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BESSER v. WALSH

September 10, 2003

JAMES BESSER A/K/A JAMES ZERILLI, PETITIONER, AGAINST JAMES WALSH, SUPERINTENDENT, RESPONDENT


The opinion of the court was delivered by: Andrew Peck, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se petitioner James Besser, also known as James Zerilli, seeks a writ of habeas corpus from his November 19, 1994 conviction in Supreme Court, New York County, of enterprise corruption (based on three "pattern" acts: first degree robbery, second degree grand larceny, and fourth degree grand larceny), and his December 11, 1995 sentence of fifteen years to life imprisonment as a persistent felony offender. (Dkt. No. 1: Pet. ¶¶ 1-5.) Besser's habeas corpus petition alleges that: (1) the evidence was legally insufficient to support his conviction for enterprise corruption (Pet. ¶ 13)*fn1; (2) the trial court improperly allowed the jury to find Besser guilty of Page 2 underlying pattern crimes based on the uncorroborated testimony of an accomplice (Pet. ¶ 13, incorporating App.: Besser Ct. App. Br. at A50-59);*fn2 (3) the court seated two jurors whom the defense sought to peremptorily challenge without an adequate showing of racially discriminatory intent under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A60-71); (4) Besser's sentence as a persistent felony offender violated the Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A72-85); (5) Besser was unlawfully deemed a persistent felony offender because the court erred in considering the sequence of his predicate convictions (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A86-91); and (6) Besser was denied the effective assistance of both trial and appellate counsel on a variety of grounds (Pet. ¶ 13 & attached Besser Br. at 1-7).

This Report and Recommendation will analyze all of Besser's claims except his Apprendi claims, which will be addressed in a separate Report & Recommendation.

For the reasons set forth below, Besser's petition should be denied, except as to his Apprendi sentencing claim, which will be addressed in a separate Report and Recommendation.

FACTS

Background

Besser was convicted of enterprise corruption, based on his membership in the Mafia and three "pattern acts." "All three of the crimes [pattern acts] for which Mr. Besser was found guilty stem from his. . . . involvement with . . . Steven Lane, the former owner of a Page 3 C-Town-turned-Associated supermarket in Brooklyn." (Dkt. No. 17: Besser 1st Dep't Br. at 4.) The first degree robbery charge (Pattern Act Four) involved Besser's participation in the robbery of that supermarket. "The second-degree grand larceny charge [Pattern Act Seven] involved money Lane . . . paid to Mr. Besser's co-defendant, Jerry Ciauri, for `protection,' and groceries Mr. Besser . . . took from the supermarket without paying. The fourth-degree grand larceny charge [Pattern Act Nine] involved . . . money Lane gave to Mr. Besser in exchange for a number of checks that bounced. . . . On the basis of these three `criminal acts,' Mr. Besser was found guilty of enterprise corruption. . . ." (Besser 1st Dep't Br. at 4-5.)

Voir Dire

In the first round of jury selection, the trial judge (Justice Bernard Fried) excused two venirepersons, provided one replacement, and presented the attorneys with a panel of seventeen prospective jurors. (Voir Dire Transcript ("V.") 142-43, 224-27, 344-47.) Of these, eight were white (Carcara, Zimmer, Taglienti, Gossett, Rathkope, Finnegan, Vives,*fn3 and Gallagher) (V. 416-22; see V. 390); eight were black or "very dark skinned" Latina (Cantres, Alinares,*fn4 McIver, Wilson, Frazier, Vinson, Williams, and Baker) (V. 388-89, 392-400, 422); and one was a Latina of unidentified skin color (Florio) (V. 194-96). (See generally App.: Besser Ct. App. Br. at A25.) Page 4

The prosecution exercised five peremptory challenges, eliminating one black (McIver) and four white (Carcara, Zimmer, Finnegan, Vives) venirepersons. (V. 386-87; see App.: Besser Ct. App. Br. at A25.) Of the remaining twelve venirepersons, four were white (Taglienti, Gossett, Rathkope, Gallagher), one was Latina (Florio), and seven were black or "dark skinned" (Cantres, Alinares, Wilson, Frazier, Vinson, Williams, and Baker). (See prior paragraph.) Attorneys for Besser and his co-defendants, acting collectively, exercised peremptory challenges against seven out of the seven black or dark skinned venirepersons on the panel. (V. 388-90.)

