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Fong v. Poole

November 21, 2007


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Jose Fong, an inmate at the Clinton Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the Allen charge issued to the jury during his trial deprived him of his constitutional rights to a fair trial and due process. The petition will be granted.


Only facts relevant to the present petition will be recited here.

Jose Fong ("Fong" or "petitioner") is currently serving a sentence of six and one-half to thirteen years' imprisonment stemming from his 2003 conviction for distribution of a controlled substance. See People v. Fong, 791 N.Y.S.2d 53 (1st Dep't 2005). Fong was arrested on May 19, 2002, after an undercover police officer purchased seven grams of cocaine from a drug dealer roughly fitting petitioner's description. Fong was subsequently charged with one count of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39.

On February 26, 2003, Fong proceeded to trial in the New York State Supreme Court, New York County, before the Honorable Edward McLaughlin and a jury. At trial, petitioner's counsel argued that the government had not presented sufficient evidence tying Fong to the crime. Specifically, petitioner's counsel argued that the government had not met its burden of proof as a result of, inter alia, (1) "the absence of pre[-]recorded buy money" on Fong at the time of Fong's arrest (Tr. 389); (2) the police officers' failure to record the facts of the transaction and arrest contemporaneously (id. 392-94); (3) the failure to preserve certain evidence (id. 398); and (4) the differences between the radioed description of the dealer and Fong's actual appearance (id. 393-96).

On March 3, 2003, after summations and the initial jury charge, the jury began deliberations. Approximately an hour and a half after starting deliberations, the jury requested and received a read back of some testimony, and began deliberating again at 12:55 p.m. (Id. 449-50.) Approximately two hours later, the jurors sent out a note stating, "[w]e the jurors request guidance. Four jurors believe he's not guilty the rest believe he's guilty." (Id. 450.) By then, three hours had passed since the beginning of deliberations, including a lunch break and fifty minutes of read-back testimony.

At sidebar, defense counsel requested that "a mild Allen charge be given," and asked the judge to instruct the jurors that "they should not compromise their convictions but at the same time they should listen to their fellow jurors and they should go back there and try to reach a unanimous verdict." (Id. 451.) See Allen v. United States, 164 U.S. 492 (1896). Defense counsel observed that the jury note was "very specific and their lines are drawn." (Id.) The prosecutor suggested that an Allen charge might be premature, to which the judge responded, "[t]his is pathetic." (Tr. 451.)

The trial court then instructed the jury as follows:

Let posterity not know what it is you're talking about. "We the jury request guidance. Four jurors believe he's not guilty the rest believe he's guilty[.]" What do you want from me? You're the jury. We bring you, we assemble you for the sole purpose of getting a decision. If you didn't want to be here, if you think this is a decision beyond your capacity to reach, you shouldn't have allowed yourself to be sworn as jurors.

The point of this process is to reach a verdict[. T]hat's essentially not as difficult as it may seem because it's not a situation where one side has to do one thing and another side has to do another thing and it gets real confusing.

Any criminal trial is about whether the prosecution meets a burden of proof. When I gave to one group I believe that analogy about the strength test in a carnival, in a state fair about the prosecutor having the mallet, paying his money [so] to speak, taking his chances, swinging to try to drive the metal device, the ball, the metal device up to ring the bell.

In any case that's what a criminal trial is about. And you folks have to sit there and mentally try to man[a]ge from your assessment of the evidence, did the bell ring or not. Something happened in this case. They rang the bell or they didn't. It was not a non event. You can't just say oops, we can't decide this. For five hundred years in England, W[]ales, Ireland, Scotland, America and other places with juries, they got a burden of proof. Things happen and then the only entity in creation who can say whether the bell has rung is the jury in the case so the guidance is go through whatever you need to go through to reach the verdict. You have to go over since it's a credibility assessment that you have to make, go through the things that I alerted you to regarding a human being[']s credibility. If what I alerted you to by way of the tests and the standard and the considerations is helpful, that's fine, use that.

If in your own lives you use other things to decide whether or not you're being lied to or whether somebody is being accurate or truthful, use those things. The focus is on whether the prosecutor has met his burden of proof.

The decision has to be based on the record of this case. I don't have a magnifying glass or an ear piece. I don't know what is going on in there but if somebody is talking about things that weren't testified to, it couldn't be that way because or let me tell you how it really is, forget that remember the part of the charge that a Judge gives a jury, is the record of this case.

What is [sic] the record of this case supported? What are the natural and logical things that the testimony in this case supports? That doesn't mean you have to accept anything because it was said. You've got an absolute right to say I don't believe that, I don't believe this, or I don't believe anything but if you are talking about things that are not in the record in the testimony then you're probably not doing what you're suppose[d] to be doing.

So that was the guidance. Step in. Continue deliberations. We await your verdict. (Id. 453-56.)

