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February 20, 2002


The opinion of the court was delivered by: David G. Larimer, Chief Judge


Defendant, Thomas Aquino ("Aquino"), was convicted after a jury trial for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2), and for possession of a stolen firearm, in violation of § 922(g) and 924(a)(2). On appeal to the United States Court of Appeals for the Second Circuit, the conviction for possession of ammunition was vacated and dismissed and the matter was remanded for resentencing. The Second Circuit also remanded for this Court to consider the ineffective assistance of counsel claims raised by Aquino in his direct appeal.

On remand, the Court relieved former counsel, Robert G. Smith, Esq. ("Smith"), Assistant Federal Public Defender, and appointed new counsel, Lawrence J. Kasperek, Esq. Defendant then moved for a new trial on the grounds of ineffective assistance of counsel (Dkt. #55). The Government responded to the motion and the Court heard oral argument. The Court also conducted an evidentiary hearing on the motion on November 5, 2001. At that hearing, Aquino's former lawyer, Smith, testified as did two other lawyers from the Federal Public Defender's Office who worked with Smith on the case, in addition to an investigator and paralegal from that office. Aquino did not testify at the hearing.

Aquino moves for a new trial on the grounds that his trial counsel was ineffective. In the original moving papers (Dkt. #55), several errors of counsel were alleged. In a filing subsequent to the evidentiary hearing, though, defendant's present focus is much narrower. It appears that Aquino's principal challenge is that his trial counsel failed to contact an independent fingerprint expert prior to trial and did little to challenge the Government's expert's testimony that Aquino's fingerprints were found on the firearm in question.

After a review of all of the materials submitted on the motion and after considering the testimony adduced at the hearing on the motion, as well as all the trial proceedings, I find no basis for granting a new trial based on ineffective assistance of trial counsel. A claim of ineffective assistance must be analyzed according to the standards set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The Court stated in Strickland that the test for an ineffective-assistance claim is whether the defendant received "reasonably competent assistance." Id. at 688. In deciding this question, the court must apply an objective standard of reasonableness. Id.

Generally, defense counsel is "strongly presumed to have rendered adequate assistance. . ." Id. at 690. To succeed on such a claim, then, the defendant must "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

If defense counsel's performance is found to have been defective, relief may only be granted where it is shown that the defense was actually prejudiced by counsel's errors. Strickland, 466 U.S. at 692. Prejudice is established upon a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The court determines the presence or absence of prejudice by considering the totality of the trial evidence. Id. at 695.

At trial, the principal issue was whether Aquino knowingly possessed the firearm. The firearm was not found on Aquino's person by the police when they arrived at 88 Radio Street that winter evening, January 6, 1999. The police found the firearm on the window ledge of a detached garage at the premises. When the police first arrived at the scene, Aquino was outside the premises in the driveway. (T. p. 175).*fn1 Several officers went into the residence to talk to the occupants and Aquino remained outside. When that happened, Officer Ignacio Torres observed Aquino walk down the driveway into the backyard with his dog. Aquino was out of sight for about a minute. (T., p. 212-213). Officer David Anne also observed Aquino walk to the rear of the building and disappear from view. (T., p. 314-315). Anne testified that a few minutes later he went into the backyard area and observed human and dog footprints leading across the backyard to the rear of the garage. (T., p. 320-324). With a flashlight, he followed the footprints across the yard and they led directly to the window ledge where he found the firearm. (T., 325). Anne testified that the path of footprints then returned back toward the driveway in the front of the house. (T., p. 324).

Once the gun was recovered, Aquino was arrested. He provided no explanation concerning the gun but became belligerent and threatened to sue the officers for false arrest. (T., p. 183).

The Government called a fingerprint expert, Rochester Police Officer Thomas W. Walton who testified that he had been making fingerprint comparisons for over sixteen years. He explained that this work involved tens-of-thousands of comparisons (T., p. 271), and he explained the process of fingerprint analysis. In summary, he testified that Aquino's fingerprints were found on the firearm that was found on the ledge.

There was other circumstantial evidence connecting Aquino to the firearm. The owner of the firearm testified at trial that the weapon had been stolen, together with several other items, from his home in Batavia, New York in a burglary. He noticed the several missing items and promptly reported the burglary to the police on December 17, 1998. (T., p. 282-283). The owner also testified that Aquino and his parents lived next door to him for about twenty years. (T., p. 287). When the police officers first confronted Aquino a few weeks later, on January 6, at Radio Street, Aquino told them that he was from Batavia. (T., p. 178), and when he testified at trial, he admitted that his permanent residence was in Batavia (T., p. 375).

Aquino himself testified at trial and admitted touching the firearm. The story he told at trial was that during the officers' visit to 88 Radio Street, he had followed his young dog into the backyard and he observed the dog approach an item which he believed to be dog feces. Aquino claimed that he ran up to push the dog away and discovered, to his surprise, that the item was a firearm. He picked it up and placed it on the window ledge and left the area. (T., p. 367-368). He returned to the front of the house but did not tell the officers about finding the firearm. (T., p. 369, 380).

The defense theory was that this momentary touching of the firearm by Aquino was not knowing possession. The defense requested and received from the Court an instruction concerning "fleeting" possession. The jury was instructed that if it accepted Aquino's testimony that he merely picked up the firearm under the circumstances as he described it, that would not constitute knowing possession. (T., p. 458-59). That strategy, that is, that Aquino's touching was momentary and constituted nothing more than fleeting possession was pursued by the defense throughout the trial. In fact, in his opening statement, defense counsel did not dispute the fact that Aquino's prints were found on the firearm because that fact was not inconsistent with the defense theory of the case.

Even without the benefit of the evidence gleaned from the hearing on this motion relating to ineffective assistance of counsel, I believed at trial, and I believe now, that the strategy employed by the defense, in light of the defendant's testimony, was certainly reasonable and fell well within the objective standards of reasonableness as required by Strickland. After considering the evidence adduced at the ...

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