Not only did the court follow the appropriate procedures, but the resulting sentence was plainly “located within the range of permissible decisions” required for substantive reasonableness.

CA2 rejected defendant’s challenge to the denial of his motion for compassionate release under § 3582(c)(1)(A). The compassionate release statute provides that a court “may reduce the term of imprisonment . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”

Defendant had argued that the combined circumstances of dangerous conditions in prison during the pandemic and his chronic health problems presented “extraordinary and compelling reasons” for his early release. The district court assumed the validity of this argument but rejected compassionate release because the § 3553(a) factors outweighed the dangers to defendant’s health. The defendant had a violent history, continued to display anti-social behavior, and had not progressed in prison. He also lacked a solid plan for his eventual reentry into the community. Defendant was relatively young, and his chronic conditions were managed well by medication. Thus, the risks to him were lower than the risks to some other inmates. CA2 found that, based on this reasoned analysis, the district court did not abuse its discretion in denying without prejudice defendant’s motion for compassionate release.

CA2’s decision can be found here.

In United States v. Phillipe, in a summary order, CA2 affirmed defendant’s NDNY convictions for possession with intent to distribute a controlled substance and possession of a firearm in furtherance of a narcotics crime, but vacated defendant’s conviction for possession of a firearm and ammunition by a prohibited person under §§ 922(g)(1), and 924(a)(2). CA2 found that the district court committed Rehaif plain error, i.e., it failed to instruct the jury that the government needed to prove that defendant knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year.

Title 18 U.S.C. § 922(g) prohibits any person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year,” from possessing a firearm or ammunition in or affecting commerce. §§ 922(g)(1) and 924(a)(2). Defendant argued for the first time on appeal that his conviction on this count should be vacated because the district court erred by failing to instruct the jury that the government needed to prove that defendant knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year, as required by the intervening case, Rehaif v. United States, 139 S. Ct. 2191 (2019). Defendant further argued that there was no evidence in the trial record that demonstrated his knowledge of his prior felony conviction.

CA2 found plain error: (1) there was an error; (2) the error was clear or obvious, rather than subject to reasonable dispute; (3) the error affected the defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Miller, 954 F.3d 551, 557-58 (2d Cir. 2020).

The error affected defendant’s substantial rights, because defendant had stipulated to the existence of his prior felony at trial. While the government argued that the jury could have also looked to record evidence of defendant’s conduct at the time of his arrest to show awareness of the prior felony, because he was nervous as the police opened his trunk, as well as his attempted flight, CA2 found that evidence insufficient, because many reasons could have accounted for defendant’s actions other than his knowledge of his felony status.

CA2’s decision can be found here.

Appellate Division, Second Department

In People v. Cousar, AD2 reversed defendant’s Putnam County grand larceny conviction, finding that the People failed to prove territorial jurisdiction.

Defendant pleaded guilty to fourth-degree grand larceny. He admitted that, while located in New Jersey, he used the personal identifying information of a Putnam County resident to electronically access that resident’s bank account and knowingly steal $9,000 from it. In his omnibus motion, defendant had challenged County Court’s territorial jurisdiction over the grand larceny count on the ground that none of the elements of the alleged offense occurred in New York. The court denied that branch of the defendant’s motion.

AD2 disagreed. The People did not dispute the defendant’s claim that none of the elements of the alleged offense occurred in New York, and did not seek to establish, for instance, that the complainant’s bank account was located in New York. Instead, the People argued only that territorial jurisdiction was properly based on CPL 20.20(2)(a) because grand larceny was a “result offense” and the alleged “result” occurred in New York.

“When a specific consequence, such as the death of the victim in a homicide case, is an element of an offense, the occurrence of such consequence constitutes the ‘result’ of such offense. An offense of which a result is an element is a ‘result offense'” (CPL 20.10[3]). The elements of larceny are (1) intent to deprive another of property or to appropriate the same to himself or herself or to a third person, and (2) the wrongful taking, obtaining or withholding of such property (see Penal Law § 155.05[1]). Because no “specific consequence” is an element of grand larceny in the fourth degree, larceny in the fourth degree is not a “result offense” within the meaning of CPL 20.10(3).

AD2’s decision can be found here.

