Ed Sapone’s DECISIONS OF THE WEEK -February 15, 2019

| Feb 15, 2019 | Ed Sapone’s Decisions of the Week

The Circuit issued three significant precedential decisions this week, granting relief to defendants in each of them. The decisions in Orlando and Doe, in particular, are reminders that the Circuit continues to play a significant role in correcting legal errors. Neither decision, however, broke any new legal ground. Most remarkable about Orlando is that such an egregious legal error went uncorrected through the New York State court system and the SDNY until the case made it to the Circuit.

Second Circuit

Last Friday, in United States v. Ojudun, the Circuit remanded the SDNY judgment imposed by Judge Katherine B. Forrest, revoking defendant’s supervised release for having committed two financial crimes in violation of his conditions of his release. The Circuit found that Judge Forrest had erroneously admitted, over defendant’s hearsay objection, evidence of post-arrest statements made by the driver of a vehicle in which defendant was a passenger. Forrest had ruled that the statements were admissible as they were against the penal interest of the driver.

Defendant, who’d been convicted of conspiracy to commit bank fraud, had his supervised release revoked on the grounds that he violated standard conditions of release by: (1) committing forgery in violation of New Jersey law, (2) committing theft by deception in violation of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without permission, and (4) associating with a known felon.

On appeal, defendant challenged his convictions on the grounds that the district court: (1) erroneously denied his motion to suppress evidence resulting from New Jersey police officers’ stop of the vehicle in which he was a passenger, and (2) erred by admitting, over a hearsay objection, evidence of the driver’s post-arrest statements concerning defendant.

The Circuit affirmed the denial of the motion to suppress the evidence recovered from the stop, but agreed with defendant that the hearsay statements were improperly admitted.

In a post-arrest statement made by the driver of the vehicle in which defendant was a passenger, he claimed that he’d driven to New Jersey to shop at the Short Hills Mall. During the first half of the 27-minute interview, he denied any involvement in the fraudulent scheme. But he eventually conceded that he knew he was leaving the Bronx with defendant to go to a New Jersey bank where they were going to cash a check. In a later videotaped statement, he admitted the he had known from the start of the trip that defendant’s intention was to cash a check at a New Jersey bank. He then revealed the details of the scheme.

Judge Forrest found that the statement was admissible as a statement against penal interest under Rule 804(b)(3). The Circuit found that her analysis was inadequate because it had not focused on individual statements within the larger statements. (This seems to be a recurring mistake made by trial courts.) Each statement, of course, must be considered individually to determine which of them would reasonably have been viewed as exposing the speaker to criminal liability. Forrest, likely simply parroting back the government’s argument, commented only generally on the statement in finding that it was against penal interest. The Circuit also found that, even where the court has properly found that a particular statement is against a witnesses’s own penal interest, it must also determine whether there are corroborating circumstances that clearly indicate both the trustworthiness of declarant, and the truth of the statement. Here, because most of the driver’s statements were intended to minimize his involvement in the fraud, this standard was not met.

The Circuit vacated the judgment and remanded for the district court to conduct the more particularized analysis required by the rules. Given that Forrest is no longer a sitting judge, the defendant will certainly have a better shot on the next go around.

The Circuit also indicated that, because the Confrontation Clause does not apply to revocation proceedings, as to those of the driver’s statements that are not within the scope of Rule 804(b)(3), the court may consider whether they may properly be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure, which governs VOSR hearings.

The Circuit’s decision can be found here.

On Monday, in Orlando v. Nassau County District Attorney’s Office, the Circuit reversed the decision of EDNY Judge Edward R. Korman, by which Judge Korman had denied petitioner’s § 2254 petition for a writ of habeas corpus for relief from his 2005 Nassau County second-degree murder conviction. The Circuit agreed with petitioner that the admission of a detective’s testimony violated the Confrontation Clause.

The People’s theory at trial was that petitioner had paid codefendant Jeannot to murder the victim to extinguish a $17,000 gambling debt, and that petitioner assisted Jeannot in the murder. The People argued that petitioner lured Calabrese to a remote location near Long Beach on the pretext of meeting to pay the $17,000 debt. Petitioner had previously agreed to pay Jeannot to shoot Calabrese when he showed up for the meeting. Jeannot shot Calabrese at the meeting spot. Petitioner testified that he was present for the murder, but had intended to pay him. He did not expect Jeannot to shoot Calabrese and keep the money for himself.

