Enoksen v. Squires

• Decision Date: 31 March 2021
• Docket Number: 19-CV-7315 (GRB)
• Parties: Nancy ENOKSEN, Petitioner, v. Superintendent SQUIRES, Albion Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

532 F.Supp.3d 75

Nancy ENOKSEN, Petitioner,

v.Superintendent SQUIRES, Albion Correctional Facility, Respondent.

19-CV-7315 (GRB)

United States District Court, E.D. New York.

Signed March 31, 2021

Filed April 2, 2021

Nancy Enoksen, Pro se Petitioner.

Cristin N. Connell, Assistant District Attorney, Nassau County District Attorney's Office, 262 Old Country Road, Mineola, NY 11501, Attorneys for Respondent.

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

In a criminal prosecution, a jury may (and often should) be instructed that a non-testifying defendant has a right not to testify and that no inference should be drawn from the exercise of that right. Is it sufficient, then, as happened in this case, to charge a jury that such a defendant had a right to testify , and that no inference should be drawn from fact that she "did not do so"? And can such an instruction be given absent a request from or, indeed, over the objection of, the defendant?

These represent the more substantial questions presented by the instant petition for habeas corpus, brought by Nancy Enoksen ("Petitioner"). On January 29, 2018, following a jury trial, Petitioner, a former lawyer, was convicted of one count of Grand Larceny in the Second Degree based upon the pilfering of $187,000 from one of her client's escrow accounts. On March 20, 2018, Petitioner was sentenced to an indeterminate sentence of three and one-third to ten years of imprisonment. Following exhaustion of a number of state appellate remedies, she now brings the instant petition.

While the answers to the above questions are nuanced and interesting, as set forth below, though erroneous, the challenged instruction does not appear to provide grounds for relief under existing law. Because neither these contentions, nor the other arguments posited here, warrant the extraordinary relief sought, the petition is denied for the reasons set forth herein.

I. FACTUAL BACKGROUND

The following facts are taken from the petition and the state court record.¹

Petitioner was a matrimonial attorney with a legal practice in Nassau County. Tr. 237-38. In 2008, Lisa Elfante retained Petitioner to represent her in her divorce proceeding. Id. 238. During the course of her divorce proceedings, Elfante was seriously injured in an automobile accident. Id. 240. Thereafter, Elfante sued and received a settlement of approximately $417,720 as a result of that lawsuit. Id. 241. Elfante told Petitioner that she was concerned about a potential deficiency judgment against her resulting from the short sale of her former martial home, so Petitioner offered to hold Elfante's settlement money in an escrow account to protect it. Id. 244-46, 429, 465. After depositing Elfante's settlement funds into an escrow account, Petitioner purloined approximately $187,000.00 from the account between August 2013 and April 2014, which she converted to her own use. Tr. 263-93, 365, 491; People's Exhibit ("P. Ex.") 2B, DE 15-11.

Prior to trial, the defense sent the prosecution a letter requesting all of Elfante's "therapy records." See September 16, 2016 Letter, D.E. 2-9. The prosecution informed defense counsel that it was not in possession of or even aware of any such records. See Respondent's Affidavit and Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus ("Resp.’s Aff. and Mem. in Opp."), D.E. 15, at 2. Thereafter, in December 2016, defense counsel filed a motion seeking that the court "so order" a subpoena duces tecum for Elfante's medical and psychiatric records, which the court denied. See May 15, 2017 Dec. and Order, D.E. 15-3. The court ruled that the subpoena was overbroad and there was not a factual predicate warranting production of the records. Id. At trial, the court precluded defense counsel from questioning Elfante regarding mental health treatment, finding that defense counsel failed to provide a factual basis sufficient to support the line of questioning. Tr. 394-97.

Elfante testified that Petitioner had her sign a retainer agreement ("the agreement") prior to entering into the escrow arrangement. Id. 244-45. Elfante's daughter worked for Petitioner and brought the agreement home to Elfante to sign. Id. After reviewing the agreement, Elfante observed that it was the same as the retainer agreement she signed for her divorce, so she called Petitioner. Id. 245. Petitioner explained to Elfante that the agreement was merely a technicality required to open the escrow account and instructed her to sign it. Id. However, the agreement gave Petitioner sole discretion to take "necessary and appropriate" actions to protect Elfante's interests, and Petitioner had control over the checkbook for the escrow account. Id. 253-54, 372.

