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Dismissed. Even though the Defendant pled guilty at the trial level, he appeals raising the defense that the accusatory instrument was facially insufficient.  The People charged defendant, in an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]), to which the People alleged was in “a public place open to public view,” and that one of the officers had “recovered five ziplock bags of marihuana from the defendant’s left jacket sleeve.” On appeal, defendant contends that the accusatory instrument was facially insufficient and the Court agrees.

A ” valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” (People v Afilal, 26 NY3d 1050, 1051 [2015], quoting People v Case, 42 NY2d 98, 99 [1977]), the right to which is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]). As the record does not reveal that defendant waived prosecution by information (see People v Dumay, 23 NY3d 518, 522 [2014]), the standards of review of the sufficiency of the accusatory instrument are those applicable to informations (see CPL 100.40 [1]; 170.65 [1], [3]; People v Jackson, 18 NY3d 738, 741 [2012]; see also People v Kalin, 12 NY3d 225, 228 [2009]). The purpose of an information is to “ensure[] that a legally sufficient case can be made against the defendant” (Dumay, 23 NY3d at 522). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant’s commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133, 136-137 [1987]), although by pleading guilty, defendant forfeited any challenge to hearsay defects in the information (People v Keizer, 100 NY2d 114, 121 [2003]; People v Kwas, 52 Misc 3d 52, 53 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Even affording the instrument the required “fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]), we find that the factual portion thereof fails to establish every element of the offense.

The Court notes that there is no definition in the Penal law for either “public place” or  “open to public view” elements. What do the Courts utilize here to make that decision? A legal conclusion will not suffice:

While the mere designation of an interior of a premises does not preclude “public place” status, since “hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence” are public places as defined in Penal Law § 240.00 (1) (see Penal Law § 221.10), there are no facts alleged to support an inference that 15-02 Mott Avenue is a public place or, if it is a premises in the nature of a dwelling containing public areas such as a hallway or lobby, that defendant was observed in a portion thereof that did not “constitute rooms or apartments designed for actual residence,” and that his possession of the marihuana in that public place was open to public view (compare People v Oquendo, 39 Misc 3d 70, 71-72 [App Term, 1st Dept 2013] [observation of the defendant “inside” an identified street address, described as “a public place” in possession of marihuana, sufficient given the factual allegations that the defendant’s conduct had “caused a crowd . . . to gather,” which sufficed to plead that the possession occurred in “a common area of the building”], with People v Sherman, 24 Misc 3d 344, 350 [Crim Ct, NY County 2009] [allegation that the defendant possessed marihuana “at a particular address” insufficient because the accusatory instrument did not otherwise “identify the nature of the location . . . for example, whether the location is a business or residence, such as an apartment house . . . [and w]hile hallways and lobbies of apartment houses are public places, there are no facts from which to infer that the possession occurred in a hallway or lobby of an apartment house”]).

Those charged with the criminal possession of marijuana should be aware that a simple conclusion by a police officer will not suffice. A description of what was a public place and what is public view must be sufficiently alleged by the People otherwise the accusatory instrument will be insufficient. Here it results in dismissal even after a plea of guilty.

The case is  People v Brown (Demitrice) 2017 NY Slip Op 50143(U) (App. Term Second Department, January 24, 2017).


Defendant appeals from a judgment convicting him, upon a jury verdict, of sexual abuse in the first degree (Penal Law §130.65 [3]). New York Criminal defendants know enough to know when a juror should be removed because that juror cannot be fair in some cases. This, albeit the juror was placed on the juror over an objection for cause, situation is one of those situations that do not pass the smell test or, as one trial advocacy professor/judge would say, the straight-face test.

The prospective juror’s son was married to the daughter of the District Attorney of Ontario County, R. Michael Tantillo, and who had a grandchild in common with the District Attorney. She says she can impartial in this sexual abuse case. It appears that the statement was unequivocal and the potential juror was seated for the trial. Obviously, there was a conviction. Problem here? The Fourth Department says yes.