The detectives believed that petitioner and Jeannot had been with Calabrese that night. Petitioner and Jeannot were questioned in separate rooms at the police station. Jeannot confessed to shooting Calabrese, stating that petitioner hired Jeannot to murder Calabrese to avoid paying a gambling debt to Calabrese. During his questioning, petitioner gave two different statements to the police but denied being involved in the murder.

The trial court had severed Petitioner’s and Jeannot’s trials to avoid a Sixth Amendment Confrontation Clause violation that could have arisen from petitioner’s jury hearing Jeannot’s confession if Jeannot did not testify and thus could not be cross‐examined about it. Severing the trials, however, did not avoid violating petitioner’s right to confront the witnesses against him, as the trial court allowed the jury to learn of Jeannot’s confession implicating petitioner at his trial, and Jeannot did not testify at petitioner’s trial.

Before the detective who took Jeannot’s statement began testifying at Orlando’s trial (and out of the presence of the jury), petitioner’s counsel objected, on hearsay and Confrontation Clause grounds, to the admission of the detective’s anticipated testimony recounting Jeannot’s statement as to Orlando’s involvement in the murder. The trial court denied the objection, ruling that the information that the People intended to offer in their direct case was not being offered for the truth of the contents of the statement but rather to give a clear picture to the jury concerning what was going on during the interrogation of petitioner.

After the objection was denied, the detective was permitted to testify that he (the detective) learned that Jeannot was making inculpatory statements about the murder. The detective told the jury that he confronted petitioner in an interrogation room and told him that Jeannot admitted to murdering Calabrese, and that petitioner had paid him to do it. The court (Nassau County Court Judge Sullivan) instructed the jury to disregard the statement Jeannot made when considering the evidence against petitioner, and to only consider the statements as they reflected on statements later made by petitioner. After the detective confronted petitioner with Jeannot’s statement, petitioner admitted that he was with Jeannot when he killed Calabrese, but had not expected Jeannot to kill him.

The jury found petitioner guilty, and he was sentenced to 25 years to Life. The Second Department affirmed, rejecting petitioner’s challenge to the statement in a single sentence, stating, “the court properly instructed the jury that the testimony was admitted for the limited purpose of explaining the detective’s actions and their effect on the

defendant and not for the truth of the statement.” (Judge Read of the Court of Appeals denied leave.)

Petitioner filed a pro se habeas petition. Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), the district court found that Jeannot’s statement was admissible because it was not offered for its truth. The district court also found the error harmless.

The Second Circuit reversed.

It found that (1) without his ability to cross‐examine Jeannot, the detective’s testimony recounting Jeannot’s statement violated petitioner’s Confrontation Clause right; (2) the Appellate Division’s ruling to the contrary was “objectively unreasonable;” and (3) the erroneous admission of the testimony was not harmless. It should also be noted that the prosecutor referred to the detective’s testimony in closing argument, and did not argue the statement’s effect on the petitioner; instead, the prosecutor pointed to, as proof that petitioner hired Jeannot for the murder, the detective’s testimony that Jeannot said so.

The Circuit’s decision can be found here.

On Thursday, in Doe v. United States, in a heavily redacted decision, the Circuit reversed the decision of an unidentified SDNY judge that had denied Doe’s coram nobis petition. Doe alleged that he received poor advice about the immigration consequences of the aggravated felony to which he was pleading guilty. Although the government had joined in asking the district court to grant the petition, it changed its position on appeal, and argued that the district court did not abuse its discretion in denying the petition.

As part of a plea agreement, Doe agreed to plead guilty to a one-count information to an unidentified crime that was an aggravated felony under immigration law. As part of his plea agreement, Doe agreed to cooperate with the Government. Although the pleaded-to crime was an aggravated felony, which resulted in a lifetime citizenship bar, a conclusive presumption of deportability, and automatic denial of discretionary relief, counsel told him that his plea would not result in his deportation. When, after failed efforts by agents with whom he was cooperating, Doe recognized that agents could not help him remain in the country, he contacted a new lawyer, and then filed a coram nobis petition. After meeting with Doe, the Government filed a letter with the court withdrawing its opposition to the petition. The district court orally denied the petition, stating that it was “not persuaded.”

The Circuit remanded for the district court to clarify its reasoning. In a subsequent written decision, the court stated that no “‘serious constitutional question’ would be raised by withdrawing [Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly seems the remedy in this case, if one is even in order.”

The Circuit reversed the denial of the petition. Counsel misadvised Doe about the immigration consequences of the conviction because he told him that he would not be deported when deportation was mandatory. Even though the advice preceded the

Supreme Court’s 2010 decision in Padilla, it was unreasonable for defense counsel to affirmatively misrepresent the convictions’ consequences.