The prosecution moved to prevent the defense's peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), arguing that there was a prima facie showing of racial discrimination by the defense. (V. 390.) The judge agreed that the defendants' peremptory challenges were, prima facie, "racially motivated," and required defense counsel to present racially neutral reasons for their strikes. (V. 398-99; see also App.: Besser Ct. App. Br. at 25; App.: 7/27/95 Justice Fried Opinion at A112-19.)

Besser's trial counsel, Peter Quijano, responded to the court first. (V. 400-01.) He started by stating that during defense counsel's discussions with each other and with the defendants, "in trying to reach an agreement as to what peremptory challenges [the defense] would exercise, [he] state[s] as an Officer of the Court that race was not discussed." (V. 401; see App.: Besser Ct. App. Br. at 12.) He then turned to the reasons for striking each juror. (V. 402.) Besser's defense attorney Quijano offered the venirepersons' education levels as one reason for the peremptory strikes, explaining that the charged crime of enterprise corruption would involve "complex jury instructions" Page 5 (V. 407), while Alinares had a "seventh grade education"*fn5 (V. 404), and Wilson, who had completed high school, "lack[ed] . . . formal education beyond [the] preliminary level" (V. 407; see App.: Besser Ct. App. Br. at A26). Defense counsel did not mention that challenged venirepersons Cantres and Frazier also had high-school-level educations (V. 178-79, 197), but the defendants did express concern that Frazier would not be able to understand the judge's instructions regarding the presumption of innocence (V. 333, 420).*fn6 Venirepersons Florio and Rathkope, whom the defendants Page 6 did not strike, also had high-school-level educations. (E.g., V. 194.)

Defense counsel also justified striking several venirepersons based on their prior jury service. In the defense's view, Wilson, Vinson, and Baker might have been biased because they had sat on juries in criminal trials that went to verdict.*fn7 (V. 161, 163-64, 408, 419-20.) According to defense counsel, criminal cases that go to verdict are more likely to result in convictions than acquittals; thus, there was "a very high likelihood that" these individuals had "voted for guilty." (V. 419.) Unchallenged venireperson Florio had also sat on a jury in a criminal trial that went to verdict. (V. 162.) Venireperson Frazier had sat on a jury in a trial that did not reach a verdict (V. 163); defense counsel worried that this might "lead to either speculation or just a dissatisfaction with a jury system" (V. 408-09, 420.).

The defense also challenged three venirepersons because of their possible bias in favor of police officers: Cantres, a security officer for the Board of Education, frequently made arrests, had testified in court as an arresting officer, and had a nephew who was a police officer (V. 146-47, 402-04, 417); Frazier's brother was a police officer (V. 420); and Vinson, a transit authority Page 7 employee, was likely to have frequent contact with transit police (V. 421).

Other race-neutral reasons offered by the defense included: age (Frazier and Wilson were too old) (V. 408, 420, 429); an aversion to postal and transit workers (Wilson and Vinson)*fn8 (V. 407, 409-10); and national origin (Alinares, from the Dominican Republic, and Baker, who was brought up "outside of the country" in Trinidad) (V. 184-85, 216-19, 405, 418). Defense counsel failed to mention, however, that Florio, who was not challenged, also grew up in the Dominican Republic. (V. 194.) Finally, the defense claimed that venireperson Williams had a "physical" reaction to questioning by defense attorney Quijano. (V. 405-07.)

