Besser v. Walsh, 02 Civ. 6775 (LAK) (AJP).

Decision Date10 September 2003
Docket NumberNo. 02 Civ. 6775 (LAK) (AJP).,02 Civ. 6775 (LAK) (AJP).
PartiesJAMES BESSER a/k/a JAMES ZERILLI, Petitioner, v. JAMES WALSH, Superintendent, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

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JAMES WALSH, Superintendent, Respondent.
No. 02 Civ. 6775 (LAK) (AJP).
United States District Court Southern District of New York.
September 10, 2003.

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Lewis A. Kaplan, United States District Judge:

Pro se petitioner James Besser, also known as James Zerilli, seeks a writ of habeas corpus from his November 19, 1994 conviction in Supreme Court, New York County, of enterprise corruption (based on three "pattern" acts: first degree robbery, second degree grand larceny, and fourth degree grand larceny), and his December 11, 1995 sentence of fifteen years to life imprisonment as a persistent felony offender. (Dkt. No. 1: Pet. ¶¶ 1-5.) Besser's habeas corpus petition alleges that: (1) the evidence was legally insufficient to support his conviction for enterprise corruption (Pet. ¶ 13)1; (2) the trial court improperly allowed the jury to find Besser guilty of

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underlying pattern crimes based on the uncorroborated testimony of an accomplice (Pet. ¶ 13, incorporating App.: Besser Ct. App. Br. at A50-59);2 (3) the court seated two jurors whom the defense sought to peremptorily challenge without an adequate showing of racially discriminatory intent under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A60-71); (4) Besser's sentence as a persistent felony offender violated the Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A72-85); (5) Besser was unlawfully deemed a persistent felony offender because the court erred in considering the sequence of his predicate convictions (Pet. ¶ 13, incorporating Besser Ct. App. Br. at A86-91); and (6) Besser was denied the effective assistance of both trial and appellate counsel on a variety of grounds (Pet. ¶ 13 & attached Besser Br. at 1-7).

This Report and Recommendation will analyze all of Besser's claims except his Apprendi claims, which will be addressed in a separate Report & Recommendation.

For the reasons set forth below, Besser's petition should be denied, except as to his Apprendi sentencing claim, which will be addressed in a separate Report and Recommendation.



Besser was convicted of enterprise corruption, based on his membership in the Mafia and three "pattern acts." "All three of the crimes [pattern acts] for which Mr. Besser was found guilty stem from his . . . involvement with . . . Steven Lane, the former owner of a C-Town-turned-Associated

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supermarket in Brooklyn." (Dkt. No. 17: Besser 1st Dep't Br. at 4.) The first degree robbery charge (Pattern Act Four) involved Besser's participation in the robbery of that supermarket. "The second-degree grand larceny charge [Pattern Act Seven] involved money Lane . . . paid to Mr. Besser's co-defendant, Jerry Ciauri, for `protection,' and groceries Mr. Besser . . . took from the supermarket without paying. The fourth-degree grand larceny charge [Pattern Act Nine] involved . . . money Lane gave to Mr. Besser in exchange for a number of checks that bounced. . . . On the basis of these three `criminal acts,' Mr. Besser was found guilty of enterprise corruption. . . ." (Besser 1st Dep't Br. at 4-5.)

Voir Dire

In the first round of jury selection, the trial judge (Justice Bernard Fried) excused two venirepersons, provided one replacement, and presented the attorneys with a panel of seventeen prospective jurors. (Voir Dire Transcript ("V.") 142-43, 224-27, 344-47.) Of these, eight were white (Carcara, Zimmer, Taglienti, Gossett, Rathkope, Finnegan, Vives,3 and Gallagher) (V. 416-22; see V. 390); eight were black or "very dark skinned" Latina (Cantres, Alinares,4 McIver, Wilson, Frazier, Vinson, Williams, and Baker) (V. 388-89, 392-400, 422); and one was a Latina of unidentified skin color (Florio) (V. 194-96). (See generally App.: Besser Ct. App. Br. at A25.)

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The prosecution exercised five peremptory challenges, eliminating one black (McIver) and four white (Carcara, Zimmer, Finnegan, Vives) venirepersons. (V. 386-87; see App.: Besser Ct. App. Br. at A25.) Of the remaining twelve venirepersons, four were white (Taglienti, Gossett, Rathkope, Gallagher), one was Latina (Florio), and seven were black or "dark skinned" (Cantres, Alinares, Wilson, Frazier, Vinson, Williams, and Baker). (See prior paragraph.) Attorneys for Besser and his co-defendants, acting collectively, exercised peremptory challenges against seven out of the seven black or dark skinned venirepersons on the panel. (V. 388-90.)

