OAD IN THE COURTS

Pending in the Court of Appeals

People v. Pedro Melendez

The question posed in People v. Pedro Melendez is whether the current pattern criminal jury instruction (CJI) for alibi violates People v. Victor, 62 N.Y.2d 374 (1984). In Victor, the Court of Appeals unanimously held that the “People have the burden of disproving an alibi beyond a reasonable doubt, and a Judge must unequivocally state that burden in the jury charge.” The Court reasoned that alibi must be treated as a defense that the prosecution must disprove beyond a reasonable doubt in order to “avoid confusion” and to “ensure that the jury understands that the People must always meet their burden of proving that the accused actually committed the crime,” even though the Penal Law does not group alibi with other such defenses. The alibi CJI for years included the language that the People must disprove an alibi beyond a reasonable doubt, but the current alibi CJI—which the court charged at Mr. Melendez's trial—does not. After sending out a deadlock note, the jury acquitted Mr. Melendez of thirteen of the fourteen charges against him. Mr. Melendez argues that the trial court's failure to abide by Victor's seemingly express mandate violated his right to have the prosecution prove his guilt beyond a reasonable doubt, especially since the trial prosecutor's summation was improperly targeted at denigrating Mr. Melendez's alibi defense.

Mr. Melendez is represented by Staff Attorney Lisa A. Packard.

People v. Elijah Cummings

The important question presented by this case is just how broadly the term “dwelling” in the second-degree burglary statute may be interpreted. Elijah Cummings was convicted of second-degree burglary, and other offenses, for allegedly entering a police precinct and then being found in possession of a bag containing items that had been removed from several police officers’ lockers. Because the police precinct had a room with cots where officers would occasionally spend the night, the trial court permitted the precinct to be deemed a “dwelling,” rather than just a building, thus elevating the offense to second-degree burglary. The specific issue before the Court of Appeals is whether Mr. Cummings was denied the effective assistance of counsel by his trial attorney’s failure to move for dismissal of the second-degree burglary count with which Mr. Cummings was charged, where this charge was based on the mischaracterization of a police precinct as a “dwelling” for purposes of the burglary statute. Mr. Cummings argues that, where the prosecution improperly relied on this characterization to establish a critical element of the charge, which raised the offense from the non-violent felony of third-degree burglary to the violent felony of second-degree burglary, the consequences of counsel’s failure to move for dismissal were severe.

Judge Victoria A. Graffeo granted Mr. Cummings leave to appeal.

Mr. Cummings is represented by Supervising Attorney Eunice C. Lee.

People v. Reginald Rabb

People v. Reginald Rabb raises an important question of first impression in the Court of Appeals: whether the exhaustion or "necessity" showing required pursuant to Criminal Procedure Law § 700.15(4), before the government may obtain an eavesdropping warrant, may be satisfied by allegations that “normal investigative procedures” have been unsuccessfully tried in connection with an investigation involving different suspects and crimes. Specifically, the issue in this case is whether the authorities could properly obtain an eavesdropping warrant against Reginald Rabb based on the assertion that, after three years investigating other individuals suspected of similar type crimes (construction site extortion), the authorities had concluded that normal investigative measures would no longer be sufficient. Our position is that because these were separate investigations, the government had to make a specific showing of necessity as to Mr. Rabb.

After the lower court denied Mr. Rabb’s motion to suppress the wiretaps based upon the insufficient warrant application, Mr. Rabb pleaded guilty to enterprise corruption, and is serving a sentence of 8˝ to 17 years. Leave to appeal to the Court of Appeals was granted by Judge Victoria A. Graffeo. The case will be argued in the Fall of 2010.

Mr. Rabb is represented by former Senior Staff Attorney Kerry Jamieson.

People v. Tashiem Bayard

The question posed in People v. Tashiem Bayard is whether, in an eyewitness identification case, where there are multiple eyewitnesses, yet only one witness testifies at trial, a police report which contains a narrative and subject description uncorroborated by the single testifying witnesses, can, as a legal matter, be deemed to have no exculpatory or impeachment value under Brady; and if not, whether the prosecution’s failure to memorialize the source of the evidence can constitute a violation under Brady v. Maryland, 373 U.S. 83 (1963). Mr. Bayard was accused of robbing three men on Manhattan’s Upper West Side in June 2004. Only one of the complainants testified at trial. Defense counsel sought to cross-examine the complainant with, and to introduce into evidence, a police report, which contained information that was not corroborated by the single testifying witness. However, there was no signature on the report, so the court deemed the document inadmissible hearsay. Mr. Bayard was convicted of robbery in the first and second degrees and sentenced to concurrent determinate terms of seven and five years imprisonment. On direct appeal, the Appellate Division affirmed Mr. Bayard’s conviction, reasoning that – as a threshold matter -- the report did not fall under Brady, because it “had little or no impeachment or other exculpatory value.” The court further noted, “[w]e need not decide whether, in the case of genuinely exculpatory evidence in the People’s possession, the People’s failure to memorialize the source of the evidence can constitute a Brady violation, or what would be an appropriate remedy.”