The Court finds that

following the denial of the challenge for cause, defendant exercised a peremptory challenge against the prospective juror and later exhausted his peremptory challenges before the completion of jury selection (see CPL 270.20 [2]; People v. Lynch, 95 NY2d 243, 248)…the prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” (CPL 270.20 [1] [c]; see People v. Branch, 46 NY2d 645, 651-652; People v. Bedard, 132 AD3d 1070, 1071; People v. Clark, 125 AD2d 868, 869-870, lv denied 69 NY2d 878).

The case is People v. Collins, KA 14-02296, NYLJ 1202775609150, at *1 (App. Div., 4th, Decided December 23, 2016)

In this New York City criminal case, the Defendant was charged by Superseding Information with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL §511(2)(a)(ii), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL 511(1)(a), and Unlicensed Driving, in violation of VTL 509(1). The accusatory instrument stated that “on March 25, 2015, the defendant was observed operating a motor vehicle in New York County. Her privilege of operating a motor vehicle had been revoked for a driving while intoxicated conviction and for a refusal to submit to a chemical test, and had not be reinstated.”

The Defendant challenges the accusatory instrument as insufficient and, therefore, the People could not have answered ready. Often times, prosecutors (even if called something else) will file an accusatory instrument based on hearsay declarations. Also, for one reason or another, a Defendant (via counsel) will waive his or her right to be prosecuted by a legally sufficient accusatory instrument. The Court states the nonhearsay requirement for a misdemeanor complaint to be converted to an information:

In order for a misdemeanor complaint to be converted to an information the factual portion of the instrument and any supporting depositions must contain “[n]on-hearsay allegations” that establish, “if true, every element of the crime charged and defendant’s commission thereof.” CPL §100.40(1)(c); People v. Alejandro, 70 NY2d 133, 135 (1987). However, the requirement that there be non-hearsay allegations in support of every element can be met where the allegation, even if not based on the declarant’s first-hand knowledge, would be admissible under “some hearsay rule exception.” People v. Casey, 95 NY2d 354, 361 (2000).


In the Matter of Jamal S, ” Officer Leo and his partner were on patrol when they observed respondent Jamal S. and his companion riding their bicycles against the flow of traffic on a one-way street.” As so many others in New York City, the juvenile was stopped, he was questioned and, because he did not have identification (and likely due to his suspected age), he was taken to the police precinct. While “Officer Leo intended to issue respondent a summons for disorderly conduct (Penal Law § 240.20 [7]),” an exercise in discretion results in “the officers patt[ing] him down, plac[ing] him in handcuffs and transport[ing] him to the precinct. When he arrived at the precinct at approximately 11:00 p.m., he was searched a second time.” He was searched and searched again. The Court of Appeals defines the issue  as “whether the police had the authority to arrest respondent and whether the subsequent search of his shoes was reasonable.” more

A college student’s inappropriate behavior became criminal in class. “Defendant is accused by information of public lewdness (see Penal Law §245.00) on account of an incident that is alleged to have occurred in an accounting class at Hofstra University on September 3, 2014.” Id. at 1. “[A] person is guilty of public lewdness “when he [or she] intentionally exposes the private or intimate parts of his [or her] body in a lewd manner or commits any other lewd act…in a public place.” Id. at 10 (citing Penal Law §245.00(a). The accusatory instrument alleges that a text message was sent by one student to another student, the complaining witness, asking the complaining witness to “touch it” and exposing his erect penis. There were about twenty other students and a teacher in the classroom at the time. Although a private institution, the Court finds little issue in finding a Hofstra classroom a public place.

The standard for sufficiency is as follows:

It is well-settled that an information is sufficient only if it both provides reasonable cause to believe that the person named in it committed the offense charged, and contains sworn, non-hearsay allegations of fact supporting every element of that offense, and that person’s commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept 1994]; People v. Li, 192 Misc2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). An information thus must demonstrate the existence of a prima facie case (People v. Henderson, supra), but the prima-facie-case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (cf. People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v. Henderson, supra), but the court is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]). 9-10 (external quotation marks omitted and internal citations more

The Defendant here was charged with murder in the second degree. After he came upon a man hitting his brother in the head with a hammer, he stabbed what became the victim. The Defendant testified that he was in his own home when his ex-wife told him that someone was beating his brother up with a hammer down the block. Defendant testified that he ran onto the victim’s porch, tried to break up the fight, and, in the scurry, stabbed the victim in the chest with a knife.

