The People, Respondent,v.Keith A. Adams, Appellant.BriefN.Y.February 13, 2013 To Be Argued By: DAVID R. JUERGENS Assistant Public Defender Requested Time: 10 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- KEITH A. ADAMS, Appellant. ___________________________________________________ REPLY BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Brief Completed: October 15, 2012 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii REPLY TO RESPONDENT’S “COUNTER-STATEMENT OF THE QUESTION INVOLVED” 1 REPLY TO RESPONDENT’S “COUNTER-STATEMENT OF THE FACTS” 2 REPLY TO RESPONDENT’S ARGUMENTS ON THE “APPEARANCE OF IMPROPRIETY” (APPELLANT’S POINT I) 3 A. Introduction 3 B. Per Se Disqualification is a Workable Rule. 5 C. Per Se Disqualification Would Promote the “Separation of Powers” Doctrine. 12 D. Per Se Disqualification Would Serve the General Public Better than a Case-By-Case Approach. 14 E. Respondent’s “Lack of Preservation” Argument is Meritless. 16 F. Summary 19 REPLY TO RESPONDENT’S ARGUMENTS ON “ACTUAL PREJUDICE” (APPELLANT’S POINT II) 20 A. Introduction 20 B. Respondent’s Evaluation of the “Relevant” Plea-Bargaining Factors Demonstrates that Mr. Adams Suffered Actual Prejudice. 21 C. More Meritless Arguments 24 D. Summary 26 REPLY TO RESPONDENT’S ARGUMENTS ON THE “NEED FOR A HEARING” (APPELLANT’S POINT III) 27 CONCLUSION 29 i TABLE OF AUTHORITIES State Cases Cowles v Brownell, 73 NY2d 382 (1989) ..................................................................................... 14, 15 Matter of Haggerty v Himelein, 89 NY2d 431 (1997) ............................................................................................... 9 Matter of Schumer v Holtzman, 60 NY2d 46 (1983) ...................................................................................... 8, 9, 12 People v Carncross, 14 NY3d 319 (2010) ............................................................................................... 6 People v Clairborne, 29 N.Y.2d 950 (1972) ...........................................................................................25 People v Fielding, 158 NY 542 (1899) .............................................................................................3, 4 People v Fisher, 18 NY3d 964 (2012) ............................................................................................... 4 People v Gomberg, 38 NY2d 307 (1975) ............................................................................................... 6 People v Gray, 86 NY2d 10 (1995) ...............................................................................................18 People v Jones, 85 NY2d 998, 999 (1995) .....................................................................................24 People v Keeton, 74 NY2d 903 (1989) .............................................................................................10 ii People v Konstantinides, 14 NY3d 1 (2009) ................................................................................................... 7 People v Leahy, 72 NY2d 510 (1988) ............................................................................................... 8 People v McDonald, 68 NY2d 1 (1986) ................................................................................................... 6 State Statutes County Law § 700 (7) ..............................................................................................27 County Law § 701 (1) ................................................................................. 12, 19, 26 CPL 470.05 ..............................................................................................................18 1 REPLY TO RESPONDENT’S “COUNTER-STATEMENT OF THE QUESTION INVOLVED” In his main brief, Mr. Adams raised three legal issues, addressing each issue under a separate Point. Respondent, however, has elected to combine all issues into one Point. To maintain clarity and focus, Mr. Adams will reply to the Respondent’s arguments using the original issue format: Point I (Appearance of Impropriety) Point II (Actual Prejudice) Point III (Need for a Hearing) 2 REPLY TO RESPONDENT’S “COUNTER-STATEMENT OF THE FACTS” Respondent states that the complainant (Hon. Maija Dixon) “was a Rochester City Court judge, but was assigned to Monroe County Family Court as an Acting Family Court judge” making it “not clear if Dixon was handling criminal cases in City Court at the times associated with this case” (Respondent’s Brief at 5). Respondent never argued this “point” before the motion court. For purposes of the special prosecutor motion, both parties treated Judge Dixon as a Rochester City Court judge handling criminal cases at the time of the motion. Respondent’s subsequent footnote reference to this alleged ambiguity (Respondent’s Brief at 31, n 7) should be disregarded. This “issue” was unpreserved. For some reason, Respondent notes that the Monroe County Public Defender did not request assigned counsel to handle Mr. Adams’ appeal (Respondent’s Brief at 10, n 3). It should be noted also that Mr. Adams did not move to have a special prosecutor assigned to represent the People on this appeal. The Appeals Bureaus of both Offices rely upon the record developed at the trial court level. On appeal, the same conflict of interest concerns arising from discretionary decision-making and direct contact with the complainant are not present. 