After considering the defense's race-neutral explanations, the judge accepted the reasons for five of the peremptory challenges as "racially neutral," but found the reasons given for Frazier and Baker to be "pretextual." (V. 425-27.) Accordingly, the judge seated Frazier and Baker over the defendants' objections. (V. 427-28, 434.) (See App.: Besser Ct. App. Br. at A26-28; App.: 7/27/95 Justice Fried Opinion, at A112-19.)

In a post-trial decision, Justice Fried explained why he found the defense's challenges to jurors Frazier and Baker to be pretextual: Page 8

Defense counsel explained that juror #9 [Baker], a black woman, was peremptorily challenged for the following reasons: 1) she was born and raised in Trinidad; 2) she was a juror in a previous murder case that reached a verdict; and 3) concern about the juror's general life experiences and reactions given the nature of the charges in the indictment.
First, the explanation that juror #9 was of concern to the defense in regard to her general life experiences because she was born and raised in Trinidad, I believe to be pretextual since defense counsel accepted a nonblack juror, Juror #15 [Florio], a Hispanic woman, who was born and educated in the Dominican Republic, another Caribbean country, and had lived in the United States for 43 years. It is clear that "a given reason for exclusion may generally be considered pretextual if it also applies to jurors who were not challenged." Further, during voir dire, juror #9 described herself as a licensed practical nurse educated in London, England, and a resident of New York City for 24 years. The fact that juror #15 had been living in the United States longer, approximately 20 years longer, in and of itself does not appear sufficient to justify excusing juror #9 and keeping juror #15. There were no substantial disparities in general life experiences displayed among these two potential jurors, both of whom have lived in the U.S. for significant periods of time. Additionally, after comparing juror #9's education, which included certification as a licensed practical nurse and some college, to juror #15's high school education in the Dominican Republic, juror #9 was certainly equally as qualified as juror #15 to serve as a juror. Indeed, in direct response to defense counsel's questioning on whether juror #9 could use her everyday life experiences to evaluate a witness' credibility, juror #9 answered in the affirmative. No further inquiry was made. Therefore, because of the disparate treatment between juror #9 and juror #15, I was satisfied that this defense explanation was also pretextual.
The other reasons provided for the peremptory challenge of juror #9 also were, to me, also pretextual. It was stated that because juror #9 had served as a juror in a prior murder trial that reached a verdict, the verdict was most likely guilty since "there are far more convictions where [a case] goes to verdict than acquittals." This, of course, calls for an assumption that the verdict was "guilty." However, I did not believe that this was the basis for excusal of this juror, given the fact that juror #15 [Florio], who was selected by the defense, also sat on a jury in a murder case that reached a verdict. Finally, I did not accept as legitimate the explanation that juror #9 was excused because she did not seem to understand the legal system. The fact that this juror previously sat on a jury in a criminal case that deliberated and came to a verdict certainly means that this juror sufficiently understood the role of a juror, at least as well as the four nonblack jurors defense counsel selected who had no prior jury service.
Similarly, I found the explanations offered to explain the defense challenge of juror #17 [Frazier] to be pretextual. It was explained that this black man was peremptorily challenged for the following reasons: 1) he was older and retired from the postal service; 2) he lacked education; 3) he previously served on a jury where the case was dismissed; and 4) he did not seem to comprehend defense counsels' inquiries. Page 9
The explanation that juror #17 was excused because of his age is clearly pretextual in light of the defense's acceptance of juror #15 [Florio], another retiree. A prospective juror's employment or lack of employment may be a racially-neutral explanation for exclusion only if the employment is somehow related to the facts of the case, and there was no such showing made here. The explanation that this juror was challenged because he had only a "preliminary" education, i.e., high school, was also pretextual. Juror #15, whose education also consisted only of completing high school, was acceptable to the defense. Again, a reason for exclusion is considered pretextual if it also applies to jurors who were not challenged. Similarly, pretextual is the explanation that juror #17 was excused because of his prior jury service in a case where the jury was dismissed prior to deliberation. The defense explanation that this experience may have left the juror feeling "dissatisfied" with the jury system or believing that the defendant in that case was guilty because a plea may have been taken, was without basis in the voir dire record.
I also did not accept as legitimate the explanation that juror #17 was excused because he did not seem to comprehend defense counsels' inquiries. At the time I believed that this was not so, and an examination of the transcript compared with my notes indicate that his answers were concise and responsive. Accordingly, since I found all of the proffered explanations by the defense to be pretextual, I concluded that this juror was also challenged solely because of his race.
(Dkt. No. 1: App.: 7/27/95 Justice Fried Opinion at A114-18, citations omitted.)*fn9 Page 10

