The People, Respondent,v.Darius Dubarry, Appellant.BriefN.Y.February 11, 2015To be argued by DENISE A. CORSÍ (25 minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DARIUS DUBARRY, Defendant-Appellant. BRIEF AND APPENDIX FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant- Appellant 2 Rector Street, 10th Fl. New York, N.Y. 10006 (212) 693-0085 DENISE A. CORSÍ Of Counsel March 24, 2014 APL-2013-00346 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 3 STATUTE INVOLVED . . . . . . . . . . . . . . . . . . . . 7 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 7 Introduction . . . . . . . . . . . . . . . . . . . . 7 The Evidence . . . . . . . . . . . . . . . . . . . . 9 The Trial Testimony of the People’s Witnesses . . . 9 The Surveillance Footage . . . . . . . . . . . . . . 13 The Sirois Hearing . . . . . . . . . . . . . . . . . 16 Francois’s Grand Jury Testimony . . . . . . . . . . 19 Appellant’s Arrest and Pretrial Statements . . . . . 21 The Defense Case . . . . . . . . . . . . . . . . . . 23 Appellant’s Testimony . . . . . . . . . . . . . . . 23 The Testimony of Appellant’s Fellow Congregants . . 25 The People’s Rebuttal Case . . . . . . . . . . . . . 27 The Defense Summation . . . . . . . . . . . . . . . 28 The Prosecutor’s Summation . . . . . . . . . . . . . 29 Charge Conference, Charge, and Verdict . . . . . . . 29 The Motion to Dismiss . . . . . . . . . . . . . . . 32 The Appellate Division Decision . . . . . . . . . . 34 -i- ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 35 POINT I APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN THE COURT SUBMITTED INTENTIONAL AND DEPRAVED INDIFFERENCE MURDER WITH RESPECT TO THE SAME VICTIM IN THE CONJUNCTIVE RATHER THAN IN THE ALTERNATIVE, RESULTING IN HIS CONVICTION OF BOTH CRIMES . . . . . 35 POINT II THE PROSECUTION PRESENTED LEGALLY INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF DEPRAVED INDIFFERENCE MURDER, AS CHARGED TO THE JURY, BECAUSE IT FAILED TO ESTABLISH THAT HE AND HIS CO- DEFENDANT AGREED TO ENGAGE IN MUTUAL COMBAT . . . . 46 POINT III THE ADMISSION OF AN EYEWITNESS’S GRAND JURY TESTIMONY VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION BECAUSE THERE WAS NO CLEAR AND CONVINCING EVIDENCE THAT APPELLANT FACILITATED OR KNOWINGLY ACQUIESCED IN PURPORTED THREATS MADE BY AN UNIDENTIFIED PERSON UNDER UNKNOWN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . 54 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 66 -ii- TABLE OF AUTHORITIES CASES Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . 55 Holtzman v. Hillebrand, 92 A.D.2d 405 (2d Dep’t 1983) . . 54 Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . 46 People v. Atkinson, 21 A.D.3d 145 (2d Dep’t 2005) . . . . 34 People v. Bell, 48 N.Y.2d 913 (1979) . . . . . . . . . . 46 People v. Bennett, 79 N.Y.2d 464 (1992) . . . . . . . . . 50 People v. Cabey, 85 N.Y.2d 417 (1995) . . . . . . . . . . 49 People v. Cintron, 95 N.Y.2d 329 (2000) . . . . . . . . . 50 People v. Clarke, 55 A.D.3d 1447 (4th Dep’t 2008) . . . . 59 People v. Cohen, 50 N.Y.2d 908 (1980) . . . . . . . . . . 52 People v. Cona, 49 N.Y.2d 26 (1979) . . . . . . . . . . . 53 People v. Cotto, 92 N.Y.2d 68 (1998) . . . . . . . . . . 55 People v. Crimmins, 36 N.Y.2d 230 (1963) . . . . . . . . 64 People v. Dekle, 56 N.Y.2d 835 (1982) . . . . . . . . . . 53 People v. Douglas, 4 N.Y.3d 777 (2005) . . . . . . . . . 64 People v. Douglas, 73 A.D.3d 30 (2d Dep’t 2010) . . . . . 34 People v. Fernandez, 88 N.Y.2d 777 (1996) . . . . . 4, 38-39 People v. Ficarrota, 91 N.Y.2d 244 (1997) . . . . . . 5, 48 People v. Gallagher, 69 N.Y.2d 525 (1987) . . . . . . . . . . 3-4, 37-38, 41-42 People v. Geraci, 85 N.Y. 2d 359 (1995) . . . . . . . . . 6, 55-57, 60-61, 63 People v. Gonzalez, 54 N.Y.2d 729 (1981) . . . . . . . . 55 People v. Grant, 222 A.D.2d 1057 (4th Dep’t 1995) . . . . 64 People v. Green, 78 N.Y.2d 1029 (1991) . . . . . . . . . 55 -iii- People v. Hamilton, 127 A.D.2d 691 (2d Dep’t 1987) . . . . . . . . . . . 56, 60 People v. Hanley, 30 N.Y.2d 328 (1972) . . . . . . . . . 40 People v. Henderson, 78 A.D.3d 1506 (4th Dep’t 2010) . . . . . . . . . . . 34, 44 People v. Johnson, 250 A.D.2d 922 (3d Dep’t 1998) . . . . 60 People v. Kelly, 76 N.Y.2d 1013 (1990) . . . . . . . . . 52 People v. LaBelle, 18 N.Y.2d 405 (1996) . . . . . . . . . 49 People v. Maher, 89 N.Y. 2d 456 (1997) . . . . . 55-56, 60 People v. Malagon, 50 N.Y.2d 954 (1980) . . . . . . . . . 46 People v. McGhee, 68 N.Y.2d 328 (1986) . . . . . . . . . 64 People v. Molina, 79 A.D.3d 1371 (3d Dep’t 2010) . . . . . 4, 34, 38, 41, 43 People v. Monserate, 256 A.D.2d 15 (1st Dep’t 1998) . . . . . . . . . . . 34, 45 People v. Page, 63 A.D.3d 506 (1st Dep’t 2009) . . . 34, 44 People v. Perez, 45 N.Y.2d 204 (1978) . . . . . . . 4, 39-40 People v. Prindle, 16 N.Y.3d 768 (2011) . . . . . . . . . 46 People v. Robinson, 75 N.Y.2d 879 (1995) . . . . . . . . 41 People v. Rosario, 292 A.D.2d 324 (1st Dep’t 2002) . . . 50 People v. Rosenblatt, 277 A.D.2d 61 (1st Dep’t. 2000) . . 53 People v. Russell, 91 N.Y.2d 280 (1998) . . . 30-31, 47, 51 People v. Scoon, 130 A.D.2d 597 (2d Dep’t 1987) . . . . . 64 People v. Sirois, 92 A.D.2d 618 (2d Dep’t 1983) . . . . . 54 People v. Stahl, 53 N.Y.2d 1048 (1981) . . . . . . . . . 53 People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . 4, 36-38, 42 People v. Timmons, 78 A.D.3d 1241 (3d Dep’t 2010) . . . . 44 People v. Trappier, 87 N.Y.2d 55 (1995) . . . . . . . 40-41 -iv- People v. Wall 29 N.Y.2d 863 (1971) . . . . . . . . . . . 36 Ward v. New York State Div. of Parole, 26 A.D.3d 712, 713 (3d Dep’t 2006) . . . . . . . . . . . 43 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, § 6 . . . . . . . . . . . . 6, 46, 55 U.S. Const., Amend. VI . . . . . . . . . . . . . . . 55-56 U.S. Const., Amend. XIV . . . . . . . . . . . . . 6, 46, 55 STATUTES C.P.L. § 300.40(3)(b) . . . . . . . . . . . . . . . . . . 40 C.P.L. § 300.40(5) . . . . . . . . . . . . . . . . . . . 42 C.P.L. § 450.90(1) . . . . . . . . . . . . . . . . . . . 2 C.P.L. § 470.05 . . . . . . . . . . . . . . . . . . . . . 45 C.P.L. § 670.10 . . . . . . . . . . . . . . . . . . . . . 55 Executive Law § 259–i(2)(a)(c)(A) . . . . . . . . . . . . 43 Executive Law § 259–i(2)(a)(c)(A)(vii) . . . . . . . . . 43 P.L. § 35.15(1)(c) . . . . . . . . . . . . . . . . . . . 47 P.L. § 110 . . . . . . . . . . . . . . . . . . . . . . . 1 P.L. § 125.25(1) . . . . . . . . . . . . . . . 1, 7, 35, 38 P.L. § 125.25(2) . . . . . . . . . . . . . . . 1,7, 35, 47 P.L. § 265.03(1)(b) . . . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITY Wikipedia, Black Hebrew Israelites, http://en.wikipedia/wiki/BlackHebrewIsraelites (last modified on Feb. 15, 2014, 21:01 GMT) . . . . . . . 57 -v- COURT OF APPEALS STATE OF NEW YORK -----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : - against - : DARIUS DUBARRY, : Defendant-Appellant.: -----------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted December 23, 2013, appellant Darius Dubarry appeals from an order of the Appellate Division, Second Department, dated June 12, 2013, affirming a judgment of the Supreme Court, Kings County, rendered July, 16, 2009, convicting him, after a jury trial, of two counts of murder in the second degree (P.L. § 125.25[1] and [2]), attempted murder in the second degree (P.L. § 110/125.25[1]), and criminal possession of a weapon in the second degree (P.L. § 265.03[1][b]). He was sentenced to concurrent prison terms of 20 years to life for each count of murder, 20 years for attempted murder, and five years for weapon possession, plus five years of post-release supervision (Firetog, J., at trial and sentence). On January 16, 2014, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as appellate counsel. No stay has been sought. Appellant is currently -1- incarcerated and serving his sentence. This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review the issues raised. Appellant’s argument regarding the submission of depraved indifference murder and intentional murder in the conjunctive (Point I), was preserved by defense counsel’s argument at the charge conference and by the court’s decision explicitly reaching the issue (A 793, 800-801, 803-804, 830).1 The contention that there was legally insufficient evidence to convict appellant of depraved indifference murder (Point II) was preserved for review by counsel’s argument at a pre-charge conference and motion to dismiss (A 635, 802, 830, 938, 1007-1010, 1015). Appellant’s argument that it was error to admit the grand jury testimony of an eyewitness (Point III) was preserved by counsel’s argument at a Sirois hearing, and the court’s decision specifically reaching the issue (A 451-452). 1Numbers in parentheses preceded by “A” refer to the pages of the appendix. -2- QUESTIONS PRESENTED 1. Whether appellant was deprived of due process when the court submitted intentional and depraved indifference murder with respect to the same victim in the conjunctive rather than in the alternative, resulting in his conviction of both crimes. 2. Whether the prosecution presented legally insufficient evidence to convict appellant of depraved indifference murder, as charged to the jury, because it failed to establish that he and his co-defendant agreed to engage in mutual combat. 3. Whether the admission of an eyewitness’s grand jury testimony violated appellant’s Sixth Amendment right to confrontation because there was no clear and convincing evidence that he facilitated or knowingly acquiesced in purported threats made by an unidentified person under unknown circumstances. SUMMARY OF ARGUMENT (I) Just as a defendant may not be convicted of both intentional and depraved indifference murder when the intended and actual victim are one and the same, People v. Gallagher, 69 N.Y.2d 525, 528-530 (1987), “double liability” may not lie when the intended and actual victims are different, such as here where appellant was convicted of both intentional murder under a transferred intent theory (intending to kill his purported target but instead killing a bystander) and depraved indifference murder (recklessly killing the same bystander). The doctrine of transferred intent theory “sets up a -3- fiction that should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime.’” People v. Fernandez, 88 N.Y.2d 777 (1996) (internal citations omitted). Accordingly, employing a transferred intent does not justify imposing double liability for the death of a single bystander. Cf. People v. Gallagher, 69 N.Y.2d 525, 529-530 (1987) (error to charge intentional and depraved indifference murder in the conjunctive as to killing of intended victim). To hold otherwise would be contrary to the general prohibition against multiple convictions for a single criminal act. People v. Perez, 45 N.Y.2d 204, 209 (1978) (“defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts”) (emphasis added). Moreover, permitting the submission of intentional and depraved indifference murder in the conjunctive “impermissibly takes the issue of determining defendant’s mens rea out of the hands of the jury.” People v. Molina, 79 A.D.3d 1371, 1374 (3d Dep’t 2010), citing Gallagher, 69 N.Y.2d at 530. While determining whether a defendant acted with an intent to kill or recklessly with depraved indifference may be difficult, “those are the hard choices to be weighed by the trier of fact.” People v. Suarez, 6 N.Y.3d 202, 214 (2005). -4- For these reasons, the verdict convicting appellant of both intentional and depraved indifference murder, thereby multiplying his liability for a single wrong, deprived him of due process and a fair trial. This Court should reverse appellant’s conviction on those counts, and order a new trial. (II) To convict appellant of depraved indifference murder as that crime was charged without objection to appellant’s jury, the prosecution had to prove that appellant and Herburtho Benjamin engaged in “mutual combat” by the “taking up of each other[’]s challenge, sharing in the venture” of a gun battle. Common sense dictates that, to “take up [a] challenge,” a challenge must be extended and accepted. But no witness claimed to have seen any such exchange, or even appellant’s or Benjamin’s acknowledgment of the other’s presence. With no evidence of any communication whatsoever between appellant and Benjamin, the