# Opposition Brief — Iadarola v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1209

## Text

No. 95-1507 Supreme Court, U.S.
aaa, i)

APR 17 1996

IN THE

Supreme Court of the Units States”

OCTOBER TERM, 1995

>
BENITO IADAROLA, Aye
Petitioner,
—vs.—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

tl

VICTOR IADAROLA, a
Petitioner,

—-VS.—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK
SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

RESPONDENT?’S BRIEF IN OPPOSITION

CHARLES J. HYNES
District Attorney
Kings County

ROSEANN B. MACKECHNIE

VICTOR BARALL*

ANN BORDLEY

Assistant District Attorneys
of Counsel

210 Joralemon Street
Brooklyn, New York 1120!
(718) 250-2000

*Counsel of Record for Respondent
Dated: April 18, 1996

Siti ’ iS
sits ow mer ts elses T iepemagias dts dial labios eR IPI 6 AG ARS te Rn to?

1 EC fiat 2 oR IN ina Ainge Se

i
QUESTIONS PRESENTED

1. Whether this Court should grant certiorari to review the
petitioners’ claim that the state trial court violated their fed-
eral constitutional rights by failing to submit a certain defense
to the jury, even though that claim does not raise a substantial
federal question, that claim was not decided by the state
courts, that claim does not raise an important issue of con-
stitutional law, and that claim is utterly meritless, given the
facts of this case.

2. Whether this Court should grant certiorari to review the
petitioner’s claim that the trial court’s intent charge was con-
stitutionally inadequate, even though that claim does not raise
a substantial federal question, that claim was not decided by
the state courts, that claim does not raise an important issue
of constitutional law, and that claim is frivolous.

il
TABLE OF CONTENTS

PAGE

QUES TIONS Paine We ia onus scncccsesveceouscia i

ZABLE OF AkF TORE E an cakotakonabusd Ae: iv
OPINIONS BELOW. 6c a 2 ;
JURISDICTIONAL STAT EN fcc cwecccsscccccescces 2

CONSTITUTIONAL PROVISIONS INVOLVED ..... 2
STAT eee CP Re Gab bc ba bosch kis ca has 3

2S BHR 5. wet kdee cece eee 3

RO FUE 6 GR sik ss ccctncsnrrekdsivesass 3

Ue i oe 4

ED BR airs c= onc oncdanweud vi iecbexs 6

Tae LE Wt in cates nidikeasoesrs hens 7

The Verdict and Sentence.................... 7

The State AMMONE. . csc cscuctsncsceuashehebiesiss 8

REASONS WHY THE WRIT SHOULD BE DENIED

Point I—

THE PETITIONERS’ JUSTIFICATION CLAIM

IS BEYOND THE SCOPE OF THIS COURT’S
REVIEW, DOES NOT RAISE AN IMPORTANT
QUESTION OF CONSTITUTIONAL LAW, AND
LACES BERIES s0cccvsstaenecaduuiouneredientonss 10

lil
PAGE

Point IIl—

THE PETITIONERS’ CLAIM CONCERNING

THE TRIAL COURT’S INTENT CHARGE IS
BEYOND THE SCOPE OF THIS COURT’S

REVIEW, DOES NOT RAISE AN IMPORTANT
QUESTION OF CONSTITUTIONAL LAW, AND
Tk ac cC us cw iseisesacedesrse oss ss 00 16

Point WI—

THE APPELLATE DIVISION DID NOT

DISTURB THE RULE THAT AN ACCUSED IS
ENTITLED TO ANY RECOGNIZED DEFENSE
THAT IS SUPPORTED BY EVIDENCE.......... 19

CONCLUSION—

FOR THE REASONS STATED, THE PETITION
FOR A WRIT OF CERTIORARI SHOULD BE
RCNA Gas sev tien bic ecnshesdy oFiereds Vries ae

iv
TABLE OF AUTHORITIES
Cases: PAGE
Coleman v. Thompson, 501 U.S. 722 (1991) ...... 12, 14, 18
Cox v. State of Louisiana, 379 U.S. 559 (1965) ....... 12
Cupp v. Naughten, 414 U.S. 141 (1973)............... 17, 18
Dowling v. United States, 493 U.S. 342 (1990)........ 12

Epps v. Commissioner of Correctional Services,
13 F.3d 615 (2d Cir.), cert. denied, 114 S. Ct.