The Prosecution Case at Trial*fn10

The Columbo Crime Family of La Cosa Nostra*fn11

Petitioner James Besser, his co-defendants Jerry Ciauri and Gregory Ciauri, and key witnesses including Joseph Ambrosino, John Pate, and Alan Quattrache, were all participants in the Columbo crime family of La Cosa Nostra. (Pate: Trial Transcript ("Tr.") 130-32, 671, 785, 789; Quattrache: Tr. 2203-05, 2252-57, 2298-300; Ambrosino: 3801-02, 3814-17, 3830, 4172-73, 4522-23.) Testimony established that the top-ranking members of the Columbo family hierarchy were the "boss," the "underboss," and the "consigliere," who acted as a liaison between the bosses and lower ranking members of the family. (Pate: Tr. 150, 273, 786-87, 841; Quattrache: Tr. 2252, 2292, 2481, 2487-89; Ambrosino: Tr.4181-82.) Under the consigliere were "captain[s]," each of whom had a "crew" of "made" members, also called "soldiers" or "wise guys." (Pate: Tr. 138-39, 159-60; Quattrache: Tr. 2295-96, 2482; Ambrosino: Tr. 3800-01.) Each made member oversaw "associates" or "kids" — individuals who worked for and followed the rules of the enterprise but had not been formally inducted into the family. (Pate: Tr. 138, 160, 401-02, 677-78, 835-36, 1166-67.) Members and associates engaged in criminal activities and used violence to make money and advance the Page 11 Columbo family business.*fn12 (See generally App.: Besser Ct. App. Br. at A28-31; Dkt. No. 17: Besser 1st Dep't Br. at 10-14.)

In the 1980's, Besser was an associate under made member Greg Scarpa, Jr. (Ambrosino: Tr. 3811-15.) After Scarpa went to prison, Besser was assigned to Greg Scarpa, Sr. (Ambrosino: Tr. 3874-75, 3881.) Besser wanted to leave Scarpa, Sr. and work for another Columbo captain, Bobby Zambardi.*fn13 (Pate: 261-64; Ambrosino: Tr. 3875-81.) However, Scarpa, Sr. would not release Besser until Besser repaid a $15,000 debt. (Ambrosino: Tr. 3875-81.)

The Cropsey Avenue Grocery Store

In April 1989, Steven Lane bought a C-Town grocery store on Cropsey Avenue in Brooklyn. (Lane: Tr. 1282-84.) In December 1989, Lane paid a mechanic near the store $1,500 to repair damage to his car. (Lane: Tr. 1302-04.) When the car still did not work properly and the mechanic refused to fix the problem, Lane stopped payment on his $1,500 check. (Lane: Tr. 1304-06, 1631, 2043.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A31; Dkt. No. 17: Besser 1st Dep't Br. at 14.)

Approximately one week later, Besser accompanied Jerry and Greg Ciauri to Lane's grocery store. (Lane: Tr. 1306-10, 1320.) Jerry Ciauri banged on the door of Lane's office and, in a "very loud, firm tone of voice," demanded payment for the mechanic's repairs while Besser and Page 12 Greg Ciauri waited in the front of the store. (Lane: Tr. 1307-16, 1562-63, 1958-59, 2114, 2118.) Lane told Jerry Ciauri that he did not have the money on hand, and Ciauri agreed to accept payment in installments. (Lane: Tr. 1312-13, 2043-44.)

