Drayton v. Young

Opinion

O'Melveny O'Melveny & Myers LLP T: +1 212 326 2000 File Number: Times Square Tower F: +1 212 326 2061 7 Times Square omm.com New York, NY 10036-6537

March 5, 2021 Jonathan Rosarbaa jrosenberg@omm.com BY ECF The Honorable Kenneth M. Karas United States District Judge 300 Quarropas St. MEMO ENDORSEMENT White Plains, NY 10601-4150 Re: Drayton v. Young, et al., Case No. 7:17-CV-5440 Dear Judge Karas: We have recently been retained as pro bono counsel for Plaintiff Frank Drayton, under the Court’s November 24, 2020 Order, and we respectfully submit this letter to request that the Court (1) adjourn the June 10, 2021 trial date and stay the trial until after Mr. Drayton’s newly revived criminal proceeding is resolved, and (2) adjourn the March 23, 2021 status conference until the week of April 5 (all parties are available any day that week except for April 6 and 7) because one of Defendants’ counsel is unavailable on March 23. We have conferred with Defendants, and they consent to the Court adjourning and staying trial and to rescheduling a status conference. Mr. Drayton has not previously made such a request. As discussed below, adjourning the trial until after Mr. Drayton’s criminal proceeding is resolved would avoid the risk of this case infringing on Mr. Drayton’s Fifth Amendment rights. While the criminal proceeding is pending, we will review the discovery and pre-trial record, determine what additional discovery 1s appropriate, and confer with Defendants regarding potentially reopening discovery for targeted document requests and depositions. Background. Mr. Drayton’s Section 1983 pro se complaint alleges that Defendants used excessive force while arresting him on January 6, 2016, causing serious injuries, including a broken nose and lacerations to his face, back, and legs. The January 6, 2016 arrest also resulted in criminal charges, and on June 26, 2016, Mr. Drayton was convicted in Sullivan County Court of robbery, conspiracy, resisting arrest, and criminal possession of stolen property. Mr. Drayton filed a notice to appeal his convictions before the Appellate Division Third Department on December 23, 2016. On June 29, 2018, while his convictions were still pending appeal, Mr. Drayton moved the Sullivan County Court to vacate his convictions because (among other reasons) his defense counsel provided ineffective assistance by failing to investigate and present Mr. Drayton’s alibi evidence that he was at a restaurant when the robbery occurred. On September 11, 2018, the Sullivan County Court held that it was barred from even hearing Mr. Drayton’s motion because Mr. Drayton should have raised the ineffective assistance of counsel argument in appealing his conviction. The Third Department reversed that decision on December 24, 2020, holding that Mr. Drayton’s ineffective assistance of counsel argument

