OAD IN THE COURTS

Pending in the Appellate Division, First Department

Arguments take place at the New York Supreme Court, Appellate Division, First Department (27 Madison Avenue at 25th Street). The calendar is called at 2:00 p.m., except Fridays, when it is called at 10 a.m. Arguments are open to the public. We welcome visitors to observe arguments by OAD attorneys.


JUNE TERM

CASE NAME: People v. McMath

CASE NAME: People v. Davis

CASE NAME: People v. Cook

CASE NAME: People v. Delesline

CASE NAME: People v. Council

CASE NAME: People v. Hylton

CASE NAME: People v. Pacheco

CASE NAME: People v. Susankar

CASE NAME: People v. Ramnarain

CASE NAME: People v. Hill

CASE NAME: People v. Cazares

CASE NAME: People v. Tabares

CASE NAME: People v. Jacobs


MAY TERM

CASE NAME: People v. Noka

CASE NAME: People v. Gilford

CASE NAME: People v. Torres

CASE NAME: People v. McDowell

CASE NAME: People v. Irizarry

CASE NAME: People v. Bonilla



Pending in the Court of Appeals

People v. Sheldon Ennis

Sheldon Ennis was tried with his co-defendant brother, Aaron, on a drug conspiracy and two assaults, among other charges. One of the assaults involved a shooting incident, in which it was alleged that both Ennis brothers shot from the street at the victim as he drove by in a car. Unbeknownst to Sheldon, Aaron appeared at a pre-trial proffer session with prosecutors in an unsuccessful attempt to cooperate. Near the end of the trial, Aaron's attorney told Sheldon's attorney that in that session, Aaron informed the DA that he, Aaron, had committed the shooting assault, but that Sheldon and had nothing to do with it. However, Aaron's attorney gave Sheldon's attorney this information on the condition that Sheldon's attorney not disclose this to anyone (including Sheldon) until after the trial.

After the verdict of conviction on all charges Sheldon's attorney filed a motion to set aside the verdict, alleging this new information and claiming that the prosecution committed a Brady violation by not disclosing it. The court denied the motion, holding that, while the DA should have disclosed the information, there was no Brady violation, since Sheldon's attorney had the information during trial and had made a "strategic" decision not to use it. OAD's motion to vacate the judgment on Brady, ineffective assistance of counsel, and attorney conflict of interest grounds was denied, and the Appellate Division affirmed. Chief Judge Judith S. Kaye has granted leave to appeal to the Court of Appeals. The case will be argued in the fall.

Sheldon Ennis was represented by former Senior Staff Attorney Jonathan A. Marvinny, and is now represented by Attorney-in-Charge Richard M. Greenberg.

People v. Roman Baret

Roman Baret was charged with sale of a controlled substance. The prosecution made a "no-split" plea offer of probation to the co-defendant and two to six years incarceration to Mr. Baret. They both pleaded guilty. On the sentence date, with new counsel, Mr. Baret filed a written motion to withdraw his plea, claiming, in detail, that the co-defendant, who wanted the no-split probation offer, had threatened to harm him and his family if he didn't take the plea. The court denied the plea withdrawal motion without ever conducting a hearing on the allegations of threats. Ultimately, the court sentenced Mr. Baret to the term of two to six years in prison. On appeal, the Appellate Division, in a 3-2 decision, affirmed the conviction. Dissenting Justices George D. Marlow and Milton L. Williams agreed with our argument that the court should have at least held an evidentiary hearing on Mr. Baret's claim of coercion.

This case will be argued in the Court of Appeals in Spring 2008. The case is being handled by Attorney-in-Charge Richard M. Greenberg.

Click here to read the brief.

People v. John Malaussena

John Malaussena was convicted of second degree intentional murder for a homicide that occurred during an altercation in a bar, after Mr. Malaussena had been drinking very heavily for about eight hours. When John Malaussena heard that the police were looking for him, he appeared voluntarily at the police precinct, where he was interrogated by the police over a period of several hours. While initially John Malaussena was not held in police custody, after about two hours of interrogation, the police noticed what appeared to be a spot of blood on Mr. Malaussena's shoe. At that point the police decided to seize his clothing, and he was no longer free to leave. Even after placing Mr. Malaussena in custody, the police continued to interrogate him without reading his Miranda warnings. Only after Mr. Malaussena was in police custody for several hours did the police read him his Miranda warnings and obtained damaging statements. The primary issue before the Court of Appeals is whether the statements that the police obtained were the result of a continuous chain of interrogation, which included the period of interrogation without Miranda warnings.