Procedural History: “The jury acquitted defendant of second degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1044 [2014]).” Pp. 6.

At issue here was the jury instruction of Justification and whether the initial aggressor exception to the justification defense misstates the applicable law where defendant intervened in an already existing fight. Indeed:

At the charge conference, Supreme Court indicated that it would, at defendant’s request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not “stand in the shoes of anybody initially involved in the fight.” Alternatively, defendant argued that, if an initial aggressor charge “were to be used at all[, it] should indicate the first person to use deadly force, not offensive force.” In contrast, the People asserted that there was “a fair view of the evidence to show that…defendant [was] acting in concert with” his brother and girlfriend, which “makes him accountable as an initial aggressor.”


On October 23, 2015, the New York Law Journal (Joel Stashenko) published the article “Woman’s Conviction for Conduct Affecting Fetus Is Dismissed” Arguably, the Suffolk County District Attorney’s Office should not have brought the case and this woman should not have been convicted of manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident that she caused by being under the influence.

The conviction of Jennifer Jorgensen for a May 2008 accident in Suffolk County where authorities say her vehicle crossed the center line of a busy road and smashed head-on into an oncoming vehicle, killing its occupants. Jorgensen, who police said was incapacitated by alcohol and/or prescription medications, was 34 weeks pregnant at the time. Jorgenson, not wearing a seatbelt at the time, injured her unborn baby when she struck the steering column in the crash and was delivered by cesarian section.

“Thirteen months [after her child’s death], defendant [(Jorgensen)] was indicted on three counts of manslaughter in the second degree (Penal Law §125.15 [1]), one count of aggravated vehicular homicide (Penal Law §125.14), and one count of operating a motor vehicle while under the combined influence of alcohol or drugs (Vehicle & Traffic Law §1192 [4-a]). After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.” People v. Jorgensen, No. 179, NYLJ 1202740469239, at *2 (Ct. of App., Decided October 22, 2015)

The issue the Court of Appeals reached “is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in utero where the child was born alive but died as a result of that injury days later.” Jorgensen, at *3.

The Court made clear that “[t]he imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.” Jorgensen, at *7 The Court of Appeals held “that it is evident from the statutory scheme that the legislature, in enacting Penal Law §125.05 (1) and §125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” Jorgensen, at *3.

The Court of Appeals reversed the Second Department and dismissed the remaining indictment.

Dissenting, Justice Fahey indicated that “[w]here, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant-mother of manslaughter in the second degree where the acts causing the baby’s death occurred before that infant was born….” That seemed to be the difference here. If Jorgensen did not consent to having the C-Section, this probably would have never become an issue. Nonetheless, as the prosecutor argued it, J. Fahey addressed it.

The Defendant was sentenced in April, 2012. As part of a plea agreement, the Defendant was sentenced to a seventy-eight month term of imprisonment. The instant matter is to decide the defendant’s motion to reduce the sentence.

History: “Pursuant to the United States Sentencing Guidelines Manual (“the Guidelines”) effective at the time of defendant’s sentencing, defendant’s base offense level was twenty-six (26). See U.S.S.G. §2D1.1. Four (4) points were added to the base offense level to determine the combined offense level pursuant to §3D1.4(a) of the Guidelines, but the combined offense level was reduced by three (3) levels based upon defendant’s acceptance of responsibility pursuant to §3E1.1 of the Guidelines, thereby placing defendant at a total offense level of twenty-seven (27) at the time of his sentencing. Since defendant’s criminal history placed him in Criminal History Category II, the then-applicable advisory Guidelines range was a term of imprisonment of between seventy-eight (78) to ninety-seven (97) months, the range stipulated in the plea agreement.” Pp. 2-3.