O'Melveny

involves matters outside of the appellate record, such as security camera footage, and thus was appropriate for the lower court to resolve on a motion to vacate. See People v. Drayton, 138 N.Y.S. 3d 275, 276 (3d Dep’t 2020) (enclosed). The Sullivan County Court has scheduled a hearing on Mr. Drayton’s motion to vacate for March 16, 2021. The Court should wait to set a trial date until after the criminal proceeding is resolved. Mr. Drayton respectfully submits that the Court should adjourn and stay the trial until after his criminal proceeding to (1) protect Mr. Drayton’s Fifth Amendment rights and (11) allow O’Melveny (which was only recently retained) time to review the record and confer with Defendants on potentially seeking to reopen discovery. Fifth Amendment Rights. Proceeding to trial in this action while Mr. Drayton’s reinstated criminal proceeding is pending would be inconsistent with Mr. Drayton’s Fifth Amendment rights. Mr. Drayton cannot effectively put on his case here without testifying. Proceeding to trial while the criminal proceeding is pending would therefore force Mr. Drayton to choose between exercising his Fifth Amendment rights and pursuing his claims here. Courts in this district have recognized that a plaintiff pursuing Section 1983 claims related to an arrest should not have to make such a choice, and have for that reason deferred trial of the civil action until after the criminal proceeding concludes. See, e.g., Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. 268, 270 (S.D.N.Y. 1995) (recommending stay of Section 1983 action pending resolution of state court proceeding where “proceeding with civil discovery could prejudice . . . plaintiff. . . because of potential Fifth Amendment issues’). Evaluating Discovery. There was only limited discovery while Mr. Drayton was proceeding pro se before discovery closed on July 29, 2019. The parties exchanged interrogatories and produced some documents, and Defendants took Mr. Drayton’s deposition, but Mr. Drayton did not depose any of the Defendants, or any witnesses. Now that Mr. Drayton is represented by counsel, he should be permitted the opportunity to move for any additional discovery necessary to complete the record and effectively prepare the case for trial. See Rivas v. Suffolk Cty., 2008 WL 45406, at *2 (2d Cir. Jan. 3, 2008) (ordering district court to appoint pro bono counsel where discovery had already been closed and to give counsel “the opportunity to file... any and all motions... to reopen discovery” among other things). We are reviewing the record and determining what additional discovery to seek. We will then confer with Defendants to try to reach agreement on additional discovery so that this issue can be addressed by the Court at the status conference. Adjourning Mr. Drayton’s trial until the conclusion of his criminal proceeding would therefore be an efficient use of judicial resources and ensure that Mr. Drayton has a fair opportunity to present his case.

* * * We appreciate the Court’s attention to these requests.

Respectfully, The Court will adjourn the March 23, 2021 status /s/ Jonathan R b conference and instead hold a status conference on s/vonathan nosenderg April 8, 2021 at 10:30am. At this time, the Court will not adjourn Defendant's trial date of June 10, 2021. Jonathan Rosenberg White Plains, NY so ORRERED March 8, 2021 Of Sy Enclosure ~~ KENNETH M. KARAS U.S.DJ.

189 A.D.30 1888, 2020 N.Y. slip Op. 07951 Aarons, J. Appeals (1) from a judgment of the Supreme — | New York Court (Schick, J.), rendered December 21, 2016 in Sullivan “te Official Reports County, upon a verdict convicting defendant of the crimes --- N.Y.S.3d ----, 189 A.D.3d 1888, 2020 WL 7647892 of robbery in the second degree (two counts), conspiracy in (N.Y.A.D. 3 Dept.), 2020 N.Y. Slip Op. 07951 the fourth degree (two counts), resisting arrest and criminal possession of stolen property in the fifth degree, and (2) by *%1 The People of the State permission, from an order of the County Court of Sullivan of New York, Respondent, County (LaBuda, J.), entered September 11, 2018, which v denied defendant's motion pursuant to = CPL 440.10 to Frank Drayton, Appellant. vacate the judgment of conviction, without a hearing. Supreme Court, Appellate Division, In 2016, a confidential informant (hereinafter CI) was Third Department, New York involved in a controlled buy for the purchase of drugs 109079, 110646 and a gun. At the controlled buy, defendant and others December 24, 2020 threatened the CI if he did not give them money. Defendant was later apprehended and charged with multiple crimes CITE TITLE AS: People v Drayton in connection with this incident. Prior to trial, defendant moved to suppress certain evidence. Following a hearing, HEADNOTES County Court (LaBuda, J.) denied the motion. A Sandoval hearing was also held, after which the court found that the Crimes People could cross-examine defendant, should he testify, Arrest about his prior convictions. After a jury trial, defendant was Probable Cause—Warrantless Arrest Valid convicted of robbery in the second degree (two counts), conspiracy in the fourth degree (two counts), resisting arrest Crimes and criminal possession of stolen property in the fifth degree. Appeal Defendant thereafter moved to set aside the verdict under CPL Preservation of Issue for Review—Proof of Other Crimes 330.30. Supreme Court (Schick, J.) denied the motion and sentenced defendant, as a second felony offender, to a term of imprisonment, to be followed by a period of postrelease Crimes . supervision. Defendant then moved to vacate the judgment Sentence Second Felony Offender—Resentencing Required Due to — of conviction under "CPL 440.10. County Court denied *1889 Reversal of Prior Conviction the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order . denying his CPL article 440 motion. Crimes Vacatur of Judgment of Conviction . . Defendant asserts that County Court erred in denying his Motion Properly Denied for Issues Reviewable on Direct . . Appeal motion to suppress—specifically, that probable cause was lacking to arrest him.! “A police officer may conduct a warrantless search of a defendant's person and possessions Crimes incident to a lawful arrest” (People v Ruppert, 42 AD3d 817, Vacatur of Judgment of Conviction 818 [2007], vy *1890 denied 9 NY3d 964 [2007] [citations Motion Erroneously Denied for Ineffective Assistance of omitted]). “In the absence of a warrant, a lawful arrest is one Counsel Issue that is supported by probable cause” (People v Cruz, 131 AD3d 724, 726 [2015] [citations omitted], /v denied 26 NY3d Sandra M. Colatosti, Albany, for appellant. 1087 [2015]; see People v Turner, 178 AD3d 70, 75 [2019]). Meagan K. Galligan, Acting District Attorney, Monticello “Probable cause exists when an officer has knowledge of facts (Kristin L. Hackett of counsel), for respondent. and circumstances sufficient to support a reasonable belief

