Ed Sapone’s DECISIONS OF THE WEEK-May 31, 2019

| May 31, 2019 | Ed Sapone’s Decisions of the Week

Another quiet week in the Circuit, with no precedential decisions and only a few
summary affirmances. The state courts were similarly quiet.
Second Circuit
On Wednesday, In United States v. Asch, in a summary order, the Circuit affirmed the
SDNY judgment convicting defendant of conspiring to kidnap members of codefendant’s
family and an undercover agent, rejecting his challenges to the sufficiency
of the evidence and the 15-year sentence imposed by Judge Paul G. Gardephe.
Defendant argued that there was insufficient evidence for the jury to find a genuine
agreement because the evidence showed only that the discussions were inconclusive,
noncommittal, and hypothetical and that any plan lacked the required specificity.
The Circuit found the evidence of agreement sufficient, because it included evidence of
email conversations, phone conversations, and in‐person meetings among defendant
and other conspirators in which they devised a plan to kidnap co-defendantʹs family
members and prepared to do so. For example, the government presented evidence that
defendant met with co-defendant in the town where he lived with his family, and
defendant was shown where they could dump a body. Although the conspirators at
times expressed reservations, they ultimately reassured one another that the plan could
be carried out. While the plan was not entirely finalized as to dates and locations, the
essential nature of the plan to kidnap and murder was indeed agreed upon.
The Circuit’s decision can be found here.
On Tuesday, in United States v. Smith, in a summary order, the Circuit affirmed the
SDNY judgment convicting defendant of conspiracy to commit Hobbs Act Robbery
(count 1), conspiracy to distribute and possess with intent to distribute five and more
kilograms of cocaine (count 2), and discharging a firearm during and in relation to one of
those crimes (count 3), and the amended aggregate 34-year sentence imposed by
Judge Richard Berman. The Circuit rejected defendant’s claim that the sentence was
substantively unreasonable.
The district court had previously sentenced defendant to a total of 34 years of
imprisonment, to be followed by five years of supervised release. The total 34-year
prison term was based on a sentence of 24 years for Counts 1 and 2, and a mandatory
consecutive term of 10 years for Count 3. Defendant appealed, arguing that the 24-year
prison term for Count 1 was unlawful because it exceeded the statutory maximum
penalty of 20 years.
The Circuit vacated defendant’s sentence and remanded to the district court either to
specify the sentences imposed on Counts 1 and 2 or to resentence defendant.
See United States v. Smith, 713 F. App’x 30, 32–33 (2d Cir. 2017) (summary order). On
remand, the district court re-imposed a 34-year sentence, clarifying that the sentence
comprised 20 years for Count 1, to run concurrently with 24 years for Count 2, followed
by a mandatory consecutive term of 10 years for Count 3.

On appeal from the resentence, defendant challenged the substantive reasonableness
of the re-imposed 34-year sentence. As a preliminary matter, the Circuit rejected the
government’s contention that the substantive reasonableness of the sentence could not
be reviewed on remand, because the district court had not resentenced the defendant
but had only clarified its prior sentence. The Circuit concluded that, because the district
court had considered defendant’s arguments as to sentencing disparities, it was a
resentencing and not merely a clarification.
Ultimately though, the Circuit rejected defendant’s substantive reasonableness
challenge, finding the sentence appropriate because, among other things, defendant
had not only pulled the trigger in this case, but had previously been convicted and
sentenced for manslaughter for shooting and killing another individual.
The Circuit’s decision can be found here.
In United States v. Sykes, in a summary order, the Circuit affirmed the SDNY judgment
revoking defendant’s term of supervised release and Judge Lorna G. Schofield’s
sentence of a year and a day in prison, to be followed by a new term of supervised
release of two years minus one day. The Circuit rejected defendant’s argument that the
district court procedurally erred by relying on retributive factors when imposing the new
term of supervised release.
Defendant’s challenge arose from the fact that the district court did not separately
address its reasons for revoking supervised release and imposing sentence and its
reasons for imposing a renewed term of supervised release. The Circuit has previously
recognized that “district courts, understandably, often provide only one explanation for
the entirety of a sentence,” which might “inadvertently” lead to procedural error because
“the need for retribution is properly considered in imposing a term of incarceration but
not a term of supervised release.” United States v. Burden, 860 F.3d 45, 57 (2d Cir.
2017) (emphasis omitted). For this reason, the Circuit has advised district courts to
“separately state [their] reasons” for imposing a term of supervised release.
But the Circuit concluded that, even if the district court failed to separately state its
reasons for imposing a term of supervised release, that error did not prejudicially affect
defendant’s substantial rights or seriously undermine the fairness, integrity and public
reputation of the sentencing proceedings, because, when the district court discussed
the need to promote respect for the law and provide just punishment for defendant’s
breach of the court’s trust, it was in the context of explaining its reasons for revoking
supervised release and imposing a term of incarceration. Thus, the record did not show
that the district court imposed supervised release as retribution.
The Circuit’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Coulibaly, AD1 reversed defendant’s NY County seconddegree
assault conviction and dismissed the indictment, agreeing with defendant that
counsel was ineffective for failing to accurately calculate the speedy trial time when
pursuing a CPL § 30.30 motion.
In his CPL 30.30(2) motion for defendant’s release, defense counsel mistakenly
calculated 99 days of includable time, instead of the correct calculation of 103 days. The
People conceded the 99 days, and the court released defendant. When defense
counsel thereafter moved to dismiss the indictment under CPL 30.30(1), defense
counsel and the prosecutor repeated that error in calculating the delay as 99 days, with
the court ultimately finding only 181 days of includable time and denying the motion.
Had counsel correctly calculated 103 days of chargeable time, the includable time
would have totaled 185 days, rather than 181, and defendant’s speedy trial claim would
have been meritorious. Because counsel’s error denied defendant the relief of dismissal
to which he was entitled, it constituted ineffective assistance.
AD1 imposed the remedy that effective counsel would have achieved, because, but for
the ineffective assistance, the 30.30 motion would have been granted.
AD1’s decision can be found here.