The other significant issue before the Court of Appeals in John Malaussena's case is whether the trial court should have instructed the jury that while voluntary intoxication is not a defense to criminal activity, where an essential element of the crime of intentional murder is that the accused acted with intent, the jury could consider whether John Malaussena was too intoxicated to form the required intent. Although Mr. Malaussena's trial attorney asked for such a jury instruction on intoxication as it relates to intent, the trial court refused to give that instruction.

Senior Litigation Specialist Joseph M. Nursey represents Mr. Malaussena

People v. Jonathan Jenkins

Mr. Jenkins pleaded guilty, in February of 2000, to a single count of criminal sale of a controlled substance in the fifth degree. At the time of the plea, it was agreed that the Office of Special Narcotics Prosecutor would join a motion to dismiss the indictment if Mr. Jenkins completed a Drug Treatment Alternative to Prison rehabilitation program and satisfied several other requirements. After more than one and one-half years, Mr. Jenkins had accomplished everything that he had agreed to do – including completing drug treatment, acquiring vocational training, and maintaining gainful employment. Accordingly, the prosecution was required to honor its part of the bargain and join the motion to dismiss Mr. Jenkins’s indictment. However, the prosecution refused to join Mr. Jenkins’s motion based on purported violations of the plea agreement that occurred after the requirements of the bargain had been satisfied. Instead, the prosecution and the court added new conditions and stipulations that were not part of the original plea agreement. On appeal, a majority of the Justices of the Appellate Division, First Department, agreed with respondent that a court may unilaterally rescind a plea agreement based on subsequent events, and that Mr. Jenkins had waived his right to have the terms of the plea bargain specifically enforced. Justices Peter Tom and David B. Saxe dissented on the grounds that Mr. Jenkins had complied with all the requirements of the plea bargain, that he had not waived his rights under the plea bargain, and that the prosecution was required to join in Mr. Jenkins’s motion to vacate the plea and dismiss the indictment. Justice Peter Tom granted Jonathan Jenkins leave to appeal to the Court of Appeals.

Senior Staff Attorney Margaret Knight represents Jonathan Jenkins


Pending Federal Habeas Corpus Petitions

CASE NAME: Terence Wells v. Thomas Ricks

This case addresses the right to have a fair and impartial jury, selected without racial prejudice. At Mr. Wells’s murder trial, the defense challenged the prosecution’s use of peremptory challenges to remove all Black prospective jurors from the jury panel. When the prosecutor was required to provide explanations for this pattern of exercising peremptory challenges, she offered rationales for challenging Black prospective jurors that were not applied to White prospective jurors who had the same characteristics. And especially troublingly is that the prosecutor said that she challenged one Black prospective juror because the prospective juror reminded the prosecutor of a named Black judge.

Another issue relating to the fairness of the jury and the jury selection process is the trial court’s refusal to excuse a panel of prospective jurors after its members heard comments from a member of the panel attesting to the honesty of one of the key prosecution witnesses. While the panel member who made the statement was not seated as a juror, defense counsel argued that the other prospective jurors who heard the endorsement of the prosecution witness’s honesty were tainted and should be dismissed.

After the state courts rejected both of Mr. Wells’s claims dealing with the fairness of the jury selection process at his trial, volunteer attorneys from Dewey & LeBoeuf agreed to represent Mr. Wells pro bono on a federal habeas petition. Along with OAD Supervising Attorney Sara Gurwitch, Kelly Librera, Richard Shutran, and Lisa Card of Dewey & LeBoeuf are representing Mr. Wells. The Magistrate Judge conducted a hearing in the case in February 2008, and we are currently waiting for a decision from the District Court Judge.

CASE NAME: Michael Hilton v. William Brown, Superintendent, Eastern Correctional Facility

This habeas proceeding, now before the United States District Court for the Southern District of New York, challenges the constitutionality of New York's discretionary persistent felony offender sentencing scheme.

