Opinion
No. 97 Cr. 267-009 (HB).
March 17, 2005
AMENDED OPINION ORDER
On January 5, 7, and 14, 2005, an evidentiary hearing ("Hearing") was held on the Probation Department's Specification ("Specification") that defendant Tony Mann ("Mann") had violated the terms of his supervised release. The Specification charged Mann with (1) Assault in the Third Degree, pursuant to N.Y. Penal Law § 120.00 ("Specification No. 1"), (2) Assault in the Second Degree, pursuant to N.Y. Penal Law § 120.05 (Specification No. 2"), (3) failure to truthfully answer inquiries by a probation officer ("Specification No. 4"), and, (4) possession of a firearm ("Specification No. 6"). The matter was sub judice following the receipt of post-Hearing memorandum on January 24, 2005, an Opinion Order followed on February 10, 2005, but still another and final hearing was held on March 15, 2005 after receipt of information and recommendations from the Probation Officer, and this amended Order followed. Having reviewed all the submissions, and based on the record created at the evidentiary hearing, the Court concludes that the Government has carried its burden with respect to one specification, thus, establishing that the defendant violated the terms of his supervised release.
During the January 4, 2005 Hearing, the Government decided to withdraw Specifications No. 3 and 5, and narrowed Specification No. 4. (Goldstein Tr. 4:13 — 19).
I. FINDINGS OF FACT
With respect to the underlying offense, Mann was sentenced on January 12, 2000 to 70 months imprisonment, three years supervised release and $100 special assessment for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, a "Class A" felony. Mann was released on October 17, 2003. Beginning in March 2004, Mann's probation officer, Chiquita Mitchell ("Mitchell"), supervised Mann and conducted home and employment contacts and wrote reports. (Mitchell Tr. 5:8 — 22)
The focus of the Hearing was four separate incidents that occurred after Mann's release. First, Specification No. 1 involved a November 5, 2003 encounter between Urselina King ("King") and Mann at King's home. According to King, the mother of Mann's child and girlfriend, King and Mann were involved in a physical altercation at King's home. (Specification No. 1). At the hearing, the central issue was whether King was the instigator of the altercation and the extent to which Mann's actions were justified. According to King, Mann was in her home and the two were "physical fighting one another" when "it just got out of hand and he punched me in my face." (King Tr. 89:18 — 19). King acknowledged that while she was injured in the altercation, that she instigated the fight and was, at the very least, partially responsible. (King Tr. 89).
Second, Specification No. 2 involved a January 11, 2004 encounter between King and Mann in a car in front of Mann's mother's house. Again, the issue was not the fact that an altercation took place between King and Mann but, rather, Mann's role. According to King, she had driven to Mann's home to inquire into the nature of Mann's relationship with another woman, "Tiffany." King was seated in the driver's seat and Mann was seated in the passenger seat. (King Tr. 112:4 — 17). Mann and King argued about the relationship and the verbal confrontation evolved into a physical altercation. During the altercation, King reached for the knife on the car's console, which King had brought with her to allegedly cut an orange, and with which she had intended to threaten Mann. (King Tr. 113:1 — 24). According to King, as she reached for the knife. "Mann beat me to it," grabbed the knife in his right hand and put it to King. (King. Tr. 113:24 — 114:7). As a result of the physical confrontation, King was cut and required medical attention.
Immediately following the incident, King proceeded to the hospital and told the police that Mann cut her:
Q: Do you recall discussing with [the Police] how you got {sic} cut?
A: Yes.
Q: Didn't you tell the police officers that you were stabbed by your boyfriend?
A: Yes.
Q: Isn't it in fact the case that you were stabbed by Tony Mann?
A: We was {sic} tussling for the knife. . . .
(King Tr. 91:24 — 93:25). However, on January 19, 2004, King recanted her story and informed New York City Police Detective Drew:
That I went to Tony's house because I found out about a girl named Tiffany, which I knew about before, that he was still seeing her, and I went to ask him why was he doing what he was doing. And we started arguing. And it was engine cleaner fluid, and we was fighting and tussling, and it was sprayed on us. And I had the knife and we was tussling for it, and I cut myself.