prosecution utterly failed to prove that appellant and Benjamin had a “community of purpose” to undertake the “shared venture” of a gun battle. See People v. Ficarrota, 91 N.Y.2d 244, 248 (1997) (acting in concert requires proof that defendant shared a “community of purpose” with the accomplice). Accordingly, this Court should reverse appellant’s conviction of depraved indifference murder and dismiss that count. -5- (III) “Obviously, a defendant’s loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation.” People v. Geraci, 85 N.Y. 2d 359 (1995). Thus, out-of-court statements are admissible on the theory that the defendant engineered a witness’s unavailability only if the prosecution meets the high bar of establishing by “clear and convincing evidence” that the witness was rendered unavailable through the “misconduct” of the defendant personally, or of others acting on his behalf “with the defendant’s knowing acquiescence.” Id. at 366. The court’s ruling that permitted the prosecution to introduce the unconfronted grand jury testimony of Markenzie Francois was based on the purely speculative assumption that appellant was responsible for threats purportedly made by an unidentified member of his religious sect at an unspecified time and place. There was no evidence that appellant had communicated with anyone, let alone a member of his congregation, who could have conveyed a threat. Therefore, the admission of Francois’s grand jury testimony violated appellant’s right to confront the witnesses against him and denied him due process. Because the prosecutor relied on that testimony to bolster the questionable evidence that appellant was the initial aggressor, its admission was patently prejudicial, requiring the reversal of appellant’s conviction and a new trial. -6- STATUTE INVOLVED P.L. § 125.25 Murder in the second degree A person is guilty of murder in the second degree when: 1. With intent to cause the death of another person, he causes the death of such person or of a third person . . . . ; [or] 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person[.] STATEMENT OF FACTS Introduction Appellant was convicted of depraved indifference murder, intentional murder on a transferred intent theory, and related crimes stemming from an exchange of shots between him and his co-defendant, Herburtho Benjamin, during which a bullet attributed to appellant’s gun fatally struck a bystander.2 As charged without objection by the court, to convict appellant of depraved indifference murder, the prosecution had to prove that appellant and Benjamin engaged in “mutual combat,” which the court defined as “the taking up of each others [sic] challenge, sharing in the venture and unjustifiably creating a zone of danger.” No witness 2Separate juries, one for appellant and another for Benjamin, were impaneled contemporaneously and heard the evidence presented at trial. “Co-counsel” will refer to Benjamin’s trial attorney. -7- testified to any communication indicating that a challenge was made, let alone accepted, however, nor did the surveillance footage support that theory. Instead, the evidence demonstrated that, while appellant, who had no prior convictions, was at an “Israelite” religious service in a large residential building, Benjamin and his companions congregated in the lobby to violently settle a prior dispute with an unknown person. When appellant left the building, the group followed him out and Benjamin took a tactical position behind a pillar, while appellant simply stood in front of the building smoking. One of the prosecution witnesses testified that he saw Benjamin display a gun before hearing gunfire from appellant’s direction. Over defense objection, the prosecution also introduced the grand jury testimony of Markenzie Francois that he saw appellant “suddenly start shooting.” At a Sirois hearing, Francois had claimed that his siblings reported being frightened because “the Israelites” were calling Francois a “snitch.” Although Francois could not provide any more details, the court ruled that appellant had rendered Francois unavailable. Over defense objection, the court submitted both depraved indifference murder and intentional murder to the jury in the conjunctive rather than in the alternative. The jury convicted appellant of both intentional and depraved indifference murder counts and related crimes. -8- The Evidence The prosecution presented the testimony of two eyewitnesses to all or part of the shooting itself, surveillance footage of the incident, and the grand jury testimony of a third eyewitness. Appellant testified on his own behalf, and presented two witnesses, one of whom saw part of the incident. The Trial Testimony of the People’s Witnesses In the late afternoon of December 15, 2007, DARNELL SANDERS received a phone call from his friend “Tony,” informing him that their mutual friend “Wendy,” also known as “E,” had been assaulted (A 66). Sanders met Tony, Wendy (who was bleeding), “Ewing,” and “Kendrick” on a Brooklyn street corner (A 67). As they walked along Eastern Parkway, they were followed by Herburtho Benjamin, who was wearing a gray “hoodie” (A 68-69, 118). Tony and Wendy explained that some unspecified group had “jumped” and stabbed Wendy for his jacket (A 69, 81). Wendy said they were going to “put it in” (A 69, 98), but Sanders initially denied there was a plan to hurt anyone; they were merely going to talk things out (A 69, 82). On cross-examination, however, Sanders admitted they were going to “put in work,” meaning “do some damage” or “get our pound of flesh because somebody got one of ours” (A 105-106, 108). Sanders then claimed again that they were “going to talk it -9- out” (A 109, 111-112). As far as Sanders knew, only Wendy was a member of a gang (A 96-97, 99-100, 121-122). Eventually, Benjamin, Sanders, Tony, Wendy, Ewing, and Kendrick reached 390 Eastern Parkway, a large residential building on the south side of the Parkway, between Franklin Avenue to the west and Bedford Avenue to the east (A 70, 172- 176). At some point, ARTIS MURPHY, also known as “Eggy,” joined the group (A 70, 194-195). Murphy testified that they were going to settle a dispute verbally, and that he had heard someone say, “we don’t need no more problems” (A 70, 194, 199, 220). Benjamin and his companions congregated in the lobby to look for “the dude” (A 71). Moments after someone among them asked where “the dude” was, appellant walked down the main stairs from an upper floor and into the lobby (A 71, 79, 83). According to Murphy, everyone quieted down as he walked down “real slow” and “looked at everybody” (A 196-197). Appellant exited the building and stood outside in the front courtyard with one of his friends, toward the Bedford Avenue side of the building (A 71-72, 83). Seconds later, someone among Benjamin’s group announced, “that’s him,” whereupon they all rushed outside and dispersed (A 71-74, 79, 85-86, 114-115, 195). Fearful, Sanders headed toward the street (A 73-74, 85- 86, 111). Benjamin, who had exited the building last, walked west toward Franklin Avenue with his hand in his pocket (A 74, -10- 91). Sanders saw Benjamin pull out a gun and point it toward Bedford Avenue, prompting him to duck and run (A 74, 117, 123- 124). As he took cover, Sanders heard approximately eight shots from two different guns; the first few shots came from behind him at 390 Eastern Parkway; then he heard screaming (A 74, 76, 92, 123). When counsel for Benjamin asked Sanders whether he heard shots before seeing Benjamin with a gun, he answered, “I think so. I’m not sure” (A 87). Moments later, he explained: [CO-COUNSEL]: You duck. After you hear the shots, then you look up, and that’s [] when you see a gun in [Benjamin’s] hand? SANDERS: Before that. It was before I hear the shots I started running . . . When I run out [the] building to the street and I looked back, I just see like a gray-hoodie [Benjamin] pointing. Then I got down . . . (A 88). Sanders maintained that, as he was walking, he saw Benjamin pointing a gun, prompting Sanders to run, and then he heard shots (A 91-92). Asked by co-counsel whether it was “possible” that he heard the shots before Benjamin took out a gun, Sanders answered, “I’m not too sure. It’s a long while back” (A 93). But when asked on redirect to address this uncertainty, Sanders once again stated, “I seen the gun first. Then I ran. Then I ducked. That’s when I heard the shots” (A 123). Murphy testified that he, not Benjamin, was the last of their group to exit the lobby. As he left, he saw Mark -11- Bellamy, an “Israelite” also known as “Gersh” and “Born,” come downstairs and they greeted each other (A 198). Murphy walked through the front courtyard toward Eastern Parkway. He saw Benjamin either “hiding” or “standing . . . behind” a pillar on the Franklin Avenue side of the building, somewhat “facing” Bedford Avenue (A 202-204, 209-211, 217-218).3 His hood was drawn “tight” around his face, exposing only his eyes and nose, and his hands were in his pockets (A 204-205). As Murphy was about to step into the street, Bellamy called out to him (A 202, 206-207). Murphy turned and saw appellant point a gun toward Franklin Avenue and fire; he claimed that Benjamin’s hands were still in his pockets (A 206-207, 226-227). Murphy ducked under a car and heard numerous additional shots that he attributed to appellant, followed by several shots from another gun. Then he heard a woman scream, “I’m shot” (A 208-209).4 Murphy did not report what he saw to the police until a couple of weeks later, when he was forcibly brought to the precinct (A 216). At first, Murphy “lied” and denied that he had been present. Only when the police played him a “CD 3After initially saying three times that Benjamin was “hiding” by the pillar (A 209), Murphy rephrased his testimony, “I didn’t say hiding. He was just standing there. I didn’t want to say hiding” (A 209). But when asked whether Benjamin was in front of or next to the pillar, Murphy explained that Benjamin was “standing like behind the pillar” (A 209-210). 4After hearing “firecrackers” from the direction of Bedford Avenue, HERBERT GREENWOOD saw a hooded figure shooting toward that street (A 326-330). -12- slide” showing him at the scene, and told him he was “either a witness or a shooter,” did Murphy relent (A 217, 219, 244). A resident of Atlanta, Murphy had been visiting his old neighborhood; he remained in the City at the District Attorney’s request (A 192-193, 240-242). Nonetheless, Murphy claimed he had no idea the prosecution intended to call him as a witness until he was arrested and forcibly brought to court (A 230-231). He also claimed that he had not wanted to testify because he had received death threats, although he could not identify their source (A 232).5 The police recovered nine 9 mm. shell casings from the front of 390 Eastern Parkway, where appellant had been standing, and four .45 caliber casings from the front of 374 Eastern Parkway, closer to Franklin Avenue, where Benjamin had been standing (A 139-149, 286-294). One of the 9 mm. bullets attributed to appellant fatally wounded Carol Simon, who was in front of 368 Eastern Parkway, two buildings west of 390 Eastern Parkway (A 139-148, 169-172, 174, 208-210, 273, 286-295, 349-350). The Surveillance Footage Excerpts of footage from two surveillance cameras were introduced into evidence at trial. One depicted the area just outside the front entrance of 390 Eastern Parkway looking from 5Murphy had a prior conviction for third-degree burglary, two for petit larceny, and several for possession of marijuana (A 214-215). Sanders used marijuana daily, and had an open case for possession (A 80, 95). -13- the Franklin Avenue side of the building toward Bedford Avenue, with the front entrance on the far right edge of the image. The other depicted the foyer just inside the front entrance of 390 Eastern Parkway (People’s Exhibits ## 1 and 1A).6 The exterior footage shows a wide walkway, flanked by wrought iron fences, leading from the building entrance to the sidewalk and Eastern Parkway. At the end of each fence is a brick column. A bit beyond the column on the Bedford Avenue side of the walkway, toward the top of the image, is a second column that is closer to the street and further from the walkway. Based on the trial