Ciauri, accompanied by Besser, collected three $500 payments over the next ten days. (Lane: Tr. 1317-20, 1325, 2043-48, 2114.) (See generally Besser Ct. App. Br. at A31-32; Besser 1st Dep't Br. at 14-15.) Ciauri and Besser returned to the store several days later and demanded that Lane begin paying $250 per week in protection money. (Lane: Tr. 1326-33, 1632.) Ciauri explained to Lane that if anyone caused a problem for Lane, Lane could call Ciauri to "take care of the problem." (Lane: Tr. 1328.) Ciauri told Lane not to call the police and said that if Lane failed to make the payments, men would come to the store and knock groceries off the shelves with baseball bats. (Lane: Tr. 1332-33.) Lane agreed to the payments despite his stretched finances*fn14 because he was "fearful" Ciauri would "do harm to" him and he did not want "any problems." (Lane: Tr. 1329, 1332-33, 2115.) Beginning in January 1990 and continuing through April or May, while Besser stood in the front of the store, Lane handed weekly payments to Ciauri. (Lane: Tr. 1329-33, 1408-12, 1632.) (See generally Besser Ct. App. Br. at A32; Besser 1st Dep't Br. at 15-16.)

Besser's Bounced Checks

In late January 1990, Ciauri told Lane that if Besser "needed to cash some checks in the store, to just cash them for him, and [Ciauri] would guarantee them." (Lane: Tr. 1334.) Besser visited the store later that day and asked Lane to cash a check for around $150. (Lane: Tr. 1334-35.) Over the next three weeks, Lane cashed approximately fifteen checks for Besser; Lane estimated the Page 13 total value of the checks was "maximum two-thousand-five-hundred" dollars. (Lane: Tr. 1335-36, 1632-33, 2054-55; Ambrosino: Tr. 3894-95.) Lane deposited some of the checks and endorsed others over to his vendors. (Lane: Tr. 1336, 2049.) Lane could not recall to whom the checks were made out, nor did he have any records of them. (Lane: Tr. 1335, 1634-36.) However, he estimated that checks worth at least $1,500 bounced, requiring him to reimburse his vendors. (Lane: Tr. 1336-37, 1634-35, 2055-56.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A32-33; Dkt. No. 17: Besser 1st Dep't Br. at 16-17.)

When Lane complained to Ciauri, Ciauri admonished Besser to "make good on" the checks and induced Besser to apologize to Lane. (Lane: Tr. 1338-39.) However, Besser never repaid the money. (Lane: Tr. 1339.) Months later, after a robbery of the grocery store (discussed at pages 15-17 below), Ciauri gave Lane $1,500 as reimbursement for Besser's bounced checks. (Lane: Tr. 1484-85, 2158-59, 2163-64.) (See generally Besser Ct. App. Br. at A33; Besser 1st Dep't Br. at 17.)

Michael Sessa's Produce Company

In February 1990, Lane fired his butcher for poor job performance. (Lane: Tr. 1341). In March, Michael Sessa, a high-ranking made member of the Columbo family (Pate: Tr. 265; Quattrache: Tr. 2482-83) and a friend of the butcher (Lane: Tr. 1289), came to the store with three men and beat Lane, bruising him and causing him to bleed (Lane: Tr. 1342-44). Sessa warned Lane to treat the butcher better and demanded that Lane begin buying produce from Sessa's produce company. (Lane: Tr. 1342-44.) One of the men took $300 from Lane's desk before leaving. (Lane: Tr. 1345, 2051-53, 2119.) Page 14

