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June 28, 1994


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 On November 19, 1992, defendant Joseph Corcoran was convicted upon a trial by jury of conspiring to kidnap and kidnapping, in violation of Title 18, United States Code, sections 1201(c) and (a). Defendant thereafter moved this court for a new trial pursuant to Rule 33, Fed. R. Crim. P., premising his motion on two grounds: (1) that he was denied effective assistance of counsel both prior to and during the trial; and (2) that he was denied his right under Rule 43(a), Fed. R. Crim. P. to be present at all stages of the trial. For the reasons that follow, his motion is denied.


 I. Procedural History

 Corcoran and a co-defendant, Adolfo Pisani, were arrested on May 27, 1992, and charged with conspiracy to kidnap another person, in violation of 18 U.S.C. ยง 1201. Defendant thereafter was arraigned by Magistrate Judge Azrack, who appointed Chris Termini, Esq., a member of the CJA Panel of this court, to represent him.

 Pursuant to a cooperation agreement with the government, on July 9, 1992, Pisani pleaded guilty to conspiring to kidnap and kidnapping. On August 20, 1992, Corcoran and a third defendant, Robert Lorenzo, were charged in a superseding indictment with conspiring to kidnap and kidnapping. Trial was scheduled for November 16, 1992; on the morning of trial, Lorenzo pleaded guilty to both charges in the superseding indictment. Corcoran proceeded to trial and, as stated above, on November 19, 1992, was found guilty on both counts.

 After the jury returned the verdict, the court authorized defendant to submit post-trial motions at the time of sentencing, and scheduled sentencing for February 4, 1993. (Tr. at 362-63) On January 12, 1993, Termini submitted a letter to the court asking to be relieved as counsel for defendant. See Affirmation of Lawrence Mark Stern, Dated July 20, 1993 ("Stern Affirm.") Ex. 2. The court granted Termini's motion on February 18, 1993 and appointed Lawrence M. Stern, Esq., also from the CJA Panel, to represent defendant. This motion followed.

 II. The Evidence Adduced at Trial

 A summary of the significant evidence adduced at trial follows. The complainant, Avraham Cohen, testified that shortly after midnight on May 4, 1992, he attempted to withdraw money from a cash machine located at the Chemical Bank on Bay Parkway, Brooklyn, New York. (Tr. at 42) As he left the bank, Cohen saw a man he identified as the defendant standing outside the bank, one or two feet away from the entrance; he indicated that the lighting conditions at this point were "very good." (Tr. at 42-43; 109) Cohen then drove on to the Belt Parkway, where another car cut in front of him in the right lane, forcing him to stop. (Tr. at 45) Two men -- identified as the defendant and Adolfo Pisani -- approached his car, and defendant dragged him out of the car and conducted a body search. (Tr. at 45-46) The men then pushed Cohen back into his car and drove away with Pisani driving, defendant in the passenger seat and Cohen between them. (Tr. at 47) Pisani, who testified for the government pursuant to a cooperation agreement, corroborated much of Cohen's testimony, as set forth below.

 The two men forced Cohen to accompany them to two banks in Brooklyn and three banks in New Jersey. (Tr. at 48-56; 120-25) At some point in Brooklyn (near the Verrazano Bridge), the defendant put a knife to Cohen's neck until Pisani told him to remove it; Cohen described the knife as dark wood in color, with a handle of four to five inches. (Tr. at 51-52; 123-24) Upon leaving the last bank in New Jersey, the two forced Cohen to direct them to his apartment in New Jersey, where they seated Cohen on the couch, covered him with a tablecloth and started "messing up" the apartment. (Tr. at 55-57; 125-28) Cohen later discovered that among other items, his television, cordless phone, iron, bank statement and checkbooks were missing. (Tr. at 83)

 The two men subsequently drove Cohen back to New York. In the car, they blindfolded him and forced him to sit with his head between his knees; according to Pisani, at one point, defendant indicated that he wanted to kill or blind Cohen so he could not identify them, but Pisani said no. (Tr. at 58; 129) Cohen testified that during the time he was in the car, he was able actually to see defendant's face at least four times, for five or ten seconds. (Tr. at 103-05)

 Corcoran and Pisani ultimately brought Cohen to a basement apartment in Brooklyn -- identified as defendant's -- where Cohen was told to get on the floor. Defendant then kicked Cohen in the back of the head, resulting in bruising around his eyes and a laceration across his nose. (Tr. at 60; 132-33) Cohen's hands and legs were tied, and he was left lying on the floor.