testimony, there is a corresponding second column beyond the column on the Franklin Avenue side of the walkway, but it is obscured by a small tree or bush on the left side of the screen. About 18 seconds into the recording, appellant emerged from the lobby, smoking a cigarette. He was followed shortly thereafter by Bellamy, wearing a black jacket. Almost 30 seconds after appellant’s exit, while he was still smoking on the walkway, several men began exiting the lobby. They dispersed toward the sidewalk along Eastern Parkway. Among the last to exit, about ten seconds after the first of the group, was Benjamin, wearing a light gray jacket with the hood up. He went directly to the sidewalk, passing appellant, and 6This description is based upon appellate counsel’s review of the footage. Appellant respectfully requests that the prosecution submit a copy of it to the Court. -14- seemingly turned left, where he disappeared behind the tree obscuring the second column on the Franklin Avenue side of the walkway. Nothing suggested that there was any verbal or non- verbal communication between appellant and Benjamin. About 20 seconds after Benjamin left the building, appellant walked toward the street, as did Bellamy, who disappeared behind the tree on the Franklin Avenue side of the screen. Once on the sidewalk, appellant paused and seemingly took another drag on his cigarette (his hand went toward his face). Suddenly, Bellamy emerged from behind the tree and raced past appellant toward the lobby doors. Before Bellamy got back inside, appellant reached into his pocket, extended his arm (apparently firing a gun), and then ran back into the building. The contemporaneous footage from inside the building lobby was from a vantage point above eye-level, facing the lobby door, which was glass with a decorative wrought iron screen with glass panels on either side of it, providing a view through the door to the walkway. A few seconds into this video, a group of young men came into the building, followed by Benjamin around 30 seconds later. Just over a minute later, appellant exited the lobby and remained on the walkway. A young man in a hooded sweatshirt, standing to the left of the glass lobby door, intermittently looked outside. The group exited soon thereafter, Benjamin the last among them. Moments later, Bellamy ran back inside, followed by appellant. -15- The Sirois Hearing Outside the presence of the jury, when the court notified MARKENZIE FRANCOIS that the prosecution was calling him as a witness, Francois claimed that he “wasn’t there” during the incident (A 358-359). The police had “misconstrued” his “words” and he had been “coerced” into providing a statement (A 359). At a Sirois hearing, Francois testified that he had been at a federal detention center for about a year on an unrelated matter (A 422-423, 427-428). During a visit from his family the day before the hearing, he had been told “they were getting a little bit [of] hostility around the neighborhood because people must have felt that [he] was making a statement against the defendants” (A 422-423).7 Francois said his sister had told him that “Kendrick” - who was at the incident, but was not an Israelite - had said that “the Israelites” thought he had been “snitching.” Francois did not know when this conversation took place (A 435-436). Francois’s brother then said, “yo, they come to me, they’re serious” (A 435-436). Francois’s brother told him, “The Israelites hear that you’re a snitch or something like that” (A 424-425, 433). When asked whether “this threat was conveyed by an individual 7Although Francois stated that his “family” visited him “weekly” (A 428), he did not say when either of his siblings had last seen him before the visit at issue during the hearing. -16- or by a group of individuals,” Francois answered, “No, he just said the Israelites” (A 430).8 Francois’s brother did not otherwise describe anyone who spoke to him or give his or her name, nor did he say where any statement took place (A 422, 425, 429-431).9 Francois believed from his brother’s “gestures,” “eyes,” and “movement,” and because he had pulled Francois away from his sister to have the conversation, that the brother had been spoken to more than once (A 432), but he never said when any such incident(s) took place. Francois said his brother was “not fearful of people coming to him,” but “fe[lt] more threatened” when the matter concerned his family (A 430). Francois was aware that the Israelites had stopped holding services at 390 Eastern Parkway since the shooting (A 429), and that Benjamin was not an Israelite (A 441). He had not told anyone, including his family, that he had “cooperated” with the prosecution by testifying at a pretrial proceeding (A 425-426, 436). He first learned that he was expected to be a trial witness when he was brought to court the day of the Sirois hearing (A 437-438, 450). In light of what his siblings reported, Francois was 8Francois did not correct the prosecutor or defense counsel when, in the course of questions, they each referred to the person who spoke to his brother as “a member of the Israelites” or “the particular Israelite” (A 425, 429-430). 9Although the court asked Francois whether he feared testifying because of “comments that were made to [his] brother yesterday” (A 426), Francois did not say when the purported threats were made. -17- afraid they would be hurt if he testified, especially since they still lived near 390 Eastern Parkway (A 423-425, 429). He maintained that the threat of contempt and jail time would not compel him to testify (A 426). Defense counsel argued that Francois’s Sirois hearing testimony did not provide “clear and convincing evidence that the threats emanated from [appellant] or people [with]in [his] control” (A 453-454). Francois “ha[d] not given any substantive details regarding the alleged interaction between [his family] and these Israelites,” such as a “description,” or even the “gender,” of the person who conveyed the threat, or “where,” “when,” or “how” it was made (A 453). Moreover, Francois’s grand jury testimony had “no indication of reliability,” and its admission would deprive appellant of his “right to confront the witnesses against him” (A 454). The prosecutor argued that, because Francois’s statements had not been revealed to the defendants until the trial started the week before, and neither defense counsel would have revealed them to a civilian, “it would have had to come from the defendants,” and most likely appellant rather than Benjamin, since Benjamin was not an Israelite (A 454-455). Francois’s demeanor, he argued, indicated that “these threats [were] credible” (A 455). Saying “the record speaks for itself,” the court found that “these threats ha[d] been made,” that Francois’s refusal to testify was based on fear for his family, and that the -18- court could not compel Francois to testify because he was already serving a federal sentence (A 451). The court agreed with the prosecutor’s analysis tracing the threats to appellant, and found that Francois was “unavailable” “due solely to defendant Dubarry” (A 452, 455). Accordingly, the court ruled that the prosecution could introduce Francois’s grand jury testimony into evidence, because it was “the only way that testimony favorable to Mr. Benjamin can be brought out” (A 451-452). In light of this ruling, defense counsel asked the court to inform the jury that Francois was serving a federal sentence and that he had several open state criminal matters, “prior bad acts” about which counsel could cross-examine a live witness that would “impugn [Francois’s] credibility” (A 456-457). The prosecutor countered that, once the threats were attributed to appellant, he “los[t] all those rights,” and only the prior testimony itself was admissible (A 457- 458). The court denied the defense application (A 459), as well as counsel’s subsequent request to introduce Francois’s federal certificate of conviction (A 460-461). Francois’s Grand Jury Testimony In accord with the court’s ruling, the prosecutor read excerpts from Francois’s grand jury testimony to both juries (A 464). In it, Francois said that he was in his fifth floor apartment at 390 Eastern Parkway when he got a call from his cousin telling him to look out his window (A 464-465). When -19- he did, Francois saw a group of people walking out of his building (A 465-466). “[I]t looked like they were looking for trouble” because of their demeanor, because they all had on “hoodies” and “caps,” and because they were walking around like they were “looking for someone” (A 466-467). “[S]hortly after, a guy stepped out the building and he started . . . smoking a cigarette at first, then he started shooting” (A 467). Francois recognized him as someone called “D” and one of the “Israelites” who attended “services” in an apartment in the building on weekends (A 467-485, 476). Francois had seen him “every week” or two (A 484-485). Francois explained that, as “the group was walking away,” “D” “started smoking a cigarette, went down two steps and he just started shooting” toward Franklin Avenue; “I saw him stretch out his hands and shots were fired. Shots were fired. That’s when I stepped back in” from the window (A 468-470). Francois had not “hear[d] any gunfire at all before he saw D extend his arm . . . and start firing” (A 468-487). When Francois looked out the window again a few minutes later, he saw appellant leave the building with “Gersh” (Bellamy), a fellow Israelite. “They walked to a car,” appellant got in, and it “sped off” (A 470). A couple of days later, Francois directed the police to a photo of appellant, Bellamy, and others on a “MySpace” webpage belonging to a neighbor who socialized with appellant (A 471-472). A few days after that, Francois viewed a line-up -20- and identified a “slightly older guy” he had seen “around the area,” who “looked just like D, the shooter” (A 473-474). Upon realizing that the line-up form he signed reflected a positive identification of the “shooter,” Francois told the police that the person he had chosen merely looked like the shooter, but was not him (A 474-475). Appellant’s Arrest and Pretrial Statements Four days after the shooting, on December 19, 2007, Det. PETER MARGRAF went to appellant’s last known address and stopped Vincent White, who looked like an “older,” “beaten-up version” of appellant as depicted in an old Department of Motor Vehicles photo (A 486, 488, 490). Upon questioning, White identified himself as Darius Dubarry and gave the officer identification bearing that name (A 487-488). Margraf arrested White and placed him in a line-up viewed by Francois and three others (A 489). When Margraf told White he had been identified, he revealed that he was appellant’s brother (A 490). Then Margraf got a more recent photo of appellant from the “MySpace” webpage to which Francois had directed him (A 491). On December 23, 2007, Margraf arrested appellant in Augusta, Georgia, where he was registered in a motel under another name (A 493-495, 500-501). Following Miranda warnings, appellant gave Margraf three substantially similar accounts of the incident (A 502-505): one oral (A 510-511), one written (A 512-513), and one on audiotape: -21- On that day, we was having Sabbath services . . . about 4:30, sundown. [R]ight after services, I . . . took a nap, woke up around 5 o’clock, 5:10, 5:15, something like that. . . . I was asked to escort the sisters from the congregations downstairs . . . and they children and they strollers and they bags . . . . Put the sisters and stuff on the elevator, and I took the stairs downstairs. As I came downstairs . . . , there was a group of boys standing in the lobby. I ain’t paying no attention I ain’t got no problems with nobody out there. I walked outside to smoke a cigarette. As I’m standing outside smoking a cigarette the group of dudes that was in the lobby walked out behind me and just giving me nasty looks. So I’m standing there. I’m still not paying no attention because I ain’t got problems with nobody around there. As I’m standing there, . . . my friend [Bellamy] comes out . . . . As he goes to talk to one of them, one of the dudes out of the group starts screaming, “Move out the way, move out the way.” And as [Bellamy] goes to move out the way, and I’m