1. Physical Evidence
Defendant argues that he was denied effective assistance of counsel because Termini failed to move to suppress certain physical evidence seized from his apartment pursuant to a search warrant. See Def.'s Mem. at 6-8. According to defendant, because the terms of the warrant were so "flagrantly and generally ignored," all items seized should have been suppressed; at the very least, defendant argues, the knife, letters, sneakers and the rope and electrical cord seized from the utility closet should have been suppressed. To prevail on this claim, defendant not only must satisfy the two-pronged Strickland test, but he also must "prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman, 477 U.S. at 375.
With respect to the items that were seized but were not introduced at trial, including a microcassette, two of three pairs of sneakers, a survival knife, a calendar, coffee cups, glasses and certain papers and documents, because these items were not offered into evidence, even if they were seized unlawfully, they could not possibly have had any effect on the verdict. The court thus need go no further to conclude that this portion of defendant's motion is meritless.
Regarding the rope and electrical cord that were seized from the utility closet (and were admitted into evidence at trial), defendant argues that because the warrant did not specifically authorize a search of the closet, which was located on the basement level in the hallway outside of defendant's apartment, the search and seizure of these items were beyond the scope of the warrant. The government, in turn, argues that defendant did not have standing to object to the search, and that Termini therefore acted reasonably in failing to make a suppression motion.
To have standing to object to a search, an individual must establish that he had a reasonable expectation of privacy in the place searched. See Rawlings v. Kentucky, 448 U.S. 98, 100, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980). The inquiry into whether such a reasonable expectation of privacy exists is twofold: first, the individual must demonstrate a subjective desire to keep his effects private; and second, the individual's subjective expectation must be one that society accepts as reasonable. United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988) (citing California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979)), cert. denied, 490 U.S. 1052 (1989).
Here, defendant's trial counsel exercised his reasonable professional judgment in deciding not to move to suppress the items seized from the utility closet. Based on the facts that the door to the closet was unlocked and indeed was slightly ajar when the FBI agents searched defendant's residence, and that Joseph Salomone, the superintendent of the building, used the closet to store his tools, Affidavit of Michael Biasello, Sworn to Oct. 14, 1993 ("Biasello Aff.") P 9, counsel reasonably could have concluded that defendant did not have a reasonable expectation of privacy in the closet and hence had no standing to bring a motion to suppress the items seized from the closet.
Cf. United States v. Chen, 629 F. Supp. 263, 270 (S.D.N.Y. 1986) (finding that the defendant had a privacy interest in a locked safe inside a locked closet in the open stairwell of the house he shared with his in-laws; both the defendant and his in-laws had keys to the closet and knew the combination to the safe, and the defendant admitted the safe was his).
Defendant argues further, with regard to the physical evidence at issue, that Termini provided ineffective assistance by failing to move to suppress the black-handled knife, the Reebok sneakers and box and the correspondence with references to the names "Corky" and "Moe." Because the knife was found on a dresser table in defendant's bedroom (Tr. at 194), it clearly was in "plain view;" therefore, as the Supreme Court held in Horton v. California, 496 U.S. 128, 142, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990), "the search was authorized by the warrant; the seizure was authorized by the 'plain view' doctrine," and both therefore were legal. With respect to the sneakers, the warrant authorized seizure of "sneakers purchased on or after May 4, 1992, with a Credit Card." Stern Affirm. Ex. 3. While the agents did not know at the time of seizure how or when the sneakers were purchased, because the sneakers were new and were still in their box, they reasonably could have been one of the items named in the warrant. See Dale v. Bartels, 732 F.2d 278, 284 (2d Cir. 1984) (permissible to seize items named in warrant during search conducted pursuant to warrant). And finally, with respect to the letters containing references to "Corky" and "Moe," given that seizure of certain documentary evidence was authorized by the warrant, and the relevance of the letters would be readily apparent, their seizure was not inappropriate. See id. (permissible to seize, inter alia, any evidence of a crime that is discovered in the course of a search of legitimate scope).
Finally, even if the agents had acted unlawfully in seizing the evidence discussed above -- and they did not -- the proper remedy would be suppressing and returning the items improperly seized, and not invalidating the entire search. United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) ("When items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items, not invalidation of the entire search . . . . Courts have also indicated that the drastic remedy of the suppression of all evidence seized is not justified unless those executing the warrant acted 'in flagrant disregard' of the warrant's terms.") (citations omitted). Defendant's argument that wholesale suppression is required therefore is baseless. In any event, given the overwhelming evidence against defendant, described below in section I.D, he is unable to prove a "reasonable probability" that the verdict would have been different if counsel had moved to suppress the above-described evidence, or that the trial was rendered fundamentally unfair due to counsel's alleged errors.
2. In-Court Identification
Defendant also challenges Termini's failure to move to suppress Cohen's identification of defendant. Termini originally filed a motion to suppress the photographic identification, but then withdrew it, believing it to be without merit. See Termini Aff. P 6. This decision involved a tactical choice by Termini, which is entitled to deference and must not be subjected to the "distorting effects of hindsight." Strickland, 466 U.S. at 689.
In any event, Termini's decision not to move to suppress the photographic identification certainly did not demonstrate deficient performance by him. When a witness has made a pre-trial identification, the analysis of whether he will be permitted to testify at trial involves a two-pronged inquiry: first, the court must determine whether the pre-trial identification procedures were "unduly suggestive of the suspect's guilt"; second, if the procedures were unduly suggestive, the court must "weigh the suggestiveness of the pretrial process against factors suggesting that an in-court identification may be independently reliable rather than the product of the earlier suggestive procedures."
United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991). The Second Circuit has noted that
if there is nothing inherently prejudicial about the presentation, such as use of a very small number of photographs or of suggestive comments, the "principal question is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit.'" Jarrett v. Headley, 802 F.2d [34, 41 (2d Cir. 1986)] (quoting United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). The array must not be so limited that the defendant is the only one to match the witness's description of the perpetrator.