Lane had first met Sessa in October 1989, when Sessa solicited Lane unsuccessfully to buy from his produce company. (Lane: Tr. 1287-90, 1577-82, 1596, 2025-26.) After the March 1990 beating, Lane asked Ciauri for help, expecting that his weekly payments might buy him some protection. (Lane: Tr. 1347, 1623, 2116.) Ciauri told Lane he would check into it (Lane: Tr. 1347, 1623). Ciauri later told Lane that Sessa was a "very important person" (Lane: Tr. 1348, 2093), directed Lane to apologize to Sessa (Lane: Tr. 1348-49, 2101), and required Lane to begin buying from Sessa's produce company (Lane: Tr. 1347 49, 2101-04). Lane purchased produce from Sessa from March through August 1990. (Lane: Tr. 1349, 1379-81, 1390, 1399; Ambrosino: Tr. 3886-90, 4379.) Although Sessa's prices were "initially . . . competitive," they increased "in [Lane's] opinion to a very high point," 25 percent higher than the ordinary market price. (Lane: Tr. 1391, 2033.) Lane, however, felt he "had no choice but to pay" whatever Sessa charged. (Lane: Tr. 2033-34.)

Termination of Protection Payments and Lane's Sale of the Grocery Store

Around May 1990, Lane told Ciauri that he was broke, that creditors were foreclosing on the store, and that Lane could no longer afford the weekly protection payments. (Lane: Tr. 1409, 1416-17.) Ciauri offered to pay Lane $100,000 to become a partner in the store (Lane: Tr. 1417-18, 1421, 1430, 1629, 2166-67), but Lane declined, saying the amount was insufficient to cover his debts (Lane: Tr. 1418). Ciauri agreed to release Lane from payments temporarily. (Lane: Tr. 1421-22.) However, Besser and Ciauri continued to visit the store. (Lane: Tr. 1423-26, 1638-39; Ambrosino: Tr. 3895-99.) On several occasions through July 1990, Besser, Ciauri, and Bobby Zambardi loaded carts with groceries and left the store without paying.*fn15 (id.) Page 15

In June 1990, faced with foreclosure and debt, Lane sold the grocery store to Sam and Harry Abuelenin for $750,000 with a closing date in early August 1990. (Lane: Tr. 1426-28, 1431, 1628-29, 1640; Laufer: Tr. 3283, 3316; Abuelenin: Tr. 3509-15.) After the closing, Lane stayed on as an employee. (Lane: Tr. 1439; Abuelenin: Tr. 3512, 3516.) The day after the closing, Besser called Lane and put Ciauri on the phone. (Lane: Tr. 1445.) Ciauri demanded $5,000 from the proceeds of the sale, and became angry when he learned that, because of Lane's debts, Lane had netted nothing from the closing. (Lane: Tr. 1445-47.)

Grocery Store Robbery

A few days later, Besser arranged a meeting between Lane and Ciauri during which Ciauri asked Lane where the store owners kept their money and how often bank deposits were made. (Lane: Tr. 1447-49.) Ciauri told Lane that he wanted to rob the grocery store. (Lane: Tr. 1453-54.) Lane told Ciauri that the store's payment to its parent company, Associated Foods, was due the following Monday, and agreed to call Ciauri once he learned how the payment was to be delivered.*fn16 (Lane: Tr. 1453-55, 1566-67, 1643-45, 1665.) Although it had been Lane's normal practice to deliver the payments to Associated Foods himself, when he sold the store he arranged for an Associated representative to come to the store on Mondays to pick up the payments. (Lane: Tr. 1450-52, 1665-66; Abuelenin: Tr. 3520-21, 3541-43.) The Friday before the scheduled payment, Lane told Ciauri that Adam Laufer of Associated Foods would be picking up approximately $50,000. Page 16

(Lane: Tr. 1456-58, 1461, 1542, 1566-67, 1643-45.) Ciauri informed Lane that Besser, wearing a disguise, would take the money from Laufer.*fn17 (Lane: Tr. 1459.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A34; Dkt. No. 17: Besser 1st Dep't Br. at 18.)