The defendant moves to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2), which provides, in relevant part:

“The court may not modify a term of imprisonment once it has been imposed except that — *** in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant * * *, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pp. 2-3.

Law: The Supreme Court has held that “[b]y its terms, §3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683, 2690, 177 L. Ed. 2d 271 (2010); see also U.S. v. Johnson, 732 F.3d 109, 116 (2d Cir. 2013) (holding that a Section 3582(c)(2) proceeding is “neither a sentencing nor a resentencing.”) Since Section 3582(c)(2) authorizes “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding,” Dillon, 560 U.S. 817, 130 S. Ct. at 1391, the sentencing court is not “free to address * * * arguments regarding [other] errors at [the defendant’s] original, now final sentencing.” U.S. v. Mock, 612 F.3d 133, 134-35 (2d Cir. 2010).

“The Supreme Court has set forth a ‘two-step inquiry’ for resolving motions pursuant to §3582(c)(2) for a sentence reduction.” U.S. v. Christie, 736 F.3d 191, 194 (2d Cir. 2013) (citing Dillon, 560 U.S. 817, 130 S. Ct. at 2683); accord U.S. v. Bethea, 735 F.3d 86, 87 (2d Cir. 2013). First, the sentencing court must “determine that a reduction is consistent with §1B1.10 * * * by determin[ing] the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Dillon, 560 U.S. 817, 130 S. Ct. at 2691. “Specifically, §1B1.10 requires the court to begin by ‘determin[ing] the amended guideline range that would have been applicable to the defendant’ had the relevant amendment been in effect at the time of the initial sentencing.” Id.

The defendant is entitled, and the government agrees, to a reduced sentence. While “[t]he government does not dispute that defendant is eligible for a limited sentence reduction under 18 U.S.C. §3582(c)(2), [it]…argues, in essence, that no reduction of defendant’s sentence is warranted in this case.” Pp. 2. “As relevant here, Amendment 782 to the Guidelines, effective November 1, 2014, modified §2D1.1(c) of the Guidelines by reducing the offense levels in the Drug Quantity Table by two (2) levels and, thereby, lowering the advisory Guidelines sentencing range for certain categories of drug-related offenses.” Pp. 4. This reduction in the sentencing range would impact the Defendant’s sentence but it does not bind a judge to act accordingly.

Indeed, “[a] retroactive amendment to the Guidelines merely authorizes a reduction in sentence; it does not require one.” Wilson, 716 F.3d at 52 (quotations and citation omitted); see also U.S. v. Rios, 765 F.3d 133, 137 (2d Cir. 2014), cert. denied by Bautista v. United States, — S. Ct. —, 2015 WL 2256183 (Oct. 5, 2015) (reviewing the district court’s denial of a motion to reduce the defendant’s sentence under §3582(c)(2) for abuse of discretion). See Pp. 5. The Court noted, as the Defendant’s motion made clear, that the Defendant is entitled to a sentence reduction. Instead of the over seventy months the defendant was sentenced, the Defendant would be entitled to a sentence reduction of as much as fifteen months. The Court agrees with the government’s argument, however, that the relevant factors at the time of sentencing have not changed. Because there is no change in circumstances, the Court finds that no change in sentence is warranted even though the sentencing guidelines changed.


Conclusion: Sentence upheld; motion denied.


The Case is USA v. Johnson, 12-CR-261, NYLJ 1202739531148, at 1 (EDNY, Decided October 8, 2015)


In this case “[i]t is…undisputed that the remaining eleven months that the motion was pending were not excluded. Accordingly, the Act’s 70‐day indictment‐to‐trial period (commonly referred to as the “speedy trial clock”) was exceeded by approximately nine months.” Bert, at P. 8. “Accordingly, neither party contests that a violation of the Speedy Trial Act occurred. Nor do they question the statute’s unambiguous mandate that the court was required to dismiss the indictment upon Bert’s motion. The only question before us, therefore, is whether the district court abused its discretion in permitting Bert’s reprosecution by dismissing the indictment without prejudice.” P. 8-9.


