Nappi v. Yellach
| Decision Date | 30 May 2014 |
| Docket Number | No. 9:12-cv-01193-JKS,9:12-cv-01193-JKS |
| Parties | DONATO NAPPI, Petitioner, v. BRUCE YELLACH, Superintendent, Bare Hill Correctional Facility, Respondent. |
| Court | United States District Courts. 2nd Circuit. United States District Court of Northern District of New York |
Donato Nappi, a New York state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Nappi is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Bare Hill Correctional Facility. Respondent has answered, and Nappi has replied.
On July 1, 2009, a grand jury charged Nappi with third-degree criminal possession of a weapon by indictment alleging that he possessed a firearm on January 5, 2009. An information separately alleged prior convictions in 1982 for second-degree murder and second-degree conspiracy. Nappi was on parole for those convictions when his parole officer found the firearm at his home.
The trial court held a suppression hearing on November 6, 2009. At the suppression hearing, Nappi's parole officer testified on cross-examination that he first learned that a gun maybe at the residence on the afternoon of January 5 when he received a call from a confidential informant. Defense counsel, who had not known about the informant, then requested a Darden2 hearing. At the Darden hearing, the court granted the prosecution's motion for the informant to remain confidential at that time.
The court also held a hearing on Sandoval3 issues. The prosecution moved to use a 1972 federal conviction for interstate transportation of stolen securities, a 1979 conviction for criminal possession of stolen property in the second degree, and a 1981 fifth-degree conspiracy conviction. The defense argued that the convictions were too remote and would be unduly prejudicial. The court ultimately ruled that the prosecution could cross-examine Nappi as to whether he was convicted of crimes other than those for which he was on parole and, if the answer was yes, the inquiry would stop. With respect to the convictions alleged by information, the court prohibited the use of the words "murder" or "conspiracy" at trial.
Nappi's wife testified at trial that, in September 2008, Nappi told her that he was looking to get back a gun that he had owned prior to his imprisonment. Defense counsel objected on marital privilege grounds and the court ruled the conversation to be a daily and ordinary exchange between spouses protected by the privilege. She testified to other conversations, including one in December 2008 where Nappi told her he had found out who had his gun. Whenasked if Nappi had asked her do something to obtain a gun, Mrs. Nappi stated that she was asked to locate a phone number and contact the individual because he could not do so.
Over objection, Mrs. Nappi testified that, on December 11, 2008, her husband called her into a bedroom at her son's home and showed her a gun that was sitting on a towel. She also observed a clip and ammunition in a box. Mrs. Nappi testified that they returned to their home separately the next day with her transporting the gun. She stated that she did not want the gun, but that Nappi told her to hold it as his parole could be violated. Mrs. Nappi testified that she was afraid to have the gun in the house. Nappi told her that he would keep the ammunition and she could take the gun, which she put in her room initially. After a few weeks, Mrs. Nappi moved the gun when Nappi told her he wanted it soon. She did not provide him with the gun as she was afraid to have the gun and ammunition together.
Mrs. Nappi further testified that, on January 4, 2009, Nappi's parole officer, Parole Officer Stewart, arrived at the home for a parole visit. On January 5, 2009, state police arrived at the Nappi residence and searched the home, looking for Mrs. Nappi's son, for whom they had a search warrant. Later that day, Stewart arrived at the home, searched the house, and found the gun.
The court then excused the jury and informed the parties that he was lifting the confidentiality of the informant and revealed that Mrs. Nappi was the confidential informant. The prosecution then continued examination of Mrs. Nappi, who testified that, on the afternoon of January 5, 2009, she spoke to Stewart and told him where the gun could be found because she was afraid of somebody getting hurt.
On cross-examination, Mrs. Nappi admitted she had known Nappi's friend, Del Dyman, for forty years. She denied having a romantic relationship with him but stated that she had placed her house as collateral for his bail. Mrs. Nappi also denied having any misdemeanor or felony convictions. She testified that, when she visited Nappi at jail, he told her to say that the gun belonged to her father who had recently passed away.
