Appellate Division Vacates Murder Conviction Based on Compelling Prejudice from Joint Trial

August 11, 2016 by Marshall A. Mintz · Leave a Comment 

In People v. Lessane, the Appellate Division, Second Department vacated the judgment and remanded for a new trial finding that Lessane suffered unreasonable prejudice from being tried jointly with a co-defendant.

Prior to trial, Lessane sought a severance because his defense was in direct conflict with that of his co-defendant. However, the court denied that motion without extensive explanation. During the trial, the co-defendant repeated argued that Lessane was guilty (which would exculpate the co-defendant). Lessane sought a mistrial numerous times, and the trial judge denied each request. The co-defendant was acquitted of all charges and Lessane was convicted of some counts.

In finding that Lessane’s trial rights were violated, the Appellate Division noted that there were “irreconcilable” conflicts between the defenses and that co-defendant’s counsel brought out damaging evidence against Lessane which the prosecutor would not have been able to present. Thus, there was such “compelling prejudice” as to render the trial Constitutionally unfair.

(Disclosure: I represented Lessane on appeal but not at the initial trial)

Second Circuit Upholds Constitutionality of New York State’s Persistent Felony Offender Sentencing Scheme

October 18, 2010 by Marshall A. Mintz · Leave a Comment 

In Portalatin v. Graham, __ F.3d __, 2010 WL 4055571 (2d Cir. Oct. 18, 2010)(en banc), the Second Circuit, in a 9-3 split, held that the New York State courts did not unreasonably apply Supreme Court precedent when finding that the New York State Persistent Felony Offender sentencing statute (PFO) was Constitutional.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

§ 2254 Petition Addressing Resentencing Is Not Second or Successive, Even If Prior Petition Was Filed

June 24, 2010 by Marshall A. Mintz · Leave a Comment 

In Magwood v. Patterson, the United States Supreme Court held that a when a defendant files a § 2254 Petition which is granted, a subsequent § 2254 Petition challenging the new sentence is not “second or successive,” and therefore not subject to the constraints of § 2244(b) — which requires, among other things, leave from the Court of Appeals.

The Court held that the subsequent Petition was the first application challenging the new judgment, noting that the errors alleged were new — even those errors which could have been brought in the initial § 2254 Petition.

New York Court of Appeals Invalidates Warrant Which Authorized Search of All Persons Present at the Time of its Execution

April 2, 2010 by Marshall A. Mintz · Leave a Comment 

In People v. Mothersell, the Court of Appeals addressed the legality of a warrant which authorized the search of all persons present at the time of its execution.  In reversing the lower courts and ordering the indictment dismissed, the Court reiterated that an all-persons-present warrant should only issue after a showing of significant justification.

While The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and Article I, Section 12 of our New York State Constitution requires that warrants “particularly describ[e] . . . the persons . . . to be seized,” New York States CPL 690.15 (2) states that “[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein[.]”

In People v Nieves, 36 NY2d 396 (1975), the Court reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that [CPL 690.15] was capable of application without constitutional offense.  However, the Court described the “severely limited” circumstances which would justify such a warrant, explaining that “[t]he facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description”

But in Mothersell the Court found that no such showing had been made, in the warrant application citing “boilerplate allegations” and a statement by the deponent that, based on her past experience, it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.”

Turning to the general concept of an all-persons-present warrant, the Court did not condemn them entirely.  While the Court did note the “utility” of such a warrant, it cautioned that such utility “may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for
search or seizure.”

Second Circuit Finds NY Persistent Felon Sentencing Scheme Unconstitutional

March 31, 2010 by Marshall A. Mintz · Leave a Comment 

In a long-awaited decision today (in a case in which I wrote the Amicus brief on behalf of the New York State and National Associations of Criminal Defense Lawyers), the Second Circuit found that New York State’s Persistent Felony Offender Statute (PFO)  is unconstitutional and an unreasonable application of clearly established law.  That decision involves five consolidated cases — Besser v. Walsh, Phillips v. Artus, Portalatin v. Graham, Morris v. Artus, and Washington v. Poole, — all of which involved challenges, pursuant to 28 U.S.C. 2254, to the PFO statute.

The Court began by explaining that “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).”