3 REPLY TO RESPONDENT’S ARGUMENTS ON THE “APPEARANCE OF IMPROPRIETY” (APPELLANT’S POINT I): A. Introduction Respondent never disputes that a defendant in a criminal case, both individually and as a member of the general public, has a due process right to be prosecuted by an impartial representative of the People of the State of New York. Instead, Respondent simply repeats, again and again, that public prosecutors are presumed to be impartial. Respondent does not discuss the special role played by a public prosecutor in the criminal justice system. Respondent never acknowledges that a public prosecutor has a quasi-judicial duty to act fairly, balancing individual justice with equal treatment for similarly-situated defendants. Instead, Respondent fights, tooth and nail, to maintain unfettered, unreviewable, no-need-to-explain prosecutorial discretion. Respondent treats the “presumption of impartiality” as virtually un- rebuttable and immune from any challenge. For example, Respondent cites People v Fielding (158 NY 542, 547 [1899]) for the proposition that “a prosecutor is presumed to act impartially in the interest only of justice” (Respondent’s Brief at 25). In Fielding, however, more than a century ago, this Court reversed the defendant’s conviction because the prosecutor 4 cast “aside the impartiality that should characterize his official action” (158 NY at 547). This problem persists (see People v Aaron Fisher, 18 NY3d 964 [2012]). Respondent fails to discuss the key fact on this appeal - that a mandatory legal relationship connects a County District Attorney and each Judge presiding over criminal cases within the same county. Analytically, this relationship can be viewed as a bright yellow cord, created by statute and constitution, connecting the county prosecutor and each criminal court Judge. If the Judge becomes a complainant, an obvious problem develops. Even when the Judge removes his or her black robe and sits in the witness chair, the bright yellow cord is still there. The defendant can see it. The general public can see it. Unless visually-impaired, the prosecutor should be able to see it. But here, Respondent blithely claims that “there was not an appearance of impropriety” (Respondent’s Brief at 21). This figurative image (a bright yellow cord) helps to illustrate the “appearance of impropriety” problem created when a Judge also becomes a complainant. Standing alone, the mandatory legal relationship between the County District Attorney and the Judge-Complainant adversely impacts the prosecutor’s image of complete impartiality. As argued in the main brief, the general public, under these circumstances, would be justified to question the County District Attorney’s ability or desire to exercise his or her tremendous prosecutorial 5 discretion in a totally neutral and disinterested manner. Accordingly, in this particular situation, to maintain public confidence in the criminal justice system, if the defendant (or the County District Attorney) moves for a special prosecutor, the request should be granted. B. Per Se Disqualification is a Workable Rule. Respondent implores this Court not to adopt a per se rule of disqualification for the appearance of impropriety. Respondent claims this “hard and fast rule” would be rigid and “unworkable” for three reasons (Respondent’s Brief at 33-35). Before addressing each reason, Mr. Adams would point out that the other sixty-one County District Attorneys in New York may take a different view. Mr. Adams does not concede that Monroe County speaks for all other counties. Further, Mr. Adams would note that Respondent overstates the proposed rule. As stated in Appellant’s main brief, “the per se conflict of interest rule would be as follows: When an active judge, presiding over criminal cases in a particular county, is the complainant in a criminal action against a defendant in that same county, upon request, a special prosecutor should be appointed” (Appellant’s Brief at 26). The proposed rule does not mandate disqualification in all cases. At the plea-bargaining stage, disqualification would only occur if one side or the other requests it. In practical terms, negotiated pleas could and would still take 6 place. If neither side has any problem with a proposed settlement of the case, then the conflict of interest would be