The People, Respondent,v.Dayshawn P. Handy, Appellant.BriefN.Y.February 6, 2013Brief Completed: August 27, 2012 To Be Argued By: Geoffrey Kaeuper Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DAYSHAWNP. HANDY, Appellant. BRIEF FOR RESPONDENT SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Geoffrey Kaeuper Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 3 POINT I The evidence was legally sufficient to prove defendant guilty of an intentional assault. 12 POINT II The trial court did not abuse its discretion in denying defendant's request for a mandatory adverse inference instruction as to Count 2. 15 A. Defendant failed to preserve any issue as to whether dismissal was warranted because of lost evidence. 16 B. Defendant failed to preserve any objection to CPL 240.20. 16 c. Defendant was not entitled to an adverse inference instruction on a count for which there was no lost evidence. 17 CONCLUSION 22 TABLE OF AUTHORITIES CASES Matter ofKadeem Western, 5 NY3d 864 (2005) .................................... 12 People v Baghai-Kermani, 84 NY2d 525 (1994) .................................... 21 People v Barnes, 50 NY2d 3 75 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v Bleakley, 69 NY2d 490 (1987) .......................................... 12 PeoplevBranch, 80NY2d610(1992) ........................................... 19 People v Bryant, 31 NY2d 744 (1972) ............................................ 15 People v Bueno, 18 NY3d 160 (2011) ............................................ 13 People v Contes, 60 NY2d 620 (1983) ............................................ 14 People v Gibbs, 85 NY2d 899 (1995) ............................................. 15 People v Iannelli, 69 NY2d 684 (1986) ........................................... 17 People vJordan, 62 NY2d 825 (1984) ............................................ 16 People vJoseph, 86 NY2d 565 (1995) ............................................ 19 People v Kelly, 62 NY2d 516 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Liccione, 50 NY2d 850 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Martinez, 71 NY2d 937 (1988) ....................................... 16, 18 People v Steinberg, 79 NY2d 673 (1992) .......................................... 13 People v Wallace, 76 NY2d 953 (1990) ........................................... 19 STATUTES CPL 240.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 CPL 470.05 .............................................................. 15, 17 ii CPL 470.35 ................................................................. 17 Penal Law 15.05 ............................................................. 12 Penal Law 120.05 .......................................................... 2, 12 iii QUESTIONS PRESENTED 1. Question: Was the evidence legally sufficient to prove that defendant intentionally assaulted Deputy Schliff? Answer of the Trial Court: Yes. Answer of the Appellate Division: Yes. 2. Question: Was defendant entitled to a mandatory adverse inference instruction as to count 2 when the evidence established that no video camera recorded that incident? Answer of the Trial Court: No. Answer of the Appellate Division: No. 1 PRELIMINARY STATEMENT Defendant Dayshawn P. Handy was convicted, upon a jury verdict rendered on September 19,2007, of assault in the second degree (Penal Law§ 120.05 [7]) in Monroe County Court (Richard Keenan, J.) (Record ["R"] 6). Defendant was sentenced on October 18, 2007, to a determinate term of 5 years with 3 years of post-release supervision (R 6, 547). There has been no stay of the sentence. Defendant is currently in custody. (http://nysdocslookup.docs.state.ny.us [DIN: 07-B-0927]) 2 STATEMENT OF FACTS A Monroe County Grand Jury indicted defendant for three separate assaults occurring on two dates. The Defendant was housed in the Monroe County Jail pursuant to a criminal charge at the time of each incident (R 300). The indictment alleged that, on November 8, 2006, defendant intentionally injured Brandon Saeva and Timothy Schliff, and that on January 8, 2007, he intentionally injured Scott Willis (R 7-8). The case proceeded to jury trial, where the testimony was as follows: First Incident of November 8. 