Ed Sapone’s DECISIONS OF THE WEEK-June 14, 2019

| Jun 14, 2019 | Ed Sapone’s Decisions of the Week

Decisions of the Week Ended June 14

This was an uneventful week in the Circuit with only one precedential decision affirming in a criminal case, and no summary orders. While the New York Court of Appeals issued three decisions, they were all affirmances, and none of them broke new legal ground.

Second Circuit

On Thursday, in United States v. Balde, the Circuit affirmed defendant’s SDNY conviction for unlawful possession of a firearm by an alien illegally or unlawfully in the United States. The Circuit rejected defendant’s contentions that he could not have been in the U.S. within the meaning of the statute because he had not “entered” the U.S. as defined by the immigration laws, and, even if he was in the U.S., he was not here “illegally or unlawfully,” given the circumstances.

Defendant first arrived in the United States as a child from Guinea, without lawful immigration status. In May 2005, he sought to adjust his status to become a lawful permanent resident, apparently pursuant to the terms of a class action settlement agreement. His interview with United States Citizenship and Immigration Services (”USCIS”) was originally scheduled for December 1, 2005.

Before his interview, defendant learned that his mother was gravely ill. Defendant’s immigration lawyer wrote to USCIS informing them that defendant would be unable to attend his interview. USCIS did not act on the request to postpone. He left the U.S. several weeks after the scheduled interview. While he was out of the country, USCIS denied his application for adjustment of status because he had missed his interview and it determined that his lawyer’s request for a postponement was not sufficiently justified.

After defendant’s mother died, defendant returned to the U.S., where he was stopped at JFK and told by Customs and Border protection that his parole status had been revoked, and he was detained. Removal proceedings commenced, ultimately leading to an order of removal. Defendant sought and was granted supervised release from immigration detention as he appealed the order of removal. The order of removal eventually became final.

Seven years after he was ordered removed, defendant was involved in a fight in a Bronx deli and pulled out a handgun and pointed it at others. He left, but returned a few minutes later and fired the gun into the air. He was arrested and indicted for one count of possession of a firearm, in

violation of 18 USC §922(g)(5). He pled guilty and was sentenced to 23 months of imprisonment.

The Circuit first rejected defendant’s argument that he was not in the U.S. within the meaning of the statute, because he had never lawfully entered. The plain meaning of the word “in” did not require that defendant had lawfully entered; it required only that he was present.

Second, the Circuit found that defendant was illegally or unlawfully in the U.S. According to defendant, his parole from detention to supervision meant that he was in the country lawfully. The Circuit found that defendant’s parole to supervision did not change his unlawful status: he’d been ordered removed, therefore he was in the country unlawfully.

The Circuit’s decision can be found here.

Supreme Court of the United States

On Monday, in United States v. Quarles, in a unanimous decision, the Court held that Michigan’s third-degree Home Invasion statute was substantially equivalent to or narrower than generic burglary for purposes of qualifying for enhanced sentencing under the Armed Career Criminal Act. In a straightforward decision written by Justice Brett “beers” Kavanaugh, the Court found that, under its precedents, the categorical ACCA definition of burglary includes, if state law permits, unlawfully remaining in a building or structure when the defendant forms at any time the intent to commit a crime inside.

The Court’s decision can be found here.

New York Court of Appeals

On Tuesday, in People v. Giucca, in a majority opinion written by Chief Judge DiFiore, NYCA reversed AD2’s grant of defendant’s CPL §440.10 motion, which had vacated defendant’s Kings County murder conviction. AD2 found that the People had not violated Brady by failing to disclose favorable impeachment material derived from the circumstances of a prosecution witness’ pending burglary case, and that the People had not failed to correct false or misleading testimony provided by the witness on that subject at trial.

Defendant argued on appeal that the prosecution did not turn over impeachment evidence regarding a jailhouse informant’s motivation to fabricate defendant’s alleged inculpatory statements, and that, at trial, the prosecutor failed to correct misrepresentations during the informant’s testimony. NYCA held that, because counsel was able to impeach the informant’s credibility in general terms, including through questioning about past convictions, and his interest in gaining a benefit in exchange for testimony, it wouldn’t have mattered that the same prosecutor prosecuting defendant intervened on the informant’s behalf in a separate prosecution.

In a lone dissent, Judge Rivera would have ruled that the prosecutor committed an “egregious violation of our law and … ethical obligations” that was material under the reasonable-possibility bar.

