A broad range of rhetorical devices are allowed in closing arguments
without requiring reversal. See United States v. Marrale, 695 F.2d 658,
667 n. 9 (2d Cir. 1982) (characterization of defense as "woven out of the
thread of desperation and thread that unravels [sic] before you" did not
deprive the defendant of a fair trial); Modico, 663 F.2d at 1181 (noting
that prosecutor's occasional use of phrases such as "I'm telling you" or
"I suggest to you" would "simply [be] fair argument"); United States v.
Peterson, 808 F.2d 969, 977 (2d Cir. 1987) (reference to witness's rap
sheet "longer than the jury rail" and characterization of defendant's
testimony as a "lie" was not improper).
Leslie claims that the prosecutor mischaracterized evidence presented
at trial by, inter alia: (1) inviting the jury to themselves compare the
positioning of the cartridge indentations in order to conclude that the
test-fired cartridges and the cartridge with the shallow impression all
bore the mark of the same firing pin, despite the absence of any expert
opinion on this issue; (2) suggesting that a misfire could have occurred
if a piece of cloth became caught in the hammer of the gun; and (3)
stating that Officer Negus heard the "unmistakable" click of a trigger
being pulled and a hammer going down, when the only admissible evidence
offered at trial was that Negus heard a loud, metallic click. Leslie also
presses that the prosecutor improperly offered his personal view on
Leslie's guilt by stating, in response to the defense's contention that
Leslie had no motive to attack the police officers, that "we know what
[Leslie's] intent was and that was to kill Police Officer Negus."
As explained above, however, the standard for reversal of a criminal
conviction based upon improper prosecutorial comments is extremely high.
In light of this standard, this Court cannot say that the prosecutor's
comments had a substantial or injurious effect on the jury's decision.
First, at multiple points throughout the trial Judge Rothwax cautioned
the jurors that statements made by attorneys during either the opening
arguments or the closing statements are not evidence, and were not to be
considered by the jurors as such.
Second, the prosecutor's use of the royal "we" seems less a personal
statement of belief, when read in the context of the prosecutor's
summation and, more specifically, the passages immediately preceding the
comment, than a rhetorical flourish that did not result in any prejudice
to Leslie. See United States v. Williams, 583 F.2d 1194, 1201 (2d Cir.
1978) (prosecutor's use of phrase "we know" not improper; noting that
"[t]here is no proof or indication that the term "we" was used, or
intended, or taken by anyone, to mean any person or group other than the
total accumulation of people gathered in the courtroom, or that it was
used to suggest personal knowledge of the prosecutor outside the
record"); United States v. Chin, 910 F. Supp. 889, 898 (E.D.N.Y. 1995)
(prosecutor's occasional use of such phrases as "we know" and "I submit"
was not impermissible).
Third, while several of the prosecutor's comments regarding the firearm
went beyond the four corners of expert testimony at trial, they did not
stray so far as to have been beyond the confines of the evidence produced
at trial. After all, the jury was not required in the first instance to
depend exclusively on the expert testimony presented in coming to its
conclusions. Furthermore, comments such as the prosecutor's remark that
an item of clothing could have caught the hammer of the gun are merely
reasonable extrapolations from other evidence submitted to the jury.
The Court thus finds itself in agreement with the First Department that
"[i]n each instance, the remarks represented either fair comment on the
evidence, acceptable summation rhetoric, or [at worst] a minor
misstatement of testimony not reasonably likely to create undue prejudice
to [the] defendant." Leslie II, 232 A.D.2d at 100,
662 N.Y.S.2d at 765. Furthermore, to the extent that any comments were
made in error, they were not so prejudicial that they rendered the trial
in question fundamentally unfair. See Garofolo, 804 F.2d at 206.
V. Leslie Has Established No Prejudicial Error in the Admission of
Testimony Concerning Property Recovered During a Custodial Search
Leslie presses that his conviction must be vacated because Judge
Rothwax erroneously allowed the prosecutor to elicit testimony concerning
property recovered from Leslie after his arrest. At trial, Officer Drogin
testified that he recovered $4,000 and an "expensive" watch from Leslie
when he performed a thorough search at the Precinct house, and that he
delivered the money to the Property Clerk. Leslie and the People
stipulated at trial that the money and watch initially taken from Leslie
at the Precinct were ultimately returned to him.