Petitioner opened two escrow accounts on behalf of Elfante. The first account, ending in 4159, was opened at TD Bank but was later closed by Petitioner at Elfante's request because the account used Elfante's married name and address. Id. 248-52. According to Elfante, there were no unauthorized withdrawals from that account. Id. 250-52. After closing the 4159 account, Petitioner opened a new TD Bank account ending in 3979, under the name "Lisa Marie Elfante Escrow Account, Law Office of Nancy Enoksen." Tr. 253-55, 483. Petitioner never sent Elfante a monthly statement of the balance of the 3979 account, and only once provided a written description of the account activity after numerous requests by Elfante. Id. 295-96. That written breakdown, provided to Elfante sometime in the Fall of 2013, listed only two withdrawals, a check to Petitioner in the amount of $10,533.00 representing outstanding legal fees accrued during the matrimonial action, and a $3,500 withdrawal Elfante authorized in September 2013. Id. 295-97, 299; P. Ex. 29, D.E. 15-13. The breakdown did not include $70,000 Petitioner withdrew from the account, and stated that the account balance was $362,677.91. Tr. 297, 670-71; P. Ex. 29, D.E. 15-13. According to the bank records also admitted at trial, the balance of the escrow account at the close of September 2013 was, in fact, $277,679.30. P. Ex. 2B, D.E. 15-11.

After receiving the handwritten accounting from Petitioner, Elfante sent Petitioner numerous text messages requesting information regarding the escrow account, the majority of which were unanswered.² Tr. 311-39, 464; P. Ex. 32, D.E. 15-14. In April 2014, after Elfante sent Petitioner multiple text messages inquiring about the account, Petitioner sent Elfante a text stating "[s]eriously, Lisa, cut me a break here. I did this for you. There is nothing in it for me except I am sure I wasn't allowed to do this. Yet you act like I'm working for you or something." Tr. 332, P. Ex. 32, D.E. 15-14. After further text messages were exchanged, Petitioner agreed to meet with Elfante to provide bank records but never followed through. Tr. 334-39.

In May 2014, Elfante went to TD Bank to get information about her escrow account, but was informed by the bank representative that she had no authority to get such information. Id. 360-61. Thereafter, Elfante obtained a signed check from Petitioner and brought it back to TD Bank, where she met with a different bank representative. Id. 361-62. The bank representative advised Elfante of the balance in the escrow account and printed the bank statements for the account. Id. 362-63. Reviewing the bank statements, Elfante observed numerous negotiated checks payable to Petitioner. Id. 363-64. On May 6, 2014, Elfante liquidated the account by writing a check in the amount of $120,296.29. Id. 364.

Ramona Duran, an investigative accountant with the Nassau County District Attorney's Office, analyzed the 3979 account and provided testimony and demonstrative evidence summarizing the activity in the account for the time period between August 14, 2013 and August 29, 2014. Tr. 483-89, 499-50, 528; P. Ex. 2B, D.E. 15-11. In sum, based upon Elfante's testimony and the bank records, Duran concluded that Elfante authorized withdrawals totaling $189,691.96, and the total amount of unauthorized withdrawals was $187, 040.34.³ Tr. 491; P. Ex. 2B, D.E. 15-11. Duran also testified to tracing the unauthorized withdrawals to Petitioner, including cash withdrawals, deposits made into Petitioner's business and personal bank accounts, and payment of Petitioner's personal expenses, including tax liabilities, personal travel expenses and college tuition payments made on behalf of Petitioner's son. Tr. 492-535; P. Ex. 2B, D.E. 15-11. According to both Elfante and Duran, the unauthorized funds were never returned to Elfante's account. Tr. 263-93, 365, 491, 505. Chris McDonough, an attorney and expert in professional ethics, testified on behalf of the prosecution regarding his expertise relating to the maintenance and operation of escrow accounts and agreements.⁴ Id. 562-67. McDonough testified that the New York Rule of Professional Conduct 1.15⁵ (" Rule 1.15") defines escrow and governs an attorney's duties and obligations regarding escrow accounts. Id. 567. McDonough's testimony clarified for the jury the workings of escrow accounts and the rules for their operation, including proscriptions against comingling and unauthorized withdrawals. Id. 567-73.

At the close of the prosecution's case, defense counsel moved for a trial order of dismissal based on the following arguments: (1) the evidence at trial established that there was a signed retainer agreement, which was prima facie proof of a contractual obligation; (2) the evidence at trial was insufficient to establish that there was intent to deprive Elfante of property; and (3) Elfante's testimony was ambiguous and, as such, could not establish prima facie proof of the alleged criminal charges. Id. 599-610. The trial court denied the motion. Id. 614. The defense did not present a case and at the close of the evidence at trial defense counsel renewed the motion for a trial order of dismissal, which the trial court denied. Id.

Following summations, instructions...