The prosecution moved to prevent the defense's peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), arguing that there was a prima facie showing of racial discrimination by the defense. (V. 390.) The judge agreed that the defendants' peremptory challenges were, prima facie, "racially motivated,"and required defense counsel to present racially neutral reasons for their strikes. (V. 398-99; see also App.: Besser Ct. App. Br. at 25; App.: 7/27/95 Justice Fried Opinion at A112-19.)

Besser's trial counsel, Peter Quijano, responded to the court first. (V. 400-01.) He started by stating that during defense counsel's discussions with each other and with the defendants, "in trying to reach an agreement as to what peremptory challenges [the defense] would exercise, [he] state[s] as an Officer of the Court that race was not discussed." (V. 401; see App.: Besser Ct. App. Br. at 12.) He then turned to the reasons for striking each juror. (V. 402.) Besser's defense attorney Quijano offered the venirepersons' education levels as one reason for the peremptory strikes, explaining that the charged crime of enterprise corruption would involve "complex jury instructions"

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(V. 407), while Alinares had a "seventh grade education"5 (V. 404), and Wilson, who had completed high school, "lack[ed] . . . formal education beyond [the] preliminary level" (V. 407; see App.: Besser Ct. App. Br. at A26). Defense counsel did not mention that challenged venirepersons Cantres and Frazier also had high-school-level educations (V. 178-79, 197), but the defendants did express concern that Frazier would not be able to understand the judge's instructions regarding the presumption of innocence (V. 333, 420).6 Venirepersons Florio and Rathkope, whom the defendants

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did not strike, also had high-school-level educations. (E.g., V. 194.)

Defense counsel also justified striking several venirepersons based on their prior jury service. In the defense's view, Wilson, Vinson, and Baker might have been biased because they had sat on juries in criminal trials that went to verdict.7 (V. 161, 163-64, 408, 419-20.) According to defense counsel, criminal cases that go to verdict are more likely to result in convictions than acquittals; thus, there was "a very high likelihood that" these individuals had "voted for guilty." (V. 419.) Unchallenged venireperson Florio had also sat on a jury in a criminal trial that went to verdict. (V. 162.) Venireperson Frazier had sat on a jury in a trial that did not reach a verdict (V. 163); defense counsel worried that this might "lead to either speculation or just a dissatisfaction with a jury system" (V. 408-09, 420.).

The defense also challenged three venirepersons because of their possible bias in favor of police officers: Cantres, a security officer for the Board of Education, frequently made arrests, had testified in court as an arresting officer, and had a nephew who was a police officer (V. 146-47, 402-04, 417); Frazier's brother was a police officer (V. 420); and Vinson, a transit authority

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employee, was likely to have frequent contact with transit police (V. 421).

Other race-neutral reasons offered by the defense included: age (Frazier and Wilson were too old) (V. 408, 420, 429); an aversion to postal and transit workers (Wilson and Vinson)8 (V. 407, 409-10); and national origin (Alinares, from the Dominican Republic, and Baker, who was brought up "outside of the country" in Trinidad) (V. 184-85, 216-19, 405, 418). Defense counsel failed to mention, however, that Florio, who was not challenged, also grew up in the Dominican Republic. (V. 194.) Finally, the defense claimed that venireperson Williams had a "physical" reaction to questioning by defense attorney Quijano. (V. 405-07.)

After considering the defense's race-neutral explanations, the judge accepted the reasons for five of the peremptory challenges as "racially neutral," but found the reasons given for Frazier and Baker to be "pretextual." (V. 425-27.) Accordingly, the judge seated Frazier and Baker over the defendants' objections. (V. 427-28, 434.) (See App.: Besser Ct. App. Br. at A26-28; App.: 7/27/95 Justice Fried Opinion, at A112-19.)

In a post-trial decision, Justice Fried explained why he found the defense's challenges to jurors Frazier and Baker to be pretextual:

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Defense counsel explained that juror #9 [Baker], a black woman, was peremptorily challenged for the following reasons: 1) she was born and raised in Trinidad; 2) she was a juror in a previous murder case that reached a verdict; and 3) concern about the juror's general life experiences and reactions given the nature of the charges in the indictment.

First, the explanation that juror #9 was of concern to the defense in regard to her general life experiences because she was born and raised in Trinidad, I believe to be pretextual since defense counsel accepted a nonblack juror, Juror #15 [Florio], a Hispanic woman, who was born and educated in the Dominican Republic, another Caribbean country, and had lived in the United States for 43 years. It is clear that "a given reason for exclusion may generally be considered pretextual if it also applies to jurors who were not challenged." Further, during voir dire, juror #9 described herself as...

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