Ae EEE a pans ansdan ciincnsdsan bo kde icenneeen salt
Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)........ ee
Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 11
Henderson v. Kibbe, 431 U.S. 145 (1977) ............. 18
Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied,

SSS Us BOAO boa va deditwedicdeecs sokeeeimne 14
McLaughlin v. Florida, 379 U.S. 184 (1964).......... 11
Papachristou v. City of Jacksonville, 405 U.S. 156

CROPS iis Kinda cicbdn decane Oe eke eae eis 11-12
Patterson v. New York, 432 U.S. 197 (1977)........... 11
People v. Cona, 49 N.Y.2d 26, 424 N.Y.S.2d 146, 399

OUT BRT Cre we das casos helo RES Cis sae 14
People v. Dozier, 52 N.Y.2d 781, 436 N.Y.S.2d 620,

REF DET BOO CUS 666i ooo ards nc os vandsicess 13,17
People v. Farnsworth, 65 N.Y.2d 734, 492 N.Y.S.2d

EZ, SEL Pee Se CRS ic kako ib nkacawasieceniine 20
People v. Benito ladarola, 634 N.Y.S.2d 738 (2d

EPO A SW ondseiws eas bauucis cokes eon eeun sees 10, 13, 19

Vv
PAGE
People v. Victor ladarola, 634 N.Y.S.2d 738 (2d

SPU 6 OEE 55 cease adckdacnaswaccnesouseseals bona ae 17
People v. Qualls, 55 N.Y.2d 733, 447 N.Y.S.2d 149,

Ph Dee WE LS EE hs has ees Ca Ss na ean cans eRe
People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9

(2d Dep’t 1989)....... phhaginias teavueaeukeenbes 13
People v. Voliton, 83 N.Y.2d 192, 608 N.Y.S.2d 945,

GOP Pesce ee CES enh ici kks vo rede ccdadares 13,17
Powell v. Texas, 392 U.S. 514 (1968).................. 11
Robinson v. California, 370 U.S. 660 (1962).......... 11
Street v. New York, 394 U.S. 576 (1969)........... 12, 13,17
Texas v. Johnson, 491 U.S. 397 (1989) ................ 11
United States ex rel. Smith v. Montanye, 505 F.2d

1355 (2d Cir. 1974), cert. denied, 423 U.S. 856

de) RS ORS Bre gtine RI Meee t> be is oe 16-17
United States v. Barker, 546 F.2d 940 (D.C. Cir.

ROPE cr hicescas Aree wet su dose leeusenaciuiakon: 17
United States Statutes:
ee Sea RE akan oc och bank ease cuore naWwawkes 17

New York State Statutes:
N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1994) . 13

N.Y. Crim. Proc. Law § 470.15(6)(a) (McKinney
in .} NE ESR S SPCR AAI atest ch aN ae LPN ar a RCE Oe 14

N.Y. Penal Law § 35:05(1) (McKinney 1987) ......... 10, 14
N.Y. Penal Law § 460.20(1) (McKinney 1989) ........ 19

vi
PAGE
Other Authorities:
American Law Institute, Model Penal Code and
Commentaries, Part I, § 3.03 (1985).............. 12, 14

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995
No. 95-1507

ee

BENITO IADAROLA,

Petitioner,
—vs.—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

| >_>

VICTOR IADAROLA,

Petitioner,
—vs.—

THE PEOPLE OF THE STATE OF NEW YORK,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK
SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

—

RESPONDENT’S BRIEF IN OPPOSITION

The State of New York requests that this Court deny the
petition for a writ of certiorari brought by the petitioners,
Victor and Benito Iadarola. The petitioners seek review of
orders of the New York Supreme Court, Appellate Division,
Second Department, unanimously affirming their convictions

2

for the crime of Enterprise Corruption (N.Y. Penal Law
§ 460.20 [McKinney 1989}).

OPINIONS BELOW

The opinions of the New York Supreme Court, Appellate
Division, Second Department, in People v. Benito ladarola
and People v. Victor ladarola are each reported at 634
N.Y.S.2d 738 (2d Dep’t 1995) and are reprinted in the peti-
tioners’ appendix at 5a and 7a.

JURISDICTIONAL STATEMENT

The New York Court of Appeals entered its orders, denying
the petitioners’ application for permission to appeal, on
December 20, 1995. The petitioners filed their petition for
certiorari in this Court on March 19, 1996, which is within
the statutory time period. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Fifth Amendment

[NJor [shall any person] be deprived of life, liberty, or
property without due process of law... .

United States Constitution, Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses
inhisfavor. ...

United States Constitution, Fourteenth Amendment

No State shall. . . deprive any person of life, liberty, or
property, without due process of law... .

STATEMENT OF THE CASE

The Trial
The People’s Case

On November 1, 1988, Sergeant Ronald Rose and a team of
detectives from the Brooklyn North Public Morals District
commenced an investigation into an illegal gambling opera-
tion at 320 Lafayette Street in Brooklyn, New York. This
investigation eventually led to the discovery of a large, well-
organized, and vastly profitable illegal gambling business
operating in Brooklyn.

The business was run by petitioner Victor Iadarola and
codefendant Hali Polanco. Victor Iadarola’s brother, peti-
tioner Benito Iadarola, was Victor’s chief assistant. The
ladarolas participated in or directed illegal gambling activi-
ties at more than fifty locations throughout Brooklyn. The
enterprise controlled its gambling spots in one of three ways:
the enterprise would be fully responsible for operating the
spot, providing personnel and equipment for the operation,
including betting slips, telephones, facsimile machines, and
tape recorders; or, the enterprise would pay rent for a store-
front location such as a bodega, reaping a percentage of the
spot’s earnings from the store owner; or, the enterprise would
require a storefront owner who wished to conduct policy gam-
bling within his store to pay “protection money,” a fee
extorted from the store owner to ensure that the store would
not be jeopardized by acts of violence perpetrated by orga-
nized crime.