Mr. Bayard is represented by Senior Staff Attorney Anastasia Heeger.

People v. James Phillips

In People v. James Phillips, Mr. Phillips was charged with assaulting his wife. Before trial, the court held a hearing to determine whether 62-year old Mr. Phillips was competent to stand trial. As a result of a series of strokes causing extensive organic brain damage, Mr. Phillips suffers from a condition known as transcortical motor aphasia. This condition causes extreme cognitive disabilities, rendering Mr. Phillips barely able to communicate. It is not clear that he is able to understand complex questions or concepts, and it is very difficult for him to speak beyond single yes and no answers. All of the experts agreed that he suffers from organic brain damage affecting his cognition, and all agree his condition will never improve. In addition, all agreed that it would be virtually impossible for him to testify at a trial. Nevertheless, six months after initially being declared unfit to stand trail, the court found Mr. Phillips competent. The issue before the Court of Appeals is whether the court erred in finding him competent, and that, in so doing, employed an erroneous standard applicable to amnesiacs, but not appropriate for individuals with severe brain damage.

The Appellate Division affirmed Mr. Phillips’ conviction and 16-year sentence. Judge Eugene F. Pigott, Jr., granted leave to appeal to the Court of Appeals.

Former senior staff attorney Jessica A. Yager represented Mr. Phillips in the Appellate Division. Attorney-in-Charge Rick Greenberg represents Mr. Phillips in the Court of Appeals.

Pending Federal Habeas Corpus Petitions

Ivan Torres

This case, now pending in the United States District Court for the Southern District of New York, involves the issue of whether Mr. Torres was denied his constitutional right to the effective assistance of counsel by his attorney's failure to secure the suppression of an incriminating statement.

Following an early morning encounter between Mr. Torres and the complainant, who approached Mr. Torres in an effort to find an after-hours club, Mr. Torres was charged with robbery. Unable to determine whether the encounter was an attempted drug purchase gone wrong, a robbery of the complainant, or possibly something else, the jury at Mr. Torres's first trial deadlocked. At the second trial, the prosecution’s case was made stronger by the introduction of an incriminating statement allegedly made by Mr. Torres to the arresting officer. At the hearing to determine whether the statement would be admitted at the second trial, defense counsel, who admitted he was “not prepared” for the hearing, failed to impeach the officer who took the statement with his testimony from the first trial that the statement was elicited by questioning. Where such impeachment would have resulted in the suppression of the statement as the un-Mirandized product of custodial interrogation, counsel’s error denied Mr. Torres the effective assistance of counsel.

Although the Magistrate Judge issued a Report and Recommendation recommending granting Mr. Torres’s habeas petition, the District Court Judge denied Mr. Torres’s habeas petition on November 25, 2009. Mr. Torres’s motion seeking to appeal his case to the Second Circuit is now pending.

Mr. Torres is represented by OAD Supervising Attorney Eunice C. Lee

Michael Hilton

Michael Hilton was convicted of robbery in the third degree, which is classified as a non-violent felony under New York law, for a purse-snatching. Based on this conviction, Mr. Hilton was eligible for a minimum prison sentence of two to four years imprisonment, up to a maximum term of imprisonment of three and one-half to seven years. Invoking New York’s “discretionary persistent” sentencing law, however, the trial judge sentenced Mr. Hilton to an “enhanced” prison term, of fifteen years to life. The “discretionary persistent” sentencing scheme can be used where an individual has been convicted of a felony and, at any time in the past, was convicted of two additional felonies of any sort. (This sentencing scheme is distinguished from New York’s “mandatory persistent” sentencing scheme, which applies when an individual is convicted of a violent felony and had been, within the prior ten years, convicted of two additional violent felonies. Like a discretionary persistent sentence enhancement, a violent persistent sentence enhancement results in a prison sentence with a maximum term of life. Given that Mr. Hilton was convicted of a non-violent felony, he could not be sentenced under the “mandatory persistent” scheme.)