2006 On November 8, 2006, at approximately 9:30 P.M., Deputy Brandon Saeva was conducting a "security round," when he observed defendant in his cell inC Block, possessing prohibited "[p]ersonal sandals and personal boxers" (R 289- 29 I, 299). Deputy Saeva asked for the sandals and boxers but defendant claimed not to have them (R 291). When Deputy Saeva told him they were in plain sight, defendant cursed and refused to comply (R 292). After a further order, defendant turned over the boxers "and said, 'Now, fuck off. You got what you wanted' " (R 292). When Deputy Saeva told defendant he needed to collect the sandals as well, defendant repeatedly refused and then attempted to punch the Deputy in the face (R 292-293). Deputy Saeva ducked down and tried to defend himself, as 3 defendant struck multiple blows with his left and right arms (R 293). Deputy McCarthy then responded and he and Deputy Saeva were able to handcuff defendant (R 294-295). At that point, Deputy Saeva noticed that his hand "swelled right up" and he was unable to make a tight fist (R 295). Although he was certain he sustained this injury in defendant's cell, he could not say specifically how it happened (R 296). After defendant was handcuffed, staff responded to C Block and defendant was taken to a special housing unit ("SHU") (R 297-298). As soon as he was handed off to staff, "he started struggling and started kicking and screaming and resisting a lot more" (R 309). The one camera inC Block faces in the direction of defendant's cell (R 313 ). "Unfortunately, the camera isn't directly facing his cell because it's in a corner. So it's off a little bit. So you capture on the left hand side stuff also. The camera showed, I think, only part of his doorway, but not much" (R 314). In November, Deputy Saeva reviewed the video recorded by the camera (R 314, 316). The video showed only a "very small part of'' the incident (R 315). Specifically, it showed Deputy Saeva "walking into the pit and talking to another inmate" (R 315). 4 Second Incident of November 8, 2006 At approximately 9:30P.M., Deputy Timothy Schliffresponded to a radio call for a fight involving staff (R 330-331 ). When he got to C Block, Deputies McCarthy and Saeva were escorting defendant and defendant was struggling with them (R 332, 338). Deputy Schliffnever actually entered C Block: "We were in B Block and the sergeant opened the door to C Block and that's when they brought him into B Block" (R 342). The incident took place "Ten feet maybe" into B Block (R 342). That area is a "blind spot" for the one camera in B Block (R 317). Deputy Schlifftried to help control defendant by reaching for defendant's right leg (R 332). When he did so, defendant "kicked back striking [Deputy Schliffs] left thumb" (R 332). It was "like a horse kicking backwards ... straight back" (R 340). Deputy Schliffwas then able to control defendant's leg, and helped to escort defendant out of the area (R 333). As a result of the kick, Deputy Schliff suffered a partially torn ligament in his left thumb that required a hard cast and a prescription for Vicodin (R 335). He missed between fifty and sixty days of work and did not return to his normal duties for another month and a half(R 335). 5 Incident of January 8, 2007 At approximately 9:25P.M., Corporal Wayne Guest and Deputy Scott Willis were in the SHU, where defendant was taking a shower (R 349-350, 365). In accordance with jail policies, once defendant had finished his shower, Corporal Guest put handcuffs and a waist chain on defendant through the gate that secures the shower stall (R 351 ). When Corporal Guest opened the gate to apply leg chains, defendant resisted and attempted to walk past Corporal Guest (R 352, 366). The deputies took defendant to the ground, but defendant began kicking at Corporal Guest (R 353, 367). Corporal Guest tried to secure defendant's legs and, itS Deputy Willis was securing defendant's upper body, defendant tried to bite Deputy Willis on the arm, and then did bite him on the right thumb (R 353, 367- 368). Deputy Willis punched defendant in the face to get him to release the bite, and Corporal Guest then sprayed defendant's face with pepper spray (R 353, 368). The pepper spray incapacitated defendant and Corporal Guest and Deputy Willis were able to shackle him (R 354). There is one camera that looks into the room outside of the shower area (R 372). The shower door is within the view of that camera (R 372). A Lieutenant reviewed the video recording from that camera (R 373). 