So profitable was the enterprise that the petitioners would
forego control of any gambling spot that did not realize
weekly receipts of at least $5,000 to $7,000. It is estimated,
conservatively, that during a two and one-half year period
from February 1, 1989 to July 12, 1991, the enterprise real-
ized total receipts in excess of eighteen million dollars.

4

In telephone conversations that were electronically
recorded, petitioner Victor Iadarola acknowledged his crim-
inal activity and expressed his fear that he would be sent to
jail for his crimes. For example, in a telephone conversation
with his daughter Annemarie ladarola on October 13, 1989,
Victor complained that the Federal Bureau of Investigation
(hereinafter “F.B.I.”) was following him. When Annemarie
asked why, Victor responded, “Annemarie, I’m not selling
bibles, am I” (Call number 1803). During a telephone con-
versation with his wife Rose on November 3, 1989, Victor
said, “I got the F.B.I. on me all fucking day,” and “I’m going
to jail” (Call number 4354). During a telephone conversation
with Special Agent Richard Leahy of the F.B.I. on June 4,
1990, Victor stated, “Yeah, well, I'm a hood myself... .
let’s stop kidding ourselves. I made money too, understand?”
(Call number 727).

The Defense Case

The petitioners called Special Agent RICHARD LEAHY
and Special Agent GARY DRAUS of the F.B.I. to testify in
their behalf. The agents stated that, in 1981, the petitioners
began providing information to the F.B.I. as confidential
informants (Draus: V.5023-24; Leahy: VI.5331, 5364, 5430-
31, 5435-36, 5465).' Two years later, in 1983, the F.B.I. dis-
continued the petitioners as confidential informants (Draus:
V.5205, VI.5307-09; Leahy: VI.5490-91, 5533-34).* The
F.B.I. discontinued Victor Iadarola at his request and dis-
continued Benito ladarola due to his lack of productivity
(Draus: V.5205, VI.5307-09; Leahy: VI.5533-34, 5593-94).

, The trial testimony is contained in volumes numbered I to VII.

References to pages of the trial transcript appear in parentheses, preceded
by the respective volume number of the transcript and name of the wit-
ness whose testimony is being cited.

. Contrary to the assertion in the petitioners’ brief, the petition-

ers did not “remain{[ ] confidential informants over a period of ten years”
(Petitioners’ Brief at 4).

Petitioner Victor Iadarola was reactivated as a confidential
informant in 1986 and Benito ladarola was reactivated as a
confidential informant in 1988 (Draus: VI.5323; Leahy:
V1.5374-75, 5492, 5535).

Over the years, in accordance with the United States Attor-
ney General’s guidelines for the conduct of informants, agents
of the F.B.I. repeatedly advised the petitioners that they were
not agents or employees of the F.B.I., that they were not to
participate in any crimes, and if they did so, they were subject
to criminal prosecution (Draus: V.5173-75, 5189-92, VI.5286-
89; Leahy: VI.5471-76, 5478-79, 5598-99).

Indeed, while the petitioners were confidential informants
for the F.B.I., they were prosecuted by the State. In May of
1981, the petitioners were indicted by the Kings County Dis-
trict Attorney’s Office for possession of gambling records
(Leahy: V1.5336-37, 5365, 5367, 5464, 5480). Special Agent
Leahy told the District Attorney’s Office that the ladarolas
were providing information to the F.B.I. and he asked for
leniency for them on the gambling charges (Leahy: V1.5336-
37, 5368, 5370, 5470, 5480-84). The District Attorney’s
Office recommended that each of the petitioners be permitted
to plead guilty to a misdemeanor gambling charge in full sat-
isfaction of the indictment (Leahy: VI.5484-85).*

Petitioner Benito Iadarola testified in his own behalf. He
alleged that in February, 1981, Special Agent Leahy told him
and his brother to “stay in the gambling business”, and that in
1988, Special Agent Draus told him and his brother to “stay

> Contrary to the assertion in the petitioners’ brief, there is no evi-

dence that the F.B.I. ever “supervised petitioners on behalf of the District
Attorney” (Petitioners’ Brief at 4). Indeed, while Agent Draus was han-
dling the petitioners from 1988 to 1990, Agent Draus admitted that he
tried to prevent the District Attorney’s Office from learning that the
ladarolas were his informants (Draus: V.5061-62, 5065, 5105-07, 5111,
5119-20, 5152, 5199, 5202-03).

into the number game” (Iadarola: VI.5648-50).‘ However, he
conceded that he was not engaged in public service (ladarola
V1.5653). In addition, he admitted that he had been involved
in illegal gambling for some time before he became an infor-
mant for the F.B.I. (ladarola: VI. 5651, 5654).

