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George Konstantinides v. Patrick Griffin

July 25, 2011


The opinion of the court was delivered by: John Gleeson, United States District Judge:


George Konstantinides, who is currently incarcerated in New York's Southport Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in Queens County Supreme Court on charges of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.*fn1

Konstantinides claims that (1) his trial counsel had a conflict of interest that rendered him incapable of representing Konstantinides, thereby denying Konstantinides the effective assistance of counsel; and (2) his sentence was illegally enhanced by a prior conviction that was obtained unconstitutionally and was also imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).

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


A. The Crime and the Arrest*fn2

In the early hours of December 20, 2003, Konstantinides was at a bar in Queens when he learned the police were closing in. He was at that point in violation of his parole, and he knew the police were coming to arrest him and bring him back to jail. He fled in the company of another man, George Traitouros. Konstantinides jumped into the passenger side of a limousine parked at the curb.*fn3 Traitouros got into the limousine's driver's seat and started the engine, but he was promptly challenged by the police. When Konstantinides saw the police surround the vehicle, he pulled out a gun from a bag he had been carrying*fn4 and told Traitouros, "If you don't move this limousine I'm going to kill you where you're sitting." People v. Konstantinides, 14 N.Y.3d 1, 5 (2009). Traitouros drove away with Konstantinides in the car.

A high-speed chase ensued along city streets and, eventually, the Grand Central Parkway. During the chase, the gun discharged into the dashboard of the car. Konstantinides instructed Traitouros to continue driving, but as the 111th Street exit from the parkway approached and Traitouros slowed, Konstantinides jumped out of the car and fled on foot. Carrying the gun, Konstantinides ran up an embankment, firing in the direction of the officers who were by then pursuing him on foot;*fn5 no injuries occurred. Although Konstantinides initially escaped, he was arrested the next day carrying the still-loaded gun that he had discharged the night before.

B. The Trial

Konstantinides was tried before Justice Richard L. Buchter of Queens County Supreme Court on charges of possession of a weapon in the second and third degrees, kidnapping (Traitouros) in the first degree, and attempted murder (of the pursuing police officers) in the first and second degrees. He was represented by attorneys Geoffrey Stewart, who represented him throughout eight months of pre-trial proceedings (including a suppression hearing), and Theodore Kasapis, for whom Konstantinides had worked while on parole. Kasapis was added to the defense team shortly before trial.

Just prior to Traitouros's testimony, the prosecution notified Justice Buchter that it had been informed by Traitouros's wife that she had been approached by Kasapis, via a three-way call that included the defendant himself, and asked to influence her husband to provide perjured testimony. Traitouros's wife claimed that Kasapis and Konstantinides had called her on three occasions; two involved attempts to suborn perjury. Specifically, Kasapis pressured the wife to have Traitouros testify that the gun belonged to him rather than Konstantinides. Kasapis further told her that he intended to pay a witness named "Jennifer" to testify that she had done drugs with Traitouros, that she and Traitouros were having an affair, and that the gun involved in the crime belonged to Traitouros. According to Traitouros's wife, Kasapis and Konstantinides also made a somewhat unique overture: Kasapis promised Traitouros's wife a diamond ring if she would leave her husband and marry Konstantinides. She refused, and told him to stop calling.

Justice Buchter expressed serious concerns about Kasapis's alleged behavior, and granted a recess to permit the defense team to discuss the ramifications of the prosecutor's revelation. However, after the recess, the record inexplicably reflects no further discussion of the issue. Thus, there is no indication that Konstantinides was informed at that time that his counsel had a conflict of interest or asked if he wanted to waive any such conflict that might have arisen. Kasapis continued as co-counsel for the remainder of the trial. The defense did not call "Jennifer" or Mrs. Traitouros. Stewart cross-examined Traitouros at the trial. Kasapis alone conducted Konstantinides's direct examination at trial and appeared at the sentencing proceeding.

Traitouros was called to the witness stand immediately after the prosecutor's revelation of Mrs. Traitouros's accusations. During cross-examination by Stewart, Traitouros denied that he owned the gun or that he had been taking drugs on the date of the offense. He did, however, admit that he knew he faced prison time if found in possession of a gun, because he was on probation at the time. The prosecution also elicited testimony from a ballistics expert, who linked a shell casing from the scene to the gun found on Konstantinides at his arrest, and from other crime scene experts whose testimony supported Konstantinides's guilt. Further, the officers who were involved with the chase testified that they had seen Konstantinides in the car with Traitouros and firing a gun in their direction, and the arresting officers testified that they had arrested Konstantinides carrying a loaded gun.

Konstantinides testified in his own defense, claiming that Traitouros had fled from the police with no encouragement from him. He further testified that the gun belonged to Traitouros, and it had gone off by accident in the car. He admitted that he had taken the gun with him when he fled Traitouros's car, with the knowledge that it was loaded and operable, but claimed that he had fired only one shot, into the air, in order to facilitate his escape. He also admitted that he was still in possession of the loaded gun when the arresting officers took him into custody.

In summation, the defense argued that the gun had not belonged to Konstantinides, but to Traitouros, and that Konstantinides had taken the gun from the car in order to prevent his close friend (Traitouros) from being arrested for gun possession without realizing the drastic consequences if he, a parolee, were to be found in possession of the firearm. The defense further argued that Traitouros had lied under oath: he had not been kidnapped at gunpoint, as he testified, but rather had voluntarily fled from the police.

The jury returned verdicts of guilty on the two weapons counts and not guilty on the kidnapping count. It was unable to reach a unanimous verdict with regard to the attempted murder counts, and therefore Justice Buchter declared a mistrial on those counts, which were subsequently dismissed on the People's motion.

C. The Sentence

Konstantinides was sentenced on February 6, 2006. Prior to the commencement of the sentencing proceeding, the prosecution filed a prior violent felony offender statement that alleged two prior convictions: a 1989 conviction for attempted second-degree murder, and a 1996 conviction for second-degree assault. At sentencing, Konstantinides admitted the fact of both prior convictions but contested the constitutionality of his 1996 conviction, alleging that his attorney had coerced him to plead guilty and had thereby deprived him of the effective assistance of counsel. He requested a hearing as to the validity of the earlier conviction. Justice Buchter denied the request for a hearing, determined that earlier guilty plea had been affirmed by the Appellate Division after a hearing on its voluntariness and that therefore its validity was "law of the case," Pet. Mem., Docket Entry 2, at 15, and sentenced ...

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