looking back at the group of dudes, one of them had a gun pointed at me. He pulls the trigger, it says “click,” he pulls the trigger again, and he starts shooting. As he starts shooting, I shot back and I ran in the building (People’s # 43).10 10This transcription is based upon appellate counsel’s review of the audiotape. Appellant respectfully requests that the prosecution submit a copy of it to the Court. -22- The Defense Case Appellant’s Testimony Appellant DARIUS DUBARRY, who was 28 years old at trial, had been a practicing Israelite since his teens (A 724-725, 727). On December 15, 2007, he went to 390 Eastern Parkway to attend a Sabbath service (A 728-730). After the service was over, when he was helping the women and children from the congregation load their belongings into the elevator, he ran into a young man who was relatively new to the congregation (A 729-730). He told appellant that he was about to go “handle” a problem he was having with some unspecified people. When appellant asked what he meant by “handle,” the young man showed him a gun. Appellant persuaded him to hold off, give him the gun, and wait for appellant to return so they could dispose of it (A 733-734). Appellant had no prior convictions, had never handled a gun before, and was not involved in any precipitating dispute with anyone (A 733, 749, 769).11 Leaving the young man, appellant walked downstairs to wait for the women and children (A 730, 732). As he walked out, he saw Kendrick, who lived on the first floor, and a group of others in the lobby (A 731-732, 775). Appellant 11When first asked whether he had told his girlfriend that he “had a beef with these guys for at least a week before,” appellant attempted to recount their conversation, but was interrupted by a brief colloquy before answering, “Yes.” Moments later, he clarified that he had not, in fact, said any such thing to his girlfriend (A 751-752). -23- walked outside to smoke, followed by his fellow congregant Bellamy, who walked toward Franklin Avenue, where some of the men from the lobby had gone (A 731, 754). Because it was commonplace to see people congregating in the lobby, and no one had said anything to him, appellant had no concern for his safety when he went outside (A 754). Upon noticing that one of the women from the congregation was about to emerge from the building, appellant turned to go back in. Meanwhile, Bellamy had gone to talk to one of the men from the lobby. Appellant heard someone shout, “Move. Move. Move” (A 731, 754). As Bellamy rushed back into the building, appellant saw Benjamin, whom he did not know, pointing a gun at him (A 732, 754, 769-770). Appellant “froze” as Benjamin pulled the trigger and he heard the gun “click” without firing (A 731, 755). When Benjamin tried again, the gun fired, and appellant fired back: He pulled the trigger, I froze again, pulled the trigger again, froze again. Pulled the trigger again, shots went off and I shot back” (A 731). * * * He pulled the trigger once, it didn’t go off, I still sitting there. That’s when he pulled the trigger again, that’s when the gun went off, and I fired back (A 746). * * * He pulled the trigger again and that’s when the gun went off. . . I just pulled the gun out and pulled the trigger (A 755). -24- Because he was frightened and everything happened very quickly, appellant had no idea how many times he fired, although he agreed that it might have been as many as ten (A 734, 748). Immediately after the shooting, appellant retreated to the apartment where the service had been held. He did not recall what he did with the gun. Some time later, he left by car, but not with Bellamy or by prearrangement (A 759-760). Frightened and wanting to give his family time to hire an attorney, appellant fled to Georgia a couple of days later and registered at a motel under his cousin’s girlfriend’s name (A 736-737, 764). He assumed Benjamin was a member of the “Crypts” gang since the men in the lobby had blue “flags” hanging out of their pockets (A 736). Appellant believed he had left his identification in the car he and his brother shared (A 753, 773). Although not reflected in his pretrial statements in evidence, appellant admitted initially teling the police he was merely present during the shooting (A 765). When it became clear that the police already knew what happened, he explained that he had acted in self-defense (A 764-765). The Testimony of Appellant’s Fellow Congregants MARK BELLAMY, also known as “Gershon,” and ARJUNA BEAUDOUIN were members of the Lech Lecha congregation of Hebrew Israelites, whose Sabbath services were held every Saturday in a fourth floor apartment at 390 Eastern Parkway -25- (A 658-659, 673, 686, 700). On December 15, 2007, following the service, Beaudouin, Bellamy, and appellant were supposed to help the women of their congregation load their children and belongings into their cars (A 660, 704). As Beaudouin took the elevator down, appellant, whom they called “Amassa,” took the stairs, followed soon thereafter by Bellamy (A 661, 690, 704-705). Upon reaching the lobby, Bellamy saw a group of six or seven men wearing hoods, and he stopped to greet Kendrick, who lived on the first floor (A 661-662). Once outside, Bellamy briefly spoke to appellant, who was standing in front of the building, toward the east side, smoking a cigarette (A 662- 677). Very soon thereafter, the group from the lobby came outside as well and dispersed (A 663, 677-678). Bellamy headed to the west side of building and saw Murphy frantically walking to the street (A 665-666). Bellamy had wanted to talk to Murphy, but then saw one of the hooded men from the lobby, Benjamin, pointing a gun at him (A 665, 668, 679). Benjamin directed Bellamy to move out of the way and Bellamy rushed back into the building, hearing gunshots as he ran (A 665-666, 668, 679). Although the surveillance footage showed Bellamy running past appellant as he returned to the building, Bellamy did not notice him (A 665-666, 679- 680, 683). Beaudouin was by the lobby doors when he heard gunfire erupt, but “really didn’t see [any]thing” (A 705-713, 718). -26- He let Bellamy in and directed the women and children to go back inside (A 689, 709). Five minutes later, Bellamy went back to the apartment where the service had been held; appellant was already there (A 683). “[T]he first thing [they] did was sa[y] a prayer” (A 685). Bellamy did not summon a car for appellant or escort him to one (A 684-685). Bellamy was an unemployed carpenter with no criminal record. He had known appellant, a fellow congregant, for about ten years (A 657, 672). Bellamy initially told the police he did not recognize anyone in a “MySpace” photo, but later identified appellant (A 685-686). According to Bellamy, appellant was known for staying out of trouble and trying to look for work (A 672). Beaudouin earned his living as a percussionist (A 714, 720). Years earlier, he had been convicted of criminally negligent homicide and weapon possession criminal impersonation (A 717-719). He described appellant, whom he had known for about ten years, as a “good respectable brother,” who was always “helping out” and “trying to do the right things” (A 701-703). The People’s Rebuttal Case According to Detective Margraf, Bellamy had said appellant was originally denied admittance to the Israelites, and that he did not initially identify appellant in the “MySpace” photo out of fear because appellant had just killed someone (A 816). -27- Ballistics expert Kraljic testified that, when a .45 calibar semiautomatic pistol jams, one usually has to pull the slide back to release the magazine and remove the undischarged cartridge, reinsert the magazine, and pull the slide back to load a new cartridge (A 821-823). But it is possible that a jammed cartridge would fire upon being struck a second time by the firing pin when the trigger is pulled. In that event, the discharged casing would bear two firing marks (A 822-823). Although none of the casings collected from the scene had two marks, it was possible that a casing was ejected, kicked around, and not recovered (A 824-826). The Defense Summation The gist of defense counsel’s summation was that appellant acted in self-defense when suddenly confronted by Benjamin brandishing a gun. While Benjamin and his friends plainly went to the scene looking to harm someone, appellant had just left a worship service, unaware that he was a target as he stood outside, vulnerable, smoking a cigarette (A 835- 845). Moreover, no evidence tied appellant to the precipitating offense Benjamin sought to avenge (A 837-847). Counsel argued that Sanders and Murphy could not have been unaware of Benjamin’s intent given their criminal histories and actions at the scene (A 838-840). The surveillance footage showed Sanders “peeking out of the side,” “observing” appellant (A 839-840), and Murphy was crossing the street with his back to appellant when the shooting broke out -28- (A 853). The Prosecutor’s Summation The prosecutor referred to Francois’s prior testimony several times. She argued that Francois “corroborated” Murphy’s claim that appellant “began the shooting,” recounting, “he told you that he saw [appellant], the guy he knows from the building as Deke,” “on the sidewalk smoking a cigarette,” “walk[],” “take two steps down and begin to fire” (A 889-890). “He said he didn’t hear any shots before those” (A 890). In addressing appellant’s testimony that Benjamin fired first, the prosecutor again argued that Francois — an “independent witness” — “corroborated” Murphy’s observations (A 899). The prosecutor described Murphy as “a slicker and more street-savvy guy than Darnell Sanders.” She added that Murphy was “evasive” and seemingly “tried to bend the truth, certainly when he thought he was going to be implicating Benjamin or even saying anything implicating either side at all” (A 885) (emphasis added). The prosecutor asked the jury to discern the truth in Murphy’s testimony by viewing it in the light of the other evidence in the case (A 885). Charge Conference, Charge, and Verdict At a “pre-charge conference,” defense counsel asked for a justification charge with respect to depraved indifference as well as intentional murder (A 802). Counsel distinguished -29- People v. Russell, 91 N.Y.2d 280 (A 828), in which three defendants had been convicted of depraved indifference murder, under a mutual combat theory, for killing a bystander. While the defendants in Russell “were engaged in a running gun battle across a courtyard,” “that was not the case here,” and the evidence did not support a mutual combat theory (A 802). Counsel further asserted that it would be “improper” to submit both intentional and depraved indifference murder to the jury (A 793, 798, 803). Given the prosecution’s transferred intent theory with respect to intentional murder, counsel urged, there was no evidence “to support the position that [appellant] acted with reckless intent [sic] to cause the death of Mr. Benjamin” (A 804). The prosecutor argued that mutual combat both permitted the submission of depraved indifference murder in addition to intentional murder and precluded a self-defense claim (A 801). Although the court initially expressed concern about submitting both intentional and depraved indifference murder, noting that “case law came down indicating that there has to be an election,” it ultimately decided to do so. The “reckless conduct” of entering into a “gunfight,” the court reasoned, rendered the intentional and depraved indifference crimes “distinct[ly] differen[t],” making them “two different crimes so to speak” (A 800-801). Later, counsel moved for a mistrial on the ground that, under due process principles, appellant should not have had to -30- defend himself against two theories of murder, intentional and depraved indifference, again citing Russell, 91 N.Y.2d 280 (1998). The prosecutor countered that the intentional murder count in Russell was dismissed because the victim had been killed by a single bullet that could not be traced to a particular gun, which was not the case here (A 829-830). The court denied the motion (A 830). In submitting depraved indifference murder to the jury, the court charged without objection that, to convict, the jurors had to find beyond a reasonable doubt that