Michael Hilton was convicted in Supreme Court, New York County, of one count of robbery in the third degree after snatching a purse and fleeing the scene. The maximum sentence Mr. Hilton would ordinarily have faced for this non-violent Class D conviction was three and one half to seven years imprisonment. However, under New York's discretionary persistent felony offender sentencing scheme, a court may impose an enhanced sentence if a defendant has two prior felony convictions and if the court is "of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest." N.Y. Penal Law § 70.10(2). After a hearing, and pursuant to this provision, the court sentenced Mr. Hilton to an indeterminate term of 15 years to life imprisonment

Mr. Hilton argues that New York's discretionary persistent statute violates the Sixth Amendment because it allowed the judge to impose a punishment greater than that authorized by the jury's verdict alone, based on special factual findings. Mr. Hilton relies on the Supreme Court's seminal decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and their progeny.

Status: The case is fully briefed before the United States District Court for the Southern District of New York.

CASE NAME: James Besser v. James Walsh, Superintendent, Sullivan Correctional Facility

This habeas proceeding, now on appeal to the United States Court of Appeals for the Second Circuit, challenges the constitutionality of New York's discretionary persistent felony offender sentencing scheme.

James Besser was tried and convicted in Supreme Court, New York County, of the crime of enterprise corruption. Mr. Besser was alleged to have furthered the affairs of a criminal enterprise - the "Columbo crime family" - by participating in a "pattern of criminal activity" by committing three designated criminal acts, to wit, robbery in the first degree (forcibly stealing proceeds from a supermarket), grand larceny in the second degree (extorting protection money from a supermarket), and grand larceny in the third degree (passing bad checks to the supermarket owner).

Rather than sentencing him within the normal range permitted for a class B felony, on December 11, 1995, the court sentenced Mr. Besser under New York's discretionary persistent felony offender sentencing scheme (Penal Law § 70.10; Crim. Proc. Law § 400.20). As a result, rather than facing a maximum indeterminate term of 8 1/3 years to 25 years, Mr. Besser was sentenced to an indeterminate term of 15 years to life imprisonment.

Mr. Besser claims that New York's discretionary persistent statute violates his Sixth Amendment right to a jury trial on any facts that would expose him to a greater sentence than that ordinarily permitted, since the court was required to make (and did make) special factual findings in order to sentence him to the enhanced life sentence under the statute. Relying on the Supreme Court's seminal decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent Supreme Court decisions that further elucidate Apprendi, Mr. Besser asks the Second Circuit to invalidate New York's statute.

Status: The case is fully briefed before the U.S. Court of Appeals for the Second Circuit. Oral argument has not yet been scheduled.

CASE NAME: Paris Drake v. John Woods, Superintendent, Upstate Correctional Facility

In this case, one which raises troubling questions about the guilt of Paris Drake, Mr. Drake alleges that two critical constitutional errors deprived him of a fair trial and led to an erroneous conviction.

On November 16, 1999, at about 3:00 p.m., 27-year old Nicole Barrett was standing on the corner of East 42nd Street and Madison Avenue waiting for the light to change. As Ms. Barrett stood there, a man in the street approached from her left and, while he was standing in Madison Avenue, the individual threw a heavy brick at her, hitting her in the side of her head. Ms. Barrett fell to the ground, bleeding profusely from her head, as the attacker ran up Madison Avenue chased by two bystanders. The perpetrator turned left onto East 43rd Street and, after crossing Fifth Avenue, escaped. Ms. Barrett was taken to the hospital, where she underwent surgery to her head, and where she stayed for several weeks.

Although Ms. Barrett was unable to describe or identify her attacker, the attack, in broad daylight, was witnessed by numerous bystanders and onlookers. Many gave descriptions to the police, with varying degrees of detail and with significant discrepancies in many aspects.

The case attracted a great deal of media attention. Rewards were offered, and the police conducted a search for a homeless person who matched the description. After hearing a description of the attacker and the crime, George Gomez, the program coordinator at a men's homeless shelter in Brooklyn, called the police to report that the shelter had a resident who matched the description and who was suffering from delusional disorders and paranoia and was "hearing voices." The man was Clement Tikiba, a Sudanese national with a criminal record in Buffalo and Dallas. Tikiba had been staying at the shelter between August 20 and November 16, 1999 – the day of the attack – but had failed to return on the 16th and had not been seen since that date.