At trial, White had sought an advance ruling from Judge Rothwax
concerning the People's use of testimony concerning the money and watch.
Despite initial misgivings about the relevance of these items, Judge
Rothwax concluded that they were admissible given that the defense
challenged the officers' veracity and claimed the prosecution to be the
result of a frameup. Judge Rothwax allowed the prosecution to raise the
recovery of the property on redirect, though he instructed the prosecutor
not to elicit any testimony concerning the denominations in which the
$4,000 was recovered.
A review of the record indicates no reason to believe that the jury
would have utilized the information about the property recovered from
Leslie to improperly conclude that Leslie intended to kill a police
officer. This was not a case, for example, in which the prosecution
sought to convict Leslie for narcotics offenses, and the money recovered
might lead jurors to assume, improperly, that the defendant was engaged
in illegal trafficking.
Here, the ultimate issue presented to the jury was whether they
believed Leslie intended to shoot and kill a police officer. The recovery
of large amounts of money, whatever else it might lead a juror to infer,
would be unlikely to influence the jury's evaluation of this issue.
Moreover, in the People's summation, the prosecutor's reference to the
money and watch explicitly indicated to the jury the purposes for which
the evidence had been admitted. Referring to the defense's contention
that the officers were lying, the prosecutor remarked that the officers'
vouchering and return of the money would not make sense if Negus and
Drogin were, in fact, dishonest.
In Leslie II, the First Department found that admission of this
evidence, deemed relevant to credibility issues raised by Leslie
regarding the honesty of Officers Drogin and Negus, constituted an
appropriate exercise of the trial court's discretion. See 232 A.D.2d at
100, 662 N.Y.S.2d at 765. Even if this Court were to disagree with this
notion, the admission of such evidence was not prejudicial.
Consequently, Leslie's petition is dismissed insofar as it seeks relief
on this claim.
VI. Leslie's Simultaneous Representation By White and Green Does Not
Constitute Per Se Error; Leslie Has Not Established Any Conflict of
Interest Requiring A New Trial
In his petition, as in his state court proceedings, Leslie has
steadfastiy maintained that Green's representation during "critical
stages" of his trial compromised his Sixth Amendment right to counsel,
requiring automatic reversal of his conviction without regard to the
actual effectiveness of the defense team's representation. The People
have countered that the instant case does not occasion an invocation of
such a "per se" reversal rule.
The Court concludes that, given the unique circumstances of Leslie's
representation at trial, the per se reversal rule traditionally applied
where a defendant is represented by an imposter lawyer does not apply to
the facts of Leslie's case.
As Leslie has correctly observed, a defendant's representation by an
imposter attorney-one who has never been licensed or authorized to
practice law in any jurisdiction-requires reversal. See United States v.
Novak, 903 F.2d 883, 887-88 (2d Cir. 1990) (representation by imposter
at trial is per se reversible error, given defendant's right to
representation by licensed attorney-at-law); Solina v. United States,
709 F.2d 160, 168 (2d Cir. 1983) (representation by imposter constitutes
"jurisdictional" defect not amenable to harmless error review). This "per
se" rule of reversal applies even where the evidence of the defendant's
guilt was overwhelming, or where the imposter's representation was
otherwise competent. See Solina, 709 F.2d at 163, 168. While the Second
Circuit has periodically expressed a lack of enthusiasm for applying this
rule, see Guerrero v. United States, 186 F.3d 275, 279 (2d Cir. 1999)
(citing Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir. 1992) (en banc)),
there is little question but that a defendant solely represented by an
imposter would be entitled to relief under Section 2254.
The Second Circuit has also recognized that a defendant's
representation may be inherently suspect under a conflict-of-interest
analysis, given that a vigorous defense might potentially expose an
imposter, or an attorney implicated in the defendant's crimes, to
scrutiny and lay bare his or her illegal behavior. See Guerrero, 186 F.3d
at 279-80; Bellamy, 974 F.2d at 306-07; Novak, 903 F.2d at 888; United
States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984); Solina, 709 F.2d at
Moreover, in a distinct-if logically related-line of authority, courts
have found a violation of Sixth Amendment rights where counsel was
absent, either physically or constructively, for part of a trial or other
critical stages of a criminal proceeding. See Tippins v. Walker,
77 F.3d 682, 684, 686-87 (2d Cir. 1996) (holding that rule of per se
prejudice applies where counsel was "repeatedly unconscious at trial for
periods of time in which defendant's interests were at stake"); Green v.