waived or forfeited by the entry of a voluntary guilty plea. In theory, a Judge-Complainant case could even proceed to trial with a same-county prosecutor, but only if the defendant expressly waives the conflict (compare People v Gomberg, 38 NY2d 307 [1975] [the conflict of interest arising from an attorney’s joint representation of co-defendants can be expressly waived]; contrast People v McDonald, 68 NY2d 1, 7-8 [1986] [“defense counsel’s concurrent representation of defendant and the [victim] company constituted a conflict of interest which, in light of the Trial Judge’s failure to inquire into defendant’s knowledge of and consent to the potential risks involved, denied the defendant effective assistance of counsel]). In theory, a trial court, exercising its own discretion, could refuse to accept the waiver in order to safeguard against the appearance of impropriety (thus requiring a Judge-Complainant case to be prosecuted by someone with no legal obligation to appear before the Judge-Complainant) (compare People v Carncross, 14 NY3d 319, 323 [2010] [“In protecting a defendant’s Sixth Amendment rights, a trial court may on occasion properly disqualify the attorney of a defendant’s 7 choosing due to that attorney’s conflicts, actual or potential, even in the face of defendant’s waiver of such conflicts”]). Strictly speaking, the theoretical applications of the proposed per se conflict of interest rule need not be addressed. It should be made clear, however, that Mr. Adams is not proposing a per se error rule that would require automatic reversal in every Judge-Complainant case (compare People v Konstantinides, 14 NY3d 1, 14 [2009] [declining to create a rule of per se error in another conflict of interest context]). With the consent of the trial court, the per se conflict of interest could be waived by the People and the defendant. Respondent’s First Argument Against a Per Se Rule Respondent gravely warns that “an automatic disqualification mandate would totally eviscerate the moving burdens imposed on a defendant to win a special prosecutor thereby rendering some of this Court’s decisions superficial” citing Leahy, Schumer and Haggerty (Respondent’s Brief at 33). Ignoring any public goal other than preserving “a District Attorney’s broad constitutional and statutory prosecutorial authority,” Respondent argues that only a case-by-case analysis will safeguard prosecutorial discretion and avoid “forum-shopping for a new prosecutor by disgruntled defendants” (Respondent’s Brief at 33-34). 8 Respondent never discusses how public confidence in the fairness of the criminal justice system might be harmed by allowing Respondent, over Mr. Adams’ objection, to prosecute this case. Respondent never explains how disqualifying the MCDA for the appearance of impropriety would render “some of this Court’s decisions superficial.” Contrary to Respondent’s dire warnings, the legal sky will not fall. People v Leahy (72 NY2d 510 [1988]), cited repeatedly by Respondent, had nothing to do with resolving any conflict of interest issue. The Nassau County District Attorney sought a special prosecutor. The court appointed a private attorney. The appointment order gave the special prosecutor authority to prosecute five named persons. For this Court, the narrow question was whether the special prosecutor had authority to prosecute someone not named in the appointment order. This Court said no (72 NY2d at 516). Matter of Schumer v Holtzman (60 NY2d 46 [1983]) involved an attempt by the Kings County District Attorney, without a court order, to appoint a private attorney as a special prosecutor. This Court voided the attempt as “an unlawful delegation of the power to direct and control a criminal prosecution” (60 NY2d at 54). This Court did not decide whether an appearance of impropriety would disqualify the county prosecutor as a matter of law. The application for 9 disqualification was based upon the county prosecutor’s public statements. DA Holtzman had voiced concern that prosecuting her former political opponent (Schumer) might provoke accusations that she was motivated by personal bias. This Court denied Schumer’s application to disqualify Holtzman (finding that it was premature) and did not reach the merits (whether an appearance of impropriety would disqualify Holtzman) (60 NY2d at 54-56). Matter of Haggerty v Himelein (89 NY2d 431 [1997]) was not a conflict of interest case. The Cattaraugus County District Attorney appointed the Attorney- General and four of his assistants as Assistant District Attorneys to assist with the handling of a homicide case. This Court found no unlawful transfer of power to the Attorney-General because the County District Attorney had retained ultimate prosecutorial authority. The Leahy special prosecutor tried to exercise authority that he did not possess (indicting someone not named in the appointment order). The Schumer prosecutor tried to exercise authority she did not possess (appointing a private attorney as a special prosecutor without a court order). The Haggerty prosecutor stayed within the scope of his authority. Contrary to Respondent’s argument, adopting a per se conflict of interest rule here will not cause any of the above decisions to become “superficial.” 