The New York Sentencing Law

For first and second felony offenders, the existence or non-existence of a prior felony alone 5 determines the applicable sentencing range.  However, under the PFO statute, a defendant who has been previously convicted of two felonies is a “persistent felony offender.”  Under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to an enhanced sentence.  After making that finding, the court turns to whether “the history and character of the defendant and the nature and circumstances of his criminal conduct” is such that the PFO should, in the public interest, be given that enhanced sentence.

Prior Judicial Review

The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to that sentencing scheme, holding that the existence of the prior felonies alone authorizes the enhanced sentence. See People v. Quinones, 906 N.E.2d 1033, 1034 (N.Y. 2009); People v. Rivera, 833 N.E.2d 7 at 195; People v. Rosen, 752 N.E.2d 844, 846 (N.Y. 2001).

For its part, the Second Circuit has twice held that the New York Court of Appeals did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466 (2000), or the Supreme Court’s later decision in Ring v. Arizona, 536 U.S. 584 (2002). See Brown v. Miller, 451 F.3d 54, 56-57 (2d Cir. 2006).

The Current Decision

However, today’s decision explains that whatever doubt may have existed about the constitutionality of the NY statute was laid to rest by Blakely.  Blakely, the Court explained, clarified Apprendi by making it unambiguously clear that any fact (other than a prior conviction), no matter how generalized or amorphous, that increases a sentence for a specific crime beyond the statutory maximum must be found by a jury.

In sum, the Court explained, the PFO statute cannot be squared with the statement by Justice Ginsburg in her opinion for the Court in Cunningham v. California, 127 S. Ct. 856 (2007): “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”

In setting Blakely as the tipping point, the Court stated that “the legal rule invoked by petitioners was not clearly established until Blakely clarified Apprendi.”  As such, only those convictions which became final after the Blakely decision will be subject to review.

The Remedy

With respect to the petitioners in the consolidated cases which the Court decided, it remanded for hearings to determine whether application of the statute “had [a] substantial and injurious effect or influence” on each sentence.  Brecht v. Abrahamson, 507 U.S. 619 (1993).


The Second Circuit granted the State’s petition for rehearing en banc.  The case will be heard on July 9.

New York fails to treat mentally ill in juvenile prisons

February 11, 2010 by Marshall A. Mintz · Leave a Comment 

In an article published today, the New York Times reports how New York State has no full-time psychiatrist to care for mentally ill juveniles who are detained in state facilities.

Officer who took documents from defense attorney’s file during hearing ordered only to apologize

November 20, 2009 by Marshall A. Mintz · Leave a Comment 

What should be the penalty for an officer who removes confidential legal material from a defense attorney’s file in the courtroom during the proceedings? In Arizona, apparently it is to be held in contempt of court, but only required to apologize.

This punishment does nothing but minimize the seriousness of the conduct here. The Officer stole legally privileged documents from counsel’s for no good reason. I hope the people in Arizona voice their outrage.

1993 murder convictions vacated because the prosecuction let its witness give misleading answers

November 20, 2009 by Marshall A. Mintz · Leave a Comment 

In People v. Colon and People v. Ortiz, New York’s highest court vacated the defendants convictions because the prosecution at the initial trial failed to correct misleading testimony by one of its witnesses

In doing so, the Court of Appeals noted that prosecutors “must deal fairly with the accused and be candid with the courts” People v Steadman, 82 NY2d 1, 7 (1993). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no “reasonable possibility” that the error contributed to the conviction. People v Pressley, 91 NY2d 825, 827 (1997); see also Steadman, 82 NY2d at 8-9.

During the trial, the prosecution questioned its witness about any benefits he received in exchange for his testimony. However, the witness’s answer did not recount all of the favorable treatment he had gotten. Rather than correct the testimony, the prosecutor let the answer stand and repeatedly referred to it throughout the case.

This case once again emphasizes that the role of a prosecutor is not simply to win. Rather, the prosecution is tasked with making sure that the proceedings are fair.

NY Court of Appeals – People v. Quinones

March 30, 2009 by Marshall A. Mintz · Leave a Comment 

In People v. Quinones, which can be found by clicking here, the New York State Court of Appeals again upheld the constitutionality of the discretionary persistent felony offender sentencing scheme.  The Court again explained that under New York’s scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions – which places New York’s scheme outside the scope of Apprendi. Another distinguishing feature of New York’s sentencing scheme is that it is only after a defendant’s eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute.  Notably, the Court made no mention of the recent Federal Court decisions finding the statute unconstitutional.