6 Defendant's testimony: Defendant, testifying on his own behalf, claimed that on November 8, 2006, he broke his wrist fighting with another inmate (R 395). Nobody treated his injury that day, and on the following day, defendant refused treatment (R 395). Defendant also testified that, because he had been fighting, Deputy Saeva threw a tray into the cell and the tray hitting his wrist caused the fracture (R 396). He came out of the shower wearing a towel and "slippers" (R 396). Deputy Saeva then came into his cell (R 399). Deputy Saeva asked for his slippers and boxers, and in response, defendant slid the slippers off his feet (R 399). Because defendant saw "devious evils" in Deputy Saeva's eyes, he told Deputy Saeva that he could not have the boxers (R 400). Deputy Saeva then "just swung" at defendant (R 400). Defendant dodged him, but then Deputy Saeva "football tackled" him (R 401 ). Deputy McCarthy "was letting time kill, you know, performing for the camera," but at some point, "because they had it planned out," joined Deputy Saeva and they handcuffed defendant (R 403). They began to walk defendant out and then handed him off to other deputies (R 403-404). When defendant got into B Block, deputies were trying to put his feet in shackles (R 405). He claimed that he did not kick any deputy and did not try to hurt any deputy (R 407). 7 Defendant further testified that on January 8, while defendant was in the SHU, Deputy Willis and Corporal Guest took him to the shower in handcuffs and a waist chain, but at defendant's request they omitted the shackles that are part of the standard procedure (R 408). When he was finished showering, Corporal Guest put the handcuffs and waist chain back on defendant and told defendant that he needed to put shackles on as well (R 411). Defendant responded," 'I'm not putting the shackle on'" (R 411). According to defendant, he was "trying to come in the camera view" but Corporal Guest was preventing him (R 413). Corporal Guest took him down to the floor and the other deputy came to help (R 415). Defendant saw Deputy Willis's arm and "opened up [his] mouth, but [he] didn't bite down" (R 417). Nevertheless, Deputy Willis hollered that defendant bit him (R 417). At that point, defendant was sprayed in the face with mace (R 419). Defendant denied ever biting Deputy Willis's thumb (R 418). According to defendant, "the camera caught everything" (R 419). Defendant's request for a mandatory adverse inference instruction Before jury selection, defense counsel raised an issue as to a video recording of the January 8 incident charged in count 3. Because that video no longer existed, counsel requested "preclusion of any testimony with regard to the incident occurring on January 8th" as well as "an instruction to be given to the 8 jury that they are to presume that the evidence contained on that tape would be beneficial to the defense" (R 86-87). The prosecutor responded that another Assistant District Attorney had requested that any video of either incident be preserved, but that the prosecutor had been told that "at this point no video existed of either incident" (R 89). The court denied the request for preclusion but otherwise reserved decision on the issue (R 90, 1 00). After jury selection, the prosecutor explained her further efforts to learn of any video recordings of the January 8 incident. She conceded that there was a video recording of the January 8 incident, the defense had requested it at arraignment, the prosecution did not make a request for preservation within 30 days of the incident and, as a result, it "was recorded over as per the jail system standards" (R 264-265). As a sanction, the prosecutor requested that the court give an adverse inference instruction (R 265). The court indicated that defendant would be entitled to such an instruction "at a minimum" but that the court, based upon the trial testimony and any factual hearing outside the jury's presence, would consider "additional alternatives" from the defense (R 265). During the charge conference, the court informed counsel that "with respect to count three and depending on my decision on the TOD[,] I will draft an instruction that is in accordance with what was requested by the defense" (R 436). 9 Defense counsel stated: "Other than the general charge for Assault Second and the charge that we'll go over tomorrow with regard to the videotape, I don't have any other requests for charge" (R 437). The next day, the court presented counsel with its proposed adverse inference instruction as to count 3, and the defense presented its own proposed instruction. Defense counsel's instruction contained a mandatory rather than permissive inference and referred not only to count 3, but also to the assault on Deputy Schliff (erroneously designated as count 1 rather than count 2) (R 549). Counsel then argued that, even though his own proposed instruction referred to two counts only, "it should be applied to both counts, all counts basically" (R 445). Specifically, counsel argued that defendant was entitled to the instruction on counts 1 and 2 because "Deputy Saeva testified that there was a video that he viewed of the incident that he was involved with, which would be counts one and two" (R 444). Counsel did not attempt to explain how or why the video about which Deputy Saeva testified could be relevant to count 2. The court rejected counsel's proposed instruction (R 446). Counsel did not request that the court extend its permissive adverse inference charge to either count 1 or 2. The court gave the charge it had prepared, which applied to count 3 only (R 501-502). 