10 Further, People v Keeton (74 NY2d 903, 904 [1989]), another case heavily- cited by respondent, will not be affected. Keeton involved cross-claims of assault. This Court found no actual prejudice to the defendant and did not reach the defendant’s appearance of impropriety claim because the defendant was not called as a witness for the People (74 NY2d at 904 [“we need not consider whether there is any merit in [defendant’s] contention that his role as a witness created an impermissible conflict for the District Attorney”]). Respondent’s Second Argument Against a Per Se Rule Respondent argues that Mr. Adam’s “emphasis on the public viewpoint fails to recognize that the public elected their District Attorney” (Respondent’s Brief at 34). Respondent claims that it seems “logical that the public would have more confidence in their chosen official than a judicially appointed one” (Respondent’s Brief at 34). Respondent does not explain why the public would have more confidence in the impartiality of the Monroe County District Attorney as opposed to the Wayne County District Attorney when the Monroe County DA has a legal duty to appear before the Judge-Complainant and the Wayne County DA does not. Respondent does not dispute the fact that each elected District Attorney represents the People of the State of New York, not simply the people of his or her own county. 11 Respondent does not claim to have greater competence or ability to prosecute crimes than the elected District Attorneys from other counties. In passing, Respondent also suggests that a special prosecutor costs additional taxpayer funds, ignoring the costs incurred by refusing to plea-bargain (see Appellant’s Brief at 28-30). Respondent’s Third Argument Against a Per Se Rule Respondent’s slippery-slope/floodgates argument is meritless (Respondent’s Brief at 34-35). The County District Attorney has no constitutional duty to prosecute criminal cases before a criminal court judge’s secretary, law clerk, court staff, family or friends. When a criminal court judge steps down or retires, the bright yellow cord is cut. No similar legal bond connects the County District Attorney with civil judges. The occasional CPLR Article 78 proceeding or habeas corpus petition that may come before a civil judge (who has filed a same-county criminal complaint) can be transferred (if necessary) to a different judge. The per se disqualification at issue here does not occur when any of these other persons file same-county criminal complaints. Respondent also wrongly argues that a per se disqualification rule would give disgruntled defendants “free reign to chose [sic] a new prosecutor” (Respondent’s Brief at 18-19). First, a defendant’s dissatisfaction with a plea 12 offer, standing alone, does not disqualify a county prosecutor. Second, the defendant cannot pick-and-choose the special prosecutor. The court decides. The defendant does not have “free reign.” C. Per Se Disqualification Would Promote the “Separation of Powers” Doctrine. Citing Matter of Schumer v Holtzman (60 NY2d 46, 55 [1983]), Respondent makes a passing reference to “separation of powers considerations” (Respondent’s Brief at 22), but does not discuss the facts of Schumer. In Mr. Adams’ case, the appointment of a special prosecutor would actually advance the underlying policy of the separation of powers doctrine by cutting off the potential for a Judge-Complainant (a judicial officer) to improperly influence the exercise of discretion by a County District Attorney (an executive / quasi- judicial officer). In Schumer, the “separation of powers” considerations included a concern that the Kings County District Attorney appointed a special prosecutor without a court order (usurping the authority of the judicial branch) (County Law § 701 [1]) and a concern that the appointed prosecutor was a non-elected private attorney (rather than being an elected County District Attorney), Here, the first Schumer concern was not present. Mr. Adams properly applied for a special prosecutor in superior court. Alleging the “appearance of 13 impropriety,” Mr. Adams asked for a special prosecutor based upon the uncontested fact that Respondent was legally required to prosecute criminal cases before the Judge-Complainant and, at the same time, was handling her own criminal complaint. No evidentiary hearing was necessary to establish these uncontested allegations. Alleging “actual prejudice,” Mr. Adams also asked for a special