Cosentino v. Kelly, 689

Decision Date16 December 1996
Docket NumberD,No. 689,689
Citation102 F.3d 71
PartiesJoseph COSENTINO and Anthony Magana, Petitioners-Appellants, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Daniel Sendowski, Superintendent, Clinton Correctional Facility, Respondents-Appellees, ocket 96-2422.
CourtU.S. Court of Appeals — Second Circuit

John J. Sergi, Assistant District Attorney, White Plains, NY (Jeanine Pirro, District Attorney of Westchester County, Joseph M. Latino, Assistant District Attorney, of counsel), for Respondents-Appellees.

Rochman, Platzer, Fallick & Sternheim, New York City (Barry M. Fallick, Bobbi C. Sternheim, of counsel), for Petitioners-Appellants.

Before VAN GRAAFEILAND, JACOBS and CALABRESI, Circuit Judges.

PER CURIAM:

Petitioners Anthony Magana and Joseph Cosentino appeal from a May 13, 1996 judgment of the United States District Court for the Southern District of New York, denying their petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magana and Cosentino challenge their state court convictions because certain of their family members, who had disrupted petitioners' first trial and precipitated a mistrial, were excluded from petitioners' second trial, at which they were convicted. We agree with Judge Conner that the state proceedings did not violate the petitioners' Sixth Amendment right to a public trial.

Magana and Cosentino each were charged with the crimes of murder in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (three counts). Both indictments charged that petitioners aided, abetted, and acted in concert with one another to accomplish the murder of one John Petrucelli in White Plains, New York on September 13, 1989.

The first trial in this case commenced on October 10, 1990 in Westchester County Court. The jury completed deliberations on October 31, 1990, and informed the court that it had reached a verdict. The jury was brought back into the courtroom and was asked by the court whether it had reached a verdict with respect to the first count charging Magana with murder in the second degree. When the jury foreperson responded, "Guilty, your Honor," bedlam ensued. Family members and friends of the defendants began yelling, screaming, and crying aloud, and many had to be physically restrained and removed from the courtroom. The foreperson proceeded to announce guilty verdicts for the remaining counts, but the court was then forced to order a recess to end the continuing disruption.

After the jury later returned to the courtroom, the court apologized for the disturbance. When at last the jury was polled, two of the jurors had changed their verdicts, and a third juror was unsure as to her concurrence in the verdict. Another juror told the court: "The jury has fallen apart at this particular time, Judge, because of what happened in this courtroom just now and that--none of us, I think, can right now give anything a fair answer of any kind. I'm sorry."

After the jury was excused, both defense counsel moved for a mistrial. Before adjourning to consider the motion, the court recorded for the record what had transpired:

[A]t the time that the verdict was announced there were a great many members of the [petitioners'] family, friends here, I say 10 to 15 and not all of them but a good many of them just went absolutely off the wall yelling and screaming, several had to be physically restrained, taken out of the courtroom, we had quite a scene here.

As I indicated to the jury, one unlike any that I've ever seen or the attorneys have ever seen, as they indicated to me. And we had, I'd say, at least half a dozen or so court officers here and there were not enough for--we had to send the jury back into the jury room, we had to get the defendants out of the courtroom and we had to do what we could, the court officers had to do what they could to get the disruptive people off the floor and they eventually accomplished doing that. But the scene played out in front of the jury was a terrible one and their state of--I guess you'd have to say emotional distress at this point in time is certainly understandable to this court.

The following morning the defense attorneys renewed their mistrial motions, which the court denied. A curative instruction was then given and the jury retired to deliberate further. When they proved unable to reach a verdict after several more hours of deliberations and several readbacks, defense counsel renewed their motions for a mistrial, and their motions were granted.

On January 11, 1991, the court informed the parties at a scheduled conference that petitioners' wives and Cosentino's son would be barred from the courtroom during the second trial due to their involvement in the courtroom disruption at the first trial. Petitioners moved for an order prohibiting retrial on double jeopardy grounds; an order reversing the order barring the family members from the courtroom during the retrial; and for certain discovery. Petitioners' motions were denied.

After a second consolidated trial, each petitioner was convicted of murder in the second degree and criminal...

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18 cases
  • Huminski v. Corsones, Docket No. 02-6201(L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 Octubre 2004
    ...under certain circumstances. See State v. Rusin, 153 Vt. 36, 38-41, 568 A.2d 403, 405-06 (1989); accord Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir.1996) (per curiam) ("It is essential to the proper administration of ... justice that dignity, order, and decorum be the hallmarks of all court......
  • Huminski v. Corsones
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 Octubre 2004
    ...under certain circumstances. See State v. Rusin, 153 Vt. 36, 38-41, 568 A.2d 403, 405-06 (1989); accord Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir.1996) (per curiam) ("[I]t is essential to the proper administration of... justice that dignity, order, and decorum be the hallmarks of all cour......
  • People v. Jones
    • United States
    • Colorado Supreme Court
    • 1 Junio 2020
    ...based on disruptive behaviors under Waller (quoting United States v. Hernandez , 608 F.2d 741, 747 (9th Cir. 1979) )), aff'd , 102 F.3d 71 (2d Cir. 1996). On the facts before us, we need not join this debate today.5 The parties in Lage did not file a petition for certiorari review.1 While t......
  • Constant v. Pa. Dep't of Corr.
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • 14 Diciembre 2012
    ...only to the extent necessary to satisfy the purpose for which it was ordered.’ ”) (quoting Sherlock, 962 F.2d at 1357);Cosentino v. Kelly, 102 F.3d 71, 73 (2d Cir.1996) (no constitutional violation arising from partial closure, as “[t]he order allowed access to most members of the public ........
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