Parole Officer Stewart also testified at trial. He testified that he had advised Mrs. Nappi that she should inform him if Nappi ever acquired a weapon. On January 4, 2009, he made an unannounced evening visit and found Nappi, Mrs. Nappi, and her son at the home. Stewart was aware that Mrs. Nappi's son might be wanted on a warrant so, the following day, he checked and learned that a warrant was active. Later that day, he received a call from Mrs. Nappi that there was a weapon at Nappi's home. He notified law enforcement to make a plan to secure the weapon and advised Mrs. Nappi to move the weapon to under the bed for safety reasons. When Nappi arrived home, Stewart met him and looked in the car for Mrs. Nappi's son. Stewart then advised the Nappis that he was going to look for Mrs. Nappi's son in the house. At some point during his search, he went into the middle bedroom and found under the bed a towel with a weapon inside. Stewart secured the area where the gun was found and had an officer restrain Nappi while a warrant was obtained. On re-direct, Stewart testified that he had concerns about possible domestic violence.
The prosecution also presented the testimony of a parole supervisor who was present during the search and a police investigator who testified that the gun was not registered in either Oneida or Herkimer Counties. The prosecution further introduced testimony that the gun had aprint that was consistent with Nappi's DNA and that Nappi did not have a pistol permit in Herkimer County.
At the conclusion of the prosecution's case, the defense moved to dismiss due to lack of sufficient evidence of possession on January 5, 2009. The prosecution alleged that constructive possession was shown. The court ruled that it would charge as to both accomplice testimony as requested by the defense and construction possession as requested by the prosecution. The court also determined that sufficient evidence was presented to have the case go to the jury. After deliberations, however, the jury was unable to reach a unanimous verdict.
Nappi then proceeded to a second jury trial. Nappi wanted to cross-examine Mrs. Nappi and present witnesses who could testify that: 1) Mrs. Nappi had a romantic relationship with Dyman at some time in the last 20 or 30 years; 2) Mrs. Nappi's house was subject to foreclosure if Dyman absconded from bail; 3) that Mrs. Nappi asked an attorney for advice about bailing out Dyman; and 4) that Mrs. Nappi had engaged in acts of prostitution. Based on Mrs. Nappi's testimony from the first trial that she had no criminal record and no romantic relationship with Dyman, the court determined that the proposed testimony involved collateral matters and precluded Dyman from either cross-examining Mrs. Nappi on those issues or introducing the proffered witnesses. The trial court also changed its Sandoval ruling, stating that the prosecution would be permitted to impeach Nappi with all prior convictions and, if Nappi testified, could mention the number of years that Nappi had been in prison. The prosecution also presented the testimony of Terry Chrisman, an inmate who had been housed with Nappi for four months, who testified that Nappi had told him that he and his wife argued on the phonebecause Nappi wanted her to do something for him regarding his father. The evidence presented was otherwise largely consistent with the evidence presented at the first trial.
At the close of the prosecution's case, Nappi made a motion that the jury be instructed to disregard Mrs. Nappi's testimony on the ground that the prosecution did not provide her criminal history. Nappi also requested a mistrial or dismissal for not being allowed to pursue Mrs. Nappi's relationship with Dyman. Defense counsel also argued that the prosecution presented perjured testimony from Mrs. Nappi and that the second trial violated the protections against double jeopardy based on an improper decision by the court in the first trial. Defense counsel further asked for dismissal based on insufficient evidence. The motions were denied. The prosecution produced a partial rap sheet for Chrisman, and the defense was given the option to recall him as a witness because there were more convictions than he had stated during his testimony. Defense counsel waived the opportunity after the rap sheet was agreed to be placed into evidence. The defense then rested.
During deliberations, the jury questioned whether only January 5, 2009, could be considered for possession. The court read the instruction again which was worded "on or about" January 5th and answered "no" to the jury's question. After deliberations, the jury found Nappi guilty of third-degree criminal possession of a weapon. On March 15, 2010, Nappi was sentenced to an imprisonment term of 3½ to 7 years.
Proceeding with the same counsel who had represented him at trial, Nappi appealed his conviction to the Appellate Division, arguing that: 1) the trial court erred in denying his motion for dismissal after the first trial thus violating the constitutional protection against double jeopardy; 2) the trial court erred in...
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