189 A.D.3d 1888, 2020 N.Y. slip Op. 07951 that an offense has been or is being committed” = People Hawkins, 11 NY3d 484, 494 [2008]; Peop le v Sansone, 163 y Maldonado, 86 NY2d 631, 635 [1995] [internal quotation AD3d 1271, 1272 [2018]; People v Stacconi, 151 AD3d 1395, marks and citations omitted]). 1397 (2017).

At the suppression hearing, a detective sergeant with the As to defendant's adjudication as a second felony offender, Sullivan County Sheriff's office testified that he observed the People filed a second felony offender statement relying the CI meet with two individuals and then engage in a on defendant's prior conviction, upon a guilty plea, of two hand-to-hand exchange with one of them. The sergeant counts of criminal sale of a controlled substance in the third further testified that, very shortly **2 after the exchange degree. Defendant contends that his guilty plea in connection took place, he observed a van approach and drop off two with these crimes was not made knowingly, intelligently and individuals—one of whom was wearing a black hoodie and voluntarily. In view of our determination m Peop le v Dray fon was subsequently determined to be defendant. The group (189 AD3d 1892 [2020] [decided herewith]) invaliding the proceeded out of sight and then the sergeant heard a gunshot. guilty plea and reversing the judgment of conviction in that Following the gunshot, defendant and another individual got case, the matter must be remitted for resentencing. in the van, which drove away. The CI eventually told the sergeant that he had been robbed by the individuals and Regarding the = CPL 440.10 motion, County Court denied it that one of them was wearing a black jacket—information on the sole basis that this appeal was pending at the time that that was relayed to other law enforcement officials. Based defendant moved for **3 postjudgment relief and that there upon testimony at the suppression hearing, the van cut offits | were sufficient facts appearing on the record of the appeal lights, ran through stop signs, did not use turn signals and to resolve the issues raised in his motion. Indeed, = CPL the cing : ‘ld not ston, even though market lox 440.10 (2) (b)—the provision relied upon by the court— enforcement vehicle was following the van with its lights ot conviction where“ she tadement i he eee han □□ ee Pee ae m motion, appealable or pending on appeal, and sufficient facts he Ntamueattg police Depeatmont chased defendant, which appear on the record with respect to the ground or issue raised ended after defendant tripped and fell while running. The net tne ene ean nace ee □□ detective searched defendant and found on him some of the Ppea . . " " money used in the controlled buy. respect to the denial ofhis = CPL 440.10 motion—the police officers conducted an impermissible showup and ineffective In view of the evidence that the CI was threatened by assistance of counsel. Because sufficient facts appear in the defendant, among others, the description of what defendant — record of the direct appeal to resolve the issue of whether was wearing, the fact that defendant was seen absconding there was an impermissible showup, the court did not err in in a van, which was subsequently observed to be driving denying the motion under CPL. 440.10 (2) (b) to that extent erratically, and defendant's flight from the van when it (see People v Grays, 162 AD3d 1224, 1228 [2018], Iv denied stopped, County Court did not err in finding that probable 32 NY3d 1111 [2018]; People v Bruno, 97 AD3d 986, 987 cause existed for the warrantless arrest of defendant. [2012], Iv denied 20 NY3d 931 [2012]). Accordingly, the suppression motion was correctly denied (see People v Ormsby, 30 AD3d 757, 758 [2006], lv denied — We reach a different conclusion, however, with respect to 7 NY3d 816 [2006]; pa People v Virola, 300 AD2d 822, 823 defendant's ineffective assistance of counsel contention. This contention centers on the premise that his counsel was [2002], denied S899 NY2d 633 [2003]; People v Oliver, ineffective for failing to investigate a potential alibi defense. IST AD2d 815, 816-817 [1993], People v Brown, 151 AD2d Defendant filed an alibi notice claiming that he had been at a 199, 204 [1989], tv denied 75 NY 2d 768 [1989]). restaurant prior to and at the time of the incident at issue. In *1891 Defendant argues that County Court's Sandoval his = CPL 440.10 motion, defendant averred in a supporting ruling was erroneous. Defendant, however, failed to object affidavit that his counsel failed to interview witnesses at the to the court's ruling at the close of the Sandoval hearing. In *1892 restaurant and failed to secure surveillance video at view of this, his argument is unpreserved (see Vu People v the restaurant, as well as video depicting the crime scene.

