People v. Ennis

• Decision Date: 20 November 2008
• Docket Number: 168.
• Parties: The PEOPLE of the State of New York, Respondent, v. Sheldon ENNIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

900 N.E.2d 915

11 N.Y.3d 403

The PEOPLE of the State of New York, Respondent, v. Sheldon ENNIS, Appellant.

168.

Court of Appeals of New York.

November 20, 2008.

Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

Defendant, his brother and a coconspirator were jointly tried and convicted of participating in a conspiracy to sell drugs and assaulting rival drug dealers to further the conspiracy. On appeal, defendant argues that his convictions should be reversed because his trial counsel failed to make appropriate use of potentially exculpatory information that he discovered during the trial. We agree with the Appellate Division that reversal is not warranted and we therefore affirm.

Sheldon Ennis, his brother Aaron, and coconspirator Keith Taylor were named in a 23-count indictment as participants in a drug selling conspiracy in which they used violence to keep rival drug dealers from encroaching on their territory. At the joint trial of the three men, the People offered proof that Sheldon and Aaron Ennis ran their operation—known as the "Dog Pound"—out of a hotel on 38th Street in Manhattan. The Ennis brothers allowed other groups to sell drugs in the vicinity but warned them to stay outside of a designated area in front of the hotel. Those who failed to heed the warning were severely punished, as demonstrated by the two violent incidents that led to the convictions Sheldon Ennis challenges in this appeal.

One such incident, which occurred in August 1996, involved Frank "Nitti" Brown who ran a competing drug operation adjacent to the Dog Pound territory. Brown testified at trial that, for many months, he had a peaceful relationship with the Ennis brothers. That changed when Brown antagonized the brothers by his decision not to use them as his supplier. Then one of Brown's workers crossed into Dog Pound territory and sold drugs near the hotel. The Ennis brothers confronted Brown about the transgression and a verbal altercation ensued. Brown retreated to his base of operations in the Bronx, intending to return with a group of armed associates the next day. Nonetheless, that evening he and Billy Moody drove down 38th Street, accompanied by two female acquaintances. Brown and Moody both testified that they were unarmed and did not intend to provoke a fight.

Brown recounted at trial that, as he proceeded down the street, he spotted Sheldon Ennis leaning against a telephone pole. Once Sheldon saw Brown's car, he raised a gun and began to shoot. Brown swerved and then observed Aaron on the opposite side of the street. Aaron also began firing at Brown's vehicle. A third conspirator—Keith Taylor—pointed a gun at the car, although Brown was not sure whether Taylor pulled the trigger. As they drove off, Moody told Brown that he had been shot. A couple of blocks away, Brown was able to locate a police car to report the shooting. He then sought medical assistance for Moody, who survived but was paralyzed as a result of the incident. The police retrieved numerous discharged shells and casings from the area of the shooting and, at trial, a ballistics expert testified that at least two and probably more guns were involved. In connection with this shooting, the Ennis brothers and Taylor were charged with attempted murder of Moody and several counts of assault and criminal possession of a weapon.

The second violent incident occurred four months after the Moody shooting—in December 1996—when the Ennis brothers were involved in another fracas with Clarence Calwell and Randolph Sherman, rival drug dealers who ran an operation down the street. Similar to the Brown incident, the dispute arose when one of the dealers who worked for Calwell and Sherman conducted a drug sale in Dog Pound territory. Sheldon and Aaron located the rival dealers and initiated a confrontation that resulted in Calwell and Sherman each suffering multiple stab wounds. Both brothers were charged with two counts of attempted murder in the second degree and multiple counts of assault.

