Criminal Law

Dist. Ct. did not err in imposing new, two-year term of supervised release as part of his sentence, after Dist. Ct. had found that defendant violated various terms of his original supervised release. Dist. Ct. provided adequate explanation for need for second term of supervised release, where Dist. Ct. noted heinous nature of defendant’s original transportation of minor for purposes of engaging in sexual act and attempted manufacture of child pornography convictions, as well as need for deterrence and need to provide for defendant’s rehabilitation. Moreover, defendant had waived any challenge to specific term of said supervised release, where defendant had failed to raise objection to said term in Dist. Ct. when given opportunity to do so.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his 60-year extended term sentence on his home invasion conviction on ground that his trial counsel was ineffective for failing to advise him that he faced potentially longer sentence than statutory maximum of 30 years because victim qualified as vulnerable victim who was over 60 years old. While defendant raised other ineffective assistance of counsel claims in his habeas petition, defendant waived instant ineffective assistance of counsel issue due to his failure to raise said claim in Dist. Ct.

Defendant waived his right to appeal his conviction on charge under 18 USC sections 924(j) and (2) arising out of his use of firearm to kill owner of gun store that formed basis of his Hobbs Act robbery conviction, where defendant had entered into plea agreement that called for his waiver of his right to appeal his convictions or sentence. While defendant argued that instant waiver should not apply since his Hobbs Act conviction was not “crime of violence” that would support his firearm conviction, defendant’s issue on appeal would require Ct. to determine validity of his firearm conviction, which would run contrary to terms of his appeal waiver. As such, Ct. rejected defendant’s implicit argument that appeal waiver is enforceable, unless appellant would succeed on merits of his appeal.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress firearm found in defendant’s car at time police encountered defendant in his car on public street, under circumstances where: (1) arrest warrant had been issued for defendant’s failure to comply with certain parole conditions; and (2) police obtained second warrant authorizing police to use cell-phone data to locate defendant for purposes of effectuating his arrest. Police were entitled to use warrant to obtain data that would help them locate defendant, and police were entitled to arrest defendant without any warrants, where arrest occurred on public street, and where police had probable cause to arrest him. Ct. left for another day resolution of whether police could properly use data from cell-site simulator to locate defendant, and whether use of such device is “search” for purposes of 4^th Amendment. (Dissent filed.)

In prosecution on drug conspiracy charge, prosecutor did not err when, in response to defense counsel’s statement during closing arguments that govt. had failed to call certain witnesses, prosecutor stated that while govt. had burden of proof in case, “defense can call witnesses too, if they want.” Prosecutor may tell jury that defendant has power to subpoena witnesses, where, as here, jurors were also told that govt. carried burden of proof. Ct. also rejected defendant’s argument that govt. violated his due process rights by calling witness who gave testimony that conflicted with witness’ prio statements made at witness’ guilty plea hearing, where: (1) there was no indication that witness’ trial testimony was false, as opposed to statements made by witness at guilty plea hearing; and (2) substance of witness’ trial testimony could not have affected jury’s guilty verdict, where other evidence overwhelmingly established defendant’s guilt.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his predatory criminal sexual assault convictions, even though defendant argued that his trial counsel was ineffective for revealing to jury during objection to prosecutor’s closing argument existence of damaging evidence regarding sperm being found on various items that had been otherwise excluded during trial. Although trial counsel’s performance was deficient, State Appellate Court could properly have found that there was no reasonable probability that outcome of trial would have been different given fact that victim’s account of charged sexual assaults was corroborated by other testimony and medical evidence, and that trial court gave jury limiting instructions regarding statements made during closing arguments.