10 Verdict & Sentencing The jury found defendant not guilty as to counts 1 and 3 and guilty as to count 2. The court thereafter sentenced defendant to a determinate term of incarceration of 5 years with 3 years of post-release supervision (R 54 7). 11 POINT I The evidence was legally sufficient to prove defendant guilty of an intentional assault. The evidence was legally sufficient to establish defendant's guilt as to count 2, which charged assault in the second degree (Penal Law § 120.05 [7]). On appeal, there is no dispute that defendant had been charged with a crime, was confined in a correctional facility, and caused physical injury to Deputy Schliff. At issue is only whether he caused that injury intentionally. Based upon the testimony as to defendant's efforts to free himself from the deputies and upon peputy Schliffs testimony that the injury was caused by a horse-like kick straight backwards, there was a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]). "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his [or her] conscious objective is to cause such result or to engage in such conduct" (Penal Law§ 15.05 [1]). Because "[ o ]pen expressions of criminal intent by the alleged perpetrator of an act which constitutes a crime are not always available," the fact-finder may infer intent "from the alleged perpetrator's conduct and the surrounding circumstances" (Matter of Kadeem W., 5 NY3d 864, 869 [2005] [citations omitted]). The fact-finder may 12 further infer that defendant intended the natural and probable consequences of his acts (People v Steinberg, 79 NY2d 673, 685 [1992] ). Moreover," '[c]ompeting inferences to be drawn [regarding the defendant's intent], if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed'" on appeal (People v Bueno, 18 NY3d 160, 169 [2011], quoting People v Barnes, 50 NY2d 375, 381 [1980]). According to defendant, his actions were reckless or negligent, but not intentional, because he was merely "thrashing around" (App Br, 16). But that was not the testimony of Deputy Schliff. Despite trial counsel's concerted efforts to characterize the kick as defendant's foot simply "c[oming] up vertically," Deputy Schlifftestified instead that it was "like a horse kicking backwards, you know, straight back" (R 340). A horse-kick straight back is designed to injure. Although defendant argues that he could not have seen Deputy Schliff behind him (App Br, 18-19, 22), that would not undercut intent. "Defendant's knowledge or awareness that the result will occur-while a factor the jury may take into consideration to infer intent-is itself not a prerequisite of intent" (People v Steinberg, 79 NY2d 673, 681 [1992]). And, in any event, defendant did not need to see Deputy Schliffto know he was there. Deputy Schlifftestified that the kick came as soon as the deputy reached for defendant's leg (R 332). The jury 13 could readily infer that defendant felt Deputy Schliff attempting to get hold of his leg and horse-kicked straight back with the intent of injuring him so that he could not restrain defendant's leg. Accordingly, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally sufficient to prove that defendant intentionally assaulted Deputy Schliff. 14 POINT II The trial court did not abuse its discretion in denying defendant's request for a mandatory adverse inference instruction as to Count 2. The only question that was preserved in the trial court is whether the court abused its discretion in denying defendant's request for a mandatory adverse inference instruction on count 2 based upon the People's failure to preserve a video that may have shown some small part of the incident charged in count 1. As to that, the answer is simple. Even ifthere had been lost evidence as to count 2, the court would have been well within its discretion to impose a permissive, rather than mandatory, adverse inference instruction as the appropriate sanction (see People v Gibbs, 85 NY2d 899 [1995]). But the lost video was not evidence as to count 2 at all. Thus, the trial court could not have abused its discretion in denying the request for a mandatory instruction on count 2, which was the only relief sought by the defense at trial (see R 444-446). On appeal, however, defendant does not pursue that preserved issue. Instead, he raises a variety of other issues that were never raised or considered in the trial court. But because they were not raised in the trial court, these issues are not properly before this Court (see CPL 470.05 [2]; People v Bryant, 31 NY2d 744 [1972]). 