On Monday, August 27, 1990, Lane called Ciauri and Besser when Adam Laufer arrived at the store. (Lane: Tr. 1462-63.) Minutes later, Lane saw Besser outside the store wearing a fake mustache, dark glasses, and a baseball cap. (Lane: Tr. 1464-65, 1659-60, 2023.) Laufer left the store carrying $65,000 in cash and some third party checks. (Lane: Tr. 1472-73, 1652, 2021; Laufer: Tr. 3288-89, 3310, 3323, 3325-27; Abuelenin: Tr. 3521-24.) Lane saw Besser and another man force Laufer into his own car and drive away. (Lane: Tr. 1472-74, 1551, 1652, 1655-56, 2021-25, 2053-54, 2084; Abuelenin: Tr. 3524; Laufer: Tr. 3310, 3327-34.) (See generally Besser Ct. App. Br. at A34-35; Besser 1st Dep't Br. at 18-19.)

A week or two later, Ciauri told Lane that the robbery's total take was $57,000 of cash and that Besser "did real good." (Lane: Tr. 1482-86.) Ciauri gave Lane $1,500 to repay the bounced checks Besser had cashed in the store.*fn18 (Lane: Tr. 1484-85, 2013, 2158-59, 2163-64.) Shortly after the robbery, Ciauri told Joseph Ambrosino that he, Besser, and others had robbed the store. (Ambrosino: Tr. 3907-08, 4383-86.) Ciauri gave $10,000 to his captain, Bobby Zambardi; Zambardi gave $2,500 to the consigliere, Carmine Sessa. (Ambrosino: Tr. 3909, 3915.) Besser told Page 17 Ambrosino that he used the $15,000 he earned from the robbery to pay his debt to Greg Scarpa, Sr., which enabled Besser to transfer to Bobby Zambardi's crew. (Ambrosino: Tr. 3914, 3921-22.) (See generally Besser Ct. App. Br. at A35; Besser 1st Dep't Br. at 19-20.)

Besser's Arrest

Lane was arrested, and later convicted, on unrelated assault charges. (Lane: Tr. 1276-77, 1504-09, 1570-74, 1669, 1969-73, 2086, 2122-26, 2159-60.) While his own criminal case was pending, in May 1992, detectives contacted him about the grocery store robbery, and he agreed to cooperate, which led to Besser's arrest on May 18, 1993. (Lane: Tr. 1510, 1517-21, 1537-38, 1573-76, 2122; Finn: Tr. 5430.) (See generally Dkt. No. 1: App.: Besser Ct. App. Br. at A35-36.)

The Defendants' Motion for a Trial Order of Dismissal

Before the case was submitted to the jury, Besser and his two co-defendants moved for a trial order of dismissal pursuant to C.P.L. § 290.10(1). (Tr. 6241-86; see Dkt. No. 17: Besser 1st Dep't Br. at 21.) Justice Fried reserved decision on the motion. (Tr. 6286.) See People v. Ciauri, 166 Misc.2d 615, 616, 632 N.Y.S.2d 404, 405-06 (Sup.Ct. N.Y. Co. 1995).

Verdict

On November 19, 1994, the jury found Besser guilty of enterprise corruption, Penal Law § 460.20, including three underlying "pattern acts": first degree robbery ("pattern act four"), second degree grand larceny by extortion ("pattern act seven"), and fourth degree grand larceny ("pattern act nine").*fn19 (Tr. 6776-801; See generally Dkt. No. 17: Besser 1st Dep't Br. at 27). Page 18

