DECISIONS OF THE WEEK ENDED NOVEMBER 27, 2020

| Feb 2, 2021 | Ed Sapone’s Decisions of the Week

This week, in Portillo, CA2 expressed its frustration with the now more than thirty-year-old decision to eliminate parole. But CA2 was not frustrated enough by the consequence of parole elimination to find a 55-year sentence imposed upon a 15-year-old, substantively unreasonable.

In the state courts, NYCA released a couple of decisions in Edwards and Lendof-Gonzalez that broke no new legal ground.

Second Circuit

In United States v. Portillo, CA2 affirmed the 55-year sentence imposed by EDNY Judge Joseph F. Bianco, upon defendant, who was 15 years old at the time of the offense.

Pursuant to a guilty plea, defendant was convicted of participating in a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c), including his role in the murder of four teenagers.

Defendant made two arguments on appeal. First, he urged CA2 to extend the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), so as to require the district court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole. Second, defendant contended that his sentence was substantively “unreasonable.”

CA2 concluded that the sentence had been lawfully imposed but wrote to address the unavailability of parole under these circumstances. In Miller, the Supreme Court held that mandatory life without parole for those under the age of 18 at the time of their crimes violated the Eighth Amendment’s prohibition on ‘cruel and unusual punishments, because the mandatory nature of the sentence precluded the sentencing judge’s consideration of several factors related to the defendant’s age.

CA2 assumed, without deciding, that Miller applied to this sentence, even though it was not a life-without-possibility-of-parole sentence. It was nonetheless satisfied that the district court, perhaps anticipating the application of the Miller factors, gave thoughtful consideration to each of them. CA2 found that the district court departed downward from the guidelines in part because of defendant’s age, but reasonably concluded, after considering the Miller factors, that a further departure was not warranted.

CA2 also found that the sentence was substantively reasonable. CA2 found that a 55-year sentence for a juvenile was unquestionably severe and “especially harsh.” But it also found the crime was especially heinous: Four people were murdered, the killing was brutally accomplished, and the defendant not only actively participated in the murders but planned the crime in retaliation for a petty grievance. Acknowledging the broad scope of a sentencing judge’s discretion and taking into account the care taken by the judge in exercising that discretion, CA2 concluded that the sentence is not unreasonable in any legally cognizable sense.

CA2, in what amounted to a lecture, expressed its concern that the elimination of parole in the 1980s has led to unwanted results. First, it has increased the average time served by all federal prisoners from under 15 months to more than 37 months. Second, it means that defendants like Mr. Portillo, are required to serve lengthy sentences without any possibility of parole. This has two consequences “worth considering.” First, because defendants cannot earn parole they are not incentivized to follow prison regulations. Second, they are not incentivized to obtain an education and participate in rehabilitative programs with a goal of earning parole release.

CA2’s decision can be found here.

In United States v Rasheed, CA2 affirmed defendant’s WDNY conviction for escape, rejecting defendant’s contentions that WDNY was not a proper venue, that statements by the district court alerting the jury that defendant was in custody denied him a fair trial, and that a standard risk notification condition of his supervised release that had been modified by a district-wide standing order was improper.

Defendant was sentenced to a 12-month prison term in 2015 for violating the conditions of supervised release. He was initially incarcerated at the US Penitentiary Lee in Jonesville, Virginia. In 2016 he became eligible to serve the remainder of his sentence in a residential reentry center. He was approved to serve it at a reentry facility in Rochester, New York, and was granted an unaccompanied furlough to travel there from USP Lee. He was released for that purpose but did not arrive in Rochester. Eight months after he failed to report, he was arrested in Pennsylvania for his involvement in a fatal shooting. He eventually pleaded guilty in Pennsylvania State Court to murder and other charges.

He was indicted by a WDNY grand jury for escape. At trial and on appeal, defendant argued that WDNY was not a proper venue, because he was never in WDNY and no crime was committed there. The district court and CA2 disagreed. Here, where defendant was accused in essence of failing to appear at a designated facility, the general rule applied: where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime. The terms of defendant’s confinement required him to report to Rochester, New York by a designated time on March 2, 2016. His failure to appear there as required constituted an escape from the custody of the Attorney General under 18 U.S.C. §§ 751(a) and 4082.

CA2 rejected defendant’s contention that the district court’s statements to the jury during jury selection that he was in custody denied him a fair trial and warranted a mistrial. The district judge initially informed the panel of prospective jurors that defendant “was in custody” and “in prison” because he “had committed a crime, a felony.” The judge later drew the jurors’ attention to the United States Deputy Marshal standing near defendant in the courtroom, confirming that the Deputy Marshal was there because defendant “is in custody.” The judge followed each of these remarks with an instruction that defendant’s custodial status should have no bearing on the verdict.

CA2 found that, despite the court’s intentions, the court should not have told the jury that defendant was in custody, even if its intent was to prevent the jury from speculating about that fact. It was also wrong to make those statements without first consulting the parties. Nonetheless, CA2 found that it was not an abuse of discretion to deny defendant’s motion for a mistrial, because each statement was followed by an unambiguous instruction that custody was not a permissible basis from which the jury could infer guilt.

CA2 also rejected defendant’s challenges to three conditions of supervised release. He challenged two conditions requiring him to undergo substance abuse and mental health programming, because he was required to contribute to the cost of those services. Defendant argued that the court should not have imposed such a requirement without first assessing whether he was able to pay for those costs. CA2 found that, because the contribution requirement was silent on the issue of how defendant’s contribution was to be calculated, the requirement was contingent upon a finding that he was able to pay and therefore appropriate.

