by | Jun 16, 2021 | Ed Sapone’s Decisions of the Week

Two important decisions were published this week, one by the Second Circuit; the other by SCOTUS.

In Garlick, the Circuit granted a New York State defendant’s habeas petition, finding that the admission of an autopsy report violated the Confrontation Clause, because the witness through whom the report was admitted had not participated in the report’s preparation. This is directly contrary to the manner in which New York State courts have been interpreting the Clause.

The Supreme Court’s decision in Borden is also an important one, holding that crimes involving recklessness do not count as violent felonies under the Armed Career Criminal Act, resolving yet another nuanced question as to the meaning a crime of violence.

The New York State appellate courts were relatively quiet this week, with the exception of a couple of Catu reversals in the Second Department in Benitez and Dillon.

Second Circuit

In Garlick v. Lee, CA2 affirmed the order of SDNY Senior U.S. District Judge Colleen McMahon that granted petitioner’s habeas § 2254 petition to vacate his Bronx County first-degree manslaughter conviction. CA2 found that the introduction of autopsy reports violated the Sixth Amendment’s Confrontation Clause.

Petitioner was convicted of first-degree manslaughter after a Bronx trial. At that trial, the People introduced an autopsy report—prepared at the request of law enforcement during an active homicide investigation—over petitioner’s objection through a witness who had not participated in the autopsy or in the preparation of the autopsy report. The Appellate Division, First Department affirmed the conviction on the ground that petitioner’s right of confrontation was not violated because the autopsy report did not link the commission of the crime to petitioner and, therefore, was not testimonial. People v. Garlick, 144 A.D.3d 605, 606 (1st Dep’t 2016), the Court of Appeals denied leave to appeal, and the Supreme Court denied cert.

CA2 found that this decision involved “an unreasonable application” of “clearly established Federal law, as determined by the Supreme Court of the United States.”

CA2 held that the state court adjudication was an incorrect application of clearly established Supreme Court precedent, under which an autopsy report is testimonial and admissible only with an opportunity at confrontation. The autopsy report was “[a] solemn declaration or affirmation made for the purposes of establishing or proving some fact.” The report was based on evidence seized by law enforcement—the victim’s body—provided to a state laboratory required by law to assist in police investigations. The autopsy was performed in aid of the police investigation.

Further, the autopsy report was used extensively at trial for the purpose of proving key facts—including, that it was petitioner rather than another suspect who caused the victim’s death. The People used the autopsy report in its opening statement and closing argument to describe the victim’s wounds. The People also used the autopsy report’s conclusions on the manner and cause of death to eliminate another suspect as a potential cause of the victim’s death and to prove petitioner’s intent to cause serious physical injury. The conclusions contained in the autopsy report with respect to the nature of the wounds and the cause and manner of death were out-of-court substitutes for trial testimony, that presented the very “risk of error that might be explored on cross-examination.”Applicable Supreme Court precedents required a finding that the autopsy report was testimonial and was erroneously admitted without an opportunity for cross-examination.

CA2’s decision can be found here.

In Simmons v. United States, in a summary order, CA2 affirmed SDNY Judge Alvin K. Hellerstein’s order denying defendant’s § 2255 motion by which defendant sought to vacate his convictions. Defendant argued, first, that his conviction for brandishing a firearm in furtherance of a crime of violence was improper because the only predicate offense referenced in his plea agreement was a conspiracy to commit Hobbs Act robbery, which is not a crime of violence. Defendant further quipped that his attempted Hobbs Act robbery was not a proper predicate offense of his 924(c) firearms charge because it was not referenced in his plea agreement and should not qualify as a crime of violence under 18 U.S.C. § 924(c).

For his involvement in multiple robberies and attempted robberies, defendant was charged in a three-count Information with: (1) conspiracy to commit Hobbs Act robbery; (2) attempted Hobbs Act robbery; and (3) violation of § 924(c) for using a firearm in furtherance of a crime of violence—specifically, in furtherance of counts one and two. Defendant’s plea agreement, however, recited only “the robbery conspiracy charged in Count One” as the § 924 count. At the plea allocution, the government recited only the conspiracy count as the predicate for the § 924 count. But in pleading guilty to all three counts of the Information—referenced throughout the plea allocution—defendant admitted that for the robberies or attempted robberies during the relevant period, he’d used guns in all of them to scare the victims into compliance.

