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Figueroa v. Schiraldi

United States District Court, Second Circuit

July 8, 2013

CHRISTIAN FIGUEROA, Petitioner,
v.
VINCENT N. SCHIRALDI, Commissioner of the New York City Department of Probation and ANDREW M. CUOMO, Attorney General of the State of New York, Respondents.

OPINION AND ORDER

RONNIE ABRAMS, District Judge.

Petitioner Christian Figueroa has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition") challenging his conviction following trial on charges of grand larceny. In a Report and Recommendation dated November 20, 2012 ("the Report"), Magistrate Judge Pitman recommended that the Petition be denied in its entirety. For the reasons set forth below, the Court adopts the thorough and well-reasoned Report in its entirety. Accordingly, the Petition is DENIED.

I. Background

A. Facts Giving Rise to the Indictment

From 2000 to 2003, Figueroa worked in the finance department of Clarity Payment Solutions, Inc. ("CPS"). (Trial Transcript ("Tr.") at 318.) While working for CPS and after leaving the company in July 2003, Figueroa used a company credit card for personal expenses including plane tickets and a $3, 459.70 watch. (Id. at 319, 322-23, 327-48.) CPS discovered the personal expenses in August 2003 and contacted Figueroa. (Id. at 263; Affidavit of Christian Figueroa, Aug. 9, 2007 annexed as Ex. 1 to Lyons Decl. ("Pet. Aff.") ¶ 4.) Initially, Figueroa denied having a company credit card but soon after admitted to having such a card and using it for personal expenses. (Tr. at 268-70.) Thereafter, he entered into civil negotiations with CPS to work out a plan to repay the company. (Id. at 270-71.)

B. Agambila's Representation of Figueroa

Figueroa retained Apaamoore Agambila, an immigration lawyer and his fiancee's boss, to represent him pro bono during the civil negotiations. (Pet. Aff. at ¶ 5-7; Affidavit of Apaamore Agambila, Jan. 12, 2007 annexed as Ex. 2 to Lyons Decl. ("Agambila Aff.") ¶ 2.) On May 13, 2004, as the civil negotiations proceeded, Figueroa was indicted on two counts of grand larceny in the third degree and two counts of grand larceny in the fourth degree, in violation of New York Penal Law §§ 155.35(1) and 155.30(1), respectively.[1] (Indictment, annexed as Ex. 3 to Lyons Decl. at 1-2.) Although he had no experience in criminal matters, Agambila agreed to represent Figueroa in the criminal case as well. (Agambila Aff. ¶ 11; Pet. Aff. ¶ 12.)

During the course of the civil negotiations, TSYS Prepaid ("TSYS"), which had acquired CPS, sent Agambila a draft settlement agreement on September 24, 2004. (Tr. at 403-04; Pet. Aff. ¶ 8.) According to Figueroa, he "expressed [] concerns" about statements contained in the agreement, including that "[d]uring the course of his employment and thereafter [he] improperly and fraudulently made personal charges on [CPS credit cards] and concealed same." (Pet. Aff. ¶ 8.) As a result of his concerns, certain changes were made to the agreement.

Nonetheless, Figueroa claims to have remained hesitant about signing the agreement with TSYS as drafted. (Pet. Aff. ¶ 11.) Figueroa has affirmed that "[w]hen [he] continued to express reservations about signing the agreement, Mr. Agambila assured [him] that signing the agreement would make the criminal case go away.'" (Id.) Figueroa also claims that Agambila "told [him] not to worry because concealment is not a crime.'" (Id. ¶ 10.) Agambila has explained that because he expected that the criminal case would not proceed after the agreement was signed, he viewed the "incriminating language" remaining in the agreement "as a non-issue and advised Mr. Figueroa to sign the Agreement." (Agambila Aff. ¶ 10.) Agambila gave no advice about the potential admissibility of the agreement at a criminal trial on Figueroa's grand larceny charges. (Id.)

The final settlement agreement (the "Agreement"), which Figueroa signed on September 28, 2004, still contained some language that Figueroa had expressed concerns about, namely that "[d]uring the course of [his] employment and thereafter [Figueroa] improperly and without authorization made personal charges" on CPS credit cards. (Agambila Aff. ¶ 5.) The Agreement, however, also provided that, "[i]t is understood and agreed that the above release is being made in settlement and compromise of a doubtful claim or claims and is not to be construed as admission of liability...." (Id.) It further provided that Figueroa would pay $5, 117.00 in settlement of TSYS's claim and that, in return, TSYS would "communicate to the prosecutor in the Criminal Case that Figueroa has agreed to repay [the losses]... and request said prosecutor to discontinue the complaint and prosecution of Figueroa...." (Id.)

Although TSYS did indeed write to the New York County District Attorney's Office, (id. ¶ 7), that office nonetheless chose to proceed with its larceny case against Figueroa. Agambila filed a motion to dismiss the charges which was unsuccessful. As the criminal trial approached, Figueroa "discovered that Mr. Agambila had no experience with criminal law and was facing circumstances that would make it difficult for him to attend to [Figueroa's] criminal case." (Pet. Aff. ¶ 12.) On December 7, 2004, Figueroa submitted a letter to the judge presiding over his criminal case "indicating [his] desire to have new counsel appointed to [him] by the court." (Id.) Two days later, Agambila moved to be relieved as counsel arguing that his representation was suffering because of Figueroa's desire to change counsel. (Motion to be Relieved as Counsel, Dec. 9, 2004, annexed as Ex. 6 to Lyons Decl.; Agambila Aff. ¶ 11.) According to Agambila, believing his motion would be granted, he relinquished control of the criminal case file until the day trial commenced and did not actively prepare for the trial. (Agambila Aff. ¶ 11.)

On December 10, 2004, Agambila's motion to be relieved as counsel was denied. (Transcript of Dec. 10, 2004 Conference, annexed as Ex. 7 to Lyons Decl., at 2-3.) In so doing, the court noted that Agambila had been on the case since July and that no new counsel had appeared for Figueroa. (Id.) Trial commenced on December 13, 2004. (Tr. at 1.) At the start of the trial, Agambila renewed his request to be replaced by appointed counsel, citing personal reasons, Figueroa's preference that he be replaced and his lack of time to prepare. (Id. at 4-5.) Again, the trial court denied the request. (Id. at 5.)

At trial, Agambila argued to the jury that personal use of CPS credit cards was common practice at the company and that some of Figueroa's allegedly improper credit card purchases were for legitimate business purposes. With regard to parking tickets paid for with Figueroa's CPS credit card, Agambila elicited testimony from Jonathan Weiner, CPS's President and Chief Operating Officer, that it was "possible" that some of these tickets were legitimate business expenses. (Id. at 309-11.) From Figueroa, Agambila elicited testimony that it was "pretty much a normal thing" to purchase personal items with CPS cards and later reimburse the company and that "many people" did this within the company. (Id. at 322-33.) He admitted that his purchases of a luxury watch and plane tickets were personal expenses, but pointed to the Agreement as evidence of his intent to repay. (Id. at 322-27.)

To refute that assertion, the prosecution called three CPS employees as witnesses, two of whom testified that Figueroa had not notified them of his personal charges. Moreover, Michael Sands, Figueroa's supervisor, testified that Figueroa was responsible for coding the credit card transactions of CPS, namely that he was required to categorize invoices by the departments to which they corresponded. (Id. at 441-42.) Sands testified that Figueroa never brought to his attention any personal charges that he had made with his CPS credit card. (Id. at 444.) During Figueroa's cross-examination, the prosecution highlighted the Agreement's statement that Figueroa had "improperly and without authorization made personal charges on the Charge Card ...


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