Besser's C.P.L. § 330 Motion to Set Aside the Verdict

In April 1995, Besser moved to set aside the verdict pursuant to C.P.L. § 330.30., asserting that: (1) the court's failure to require corroboration of accomplice testimony in order to find Besser guilty of the underlying pattern acts violated state law and Besser's due process rights under state law (the "Corroboration Claim") (Dkt. No. 8: Ex. A: Besser-Ciauri C.P.L. § 330 Br. at 1-9)*fn20; (2) the court improperly seated two jurors after an erroneous determination that defendants' peremptory challenges to those jurors violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) (the "Batson Claim") (Besser-Ciauri C.P.L. § 330 Br. at 9-16); (3) the evidence was legally insufficient to prove the existence of the enterprise known as "The Mafia/La Cosa Nostra," an element necessary to prove enterprise corruption (id. at 16-29); (4) the pattern acts alleged in the indictment were not committed in furtherance of the goals of the charged enterprise (id. at 29-33); and (5) the cumulative effect of other errors deprived defendants of a fair trial (id. at 33-41). (See also Ex. D: Besser-Ciauri Reply Br.) Besser also filed a supplemental pro se brief claiming the Page 19 evidence was legally insufficient to prove guilt of fourth degree grand larceny (pattern act nine). (Ex. B: Besser Pro Se C.P.L. § 330 Br.) Specifically, Besser claimed the evidence was insufficient to prove that: (1) the value of the bad checks exceeded $1,000; (2) Besser knew the checks were drawn on insufficient funds; (3) Besser intended to deliver bad checks; or (4) the checks actually bounced. (Ex. B: Besser Pro Se C.P.L. § 330 Br.)*fn21

Justice Fried denied Besser's § 330 motion in July 1995. (Ex. E: C.P.L. § 330 7/27/95 Justice Fried Opinion.) People v. Ciauri, 166 Misc.2d 615, 616-23, 632 N.Y.S.2d 404, 405-09 (Sup.Ct. N.Y. Co. 1995) (published opinion includes only the portion of the decision discussing the Corroboration Claim).

Sentencing

On September 7, 1995 and November 3, 1995, Justice Fried heard testimony and arguments regarding whether Besser should be adjudicated a persistent felony offender under Penal Law § 70.10.*fn22 (Dkt. No. 17: 9/7/95 & 11/3/95 Hearings.) Besser presented one witness, the Page 20 attorney who had represented Besser at his 1984 Richmond County guilty plea allocution, and argued that Besser had been coerced to plead guilty in the Richmond County case in violation of his Sixth Amendment rights. (11/3/95 Hearing Tr. at 3-29, 36-40.) Besser's defense counsel, Quijano, also argued that the court should exercise its discretion and not sentence Besser as a discretionary persistent felony offender, since Besser was only a "follower." (id. at 40-45, 54-56.) Quijano Page 21 suggested that a sentence of twelve and a half to twenty-five years as a predicate felon is a "serious sentence" and sufficient, and thus it was not necessary to sentence Besser as a persistent felony offender. (id. at 43-44.)

On December 6, 1995, Justice Fried issued a written decision adjudicating Besser a persistent felony offender under Penal Law § 70.10. (Dkt. No. 17: 12/6/95 Justice Fried Opinion.) Justice Fried found two prior felony convictions: Besser was convicted in the United States District Court for the District of Maryland of federal counterfeiting offenses (18 U.S.C. § 472, 474, & 2) on January 20, 1982 and sentenced to four years in prison, and on July 17, 1984, Besser pleaded guilty in Supreme Court, Richmond County, to third degree attempted possession of a weapon and was sentenced to 1-1/2 to three years in prison. (12/6/95 Justice Fried Opinion at 4.)

In addition, based on Besser's 1976 through 1993 arrests, convictions (including additional misdemeanor convictions), and parole violations, as well as Besser's involvement with organized crime since 1979, and information relating to Besser's murder attempts (not charged in the present case) and a "brutal beating" for which charges were pending in New Jersey, Justice Fried found, as required by Penal Law § 70.10(2), that Besser's "`history and character'" and "`the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision is required.'" (12/6/95 Justice Fried Opinion at 2, 8-15.)

On December 11, 1995, Justice Fried sentenced Besser, as a persistent felony offender, to fifteen years to life imprisonment.*fn23 See People v. Ciauri, 266 A.D.2d 164, 164, 699 N.Y.S.2d 341, 342 (1st Dep't 1999). ...


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