Appellate Division, Fourth Department
In People v. McDonald, AD4 reversed and dismissed defendant’s Monroe County
second-degree murder conviction, agreeing with defendant that there was insufficient
evidence to support the conviction.
The People’s theory at trial was that the codefendant, defendant’s boyfriend, shot the
victim multiple times after the victim exited a bar and was walking to his vehicle, thereby
killing him. The People argued that defendant drove the codefendant to the scene,
picked him up after the murder, and then drove him to his home. Both defendants were
found guilty at a joint trial.
Defendant contended on appeal, and AD4 agreed, that, even if there was legally
sufficient evidence to support the codefendant’s conviction, the People failed to present
legally sufficient evidence establishing that defendant shared the codefendant’s intent to
cause the victim’s death.
Viewing the evidence in the light most favorable to the People, the People established
that defendant was seen inside a bar shortly after 1:30 a.m. on the night of the shooting
staring at the victim and his girlfriend. They further established that defendant owned a
silver Infiniti sedan; that a silver Infiniti was observed near the bar prior to and after the
shooting; that the codefendant approached the victim on foot after the victim left the bar
with his girlfriend and shot him at approximately 2:10 a.m.; that defendant and the
codefendant exchanged phone calls shortly after the shooting; and that, after the
shooting, the codefendant was picked up in a silver Infiniti and driven to his home, at
which point two people exited the car. The People also submitted evidence of
defendant’s consciousness of guilt, i.e., evidence that defendant lied to the police
regarding her and the codefendant’s whereabouts on the evening of the shooting and
that, within days after the shooting, defendant obtained a new cell phone and got rid of
the Infiniti.
AD4 found that evidence that defendant was at the crime scene and even assisted the
perpetrator in removing evidence of that crime was insufficient to support a defendant’s
conviction where the People failed to offer evidence from which the jury could rationally
exclude the possibility that the defendant was without knowledge of the perpetrator’s
intent. There was a valid line of reasoning and permissible inferences by which the jury
could have found that defendant intentionally aided the codefendant after the murder,
but there was legally sufficient evidence to support the inference that defendant shared
the codefendant’s intent to kill the victim. AD4 found that, even assuming, that the
evidence was legally sufficient, viewing the evidence in light of the elements of the
crime as charged to the jury the verdict was against the weight of the evidence.
AD4’s decision can be found here.
In People v. Campagna, AD4 modified the Cayuga County judgment convicting
defendant of aggravated vehicular homicide, aggravated vehicular assault, driving while
intoxicated, a misdemeanor, and reckless driving, to the extent of vacating the term of
probation imposed on counts one and five but otherwise affirmed.
AD4 found that the imposition of a five-year term of probation with an ignition interlock
device with respect to the aggravated vehicular homicide and aggravated vehicular
assault was illegal pursuant to Penal Law § 60.21. The mandatory term of probation
with an ignition interlock device pursuant to section 60.21 applies only to a defendant
convicted of a violation of Vehicle and Traffic Law § 1192 (2), (2-a) or (3).
AD4 also found that County Court properly included the ignition interlock condition as a
component of the three-year term of probation imposed as part of the sentence on the
conviction of misdemeanor driving while intoxicated under Vehicle and Traffic Law §
1192 (2).
AD4’s decision can be found here.

Warm regards,
Edward V. Sapone
Sapone & Petrillo, LLP
One Penn Plaza/ 53rd Floor/ 23rd Floor
New York, NY 10038
(212) 349-9000
www.saponepetrillo.com

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