Ed Sapone’s DECISIONS OF THE WEEK-January 17, 2020

| Jan 17, 2020 | Ed Sapone’s Decisions of the Week

It was another uneventful week in the Circuit, with only a handful of mundane summary orders.

There were a few interesting decisions in the state’s First, Second, and Third Department’s with two of them—Martinez and Arana—reminding us that, for guilty pleading non-citizens, immigration consequences may be a more important consideration than the length of the sentence to be imposed.

Second Circuit

On Friday, in United States v. Vanhise, in a summary order, CA2 affirmed defendant’s SDNY convictions for conspiring to kidnap his family members following a jury trial before Judge Paul G. Gardephe. CA2 rejected defendant’s contentions that (1) the evidence was insufficient, (2) the verdict was against the weight of the evidence and (3) the court erred by failing to grant a severance.

CA2 found that the evidence was sufficient to show that defendant’s meeting one year in advance of the kidnapping was sufficiently tied to the later kidnap attempts to show that defendant was not merely fantasizing about committing the kidnapping.

CA2 also held that the district court did not abuse its discretion by denying defendant’s motion to sever his trial from that of his co-defendant. While the evidence against the co-defendant, which included the use of torture devices, was prejudicial, because the charges were “straightforward,” and “adequately distinct,” and the court properly instructed the jury, severance was not required.

CA2’s decision can be found here.

On Tuesday, in United States v. Campbell, in a summary order, CA2 affirmed defendant’s EDNY conviction for illegally reentering the United States after having been previously removed. CA2 rejected defendant’s contention that Judge Leo Glasser had erroneously denied his motion to dismiss the indictment on the grounds that the removal order underlying his prior deportation was unlawful.

Defendant argued that his prior removal order was fundamentally unfair because a clerical coding error in a visa document from 1984 led his adoptive mother to refrain from filing the paperwork for him to have acquired citizenship. CA2, however, agreed with the district court that there was no evidence of affirmative misconduct by the government, and that his claim had no chance of success.

CA2’s decision can be found here.

On Wednesday, in United States v. Covington, in a summary order, CA2 affirmed defendant’s SDNY conviction for conspiracy to distribute crack cocaine and heroin, and the 60-month sentence imposed by Judge Vincent L. Briccetti. In doing so, CA2 rejected (1) defendant’s challenges to the use of expert testimony regarding coded language for financial arrangements in drug transactions and (2) his procedural reasonableness challenge to the length of the sentence.

CA2 found that the expert’s testimony about the use of coded language in drug transactions to describe things such as consignment agreements, the appearance, consumption, and methods of using illegal drugs, and the packaging, quantities and prices of those drugs, was appropriate because the information was beyond the ken of the average juror.

As to the sentence imposed, defendant argued that the district court’s remarks at sentencing articulated a clear policy disagreement with the drug equivalency table in the guidelines, yet treated the guidelines calculation as mandatory. In United States v. Kimbrough, 552 U.S. 85 (2007), the Supreme Court had held that a district court may impose a below Guidelines sentence for crack cocaine offenses if it disagrees with the disparity between crack and powder cocaine. During sentencing, the court stated that the equivalency ratio between marijuana and cocaine base—1 gram of crack equal to 3571 grams of marijuana—seemed “a little bizarre,” but elected not to diverge from the Guidelines’ comparative treatment of crack and powder cocaine. CA2 found no reason to disrupt the sentence because the district court never stated that it was obliged to follow the guidelines.

CA2’s decision can be found here.

In United States v. Marley, in a summary order, CA2 upheld SDNY Judge Valerie E. Caproni’s denial of defendant’s suppression motion, and affirmed his convictions for conspiracy to distribute and possess with intent to distribute narcotics, and using and carrying firearms during that conspiracy.

In 2014, the DEA began a money laundering investigation into Joseph Stern. In 2015, a DEA agent reviewing data from a pen register on Sternʹs cellphone noticed it had been in contact with a phone number ending in 4484 several times on February 3 and 4, 2015. The pattern of the contacts led the agent to believe that Stern and the 4484 number were involved in the money laundering scheme.

That same day, another DEA agent—Luna—called the 4484 number, and claimed he was calling on behalf of Julian, a made‐up name. The recipient of the call asked Luna if he was calling on behalf of ʺFelipe,ʺ to which Luna responded yes. Luna told the recipient that he ʺhad a hundred to give him.ʺ The recipient of the call responded that he was out of town and could meet later that week when he returned to New York City. After the call, an Assistant District Attorney applied for a pen register and GPS tracking order for the 4484 number, submitting an affidavit that, among other things, summarized the events relating to Lunaʹs undercover telephone call. A state court judge approved the order.

On February 8, 2015, as a result of the geolocation data collected from the February 2015 Order, DEA agents identified and stopped a vehicle in which defendant was a passenger. Defendant and the driver were arrested after the agents smelled marijuana. Upon defendant’s arrest, agents seized the 4484 phone, a second phone, and $20,000 in cash.

In a motion to suppress, defendant argued that the affidavit submitted to obtain the February 2015 Order contained misstatements in violation of Franks v. Delaware, 438 U.S. 154 (1978). Defendant sought to suppress the geolocation data collected pursuant to the February 2015 Order and other categories of evidence that he argued were fruits of the Franks violation. Second, defendant argued that the two cellphones seized incident to his arrest on February 8, 2015, were unlawfully searched that night without a warrant in violation of the Fourth Amendment.