In People v. Everett, AD2 reversed defendant’s Queens County second-degree murder conviction for O’Rama error.

The jury submitted a note asking to view a specific portion of surveillance video taken from the victim’s building. The court failed to notify the parties that the note existed, failed to read the contents of the note into the record, and failed to respond to the note. The court’s mode-of-proceedings error required reversal.

AD2’s decision can be found here.

In People v. Rose, AD2 reversed defendant’s Kings County second-degree weapon possession conviction as against the weight of the evidence, finding that defendant’s possession was temporary and lawful.

The trial evidence established that, in the outdoor courtyard of an apartment building in Brooklyn, the defendant shot the decedent in the chest, killing him. Defendant testified that, upon exiting the building and walking into the courtyard, he saw that decedent was arguing with defendant’s brother. After seeing that decedent was in possession of a firearm, defendant struggled with decedent, and decedent knocked defendant’s eyeglasses off his face. Defendant tried to wrestle the gun away from decedent, the gun fell to the ground, and both men dove to retrieve it. Defendant recovered the gun, the decedent charged at the defendant, and the defendant shot him.

Defendant ran inside the building with the gun to look for his brother but he could not find him, returned to the courtyard, and seeing no one in the courtyard, returned to the building with the gun. Defendant unloaded the gun, wrapped the gun and the ammunition in his bloodied shirt, and discarded them in the trash in a double trash bag. Those items were never recovered.

Defendant was acquitted of murder in the second degree and criminal possession of a weapon in the second degree under the theory that he intended to use the firearm unlawfully against another. But the jury convicted him of criminal possession of a weapon in the second degree, under the theory that he possessed the firearm, not in his home or place of business, and convicted him of both counts of tampering with physical evidence.

AD2 found that, as reflected by the fact that the jury acquitted the defendant of the murder charge, based upon the defense of justification, the defendant initially took possession of the gun with a valid legal excuse. Because there was no evidence that the defendant retained the gun beyond opportunities to hand it over to the authorities his possession was temporary and lawful.

Because defendant consciously disposed of the gun, along with his shirt, to rid himself of what he thought would be incriminating evidence, he tampered with physical evidence believing that it would be produced in an official proceeding or prospective official proceeding. For that reason, AD2 refused to reverse the tampering charges.

AD2’s decision can be found here.

In People v. Wentland, AD2 reversed defendant’s Orange County attempted assault in the second degree and obstructing governmental administration in the second degree convictions, finding that they were tainted by his attorney’s conflict of interest.

Defendant’s son was arrested for allegedly driving while under the influence of alcohol. When defendant arrived at the scene, he allegedly assaulted and injured an officer. According to defendant, he had been informed that his son was involved in an automobile accident in which he had gone through the windshield but was forcibly stopped by officers from going to see him. He allegedly assaulted an officer in response. Defendant was charged with assault and obstructing governmental administration and his son was charged under the same indictment with obstructing governmental administration and two counts of operating a motor vehicle while under the influence of alcohol.

At arraignment, a single attorney represented both defendant and his son. He advised the court that he was representing both defendants because they were “united in interest.” In an affidavit submitted in support of a motion to withdraw his plea, defendant stated that during a recess, his attorney advised him that the People would allow his son to plead guilty to one count of driving while under the influence of alcohol in full satisfaction of the charges if defendant accepted a plea to a count of attempted assault on a police officer. Defendant also swore that, although he never assaulted a police officer and was, himself, the victim of an assault by several officers, he reluctantly accepted the plea offer to benefit his son after his attorney emphasized the benefit to his son conferred by the plea.

AD2 found that the record demonstrated that the defendant’s plea of guilty was motivated, at least in part, by coercive circumstances. More, defendant demonstrated a significant possibility of a conflict of interest arising from the attorney’s joint representation of the defendant and his son. The defendant’s maintenance of his innocence was at odds with the attorney obtaining a favorable plea offer for his son as part of the “package deal,” which also required the defendant to enter a plea of guilty.

AD2’s decision can be found here.

Appellate Division, Fourth Department

In People v. Murray, AD4 reversed defendant’s Monroe County insurance fraud conviction, finding that the court erroneously allowed an insurance investigator to testify that he believed a home fire had been intentionally set, when that was not an element of any of the crimes charged. The evidence established that defendant made false insurance claims, including inflating the value she’d paid for items damaged in the fire, and including items that belonged to her landlord and were the subject of separate claims by him.

