The People, Respondent,v.John F. Haggerty, Jr., Appellant, et al., Defendant.BriefN.Y.June 3, 2014To be Argued by: PAUL SHECHTMAN (Time Requested: 30 Minutes) APL-2013-00199 New York County Indictment No. 2598/10 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – JOHN F. HAGGERTY, JR., Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT JOHN F. HAGGERTY, JR. PAUL SHECHTMAN ZUCKERMAN SPAEDER LLP Attorneys for Defendant-Appellant 1185 Avenue of the Americas, 31st Floor New York, New York 10036 Tel.: (212) 704-9600 Fax: (212) 704-4256 Date Completed: January 13, 2014 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................................... ii REPLY BRIEF .......................................................................................................... 1 CONCLUSION .......................................................................................................... 8 1 TABLE OF AUTHORITIES PAGE CASES Billingy v. Blagrove, 84 A.D.3d 848 (2d Dept. 2011) .............................................. 2 Carter v. Pitcher, 87 Hun 580 (1895) ........................................................................ 8 Chamberlain v. Amato, 259 A.D.2d 1048 (4th Dept. 1999) ..................................... 1 Grieshaber v. City of Albany, 279 A.D.2d 232 (3d Dept. 2001) .............................. 2 Harmon v. Matthews, 27 N.Y.S.2d 656 (Sup. Ct. Bronx Co. 1941) ........................ 2 Mahaney v. Carr, 175 N.Y. 454 (1903) .................................................................... 4 Matter of La Rue v. Crandall, 254 A.D.2d 633 (3d Dept. 1998) ........................... 1-2 People v. Dicks, 100 A.D.3d 528 (1st Dept. 2012) ................................................... 1 People v. Hamilton, 304 A.D.2d 500 (1st Dept. 2003) ............................................. 1 People v. Torres, 118 A.D.2d 821 (2d Dept. 1986) .................................................. 2 United States v. White, 223 F.2d 674 (2d Cir. 1955) ................................................ 2 STATUTES & RULES Fed. R. Evid. 1003 ..................................................................................................... 2 OTHER AUTHORITIES Barker & Alexander, Evidence in New York State and Federal Courts, §10.1 ........................................................................................................ 1, 2, 4 Martin et al., New York Evidence Handbook, § 1 0.2.3 ............................................. 5 Prince Richardson on Evidence, § 10-106 ................................................................. 5 Weinstein's Evidence Manual §9.01(2) .................................................................... 3 .. 11 This reply brief is respectfully submitted in further support of John Haggerty's appeal to this Court. Several points in the People's submission warrant a response. 1. The People's principal argument is that the best evidence rule does not apply because Marjorie Friday, the Willkie Farr lawyer who drafted the Bloomberg trust agreement, "was not called to establish the terms of the Mayor's trust [but] to testify from her personal knowledge that the Mayor owned the money in the trust account -- a fact she knew independently of the terms of the trust." (P. Br. 31 ). But that is not true. Ms. Friday told the jury that although the trust was a separate legal entity, Mayor Bloomberg could "take any amount of property at any time" and could authorize a political contribution. (A. 146, A. 150). Plainly, that is testifying about the terms of a written agreement. See Barker & Alexander, Evidence in New York State and Federal Courts, §10.1 at 406 (the contents of a "dispositive instrument" must be proved by the writing unless a foundation is laid for secondary evidence ).1 Many of the cases that the People cite have no relevance to the issue presented on appeal. See People v. Dicks, 100 A.D.3d 528 (1st Dept. 2012)(copies of tapes properly admitted where contents not in dispute); People v. Hamilton, 304 A.D.2d 500, 501 (1st Dept. 2003)(''the court properly admitted a copy of the contract that had been faxed to the prosecutor by the rental company"); Chamberlain v. Amato, 259 A.D.2d 1048 (4th Dept. 1999)(court erred in refusing to admit copy of promissory note where plaintiff "satisfactorily accounted for his inability to produce the original"); Matter of La Rue v. Crandall, 254 A.D.2d 633 (3d Dept. 1998)( court properly admitted photocopy of letter especially smce 1 2. The People, of course, are correct that the best evidence rule does not apply merely because a fact has been reduced to writing if it can be "proved independently by other competent evidence." (P. Br. 33). For example, the best evidence rule does not require the production of a 911 tape if the operator can testify to what the caller told to her. Grieshaber v. City of Albany, 279 A.D.2d 232 (3d Dept. 2001 ). In such an instance, the "conversation exists independent of the recording." See Barker & Alexander, supra, §10.1 at 1108 n.8? But the contents of a trust agreement do not exist independent of the document, because the agreement, unlike the 911 call, is an operative legal instrument. I d.; see also defendant "admitted that he wrote it"); Billingy v. Blagrove, 84 A.D.3d 848 (2d Dept. 2011 )(court erred in "refus[ing] to consider the reproduction of the defendant's affidavit on the ground that the defendant's opposition papers did not utilize protruding exhibit tabs"). Here, neither an original nor a copy· was introduced. Cf. Fed. R. Evid. 1003 ("a duplicate is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original .... "). 