Ed Sapone’s DECISIONS OF THE WEEK -November 22, 2019

Ed Sapone’s DECISIONS OF THE WEEK -November 22, 2019

| Nov 22, 2019 | Ed Sapone’s Decisions of the Week

Despite a handful of decisions from the Circuit this week, not much news. In its only precedential opinion in Albarran, CA2 affirmed the denial of what appears to have been a garden variety plea-withdrawal motion.

The state appellate courts were busy, with reversals in each of the four departments, and an interesting, though unhelpful, decision from the Court of Appeals on the power of a court to assess the adequacy of bail bonds in People ex rel. Prieston v. Nassau County Sheriff’s Department.

Second Circuit

On Friday, in United States v. Albarran and Vasquez, CA2 affirmed: (1) defendant Vasquez’s 151-month prison sentence following his conviction, in the District of Connecticut, for conspiracy to distribute heroin, rejecting his substantive reasonableness challenge; and (2) the denial of defendant Albarran’s motion to withdraw his guilty plea to conspiracy to distribute heroin and possession of a firearm in furtherance of a drug trafficking crime. CA2 found that the district court did not abuse its discretion when it concluded that Albarran’s post-plea claim of innocence did not warrant vacating his guilty plea.

At sentencing, Vasquez did not object to the district court’s calculation of his Guidelines range (121 to 151 months). In imposing the 151-month sentence, the district court balanced the fact that Vasquez was a leader in the heroin-trafficking conspiracy with Vasquez’s difficult early life, during which he experienced abuse and homelessness, and his relatively short criminal history.

CA2 found that, although Vasquez’s childhood was undoubtedly searing, as an adult he led an extensive heroin trafficking conspiracy for more than one year. It found

that the district court had reasonably weighed the gravity of Vasquez’s leadership in the conspiracy against his history and characteristics. It also identified and considered Vasquez’s mitigating circumstances: his “low” criminal history category, his troubled upbringing, and his “own struggles with substance abuse.” Although different judges might have assessed the factors differently, CA2 held that the district court did not abuse its discretion in reaching the result that it did.

As for Albarran’s plea-withdrawal claim, he contended that the factual basis for his plea was undermined by an investigator’s report showing that he had no association with the premises where he was alleged to have constructively possessed contraband. By way of background, phone calls intercepted by the DEA revealed that Albarran, Vasquez’s half‐brother, was involved in Vasquez’s heroin distribution conspiracy. Agents surveilling Albarran saw him in the immediate vicinity of 501 Blatchley Avenue, a three‐unit residential building. A search warrant for those premises uncovered substantial additional evidence of criminal activity related to the drug trade: cocaine, heroin, and marijuana; three scales; drug packaging materials; a kilogram press; bullets; drug ledger sheets; cash in the amount of roughly $21,000; and two firearms. A credit card bill bearing Albarran’s name and addressed to him at a location other than 501 Blatchley was found in the apartment’s bedroom.

As the case proceeded towards trial, a Frye hearing was held, to ensure that counsel had fully communicated the government’s plea offer to Albarran. See Missouri v. Frye, 566 US 134 (2012). Albarran later changed his mind and agreed to plead guilty, admitting that he’d possessed the two firearms and related ammunition. At the change of plea hearing, the district judge highlighted and explained the concept of constructive possession, pointing out that the plea rested on constructive rather than actual possession.

Before sentencing, an investigator hired by Albarran produced a report stating that, at the time of his arrest, Albarran had not resided at 501 Blatchley, and that a resident of 501 Blatchley recanted a prior claim that Albarran resided there. Albarran then moved to withdraw his guilty plea because he was factually innocent, and had maintained that to his attorneys from the beginning of the case.

CA2 found that the district court properly exercised its discretion when it denied the plea-withdrawal motion. The evidence to connect Albarran to 501 Blatchley was sufficient to support the plea to the firearm possession count: Albarran himself had told a pretrial services officer shortly after his arrest that it was his permanent address; one of Albarran’s credit card bills was found there; a witness had reported that Albarran was regularly at the building, even though she later recanted; and Albarran had admitted constructive possession at the plea hearing. The fact that an

investigator’s report later suggested that it was not Albarron’s principal residence did not eliminate any connection to the 501 Blatchley address. Those facts, combined with the fact that Albarron had delayed four months before filing the plea-withdrawal motion, were more than adequate reasons to deny the motion.

The Circuit’s decision can be found here.

On Friday, in United States v. Ndaula, in a summary order, CA2 remanded for resentencing. EDNY Judge Sterling Johnson, Jr., had sentenced defendant on a VOSR to two years’ imprisonment to be followed by a further two years of supervised release. In remanding the case, CA2 found that the sentence imposed exceeded the maximum sentence for the underlying offense.

18 USC § 3583(h) provides that the length of a post-revocation term of supervised release “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” The defendant was originally convicted of two federal Class C felonies, each of which carried a maximum three-year term of supervised release. The district court imposed a four-year post-revocation sentence—i.e., two years of imprisonment followed by an additional two years of supervised release. That four-year aggregate sentence exceeded the three-year maximum allowed by 18 USC § 3583(h).