Michael Hilton’s challenge to his discretionary persistent sentence is based on United States Supreme Court precedents which hold that an individual may not be sentenced to an enhanced sentence which relies on judicial factfinding. In the case of New York’s “discretionary persistent” sentencing law, an enhanced sentence may only be imposed where the sentencing judge makes a factual finding that the defendant’s history and character and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest. Mr. Hilton contends that the judicial factfinding required by New York’s discretionary persistent sentencing scheme makes imposition of an enhanced discretionary persistent sentence unconstitutional. In March 2010, the United States Court of Appeals for the Second Circuit issued a decision, Besser v. Walsh, holding that the discretionary persistent sentencing scheme is, in fact, unconstitutional. Mr. Hilton seeks application of this rule to his case. Mr. Hilton’s petition for a writ of habeas corpus is pending before the United States District Court for the Southern District of New York.

Mr. Hilton is represented by OAD Supervising Attorney Sara Gurwitch, and former OAD Senior Attorney Alexis Agathocleous, now with the Center for Constitutional Rights.

Edwin Maldonado

This habeas corpus proceeding raises a constitutional issue of ineffective assistance of counsel. Edwin Maldonado was charged with robbery, and placed in a line-up. Mr. Maldonado was the only person in the line-up wearing a blue shirt. Even though this characteristic made him stand out from the line-up fillers, the judge determined pre-trial that the line-up was not unduly suggestive because, according to the testifying police officer, the complainant, who did not testify at the pre-trial suppression hearing, had described the perpetrator as wearing a red shirt. But, during the complainant's trial testimony, it came out that she had described the perpetrator as wearing a blue shirt. Once this testimony was disclosed, defense counsel should have made a motion to re-open the suppression hearing, but failed to do so. Had the motion to suppress been re-opened, the line-up likely would have been suppressed. And without this critical evidence, Mr. Maldonado would likely have been acquitted. Thus, defense counsel's error in failing to move to re-open the suppression hearing irreparably prejudiced Mr. Maldonado and constituted ineffective assistance of counsel.

Edwin Maldonado's habeas petition is currently pending in the United States District Court for the Southern District of New York.

Mr. Maldonado is represented by OAD Attorney-in-Charge Richard M. Greenberg

Jerome Mack

Jerome Mack was convicted of criminal possession of a weapon based on a statement he made to the police after being taken to the precinct and interrogated without being read his Miranda rights. The only other evidence against him was the testimony of a witness named “Cash” who the defense believed was the actual possessor of the gun. While, at trial, the prosecution portrayed Cash as having a minor criminal record, OAD attorneys discovered that the witness was, in fact, a gang member who had committed at least one violent gang-related gun crime resulting in the death of a livery cab driver. Although prosecutors knew of Cash's involvement in that crime, he was never prosecuted.

At issue is whether the use of Mr. Mack’s un-Mirandized statement violated his Fifth and Fourteenth Amendment rights, and whether the government's failure to disclose Cash’s violent criminal history violated Mr. Mack's rights to due process of law.

Mr. Mack’s petition is currently pending in the United States District Court for the Southern District of New York.

Mr. Mack is represented by Former OAD Senior Staff Attorney Brian Stull and Attorney-in-Charge Richard M. Greenberg.

Jermaine Cook

Jermaine Cook’s habeas petition deals with the Sixth Amendment right to trial by jury, specifically the right to a jury which the defendant participated in choosing. After a lengthy presentation of evidence on serious robbery and weapons charges, the jury at Mr. Cook’s trial deliberated for a number of days before a difficulty arose: a juror had a planned business trip that she would have to miss or postpone if the jury was to continue deliberating. Rather than force the juror to continue deliberating, the judge declared a mistrial, over defense objection. A new jury was selected and ultimately convicted Mr. Cook. Mr. Cook asserts that, given the importance of the Sixth Amendment right to trial by jury, his constitutional rights were violated when the judge aborted the first trial over his objection due to a juror’s planned business trip. Mr. Cook’s petition for a writ of habeas corpus is pending before the United States District Court for the Southern District of New York.

Mr. Cook is represented by Volunteer Appellate Defender Kelly Librera, of Dewey & LeBoeuf, and OAD Supervising Attorney Sara Gurwitch.