prosecutor based upon allegations that Respondent was treating Mr. Adams more severely than similarly-situated defendants (suggesting that the Judge- Complainant had undue influence with Respondent). Here, the second Schumer “separation of powers” concern was never actually encountered. Mr. Adams requested the appointment of either a District Attorney from another county or a private attorney to act as a special prosecutor. With a Wayne County Judge presiding over the case and a Wayne County attorney defending Mr. Adams, the Wayne County District Attorney, an elected constitutional officer, would appear to have been the most logical choice for a special prosecutor. But here, unlike Schumer, appointing a special prosecutor would support the “separation of powers.” Mr. Adams alleged that Respondent was unduly influenced by Judge Dixon. In effect, the judicial branch (Judge Dixon) was unduly influencing or controlling the exercise of discretion by the executive branch 14 (Respondent). Importantly, Judge Dixon had advised defense counsel that she was “not willing to reduce the charges” and “wanted to go to trial” (R 55). Even though Respondent denies any undue influence and even though, strictly speaking, Respondent interacted with Judge Dixon in her capacity as a private citizen, the uncontested fact remains that Respondent and Judge Dixon were constitutionally and statutorily bound together at the same time Respondent was prosecuting Judge Dixon’s complaint. To maintain the separation of powers, a special prosecutor should have been appointed. D. Per Se Disqualification Would Serve the General Public Better Than a Case-By-Case Approach. Respondent cites Cowles v Brownell (73 NY2d 382, 390 [1989] [Titone concurring]) for the unremarkable proposition that “prosecutors . . . have been accorded considerable discretion within their own sphere of responsibility” (Respondent’s Brief at 22). But the People omit the full sentence (which explains that a prosecutor’s primary duty is “to ensure that, within the practical limits of the State’s resources, the people are zealously and ethically represented in the criminal courts) (73 NY2d at 390). In Cowles v Brownell, a former criminal defendant brought a civil action for false arrest against a police officer. This Court held that “[t]he prosecutor’s decision to condition dismissal of the criminal charges against plaintiff upon 15 relinquishment of his right to seek civil damages for defendant’s alleged misconduct” was against public policy (73 NY2d at 386). “The record in this case demonstrates that the practice of requiring the release of civil claims in exchange for dismissal of charges simply to insulate a municipality or its employees from liability can engender at least an appearance of impropriety or conflict of interest. The integrity of the criminal justice system mandates that an agreement made in the circumstances presented not be enforced by the courts” (73 NY2d at 386). Such an agreement “does not foster public confidence that the justice system operates evenhandedly” (73 NY2d at 387). In a concurring opinion, Judge Titone recommended a general rule of unenforceability rather than a case-specific approach: “The majority’s effort to wrestle the disputed facts presented here into manageable form points up some of the more fundamental difficulties with its insistence on a case-specific approach to determining the validity of these release/dismissal agreements. Obviously, any inquiry into the motives of parties to an agreement is problematic, since it invites post hoc rationalizations and, in some instances, testimony that is tailored to the contours of the case law. Further, the case-by-case approach is unsatisfactory because it would require the courts to second-guess the soundness, legitimacy and probity of the prosecutor’s expressed rationale, bringing the courts into direct conflict with the well-established rule that, as elected law enforcement officials, prosecutors have virtually unreviewable discretion to act within the proper sphere of their authority” (73 NY2d at 392-393). Adopting a per se disqualification rule in Judge- Complainant cases would avoid such problems. Notably, the prosecutor here specifically affirmed in his motion papers that “[i]n no way has the victim’s 16 occupation or position been a factor in determining how this matter has been handled or evaluated by myself or my office” (R 58). A per se disqualification rule would provide clearer guidance to courts, prosecutors and defendants and better serve the general public. E. Respondent’s “Lack of Preservation” Argument is Meritless. Respondent wrongly argues that Mr. Adams did not preserve his “primary appellate contention that an appearance of impropriety, alone, was sufficient to compel disqualification” of the Monroe County District Attorney (“MCDA”) (Respondent’s