Misstep by Appellate Counsel Brings Dismissal of Indictment

new york law journalDaniel Wise | New York Law Journal July 01, 2010

Nearly two years after Giuseppe D’Alessandro finished serving 15 years in prison for kidnapping, a unanimous panel of the Appellate Division, First Department, has taken the unusual step of dismissing the indictment against him because he did not receive the effective assistance of his appellate lawyer—a former judge on the Manhattan appeals court.

Former Justice John Carro, who left the bench in 1994, failed to raise in 1996 “a clearly meritorious speedy trial argument,” Justice Angela M. Mazzarelli (See Profile) wrote Tuesday in People v. D’Alessandro, M-2765A.

The First Department decision appears on page 34 of the print edition of today’s Law Journal. Mr. Carro had submitted “a generally well-reasoned and researched 43-page appellate brief,” Justice Mazzarelli wrote. Nonetheless, she added, his “single” lapse presented the court the rare instance where relief was required despite an otherwise “generally adequate” performance because the speedy trial issues were both “clear cut” and “dispositive.”

Mr. Carro said in an interview yesterday that he had not raised the issue because pretrial speedy trial motions and their dispositions were not a part of the record he had received before preparing the appeal.

In 1991, a Manhattan jury convicted Mr. D’Alessandro, who had managed a restaurant, of kidnapping an employee to force him to confess that he had stolen $3,000 from the cash Mr. D’Alessandro was charged with second-degree kidnapping, but the Manhattan District Attorney’s Office offered to let him plead to a lesser crime for which he would have received probation. Proclaiming his innocence, Mr. D’Alessandro rejected the deal.

Prosecutors had warned Mr. D’Alessandro that rejecting the deal would lead to him being charged with kidnapping in the first degree, which carried a minimum sentence of 15 years in prison as compared to five for second-degree kidnapping, according to a brief filed by the Mr. D’Alessandro’s trial lawyer moved to enjoin the district attorney from filing a second indictment to the higher charge, claiming it was “vindictive.” About 10 months later, the trial attorney moved to have the indictment dismissed on speedy trial grounds.

The prosecution opposed the motion, arguing in part that it should not be charged with any delay during the period the defendant’s unsuccessful motion to quash the second indictment was pending. Justice Jerome Hornblass, who has since retired, denied the motion. A jury subsequently convicted Mr. D’Alessandro.

On appeal, Mr. Carro argued that the prosecutor’s summation was improper, that Mr. D’Alessandro received ineffective assistance at trial, that Justice Hornblass improperly charged the jury, and that the conviction was contrary to the interests of justice.

But he did not challenge the denial of Mr. D’Alessandro’s pretrial speedy trial motion. The First Department rejected the appeal in People v. D’Alessandro, 230 AD2d 656 (1996). Then in 1999, Mr. D’Alessandro, acting pro se, raised the speedy trial issue in a motion for a writ of error coram nobis, a procedural device for challenging the effectiveness of appellate counsel, in this case, Mr. Carro. The First Department denied the motion in 2000 (272 AD2d 1002).

Prosecutors Missed Deadline eight years later, Mr. D’Alessandro retained Brian Gardner, a former prosecutor in the Queens District Attorney’s Office and in the Eastern District U.S. Attorney’s Office, to press the speedy trial claim.

Framing the issue differently than Mr. D’Alessandro had in 1999, Mr. Gardner, of five-attorney Sullivan Gardner, argued that under a 1990 New York Court of Appeals precedent, the speedy trial clock was running the entire time from the defense’s filing of its omnibus motion to dismiss the indictment to the date the prosecution produced the grand jury minutes.

During that period, 196 days had elapsed as compared to the 184 allowed under Criminal Procedure Law §30.30, requiring dismissal of the indictment, Mr. Gardner argued. The prosecution, however, contended that there had been no violation because the 149 days during which Mr. D’Alessandro’s motion to enjoin the filing of the first-degree kidnapping indictment was pending, should be charged to the defense not the prosecution.

The First Department sided with Mr. D’Alessandro. Justice Mazzarelli relied on the Court of Appeals’ 1990 ruling in People v. McKenna, 76 NY2d 59, which held the prosecution responsible for delays in situations where the relief sought by the defense was unrelated to the production of grand jury minutes.

Justice Mazzarelli also pointed out that McKenna had been decided about eight months before Justice Hornblass denied Mr. D’Alessandro’s speedy trial motion in 1991. Justice Mazzarelli went on to reject the prosecution’s argument that any delay attributable to the motion to enjoin should be charged to the defense. The reason for that, she wrote, is that despite the pendency of an unrelated motion, a motion to dismiss is “a threshold motion which must be decided before the People can be deemed actually ready for trial.”

Although Mr. D’Alessandro finished serving his prison term in 2008, Mr. Gardner said Tuesday’s ruling has important immigration consequences for him.

After Mr. D’Alessandro finished his prison term, he was handed over to federal immigration authorities for deportation to his native Italy because his kidnapping conviction had resulted in the revocation of his green card.

Mr. Gardner said that he had to bring a separate proceeding in federal court in the Western District of New York to secure Mr. D’Alessandro’s release in April 2009 from federal custody until the First Department ruled on his writ motion.

Now that the writ has been granted, Mr. Gardner said, “Mr. D’Alessandro should not be deported because the First Department’s decision overturned the sole ground for his deportation.”

He added, “The ruling will allow him to continue living with his wife and son, who is now 22.”

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