The district court concluded that the affidavit supporting the February 2015 Order contained several misleading statements exaggerating the evidence gathered from Lunaʹs undercover call. Nonetheless, the district court ʺsubstitut[ed] the facts as disclosed in Lunaʹs testimony for the misleading statements in the affidavit, and supplement[ed] the affidavit with facts that were omitted,ʺ and concluded that the corrected affidavit would have supported a finding of probable cause. As a result, the district court held that the misstatements were not material and that defendant failed to show a Franks violation. The district court declined to reach the question of whether the ADA and DEA agents made the misstatements ʺdeliberately or recklessly.ʺ The district court also concluded that defendantʹs cellphones were not unlawfully searched the night of his arrest.

CA2 agreed. As corrected by Luna’s testimony, the facts in the affidavit supported a finding of probable cause: Luna was an experienced DEA agent who participated in numerous drug and money laundering investigations. The 4484 phone was identified during the money laundering investigation involving Stern. Based on their experience in such investigations, the DEA agents identified a pattern of calls between Stern and the 4484 phone suggesting money laundering activities. In the undercover phone call, the recipient of the phone call responded in a way that suggested he implicitly agreed to meet Luna about the ʺhundredʺ he had ʺto give him.ʺ Viewed in the totality of the circumstances, these facts were sufficient to support probable cause. Consequently, even without the inaccuracies and omitted information, the affidavit would have supported a determination of probable cause.

On the issue of the cell-phone search, CA2 agreed with the district court that it was nothing more than speculation that the cell phones had been searched.

CA2’s decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Bryan, AD1 reversed defendant’s New York County grand larceny and perjury convictions, finding that Judge Pickholz abused her discretion when she denied the defense an adjournment to the next business day for the purpose of calling an absent witness, whose testimony would have been material.

AD1’s decision can be found here.

In People v. Martinez, AD1 reversed the order of NY County Judge Nunez, which had denied defendant’s CPL 440.10 motion following a hearing, finding that, in evaluating defendant’s motion, supreme court had applied the wrong legal standard.

Defendant alleged that his 2007 conviction should be vacated on the ground that his attorney did not advise him of his guilty plea’s “true immigration consequences.” Supreme court denied the motion after a hearing finding that counsel’s misadvice on the immigration consequences did not prejudice defendant. AD1 disagreed, finding that the court “applied the wrong analytical framework” on the prejudice issue.

Supreme court had found a lack of prejudice essentially because defendant’s explanation of what triggered his query about the immigration consequences of his 2007 guilty plea was the discovery, in 2017, that the conviction was standing in the way of expanding his taxi business. However, for purposes of considering the prejudice prong of defendant’s ineffective assistance claim, it was of no moment what presently motivated defendant to find out about the immigration consequences of his guilty plea. Rather, the inquiry on the issue of prejudice should have been limited to defendant’s circumstances as they were at the time of the guilty plea.

AD1 remanded for a new hearing before a different judge.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Arana, AD2 held defendant’s appeal in abeyance, and remitted back to Queens Supreme Court, to give defendant an opportunity to move to vacate his plea because the court did not advise him that his guilty plea might lead to his deportation. At the hearing, defendant will have the burden of showing that, had he been given the appropriate Peque warning, there is a reasonable probability that he would not have pleaded guilty.

AD2’s decision can be found here.

In People v. Kamenev, AD2 reversed defendant’s Kings County murder conviction. According to AD2, supreme court erred in denying defendant’s motion to suppress lineup identification testimony and statements he made to law enforcement because the arrest that preceded the lineup and interrogation was not supported by probable cause.

After a hearing, supreme court found that the police had probable cause to arrest defendant based upon “the independent police investigation of obtaining video recordings of defendant leaving his house shortly before the shooting, as well as the eyewitnesses’ description and identification of defendant from a photographic image taken from one of the videos.”

AD2, however, found that, contrary to supreme court’s conclusion, there was no evidence that defendant had been identified from a photographic image taken from one of the videos.

A detective testified that a witness provided a description of the person she had seen holding a gun after shots were fired, including that the person was riding a bicycle. The detective testified that the witness was shown a photograph taken from a video recorded outside a restaurant near the scene of the crime, and that the witness identified the person depicted in the photograph as the individual she had seen holding a gun. The detective also testified that another witness identified the person depicted in that photograph as the individual he had seen riding a bicycle after hearing the gunshots. AD2 found that no testimony was elicited that the person depicted in the photograph was identified as the defendant. Another video was recorded across the street from the defendant’s home “just before the crime,” showing a person who “appeared to be the defendant” leaving his home several blocks away from the scene of the crime on a bicycle. But no testimony was elicited that the witnesses were shown a photograph taken from the video near the defendant’s home, let alone that the witnesses identified the person depicted in that video as the person they saw holding a gun or riding a bicycle after the shots were fired. The mere fact that a person believed to be the defendant was observed riding a bicycle several blocks away from the scene of the crime, shortly before the shooting, was too innocuous, standing alone, to support a finding of probable cause.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Stone, AD3 reversed defendant’s Cortland County conviction for unlawful manufacture of methamphetamine, agreeing with defendant that county court violated his Sixth Amendment right to confront the witnesses against him. At trial, supreme court allowed the admission into evidence of a statement by defendant’s jointly tried co-defendant. Although the co-defendant’s statement was redacted, the jury was allowed to see where portions were blacked out and, given that the statement focused upon defendant’s arrest and the items found in the trailer, there were “obvious indications that it was altered to protect the identity of a specific person,” namely, defendant.

AD3’s decision can be found here.

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