Tag: Criminal Law

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The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15[1]), Criminal Trespass in the Third Degree (PL §140.10[a]), and Trespass (PL §140.05). Defendant moved pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

The case delineates the procedural history very carefully:

  • On May 14, 2015, defendant was arraigned on a misdemeanor complaint and the case was adjourned to July 6, 2015 to join. The People stated that they were ready as to all counts.
  • On July 6, 2015, the case was adjourned to August 17, 2015 for motion practice. This court directed defendant to file his motions on or before July 27, 2015.
  • On August 17, 2015, defendant filed a motion to dismiss on the grounds of facial insufficiency. The case was thereafter adjourned to November 10, 2015 for response and decision. In their papers in opposition filed on September 29, 2015, the People conceded that the accusatory instrument was facially insufficient. The People also submitted as an exhibit to their affirmation in opposition a copy of a superseding information which purportedly cured all of the defects in the original accusatory instrument. Pp. 1 (external quotation marks omitted)

The Court, somehow unaware of the speedy trial motion to dismiss, dismissed the misdemeanor informations on the basis of facial insufficiency. The People refiled the charges and the defendant moves to dismiss, again, on speedy trial grounds. The People contest the instant motion on the grounds that no time has run against the People because the People filed new charges. more

The Supreme Court reverses the Maryland Court of Appeals finding that James Kulbicki did not have effective assistance of counsel. Amongst legal scholars, the Strickland Standard is well known. Indeed, the Supreme Court “held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel.” Pp. 1 (citing Gideon v. Wainwright, 372 U. S. 335, 344 (1963)). “Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” Pp. 1 (quoting Strickland v. Washington, 466 U. S. 668, 687 (1984)). Some legal scholars have gone so far as to compare this standard to the foggy mirror test: hold a mirror underneath the criminal defense lawyer’s face to see if the mirror fogs – as long as it fogs, there is effective assistance of counsel.

The Supreme Court said that the Maryland Court of Appeals applied this standard “in name only” (pp. 1), finding an expert report favorable to the defendant unlikely to be found at the time and/or impact the finding of guilty. Here the expert testimony elicited at trial compared the lead in the bullet within the victim’s skull and the lead of the remaining bullets the defendant possessed and found it likely to be the same lead. It was Comparative Bullet Lead Analysis (“CBLA”) which, although accepted at the time, was contradicted by an report existing at the time written by Agent Peele. Like any good science, Comparative Bullet Lead Analysis has been criticized and fallen out of favor by current scientific standards: Remember, the expert at Kulbicki’s trial indicated that it was likely that the very same lead found in the victim’s brain that was also found in a box of bullets that Kulbicki purchased. Noting the errors in this science, “[o]ne of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box.” Pp. 2. The Maryland Court of Appeals, indicating that the testimony is at significant odds with what is taken as knowledge today, looked at this faulty assumption as a good reason to overturn this conviction.

The Supreme Court reverses, finding that “The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA.” “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Pp. 3. The Supreme Court critiques the Maryland Court of Appeals for second-guessing the trial strategy in light of what was a well-accepted science in the 1990s but not, as the Supreme Court indicated, an accepted science in 2003. “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Pp. 4. “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt there is any needle there.’” Pp. 4 (quoting Rompilla v. Beard, 545 U. S. 374, 389 (2005)).

The Supreme Court again asserts that the ineffective assistance of counsel standard is not perfect advocacy but reasonable competence. “Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.” Pp. 5. Reversed.

The case is Maryland v. James Kulbicki, 577 U.S. ___ (Oct. 5, 2015).

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)