Following his guilty plea, defendant was sentenced to concurrent terms of 135 months of imprisonment for Counts One and Two and a consecutive term of 84 months for Count Three.

CA2 agreed with the district court that there was legally sufficient proof at the plea allocution that defendant had committed the predicate crime of attempted Hobbs Act robbery because—even though the plea agreement listed only the conspiracy count as the § 924(c) predicate—defendant admitted that he committed attempted Hobbs Act robbery with a firearm and he pleaded guilty to Count Two, which charged him with attempted Hobbs Act robbery.

CA2’s decision can be found here.

In United States v. Cheese, in a summary order on the government’s appeal, CA2 vacated EDNY Judge Nicholas G. Garaufis’ order that had dismissed four counts of an indictment that charged defendants with using firearms in furtherance of a crime of violence in violation of §924(c). Attempted Hobbs Act robbery was the predicate. CA2 agreed with the government and cited its subsequent en banc decision in United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021), which held that attempted Hobbs Act robbery was categorically a crime of violence. Judge Garaufis, therefore, erred when he dismissed the counts.

CA2’s decision can be found here.

In United States v. Holmes, in a summary order, CA2 affirmed EDNY Judge Carol Bagley Amon’s order that denied defendant’s § 3582(c)(1)(A) motion for compassionate release. CA2 found that, although the district court had improperly relied on Guideline § 1B1.13 as a basis for denying defendant’s motion, its alternate ground for denying the motion, that defendant presented a danger to the community, was a valid basis for denying the motion.

In November 2019, defendant filed a pro se motion for compassionate release § 3582(c)(1)(A). He asserted that he had an “extraordinary and compelling reason” for a sentence reduction because the government had “duped” him into pleading guilty. The district court denied the  motion, finding that his argument was “not a basis for compassionate release” under Guideline § 1B1.13, and further finding that he still posed “a danger to the safety of any other person or to the community.”

The district court’s threshold eligibility determination was wrong in light of CA2’s subsequent decision in United States v. Brooker (Zullo), 976 F.3d 228 (2d Cir. 15 2020). Zullo held that Guideline § 1B1.13 was “applicable” only to motions for compassionate release made by the Director of the Bureau of Prisons. For motions made by prisoners pursuant to the First Step Act of 2018, nothing “in the now-outdated version of Guideline § 1B1.13 limits the district court’s discretion.” After Zullo, a district court may entertain a prisoner’s motion for compassionate release under the First Step Act, and may grant it if (1) there are “extraordinary and compelling reasons” warranting compassionate release and (2) the factors set forth in § 3553(a) do not counsel against such release.

Although defendant was not foreclosed by Guideline § 1B1.13 from seeking compassionate release, CA2 found that the district court’s alternate basis for denying relief was not an abuse of discretion. Citing defendant’s record of serious violent conduct in prior offenses and the conduct that led to his conviction, and his conduct in prison, the district court concluded that defendant still posed a danger to the community and a sentence reduction was not warranted. That the district court specifically referred to § 3142(g)—the statutory provision that must be considered under Guideline § 1B1.13(2)—did not foreclose a parallel finding under the § 3553(a) factors.

CA2’s decision can be found here.

In United States v. Brown, in a summary order, CA2 affirmed defendants’ SDNY racketeering conspiracy, murder in aid of racketeering, conspiracy to commit murder in aid of racketeering, use of a firearm in relation to a crime of violence, and being a felon in possession of a firearm, and the 240-month sentence imposed by Judge Denise L. Cote. CA2 summarily rejected defendant’s challenges, including to the sufficiency of the evidence, to the delayed disclosure of cell-site expert testimony until the night before the last day of trial, to the admission of uncharged acts involving drug sales, assaults, and a 1990’s shooting, and to the admissibility of evidence recovered during a search of defendant’s home.

Defendant argued, among other things, that the government violated FRCP 16(a)(1)(G) by not disclosing its cell-site expert until the night before the last day of trial. The district court found no bad faith because it concluded that the government notified the defense as soon as it became aware that the cell site records might still be available. The court found the evidence highly probative because it supported the government’s theory of the events. The court also found that defendant would not be prejudiced because he would have ample opportunity for cross-examination. CA2 found that these decisions did not exceed the limits of the court’s discretion.