The Circuit found that Doe was prejudiced because he showed that “but for counsel’s unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense.”

The Circuit’s decision can be found here.

On Thursday, in United States v. Lin, in a summary order, the Circuit affirmed a SDNY conviction before Judge Miriam Cedarbaum for murder through use of a firearm during and in relation to a crime of violence. The Circuit rejected defendant’s contention that the extortion underlying his conviction, as it was committed, was not a crime of violence.

The Circuit found that violence was integral to defendant’s extortion scheme; no rational juror could have concluded otherwise. The jury heard, among other things, that defendant extorted $2,000 a month from Huo Guang Chen by threatening him with violence. And when Chen later ceased the payments on instruction from Chan Qin Zhou, defendant ordered Zhou killed, and then ordered Chen to resume payments.

The Circuit’s decision can be found here.

In United States v. Herron, in a summary order, the Circuit affirmed the EDNY convictions for murder, firearms, racketeering, robbery, and drug offenses arising out of activities associated with the ʺMurderous Mad Dogs Bloodsʺ gang and its control of the drug trade in the Wyckoff and Gowanus Houses in Brooklyn, and the 105-year sentence imposed by Judge Nicholas Garaufis, summarily rejecting his claims that (1) he was denied his Sixth Amendment right to compulsory process with respect to two witnesses who invoked their Fifth Amendment right against self‐incrimination; (2) music and promotional videos related to his rap music career were erroneously admitted into evidence; (3) the district court erred in denying his motion to suppress cell‐site evidence; and (4) his predicate convictions were improperly considered ʺcrimes of violenceʺunder 18 U.S.C. § 924(c).

The Circuit’s decision can be found here.

In United States v. Simmons, in a summary order, the Circuit affirmed the SDNY judgment revoking his supervised release, but remanded for former Chief Judge Loretta A. Preska to reconsider the 36-month sentence she had imposed based on an incorrect perception of the applicable sentencing guidelines range.

Following his completion of a 60-month prison term for conspiring to possess with intent to distribute crack cocaine and heroin (see 21 U.S.C. 841(b)(1)(B) and 846), defendant

began a five-year term of supervised release. Less than a year later, defendant was arrested for sneaking into the bedroom of an 11-year-old girl who awoke to discover him touching the clothing that covered her vaginal area. The event triggered a supervision violation report, charging defendant with sexual abuse in the first, second and third degrees, forcible touching, and endangering the welfare of a child. An amended report charged defendant with associating with an individual under federal supervision, as to which the government elected not to proceed.

Defendant challenged the sentence as procedurally unreasonable. He argued that the district court did not calculate the guidelines range; did not adequately set forth the reasons for its sentence; did not set forth orally the specific reasons that justified its imposition of the above-guidelines sentence; and filed its statement of reasons close to eleven months after the judgment was entered.

While the Circuit found no merit to defendant’s contentions, the Government advised that the sentence was imposed on the basis of an incorrect perception of the applicable guidelines range. At the time of sentence, the court and the parties believed that defendant’s sexual misconduct, as a “sexual act” under 18 U.S.C. § 2241(c), was a Grade A violation. The Government pointed out that, because the vaginal touching was “through the clothing” of the victim, it did not qualify under the definition provided by § 2246(2)(D), of a sexual act prohibited by § 2241(c), and as a consequence did not qualify as a Grade A violation under U.S.S.G. § 7B1.1(a)(1)(A), with a sentencing range of 24-30 months’ imprisonment.

The Circuit remanded for the district court to reconsider the sentence in light of the applicable guidelines mistake.

Given the advisory guidelines range of 24-30 months for a Grade A violation, from which she upwardly departed to a sentence of 36 months, Judge Preska likely found that defendant’s criminal history category (“CHC”) was IV. Assuming she finds a Grade B violation, CHC IV, the resulting guidelines range will be 12-18 months. It will be interesting to see whether Judge Preska again sentences the defendant to 36 months or resentences him closer to the two-year range.

The Circuit’s decision can be found here.

In United States v. Reiter, in a summary order, the Circuit affirmed SDNY Judge Vernon Broderick’s denial of defendant’s Rule 25(a) motion to correct his 1988 sentence of two life terms plus 60 years, imposed on his convictions for, among other things, racketeering, operating a continuing criminal enterprise, and distribution of heroin. The Circuit rejected defendant’spro se arguments that the sentencing court failed to make a finding that his heroin distribution involved more than 100 grams.