The Rebuttal Case

In rebuttal, the People introduced two telephone conver-
sations which had been electronically recorded. On June 1,
1990, in a telephone conversation with a woman named
Laura, petitioner Victor Iadarola said,

A lot of lawyers and people are very ignorant, you know,
they come up with these sneaky laws that they could
come into your house, get a court order, search your
house if you’re doing gambling or anything like that, get
all the records and anything that you’ ve written on that’s
pertaining to gambling or anything, and lock you up.

. . With all the coke and this and that going on, they
have to blame the, they have to put it on gambling some-
thing, you know? This is a new law, just read it in the
paper again. They made a big raid in Queens, this, that,

something. . . . Yeah, we, nobody knew. This law was
in effect, I would’ ve, ha, adios.-But that’s the way life
goes.

(VII.5700; Call number 634).

On June 4, 1990, after receiving two telephone calls from
Special Agent Leahy, Victor Iadarola told codefendant Hali
Polanco that he had received a call from “our friend” —appar-
ently referring to Leahy—and that “he’s reaching. Under-
stand?” Victor Iadarola added, “You know, I, every possible
way that I could beat these motherfuckers, I’m trying. You

-

Contrary to the assertion in the petitioners’ brief (Petitioners’
Brief at 6), Benito ladarola never testified that the F.B.I. “authorized”
him to continue illegal activities.

ee ee

know what I mean?” and “Look, it’s bargain time, you under-
stand?” (VII.5701; Call number 728).

The Court’s Charge

During the trial, petitioner Victor ladarola requested a spe-
cial charge on intent. He asked the court to instruct the jury
that “if a person engages in conduct which violates a criminal
Statute, with the reasonable belief that he or she is acting as
an authorized agent to assist in law enforcement activity, then
that person may not be convicted of violating the criminal
statute because the required criminal intent is lacking” (Vic-
tor ladarola’s Appellate Division brief, Exhibit A). The trial
court denied the request, concluding that the petitioners’
alleged belief did not in any way negate their intent to com-
mit the crimes charged (VI.5450, 5515-16).

However, the trial court did charge the jury on the justifi-
cation defense set forth in New York Penal Law § 35.05(1).
The court instructed the jury that conduct that would other-
wise constitute an offense was justifiable and not criminal
where such conduct is performed by a public servant in the
reasonable exercise of his official powers, duties, or functions
(Charge: VII.94). The trial court defined a public servant as
any person exercising the function of a public officer or
employee, even if the person was not “on the payroll of the
particular agency” (Charge: VII.96).

The Verdict and Sentence

On May 17, 1994, the jury convicted each petitioner of one
count of Enterprise Corruption (N.Y. Penal Law § 460.20
(McKinney 1989]). On July 6, 1995, the court sentenced peti-
tioner Victor ladarola to a prison term of three and one-third
to ten years, and sentenced petitioner Benito Iadarola to a
prison term of two to six years.

The State Appeal

The petitioners appealed to the New York Supreme Court,
Appellate Division, Second Department (hereinafter “Appel-
late Division”). In his brief, petitioner Victor Iadarola
claimed, inter alia, that the trial court had committed
reversible error because the court refused to give the intent
instruction that he had requested during trial. In his brief,
petitioner Benito Iadarola claimed, inter alia, that the trial
court had committed reversible error because the court did not
charge the jury that the petitioners should be acquitted if they
reasonably believed that they were authorized to engage in
criminal activity in their roles as government informants.

The Appellate Division affirmed the petitioners’ convic-
tions. With respect to the intent claim raised by petitioner
Victor Iadarola, the Appellate Division held:

Contrary to the defendant’s contention, the trial court
properly denied the defendant’s request to charge the
jury that he lacked the intent to commit the crimes with
which he was charged because, as a confidential infor-
mant, he had a reasonable belief that the Federal Bureau
of Investigation (hereinafter the F.B.I.) had given him
the authority to commit those crimes. There is no proof
that the defendant did not intend to participate in the
gambling enterprise with which he was charged. How-
ever, in view of the fact that the defendant presented evi-
dence suggesting that he was an F.B.I. informant, the
trial court properly instructed the jury that, if it found the
defendant guilty of the crime of enterprise corruption, it
should then consider whether the defendant’s actions
were justified pursuant to Penal Law § 35.05(1), which
provides in pertinent part that criminal conduct is justi-
fied and not criminal if it is performed by a public ser-
vant in the reasonable exercise of his duties.

People v. Victor ladarola, 634 N.Y.S.2d 738, 739 (2d Dep’t
1995).

9

With respect to the “reasonable belief” defense raised by
petitioner Benito ladarola, the Appellate Division held:

The defendant argues, similarly to his co-defendant
(see, People v. Victor ladarola, __. A.D.2d ___, 634
N.Y.S.2d 738 [decided herewith]), that the trial court
erred by failing to instruct the jury that he should be
acquitted if he reasonably believed that the Federal
Bureau of Investigation (hereinafter the F.B.I.) had
authorized him to engage in criminal activities in con-
nection with his role as a confidential informant. This
defense, as set forth in United States v. Abcasis, 45 F.3d
39, has no basis in New York law. The trial court prop-
erly and adequately instructed the jury that, if it found
the defendant guilty of the crimes with which he was
charged, it should then consider whether the defendant’s
actions were justified pursuant to Penal Law § 35.05(1),
which provides in pertinent part that criminal conduct is
justified and not criminal if it is performed by a public
servant in the reasonable exercise of his duties. In any
event, no reasonable view of the evidence that was
adduced at trial supports this defense.

