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LESLIE v. ARTUZ
October 21, 1999
ANTHONY LESLIE, PETITIONER,
CHRISTOPHER ARTUZ, RESPONDENT.
The opinion of the court was delivered by: Sweet, District Judge.
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
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.
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
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,
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.
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
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
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 ...