189 A.D.3d 1888, 2020 N.Y. slip Op. 07951 This issue involves, to an extent, the consideration of matters generally = CPL 470.15 [1]; People v Nicholson, 26 NY3d outside the record and, therefore, is proper for a = CPL 813, 826 [2016]; ” People v LaFontaine, 92 NY2d 470, 440.10 motion to vacate a judgment of conviction (see People 474 [1998}). 2 Defendant's remaining contentions have been v Taylor, 156 AD3d 86, 91-92 [2017], lv denied 30 NY3d considered and are unavailing. 1120 [2018]; People v Griffin, 134 AD3d 1228, 1230 [2015], ly denied 27 NY3d 1132 [2016]; People v McD onald, 255 Lynch, J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., AD2d 688, 688 [1998]). As such, the court mistakenly concur. Ordered that the judgment is modified, **4 on the concluded that | CPL 440.10 (2) (b) prohibited it from law, by vacating the sentence imposed; matter remitted to ‘nine defendant’ Lu CPL 440.10 motion to th tent the Supreme Court for resentencing; and, as so modified, derendane’s : : mo fon fo tie exten affirmed. Ordered that the order is modified, on the law, that defendant advanced an ineffective assistance of counsel claim. by reversing so much thereof as denied defendant's CPL 440.10 motion predicated upon a claim of ineffective Finally, although the parties have briefed the merits of the assistance of counsel; matter remitted to the County Court of ineffective assistance of counsel issue, County Court did not Sullivan County for further proceedings not inconsistent with address them. Rather, as noted, the court solely concluded that this Court's decision; and, as so modified, affirmed. it was barred from doing so under = CPL 440.10 (2) (b). In view of this, the matter must be remitted for a determination FOOTNOTES of the merits of the ineffective assistance of counsel claim

(see | People v Maxwell, 89 AD3d 1108, 1110 [2011]; see Copr. (C) 2021, Secretary of State, State of New York

Footnotes

1 Defendant asserted this ground as a basis when seeking suppression of the discovered tangible evidence. As such, contrary to the People's assertion, defendant's argument is preserved. 2 We express no opinion on the viability of the ineffective assistance of counsel claim, whether defendant's motion, to the extent premised on this claim, should be summarily granted or denied or whether defendant is entitled to a hearing on it.

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