The Circuit’s decision can be found here.

On Tuesday, in Lopez v. United States, in a summary order, CA2 affirmed the order of SDNY Judge Paul Crotty denying defendant’s § 2255 motion. Defendant had, among other things, challenged his attorney’s performance on the grounds that his ongoing disciplinary proceedings presented an actual conflict of interest that defendant did not knowingly waive at his Curcio hearing.

CA2 found that defendant’s attorney’s disciplinary proceeding, pending during his representation of defendant in the proceedings below, did not present an actual conflict of interest. There was nothing in the record to indicate that either the government or the trial court had any knowledge of what are typically confidential proceedings. But even if they did, the disciplinary proceedings did not hamper the representation that defendant received. CA2 found that an unrelated disciplinary

proceeding may have in fact “provided an incentive for the vigorous efforts [counsel] appears to have expended.”

At best, the disciplinary proceedings presented a potential conflict, which would have required defendant to show that counsel’s actions fell below an objective standard of reasonableness and that but for counsel’s errors, the result would have been different. This, defendant did not do.

The Circuit’s decision can be found here.

On Wednesday, in United States v. Rosario, in a summary order, CA2 remanded defendant’s SDNY conviction and sentence for a Jacobson inquiry, finding that the $5,000 special assessment imposed by Judge William H. Pauley III, pursuant to the Justice for Victims of Trafficking Act (JVTA), was not factually supported, because it was unclear whether defendant was indigent.

18 U.S.C. § 3014(a) requires that any “non‐indigent” offender’s sentence include a $5,000 JVTA assessment. Defendant argued that the assessment should not have been imposed. Among other things, defendant cited the fact that he was assigned counsel, as evidence he was indigent. Because the record was unclear why and how the district court determined that defendant was not indigent, a remand was necessary.

The Circuit’s decision can be found here.

In United States v. Lemay, in a summary order, CA2 affirmed the judgment convicting defendant, following a guilty plea, of conspiracy to commit sex trafficking of a minor, and the 120-month sentence imposed by EDNY Judge Pamela K. Chen. CA2 rejected defendant’s contention that the judge impermissibly participated in the plea negotiation process in violation of Rule 11.

The underlying conduct involved defendant’s transportation of her eight-year old grandson to a hotel with the intent that he be molested for the sexual gratification of a man she’d met online. During the change of plea hearing, at a sidebar conference before defendant entered the courtroom, the judge expressed reservations about the legal sufficiency of a the proposed plea agreement and discussed ideas about how to navigate the allocution. Defendant intended to plead guilty to a superseding indictment which charged the offense of attempted sex trafficking of a child in

violation of 18 U.S.C. §§ 1594(a) and 1591(b)(1) and which carried a 15-year mandatory minimum prison term. As part of the plea agreement, the parties planned to have defendant allocute to the elements in such a way that defendant would be subject to only § 1591(b)(2)’s 10-year mandatory minimum. After the defendant entered the room, the court again addressed with counsel ideas about how to navigate the allocution.

CA2 found that the court’s actions were permissible because they were not directed at coercing a plea, but instead ensuring that the plea would be legally sufficient. The court’s statements were directed only at the lawyers at sidebar, and in the context of advising the lawyers about the legal sufficiency of the plea.

The Circuit’s decision can be found here.

New York Court of Appeals

On Thursday, in People ex rel. Prieston v. Nassau County Sheriff’s Department, in a unanimous decision, NYCA found that supreme court has the power, under CPL § 520.30(1), when conducting a bail sufficiency hearing, to review the collateral pledged on an insurance company bond, and to disapprove the bond on the grounds that it is insufficient to insure defendant’s return to court, even if the insurance company finds it sufficient.

NYCA’s decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Johnson, AD1 held this non-citizen defendant’s appeal in abeyance, and remanded to New York County Supreme Court, for a hearing to determine whether defendant was prejudiced by his attorney’s misadvice on the record during his guilty plea proceeding, that his guilty plea would only “most likely” lead to his deportation, when deportation would be a mandatory consequence of his guilty plea to criminal possession of a controlled substance in the third degree, an aggravated felony under federal immigration law.

AD1’s decision can be found here.

On Thursday, in People v. Delacruz, AD1 reversed defendant’s New York County attempted gang assault in the second degree conviction, finding that attempted gang assault in the second degree is a legal impossibility for trial purposes, because a person cannot attempt to cause an unintended result. Second-degree gang assault involves the intended result of physical injury and the unintended result of serious physical injury.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Steele-Warrick, AD2 reversed defendant’s Queens County first-degree assault conviction, finding that her guilty plea was unknowing because the plea allocution did not make out the elements of the offense.

Assault in the first degree requires an intent to inflict serious physical injury and conduct which in fact causes serious physical injury. During the plea colloquy, supreme court stated, and the defendant admitted, that the elements of assault in the first degree included an intent only to inflict physical injury and conduct which in fact causes physical injury. Because defendant admitted to an intent and to inflicting an injury other than those required for the commission of assault in the first degree, the plea allocution failed to make out the requisite elements of that crime.