The jury returned a verdict convicting defendant Sheldon Ennis of conspiracy in the second degree for his participation in the Dog Pound drug operation. In connection with the Moody shooting, the jury acquitted defendant of the attempted murder count but convicted him of assault in the first degree and criminal possession of a weapon in the second and third degrees. Defendant was also acquitted of the two attempted murder counts arising from the stabbing of Sherman and Calwell but was convicted of one count of assault in the first degree and one count of assault in the second degree for the injuries they sustained.¹

After the verdict but before sentencing, defendant's trial counsel—David Cooper— submitted a CPL 330.30 motion alleging that Sheldon's conviction for assault in the first degree as to the shooting of Billy Moody should be reversed based on a Brady violation. Cooper asserted that, during the trial, he learned that Aaron Ennis had participated in a proffer session with the District Attorney's office in which Aaron stated that he shot Billy Moody and that defendant was not present at the shooting. The People never turned over the statement as Brady material. Cooper explained that he was told about the statement in confidence and with the understanding that he would not disclose it until after the trial concluded. He claimed that, if the People had timely provided the Brady information, he would have sought a severance and a separate trial for defendant so that he could have called Aaron as a witness. Having learned of the statement late in the trial, however, Cooper contended there was no way he could get the statement before the jury because Aaron would have invoked his Fifth Amendment privilege against self-incrimination if Cooper had tried to call him as a witness at the joint trial.

The trial court denied the CPL 330.30 motion, reasoning that, although the People should have disclosed Aaron's statement, reversal was not warranted because defense counsel knew of the information during trial, at a time when he could have pursued various remedies (including an ex parte application to the court). The court concluded that defense counsel "tactically chose not to do anything" until after the jury reached its verdict, attempting "to use the Brady doctrine as both a shield and a sword." After the motion was denied, defendant was sentenced as a predicate felon to an aggregate term of 43 1/3 to 60 years in prison.

Five years later, defendant made a CPL 440.10 motion to vacate the judgment, repeating his Brady argument and raising an ineffective assistance of trial counsel claim. The motion was supported by the affidavit of David Cooper, Sheldon's trial attorney, who explained that it was Aaron's attorney who told him that, in an attempt to enter into a cooperation agreement with the People, Aaron stated that he shot Billy Moody and that defendant was not involved in the shooting. Cooper averred that, because he had promised Aaron's attorney that he would not disclose this information until the trial was over, he felt constrained not to alert the trial court. He farther claimed that he had no "tactical or strategic reason" for his failure to act on the information during the trial. The motion court denied the application, echoing the reasoning of the trial court (2005 WL 6226995, 2005 N.Y. Slip Op. 30328[U]).

The Appellate Division affirmed defendant's convictions, rejecting the ineffective assistance of counsel and Brady violation arguments for reasons similar to those articulated by the trial and motion courts (41 A.D.3d 271, 839 N.Y.S.2d 720 [2007]). The court noted that there was no reasonable possibility that the People's failure to timely disclose Aaron's statement contributed to the verdict because there would have been no means for defendant to use the statement at trial, even if a severance had been granted, since Aaron would undoubtedly have invoked his Fifth Amendment privilege to avoid testifying on his brother's behalf. The court reasoned that any attempt to introduce the statement as hearsay through a third party present at the proffer session would have been unsuccessful because the statement did not fall within any hearsay exception, including the exception for declarations against penal interest. Finally, the Appellate Division also rejected defendant's claim that his assault convictions arising from the Calwell and Sherman incident were not supported by legally sufficient evidence. A Judge of this Court granted defendant leave to appeal (10 N.Y.3d 810, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008]).

Defendant raises two ineffective assistance of trial counsel arguments. First, he contends that when Cooper made a promise to Aaron's counsel not to reveal information about Aaron's exculpatory statement until the trial ended, a conflict of interest was created and reversal is necessary because the conflict significantly impacted the defense. Second, he asserts that he did not receive meaningful representation because Cooper failed to appropriately act on the information he received from Aaron's lawyer during the trial. We conclude that both arguments lack merit.

Under the state and federal constitutions, a criminal defendant is entitled to the effective assistance of counsel, defined as "representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests" (People v. Harris, 99 N.Y.2d 202, 209, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] [citations omitted]). A claim that defense counsel's representation was compromised by a conflict of interest requires two inquiries. First, the court must examine the nature of the relationship or circumstances that are alleged to establish a conflict. Second, if a conflict is...