At 3:00 p.m., after the jury retired again to deliberate, defense counsel alerted the judge that he had an objection, to which the judge responded, "I bet. What is it?" (Id. 456.) Defense counsel explained his objection to the "last part" of the charge, when the court "start[ed] talking about the record. I believe the word record was stated at least three times." (Id.) The judge responded, "I hope to have said it a half a dozen times if I fell short of my goal, I apologize." (Id.) Defense counsel explained that the charge directly attacked his argument in summation relating to the lack of evidence in the record tying petitioner to the crime. The judge conceded that "any neutral reading of your summation did have quite a lot to do about what's not in the record," but warned counsel that "I don't think it's a good idea for me to bring [the jurors] back out and say if you think I was talking about a summation forget about it." (Id.) Defense counsel agreed, saying, "I don't know what I could formulate to ameliorate the harm that you just caused so I think that my objection should stand and I think the appropriate relief would be a mistrial." (Id. 457-58.) The motion was denied.

Some 25 minutes after the supplemental charge, at approximately 3:25 p.m., the jury sent another note requesting a read back of the "description of Fong's clothes" given by two prosecution witnesses. (Id. 459.) The court reporter read back the requested testimony, and at approximately 4:05 p.m., the jury again retired to continue deliberations. (Id. 460.) Ten minutes later, at approximately 4:15 p.m., the jury returned a verdict of gulty. (Dannelly Decl. Ex. B at 22.)

Fong appealed his conviction, contending, inter alia, that the trial court's supplemental charge was unconstitutionally coercive. On March 10, 2005, the Appellate Division affirmed Fong's conviction. Fong, 791 N.Y.S.2d 53. The appellate court declined to review the merits of petitioner's Allen charge argument, finding that Fong had "failed to preserve" his coercion argument because defense counsel's objections to the Allen charge "were insufficient to alert the court to this claim," and because counsel declined the court's offer to issue a further charge. Id. However, although the court declined to review the propriety of the Allen charge, it noted "with some dismay" that the trial judge "framed his own impromptu Allen charge, . . . including remarks that . . . seemed to imply that the jurors were failing in their duties and to attempt to shame them into reaching a verdict." Id. at 53-54; see id. at 54 (warning that "each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created"). The court also acknowledged similarities between the Allen charge given in this case and the Allen charge given by the same judge that had recently been rejected by the New York Court of Appeals as unduly coercive in People v. Aponte, 2 N.Y.3d 304 (2004). Nevertheless, despite the similarities between the Allen charge given in this case and the Allen charge rejected in Aponte, the court stated without further elaboration that "were we to review" the propriety of the Allen charge in this case, "we would find that under these circumstances the charge was not coercive." 791 N.Y.S.2d at 53.

On May 31, 2005, the New York Court of Appeals denied leave to appeal. People v. Fong, 798 N.Y.S.2d 731 (2005). On March 3, 2006, Fong filed a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, contending that the trial court's Allen charge was unduly coercive and denied petitioner his constitutional rights to a fair trial and due process.*fn1 On February 28, 2007, the Court appointed counsel for Fong, and directed counsel to submit supplemental briefs addressing petitioner's Allen charge argument. Petitioner filed a supplemental brief on April 27, 2007; the government responded on May 23, 2007. The petition was fully briefed as of June 7, 2007.


Respondent makes two principal arguments in response to this petition. First, respondent argues that petitioner waived any potential objection to the alleged coerciveness of the instant Allen charge because he did not comply with New York's contemporaneous objection rule. Alternatively, respondent argues that, even if petitioner's claim is not procedurally barred, it should be denied because the Allen charge in this case was not unconstitutionally coercive. Both arguments are unpersuasive.*fn2

I. Contemporaneous Objection Rule

First, respondent argues that petitioner's Allen charge claim is barred by an adequate and independent state procedural ground. Specifically, respondent argues that "counsel never notified the [trial] court that he had any objection to the charge on coerciveness grounds," and therefore that New York's "contemporaneous objection" rule bars appellate review of petitioner's Allen charge claim. (Resp. Mem. 4.) See N.Y. Crim. Proc. L. § 470.05(2). Petitioner counters that "the Appellate Division's ruling that petitioner's challenge to the Allen charge was unpreserved did not constitute a state law ground that was adequate to support the judgment" because the Appellate Division's application of the contemporaneous objection rule was "improper." (Pet. Mem. 12.) The Court agrees with petitioner.

A federal court may not grant habeas relief where a state court's denial of a claim rests on an independent and adequate state law ground, including failure to follow a state procedural rule requiring such a claim to be raised in a certain manner lest the defendant forfeit that claim. Coleman v. Thompson, 501 U.S. 722, 729-32 (1991). But the adequacy of an alleged state procedural bar is itself a question of federal law, Lee v. Kemna, 534 U.S. 362, 375 (2002); Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999), and "a [state] procedural bar will be deemed 'adequate' only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77, quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The adequacy of a state procedural bar is ...

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