People v. Benito ladarola, 634 N.Y.S.2d 738 (2d Dep’t 1995).

The petitioners applied, pursuant to New York Criminal
Procedure Law §§ 460.10(5) and 460.20, for permission to
appeal from the Appellate Division’s decisions to the New
York Court of Appeals. On December 20, 1995, Judge
Howard A. Levine of the New York Court of Appeals denied
their requests for permission to appeal.

10

REASONS WHY THE WRIT SHOULD BE DENIED

POINT I

THE PETITIONERS’ JUSTIFICATION CLAIM
IS BEYOND THE SCOPE OF THIS COURT’S
REVIEW, DOES NOT RAISE AN IMPORTANT
QUESTION OF CONSTITUTIONAL LAW, AND
LACKS MERIT.

The petitioners’ application for a writ of certiorari should
be denied. The petitioners claim that the state trial court erro-
neously failed to submit a defense.* However, this Court does
not have jurisdiction to review this claim. Furthermore, this
claim does not present an important issue of constitutional
law. Moreover, this claim is utterly meritless. Therefore, this
claim presents no reason for this Court to grant the petition-
ers further review.

First, the petitioners’ application for a writ of certiorari
Should be denied because the petitioners’ claim raises only a
question of state law, not a question of federal constitutional
law. In his direct appeal to the Appellate Division, petitioner
Benito Iadarola argued that his conviction should be reversed
because the trial court failed to charge the jury that the peti-
tioners should be acquitted if the petitioners reasonably
believed that the F.B.I. had authorized them to engage in
criminal activities in connection with their role as confiden-
tial informants. The Appellate Division rejected this claim,
observing that the suggested charge “has no basis in New
York law.” People v. Benito ladarola, 634 N.Y.S.2d 738 (2d
Dep’t 1995). The Appellate Division noted that, instead, the
trial court had correctly apprised the jury on the justification
defense which is set forth in New York Penal Law § 35.05(1).

; In their first point, the petitioners also contend that the trial

court's intent charge was constitutionally defective (Petitioners’ Brief at
11, 13). The petitioners’ claim concerning the intent charge is discussed
in Point II, infra.

11

The trial court instructed the jury that conduct that would oth-
erwise constitute an offense is justifiable and not criminal
where such conduct is performed by a public servant in the
reasonable exercise of his official powers, duties or functions
(Charge: VII.94). The trial court defined a public servant as
any person exercising the function of a public officer or
employee, even if the person was not “on the payroll of the
particular agency” (Charge: VII.96).

The petitioners now claim that their rights under the Fifth,
Sixth, and Fourteenth Amendments were violated by the trial
court’s failure to charge the jury on this “reasonable belief”
defense. However, this claim presents no issue of constitu-
tional law. The definition of state crimes and state defenses is
ordinarily a matter of state law. See Patterson v. New York,
432 U.S. 197, 210 (1977). This rule should certainly apply to
a defense of justification. As this Court has observed, “[t]he
doctrines of actus reus, mens rea, insanity, mistake, justifi-
cation, and duress have historically provided the tools for a
constantly shifting adjustment of the tension between the
evolving aims of the criminal law and changing religious,
moral, philosophical and medical views of the nature of man.
This process of adjustment has always been thought to be the
province of the States.” Powell v. Texas, 392 U.S. 514, 536
(1968).

Obviously, this Court has the power to strike down crimi-
nal statutes which violate some specific provision of the Con-
stitution. For example, this Court has struck down statutes
which violate the First Amendment (Texas v. Johnson, 491
U.S. 397 [1989]); the Equal Protection Clause (McLaughlin
v. Florida, 379 U.S. 184 [1964]); the Cruel and Unusual
Punishment Clause (Robinson v. California, 370 U.S. 660
[1962]), and the constitutional right to privacy (Griswold v.
Connecticut, 381 U.S. 479 [1965]). In addition, this Court has
struck down criminal statutes which are so vague that they
fail to give persons of ordinary intelligence fair notice of what
is forbidden by the statutes. Papachristou v. City of Jack-

cia

12

sonville, 405 U.S. 156 (1972). But the petitioners have never
alleged that New York State’s justification statute violates any
of these precepts.

Moreover, while the due process clause imposes some outer
boundaries on the conduct that a State can criminalize (see
Cox v. State of Louisiana, 379 U.S. 559, 571 [1965]), the
scope of the due process clause beyond those protections con-
ferred by the Bill of Rights is quite limited. See Dowling v.
United States, 493 U.S. 342, 352 (1990) (“Beyond the spe-
cific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation”). Here, where the peti-
tioners were given a justification defense which was very sim-
ilar to the defense the petitioners now raise,° the due process
clause should have no application.