Arn, 809 F.2d 1257, 1263 (6th Cir.), vacated on other grounds,
484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated,
839 F.2d 300 (6th Cir. 1988) (finding Sixth Amendment deprivation
where counsel absent during afternoon of trial; harmless error inquiry
inappropriate if counsel absent during taking of evidence on defendant's
guilt); see also Henderson v. Frank, 155 F.3d 159, 171 (3d Cir. 1998)
(finding that prejudice presumed and entire criminal proceeding
"contaminated" where defendant's counsel was absent from suppression
hearing); French v. Jones, 41 F. Supp.2d 726, 733-34 (E.D.Mich.
1999) (finding that automatic reversal of conviction required where counsel
not present during re-instruction of jury, despite "short-lived" nature of
deprivation). But see Vines v. United States, 28 F.3d 1123,
1127-29 (11th Cir. 1994) (finding that trial counsel's temporary absence
during taking of evidence did not constitute per se error, and did
not prejudice defendant); but c.f. Duncan v. Griener, No. 97 Civ. 20890,
1999 WL 20890, at *12 (S.D.N.Y. Jan. 19, 1999) (counsel's temporary absence
from month-long trial did not violate clearly established Federal right, as
defendant consented to absence and was represented by co-defendant's
counsel during absence).
Had Green been Leslie's sole, or even primary, representative at
trial, or had White not been present during selected portions of the
trial, a more difficult question would be presented. However, as Judge
Rothwax-the presiding judge at trial — observed in Leslie I, and as
an independent review of the record makes clear, White was both present
throughout the trial and assumed a preeminent role in
Leslie's defense. Leslie was, in fact, represented by a bonafide lawyer
throughout the entire trial. Unlike Novak, where the defendant was
represented by both local counsel and an imposter, and the local counsel
failed to actively represent the defendant at trial, *fn2 Leslie was
vigorously represented by a lawyer throughout all critical stages of his
Under such circumstances, the per se reversal rule articulated in
Solina and Novak does not necessarily apply. C.f. United States v.
Rosnow, 981 F.2d 970, 972 (8th Cir. 1992) (holding that logic of Solina
does not apply and petitioners' Sixth Amendment rights are adequately
protected "if co-counsel provides petitioners with effective assistance at
all critical stages of the proceedings"). Moreover, while in Novak and
other decisions the Second Circuit has indicated that an imposter's
conflict of interest-presumed from his or her assumed desire to remain
undiscovered-also demands reversal of the unwitting defendant's
conviction, this presumption does not apply to White, who was himself
licensed to practice law in other jurisdictions. C.f. United States v.
Aiello, 900 F.2d 528, 532 (2d Cir. 1990) (holding, in part, that Solina
rule on conflict of interest did not apply "since it has never been in
doubt that [defendant's counsel] . . . was an authorized attorney at the
time of . . . [trial]," and "was not in danger of being exposed as some
kind of impostor."). Other than a few conclusory assertions that White
could have been aware that Green was not licensed, contrary to the trial
judge's finding that White was unaware that Green was an imposter, Leslie
has not provided the Court with anything indicating that the conflict
rule first articulated in Solina should be applied in this case.
Furthermore, Leslie has failed to convince the Court that reversal is
required under the general conflict-of-interest standard set forth in
Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333
That White was himself not admitted in New York, and that his pro hac
vice admission was secured by virtue of an application by Green, does not
change this analysis. As a number of courts have held, the rules set
forth in Novak and Solina do not apply where the defect in an attorney's
admission is de minimus or where an attorney is licensed in foreign
jurisdictions. See Kieser v. People, 56 F.3d 16, 17 (2d Cir. 1995)
(holding that per se rule does not apply where attorney was temporarily
suspended and failed to move for pro hac vice admission, given that he
was duly licensed in New Jersey); Ferrara v. Keane, 806 F. Supp. 472, 474
(S.D.N.Y. 1992) (refusing to apply Solina, despite attorney's failure to
apply for pro hac vice admission in New York, where attorney duly licensed
in New Jersey), aff'd, 2 F.3d 403 (2d Cir. 1993), cert. denied,
510 U.S. 897, 114 S.Ct. 265, 126 L.Ed.2d 217 (1993); see also Guerrero,
186 F.3d at 280-81 (finding that reversal of conviction not required
because attorney suspended from practice before court in which defendant
sentenced; noting that attorney's "disqualification in the Eastern
District cannot be taken to mean that be was no 'counsel' at all");
Novak, 903 F.2d at 888 (observing that technical flaws in licensure, such
as failure to seek admission to particular federal court or failure to
comply with local rules requiring out-of-state attorney to be accompanied
by local counsel, are not considered sufficient to deprive defendant of
Sixth Amendment right to counsel).