 At some point, Cohen managed to push the blindfold up on his forehead. (Tr. at 67-68) He testified that when defendant unzipped his pants so that he could use the bathroom, he saw that defendant's right arm was covered with a number of "green or gray" tattoos. (Tr. at 73) Cohen described the apartment as having red carpet, wood paneling, a kitchen floor that was white linoleum with blue stripes and a scalloped toilet seat. (Tr. at 75-77) In addition, Cohen testified that he overheard a third man -- identified as Robert "Bobby" Lorenzo -- make two phone calls to Chemical Bank, pretending he was Cohen. (Tr. at 61-62) He also overheard the defendant and Lorenzo discuss using his credit cards to purchase jewelry and sneakers (Tr. at 69); references to the names Moe, Corky and Pat (Tr. at 73); and mention of the telephone number 236-8275, which was the phone number at Pisani's apartment. (Tr. at 73-74; 150) Pisani, whose nickname is "Addy Boy," indicated that the defendant's nickname is "Corky," and that defendant uses the term "Moe" to refer to other people. (Tr. at 118) He also testified that defendant and Lorenzo used Cohen's credit cards to purchase jewelry and sneakers. (Tr. at 135-38)

 After being held in the apartment for more than twenty hours, Cohen was released. (Tr. at 80; 140-42)

 Agent Leonard W. Hatton of the Federal Bureau of Investigation (the "FBI") testified that he conducted a search of defendant's apartment with other agents pursuant to a search warrant. (Tr. at 187) The description of the apartment provided by Agent Hatton matched that provided by Cohen. (Tr. at 188-92) Agent Hatton also testified that the other agents and he seized a pair of white Reebok sneakers and their box located in the closet; a Black & Decker steam iron located in the kitchen on a table; a scrap of paper with the name "Addy Boy" and the telephone number 236-8275 written on it found in the closet area; letters addressed to "Moe" and signed by "Corky" found in the defendant's clothing; a knife which was black in color and approximately eight and one-half inches in length found on a dresser table in the bedroom; and cotton or nylon rope and electrical wire found in a utility closet. (Tr. at 192-98) Agent Hatton further testified that the utility closet was off the hallway leading to the defendant's apartment; that the closet contained boxes and tools; and that the door was not locked, but in fact was slightly ajar. (Tr. at 199-201; 203)

 In addition, Agent Michael Biasello of the FBI testified for the government. Agent Biasello stated that Cohen's credit card was used at a variety of stores in Brooklyn within an eight-block radius of defendant's apartment. (Tr. at 239) Based on an examination of telephone records, Agent Biasello indicated that numerous telephone calls were made between defendant's apartment and Pisani's residence, and that on the morning of the kidnapping, there were four phone calls between defendant's apartment and Chemical Bank. (Tr. at 241-44) Agent Biasello further alleged that defendant made the following post-arrest statements at the FBI office in Manhattan, after he was read his Miranda rights: that defendant did not kidnap or threaten anyone; that he knew Pisani but had not spoken with him for a month and a half; and that he refused to identify who "Addy Boy" was. (Tr. at 244; 256) Further, approximately three hours later, at the federal courthouse, defendant volunteered the statement "you ain't got shit. All you got is a stinking snitch." (Tr. at 245)


 I. The Ineffective Assistance Of Counsel Claim

 A. The Legal Standard

 Defendant bases his ineffective assistance of counsel claim on a number of asserted errors, occurring both before and during the trial. The legal resolution of his claim is governed by Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which requires a showing by defendant: (1) that his attorney's performance "fell below an objective standard of reasonableness, as determined by the range of competence required of attorneys in criminal cases," Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 1992); and (2) that there is a reasonable probability that but for counsel's errors, the result of the proceedings would have been different and more favorable to defendant. Lockhart v. Fretwell, 122 L. Ed. 2d 180, U.S. , 113 S. Ct. 838, 842 (1993); Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985). Failure to make the showing of either deficient performance or sufficient prejudice is fatal to an ineffectiveness claim. Strickland, 466 U.S. at 687; United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 957 (1987).