The police prepared a photo array containing a picture of Tikiba. Two witnesses independently selected Tikiba's photograph. Tikiba was never located, although the police made serious efforts to find him, including contacting the Sudanese consulate, because they felt he might be trying to leave the country.

Two weeks after the attack, based on a tip from an informant who cut a deal to get himself and his mother out of jail and who was never called to testify as a witness, either at a pre-trial hearing or at trial, the police arrested Paris Drake and charged him with attempted murder. Mr. Drake was not homeless, had no history of mental illness, and had a prior record consisting primarily of drug offenses and petty crime, but devoid of violent crimes of this nature. He denied the attack.

Mr. Drake was placed in a series of lineups. Six persons viewed the lineup. Of these, five failed to select Mr. Drake. The only positive identification was made by a witness who had previously selected Clement Tikiba from a photo array. In contrast, three eyewitnesses testified at trial that Paris Drake was not the attacker, and six other eyewitnesses testified at trial that they were unable to identify Mr. Drake as the perpetrator. No forensic evidence linked Paris Drake to the offense.

The jury deliberated over the course of three days. After two declarations of deadlock and two Allen charges, the jury finally convicted Mr. Drake of two of six counts submitted.

In this habeas proceeding, Mr. Drake claims he was denied a fair trial when the court precluded him from re-calling prosecution witness Carl Fortner, a jailhouse informant who claimed that Mr. Drake made an incriminating statement, for the purpose of impeaching him with inconsistent statements he made to the press immediately after his testimony – statements that contradicted his professed motive for coming forward and testifying against Mr. Drake and which called into serious question his credibility.

In addition, Paris Drake was denied his fundamental right to confront and cross-examine the witnesses against him and to due process when the court impeded the defense from testing the accuracy of the identification witness's testimony by raising serious questions about the accuracy and reliability of that identification.

Status: Paris Drake's habeas petition was filed in August 2007 and is pending in the United States District Court for the Southern District of New York.

CASE NAME: Edwin Maldonado v. John Burge, Superintendent, Elmira Correctional Facility

This habeas proceeding raises a constitutional claim 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.

Status: Edwin Maldonado's habeas petition was filed in June 2007 and is currently pending in the United States District Court for the Southern District.

CASE NAME: Darryl Holmes v. Dale Artus, Superintendent, Clinton Correctional Facility

The issue in this case is whether Darryl Holmes was denied his constitutional right to due process by the admission at trial of unreliable identification testimony that resulted from a suggestive pretrial lineup. The prominent aspect of every description that witnesses gave the police of the perpetrator was that he was a "light-skinned" and "stocky" black male. The police conducted a lineup which, according to every person and court to review the lineup, contained only two light-skinned individuals-Darryl Holmes and filler No. 5. Between those two, however, Mr. Holmes alone had the stocky build described by the witnesses. All of the witnesses who viewed the lineup expressed uncertainty when they selected Mr. Holmes as to whether he was the perpetrator, and all of the witnesses admitted that the reason they selected Mr. Holmes was that he was the only person in the lineup who fit the description of light-skinned and stocky. There was no physical evidence connecting Mr. Holmes to the crime, and this unreliable identification testimony was a focal point of the entire case.

Status: Mr. Holmes's petition was filed in September 2003 and is currently pending in the United States District Court for the Southern District of New York.

CASE NAME: Jerome Mack v. James T. Conway, Superintendent, Attica Correctional Facility

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 unMirandized 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.

Status: Mr. Mack's petition was filed on July 19, 2005, and is currently pending in the United States District Court for the Souther District of New York.

CASE NAME: Stephen Singleton v. C. Davis, Superintendent, Otisville Correctional Facility

Stephen Singleton was tried for the rape of a seven year old girl under circumstances that strongly suggested the child had fabricated the allegation. His trial attorney, however, adopted a "shoot from the hip" strategy, with virtually no trial preparation and thus denied Mr. Singleton his constitutional right to effective assistance of counsel. The only evidence of abuse was healed scarring which was likely caused by the abuse the child suffered two years earlier when her uncle had admitted to abusing her. But the jury was unable to properly evaluate this evidence because Mr. Singleton's attorney failed to call an expert witness who could explain why, under the circumstances of this case, a child might fabricate allegations. It was not until both sides had rested and delivered their closing arguments that defense counsel made an application to call the necessary expert witness. The court denied the untimely motion and Mr. Singleton was convicted.