In sum, the petitioners urge this Court, in essence, to over-
rule the choices made by the New York State Legislature and
redefine the substantive content of New York criminal law.
Because the scope of the New York justification defense is a
matter of New York state law, this case does not present a
substantial federal constitutional issue for this Court to
review.

Second, even if the petitioners’ claim raised a substantial
federal constitutional issue, the petitioners’ claim cannot be
reviewed in this case because the state courts never ruled on
any federal constitutional issue. The Supreme Court has no
jurisdiction to exercise its appellate power over state court
judgments, unless a federal question has been decided in the
state courts below. Exxon Corp. v. Eagerton, 462 U.S. 176,
181 n.3 (1983); Street v. New York, 394 U.S. 576, 581-82
(1969); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).

6

In fact, at least one commentator has suggested that the justi-
fication defense set forth in New York Penal Law 35.05(1) may apply to
a person who acts on a reasonable, but mistaken, belief that his or her
behavior is legal. American Law Institute, Model Penal Code and Com-
mentaries, Part I, § 3.03, pages 29-30, n.19 (1985).

13

When the highest state court “has failed to pass upon a federal
question, it will be assumed that the omission was due to want
of proper presentation in the state courts, unless the aggrieved
party in this Court can affirmatively show the contrary.”
Street v. New York, 394 U.S. at 582.

In this case, the Appellate Division never addressed the
question whether the trial court’s failure to submit the defense
violated the Fifth, Sixth, or Fourteenth Amendments of the
Federal Constitution. Instead, the Appellate Division ruled
only that the trial court properly did not submit the defense on
the basis of state law. People v. Benito ladarola, 634 N.Y.S.2d
at 738.

The Appellate Division correctly refused to consider the
petitioners’ constitutional claim, because the claim was
unpreserved for appellate review. Under New York law, in
order to preserve a constitutional issue for appellate review,
a criminal defendant must timely and specifically raise the
constitutional claim in the trial court. See N.Y. Crim. Proc.
Law § 470.05(2) (McKinney 1994); People v. Udzinski, 146
A.D.2d 245, 248-52, 541 N.Y.S.2d 9, 11-14 (2d Dep’t 1989).
In this case, the petitioners’ counsel never alluded to any fed-
eral constitutional provision during their discussions about the
court’s charge. Thus, under New York law, the petitioners’
constitutional claim was.unpreserved. See People v. Voliton,
83 N.Y.2d 192, 195-96, 608 N.Y.S.2d 945, 947, 630 N.E.2d
641, 643 (1994) (court refused to consider defendant’s due
process claim, because defendant failed to raise claim in trial
‘ court); People v. Qualls, 55 N.Y.2d 733, 447 N.Y.S.2d 149,
431 N.E.2d 634 (1981) (court refused to review defendant’s
confrontation clause claim because defendant raised only evi-
dentiary claim in trial court); People v. Dozier, 52 N.Y.2d
781, 436 N.Y.S.2d 620, 417 N.E.2d 1008 (1980) (court
refused to consider constitutional issues that were not specif-
ically raised in trial court).

14

Although the Appellate Division does have the discretion to
review unpreserved claims in the interest of justice (see N.Y.
Crim. Proc. Law § 470.15[6][a] [McKinney 1994]; People v.
Cona, 49 N.Y.2d 26, 33, 424 N.Y.S.2d 146, 149, 399 N.E.2d
1167, 1169 [1979}), this power “is not invoked routinely.”
Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.) (citation omit-
ted), cert. denied, 459 U.S. 849 (1982). In light of the Appel-
late Division’s silence on _ the petitioners’ federal
constitutional claim, this Court should conclude that the
Appellate Division refused to review this claim because it
was unpreserved. See Coleman v. Thompson, 501 U.S. at 732-
40; Epps v. Commissioner of Correctional Services, 13 F.3d
615, 618-19 (2d Cir.), cert. denied, 114 S. Ct. 1409 (1994),

Third, the petitioners’ application for a writ of certiorari
should be rejected because this claim does not raise an impor-
tant issue of law. As one of the petitioners’ counsel observed
during trial, the public servant justification defense set forth
in Penal Law § 35.05(1) is rarely raised in New York
(VI.101). In light of the extremely limited impact that a deci-
sion on this issue will have, this claim does not present a sig-
nificant issue of constitutional law for this Court to resolve.

Fourth, this Court should not issue a petition for a writ of
certiorari in this case because the petitioners’ claim is mer-
itless. New York State’s, failure to recognize a “reasonable
belief” defense does not violate the federal constitution. On
the contrary, the New York State Legislature reasonably chose
not to recognize this defense. A “reasonable belief” defense
“is an invitation to excess, encouraging officers to overstep
the boundaries of their powers because it will be impossible,
or very difficult, to show that their beliefs about limits (often
very vague limits) were unreasonable.” American Law Insti-
tute, Model Penal Code and Commentaries, Part I, § 3.03,
page 30 (1985). Therefore, New York State was not consti-
tutionally required to adopt such a defense.