CA2 also rejected defendant’s claim that physical evidence obtained during the search of his home should have been suppressed because the police could not have reasonably believed that defendant was present when they entered his home to execute an arrest warrant. CA2 agreed with the district court that the police had reason to believe that defendant was in his home when they initially entered. Defendant argued that surveillance video had showed him leaving his home and not returning during a period when his home was staked out. CA2 “decline[d] to treat as dispositive facts” that agents did not see defendant return to his home. CA2 found that the police had a “particularized and objective basis” to think defendant might be home.

CA2’s decision can be found here.

United States Supreme Court

In Borden v. United States, in an unusual 5-4 plurality, with Justice Kagan writing an opinion joined by Justices Breyer, Sotomayor, and Gorsuch, and Justice Thomas concurring in the result in a separate opinion, SCOTUS ruled that crimes involving recklessness do not count as violent felonies under the Armed Career Criminal Act, which imposes a mandatory 15-year sentence for persons found guilty of illegally possessing a firearm who have three or more prior violent felony convictions. SCOTUS reversed the Sixth Circuit, which had ruled that a crime involving recklessness—here, a Tennessee reckless aggravated assault conviction—counts as a violent felony for ACCA sentence-enhancement purposes.

The SCOTUS plurality held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under ACCA’s elements clause, primarily based on the statutory text. The operative language of the statute asks whether a state offense necessarily involved the defendant’s “use, attempted use, or threatened use of physical force against the person of another.” §924(e)(2)(B)(i). The phrase “against … another,” when modifying a volitional action like the “use of force,” demands that the perpetrator direct his force at another individual. Reckless conduct is not aimed in that prescribed manner.

The plurality also found that the ordinary meaning of the term “violent felony”—which the elements clause defines—also informs this construction. Prior decisions construing the violent crime definition mark out a narrow “category of violent, active crimes.” Those crimes are best understood to involve a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.

Justice Thomas agreed with the result, but not Justice Kagan’s reasoning. He focused on the phrase “use of physical force,” which he concluded was limited to intentional acts designed to cause harm.

Justice Kavanaugh wrote a 38-page dissent joined by Justices Roberts, Alito, and Barrett. He concluded that the Kagan opinion’s reading of “against the person of another” was not warranted, and overrode the Congressional intent which was to punish recidivist violent felons who unlawfully possess firearms and threaten further violence.

SCOTUS’s decision can be found here.

Appellate Division, Second Department

In People v. Benitez, AD2 reversed defendant’s Dutchess County second-degree criminal sale of a controlled substance conviction. AD2 found  that defendant’s guilty plea was unknowing because county court did not specify the period of post-release supervision to be imposed or, alternatively, the maximum potential duration of post-release supervision that could be imposed. The court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent under People v. Catu, 4 N.Y.3d 242, 244-45 (2005).

AD2’s decision can be found here.

In People v. Bernard, AD2 reversed the order of Queens County Supreme Court Justice Barry Kron, which had denied, without a hearing, defendant’s CPL § 440.10 motion to vacate his controlled substance possession and bail-jumping convictions. AD2 found that a hearing was necessary on the issue of whether the defendant was denied the effective assistance of counsel due to his counsel’s failure to advise him of the immigration consequences of his pleas of guilty.

In his motion, defendant alleged that he was not advised of the immigration consequences of his pleas of guilty, and there was no evidence in the transcript of the plea proceeding that defense counsel advised the defendant of such consequences. The defendant’s sworn statments, including that he has been in a long-term relationship with a United States citizen, with whom he has four children, sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational. He was entitled to a hearing to prove those allegations.

AD2’s decision can be found here.

In People v. Dillon, AD2 reversed defendant’s Nassau County aggravated DWI, second-degree assault, and vehicular assault convictions, on Catu grounds. AD2 found that defendant’s guilty plea was unknowing because Supreme Court failed to advise defendant that his guilty plea to three counts of the indictment meant that he would be sentenced upon his conviction of assault in the second degree to a period of post-release supervision. AD2 rejected the People’s contention that only the second-degree assault conviction needed to be vacated. AD2 held that all three were invalid, since the counts are all part of one indictment and one judgment, and the sentences imposed were to run concurrently with each other.

AD2’s decision can be found here.