2 The issue often arises in the context of a defendant's oral confession which is transcribed. The confession may be recounted by a witness who heard it dictated. See People v. Torres, 118 A.D.2d 821, 822 (2d Dept. 1986)("[s]ince what was sought to be proven by the testimony was the content of a conversation, a fact existing independently of the tape recording, the best evidence rule was inapplicable and the conversation could be testified to by anyone who heard it"); United States v. White, 223 F.2d 674, 675 (2d Cir. 1955)("[s]ince the matter at issue regarding the confession was not the contents of the tape recording but what the appellant had said, the best evidence rule did not require that the recording be produced and oral testimony of what had been said was admissible"); Harmon v. Matthews, 27 N.Y.S.2d 656, 662 (Sup. Ct. Bronx Co. 1941)(witness who heard testimony at a former trial may testify to it, "and the stenographer's minutes are not the best evidence"). Here, in stark contrast, the issue was the terms of the agreement. 2 Weinstein's Evidence Manual §9.01(2)("[s]ome transactions, such as wills, contracts and deeds, as a matter of substantive law take the form of a writing and to prove their content necessarily involves the content of a writing and brings the best evidence rule into play")( emphasis added). Where the contents of a trust agreement are at issue, its introduction (or excused absence) is required. 3. In effect, the People ask this Court to adopt a drafter's exception to the best evidence rule -- one that would allow the drafter of a will, deed or contract to give oral testimony as to its terms. See P. Br. 35 ("[h]aving drafted the document creating the trust, Friday obviously had personal knowledge that trust corpus was indeed Bloomberg's and not someone else's."). That no court has found such an exception is unsurprising. If a drafter of a dispositive legal instrument could give oral testimony about its terms (without frrst explaining its absence), the best evidence rule would be eviscerated; the exception would swallow the rule. 3 4. In several places, the People suggest that the best evidence rule should give way because ''the defense could have subpoenaed the will after the People declined to do so." (P. Br. 43); see also id. at 40 (the defendant "could have asked the court to issue a subpoena"). But, here too, the People cite no case in 3 The People would broaden the "exception" beyond the drafter to the parties to an agreement. See P. Br. 36 (''the Mayor himself could just as easily have testified that he owned the corpus of the trust"). 3 support of a you-could-have-subpoenaed-it exception. Just the opposite is true: the "burden is on the proponent to satisfy the best evidence rule, and not on the adversary to call for such satisfaction." Barker & Alexander, supra, §10.2 at 411. The venerable case of Mahaney v. Carr, 175 N.Y. 454 (1903), is on point. There, the plaintiff tried to introduce oral testimony as to the contents of a written agreement that gave a child certain property. This Court held that the attempt was "a plain violation of one of the most elementary rules of evidence." ld. at 461-62. In response to plaintiffs argument that defendant's counsel could have "call[ ed] for the papers," the Court wrote this: The answer of the learned counsel for the plaintiff to this objection is, substantially, that the defendant's counsel omitted to call for the papers. He was under no obligation to do so. The plaintiffs counsel was bound to prove his case by competent evidence, and when it appeared that the transaction was in writing it was incumbent upon him to produce it. or show that it was lost or destroyed. I d. at 462 (emphasis added). 5. The People also argue that the best evidence rule does not apply because ''the terms of the trust were not in dispute and sought to be proven." (P. Br. 34). As they put it, "the trust document itself was never at issue in this case [because] the trial was about whether defendant stole money from the Mayor." ld. (emphasis added). But that misses the point. The contents of the document were at issue because the question was whether the money was stolen from the Mayor or 4 from a trust that he did not control. To be sure, the issue emerged late in the trial, but that is hardly uncommon. See A. 117 (the prosecutor: "the fact that it is Mayor Bloomberg's personal money ... has never been an issue in this case until cross-examination of Mr. Paul"). An issue's late arrival does not mean that the rules of evidence disappear. 