|

15

In any event, the evidence introduced at trial did not sup-
port this defense. Special Agents Gary Draus and Richard
Leahy testified that the petitioners were repeatedly informed,
in accordance with the Attorney General’s Guidelines, that
the petitioners were not agents of the F.B.I., that they were
not permitted to engage in any criminal activity, and that, if
they did engage in criminal activity, they could be prosecuted
(Draus: V.5173-75, 5189-92, VI.5286-89; Leahy: VI.5471-76,
5478-79, 5598-99). Although Benito Iadarola testified that
Agents Draus and Leahy had told him to stay in the gambling
business (Iadarola: VI.5648-50), he never disputed that he had
been repeatedly warned over the course of years that he could
face prosecution for his actions. Indeed, in 1981, the State
prosecuted the petitioners for a gambling offense, despite the
fact that they were F.B.I. informants at that time. Under these
circumstances, no reasonable person could have believed that
the petitioners had immunity to operate a multi-million dol-
lar gambling operation in violation of the laws of the State of
New York.

Furthermore, statements made by Victor Iadarola, which
were recorded on audiotape, unequivocally established that
the petitioners did not believe that they had permission from
the F.B.I. to operate their gambling empire. In telephone con-
versations with family members and business associates, Vic-
tor ladarola observed that he was “not selling bibles,” said
that he would have quit the gambling business earlier had he
known about New York’s enterprise corruption statute, and
predicted that he was “going to jail” (Call numbers 1803,
4354, 634, 727). In a recorded conversation with Agent
Leahy, Victor ladarola admitted, “Yeah, well, I’m a hood
myself. . . . let’s stop kidding ourselves. I made money too,
understand?” (Call number 727). In a conversation with code-
fendant Hali Polanco, Victor Iadarola said, “Look, it’s bargain
time, you understand?” (Call number 728). Obviously, had
Victor Iadarola actually believed that he and his brother had
permission to operate a gambling operation in New York, he

16

would have made none of these comments. Thus, as the
Appellate Division held, no reasonable view of the evidence
supported the petitioners’ contention that they reasonably
believed that they had been given permission by the F.B.I. to
run a multi-million dollar gambling operation in New York.

For all of these reasons, petitioners’ claim regarding the
scope of New York State’s justification defense does not pro-
vide any reason for this Court to issue a writ of certiorari.
Therefore, this petition should be denied.

POINT II

THE PETITIONERS’ CLAIM CONCERNING
THE TRIAL COURT’S INTENT CHARGE IS
BEYOND THE SCOPE OF THIS COURT’S
REVIEW, DOES NOT RAISE AN IMPORTANT
QUESTION OF CONSTITUTIONAL LAW, AND
LACKS MERIT.

This Court should also refuse to review the petitioners’
related claim that the trial court’s intent charge violated the
petitioners’ rights under the Fifth, Sixth, and Fourteenth
Amendments. The petitioners contend that the trial court’s
intent charge was constitutionally insufficient because the
trial court refused to give the following instruction: the jury
should conclude that the petitioners lacked the intent to com-
mit the crime charged if the petitioners reasonably believed
that the Federal Bureau of Investigation had given them the
authority to commit that crime. Like the petitioners’ justifi-
cation claim, the petitioners’ intent claim is beyond the scope
of this Court’s jurisdiction, does not raise an important issue
of law, and is substantively meritless.

The petitioners’ claim is beyond the scope of this Court’s
review because the claim does not raise a federal constitu-
tional question. The content of a state court’s jury instructions
is ordinarily a matter of state law. United States ex rel. Smith

mi Pe a as MEE

¥

17

v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974), cert. denied,
423 U.S. 856 (1975); see Cupp v. Naughten, 414 U.S. 141,
146 (1973). Because the petitioners’ claim raises only an
issue of state law, this Court does not have jurisdiction to
review the claim. See 28 U.S.C. § 1257(a).

This claim is also beyond the scope of this Court’s review
because the state courts never ruled on any federal constitu-
tional issue. See supra, at 12-14; Exxon Corp. v. Eagerton,
462 U.S. 176, 181 n.3 (1983); Street v. New York, 394 U.S.
576, 581-82 (1969). The Appellate Division never addressed
the question of whether the trial court’s refusal to give the
requested intent instruction violated the petitioners’ Fifth,
Sixth, and Fourteenth Amendment rights. People v. Victor
ladarola, 634 N.Y.S.2d 738 (2d Dep’t 1995).

As noted before, when the highest state court “has failed to
pass upon a federal question, it will be assumed that the omis-
sion was due to want of proper presentation in the state
courts, unless the aggrieved party in this Court can affirma-
tively show the contrary.” Street v. New York, 394 U.S. at 582.
Here, the record unequivocally shows that the petitioners
failed to raise the issue properly in state court. When Victor
Iadarola’s counsel requested the instruction, he did not refer
to any constitutional provision or otherwise alert the trial
court to any federal constitutional issue. Therefore, under
New York law, the petitioners’ constitutional claim was not
preserved for appellate review.’ See People v. Voliton, 83
N.Y.2d 192, 195-96, 608 N.Y.S.2d 945, 947, 630 N.E.2d 641,
643 (1994); People v. Qualls, 55 N.Y.2d 733, 447 N.Y.S.2d
149, 431 N.E.2d 634 (1981); People v. Dozier, 52 N.Y.2d 781,
436 N.Y.S.2d 620, 417 N.E.2d 1008 (1980). Because there is

a Although Victor Iadarola’s counsel cited to United States v.
Barker, 546 F.2d 940 (D.C. Cir. 1976) in support of his charge request,
this citation was not sufficient to alert the trial to any constitutional issue.
United States v. Barker addresses only the scope of the mistake of law
and mistake of fact defenses under federal law.