Brief, p.19). Focusing strictly on paragraphs contained in the “Notice of Motion” and “Request for Relief” sections of Mr. Adams’ motions (alleging “actual prejudice by, and conflict of interest of, the County District Attorney’s Office”), Respondent argues that Mr. Adams did not adequately raise the “appearance of impropriety” as a specific ground for disqualifying the MCDA. This argument immediately collapses, because Respondent must admit that Mr. Adams, in his motion papers, specifically alleged the “appearance of impropriety” as a ground for disqualifying the MCDA. While Respondent tries to dismiss this specific allegation as being only a “quick reference” (Respondent’s Brief at 19), it is Respondent’s “quick reference” argument that should be dismissed. 17 In the motion court, Mr. Adams argued that that the MCDA should be disqualified “on the basis of a conflict of interest arising out of the ongoing relationship between Judge Dixon and the Monroe County District Attorney’s Office” (R 53). The inherent and rather obvious problems caused by this mandatory legal relationship were fully identified for the motion court. Relevant excerpts from Mr. Adams’ motion papers are set forth in Mr. Adams’ main brief (pages 9-14). Mr. Adams pointed out that the “District Attorney’s Office, like the Public Defender’s Office, appears before Judge Dixon on dozens of cases each day, and for the same reasons would prefer not to engender any hostility from her” (R 54). Mr. Adams specifically alleged that there was a conflict of interest based upon an “appearance of impropriety” in violation of Canons 5 and 9 of the Code of Professional Responsibility (R 55). The People had a full and fair opportunity to contest Mr. Adams’ arguments. Notably, Mr. Adams identified Canon 5 (“A Lawyer should exercise independent professional judgment on behalf of a client”) and Canon 9 (“A Lawyer should avoid even the appearance of professional impropriety”) as the “ethical obligations” that were violated by the prosecutor. These Canons were cited in paragraph 14 of Mr. Adams’ motion for a special prosecutor (R 55). Notably, the MCDA, through his assistant, did not treat Mr. Adams’ argument as merely a 18 “quick reference.” Instead, with righteous indignation, the prosecutor responded “I strenuously deny and take exception to the defendant’s contention in paragraph 14 that I have violated my ethical obligations, or his contention in paragraph 15 that I personally, or acting [sic] ‘under the influence’ of someone, have [sic] an ‘ax to grind against the defendant’”) (R 61) (emphasis added). Clearly, Mr. Adams raised two separate grounds for disqualifying the MCDA: “actual prejudice” (based upon the Judge-Complainant’s undue influence over the MCDA’s exercise of prosecutorial discretion) and the “appearance of impropriety” (based upon public perception that the relationship between the MCDA and the Judge-Complainant could unduly influence the exercise of prosecutorial discretion). Respondent also wrongly claims that the lower appellate court specifically found Mr. Adams’ “appearance of impropriety” argument to be unpreserved. Actually, the lower appellate court did not find that any specific issue was unpreserved. Instead, the court mentioned “preservation” generically in a throw- away sentence near the end of its Decision and Order (“Lastly, to the extent that any of the nuanced arguments raised by Defendant herein are raised for the first time, they were not preserved for appellate review,” citing CPL 470.05; People v Gray, 86 NY2d 10 [1995]) (R 9). Because Mr. Adams’ “appearance of 19 impropriety” argument was raised in the motion court, it was preserved for appellate review. F. Summary Respondent appears strangely blind to the possibility that members of the general public could question the propriety of a county prosecutor handling the criminal complaint of a criminal judge within the same county. Apparently, a bright line rule is needed. On balance, the right of Mr. Adams and the general public to have a prosecutor with no “appearance of impropriety” outweighs Respondent’s right to prosecute this non-violent misdemeanor. Mr. Adams respectfully requests an order reversing his conviction and directing the Monroe County Court to appoint a special prosecutor (County Law § 701 [1]). 20 REPLY TO RESPONDENT’S ARGUMENTS ON “ACTUAL PREJUDICE” (APPELLANT’S POINT II): A. Introduction Respondent fails to discuss the vital importance of plea-bargaining within the criminal justice system or the fundamental need for similar treatment of similarly-situated defendants. Instead, Respondent simply claims (1) that the proper plea-bargaining factors were considered and (2) that Mr. Adams was not treated more severely. On Respondent’s second claim, the motion court should have conducted an evidentiary hearing (see Point III). On Respondent’s first claim, however, the motion court should have ruled, as a matter of law, that Mr. Adams suffered actual prejudice because Respondent did not properly consider all relevant plea-bargaining factors. Respondent states that Mr. Adams “was offered a plea deal, just not one he liked” (Respondent’s Brief at 28). This is not accurate. There was no plea deal. Respondent refused to make any “reduced-plea” offer (R 58). At any time, Mr. Adams could have independently pursued a sentence bargain with the trial court. Sentencing was never the issue. 