Defendant also challenged the standard risk-notification condition, which was later altered by a district-wide order, modifying it to require defendant to notify a third party that he “pose[s] a risk of committing further crimes against another person” if “the court determines in consultation with [the] probation officer” that he poses such a risk and if required by the probation officer. CA2 found that defendant’s claim was not yet ripe for review because any improper delegation of discretion might not ever occur.

CA2’s decision can be found here.

In United States v. Tsastsin, in a summary order, CA2 affirmed SDNY Judge Lewis A. Kaplan’s denial of defendant’s motion for an accounting of funds seized by the government pursuant to a forfeiture order.

Defendant and several codefendants were convicted of crimes perpetrated in Estonia. In 2014, the district court entered a forfeiture order transferring title of several specified bank accounts to the Government. Defendant agreed, as part of his plea agreement, to a money judgment forfeiting $2,500,000 to the Government. To date, the Government has collected nearly $2.2 million from the subject accounts. Defendant, who has since completed his sentence and expects to be deported to Estonia, moved for an order requiring the Government to provide him with a “detailed accounting of all funds seized to date, specifically including the amounts and account numbers.”

The district court denied the motion and CA2 affirmed. There is no legal authority requiring an accounting. Defendant’s motion requested the accounting so that he could discern whether the Government’s calculation of $2.2 million was accurate. Defendant, however, did not explain what right he had to that information or what he would do with it. Defendant has no property interest in the subject accounts and cannot use them to satisfy his money judgment.

Therefore, having no legal basis or equitable reason to grant defendant’s motion, the district court did not abuse its discretion in denying it.

CA2’s decision can be found here.

New York Court of Appeals

In People v. Edwards, in a 6-1 memorandum decision, with a dissent from Judge Wilson, NYCA affirmed AD3’s decision reinstating a Schenectady County indictment that had charged defendant with two counts of depraved indifference reckless first-degree assault.

There was evidence before the Grand Jury that, in order to evade the police, defendant, who was legally intoxicated, fled down a local road with two passengers at a speed of at least 119 miles per hour—more than three times the speed limit. Defendant then abruptly swerved across the lanes of oncoming traffic into a parking lot and crashed into a wall. NYCA found that, viewing the  evidence in the light most favorable to the People, the Grand Jury could have rationally found that defendant “recklessly engaged in conduct that created a grave risk of death to [his passengers], with an utter disregard for whether any harm came to th[em].”

Judge Wilson would have found that the defendant’s conduct did not reflect the “wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts” needed to satisfy the depraved indifference standard.

NYCA’s decision can be found here.

In People v. Lendof-Gonzalez, NYCA in a 4-3 decision, affirmed AD4’s reversal of defendant’s Niagara County attempted murder conviction because the evidence was insufficient. The evidence failed to prove that defendant and his confederate took any actual step toward accomplishing defendant’s plan to kill his wife and mother-in-law beyond mere conversations and planning. Writing for the majority, Judge Feinman held that defendant’s actions were merely preparatory, and did not take any actual steps toward furthering the murder beyond scheming.

Writing for the dissent, Judge Rivera would have held the evidence sufficient to prove attempt. Defendant provided the informant with the names and address of the intended victims, the location of the keys to enter their home and directions on how and when to accomplish the crimes, as well as a financial incentive for committing the murders.

NYCA’s decision can be found here.

Appellate Division, Second Department

In People v. Duncan, AD2 reversed defendant’s Kings County attempted first-degree rape conviction, finding that the Supreme Court erroneously permitted the People to introduce evidence of defendant’s 1990 convictions for rape and assault.

Supreme Court allowed the People to present Molineux evidence at trial pertaining to the defendant’s convictions for a robbery and sexual assault in 1990 under the identity exception. This exception “is used in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged.”

AD2 found that the similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant’s identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual.

AD2’s decision can be found here.

In People v. Powell, AD2 granted defendant’s application for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel, finding that appellate counsel was ineffective for failing to raise an O’Rama challenge in connection with the handling of a jury note on defendant’s appeal from his Kings County second-degree murder conviction.

The People conceded that the trial court did not comply with the CPL 310.30 procedures for handling a jury note as set forth in People v. O’Rama, 78 N.Y.2d 270 (1991). AD2 found that there was no strategic reason for failing to raise this issue, which would have resulted in reversal for defendant.

AD2’s decision can be found here.

In People v. Walker, AD2 affirmed in part and reversed in part, defendant’s Kings County convictions, affirming defendant’s second-degree murder conviction, but reversing his attempted second-degree murder conviction, finding that there was inadequate evidence to support the contention that, after defendant had killed the victim, he attempted to kill an eyewitness.

The defendant’s conviction of attempted murder was based solely on the eyewitness’s testimony that, after his brother was shot, the eyewitness moved toward the defendant and the defendant shot at him three times but missed. There was no evidence regarding the circumstances surrounding the conduct on which the attempted murder charge was based, including whether the defendant was facing the eyewitness when he fired the shots, whether the defendant was standing still or walking or running away, or where he was aiming the gun. In the absence of such facts, the People did not prove, beyond a reasonable doubt, that the defendant acted with intent to cause the eyewitness’s death.

AD2’s decision can be found here.

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