The Circuit’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Costan, the Second Department held defendant’s appeal from his Kings County first-degree robbery convictions, among others, in abeyance, remitting the case back to Supreme Court to hear and report on defendants’ motion to suppress (1) statements he made to law enforcement officials, (2) identification testimony, and (3) physical evidence seized incident to his arrest, allegedly in violation of Payton v New York 445 U.S. 573.

The Second Department found that the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials. The Second Department found that, given the circumstances, including the importance to the People’s case of the admissibility of the defendant’s statements to law enforcement officials and physical evidence seized incident to his arrest, a new hearing was needed on defendant’s omnibus motion to suppress statements, identification testimony, and physical evidence seized incident to his arrest allegedly in violation of Payton.

The Second Department’s decision can be found here.

In People v. Lessane, the Second Department vacated the sentence imposed following defendant’s Kings County conviction for attempted first-degree robbery because the court had failed to assess whether defendant was an “eligible youth,” and therefore to be afforded youthful offender status.

The Second Department’s decision can be found here.

Appellate Division, Fourth Department

Last Friday, in People v. Brown, the Fourth Department modified defendant’s Senceca County convictions for second-degree assault and first-degree promoting prison contraband, reversing the assault conviction because the court had erroneously failed to instruct the jury on justification.

The charges related to an altercation that occurred while defendant was incarcerated, during which he allegedly assaulted a correction officer who was, together with other correction officers, attempting to prevent defendant from harming himself. With respect to the assault count, the People alleged that defendant stabbed the subject correction officer in the arm with a state-issued pen and, with respect to the promoting prison

contraband count, they alleged that he was in possession of a “hand crafted cutting instrument.”

Defendant testified that the altercation was an unprovoked attack by a number of corrections officers in retaliation for earlier grievances he had lodged against prison staff. Defendant testified that he felt “trapped” by the attack and started biting another correction officer in self-defense. Corrections officers who witnessed the altercation testified that the two officers involved in the altercation were engaged in a prolonged “struggle” with defendant, during which the three men “wrestl[ed] pretty hard.” Although defendant denied causing the injuries of the subject correction officer, that officer testified that defendant did cause his injuries.

The Fourth Department found that defendant was entitled to a justification charge, even though he denied assaulting the corrections officer, and argued that the People failed to prove that he possessed the pen used to injure the officer.

The Fourth Department’s decision can be fund here.

In People v. Colon-Colon, the Fourth Department reversed defendant’s Genesee County attempted second-degree rape conviction, finding that defendant’s plea did not comply with the constitutional and statutory framework for waiving indictment.

A felony complaint charged defendant with two counts of rape in the second degree (Penal Law § 130.30 [1] [sexual intercourse between an adult and a minor under age 15]). The felony complaint alleged that “from September 1st, 2013 to September 9th, 2013,” defendant had “sexual intercourse with a 14 year old female on two occasions while he was 19 years old [in the] City of Batavia.” Attached to the felony complaint was a supporting deposition from the alleged victim, who swore that she had sexual relations with defendant on two occasions while she was 14 years old, and on three occasions while she was 15 years old. It is undisputed that the victim turned 15 years old on September 9, 2013.

Defendant waived his right to a preliminary hearing and was held for action by the grand jury. Defendant subsequently waived his right to indictment and consented to prosecution by superior court information. To memorialize that waiver, defendant signed a written waiver of indictment in open court in the presence of his attorney. The written indictment waiver was also signed by defense counsel and the Genesee County District Attorney.

The written waiver did not contain any data whatsoever regarding the “date and approximate time and place of each offense to be charged in the superior court information,” as explicitly required by CPL 195.20. Notwithstanding that defect, County Court determined that the written waiver “fully complie[d] with the provisions of Sections 195.10 and 195.20 of the Criminal Procedure Law” and approved it on the record.

The failure to include the dates and times of offense was of particular significance in this case, the Fourth Department held, because only some of the multiple instances of sexual contact between defendant and the victim constituted second-degree rape in

light of her intervening 15th birthday. Thus, from the perspective of a criminal defendant poised to waive his right to indictment, it was of paramount importance to ensure that the SCI charged only conduct within the statutory definition of that crime, i.e., sexual contact that occurred before the victim’s 15th birthday. And there might be no way of ascertaining that critical detail if, in contravention of the legislative command embodied by CPL 195.20, the written waiver itself neglected to specify the dates and times of the subject offenses.

The waiver was therefore jurisdictionally defective because it failed to comply with CPL 195. 20. Reversal was required.

The Fourth Department’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP

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