21 B. Respondent’s Evaluation of the “Relevant” Plea-Bargaining Factors Demonstrates that Mr. Adams Suffered Actual Prejudice. Respondent identifies input from the Judge-Complainant and the “unusual good strength of the case” as the two primary factors supporting Respondent’s no- reduced-plea-offer stance (Respondent’s Brief at 28). On the “seriousness” of the offense, Respondent ignores key undisputed facts showing that Judge Dixon’s alleged “fear” of Mr. Adams had no objective factual basis. Finally, Respondent unlawfully refused to consider Mr. Adams’ pristine record as a relevant plea- bargaining factor. The Judge’s “Input” Strictly speaking, the Judge-Complainant’s input involved two sub-factors: (1) her willingness to co-operate and (2) her personal views on an appropriate disposition of the case. The first sub-factor was virtually meaningless. In the motion court, Respondent focused on the first sub-factor. But whether the Judge- Complainant wanted to testify or not, most assuredly, given her status as a judge, she would have responded to a subpoena. No material witness order would have been necessary. In reality, the second sub-factor (the Judge-Complainant’s own personal opinion on how the prosecutor’s discretion should be exercised) was the controlling factor. While not a meaningless factor, a complainant’s private opinion 22 should not be a primary concern. A public prosecutor should pursue the general public interest (not champion a complainant’s private interest). Before the motion court, Respondent made a very revealing statement with troubling implications. Attempting to explain his no-reduced-plea-offer stance, the prosecutor stated that a reduced-plea offer “might be adequate in a situation with the same nature of evidence but where the victim refused to cooperate or assist with the prosecution of the matter” (R 61). Carried forward, this logic suggests that in a “strong” criminal case (even a non-violent misdemeanor), if the complainant is willing “to cooperate or assist with the prosecution,” then no reduced-plea offer will be made. The “Strength” of the Case Respondent’s frequent references to the strength of the People’s proof are puffed-up in at least two ways. First, Respondent repeatedly describes Mr. Adams’ statement to the police (simply acknowledging that he had sent text messages to the complainant) as a “confession.” While the statement qualified as an admission to the actus reus element of Aggravated Harassment, the mens rea element (an intent to harass, annoy, threaten or alarm) was a contested trial issue. Second, Respondent’s proof of the actus reus element did not become significantly stronger because Respondent came into possession of photographs of the text messages. 23 The cell-phone text messages were already saved, in electronic format, by the complainant. The “Seriousness” of the Offense Respondent ignores Mr. Adams’ argument that the “seriousness” of the text messages must be down-graded because the messages contained no threats of physical harm and because the language, if personally spoken to the complainant (publicly or privately) would have been non-criminal conduct. Instead, Respondent tries to up-grade of the “seriousness” of the Aggravated Harassment charge by describing, in hyperbolic language, Mr. Adams’ alleged pre- incident conduct (Respondent’s Brief at 3-4 [“alarming behavior,” “earlier tirades,” “prior irrational behavior”). Most importantly, however, Judge Dixon’s alleged “fear” of Mr. Adams (R 59) had no objective factual basis. Respondent never disputes (1) that Judge Dixon had known Mr. Adams for ten years; (2) that she never told Mr. Adams, at any time, to stop contacting her; (3) that she actually gave Mr. Adams permission to attend her son’s Pop Warner football game; and (4) that Mr. Adams, after his arrest, had no contact with her (R 50-55, 64-65, 72. 91- 92). 