The “Dog Pound” case resurfaces

The waning days of summer are a quiet time for the criminal courts.  The appellate courts are busy with election appeals and getting ready for the next term.  Many trial judges and attorneys are on vacation.  Searching for news and cases of interest, I started going through recent trial court opinions on the nycourts.gov website.  Low and behold I found a new iteration of one of my favorite cases, People v. Ennis.  

The Defendant and his brother (Aaron Ennis) were drug dealers who ran a drug operation called the "Dog Pound."  The Defendant was prosecuted for his role in a shooting.  The issue for the Court of Appeals was whether the Defendant received effective assistance of counsel.  During the trial, Aaron Ennis’ attorney confided to Sheldon Ennis’ attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon’s attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon’s lawyer.  counsel’s lack of use of the information from Aaron’s attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron’s penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because even if the statement had been turned over, it could not have been admitted into evidence.The court noted, however, that the People's failure to disclose the proffer “cannot be condoned.”

The case has resurfaced again, this time in the context of a FOIL request that was denied by the District Attorney's Office.  Supreme Court denied the Defendant's Article 78 petition because it was both untimely and lacked substantive merit.

In any event, this case is an important lesson that, for defendants, litigation does not end after direct review in the Court of Appeals is over.  FOIL, CPL Article 440, and federal habeas corpus can cause a case to live on for years to follow.  FOIL, in particular, can be a useful vehicle for inmates to identify evidence to support a habeas claim in federal court.  (LC)  

 

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