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JONES v. VACCO

August 13, 1996

CHARLES JONES, Petitioner, against DENNIS VACCO, Attorney General of the State of New York, Respondent.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Petitioner Charles Jones, a New York State prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends that his Sixth Amendment right to counsel was violated when the trial judge ordered him to refrain from consulting with his attorney during a prolonged break in Petitioner's cross-examination.

 I. Factual Background

 On April 15, 1993, Petitioner was indicted for unlawfully entering the apartment of his employer, Marla Maples, and stealing various items of her property. He was charged with second degree burglary and fourth degree criminal possession of stolen property in violation of New York Penal Law §§ 140.25(2) & 165.45(1). Because a search of Petitioner's office uncovered a loaded .25 caliber semi-automatic pistol, he was also charged with criminal possession of a weapon in the fourth degree. See New York Penal Law § 265.02(1).

 After a three-week jury trial before New York Supreme Court Justice Richard Andrias, Petitioner was convicted of all charges. On April 6, 1994, he was sentenced to one and one-half to four and one-half years in prison on the burglary count, and to concurrent lesser sentences on the remaining counts. Petitioner appealed his conviction and the New York State Supreme Court, Appellate Division, affirmed. See People v. Jones, 642 N.Y.S.2d 246 (1st Dep't 1996). On June 11, 1996, Petitioner's application for leave to appeal to the Court of Appeals was denied. See People v. Jones, N.Y.2d (1996). Petitioner filed this petition on June 27, 1996. Petitioner surrendered to the authorities on June 28, 1996, after bail was denied.

 A. The Ban on Consultation

 At trial, Petitioner testified on his own behalf. On Thursday, February 10, 1994, Petitioner was being cross-examined when the trial judge declared an overnight recess. After excusing the jury, the judge issued the following order:

 
The Court: All right. Now, Mr. Jones, this is a court order and [applies to] every witness. He [your attorney] is not to speak with you about other than train schedules or anything because you are in the middle of cross-examination. Do you understand that?

 Following a brief discussion about other matters, Petitioner's trial counsel, Anthony Morosco, objected to the court's ban on consultation:

 When the trial judge expressed confusion about the nature of the objection, Petitioner's attorney clarified to which order his exception applied:

 
Mr. Morosco: The order that the defendant not discuss the case with his attorney overnight. I most respectfully, we will comply with it, but I take an exception to it.

 The proceedings were then adjourned with the understanding that they would continue the following morning.

 On Friday, February 11, 1994, a snowstorm struck the New York City area. Although the trial judge, prosecutors, defense counsel and Petitioner were able to get to court, some of the jurors never arrived. Unable to continue with cross-examination, the court adjourned the trial until the following Monday.

 The record does not reflect whether, on Friday morning, there was any discussion concerning the court's prior ban on consultation and whether it would continue over the weekend. The only stenographic record of the events that transpired is the single notation that proceedings were adjourned until Monday. See Respondent's Memorandum of Law in Support of Answer Opposing Petition ("Resp. Mem.") at 3, n.*. Petitioner contends that the ban was not discussed and that he assumed it remained in effect throughout the weekend. Respondent maintains that Petitioner's attorney mentioned the ban, and that the trial judge ...


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