Therefore, vacatur of Leslie's conviction is not required by virtue of
Green's participation in Leslie's defense. Moreover, Judge Rothwax did
not violate Leslie's due process rights by refusing to conduct an
VII. Leslie Has Not Demonstrated Ineffective Assistance of Counsel
"The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); see United States v. DiTommaso, 817 F.2d 201, 215 (2d
Cir. 1987); Roberts v. Scully, 875 F. Supp. 182, 194 (S.D.N Y 1995),
aff'd, 71 F.3d 406 (1995). To prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate, first, that his
counsel's representation fell below "an objective standard of
reasonableness" under "prevailing professional norms," and, second, that
without the unprofessional performance of counsel, a reasonable
probability exists that the outcome of the proceeding would have been
different. Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052: see also
Guerrero, 186 F.3d at 281; United States v. Romero, 54 F.3d 56, 59-60 (2d
Cir. 1995); United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994). Both
elements of this Strickland test must be satisfied before it can be
concluded that "counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104
A petitioner seeking to establish constitutionally ineffective
assistance of counsel must overcome "a strong presumption that counsel's
conduct falls within the wide range of professional assistance; that is
. . . that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 689, 104 S.Ct. 2052 (quoting
Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 100 L.Ed. 83
"[T]he Strickland standard is quite deferential." Roberts, 875 F.
Supp. at 195. A conviction will not be overturned when counsel provided
"reasonably effective assistance" to the petitioner. Strickland, 466
U.S. at 687, 104 S.Ct. 2052. A claim of "constitutional dimension does
not arise unless a lawyer's error is so egregious as to amount to a
failure to provide minimal professional representation." Roberts, 875 F.
Supp. at 195. Under the standard above, a counsel's tactical decisions,
"even those that go awry, will not provide the factual predicate for a
Sixth Amendment claim." Id.; see United States v. Eisen, 974 F.2d 246,
265 (2d Cir. 1992).
As stated at the outset, Leslie has pressed that Green's involvement in
his defense rendered his legal defense insufficient as a whole, given the
fact that the defense's sole witness was examined by Green and that
ballistics evidence was crucial to Leslie's defense. Leslie has also
alleged a laundry list of oversights, such as his representatives'
failure to move to suppress the money and watch seized from petitioner,
make a motion to preclude the prosecution from using Leslie's prior
convictions during cross examination, or conduct an "adequate" pretrial
investigation, all of which he believes to have compromised his defense
and resulted in his conviction.
However, Green's involvement in Leslie's defense, standing alone, does
not compel the conclusion that Leslie was denied effective assistance of
counsel. As explained above, White conducted the lion's share of the
defense, cross-examined all of the witnesses with first-hand knowledge of
the events that transpired on November 17, 1987, dominated the vast
majority of colloquies with the court and with opposing counsel, and was
present throughout Leslie's entire trial.
Moreover, a review of the trial transcript, while it does reveal that
Green asked Breglio some awkward questions — concerning which Judge
Rothwax requested clarification-indicates that Green's contributions at
trial were coherent, and even helpful.
For the reasons set forth above, I recommend that the Court deny
petitioner Roldan's habeas corpus petition.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from
service of this Report to file written objections. See also Fed.R.Civ.P.
6. Such objections (and any responses to objections) shall be filed with
the Clerk of the Court, with courtesy copies delivered to the chambers of
the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an extension of
time for filing objections must be directed to Judge Batts. Failure to
file objections will result in a waiver of those objections for purposes
of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.
1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994);
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825,
121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55,
57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.
1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).