18

an independent and adequate state ground for the Appellate
Division’s failure to consider the petitioners’ constitutional
claim, this claim cannot be reviewed by this Court. See Cole-
man v. Thompson, 501 U.S. 722, 729, 737-40 (1991).

Furthermore, the petitioners’ claim does not raise an impor-
tant issue of law for this Court to review. Insofar as respon-
dent is aware, there are no other federal or state cases which
address whether the proposed intent charge is constitutionally
required. Indeed, since the proposed charge is based on the
extremely unusual facts of this case, it is unlikely that this
issue has ever arisen before. Consequently, this case does not
present a significant question of law for this Court to resolve.

Finally, the petitioners’ application for a writ of certiorari
on the basis of this claim should be rejected because the peti-
tioners’ claim is specious. Before a federal court may over-
turn a conviction based on a state trial court’s charge, it must
be established that the absence of the requested instruction is
not only “undesirable, erroneous, or even “universally con-
demned,’ but that it violated some right which was guaranteed
to the defendant by the Fourteenth Amendment.” Cupp v.
Naughten, 414 U.S. at 146; see Henderson v. Kibbe, 431 U.S.
145, 154-55 (1977).

Here, the trial court properly refused to give the requested
instruction, because that instruction was incorrect as a matter
of law and logic. The petitioners’ proposed charge would
have instructed the jury that, if the jury accepted the peti-
tioners’ claim that the F.B.I. had authorized them to commit
the crime, the jury must conclude that the evidence was insuf-
ficient to establish their intent to commit the crime. However,
this instruction was completely wrong. The petitioners’
alleged belief in their own authorization kad absolutely noth-
ing to do with the intent required to commit the charged
crime. In order to prove the intent element of the crime of
Enterprise Corruption, the State had to establish that the peti-
tioners intentionally conducted or participated in the affairs

19

of an enterprise or that the petitioners intentionally acquired
or maintained an interest in or control of the enterprise.* N.Y.
Penal Law § 460.20(1) (McKinney 1989). Because the peti-
tioners’ alleged belief that they had been authorized to com-
mit the crime was completely irrelevant to whether the
petitioners intentionally participated in the affairs of the
enterprise or intentionally maintained an interest in the enter-
prise, the trial court’s refusal to give the instruction certainly
did not amount to a federal constitutional violation.

For all of these reasons, the petitioners’ claim concerning
the trial court’s intent charge provides no basis for this Court
to grant a writ of certiorari.

POINT Ill

THE APPELLATE DIVISION DID NOT DIS-
TURB THE RULE THAT AN ACCUSED IS
ENTITLED TO ANY RECOGNIZED DEFENSE
THAT IS SUPPORTED BY EVIDENCE.

Finally, this Court should reject the petitioners’ claim that
their cases should be reviewed because the Appellate Division
“unsettle[d]” the fundamental precept that an accused is enti-
tled to an instruction about any recognized defense which is
supported by the evidence (Petitioners’ Brief at 15-19). The
Appellate Division's decision did not disturb this rule of law.
On the contrary, the Appellate Division applied this rule of
law.

The Appellate Division held that the petitioners were not
entitled to the “reasonable belief” defense, because it was not
a defense recognized in New York. People v. Benito ladarola,
634 N.Y.S.2d 738 (2d Dep't 1995). Furthermore, the Appel-

. Contrary to the petitioners’ assertion (Petitioners’ Brief at 16

n.10), Enterprise Corruption is not a specific intent crime.

20

late Division held that, in any event, no reasonable view of
the evidence supported this defense. Jd.

While the petitioners may not agree with how the Appellate
Division applied this rule to the particular facts of their case,
the Appellate Division did not disregard or reject this fun-
damental principle. Therefore, this claim does not provide any
constitutional issue for this Court to resolve.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari
should be denied

Respectfully submitted,

CHARLES J. HYNES
District Attorney
Kings County

ROSEANN B. MACKECHNIE

VicTOR BARALL*

ANN BORDLEY

Assistant District Attorneys
of Counsel

210 Joralemon Street
Brooklyn, New York 11201
(718) 250-2000 -

*Counsel of Record for Respondent
Dated: April 18, 1996

* The New York Court of Appeals has held that, in determining
whether a reasonable view of the evidence supports a defense, a state
court must view the evidence in the light most favorable to the defendant.
See People v. Farnsworth, 65 N.Y.2d 734, 492 N.Y.S.24 12, 481 N_E.2d
$52 (1985)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1255%3A2. Public record. Not legal advice.