the defendants “acting in concert engaged in mutual combat with firearms in a public space and caused the death of Carol Simon” (A 938). The court defined “mutual combat” as: . . . [t]he taking up of each others challenge, sharing in the venture and unjustifiably creating a zone of danger when each is responsible for his own acts and the acts of others (A 938). It did not charge justification as to this count. It submitted second-degree reckless manslaughter as a lesser offense (A 939-940). The court directed the jury that, regardless of its verdict on depraved indifference murder and reckless manslaughter, it must also render a verdict on intentional murder under a transferred intent theory requiring proof that, with the intent to kill Herburtho Benjamin, appellant caused the death of Carol Simon (A 955-956). It delivered a justification charge as to this count, and submitted -31- first-degree manslaughter (intent to cause serious physical injury) as a lesser included offense of intentional murder (A 946-947). The court also submitted attempted murder in second-degree as to Benjamin, with attempted first-degree assault as a lesser offense (A 947-951), and second-degree criminal possession of a weapon along with a temporary innocent possession defense (A 951-954). The jury convicted appellant of both counts of second-degree murder, attempted murder, and criminal possession of a weapon (A 1000-1001). The Motion to Dismiss After the prosecution’s last witness testified, the court solicited motions from defense counsel, who then asked “if [he] could reserve motions until the close of all the evidence.” “No problem,” the court responded, “I’ll give you some time, [the co-defendant’s jury] wants a read back . . . and then you can put on your case” (A 635). The prosecutor said nothing on the matter. As the court was about to bring in the jury for the final charge, counsel noted that he had yet to move to dismiss. [DEFENSE COUNSEL]: . . . I still have not waived motions [sic]. THE COURT: Did you waive motions? You said you’d waive then until later. [DEFENSE COUNSEL]: Until the close of the case, so I still want to - - -32- THE COURT: You’re still continuing your waiver, I understand (A 922). The prosecutor did not say anything on the matter. At sentencing, counsel reminded the court that he had “reserved” motions: [DEFENSE COUNSEL]: As the court is aware, I reserved motions at the end of the People’s case as well as at the close of our case and I’d like to make those motion’s now. THE COURT: Yes (A 1007). There was no protest by the prosecutor, and counsel proceeded. Defense counsel argued, inter alia, that the prosecution failed to “set forth a prima facie case” that appellant acted with the requisite depravity to convict him of depraved indifference murder (A 1007-1010). He recounted: . . . [Appellant] was not known to most of the individuals that proposed this war party. They followed [him] out of the hallway, and in a relatively short time, a weapon was drawn pointed [at him], and then, in response, [appellant] pulled a weapon that by his testimony, that he had just taken moments before from [another] individual . . . . [Appellant] returned fire, and [struck Simon]. I think that there is no reasonable view of the evidence that would support the theory that [appellant] in returning fire under those circumstances was reckless or wanton . . . [warranting] a conviction for depraved indifference. I think that given Mr. Dubarry’s [per]spective and the circumstances at that time, there was no reckless behavior on his part. There certainly was no depraved indifference depriving him of -33- his heart and that charge should not have been submitted to the jury . . . (A 1010). The prosecutor largely relied on the record, terming the defense case “patently incredible” (A 1015). The court denied the motion without elaboration (A 1015). The Appellate Division Decision Appellant argued before the Appellate Division, Second Department, that the submission of the depraved indifference murder and intentional murder counts in the conjunctive, rather than in the alternative, violated due process. “[D]eclin[ing] to follow” People v. Molina, 79 A.D.3d 1371 (3d Dep’t 2010), the court rejected that argument, and held: “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims” (People v. Page, 63 A.D.3d 506, 507–508 [1st Dep’t 2009]; see People v. Henderson, 78 A.D.3d 1506, 1507 [4th Dep’t 2010]; People v. Monserate, 256 A.D.2d 15, 15–16 [1st Dep’t 1998]; see also People v. Douglas, 73 A.D.3d 30, 33–34 [2d Dep’t 2010] [“a defendant may act with a specific intent directed at one person, while at the same time being reckless with respect to a different person”]; People v. Atkinson, 21 A.D.3d 145, 150 n. 1 [2d Dep’t 2005]. (A 3). The court rejected appellant’s claim that the evidence was legally insufficient to establish depraved indifference murder, finding the issue unpreserved and, in any event, without merit (A 2). It also rejected the argument that the -34- admission of Francois’s grand jury testimony violated his right to confrontation, holding that the prosecution had “established by clear and convincing evidence that the witness’s unavailability was procured by misconduct on the part of [appellant]” (A 3). Chief Judge Lippman granted appellant leave to appeal (A 1). ARGUMENT POINT I APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN THE COURT SUBMITTED INTENTIONAL AND DEPRAVED INDIFFERENCE MURDER WITH RESPECT TO THE SAME VICTIM IN THE CONJUNCTIVE RATHER THAN IN THE ALTERNATIVE, RESULTING IN HIS CONVICTION OF BOTH CRIMES. With respect to the death of Carol Simon, appellant was convicted of both intentional murder under P.L. § 125.25(1) and depraved indifference murder under P.L. § 125.25(2). He was convicted of intentional murder under a theory of transferred intent: that, intending to cause the death of Herburtho Benjamin, he killed Ms. Simon. He was convicted of depraved indifference murder under the theory that he recklessly caused Ms. Simon’s death by engaging in mutual combat with Benjamin. The court submitted the murder counts in the conjunctive, explicitly instructing the jury to render a verdict on intentional murder regardless of its verdict on depraved indifference murder. The verdict convicting appellant of both -35- counts thereby multiplied his criminal liability for a single death, and relieved the jury of its responsibility to decide whether appellant acted intentionally or recklessly, depriving him of due process and a fair trial. U.S. Const. Amend. XIV; N.Y. Const. Art. I, § 6. Several principles articulated by this Court compel the conclusion that, even when a defendant is charged with intentional murder under a transferred intent theory, that charge and depraved indifference murder must be submitted to the jury in the alternative to avoid imposing double liability for the same death and removing a critical decision from the jury. First, there is a general prohibition against submitting both intentional and depraved indifference murder to the jury at all, even in the alternative. Twin-count indictments — charging both intentional and depraved indifference murder — should be “rare,” and twin-count submissions to a jury, “even rarer.” People v. Suarez, 6 N.Y.3d 202, 215 (2005) (emphasis added), quoting People v. Wall 29 N.Y.2d 863, 864 (1971). This is so because, “by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes ‘an intentional [killing] or no other.’” Id. (internal citations omitted). This prohibition is employed to avoid double liability for a single death since a defendant cannot have intended the death of a victim and, at the same time, “committed depraved mind murder by recklessly and thus -36- unintentionally killing that same victim.” People v. Gallagher, 69 N.Y.2d 525, 528-530 (1987), cited in Suarez, 6 N.Y.3d at 226. In the “rare” circumstance in which the defendant’s mental state as to a single homicide remains unclear by the end of the case, “both counts” — intentional murder and depraved indifference murder — “may be submitted to the jury, but only in the alternative.” Gallagher, 69 N.Y.2d 525 at 528. Most often, the prohibition has been applied when the intended and actual victim are one and the same. See, e.g., Gallagher at 529-530; cf. Suarez, 6 N.Y.3d at 215 (2005) (reversing depraved indifference murder conviction when evidence proved that defendant acted intentionally). But double liability should not be imposed when the intended and actual victims are different either, such as here where appellant was convicted of both intentional murder under a transferred intent theory (intending to kill Benjamin, but killing bystander Simon) and depraved indifference murder (recklessly killing Simon). Even assuming that a defendant may hold different states of mind in that he may “intend to cause the death of one person while simultaneously engaging in conduct that recklessly creates a grave risk of death to another,” when he is charged with the death of only a single bystander, it remains true that “he may be found guilty of the intentional murder of [the bystander] under the doctrine of ‘transferred -37- intent’” “or he may be found guilty of depraved indifference murder by his act of shooting a gun in an occupied [area],” but not both. People v. Molina, 79 A.D.3d 1371, 1374 (3d Dep’t 2010) (internal citations omitted) (emphasis added). As this Court noted with approval: The doctrine [of transferred intent] sets up a fiction that should not be employed to “multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime.” People v. Fernandez, 88 N.Y.2d 777 (1996) (internal citations omitted). The theory of transferred intent, which permits prosecution under P.L. § 125.25(1) for causing the death of an unintended victim, merely prevents a defendant from avoiding criminal liability because of “bad aim or some other ‘lucky mistake.’” Fernandez, 88 N.Y.2d at 781 (internal citations omitted). It does not justify imposing double liability for a single death whether it be of a bystander or of an intended victim. See Gallagher, 69 N.Y.2d at 529-530 (error to charge intentional and depraved indifference murder in the conjunctive as to killing of intended victim); cf. Suarez, 6 N.Y.2d at 215 (when a defendant is charged with both intentional homicide and depraved indifference murder as to a single victim, the trial court should presume that defendant’s conduct falls within only one category of murder and, unless compelling contrary evidence is presented, dismiss the count -38- that is least appropriate under the facts). Logic permits imposing “double liability” when two distinct crimes have been committed, for example, when both the intended victim and a bystander have been killed. Plainly, under that circumstance, each of the decedents was the victim of a separate crime, warranting accountability by the defendant for each distinct death. Similarly, liability may lie for both murder and attempted murder when an attempt to kill one victim results in another’s death. Again, there are two victims, each the subject of a different crime, warranting accountability for both wrongs. Cf. Fernandez, 88 N.Y.2d 777 (transferred intent doctrine does not apply to attempted murder as there is no death of an unintended victim). In appellant’s case, however, double liability was imposed for a single wrong: the death of a single individual. That the doctrine of transferred intent should not be exploited to impose double liability in that situation conforms with the general prohibition against multiple convictions for a single criminal act. As the Court explained in the context of lesser included offenses: . . . [It is a] basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts. People v. Perez, 45 N.Y.2d 204, 209 (1978) (emphasis added). -39- The lesser included offense rule is instructive. For example, criminally negligent homicide is a lesser included offense of second-degree manslaughter because, “exclusive of the mental state, the result and underlying conduct requisite in both [crimes] are identical.” People v. Hanley, 30 N.Y.2d 328, 333 (1972), quoted in Perez, 45 N.Y.2d at 210. Similarly here, the “mental state[s]” for intentional murder and depraved indifference murder differ, but the “result” (the death of Ms. Simon) and the “underlying