(King Tr. 100:11 — 17). King testified that Mann only went for the knife after King did so first.
Third, Specification No. 4 concerned an August 9, 2004 conversation between Mitchell and Mann regarding the nature of the encounters between Mann and King. According to the testimony of Mann's probation officer, Mitchell, Mann called Mitchell on August 9, 2004 and told her, he and "his girlfriend had an argument on the 8th and that she stabbed him. [Mitchell] asked him was he arrested; he said no. I asked him if he physically assaulted her; he said no. I asked him did he go to the emergency room; he said yes. I told him to bring the emergency room report along to my office that day at 4:00, 4:30." (Tr. Mitchell 11:23 — 12:3). The testimony establishes that Mann reported the domestic incident on August 8, 2004 to Mitchell.
Fourth, Specification No. 6, the final specification pursued by the Government, concerned King's possession of a 9mm handgun on August 8, 2004. King told Mann to vacate her apartment and remove all of his belongings. After Mann left the apartment with two of his three storage bins, King testified that she looked inside the one storage bin left behind and found a black gun with a wooden handle. (King Tr. 155:1 — 4; 155:20 — 22). The same day she found the gun, King testified that Mann came home late and she was in bed. (King. Tr. 158:2 — 13). According to King's description of the incident:
[Mann] leaned down at the bed, and when he was coming in, he said, I looked to have my buddy in the house. And I just got in the bed. When I was laying the bed, he said, I could kill you and get away with it. I just heard a click, and then he laughed or whatever. And when I got up to go lock the door, I stepped on [the bullet].
(King Tr. 158:18 — 23)
II. STANDARD FOR REVOCATION OF A TERM OF SUPERVISED RELEASE
Fed.R.Crim.Pr. 32.1 governs probation revocation proceedings, and a defendant is entitled to written notice of the violations and a hearing. See United States. v. Taintor, No. 01 Cr. 219, 2003 WL 144811, at *6 (N.D.N.Y. Jan. 17, 2003). Pursuant to 18 U.S.C. § 3583(e)(3), "a Court may revoke a term of supervised release and impose a prison sentence if the Court finds, by a preponderance of the evidence, that the defendant violated a condition of supervised release." United States v. Marino, 204 F. Supp. 2d 476, 490 (E.D.N.Y. 2002); see also United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994) ("the government needs to prove the alleged supervised-release violation only by a preponderance of the evidence, not beyond a reasonable doubt").
If the court concludes that Mann violated his probation, the court must "consider" the applicable sentencing factors recited in 18 U.S.C. § 3553(a), and either "(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or (2) revoke the sentence of probation and resentence the defendant under subchapter A [ 18 U.S.C. §§ 3551 et. seq.]." 18 U.S.C. § 3565(a)(1-2) (alteration added); see also United States v. Fleming, No. 05 Cr. 1817, 2005 WL 237200 (S.D.N.Y. Feb. 2, 2005).
III. CONCLUSIONS OF LAW
A. Specification No. 1
Specification No. 1 charges Mann with violation of New York Penal Law § 120.00(1), Assault in the Third Degree. Assault in the Third Degree requires the Government to demonstrate that Mann caused physical injury to another person, recklessly causes physical injury to another person, or "with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." N.Y. Penal Law § 120.00.
Under New York law, "[a] person may . . . use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself . . ." N.Y. Penal Law § 35.15(1); People v. Steele, 311 N.Y.S. 2d 889 (1970); see also People v. Daniels, 670 N.Y.S. 2d 566 (2d Dep't 1998); see People v. Freer, 86 Misc. 2d 280 (N.Y. Dist. Ct. 1976)
Here, viewed in the light of all the circumstances, the evidence, surrounding this lovers' quarrel between Mann and King, and the subsequent tussle, I find that the Government has failed to establish that the actions Mann took towards King were unjustified. As such, the Government has failed to demonstrate, by a preponderance of the evidence, that Mann violated Specification No. 1.