AD4 agreed that supreme court abused its discretion in permitting the arson investigator to testify that he’d concluded that the fire had been intentionally set. The investigator’s testimony that the fire had been intentionally set was irrelevant to prove any of the essential elements of the crimes charged against defendant. Even assuming, arguendo, that the challenged testimony was relevant for the reason given by the court, i.e., to complete the narrative regarding the investigation, AD4 agreed that it still should have been excluded at trial because its probative value was substantially outweighed by the danger that it would unfairly prejudice defendant or mislead the jury.

AD4’s decision can be found here.

In People v. Nguyen, AD4 reversed defendant’s Monroe County aggravated driving while intoxicated, driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the first degree, reckless endangerment in the second degree, resisting arrest and leaving the scene of a property damage incident without reporting convictions, following a guilty plea, because, before he pleaded guilty, supreme court failed to inform him that a fine would be imposed and failed to advise him that, following his indeterminate term of imprisonment, he would be subject to a mandatory three-year period of conditional discharge, during which he would be required to install and maintain an ignition interlock device in his vehicle.

AD4’s decision can be found here.

In People v. Padilla, AD4 reversed defendant’s Onondaga County robbery and unlawful fleeing a police officer in a motor vehicle convictions, finding that county court erroneously denied challenges for cause to two prospective jurors whose statements during voir dire cast serious doubt on their ability to be impartial.

Defense counsel questioned prospective jurors as to their ability to separately consider the four incidents to which the counts of the indictments related. Two prospective jurors indicated that they were not sure if they could consider each incident separately. One stated, “I don’t know if I could,” while a second stated, “I’m not sure. Like I’m not sure who said it, like the timeframe like if it was one after another, another day, day, day, I don’t know if I can separate it. But if it’s like once, you know, a year or three years later this—maybe I would be able to separate it then.” In response, defense counsel asked, “[i]f the proof you’re hearing in this case was that they were separated by a short period of time, cause you to have problems separating the individual events?” The second prospective juror responded, “I think so.” Counsel sought to clarify whether the second prospective juror would have difficulty “[j]udging each one of them individually?” and the second prospective juror stated, “[y]es.”

After those statements of doubt by prospective jurors, the court explained to the entire panel that defendant “is presumed to be innocent of each and every one of those [allegations], and the fact that there was something on one day, something on another day, you’re going to decide each and every one of those on its own merits.” The court also specifically asked the panel if they understood that they had “to decide each one of the cases on their—each one of the charges on their own merit.” The prospective jurors remained silent.

AD4 concluded that the prospective jurors’ silence in response to the court’s explanation and question did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant’s challenges for cause.

AD4’s decision can be found here.

In People v. Reed, AD4 reversed the order of the Onondaga County supreme court that summarily denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting defendant upon a jury verdict of robbery in the first degree.

Defendant moved to vacate the judgment of conviction on the ground that defense counsel was ineffective in failing to make a sufficient motion to dismiss the indictment based on the alleged violation of defendant’s statutory right to a speedy trial. AD4 concluded that the court erred in denying defendant’s CPL 440.10 motion without a hearing with respect to whether a properly pleaded CPL 30.30 motion would have been successful and whether defense counsel’s failure in this regard deprived defendant of meaningful representation.

AD4’s decision can be found here.

In People v. Bell-Bradley, AD4 reversed the order of Erie County Court that denied defendant’s motion to set aside his sentence pursuant to CPL 440.20 on the grounds that defendant was improperly sentenced as a second felony offender because his prior federal conviction of bank robbery was not equivalent to any felony in New York.

County Court denied the motion without considering the merits based upon its determination that defendant had the opportunity to challenge the legality of the sentence on his direct appeal, which was then pending, and that the facts and information relevant to the issue were available on direct appeal.

AD4 found that the court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20. The procedural bar set forth in CPL 440.10(2)(b) applies only to motions made pursuant to section 440.10, and defendant’s motion was made pursuant to section 440.20. A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as unauthorized, illegally imposed or otherwise invalid as a matter of law, and a determination of second felony offender status is an aspect of the sentence.

AD4’s decision can be found here.

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