NYCA’s decision can be found here.

On Thursday, in People v. Lopez-Mendoza, in a majority opinion written by Judge Wilson, NYCA affirmed defendant’s NY County first-degree rape conviction. NYCA rejected defendant’s contention that he was denied the effective assistance of counsel because his trial attorney failed to review, or failed to comprehend the significance of, surveillance video evidence contradicting his grand jury testimony of a consensual sexual encounter with the victim, and therefore proceeded at trial as if the grand jury testimony were true.

Even after defense counsel learned about the surveillance video, counsel decided to advance defendant’s account from the grand jury, telling the jury in the opening statement that the defendant would testify. Judge Wilson concluded that the record on direct appeal was inadequate to show that counsel had failed to watch the video in question or whether his approach was reasonable trial strategy. A CPL §440.10 motion would have been required to address these unanswered questions.

Judge Rivera dissented on the IAC issue, because the record established that counsel pursued a theory explicitly contradicted by video evidence and there can be no strategic reason for adoption of a course of action with no hope of success.

NYCA’s decision can be found here.

In People v. Mendoza, in a rare unanimous decision in a criminal case, NYCA affirmed defendant’s burglary conviction. NYCA rejected defendant’s contention that his counsel was ineffective because he conceded his client’s guilt and pursued a jury nullification defense, and contended that his client had been “overcharged.”

NYCA concluded that, given the overwhelming evidence against defendant, and the limited defense strategies available, counsel was not ineffective because he raised “what he reasonably perceived could be factual issues in the case, such as the method of defendant’s entry into the building.” Noting that the court “did not curb counsel’s jury nullification summation arguments,” NYCA concluded that the record did not support defendant’s contention that he was denied meaningful representation.

NYCA’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Goondall, AD2 reversed defendant’s Queens County second-degree robbery convictions, finding on the record ineffective assistance of counsel. Defense counsel pursued a misidentification defense during the trial but in summation conceded that the defendant was, in fact, a “second assailant.” Counsel argued that the jury should nonetheless find defendant not guilty on the robbery charge. AD2 found that defense counsel’s decision to abandon the misidentification defense “midstream in favor of a nebulous and contradictory argument” was so unreasonable that it could not be a legitimate trial strategy.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Carlin, AD3 affirmed the decision of the St. Lawrence County Court, which had dismissed defendant’s indictment for two counts of criminal sale of a controlled substance in the third degree, agreeing with the county court that the People had not presented sufficient evidence that the substance defendant sold was cocaine.

As described by AD3, the evidence presented to the grand jury consisted of “sparse testimony from the CI and an investigator involved in the controlled transactions, with most of the substance of that testimony having been supplied through leading questions.” As to a first transaction, the CI testified, in a conclusory manner, that he believed the substance to be crack cocaine, without providing any description of the substance or explanation for his belief. As to a second transaction, the CI did not express any belief as to the nature of the substance he received from defendant. Although the investigator testified that he received white chunky substances from the CI, his testimony surrounding the testing of those substances was “sorely lacking.” He did not provide any detail as to his training and experience in field testing, explain how field testing occurs or specifically identify what he did in this case to determine that both substances were cocaine.

AD3’s decision can be found here.

In People v. Wager, AD3 reversed defendant’s Saratoga County vehicular manslaughter convictions, concluding that an ATV is not a motor vehicle, a necessary element of vehicular manslaughter in the first degree under Penal Law §125.13(1). Although defense counsel’s motion did not specifically challenge the evidence on this ground, the court was required to assess the proof of that element under weight-of-the-evidence review notwithstanding the failure to object.

AD3’s decision can be found here.

Appellate Division, Fourth Department

In People v. Edwards, AD4 reversed defendant’s Onondaga County attempted first-degree murder and first-degree robbery convictions, finding that the trial court violated defendant’s right to counsel. At a pretrial hearing, defendant asked for a new lawyer because counsel had failed to file discovery demands and omnibus motions. Defense counsel told the court that he had filed those papers, and the court inexplicably stated that it received them, which was incorrect. The People recalled that no motions were ever filed. Defendant “articulated complaints about his assigned counsel that were sufficiently serious to trigger the court’s duty to engage in an inquiry regarding those complaints,” an inquiry that never occurred.

AD4’s decision can be found here.

Share This