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LESLIE v. ARTUZ

October 21, 1999

ANTHONY LESLIE, PETITIONER,
v.
CHRISTOPHER ARTUZ, RESPONDENT.



The opinion of the court was delivered by: Sweet, District Judge.

    OPINION

Anthony Leslie ("Leslie") has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he was denied his right to counsel when he was represented by a non-attorney during critical stages of his trial, and was denied due process of law when the trial court failed to conduct an evidentiary hearing concerning that defect in representation; (2) he was denied effective assistance of counsel because his representatives failed to (a) meaningfully cross-examine the prosecution's ballistics expert, (b) effectively present the testimony of a ballistics expert testifying in Leslie's defense, (c) move to suppress both money and a watch seized from Leslie as a result of his "unconstitutional seizure", (d) make a motion to preclude the prosecution from utilizing Leslie's prior convictions during cross examination, (e) conduct an adequate pretrial investigation, (f) make a timely application, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), concerning the prosecution's use of peremptory challenges, (g) move to dismiss the indictment on the grounds that the prosecution had failed to establish a legally sufficient case, and (h) object to and move for a mistrial based upon the prosecutors "erroneous and prejudicial" comments during summation; (3) the prosecutor's use of peremptory challenges constituted a violation of Batson, 476 U.S. at 79, 106 S.Ct. 1712; (4) he was denied due process of law by being convicted upon insufficient evidence; (5) he was denied due process of law by the prosecutor's comments, in summation, concerning matters not in evidence; and (6) he was denied due process of law when the trial court admitted irrelevant and prejudicial evidence concerning money and a watch recovered from Leslie after his arrest.

For the reasons set forth below, the petition is dismissed.

The Parties

Leslie is presently incarcerated at Green Haven Correctional Facility ("Green Haven") in Stormville, New York pursuant to the judgment of conviction at issue.

Christopher Artuz ("Artuz") is the Superintendent of Green Haven.

Facts and Prior Proceedings

By an indictment filed December 4, 1987, Leslie was charged with one count each of Attempted Murder in the First Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the Second and Third Degrees.

In a June 29, 1988 judgment of the Supreme Court, New York County, Leslie was convicted of Attempted Murder in the First Degree, a violation of New York Penal Law § 100.00, 125.27(1)(a)(i). The judgment came after a two-day long jury trial at which the Honorable Harold J. Rothwax presided. Leslie was sentenced to a term of incarceration of from twenty-five years to life,

A.  The Trial
1.  The People's Case

At approximately 11:00 p.m. on November 17, 1987, police officers patrolling in an unmarked car spotted a Suzuki Samurai with tinted windows and out-of-state plates driving slowly around 159th street in upper Manhattan. Periodically, the car would slow down or stop, and pedestrians would approach the car to peer inside — only to walk away quickly, looking back over their shoulders. The officers observed this behavior for some time. At a time when the car was temporarily parked, the officers put an "FBI" light on their dashboard and approached the car on foot. A pedestrian who had been leaning in the window of the car then ran away. The vehicle had two occupants.

Officer John Negus ("Negus") asked Leslie, the driver, for his license and registration, while Officer Donald Drogin ("Drogin"), approached the passenger. Drogin noticed that Leslie's passenger appeared to be nervous, and Negus observed hesitation on the part of Leslie to switch off the car's ignition. Negus also observed that Leslie pulled a jacket in front of him and moved his hands towards his wallet, Drogin told Negus that something was wrong; and the officers ordered both men out of the car. They complied, but Leslie sidestepped toward the. rear of the car while repeatedly moving his hands towards his waist. After warning Leslie about this, Officer Negus then reached over and felt what he believed to be a gun in Leslie's waistband. At that moment, Leslie struck Negus in the head with his elbow and produced a black metal object with some white showing, pointing it at Drogin. Negus warned Drogin that Leslie had a gun. Drogin looked up and saw a gun waved in his direction, and pushed the passenger to the hood of the car. At that point, Leslie swung the object in the direction of Negus, pointing it at his head. Negus ducked underneath the object, heard a loud, metallic. click, and ran Leslie into the car backwards, causing Leslie to throw or release it such that it landed on the other side of the street.