B. Specification No. 2
Specification No. 2 charges Mann with violation of New York Penal Law § 120.05, Assault in the Second Degree. Under New York law, "[a] person is guilty of assault in the second degree when: [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or a third person" or "proof that defendant intended to and did cause physical injury by means of a deadly weapon or dangerous instrument." N.Y. Penal Law § 120.05(1); see also Crisonino v. N.Y.C. Housing Auth., 985 F. Supp. 385, 393 (S.D.N.Y. 1997) (Baer, J.).
Even more so than in Specification No. 1, Mann was justified here. While King and Mann sat in a car and quarreled, King went for a knife on the console, which she says she brought to peel an orange. One could speculate that there was possibly another reason, i.e., to hurt Mann. Mann got to the knife first. In the struggle over the knife, it appears as if King was injured. It was unclear, especially in light of King's contradictory testimony, whether King or Mann actually caused King's knife wounds, but King signed a written statement in which she admitted that she had been the one to attack Mann with a knife. (Def. Ex. A). As such, the Government has failed to demonstrate, by a preponderance of the evidence, that Mann violated New York Penal Law § 120.05. Put another way, the government failed to prove Specification No. 2 by a preponderance of the evidence.
C. Specification No. 4
Specification No. 4, which was modified at the hearing (Goldstein Tr. 4), alleged that Mann failed to "truthfully answer inquiries of the probation officer in that he did not report his involvement in incidents of domestic abuse on August 9, 2004" (Specification No. 4), in contravention of 18 U.S.C. § 3553(a)(1). See United States v. Hawkins, 375 F.3d 750 (8th Cir. 2004). At the Hearing, the Government was unable to demonstrate that Mann failed to answer his probation officer. In particular, Mitchell testified that Mann telephoned on August 9, 2004 regarding the previous nights incident. During their conversation, Mann acknowledged that there was a domestic dispute and that the dispute had been violent. The testimony clearly establishes that Mann reported his involvement in the August 8 incident and answered the questions put forth by Mitchell. As such, the Government has failed to demonstrate by a preponderance of the evidence that Mann "failed to truthfully answer inquiries of the probation officer, in that he did not report his involvement in incidents of domestic abuse on August 8, 2004." (Specification No. 4)
D. Specification No. 6
Specification No. 6 alleged that on August 8, 2004, Mann possessed a 9 mm handgun. To be in violation of Specification No. 6, Mann must have knowingly possessed the firearm; that is, purposely and voluntarily, and not by accident or mistake. See United States v. Moore, 208 F.3d 411 (2d Cir. 2000).
During the Hearing, King testified that Mann possessed a firearm in violation of the condition of supervised release. (King Tr. 157:24 — 159:5). There is no doubt that Mann possessed a gun — it was hidden in one of his storage bins. The issue, however, is his knowledge of the possession.
King testified that shortly before the August 8, 2004 altercation, she found Mann's gun and came across a bullet in her bedroom. (King Tr. 158). As already noted, later on August 8, 2004, Mann came into King's bedroom and, according to King:
[Mann] leaned down at the bed, and . . . said, I could kill you and get away with it. I just heard a click, and then he laughed or whatever. And when I got up to go lock the door, I stepped on [the bullet].
(King Tr. 158:18 — 23). Later, as the evening turned to morning, King confronted Mann about the gun. Mann told King that she should not be afraid, he "wasn't going to do anything to [her]" and "[i]t was just when he released the gun — I mean, if you pull back something on the gun, the bullet will jump out." (King Tr. 160:24 — 161:2)
Following the incident in King's bedroom, King testified that she placed the firearm in a shoebox and took it with her to the probation office, but was intercepted by Mann. (King Tr. 161:24 — 162:5). King did not give the gun to the probation officer and Mann told her that he would deny possession of the gun if she did and, in fact, blame her. (King Tr. 162:13 — 162:21). However, thereafter, Mann repeatedly inquired as to the location of the firearm. Accordingly, I find that on this Specification, the government met its burden of proof on all the requisite elements and that a Grade B violation was established by a preponderance of the evidence.