“The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment “shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The Act excludes delays due to certain enumerated events from the 70‐day indictment‐to‐trial period. See 18 U.S.C. § 3161(h).” P. 7

“It is well established that “Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation.” United States v. Taylor, 487 U.S. 326, 334 (1988); accord United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Rather, “[t]he determination of whether to dismiss an indictment with or without prejudice is committed to the discretion of the district court.” United States v. Wilson, 11 F.3d 346, 352 (2d Cir. 1993).” P. 9. In making this consideration the Court should consider “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” United States v. Bert, 13-2328-cr, at * 10 (Sept. 10, 2015)(quoting 18 U.S.C. § 3162(a)(2)).

The Supreme Court instructed that, in the absence of prejudice or significant delay, courts should only preclude reprosecution of a serious crime upon a showing of “something more than an isolated unwitting violation,” such as a finding of “bad faith” or a “pattern of neglect.” Taylor, 487 U.S. at 339. But where the delay is indisputably  grave and not a result of the defendant’s own conduct, Taylor, 487 U.S. at 343, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir. 1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial.”). As the Supreme Court has explained in the context of a Sixth Amendment speedy trial challenge, “[a]lthough negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Doggett v. United States, 505 U.S. 647, 657 (1992). “‘The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. Not only must the court police the behavior of the prosecutor and the defense counsel, it must also police itself.’” Stayton, 791 F.2d at 20 (quoting Pringle, 751 F.2d at 429).

Procedural History:


The District Court committed error in that “first, that the absence of bad faith, intentional delay, or some other form of heightened scienter is dispositive of this statutory factor; second, that a delay attributable to the court and not to the government tips this factor in favor of dismissal without prejudice. Both of these premises are contrary to governing precedent.” P. 16-17. The Second Circuit held that “[a] rule that limited the sanction of dismissal with prejudice exclusively to cases involving bad faith would contravene the well‐established principle that “[t]he Speedy Trial Act does not indicate a preference as between dismissals with and dismissals without prejudice.” Giambrone, 920 F.2d at 180 (citing Taylor, 487 U.S. at 334).” P. 18. Indeed, “District courts must hold themselves accountable for ensuring their own compliance with the Speedy Trial Act’s requirements. A district court may not merely assume responsibility for a speedy trial violation, deny an improper motive, and weigh this statutory factor in favor of dismissal without prejudice without offering further explanation.” Bert, at P. 19. In “the seriousness of the violation was ‘slighted’ and not ‘properly considered,’ Taylor, 487 U.S. at 337, and we proceed to a fuller examination.” P. 14. “Bert’s speedy trial clock had been expired for 266 days (almost 9 months). It is beyond cavil that this delay—which amounts to almost nine times the period of time automatically excluded for the resolution of such motions, see 18 U.S.C. § 3161(h)(1)(H), and almost four times the length of the speedy trial clock itself, see 18 U.S.C. § 3161(c)(1)—is serious” Bert, at P. 14

Conclusion: “Given the extended administrative neglect by the court and the government in allowing the case to stagnate for almost a year while Bert was incarcerated, we conclude that the government’s interest in administering justice by prosecuting Bert’s firearms offenses is outweighed by the impact that permitting reprosecution would have on the administration of justice and of the Speedy Trial Act.” P. 31

Dissent by Hon. Dennis Jacobs

Finding that “The only issue presented is whether the district court had discretion to dismiss this case under the Speedy Trial Act (as it did) without prejudice,” Judge Jacobs would have joined the majority. “The delay was occasioned by a one‐year interval in which the district court considered a suppression motion that was complicated, ramified, and virtually outcome‐determinative.”

Judge Jacobs cites several principles of which militate against dismissal with prejudice:

(1) As between dismissal with prejudice and without, “neither remedy [is to be] given priority,” United States v. Taylor, 487 U.S. 326, 335 (1988);

(2) “[d]ismissal without prejudice is not a toothless sanction,” id. at 342; and

(3) “dismissal of a criminal indictment is a drastic remedy which should not be lightly considered,” United States v. Fox, 788 F.2d 905, 909 (2d Cir. 1986).