In the habeas corpus petition, OAD is seeking the federal district court to order a fact-finding hearing so that it can be determined whether Mr. Singleton's attorney had a legitimate strategy for his failure to make an application to present the expert witness at a time when the application could have been granted. If the court finds no rational strategy for trial counsel's errors, Mr. Singleton will be given a new trial, with competent counsel.

Status: Magistrate Judge Pitman ordered an evidentiary hearing, and, following the hearing recommended that the writ be granted. The Honorable Laura Taylor Swain did not adopt Judge Pitman's recommendation, but issued a certificate of appealability.
The case is fully briefed in the United States Court of Appeals for the Second Circuit. We are awaiting an argument date.

CASE NAME: Leon Smith v. Brian Fischer

Leon Smith was arrested on the morning of January 2, 1997 for robbery in a subway station at 96th Street and Central Park West in Manhattan. Just four days prior to his arrest, Mr. Smith had been released from Harlem Hospital's psychiatric unit after having been brought to the emergency room by police officers on December 26, 1996. On that date, Mr. Smith had walked into the 32nd precinct and complained to officers that he saw a space ship, his feet were on fire, and that Martians were chasing him. Shortly after his release from the hospital, he was arrested and charged with robbery, arraigned, and assigned to a court-appointed attorney. Leon Smith's assigned attorney quickly became aware that Leon Smith attacked the man in the subway station because he believed him to be a Martian with a ray gun. Mr. Smith's assigned attorney had Mr. Smith examined by a psychiatrist prior to trial, and the psychiatrist issued a report finding Mr. Smith to be markedly anxious and depressed, of low intelligence, exhibiting rambling speech, partially disorganized, with poor memory and concentration. He had attempted suicide while in pre-trial detention at Rikers Island. The psychiatrist's report supported the defense of not guilty by reason of mental disease or defect. The psychiatrist did not issue an opinion as to whether Leon Smith was competent to stand trial.

Leon Smith proceeded to trial without having ever been examined to determine if he was competent to understand the proceedings, despite his mental health history, his suicide attempt, and his difficulty in communicating with his attorney (his attorney had filed an affirmation explaining that he had to meet with his client on numerous occasions to explain the charges pending against him and possible defenses and noted his belief that his client was "barely competent.").

Leon Smith testified at trial based on his lawyer's advice that his testimony was necessary; his testimony at trial was disorganized, and exhibited to the jury his mental health problems. In a post-trial hearing, Leon Smith's lawyer admitted that he had put Leon Smith on the stand, not as a fact witness, but solely to demonstrate to the jury that he was irrational and delusional. He stated at the hearing, "I was not looking for a rational, coherent witness, I was looking for a man who appeared to have a mental illness.

" Despite Leon Smith's irrational behavior during trial, neither his attorney nor the court ordered that a mental competency examination be performed. The issue raised in this habeas petition is whether Leon Smith was denied the effective assistance of counsel by his attorney's failure to ensure his competency prior to proceeding to trial, and whether the trial court violated Leon Smith's constitutional right to due process of law by not ordering a competency examination and hearing once it became apparent that Leon Smith may not have possessed the mental ability to understand the proceedings. Additionally, the habeas petition raises the issue that the court's instructions to the jury shifted the burden of proof, because the court did not instruct the jury that it must consider the evidence of Mr. Smith's psychiatric condition in determining whether Mr. Smith possessed the requisite intent to commit a robbery.

Status: On July 6, 2006, Magistrate Judge James C. Francis IV recommended that the writ be granted on the basis that the trial court violated Leon Smith's procedural due process rights by failing to order a competency inquiry.

CASE NAME: Calvin Whitley V. Daniel A. Senkowski, Superintendent, Clinton Correctional Facility

Calvin Whitley was convicted of murder over twenty years ago. Years after his trial, two of the most critical witnesses against him recanted their testimony, stating that they lied at Mr. Whitley's trial.

The issues presented are whether a person challenging his conviction in a federal habeas corpus proceeding can be excused for failing to meet the one year statute of limitation if he makes a credible showing that he is "actually innocent" of the crime for which he was convicted; and, if so, by what standard of evidentiary proof must he show that he is "actually innocent."

Status: Mr. Whitley's petition is currently pending in the United States District Court for the Southern District of New York.