 Further, with respect to the first prong, defendant must overcome the presumption that, under the circumstances, the assistance of which he complains "might be considered sound trial strategy," Strickland, 466 U.S. at 689; "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Kimmelman v. Morrison, 477 U.S. 365, 381, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986). To this end, the reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error in light of all of the circumstances. Id. With respect to the second prong, the Supreme Court recently has emphasized that "an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Lockhart, 113 S. Ct. at 842.

 Defendant here attempts to circumvent the second prong of the Strickland test -- prejudice -- by arguing that he is entitled to a new trial on the ground that Termini was "constructively absent" and that prejudice therefore may be presumed. See Defendant's Memorandum in Support of Motion for a New Trial ("Def.'s Mem.") at 5-6. Defendant bases his argument primarily on the letter Termini sent to the court on January 12, 1993, in which Termini sought leave to withdraw as counsel and made the following statements: (1) that "despite what [he] believed to be overwhelming evidence and [his] best advice, the defendant exercised his right to trial"; (2) that Termini did his best to maintain a high degree of professionalism "despite what [he] perceived was the absolute worst course of conduct"; (3) that "in view of what occurred prior to and at the time of trial, the relationship between the defendant and [Termini had] become quite strained"; and (4) that he believed there were no appealable issues. *fn1" See Stern Affirm. Ex. 2. In addition, defendant maintains that counsel "effectively abandoned" him by failing to meet and speak with him frequently enough and meeting and speaking with him only in inopportune circumstances, failing to discuss possible pre-trial motions or trial strategy with him, failing to provide him with information he requested to prepare his case, and notifying him of the trial date only on the morning that trial was scheduled to commence. Affidavit of Joseph Corcoran, Sworn to May 9, 1993 ("Corcoran Aff.") PP 2-3; Supplemental Affirmation of Joseph Corcoran, Dated Nov. 9, 1993 ("Corcoran Affirm.") PP 3-7. Termini vigorously disputes these allegations regarding his performance. Affidavit of Chris Termini, Sworn to Oct. 13, 1993 ("Termini Aff.") PP 3-5; Supp. Termini Aff. PP 2-9. Finally, defendant alleges that numerous errors allegedly committed by his counsel before and during the course of the trial, described below, show that his counsel was constructively absent.

 Defendant's reliance on Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980) and United States v. Cronic, 466 U.S. 648, 658-59, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), as support for this argument is misplaced. In Cuyler, the Court focused on whether multiple representation of conflicting interests by counsel violated the Sixth Amendment; the Court concluded that "until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." 446 U.S. at 349-50. It is clear that counsel in this case -- even if he in fact felt that his relationship with defendant was strained and that defendant should have pleaded guilty -- was not laboring under such a conflict.

 In Cronic, the Court recognized that no showing of prejudice is required in certain limited circumstances, such as where counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding; where counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing," and where a defendant is "'denied the right of effective cross-examination.'" 466 U.S. at 659 & n.25 (citations omitted). The Court went on to note that "apart from circumstances of that magnitude . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 & n.26. After considering Termini's January 12 letter, Corcoran's claims concerning Termini's failure to meet with him and Termini's refutation of those claims, *fn2" as well as the errors asserted by defendant, discussed below, the court concludes that Termini's performance did not fall to the level envisioned by the Cronic Court, and defendant therefore is required to prove prejudice under Strickland. Cf. United States v. Reiter, 897 F.2d 639, 644-45 (2d Cir.) (refusing to presume prejudice where trial counsel failed to make motions to suppress and to effectively cross-examine witness and where counsel had pleaded guilty to a misdemeanor forgery charge before trial commenced and was late and absent various times during trial), cert. denied, 498 U.S. 817, 112 L. Ed. 2d 34, 111 S. Ct. 59 (1990); United States v. Sanchez, 790 F.2d 245, 254 (2d Cir.), cert. denied, 479 U.S. 989, 93 L. Ed. 2d 587, 107 S. Ct. 584 (1986) (recognizing that requirement of showing prejudice is dispensed with only in "rare instances").

 B. The Pre-Trial Claims

 Defendant first argues that trial counsel was deficient in failing to make several pre-trial motions, including a motion to suppress certain physical evidence, a motion to suppress Cohen's in-court identification and a motion to suppress post-arrest statements by defendant. In addition, defendant alleges, counsel failed to adduce evidence on his behalf. These contentions all are without merit.

 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. *fn3" 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 ...

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