AD2’s decision can be found here.

Appellate Division, Third Deparment

On Thursday, in People v. Colon, AD3 reversed defendant’s Albany County conviction for criminal possession of a controlled substance in the second and third degrees, finding that defendant’s trial should have been severed from his co-defendant’s.

Defendant was in the front passenger seat of a car operated by his co-defendant Maldonado, when that car was stopped by State Police for failure to signal a lane change. During the traffic stop, defendant voluntarily surrendered a quantity of marihuana. Thereafter, following a search of the vehicle, more than four ounces of cocaine were discovered. Defendant and Maldonado were jointly charged with criminal possession of a controlled substance in the second degree and criminal

possession of a controlled substance in the third degree, and defendant was additionally charged with unlawful possession of marihuana. Defendant timely moved for a severance.

Through counsel and by testifying on his own behalf, Maldonado denied knowledge of the cocaine’s existence in his car and instead pointed the finger at defendant. He testified that defendant had brought a Bugles chip bag into the car in which the drugs were found, that he did not know the contents of that bag, that he would not have allowed the bag in his car if he did, and that defendant had his hands in the area where the bag was later discovered when the traffic stop was initiated. In contrast, defendant argued that he lacked knowledge of the cocaine’s presence in the car and that the cocaine must have belonged to Maldonado, given that it was found in Maldonado’s car and that Maldonado had a criminal history involving drug possession and distribution — a subject brought out during cross-examination of Maldonado. By seeking to implicate each other, defendant’s and Maldonado’s defenses were antagonistic, mutually exclusive and irreconcilable, and required severance.

AD3’s decision can be found here.

In People v Tromans, AD3 reversed defendant’s Albany County tampering with physical evidence conviction, but affirmed his leaving the scene of an incident without reporting conviction. AD3 found that the verdict finding that defendant had made repairs to his car in an attempt to conceal his involvement in the hit and run was against the weight of the evidence.

Although it could have been inferred that defendant believed that the vehicle or its damaged parts would be produced in an official proceeding against him, the evidence did not prove beyond a reasonable doubt that he suppressed the vehicle or its damage by concealment, alteration or destruction with the intent to prevent such production. Defendant did not hide or throw away the broken parts, which would have destroyed or concealed them, but left them near the vehicle. When bringing the damaged vehicle to show it to a friend who could order new parts, defendant drove on busy public highways during daylight hours. Defendant did not put the vehicle inside his parents’ three-bay garage or cover it in any way.

Although some people may attempt to repair a vehicle themselves in an effort to avoid detection, defendant testified that he and his father liked to work on cars, had

ordered parts through a friend to fix his sister’s car and had previously fixed one of defendant’s prior vehicles themselves after he had hit a deer.

Defendant also allowed his friend to copy the vehicle identification number and use it to obtain quotes on parts. This would be inconsistent with efforts to conceal the damage to the vehicle; indeed, the police were led to defendant because they contacted parts dealers and discovered that the friend had sought quotes on certain parts for this make and model of vehicle. When asked by a police officer, defendant told him where the vehicle was located. Defendant had not washed it, and the police were able to obtain samples of the victim’s DNA from the hood. Under those circumstances, AD3 concluded that the conviction for tampering with physical evidence was against the weight of the evidence

AD3’s decision can be found here.

In People v. Magnuson, AD3 reversed defendant’s Madison County convictions for burglary in the third degree, petit larcency and conspiracy in the fifth degree. According to AD3, the jury’s verdict convicting defendant of those counts was against the weight of the evidence. The convictions arose from what amounted to a series of shoplifts at a Walmart, from which defendants had been barred. Defendant was engaged in a scheme that involved falsely returning items to Walmart for refunds. While the evidence showed that some burglary counts were supported by evidence that defendant had entered the Walmart with intent to steal property, others were not supported, because defendant’s scheme involved returning some items that had actually been purchased.

AD3’s decision can be found here.

Appellate Division, Fourth Department

On Friday, in People v. Kierce, AD4 reversed defendant’s Onondaga County attempted third-degree robbery conviction, and, in People v. Laws, reversed defendant’s Wayne County third-degree robbery and forged instrument convictions. In each case, the waivers of indictment were jurisdictionally defective because they did not contain the approximate time of the offense.

This issue has been a frequent ground for guilty-plea reversals in the Third and Fourth Departments of late. See, e.g., People v. Colon-Colon, 169 A.D.3d 187 (4th

Dep’t 2019); People v. Titus, 171 A.D.3d 1256 (3d Dep’t 2019). This issue may be addressed by NYCA when it releases its decisions in People v. Thomas, Green, & Lang, likely in the next week or two.

AD4’s decision in Kierce can be found here and Laws here.

In People v. Hurlburt, AD4 reversed defendant’s Ontario County welfare fraud conviction, finding that theconviction was against the weight of the evidence because Penal Law article 158 welfare fraud does not apply to section 8 housing benefits, which were at issue in the case.

AD4’s decision can be found here.

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