Judge Jacobs states that “I agree with the majority that the Act serves important ends and must be enforced, and that it is integral to the administration of justice. But the majority implicitly assumes that the Act is disserved or impaired unless dismissal is with prejudice; and that assumption violates the background principles that dismissal without prejudice is not toothless, that the Act embodies no preference as to whether dismissal should be with prejudice or without, and that the choice is confided to the discretion of the district court.” In sum, he does not agree with the remedy the Second Circuit chose because “the delay [of the District Court] was an isolated instance; there was no bad faith or pattern of delay or misconduct by the prosecutors, or by the judge, or by the court as a whole; and, under the circumstances, no incentive for abuse can be identified, let alone be said to arise…” and, accordingly, he felt that the District Court’s judgment should be affirmed.

The case is United States v. Bert, 13-2328-cr (Sept. 10, 2015).


Scott Lewis appeals from a murder conviction, alleging constitutional violations in the form of Brady v. Maryland violations. This conviction from 1990 relied almost entirely on the testimony of Ovil Ruiz, a man who repeatedly denied having any knowledge  of the murder that led to this conviction and only testified that he did “after a police detective promised to let Ruiz go if he gave a statement in which he admitted to being the getaway driver and incriminated Lewis and another individual, Stefon Morant.” Pp. 2. The United States District Court for the District of Connecticut granted Lewis’s habeas petition on the grounds of a Brady violation. The Second Circuit affirms.

Both Scott Lewis and Stefon Morant were tried for murdering Ricardo Turner and Lamonth Fields. Both were found guilty. At trial, there was no eyewitness testimony or forensic evidence, merely the testimony of Ovil Ruiz. Ruiz made up a story. May 10, 1995, a jury convicted Lewis on two counts of murder and two counts of felony murder, one count as to each victim. He was sentenced (T1) to 120 years imprisonment. On direct appeal, the Supreme Court of Connecticut affirmed Lewis’s convictions (T2) but vacated the his felony murder convictions on double jeopardy grounds.

Had it not been for Morant’s motion for a new trial, the following information would have never been divulged: The two police detectives who questioned Ruiz on the night he implicated Lewis provided the circumstances of which Ruiz inculpated Lewis at the Police station back in 1991: After saying he knew nothing of the two murders, detective Raucci begin telling Ruiz the facts of the murder, where they occurred, the scenario in which the murderers escaped with the guns in a gym bag at which point he was interrupted by detective Sweeny. Detective Sweeny told Raucci that his interrogation approach was inappropriate at which point the two detectives returned to the interrogation room where Ruiz said he wanted to inculpate Morant and Lewis. Detective Sweeny intervened again but was “pulled away on another matter…” Pp. 8. When Sweeny returned, he was concerned about the significant change in testimony but nonetheless, the statement was made and Ruiz was the catalyst to place these two men in jail. Sweeny subsequently retired and took a position volunteering in the United Nations, Bosnia.

The detective, Raucci was later found to be linked with New Haven drug trade, he resigned from the police department because of misconduct, was later arrested for domestic-violence, charged with larceny and ultimately arrested by the FBI after a four-hour stand-off in New Mexico. Sweeny came forward to disclose what happened.

January 9, 2001 Lewis files a pro se habeas petition raising new evidence regarding Ruiz’s perjury, Brady violations and newly discovered alibi evidence. The petition was denied (T3) by the Connecticut superior court. The Connecticut court found that such information should have been discovered, inter alia, by the due diligence of defense counsel. Lewis appealed (T4) to the Connecticut Supreme Court for certification to an appellate court. He filed an uncertified appeal and provided the Appellate Court with, amongst other things, transcripts from the criminal trial, probably cause hearing and detective Sweeny’s testimony at the Morant new trial hearing. His appeal was denied on the grounds that “he failed to include the transcript from his state habeas trial before Judge Zoarski and thus failed to provide an adequate record for review.” Pp. 12 (citing Lewis v. Comm’r of Corr., 73 Conn. App. 597, 599 (2002)). Lewis than sought review (T5) from the Connecticut Supreme Court through a petition for certification which was denied without discussion…

Over a decade later, Lewis filed a petition for habeas relief in the District of Connecticut arguing that the State denied his right to a fair trial and violated due process when it withheld Brady material during his trial. On December 16, 2013, over twenty years later, the petition was granted and the Court concluded that Lewis was entitled to federal habeas relief. After the order of release, the state timely appealed (T6).