After a struggle, and with the assistance of backup officers, Leslie was restrained and a handgun ("the gun") recovered from the scene. The gun, which was pearl-handled with a black barrel and was loaded with six rounds, had its hammer closed. The gun's handle was also partially broken, which the officers attributed to its impact with the ground. The bullet recovered from the firing chamber ("the bullet") had a slight indentation in its primer.

At trial, the prosecution produced a ballistics expert, Detective Robert Cotter ("Cotter"), who testified that the gun and ammunition were operable, but that he could not specifically identify the cause of the shallow indentation in the bullet's primer. Cotter also testified that the indentation was not sufficiently deep such that he could identify it as being caused by a firing pin of a handgun.

2.  The Defense's Case

The essence of the defense's theory at trial was that Leslie had never pulled a firearm on the police, that Negus and Drogin were lying, and that, for reasons unknown, the officers had framed Leslie. At trial, the defense contended, inter alia, that the prosecution's explanation of events did not make sense, that the handgun found by the police functioned perfectly well and would not have misfired had Leslie actually attempted to shoot Negus, that the imprint left on the bullet could not be traced to the handgun recovered from the scene or even a firing pin from any gun, and that had Leslie actually attempted to shoot an experienced police officer such as Negus, he would have likely been shot himself. The defense also questioned the police's decision not to test the handgun recovered from the scene for fingerprints.

The defense's only witness at trial was Robert Breglio ("Breglio"), a ballistics expert whose testimony focused on the denting of the primer. In the main, Breglio's testimony paralleled that of Cotter. Breglio testified, for example, that while the bullet's indentation could have been made by a gun, one could not say that it was necessarily made by a gun rather than some other tool, such as a nail or a "punch." Breglio also testified that a "misfire" would have resulted in a firing pin impression every bit as deep as a fired bullet, and that a misfire occurs when the firing pin bits the primer sufficiently hard, but for some reason does not ignite it.

3.  Leslie's Representation at Trial

After his initial arrest, Leslie retained Terrence Green ("Green") to represent him. In addition, Leslie's family retained Blame A'mmon White ("White"), an attorney admitted to practice law in Pennsylvania, the District of Columbia, and several federal courts. White was not admitted, however, in New York. On February 11, 1988, Green sought an order admitting White in New York pro hac vice. In his motion papers seeking White's admission, Green represented that he was an attorney duly licensed to practice law in New York, and that he would accompany White at "each and every stage of this proceeding."

Despite Green's representations, however, Green had never been admitted to the bar of any State, had never graduated from law school, and was not licensed to practice law in any manner. Green was, in common parlance, an "imposter" lawyer.

At trial, White delivered the opening statement, cross-examined three of the People's four witnesses, and gave the defense summation. Most, but not all, of the defense's exchanges with the court and with opposing counsel, including side-bar discussions, featured White rather than Green. Green's involvement at trial was predominately ballistics-related. Green questioned the ballistics expert called to testify for the People, and presented the only witness for the defense — Breglio. A review of the record also reveals that Green was present at the laboratory tests conducted on the gun recovered from the crime scene. On a number of occasions throughout the trial, Green objected to the prosecutor's line of questioning on a variety of matters.

Leslie was represented at sentencing by both White and Green, though the record indicates that only White played an active role during the proceedings, which included a colloquy concerning a defense motion to vacate Leslie's conviction.

B. Post-Conviction Proceedings

On July 7, 1988, Leslie filed a timely Notice of Appeal to the Appellate Division, First Department.

On appeal, Leslie initially contended that: (1) there was insufficient evidence to prove Leslie's guilt beyond a reasonable doubt, and that his conviction was therefore improper under Jackson v. Virginia. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); (2) he was denied a fair trial by the prosecutor's improper comments during summation; and (3) his sentence was excessive.

In 1990, Leslie wrote the Departmental Disciplinary Committee of the First Department to complain about Green. By letter dated April 26, 1990, the Committee notified Leslie that Green was, in fact, not licensed to practice law in New York. It was later learned that Green had never attended law school, and was not licensed to practice law in any state.

In January of 1992, Leslie moved to vacate the judgment, contending that Green's impersonation had denied him the effective assistance of counsel and prejudiced his defense. By supplemental affirmation dated February 20, 1992, Frances Gallagher, of counsel at the Legal Aid Society, urged vacatur of Leslie's conviction, pressing that representation by Green was tantamount to no representation at all, and that Leslie's conviction should therefore be reversed. The People opposed Leslie's motion, noting White's ...


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