15 A. Defendant failed to preserve any issue as to whether dismissal was warranted because of lost evidence. Defendant apparently argues that, where law enforcement possesses a video recording of a crime itself, dismissal is the only appropriate remedy if that video is lost. That issue is unpreserved. In the trial court, defendant never requested dismissal of count 2 as a sanction for any lost video recording. Indeed, defendant never requested dismissal of any of the charges based on lost evidence. Rather, counsel requested (as to count 3 only) preclusion of witness testimony and a mandatory adverse inference instruction (87). Later, at the charge conference, counsel requested a mandatory adverse inference instruction as to all counts. Defendant cannot argue in this Court that dismissal was the necessary remedy when he did not even ask for that remedy in the trial court (see People v Jordan, 62 NY2d 825, 826 [1984]). B. Defendant failed to preserve any objection to CPL 240.20. Defendant apparently also takes issue with the discovery statute, which requires the People to disclose electronic recordings "which the prosecutor intends to introduce at trial" (CPL 240.20 [1] [g]). But that statute has never been at issue in this case. The People never argued that, under CPL 240.20 (1) (g), there was no discovery violation because the People did not intend to offer any video recording in evidence at trial (see People v Martinez, 71 NY2d 937 [1988] [where there is no 16 duty to disclose, there is no ancillary duty to preserve]). That would have been a plausible argument, to which defendant might then have responded with the arguments he now raises in this Court. But instead, the People conceded that, where a video recording of the crime has been lost by law enforcement, a sanction must be imposed as to the count charging that crime. As the People did not invoke CPL 240.20 or otherwise argue that they were not required to preserve video recordings of the crimes, the trial court naturally did not entertain such hypothetical arguments. Accordingly, on this point, there was no "protest ... registered" by defendant as the court did not make a "ruling or instruction" on the point at all (CPL 470.05 [2]). And the issue does not present an "alleged error or defect" in the trial court (CPL 470.35 [1]). Therefore, any question about whether CPL 240.20 (1) (g) required the People to preserve and produce a video of the crime, or whether the statute violated defendant's right to a fair trial by not requiring that, is not properly before this Court (see People v Iannelli, 69 NY2d 684, 685 [1986]). C. Defendant was not entitled to an adverse inference instruction on a count for which there was no lost evidence. The defense at trial never requested a permissive adverse inference instruction as to count 2. When the court denied the request that the inference be mandatory, the defense made no request that the court apply the permissive 17 instruction to all counts and had no further objection to the charge actually given beyond the request made at the charge conference (R 516). Although defendant notes that the Appellate Division did not find the issue unpreserved (App Br, 70), this Court is of course not bound by that determination of the Appellate Division. Because defendant did not raise the specific question of a permissive inference in the trial court, that question is not properly before this Court (see People v Liccione, 50 NY2d 850, 851 [1980]). If, however, this Court determines that the request for a mandatory adverse inference instruction also preserved an issue as to a permissive adverse inference instruction, defendant's claim of error is nevertheless without merit. It is well-settled that "where discoverable evidence gathered by the prosecution or its agents is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss. Otherwise, sanctions will be imposed" (People v Kelly, 62 NY2d 516, 520 [1984] [internal citations omitted]). The choice as to what those sanctions should be "is committed to the sound discretion of the trial court" (id. at 521; see also People v Martinez, 71 NY2d 937, 940 [1988]). "Depending upon the degree ofprosecutorial fault and the resulting prejudice to the defendant, the court must then impose an appropriate sanction-preclusion of the witness' testimony or an adverse inference 18 charge, for example" (People v Branch, 80 NY2d 610, 616 [ 1992]). "[S]ome showing of prejudice is essential" for the imposition of a sanction against the prosecution (People v Joseph, 86 NY2d 565, 571 [1995]; see also People v Wallace, 76 NY2d 953, 955 [1990]). Because defendant must make that showing in the absence of the evidence itself, however, the People cannot "be heard to complain that the defendant's showing of prejudice is not sufficiently definite and clear" when the defendant makes an "articulable showing of prejudice" (Joseph, 86 NY2d at 571-572). Though the defense may not be able to pinpoint the prejudice with exactitude, some "articulable showing of prejudice" is necessary in order for the trial court to intelligently exercise its discretion in fashioning an appropriate sanction (see Branch, 80 NY2d at 616). Applying these principles, the trial court determined that defendant was entitled to an adverse inference instruction as a sanction for the People's failure to preserve the video recording of the incident charged in count 3. Defendant was not, however, entitled to such an instruction as to count 2 because there never was a video recording of that incident. Defense counsel requested a mandatory adverse inference as to count 2 based upon the failure to preserve the C-Block video that Deputy Saeva viewed, which counsel maintained "basically" related to both counts I and 2 (R 444-445). That video, however, merely showed Deputy 19 Saeva walking into C Block "and talking to another inmate" (R 315). Even if it arguably related to count 1 (a moot issue at this point), it had no bearing whatsoever on the incident charged in count 2, which took place in B Block. No sanction was required as to count 2 because no evidence was lost as to count 2. Although defendant now apparently claims that the camera in B Block recorded the assault on Deputy Schliff, and that a sanction was necessary based on failure to preserve that other video recording, no such argument was presented to the trial court. The defense never claimed that any camera other than the C Block camera captured any part of the incidents charged in counts 1 and 2. Accordingly, any argument about other possible cameras is unpreserved. Moreover, trial counsel had good reason not make that argument inasmuch as it had no evidentiary support. Counsel explored the issue on cross-examination but the testimony established that the assault on Deputy Schlifftook place in the doorway area ofB Block, which is a "blind spot" for the camera (R 317). Accordingly, there is neither a preserved issue as to a sanction for the B Block camera's recordings nor record support for the claim that a sanction would have been warranted had it been requested. Defendant was not entitled to an adverse inference instruction on count 2 because the lost evidence had nothing to do with count 2. He requested only a 20 mandatory adverse inference instruction but, even if he had requested a permissive instruction, it would have been proper for the court to reject such a request. The remedy for a discovery violation extends only to such charges as are affected by the violation (see People v Baghai-Kermani, 84 NY2d 525, 528 [1994] ["the Rosario violation here vitiates the conviction only on the two discrete counts as to which the witness in question gave testimony"]). As to count 2, there was nothing to remedy. 21 CONCLUSION The judgment of conviction should be affirmed. Dated: August 27, 2012 22 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney G~~~ BY: EOF y EUPER Assistant D:ictttomey Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DA YSHA WN P. HANDY, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 28th day of August, 2012, deponent served three (3) copies ofBrief for Respondent and one copy of CD upon Janet C. Somes, Esq., Assistant Public Defender, attorney for appellant in this action at 10 North Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. (kJJ\; I /iv'a.itA~ LAURIE MASTROCOLA Sworn to before me this 28th day of August, 2012. ~ ~. ~ LESLIE E. SWIFT -N-O"-T-=A=-=R=-Y---=P'-=UB'--L-I-C----"------...N9""ta=ry Public, State Of New York Monroe County, Reg#02SW6078870 Commission Expires Augustl2, 2d9~ STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DAYSHAWN P. HANDY, Appellant. PDF CERTIFICATION !,GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: August 27, 2012 ER, ESQ