The Second Circuit reviewed the state’s arguments – that (1) Lewis procedurally defaulted on his Brady claim at the state level and (2) that he did the state “did not contravene clearly established federal law and was not based on an unreasonable factual determination.” Pp. 15. Rejecting both of the state’s arguments, the Second Circuit focused on the second argument made by the state and then reviewed the Pro Se applications by Lewis.

Rule: “A federal court may only grant a petitioner relief with respect to any claim that was adjudicated on the merits in State court proceedings if the State adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)‐(2).”

Pp. 15, n. 5.

Specifically, the Second Circuit find that the State Court’s decision requiring the defendant to exercise due diligence to obtain exculpatory evidence is wrong and the state habeas decision based its decision on “unreasonable findings of fact when it ignored key aspects of the record.” Pp. 16. The court found no independent state grounds of which the decision should not be reviewed and the alleged incomplete record was containing a transcript which the Second Circuit found not to be vital pursuant to that Connecticut rule.

Throwing another monkey wrench in the mix, Connecticut faults Lewis with not following the certification requirement – that being certifying that his appeal was not frivolous. The Second Circuit rejects this argument, holding that “the State does not identify any Connecticut authority for a certification-briefing requirement…Connecticut courts do not regularly enforce this procedure.” Pp. 22 (citing Hankerson v. Comm. of Corr., 150 Conn. App. 362, 368 (2014)). Examining the standards set forth by the Lozada case, the Second Circuit found that Lewis complied with all the requirements of Connecticut law to bring his appeal and “[a]t the very least…demonstrated that his case presented issues that were debatable amongst jurists of reason.” Pp. 23.

Reviewing the petition to the Federal District Court itself, the court finds no clear error in the habeas corpus petition. The state court (because the appellate court summarily rejected it) provided the only review on the merits – in reviewing the above rule (28 U.S.C. § 2254), the Court finds that the state decision contravened clearly established law and was based on an unreasonable determination of the facts. The Second Circuit observes, clearly in contravention to Federal law, that the State Court imposed a duty on Lewis to find out exculpatory information, Brady material. Further, the Second Circuit states that the Respondents’ brief “distorts the state habeas court’s decision” (Pp. 29) in claiming that Lewis did not exercise due diligence in finding Brady material.

“The State’s failure to disclose exculpatory evidence, including impeachment evidence, in its possession constitutes a Brady violation, irrespective of the good faith or bad faith of the prosecution, Brady, 373 U.S. at 87, and regardless of whether the information is known only by the police and not the prosecutor.” Pp. 31 (citing Kyles v. Whitley, 514 U.S. 419, 437‐38 (1995); see also United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 161 (2d Cir. 2008)).

Brady: [There are three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Boyette, 246 F.3d at 89 (quoting Strickler v. Greene, 527 U.S. 263, 281‐82 (1999)).]

If the defense counsel had this information, there would have been meaningful cross-examination of Ruiz, the state’s failure to disclose it, obviously, hindered the defense from learning of it and the evidence was material. Being a probable different result, the Court finds that this pressuring of a witness very well resulted in Lewis’s finding of guilt. Information about the sole witness to a murder without any other corroborating evidence would very likely result in a different outcome. The Second Circuit notes that detective “Sweeny provided credible evidence that Ruiz simply parroted information supplied by an unscrupulous police officer.” Pp. 36.

Conclusion: The state’s failure to disclose this information prejudiced Lewis and the United States District Court is upheld.