conduct” (firing a gun) are “identical.” Cf. Perez, 45 N.Y.2d 204 (robbery and weapon possession are “separately cognizable and statutorily proscribed wrongs” because they “differ not merely in the requisite mental state of the actor, but, more importantly, in their underlying conduct and result”). So, just as a defendant may not be convicted of both a greater count and its lesser included offense, appellant should not have been convicted of both intentional and depraved indifference murder. While the former scenario can be remedied by dismissal of the lesser included count, C.P.L. § 300.40(3)(b), that remedy is unavailable when the jury has not had to choose between intentional and depraved indifference homicide. The only way to prevent double liability in that situation is to mandate submission of such counts in the alternative. People v. Trappier, 87 N.Y.2d 55 (1995), does not dictate a different rule. In Trappier, the defendant fired three -40- shots at the complainant from a distance, barely missing him. Critical to this Court’s holding that the guilty verdicts of attempted first-degree assault and first-degree reckless endangerment were not repugnant was that the respective mental states — intending to cause serious physical injury and recklessly creating a grave risk of death — applied to “different outcomes.” The potential outcome as to which Trappier acted recklessly — death — was both distinct from and “more serious” than the potential outcome as to which he acted intentionally — serious physical injury. Trappier, 87 N.Y.2d at 57, 59. In contrast, in appellant’s case, the “outcomes” as to each murder count were “identical” — the death of bystander Simon. Thus, People v. Robinson, 75 N.Y.2d 879 (1995), and Gallagher, 69 N.Y.2d 525, control. Indeed, in Trappier, the Court explicitly distinguished the identical results in Robinson and Gallagher from the different results for attempted assault and reckless endangerment at issue in that case. Trappier, 87 N.Y.2d at 59. Furthermore, even aside from the imposition of double liability that results from the submission of intentional and depraved indifference murder in the conjunctive, doing so “impermissibly takes the issue of determining defendant’s mens rea out of the hands of the jury.” Molina, 79 A.D.3d at 1374, citing Gallagher, 69 N.Y.2d at 530 (“Because the jury found defendant guilty of both intentional and reckless homicide, it -41- is impossible to determine what if anything the jury decided on the issue of defendant’s mental state”). Criminal Procedure Law § 300.40(5) provides that, if a guilty verdict on either of inconsistent counts would be supported by legally sufficient evidence, “the court may submit both counts in the alternative,” directing the jury “that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other”. See Gallagher, 69 N.Y.2d at 530. That it may be difficult to determine whether a defendant acted with an intent to kill or recklessly with depraved indifference does not matter. We expect jurors to resolve difficult issues, not just easy ones. “[T]hose are the hard choices to be weighed by the trier of fact.” Suarez, 6 N.Y.3d at 214. “Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions”. Id. Nor should there be any concern that directing the jury to determine a defendant’s mens rea will permit him to escape liability for causing the death of an unintended victim. Submitting counts of intentional and depraved indifference murder in the alternative does not impose any additional burden of proof on the prosecution since doing so does not alter the statutory elements of the crimes. Indeed, submitting such counts in the alternative gives the People two opportunities to obtain a murder conviction. Because there are consequences beyond imprisonment of -42- having multiple convictions for a single crime, that appellant’s sentences for the inconsistent murder counts run concurrently does not render this issue moot. Having multiple convictions for the same crime may affect whether and when a defendant is released to parole. “Discretionary release on parole [is] not [] granted merely as a reward for good conduct.” Executive Law § 259–i(2)(a)(c)(A). Among the statutory factors the Parole Board “shall” consider is “the seriousness of the offense with due consideration to the type of sentence.” Executive Law § 259–i(2)(a)(c)(A)(vii). And common sense dictates that an offense that garnered two murder convictions may be considered more “serious[]” than an offense that garnered one. Moreover, since the Board “need not . . . give equal weight to each factor,” Ward v. New York State Div. of Parole, 26 A.D.3d 712, 713 (3d Dep’t 2006), the number and nature of the convictions may weigh heavily in its calculation. Also, once a defendant has been released into the community, whether he is under supervision or not, the entirety of his convictions will certainly affect his employment and housing opportunities, since background checks are commonplace. Finally, it is fair to assume that there are social consequences to having two murder convictions rather than one. For all these reasons, this court should adopt the sound reasoning and holding in Molina, 79 A.D.3d 1371 (error to -43- submit intentional murder count, under theory of transferred intent, and depraved indifference murder count in the conjunctive). The pertinent facts of Molina make it indistinguishable from the People’s theory in appellant’s case. At an apartment complex, Molina, who had gotten into a disagreement with a group of men, fired several shots at the group. One of the bullets penetrated the exterior wall of an apartment within the complex, killing the resident inside. Thus, just as appellant is alleged to have done, the defendant in Molina fired a gun in a public space, killing a bystander instead of his target. Just like appellant, Molina was prosecuted for both intentional murder under a transferred intent theory — that he “mistakenly” killed the deceased while aiming at the opposing group — and depraved indifference murder for firing a gun in a populated area. Molina, 79 A.D.3d at 1374. Accordingly, the reasoning of the Third Department in Molina, that the defendant could be guilty of either intentional or depraved indifference murder, “but not both,” is squarely applicable to appellant’s case. Cf. People v. Timmons, 78 A.D.3d 1241, 1243 (3d Dep’t 2010) (court properly submitted intentional murder under a transferred intent theory and depraved indifference murder in the alternative when the defendant fatally shot a bystander instead of his intended target).12 12In light of the soundness of this reasoning, this Court should reject People v. Henderson, 78 A.D.3d 1506 (4th Dep’t 2010), People v. Page, 63 A.D.3d 506 (1st Dep’t 2009), and -44- Defense counsel preserved this issue for review when he argued at the charge conference, that it would be “improper to submit both an intentional [and a] depraved indifference crime” (A 803), and moved for a mistrial because, under due process principles, appellant should not have had to defend himself against both murder theories (A 848). In any event, the court reached the issue when it voiced concern about submitting both the intentional and depraved indifference counts, noting that “case law came down indicating that there has to be an election,” but reasoning that the “reckless conduct” of engaging in a gunfight rendered depraved indifference murder “distinct[ly] differen[t]” from intentional murder (A 800-801). C.P.L. § 470.05. In sum, the court’s submission of intentional and depraved indifference murder in the conjunctive violated due process. Accordingly, appellant’s conviction of those counts should be reversed and order a new trial ordered. People v. Monserate, 256 A.D.2d 15, 15-16 (1st Dep’t 1998). -45- POINT II THE PROSECUTION PRESENTED LEGALLY INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF DEPRAVED INDIFFERENCE MURDER, AS CHARGED TO THE JURY, BECAUSE IT FAILED TO ESTABLISH THAT HE AND HIS CO-DEFENDANT AGREED TO ENGAGE IN MUTUAL COMBAT. As the court charged without objection, to convict appellant of depraved indifference murder, the prosecution had to prove that appellant and Herburtho Benjamin engaged in “mutual combat” by the “taking up of each other[’]s challenge, sharing in the venture” of a gun battle. The People failed to present evidence of any communication - verbal or non-verbal - between appellant and Benjamin before the shooting, however. Thus, they failed to present legally sufficient evidence to establish beyond a reasonable doubt that appellant committed depraved indifference murder. See People v. Prindle, 16 N.Y.3d 768, 770 (2011). Accordingly, appellant’s conviction of that crime must be reversed and that count of the indictment dismissed. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; Jackson v. Virginia, 443 U.S. 307 (1979). “When engaging in legal sufficiency review, we generally measure the evidence against the jury charge given without objection or exception.” Prindle, 16 N.Y.3d at 770 (reducing depraved indifference murder to second-degree manslaughter after evaluating sufficiency of the evidence based on the jury charge). See also People v. Malagon, 50 N.Y.2d 954 (1980); People v. Bell, 48 N.Y.2d 913 (1979). -46- Under the court’s charge, to convict appellant of depraved indifference murder, the prosecution had to prove beyond a reasonable doubt that appellant, “acting in concert [with Benjamin,] engaged in mutual combat with firearms in a public space and caused the death of Carol Simon” (A 938-939). The court defined “mutual combat” as: . . . [t]he taking up of each others challenge, sharing in the venture and unjustifiably creating a zone of danger when each is responsible for his own acts and the acts of others (1087). See P.L. § 35.15(1)(c) (precluding justification defense when there is combat by agreement); P.L. § 125.25(2); People v. Russell, 91 N.Y.2d 280 (1998). Viewing the evidence in the light most favorable to the prosecution, there was insufficient evidence to establish an explicit or even tacit agreement between appellant and Benjamin to engage in a public gunfight. To issue and accept a challenge there obviously must be some exchange, either verbal or non-verbal, between the two people involved. Neither Sanders, Murphy, nor Francois claimed to have witnessed any such exchange. Nor did they see either appellant or Benjamin acknowledge the other’s presence either as appellant walked down the stairs and through the lobby or as Benjamin rushed past appellant on the walkway before positioning himself behind a pillar. Nothing in the surveillance footage indicates that appellant and Benjamin even made eye contact at any point. At most, the People -47- established that appellant walked slowly and looked at everybody on his way down the lobby stairs, remained outside smoking after passing through the lobby, and received “nasty looks” from the lobby group as they walked outside (People’s Exhibit # 43). That evidence fell far short of establishing that he reached a mutual combat agreement with Benjamin. None of it suggested any specific communication with Benjamin. Indeed none of it was exceptional at all. Any rational person without bad intentions might well be wary of a crowd congregated in a confined lobby, especially if they were sporting Crypt gang colors. That appellant remained outside hardly suggested that he was aware of, much less had agreed to participate, in a looming gun battle, especially since he simply continued smoking a cigarette and he had no previous exchange that allowed the inference that he remained there for any nefarious purpose. If mere “nasty looks” meant an impending gun battle, gun battles would abound in our society. They alone hardly constituted a challenge to engage in gun battle so that the failure to flee from “nasty looks” amounted to “taking up” such a challenge. With no evidence of any communication whatsoever between appellant and Benjamin, the prosecution utterly failed to prove that appellant either issued or accepted a “challenge” to engage in a gun battle or that he and Benjamin had a “community of purpose” to undertake such a “shared venture.” See People v. Ficarrota, 91 N.Y.2d 244, 248 (1997) (acting in -48- concert requires proof that defendant shared