Lurie v. Wittner
| Decision Date | 01 August 1999 |
| Docket Number | Nos. 1186,99-2426,Docket Nos. 99-2425,1449--,s. 1186 |
| Citation | 228 F.3d 113 |
| Parties | (2nd Cir. 2000) BRETT K. LURIE, Petitioner-Appellee-Cross-Appellant, v. BONNIE G. WITTNER, Acting Justice of the Supreme Court of the State of New York; ELIOT SPITZER, Attorney General of the State of New York; GLENN S. GOORD, Commissioner, New York State Department of Correctional Services, Respondents-Appellants-Cross-Appellees |
| Court | U.S. Court of Appeals — Second Circuit |
MARK M. BAKER, New York, N.Y. (Melinda Sarafa, Brafman & Ross, P.C., on the brief), for Petitioner-Appellee-Cross-Appellant.
ROBIN A. FORSHAW, New York, N.Y. (Eliot Spitzer, Attorney General of the State of New York, Edward Johnson, Deputy Solicitor General, on the brief), for Respondents-Appellants-Cross-Appellees.
Before: KEARSE, JACOBS, and POOLER, Circuit Judges.
Petitioner Brett K. Lurie, the one-time sponsor and manager of five cooperative apartment buildings, misapplied the tenants' maintenance payments and sold apartment shares without disclosing the cooperative's weakened financial condition and was convicted in New York State Supreme Court for schemes to defraud, real estate securities fraud, larceny, and offering a false instrument. Lurie moved in the United States District Court for the Southern District of New York (Scheindlin, J.) for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The district court granted the motion in substantial part on two grounds:
(i) The state-court jury was presented with an interpretation of a certain relevant but uncharged real estate law that was also subject to a different interpretation. The district court ruled that this constituted a violation of the fair-notice requirement implicit in the rule of lenity, and that such a violation was of constitutional dimensions.
(ii) The state trial court ruled that Lurie could not call his former lawyer as a witness to present an advice-of-counsel defense unless Lurie first laid a testimonial foundation for such a defense. The district court ruled that this constituted an impermissible interference with Lurie's right to present a defense.
Appeal is taken by the Commissioner of the New York State Department of Corrections, the Attorney General of the State of New York, and an Acting Justice of the New York State Supreme Court (collectively, the "State") from so much of the judgment as granted the writ. Lurie cross-appeals on the ground that the preclusion of his attorney's testimony also required vacatur of the only count that the district court left standing.
The State appeals on three grounds: (i) Lurie failed to exhaust his fair-notice claim in state court; (ii) Lurie's fair-notice claim is premised on facts that implicate no constitutional issue reviewable on a petition for federal habeas relief; and (iii) the state court's refusal to permit testimony by Lurie's former lawyer did not deprive Lurie of his constitutional right to present a defense, and so was not properly subject to federal habeas relief.
For the reasons that follow, we reverse so much of the judgment of the district court as grants Lurie's petition. We affirm the remainder of the judgment.
In 1989 and 1990, Lurie was the sponsor, manager and majority shareholder of five cooperative apartment buildings in Queens County, New York. Among his wrongful acts as financial officer for the buildings, Lurie failed to make monthly payments on the mortgage; failed to pay for building maintenance, water, heating oil or taxes (with the exception of a $15,000 maintenance payment to himself); wrote checks to himself from the buildings' accounts in the amount of $435,000; ran up debts and obligations to the cooperatives that by October 1990 exceeded $1.8 million; and filed with the state an amendment to a real estate offering plan that contained materially false information.
The state concluded that these acts amounted to a knowing scheme to defraud current apartment owners and potential apartment buyers, and indicted Lurie. One group of violations--referenced as the "maintenance counts"--was based on Lurie's failure to disclose the buildings' parlous condition to minority shareholders, in violation of New York's General Business Law (the "Martin Act") and various sections of New York's Penal Law. These shareholders (i.e., the apartment owners) continued to make maintenance payments presumably in reliance on the reasonable but mistaken belief that their payments were being applied to the upkeep of the buildings and the other corporate obligations of the cooperative. A second group of violations--referenced as the "purchaser counts"--arose from Lurie's failure to disclose the buildings' financial condition to potential buyers and actual purchasers, also in violation of the Martin Act and New York's Penal Law.
On April 25, 1996, Lurie was convicted by a jury in the Supreme Court of the State of New York, the Hon. Bonnie G. Wittner, presiding. The relevant particulars of the trial are set forth below, in the context of the legal discussion. The counts of conviction were:
(i) eight counts of conducting a scheme to defraud in the first degree, in violation of N.Y. Penal Law §190.65(1)(b) (McKinney 1999) (the "scheme-to-defraud counts");
(ii) nine counts of intentional real estate securities fraud, in violation of the Martin Act, N.Y. Gen. Bus. Law § 352-c(5), (6) (McKinney 1996) (the "securities fraud counts");
(iii) three counts of grand larceny in the second degree, in violation of N.Y. Penal Law §155.40 (McKinney 1999);
(iv) three counts of grand larceny in the third degree, in violation of N.Y. Penal Law § 155.35 (McKinney 1999) (); and
(v) one count of offering a false instrument for filing in the first degree, in violation of N.Y. Penal Law §175.35 (McKinney 1999) (the "false instrument count").
