Ed Sapone’s DECISIONS OF THE WEEK-May 24, 2019

| May 24, 2019 | Ed Sapone’s Decisions of the Week

Not much going on in the Second Circuit or New York’s state appellate courts in this pre-holiday week. For those interested in the philosophical differences between permissible inferences and impermissible speculation, Judge Denny Chin’s opinion in Pauling is worth a read.

Second Circuit

On Thursday, in United States v. Pauling, the Circuit affirmed the order of SDNY Judge J. Paul Oetken, by which Judge Oetken granted defendant’s motion to vacate the jury’s verdict on a count convicting defendant of conspiracy to distribute 100 grams or more of heroin. The Circuit agreed with Judge Oetken that the proof of the quantity element of the offense was legally insufficient.

A jury convicted defendant of conspiring to distribute and possess with intent to distribute 100 grams or more of heroin. The parties agreed that the government had proved beyond a reasonable doubt that the conspiracy involved 89 grams. They disagreed whether the government had proven the conspiracy involved another 11 grams needed to reach the 100-gram threshold. The Government argued that a recorded conversation between defendant and a buyer during which the buyer said he wanted “the same thing as last time,” supported the inference that the conspiracy involved at least 11 more grams, because a prior transaction had involved 14 grams.

The Circuit disagreed, finding that no reasonable juror could have concluded that a buyer saying he wanted “the same thing as last time” meant, beyond a reasonable doubt, that the heroin was both more than 11 grams and sourced from defendant’s co-conspirator. The Circuit’s decision includes an interesting discussion of the law distinguishing permissible inferences and impermissible speculation.

The Circuit’s decision can be found here.

On Monday, in United States v. Johnson, in a summary order, on the government’s appeal, the Circuit vacated the 36-month sentence imposed by EDNY Judge Brian M. Cogan. The Circuit found that the district court erred when it declined to enhance defendant’s sentence under Section 2K2.1(a)(2) of the guidelines despite defendant’s prior convictions for New York robbery in the third degree, and attempted robbery in the second degree, because they were crimes of violence.

The district court had concluded that defendant’s prior conviction for New York robbery in the third degree was not a “crime of violence” under the force clause of the Career Offender Guideline. But, following that ruling, the Circuit subsequently held that New York robbery in any degree was a crime of violence because it has as an element the use of force. See United States v. Pereira-Gomez, 903 F.3d 155, 165 (2d Cir. 2018).

The Circuit vacated the judgment and remanded for resentencing.

The Circuit’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Diego, AD3 reversed defendant’s Schenectady County second-degree weapons possession conviction, finding that the waiver of indictment and superior court information were jurisdictionally defective because they did not charge an offense for which defendant had been held for grand jury action.

Defendant pleaded guilty, as charged in the SCI, to criminal possession of a weapon in the second degree under Penal Law § 265.03 (1) (b), a different crime from that charged in any of the felony complaints resolved by the plea agreement, including the one charging him with criminal possession of a weapon in the second degree under Penal Law § 265.03 (3). Further, that offense is not a lesser-included offense of any charged crimes. To be guilty of the offense charged in the SCI, defendant must have “possess[ed] a loaded firearm” and done so “with intent to use the same unlawfully against another.” (See Penal Law § 265.03 [1] [b]).

The weapon-related crime in the felony complaint charged defendant with “possess[ing] any loaded firearm” outside of his home or business (Penal Law § 265.03 [3]). Because it is possible to commit the crime charged in the felony complaint — possession of a loaded weapon — without committing the crime charged in the SCI — possession with intent to use the weapon unlawfully — the crime charged in the SCI is not a lesser-included offense of the former; thus, the SCI could not serve as a proper jurisdictional predicate for defendant’s guilty plea.

AD3’s decision can be found here.

 

Warm regards,

Edward V. Sapone

Sapone & Petrillo, LLP

 

 

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