Stephen Jacks

Stephen Jacks is challenging his conviction, which is the result of a guilty plea, where his guilty plea was the product of coercive conditions of confinement. Prior to pleading guilty, Mr. Jacks, a middle-aged man who suffers from a number of health problems, was being confined at Riker’s Island. While Mr. Jacks had never attempted escape or sought to harm anyone while at Riker’s, the judge imposed extraordinary and punitive conditions, including denying him the wheelchair that had been ordered by medical personnel, forbidding him from having any writing implement other than a crayon, denying him access to the jail commissary, and denying him access to his attorney (both in person and by telephone) unless he received special permission from a court-appointed “special master.” Unable to withstand these conditions, Mr. Jacks cut the proceedings short by pleading guilty. It was only by doing so that Mr. Jacks was able to leave Riker’s Island – for transfer to an upstate New York State prison – and escape the conditions imposed by the trial judge. Mr. Jacks challenges these conditions as unlawful punishment prior to any conviction. Further, he asserts that his guilty plea was unconstitutionally obtained, as it was the result of the coercive conditions of confinement. Mr. Jacks’s petition for a writ of habeas corpus is currently pending before a United States Magistrate Judge, on referral from the District Court Judge.

Mr. Jacks is represented by OAD Supervising Attorney Sara Gurwitch.

Patrick McDowell

Patrick McDowell was convicted of robbery in the third degree, which is classified as a non-violent felony under New York law, for a daytime robbery in a park. Based on this conviction, Mr. McDowell was eligible for a minimum prison sentence of two to four years imprisonment, up to a maximum term of imprisonment of three and one-half to seven years. Invoking New York’s “discretionary persistent” sentencing law, however, the trial judge sentenced Mr. McDowell to an “enhanced” prison term, of fifteen years to life. The “discretionary persistent” sentencing scheme can be used where an individual has been convicted of a felony and, at any time in the past, was convicted of two additional felonies of any sort. (This sentencing scheme is distinguished from New York’s “mandatory persistent” sentencing scheme, which applies when an individual is convicted of a violent felony and had been, within the prior ten years, convicted of two additional violent felonies. Like a discretionary persistent sentence enhancement, a violent persistent sentence enhancement results in a prison sentence with a maximum term of life. Given that Mr. McDowell was convicted of a non-violent felony, he could not be sentenced under the “mandatory persistent” scheme.)

Patrick McDowell’s challenge to his discretionary persistent sentence is based on United States Supreme Court precedents which hold that an individual may not be sentenced to an enhanced sentence which relies on judicial factfinding. In the case of New York’s “discretionary persistent” sentencing law, an enhanced sentence may only be imposed where the sentencing judge makes a factual finding that the defendant’s history and character and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest. Mr. McDowell contends that the judicial factfinding required by New York’s discretionary persistent sentencing scheme makes imposition of an enhanced discretionary persistent sentence unconstitutional. In March 2010, the United States Court of Appeals for the Second Circuit issued a decision, Besser v. Walsh, holding that the discretionary persistent sentencing scheme is, in fact, unconstitutional. Mr. McDowell seeks application of this rule to his case. Mr. McDowell’s petition for a writ of habeas corpus is currently pending before a United States Magistrate Judge, on referral from the District Court Judge.

Mr. McDowell is represented by Volunteer Appellate Defender George Mastoris, of Dewey & LeBoeuf, and OAD Supervising Attorney Sara Gurwitch.

Neville Wells

Neville Wells was convicted of second degree “depraved indifference” murder and first degree “depraved indifference” assault (along with other lesser offenses that are not contested) based upon a fatal drunk driving accident. Over the past several years, the New York Court of Appeals has re-interpreted New York’s “depraved indifference” offenses, holding that “depraved indifference” requires a culpable mental state, not simply reckless behavior. Under New York’s Penal Law, a defendant can present evidence of intoxication when it is relevant to negate the culpable mental state required for the charged crime. Neville Wells’s habeas corpus petition presents the issue of whether he was deprived of his federal constitutional right to present a defense where the trial court, at his trial before a judge sitting without a jury, refused to permit evidence that Neville Wells’s extreme intoxication at the time of the accident negated the culpable mental state required for “depraved indifference” murder and “depraved indifference” assault. Mr. Wells’s case is pending before the United States District Court for the Southern District of New York.

Mr. Wells is represented by OAD Supervising Attorney Joseph Nursey.