a “community of purpose” with accomplice); People v. LaBelle, 18 N.Y.2d 405, 412 (1996) (“there can be no partnership in an act where there is no community of purpose”); People v. Cabey, 85 N.Y.2d 417, 421 (1995). Furthermore, other aspects of the evidence demonstrate the opposite of the mutual combat agreement the People had to prove. Since Wendy was still bleeding as Benjamin made his way to the building, it is evident that the stabbing to be avenged took place just before Sanders and Murphy were summoned. Yet the prosecution did not contest that appellant, who had no prior convictions, had been at a Sabbath service before the shooting or otherwise assert that he was Wendy’s assailant. That someone in the lobby announced, “That’s him” after appellant had left the building (A 71-74, 79, 85-86, 195) appears to have been a mistake by someone in Benjamin’s group. It might reflect on Benjamin’s ill intent, but it did not indicate in any way that appellant acquiesced in a planned gun battle. Additionally, in contrast to Benjamin, appellant was not accompanied by a crew that, as Francois told the grand jury, “w[as] looking for trouble” (A 467). It makes particularly little sense that appellant would agree to a challenge when he was overwhelming outnumbered. It also makes little sense that appellant would agree to a gunfight while his friend Bellamy was in the line of fire, near Benjamin the moment before the -49- shooting began, as shown by the surveillance footage and confirmed by the testimony of both prosecution eye witnesses. There was also no evidence whatsoever that appellant prepared for battle. After leaving his worship service, appellant smoked a cigarette on the walkway. He continued to smoke as he walked toward the street behind his friend and fellow congregant, Bellamy. Even after Benjamin’s group exited the building, appellant continued smoking rather than readying himself for a fight.13 The dearth of evidence of mutual combat in appellant’s case stands in stark contrast to the proof in People v. Rosario, 292 A.D.2d 324 (1st Dep’t 2002). In Rosario, the opponent “used an expression constituting, in local parlance, a challenge to a gunfight.” Id., at 325. In response, the defendant left the scene to arm himself, then returned. Thus, the evidence supported the conclusion that he was not the victim of a “surprise attack.” Id. No parallel evidence exists in this case. In fact, in notable contrast to the facts in Rosario, here, Benjamin rushed past appellant without communicating with him and positioned himself “behind” a pillar (A 202-204, 13Appellant’s flight to Georgia, even assuming he had help from his brother, did not bolster the prosecution’s otherwise weak case. Evidence of consciousness of guilt, such as flight, has limited probative value. People v. Cintron, 95 N.Y.2d 329, 332-333 (2000); People v. Bennett, 79 N.Y.2d 464 (1992). A rationale person in appellant’s shoes might have fled in light of the threat he had just faced and the fear of prosecution for his acts, regardless of whether he had agreed to engage in mutual combat. -50- 209-211). This conduct, by a man who had gone to the scene armed with a gun and with a posse for back-up to “do some damage” (A 105-106, 108), is powerful evidence that he conducted a “surprise attack” on appellant as appellant stood there smoking. Appellant’s facts also significantly differ from those in Russell, 91 N.Y.2d 280. Russell (with a friend) and Burroughs approached one another in the open area of an apartment complex. Burroughs advised his female friends to leave, which they promptly did, whereupon the three men continued to walk toward each other. As they drew nearer, they all began firing, as they ran “through the area aggressively pursuing one another,” killing a bystander. Id. at 290. Unlike the tell-tale mutual approach, warnings to friends to leave, simultaneous drawing of weapons, and prolonged battle in Russell, nothing in appellant’s case suggests that appellant and Benjamin had a meeting of the minds. Benjamin took a tactical position behind a column as appellant left himself vulnerable, standing on the walkway. In short, because the prosecution failed to present proof of any communication between appellant and Benjamin, or proof of any other circumstance from which a mutual combat agreement can reasonably be inferred, there was legally insufficient evidence, as the count was charged to the jury, to convict of appellant of depraved indifference murder, and that count should be dismissed. -51- Appellant’s convictions for intentional murder and attempted murder should also be reversed, and a new trial ordered on those counts. Not only did the depraved indifference and intentional counts emanate from the identical locus of facts, but the jury’s erroneous determination with respect to the mutual combat element of the depraved count necessarily affected their consideration of the justification defense for intentional murder. Without a mutual combat agreement, the evidence indicating that Benjamin displayed his weapon first and that appellant did not have an opportunity to safely leave the vicinity takes on far more significance. The jury might well have reached a different conclusion as to the initial aggressor and “duty to retreat” aspects of justification had they not been told to consider the mutual combat theory. Given the high degree of factual integration between the two murder counts, a new trial is required for the intentional counts if the depraved indifference murder count is dismissed for lack of proof. People v. Kelly, 76 N.Y.2d 1013, 1015 (1990); People v. Cohen, 50 N.Y.2d 908, 911 (1980). * * * Defense counsel preserved this issue for review. After the prosecution’s last witness testified, defense counsel asked for permission to “reserve motions until the close of all the evidence,” to which the court responded, “No problem” (A 635). After the defense case, the court held a “pre-charge -52- conference,” during which counsel requested a justification charge as to depraved indifference murder, observing, “the evidence does not sustain a finding that there was mutual combat” (A 802). See People v. Cona, 49 N.Y.2d 26, 34 (1979) (timely objection to corroboration charge preserved question of whether the evidence on accomplice corroboration was sufficient); People v. Rosenblatt, 277 A.D.2d 61 (1st Dep’t. 2000) (insufficiency of evidence issue preserved by objections to pertinent portion of court’s charge); cf. People v. Dekle, 56 N.Y.2d 835, 836-837 (1982) (sufficiency issue unpreserved due to general nature of motion to dismiss and fact that “[d]efendant took no exception” to court’s charge on the pertinent element); People v. Stahl, 53 N.Y.2d 1048, 1050 (1981) (sufficiency issue unpreserved due to general nature of motion to dismiss and absence of any “protest registered concerning the trial court’s omission to charge the jury” on element). Following a rebuttal case that did not concern the mutual combat issue and summations, the court stated its understanding that counsel was “still continuing” his waiver of motions “until the close of the case” (A 922). At no time did the prosecution protest. At sentencing, after the court noted, again without protest by the prosecution, that counsel had “reserved” his motions, counsel argued that the depraved indifference murder charge “should not have been submitted to the jury” (A 1010). -53- To conclude, the People failed to prove by legally sufficient evidence that appellant engaged in mutual combat with Benjamin. Accordingly, appellant’s conviction for depraved indifference murder must be reversed, that count of the indictment dismissed, and a new trial ordered on the intentional and attempted murder counts. POINT III THE ADMISSION OF AN EYEWITNESS’S GRAND JURY TESTIMONY VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION BECAUSE THERE WAS NO CLEAR AND CONVINCING EVIDENCE THAT APPELLANT FACILITATED OR KNOWINGLY ACQUIESCED IN PURPORTED THREATS MADE BY AN UNIDENTIFIED PERSON UNDER UNKNOWN CIRCUMSTANCES. At a mid-trial Sirois hearing,14 Markenzie Francois stated that he would not testify at trial for fear of harm to his family. With scarcely any elaboration, Francois explained that his brother had been told by an unidentified “Israelite” that Francois was a “snitch,” and that his sister had been told by a third party that “the Israelites” believed Francois had been “snitching.” The court found that Francois was rendered unavailable “due solely to the defendant Dubarry,” and allowed the prosecution to introduce Francois’s grand jury testimony on its direct case. Because the Sirois record failed to establish that appellant made or facilitated threats against Francois or his 14People v. Sirois, 92 A.D.2d 618 (2d Dep’t 1983); Holtzman v. Hillebrand, 92 A.D.2d 405 (2d Dep’t 1983). -54- family, the ruling was incorrect. This error, which violated appellant’s right to confront the witnesses against him and denied him due process, requires the reversal of appellant’s conviction and a new trial. U.S. Const. Amends. VI, XIV; N.Y. Const. Art. I, § 6. The confrontation clauses of the federal and state constitutions provide that, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Crawford v. Washington, 541 U.S. 36 (2004). Thus, the grand jury testimony of unavailable witnesses is ordinarily inadmissible as evidence-in-chief. Id., at 1374; People v. Green, 78 N.Y.2d 1029 (1991); People v. Gonzalez, 54 N.Y.2d 729 (1981); C.P.L. § 670.10. In People v. Geraci, 85 N.Y. 2d 359 (1995), the Court recognized a limited exception to a defendant’s constitutional right of confrontation and the hearsay rule if the People show that a witness has been rendered unavailable to testify at trial through the “misconduct” of the defendant personally, or of others acting on his behalf “with the defendant’s knowing acquiescence.” Id. at 366 (emphasis added); see also People v. Cotto, 92 N.Y.2d 68, 75-76 (1998); People v. Maher, 89 N.Y. 2d 456, 461 (1997). When such misconduct has made the witness unavailable, out-of-court statements, including grand jury testimony, may be admitted as part of the prosecution’s direct case. Geraci, at 366. This rule, which the Court characterized as a “forfeiture dictated by sound public -55- policy,” is aimed at reducing the incentive to tamper with witnesses. Id., at 367-68; Maher, at 461. As the Court observed, however, “[o]bviously, a defendant’s loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation.” “[E]ven more significantly, society has a weighty investment” in protecting the right of confrontation “[b]ecause of the intimate association between [that right] and the accuracy of the fact-finding process.” Geraci, at 367. Recognizing “the gravity of the interest at stake,” the Court required that the defendant’s “knowing acquiescence” in any threat be established by “clear and convincing” evidence. Geraci, at 367. It also cautioned that this hearsay exception “must not be expanded and applied to circumstances in which the facts giving rise to the necessity for the exception are absent.” Maher, at 461 (1997). Accordingly, more than a “preponderance of the evidence” is required, Geraci at 367, and if circumstantial evidence is relied upon, it must establish more than mere suspicion of a defendant’s involvement. People v. Hamilton, 127 A.D.2d 691 (2d Dep’t 1987). Here, the prosecution failed to carry its burden of establishing by clear and convincing evidence that appellant knowingly acquiesced in anyone conveying a threat to Francois’s siblings. Rather, the court’s Sirois finding was based on the purely speculative assumption that, as an -56- Israelite, appellant was responsible for what another, unidentified Israelite did in some unspecified manner, on an unspecified date, and at an unspecified place. Scarcely any facts were adduced at the hearing, let alone facts sufficient to establish appellant’s “knowing acquiescence” in any threats purportedly conveyed to Francois’s family. See Geraci, at 366. The day before the hearing, Francois’s brother told him, “The Israelites hear that you’re a snitch or something like that” (A 424-425, 433). But there was no basis whatsoever in the record to conclude by any standard that appellant knew the person who supposedly spoke to Francois’s brother, much less that