IV. SENTENCING
Pursuant to 18 U.S.C. § 3583(g)(2), the Court is required to revoke the supervised release of a Defendant when the Court determines that "the defendant possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm." Since the Court has determined that Mann was in possession of a firearm on August 8, 2004, the only issue that remains is the sentence.
See also U.S.S.G. § 7B1.4, comment. (n. 5) ("Upon a finding that a defendant violated a condition of probation or supervised release by being in possession of a . . . firearm . . . the court is required to revoke probation or supervised release and impose a sentence that includes a term of imprisonment").
Pursuant to the Second Circuit's recent decision in United States v. Fleming, No. 05 Cr. 1817, 2005 WL 237200 (S.D.N.Y. Feb. 2, 2005) and United States v. Crosby, No. 03 Cr. 1675, 2005 WL 240916 (2nd Cir. Feb. 02, 2005), the sentencing judge must "consider" the Sentencing Guidelines. The term "consider" requires the sentencing judge to be "aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable," and be sure that "nothing in the record indicates misunderstanding about such materials or misperception about their relevance." Fleming, No. 05 Cr. 1817, 2005 WL 237200, at *3. I have complied with those strictures as spelled out by the Circuit.
According to the Sentencing Guidelines, the recommended sentence for a Grade B violation for Mann, whose criminal record places him in Criminal History Category I of the Guidelines with respect to the underlying offense for which supervised release was imposed, is four to ten months. U.S.S.G. §§ 7B1.4.
V. CONCLUSION
The Court finds that the government proved, by a preponderance of the evidence, that Defendant Mann violated the conditions of his supervised release as articulated in Specification No. 6 and, therefore, the Court will revoke the supervised release, impose total sentence of six additional months imprisonment from March 15, 2005, followed by and two years of supervised release with all the following special conditions as well as the mandatory and standard conditions: (1) Mann is prohibited from having contact with King or his daughter unless authorized by the Court, the Probation Department, or the Family Court; (2) Mann, directly following his incarceration, shall serve 180 days in a community confinement center (CCC) approved by the Probation Department and, while in the CCC, Mann shall adhere to all rules and conditions established by the CCC with the sustenance fees waived; (3) Mann shall participate in a mental health treatment program, to include anger management counseling, as approved by the Probation Department, and shall (i) adhere to any psycho-tropic medication regime that is prescribed by a licensed mental health professional, (ii) pay the costs of such treatment and/or medication to the degree he is reasonably able, (iii) cooperate in securing any available third party payment, such as insurance or Medicare, and (iv) disclose all financial information and documents to the Probation Department to assess his ability to pay; (4) Mann shall participate in an outpatient alcohol/drug treatment or detoxification program approved by the Probation Department, and shall (i) pay the costs of such treatment/detoxification to the degree he is reasonably able, (ii) cooperate in securing any available third party payment, such as insurance or Medicare, (iii) disclose all financial information and documents to the Probation Department to assess his ability to pay, (iv) not consume any alcohol or other intoxicants during and after treatment/detoxification, unless granted a prescription by a licensed physician and proof of same is provided to the Probation Department and (v) submit to drug testing during and after treatment to ensure absence from drugs; (5) Mann shall submit his person, residence, place of business, vehicle or any other premises under his control to a search on the basis that the Probation Officer has a reasonable belief that contraband or evidence of a violation of the conditions of release may be found; the search must also be conducted in a reasonable manner and at a reasonable time; failure to submit to a search may be grounds for revocation; Mann shall inform any other residents that the premises may be subject to search pursuant to this condition; (6) Mann shall not possess a firearm; and, (7) Mann will initiate his study towards obtaining his GED while incarcerated and will continue to do so after release and Probation will arrange an appointment for Mann to visit the Office of Vocational and Educational Services for Individual with Disabilities or Workforce One for a vocational assessment and training. A failure to obtain his GED within 1 year from his release from jail will constitute a violation of supervised release. (See Ltr. from United States Probation Officer to Judge Baer, dated Mar. 11, 2005).
Defense counsel sought a sentence of a year and a day to date back with the onset of incarceration. That application is denied
This constitutes the amended Opinion and Decision of the Court.