Each count has a mens rea requirement of intent to defraud. See N.Y. Gen. Bus. Law §352-c(5), (6) (); N.Y. Penal Law §155.05(1) (); id. §155.35 ; id. §155.40 (same); id. §175.35 (); id. §190.65(1)(b) (same).
The first three scheme-to-defraud counts, as well as the securities fraud counts and the larceny counts, constitute the purchaser counts. Counts 4-8 alleging a scheme to defraud constitute the maintenance counts. The false instrument count is referenced separately.
Lurie was sentenced to two consecutive terms of imprisonment--(i) concurrent terms of one to three years on each of the maintenance counts, and (ii) concurrent terms of one to three years on each of the purchaser and false instrument counts--totaling two to six years.
The Appellate Division affirmed Lurie's conviction and sentence. See People v. Lurie, 673 N.Y.S.2d 60, 62-64 (1st Dep't 1998). The Court of Appeals denied leave to appeal on August 27, 1998. See People v. Lurie, 680 N.Y.S.2d 64 (1998) (table).
In October 1998 Lurie filed his motion for a writ of habeas corpus, pleading three grounds:
(i) the state trial court violated due process when it permitted testimony by the head of the New York State Attorney General's Real Estate Finance Bureau concerning the obligations of a sponsor under the New York General Business Law;
(ii) the state trial court violated the rule of lenity by relying on, as evidence of Lurie's state of mind, Lurie's compliance with one possible interpretation of the statute governing those obligations, when the statute was susceptible to a narrower interpretation; and
(iii) the state trial court denied Lurie his constitutional right to present a defense when it refused to allow Lurie's former lawyer to testify about the advice he gave Lurie unless Lurie testified that his actions were influenced by that advice.
The district court heard oral argument on February 17, 1999, and on April 26 granted habeas relief on all counts except the false instrument count. See Lurie v. Wittner, No. 98 Civ. 7697, 1999 WL 246809 (S.D.N.Y. Apr. 26, 1999) ("Lurie I").
As to the purchaser counts: To show Lurie's intent to defraud, the state offered and the state trial court admitted testimony about certain legal obligations that are owed by a cooperative sponsor under a state statute. On habeas, the district court determined that the statute was susceptible of an alternative reading, under which Lurie's conduct would not have violated the statute, and that the rule of lenity therefore applied and required vacatur of the purchaser-count convictions. See Lurie I, 1999 WL 246809, at *5-*7.
As to the maintenance counts: The district court held that the state trial court violated Lurie's Sixth Amendment right to present a defense, because the state trial court's conditional refusal to allow testimony by Lurie's former lawyer presented Lurie with the constitutionally intolerable choice of exercising either his Fifth Amendment privilege against testifying or his Sixth Amendment right to present a defense, but not both. The court therefore vacated Lurie's maintenance convictions.1 See Lurie I, 1999 WL 246809, at *7-*11. The district court's discussion made no mention of the false instrument count.
In response to competing motions for reconsideration, the district...
To continue reading
Request your trial
-
Sheppard v. Bagley
...be correct." Williams, 529 U.S. at 408, 120 S.Ct. 1495; Hunt v. Mitchell, 261 F.3d 575, 580 (6th Cir.2001). See also Lurie v. Wittner, 228 F.3d 113, 129 (2d Cir.2000)(recognizing the Williams Court declined to answer whether a state determination may be set aside under the AEDPA if, under c......
-
State v. Courchesne
..."The Mercy of Scalia: Statutory Construction and the Rule of Lenity," 29 Harv. C.R.-C.L. L. Rev. 197, 202 (1994); cf. Lurie v. Wittner, 228 F.3d 113, 123 n.4 (2d Cir. 2000) (rejecting government's claim that "rule of lenity is a statutory presumption lacking a constitutional dimension" inas......
-
Washington v. Schriver
...jurisdiction under 28 U.S.C. § 2253(a), and we review de novo the district court's denial of habeas corpus relief. See Lurie v. Wittner, 228 F.3d 113, 121 (2d Cir. 2000), cert. denied, 121 S. Ct. 1404 (2001); Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir.), cert. denied, 519 U.S. 834 A. ......
-
Edwards v. Fischer
...but rather whether it was "objectively unreasonable." See Williams 529 U.S. at 408-10, 120 S.Ct. at 1521-22; Lurie v. Wittner, 228 F.3d 113, 128-29 (2d Cir.2000). II. Petitioner's A. Improper Jury Instructions Petitioner claims that the trial court committed constitutional error by failing ......