24 Mr. Adams’ Pristine Record While Respondent acknowledges that the prosecutor argued to the motion court that Mr. Adams’ pristine record was irrelevant for plea-bargaining purposes, Respondent does not make this same argument on appeal. And rightly so. As argued in the main brief, this position is wrong as a matter of law. In and of itself, this error demonstrates actual prejudice to Mr. Adams and should merit a reversal of his conviction. C. More Meritless Arguments Respondent erroneously argues that Mr. Adams cannot claim any actual prejudice based upon Respondent’s failure to make a reduced-plea offer because no proof in the record established that Mr. Adams would have accepted a reduced- plea offer (Respondent’s Brief at 30). First, the People never raised this argument in the motion court. Consequently, Mr. Adams was given no opportunity to respond. Therefore, for appellate purposes, this argument was unpreserved (People v Jones, 85 NY2d 998, 999 [1995]). Second, this argument is logically backward. The error in Mr. Adams’ case arises from the lack of any reduced-plea offer. The People cannot now defend this 25 lack of a reduced-plea offer by arguing a lack of acceptance. There can be no acceptance without the predicate of an offer. Nothing else makes sense. Third, the strong and natural inference to be drawn from a defense attorney’s very specific plea and sentence proposal is that the attorney has discussed it with the client and was authorized to proceed (R 55). Respondent erroneously argues that there was no proof that Mr. Adams could have given a factual colloquy to a reduced charge (Respondent’s Brief at 29). Again, this argument is unpreserved and logically-backward. Further, a plea to a lesser offense does not require a factual colloquy (People v Clairborne, 29 NY2d 950, 951 [1972] [“A bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed”]). Finally, mixing apples and oranges, Respondent faults Mr. Adams for not expressly acknowledging that he received a fair trial (Respondent’s Brief at 26). The short, obvious answer to this criticism is that any issue concerning the “fairness” of the jury trial is completely separate from the pre-trial special prosecutor issue. Saying that the orange was fresh does not address whether the apple was rotten. The jury trial (fair or unfair) did not cure the appearance of impropriety or eliminate the actual prejudice suffered by Mr. Adams. 26 D. Summary As a matter of law, Mr. Adams suffered actual prejudice (no reduced-plea offer) derived from a demonstrated conflict of interest (the legal bond between the Monroe County District Attorney and the Judge-Complainant). For the reasons stated above and in the main brief, Mr. Adams respectfully requests an order reversing his conviction and directing the Monroe County Court to appoint a special prosecutor (County Law § 701 [1]). 27 REPLY TO RESPONDENT’S ARGUMENTS ON THE “NEED FOR A HEARING” (APPELLANT’S POINT III): The purpose of an evidentiary hearing would be to resolve a contested issue – whether the Monroe County District Attorney treated Mr. Adams more severely than similarly-situated defendants. While Mr. Adams may bear the ultimate burden of persuasion on this issue, he cannot bear the burden of going forward at the evidentiary hearing. For the People to prevail on the merits, they must identify other defendants who were similarly-situated to Mr. Adams (defendants with no criminal record charged with vulgar text messaging) and who were similarly-treated (given no reduced plea offer). Mr. Adams affirmatively alleged that no such persons exist. His original attorney alleged that, in twelve years of criminal practice in Monroe County, he had never seen such a person (R 29). Mr. Adams cannot be expected to produce evidence of these non-existent persons to disprove his own claim. Simply stated, Mr. Adams does not possess the “facts” that were alleged by Respondent (that Respondent did not treat Mr. Adams more severely than other similarly-situated defendants because Respondent can show that other similarly- situated defendants were also refused reduced-plea offers by Respondent). Again, 28 Respondent affirmed that “[t]his case is being treated no differently than any other with similar facts and circumstances” (R 60). Mr. Adams respectfully requests an order reversing his conviction, remitting this matter to Monroe County Court and directing the Monroe County District Attorney to go forward at an evidentiary hearing with proof that Mr. Adams “was treated no differently” from other similarly-situated defendants. The People would possess the information necessary to justify their assertion of equal treatment of defendants (see County Law § 700 [7] [“The district attorney shall keep and preserve all records now or hereafter in his care or custody or under his control and all records, books and papers relating to the functioning of his office or the performance of his duties”]). 29 CONCLUSION THIS COURT SHOULD REVERSE KEITH ADAMS’ CONVICTION AND ORDER THE MONROE COUNTY COURT TO APPOINT A SPECIAL PROSECUTOR. ALTERNATIVELY, THE MATTER SHOULD BE REMITTED TO THE MONROE COUNTY COURT FOR AN EVIDENTIARY HEARING ON THE ISSUE OF “ACTUAL PREJUDICE.” Dated: October 15, 2012 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093