Lawyer Provided Excellent Defense Despite Sleeping During Trial, Says Federal Judge

Friday December 15, 2:52 am ET - Mark Hamblett - New York Law Journal

Even though defense attorney Robert Koppelman snoozed on occasion during the racketeering trial of an Albanian gang member, he managed to provide effective assistance of counsel under the Sixth Amendment, according to a federal judge.

In fact, Koppelman did such an excellent job defending Ljusa Nuculovic, despite falling asleep several times during the 2005 trial, that Southern District of New York Judge Denise Cote felt Nuculovic was lucky to have him.

Nuculovic was one of six defendants on trial for an Albanian crime organization's attempts to muscle in on the Luchese family gambling business in Queens.

All six were convicted on Jan. 4, 2006 of substantive and conspiracy racketeering charges, substantive and conspiracy gambling charges, and brandishing a firearm in furtherance of the substantive racketeering crime. Nuculovic was also convicted with four other defendants of an extortion conspiracy for his organization's efforts to place a gambling machine in the Cosmos bar in Queens.

He moved for a new trial in United States v. Nuculovic, S3 04 Cr. 1110, before Judge Cote on the grounds that Koppelman was ineffective because he "slept through portions of trial every day" sometimes for a few minutes and other times "for extended periods."

Nuculovic said he and court officers had to jostle Koppelman to keep him awake, and therefore his attorney failed to raise objections at critical points, present a coherent trial strategy or do his job on cross examination.

But Judge Cote said Koppelman's trial behavior was "greatly distorted," by his former client.

During the first part of trial, which was mostly devoted to agent testimony about gambling machines and the agents' surveillance of the organization, "it appeared that Koppelman had been sleeping," she said.

But Judge Cote said "there were others in the courtroom who may also have been tempted to sleep during that time, given the tedium associated with this largely uncontroversial proof."

Judge Cote then described her efforts in October 2005 to have Koppelman sit up straight and refrain from leaning back and closing his eyes.

After being told by the judge that she was watching to make sure he did not nod off, Koppelman moved for a mistrial, saying "If your honor thinks that I have been asleep through significant portions of this trial" then a mistrial should be granted.

Koppelman lost the motion, but not before telling the judge "I don't know how your honor can tell the difference between me leaning back in my chair with my eyes closed and sleep. If I was snoring, judge, then you could probably tell. I don't think anybody has claimed that I have been snoring through any of this trial."

Cote went on to take several measures to keep Koppelman and others away from slumberland. She kept the courtroom "fairly cold" and advised jurors to bring sweaters. She had frequent "stretching breaks," and she made sure Koppelman received a steady supply of ice water. She had an officer discreetly admonish the lawyer to sit up straight whenever he closed his eyes.

"As a consequence, there is absolutely no basis whatsoever to find that Koppelman slept through any appreciable portion of the trial following the agent testimony given in the trial's opening days," she said. "Even during those early days, Koppelman was a careful observer of the proceedings and an active participant, conducting some of the most memorable cross-examinations of the stream of agent witnesses."

Not only that, but the attorney had a "well-defined" trial strategy, conducted "skillful, imaginative" cross-examinations "based on a thorough command of the trial testimony," and "worked hard to create and maintain a good rapport with the jury," she said.

NOT GUILTY VERDICTS

Moreover, despite substantial evidence against his client, the attorney obtained not guilty verdicts on a charge of committing extortion at a club called the Grecian Cave and making an extortionate extension of credit in the amount of $10,000.

Judge Cote added that "no other defendant obtained as many separate verdicts in his favor."

Koppelman took the opinion in stride Wednesday.

"As far as she agreed that I did a good job, I agree with her opinion," he said. "The opinion points out that [Nuculovic] did better in terms of not guilty verdicts than anyone else, so it speaks for itself -- he had quite effective assistance of counsel."

Assistant U.S. Attorneys Timothy J. Treanor, Jennifer G. Rodgers and Benjamin Gruenstein represented the government. John Burke of Brooklyn represented Nuculovic on the motion.