appellant solicited, authorized, or approved of that person threatening Francois or his family. Francois did not identify by name, description, or even gender, the person who supposedly spoke to his brother. Indeed, he did not even specify whether his brother was addressed by a single person or a group - according to Francois, his brother “just said the Israelites” (A 430). Nor did Francois allege how his brother came to the conclusion that this person was an Israelite.15 And Francois did not know when the “snitch” comment was made, where it was made, or the 15In the mid-1980s, the population of Hebrew Israelites in the United States numbered between 25,000 and 40,000. One sect, the Commandment Keepers, has eight to ten congregations in the New York area. Wikipedia, Black Hebrew Israelites, http://en.wikipedia/wiki/BlackHebrewIsraelites (last modified on Feb. 15, 2014, 21:01 GMT). -57- manner in which it was communicated. Just as scant was the evidence of the purported threat reported by Francois’s sister. Supposedly, she had been told by Kendrick - who was at the incident, but was not an Israelite – that “the Israelites” thought Francis had been “snitching” (A 435). Francois did not say when this conversation took place, nor did he provide any of the circumstances leading Kendrick to conclude that some unidentified Israelite(s), at some unspecified place and time and in some unspecified manner, expressed the belief that Francois had been “snitching.” From these skimpy facts, the prosecutor theorized that appellant was responsible for the “snitch” comments because Francois’s grand jury testimony had been turned over just before trial, so only the defendants and counsel were aware of it. But the prosecutor’s accusation was dependent upon many baseless assumptions. She made no attempt to demonstrate that appellant had communicated with anyone, let alone an Israelite in particular, who could have conveyed a threat. Nor did she establish that appellant approved of any communication with Francois’s family, let alone communication that could be perceived as threatening. The prosecutor’s theory assumed that no one among the many people interviewed by the police, present at the scene, or living in the building was aware that Francois had spoken to the authorities. It also assumed that the “snitching” referred to Francois’s grand jury testimony in -58- particular, as opposed to his police interviews. Among others, Francois’s cousin, who called to tell him to look out his window, must have at least guessed that he was an eyewitness to the crime. And anyone could have seen Francois talk to the police, accompany them, or go to the precinct. There was no evidence whatsoever that the “snitch” comments were made between the time Rosario material was turned over and the siblings’ visit with Francois. Indeed, Francois did not even testify whether or when his brother and sister had visited him in the last month before they conveyed the “snitch” remarks. Thus, there was no link established between the purported misconduct and appellant. The court’s conclusion that Francois’s unavailability was “due solely to defendant Dubarry” (A 455) was likewise baseless. Not only was there no evidence of any communication by appellant with anyone, but there was no evidence that he had any authority within his congregation or his sect. Appellant, who had no prior convictions, should not be presumed responsible for whatever conduct his fellow believers may have undertaken. The evidence here falls far short of what has been held sufficient to meet the People’s burden. In People v. Clarke, 55 A.D.3d 1447 (4th Dep’t 2008), for example, a recorded conversation revealed that the incarcerated defendant gave the name and phone number of a witness to a third party, and said “he could not have that witness appear at his trial.” Id. at -59- 1448. In stark contrast, in appellant’s case, the prosecutor presented no proof that appellant had communicated with anyone. Even assuming that the “snitch” comments could be perceived as threats, that appellant may have benefitted from them is of no consequence. There must have been “clear and convincing” evidence that Francois’s unavailability was the result of “the misconduct of [appellant] personally, or of others on his [] behalf with [appellant’s] knowing acquies- cence.” Otherwise he could not be deprived of his right to confrontation by the admission of Francois’s grand jury testimony. Maher, at 461 (1997) (emphasis added); see Geraci, at 366-371. Appellant’s purported involvement in any threats was utterly speculative, and courts have consistently held that: speculation and conjecture[,] which at best, may rise to the level of suspicion as to [a] defendant’s involvement in [the witness’s] refusal to testify . . . does not constitute clear and convincing evidence which is necessary in order to find a waiver by the defendant of his right to confrontation. Hamilton, 127 A.D2d at 692; see People v. Johnson, 250 A.D.2d 922 (3d Dep’t 1998). Francois’s hearsay account identifying the person who communicated with his family as an “Israelite” established neither the culprit’s membership within appellant’s congregation nor appellant’s responsibility for the threat. Even if the culprit were a fellow congregant, however, it is a far stretch to conclude that appellant -60- solicited or condoned these bad acts. Without evidence that appellant actually communicated with someone outside of jail and expressed his knowing acquiescence, the People have failed to meet their high burden of proving that appellant’s misconduct brought about Francois’s refusal to testify. Geraci, 85 N.Y. 2d at 366. * * * The admission of Francois’s unconfronted grand jury testimony was not harmless beyond a reasonable doubt since it undermined appellant’s account that he pulled out a gun and “shot back” only after Benjamin suddenly brandished a gun and attempted to fire at him (A 731-732). The People’s own evidence suggested that appellant was the victim of a surprise attack. It firmly established that Benjamin, accompanied by a crew of about eight others, congregated in the lobby of the building to avenge an assault on one of their own. Only moments after appellant appeared on the scene, the crew followed him outside and dispersed. Rushing past appellant, Benjamin placed himself in a position to attack, standing — or more likely hiding — behind a column. Sanders maintained that he saw Benjamin point a gun toward Bedford Avenue, where appellant was standing, before Sanders heard any shots. This testimony, which defense witness Bellamy corroborated, obviously provided strong support for appellant’s consistent claim that Benjamin was the initial aggressor. Also consistent with appellant’s claim was the -61- surveillance footage, which showed appellant continue smoking on the walkway, even after Benjamin rushed past him to position himself behind the column, and Bellamy suddenly fleeing in fear before appellant fired. That meant that, without Francois, the People’s case would have rested solely on Murphy, who claimed that Benjamin’s hands were in his pockets when appellant fired, a claim flatly contradicted by Sanders and Bellamy. Significantly, the prosecution realized Murphy’s credibility was suspect. In her summation, the prosecutor argued that Murphy “tried to bend the truth,” particularly when “he thought he was going to be implicating Benjamin” (A 885) (emphasis added). Moreover, it made no sense that appellant would have drawn his gun first, as Murphy alleged, when his friend Bellamy was in harm’s way, and when appellant was there to attend a worship service while Benjamin’s very reason for being at the building was to avenge a wrong. Murphy’s background also detracted from his credibility: he had three prior convictions, and falsely claimed he had not been present. He also implausibly claimed that, even though he had stayed in New York at the request of the prosecution, he had no idea that he was expected to testify at trial until he was arrested and forcibly brought to court. The prosecutor explicitly relied on Francois’s grand jury testimony to shore up the weaknesses in her case and bolster Murphy’s credibility. Francois claimed that appellant “just -62- started shooting” (A 468) and that, before he heard any gunfire, Francois saw appellant “stretch out his hands and shots were fired” (A 470). The prosecutor argued in summation that Francois “corroborated” Murphy’s claim that appellant “began the shooting,” reciting Francois’s specific claims that he saw appellant “take two steps down and begin to fire,” but “didn’t hear any shots before those” (A 889-890). Francois, she argued, was an “independent witness,” who “corroborated” Murphy’s observations (A 899). Notably, the court apparently believed that Francois’s account inculpated appellant, since it characterized it as “testimony favorable to Mr. Benjamin” (A 451-452). Francois’s evidence was especially troubling because it was presented via his grand jury testimony, which was not subjected to the “vigorous truth testing of cross-examination.” Indeed, such testimony may be especially unreliable because it “is often obtained through grants of immunity, leading questions and reduced attention to the rules of evidence – conditions which tend to impair its reliability.” Geraci, at 368. Cross-examination of Francois might very well have been fruitful. His federal sentences and open state cases made his credibility suspect. Counsel might also have been able to establish that Francois could not see Benjamin during the critical moments just before appellant fired since prosecution and defense witnesses, the surveillance footage, -63- and the location of the .45 caliber shell casings all placed Benjamin behind a column on the Franklin Avenue side of 390 Eastern Parkway where foliage might have obscured him from the view of someone looking down from the building. Thus, there is a reasonable possibility that the erroneous admission of Francois’s grand jury testimony contributed to appellant’s conviction. People v. Crimmins, 36 N.Y.2d 230, 237, 241-242 (1963); see People v. Douglas, 4 N.Y.3d 777 (2005) (right to confrontation violations are subject to constitutional harmless error analysis). Finally, the court exacerbated the error when it refused to let the jury learn that Francois was serving a federal sentence and had several open state cases. Appellant had the right to confront this witness against him, which included the presentation of proof impeaching his credibility. See People v. Scoon, 130 A.D.2d 597 (2d Dep’t 1987) (improper to preclude cross-examination of complainant on underlying acts of his prior youthful offender adjudication since they impacted on the issue of credibility); see also People v. Grant, 222 A.D.2d 1057 (4th Dep’t 1995) (error to limit defendant’s cross-examination of witnesses regarding their prior violent crimes, although harmless); cf. People v. McGhee, 68 N.Y.2d 328 (1986) (because co-defendant had “constitutional right” “to an unimpeded cross-examination of witnesses against him,” proper for co-defendant to cross-examine defendant beyond scope of Sandoval ruling). Contrary to the prosecution, -64- appellant did not forfeit his right to have this information before the jury for its consideration on the issue of credibility, even if the Sirois ruling were correct. This issue was preserved for review by defense counsel’s specific objection that the threats had not been connected to appellant by clear and convincing evidence, and that the admission of Francois’s testimony violated appellant’s rights to cross-examination and confrontation. This Court should, therefore, reverse appellant’s conviction and order a new trial. -65- CONCLUSION FOR THE REASONS STATED IN POINT I, APPELLANT’S MURDER CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL ORDERED; FOR THE REASONS STATED IN POINT II, HIS CONVICTION OF SECOND-DEGREE MURDER (DEPRAVED INDIFFERENCE) SHOULD BE REVERSED, THAT COUNT OF THE INDICTMENT DISMISSED AND A NEW TRIAL ORDERED ON THE INTENTIONAL MURDER AND ATTEMPTED MURDER COUNTS; AND FOR THE REASONS STATED IN POINT III, APPELLANT’S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 ________________________ By: Denise A. Corsí Of Counsel Dated: March 24, 2014 New York, New York -66-