6. Relatedly, the People make a faint-hearted effort to argue that the content of the trust instrument was a "collateral issue." (P. Br. 32). But that exception to the rule applies only to writings that are truly unimportant. See Prince Richardson on Evidence, §10-106 ("[i]t would seem that a writing is 'collateral' if ... it is of such minor importance to the issues that no useful purpose would be served in requiring its production"); Martin et al., New York Evidence Handbook, §10.2.3 ("[a] writing is 'collateral' if its contents are of such minor importance to the issues that no useful purpose would be served in requiring production of the original"). Here, however, the contents of the trust agreement were critical to proving that Mayor Bloomberg controlled the flow of funds from the trust. Tellingly, at trial, the People recognized the significance of the trust agreement, which is why an adjournment was granted for them to locate it. See A. 118 (the court: "[ w ]e will know eventually more about that trust and whether Bloomberg could authorize the payment from that trust account"). 5 7. If we are correct in the above analysis, then the admission of Ms. Friday's testimony was error. The question then is: was it harmless? Much of what we have said above applies here. We recognize that Mr. Haggerty's conduct was far from estimable and that it is easy to disparage him. (P. Br. 42)(discussing "(d]efendant's rampant dishonesty"). But even a "technical" defense -- i.e., it was not the Mayor's money -- must be addressed if the prosecution is to prove the theft alleged. See A. 252 (indictment: the defendant "stole property from Michael R. Bloomberg")( emphasis added). After all, it was the People's burden to prove every element of the crime, of which ownership was surely one. Here, the proof showed that the Bloomberg campaign played fast and loose with the campaign finance laws in order to distance itself from the "negative connotations" that come with running a "ballot security operation." More than $1 million was funneled to the Independence Party with the understanding that it would finance the operation and keep $100,000 for itself. Strings were attached to a "donation" that should have been unencumbered. On this record, a jury could wonder if the Bloomberg Revocable Trust had also been misused to accomplish the furtive plan. Plainly, the question troubled the People enough that they scurried to fill the gap. They (and the trial judge) thought that the issue was significant and 6 that more evidence was needed. See A. 118 (the court: if the Mayor "had the authority ... that's the end of that issue"). In words that the People now ignore, the prosecutor told the court this: This is property belonging to Michael R. Bloomberg. Michael R. Bloomberg owns that money. The terms of the trust make it clear, and as I said the witness will make it clear. (Tr. 1033)(emphasis added). If the terms of the trust made it clear, then the best evidence rule required that the trust agreement be introduced into evidence; the testimony of a witness would not do. 4 * * * Like the People, we are mindful of Mayor Bloomberg's privacy interest and recognize that there was no need to air his financial affairs. But all that was required was the introduction of a redacted copy of a few pages of the 4 The importance ofMs. Friday's testimony is also clear from the prosecutor's summation: We saw that on October 30, 2009, $600,000 was wired from Mayor Bloomberg's personal account to the New York State Independence Party. Again, this thing about the personal account. Well, this was Mayor Bloomberg's money. That's clear. I hope you understand that. It's clear. We had the person that drew up the trust account who testified. I was going to read the transcript, but it's his money. He does with it what he wants, when he wants to. He's the grantor. He's the trustee. It's his money. Period. End of story. He owns that money. That's crystal clear. (Tr. 1319-20)(emphasis added). 7 trust agreement. That is the way the courts of this State have done business for more than 100 years. See Carter v. Pitcher, 87 Hun 580 (1895)(applying best evidence rule to exclude oral testimony about ownership of farm; "[ r ]ules of evidence are rules of law ... and are not to be put aside"). The failure to do so here requires a reversal of Mr. Haggerty's conviction. CONCLUSION For this reason, Mr. Haggerty's convictions should be reversed and a new trial ordered. Dated: New York, New York January 13, 2014 8 Respectfully submitted, Zuckerman Spaeder LLP By: g~ ~~ PaulS~htman 1185 A venue of the Americas New York, NY 10036 (212) 704-9600 Attorney for Defendant-Appellant John F. Haggerty, Jr.
