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. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant- Appellant 111 John Street, 9th Fl. New York, N.Y. 10038 (212) 693-0085 DENISE A. CORSÍ Of Counsel August 13, 2014 APL-2013-00346 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I BECAUSE THE INTENTIONAL AND DEPRAVED INDIFFERENCE MURDER COUNTS CONCERNED IDENTICAL OUTCOMES, THE DEATH OF A SINGLE INDIVIDUAL, THEY SHOULD HAVE BEEN SUBMITTED TO THE JURY IN THE ALTERNATIVE, A MATTER THAT WAS PRESERVED FOR REVIEW . . . . . . . . . . . 1 POINT II BECAUSE THE TRIAL RECORD DID NOT ESTABLISH THAT APPELLANT HAD BEEN FOREWARNED OF A IMPENDING SHOWDOWN OR THAT HE HAD HAD A PRIOR DISPUTE WITH THE GROUP THAT CONFRONTED HIM, THERE WAS INSUFFICIENT EVIDENCE THAT HE AGREED TO ENGAGE IN MUTUAL COMBAT, A MATTER THAT WAS PRESERVED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 14 -i- TABLE OF AUTHORITIES CASES People v. Baker, 14 N.Y.3d 266 (2010) . . . . . . . . . 5-6 People v. Fernandez, 88 N.Y.2d 777 (1996) . . . . . . . . 4 People v. Finch, ___ N.Y.3d ___, 2014 N.Y. Slip Op. 03424 (May 13, 2014) . . . . . . . . . . . . . . . . . . . . . 9 People v. Gallagher, 69 N.Y.2d 525 (1987) . . . . . . . 4,6 People v. Gonzalez, 99 N.Y.2d 76 (2002) . . . . . . . . . 7 People v. Molina, 79 A.D.3d 1371 (3d Dep’t 2010) . . . . 4 People v. Perez, 45 N.Y.2d 204 (1978) . . . . . . . . . . 7 People v. Prado, 4 N.Y.3d 725 (2004) . . . . . . . . . . 9 People v. Ramos, 19 N.Y.3d 133 (2012) . . . . . . . . . . 5 People v. Robinson, 145 A.D.2d 184, aff’d 75 N.Y.2d 879 (1999) . . . . . . . . . . . . . . . 5 People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . . . . . . 8 People v. Trappier, 87 N.Y.2d 55 (1995) . . . . . . . . 2-3 People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . . . . . . 8 Suarez v. Bryne, 10 N.Y.3d 523 (2008) . . . . . . . . . 4-5 STATUTES C.P.L. § 300.40(3) . . . . . . . . . . . . . . . . . . . 9 C.P.L. § 300.40(5) . . . . . . . . . . . . . . . . . . 5-6 C.P.L. § 300.50(1) . . . . . . . . . . . . . . . . . . . 6 C.P.L. § 470.05(2) . . . . . . . . . . . . . . . . . . . 13 P.L. § 125.20(4) . . . . . . . . . . . . . . . . . . . . 6 P.L. § 125.25(4) . . . . . . . . . . . . . . . . . . . . 6 -ii- 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 This Reply addresses certain arguments made in the Brief for Respondent.1 As to Point III and other arguments not addressed in this Reply, appellant will rest on his main brief. ARGUMENT POINT I BECAUSE THE INTENTIONAL AND DEPRAVED INDIFFERENCE MURDER COUNTS CONCERNED IDENTICAL OUTCOMES, THE DEATH OF A SINGLE INDIVIDUAL, THEY SHOULD HAVE BEEN SUBMITTED TO THE JURY IN THE ALTERNATIVE, A MATTER THAT WAS PRESERVED FOR REVIEW. Double liability may not be imposed for the death of a single victim, and the doctrine of transferred intent should not be employed to multiply criminal liability. Nevertheless, the People argue that appellant’s dual conviction of intentional murder under a transferred intent theory 1This Court has extended appellant’s time to reply to August 18, 2014. 1 (intending to kill his purported target but instead killing a bystander) and depraved indifference murder (recklessly killing the same bystander) may stand. Moreover, they advance an untenable preservation claim. (A) The People contend that the intentional and depraved indifference murder counts in appellant’s case concerned different mental states for “different results,” thereby justifying double liability (Respondent’s Brief at 35-37). Crucially, they misapprehend People v. Trappier, 87 N.Y.2d 55 (1995), which upheld dual convictions for attempted intentional assault and reckless endangerment, because they concerned “distinct” results, and were, therefore, consistent with each other. Trappier at 57-59. Specifically, in Trappier, the ultimate result as to attempted first-degree assault was merely an attempt to achieve “serious physical injury,” whereas the result as to reckless endangerment was the “creat[ion of] a grave risk of [] death.” Id. at 59 (emphasis in original). Contrary to the People’s argument, the focus in Trappier was not “the result[] associated with the mental state of each count,” but rather the actual or “ultimate result.” See Respondent’s Brief at 40-41 and n. 10. The Trappier court made this point plain in taking issue with the Appellate Division dissenter in People v. Robinson, 145 A.D.2d 184, 187, aff’d 75 N.Y.2d 879 (1999), for “overlook[ing] the fact that 2 the [intentional manslaughter and depraved indifference murder convictions] did indeed involve identical outcomes” or “the same result,” i.e., the death of “the same victim.” Trappier at 59 (emphasis in original). The only way to have found the counts in Robinson consistent would have been to have adopted the People’s mistaken theory of focusing on the “results associated with the mental state of each count” (see Respondent’s Brief at n. 10) (emphasis added) — specifically, serious physical injury and the creation of a grave risk of death. Instead, the conclusion that the counts in Robinson could not stand together necessarily resulted from comparing their ultimate outcomes, which were identical — the death of a single person. Trappier at 59, citing Robinson, 145 A.D.2d at 188, aff’d 75 N.Y.2d 879. Unlike the different outcomes in Trappier, which allowed for double liability because of the differing outcomes, the outcomes in appellant’s case were identical. As to intentional murder, appellant’s supposed intent to kill his target was, via a legal fiction, transferred to the actual result that gave rise to liability — the death of the bystander. Similarly, as to depraved indifference murder, appellant’s supposedly reckless mens rea produced the very same result as that for the intentional count — the death of that same bystander. Since appellant was also convicted of attempted murder of his supposed intended victim, Herburtho 3 Benjamin, his liability for shooting at Benjamin was complete. He could not, in effect, be punished, again, vis-à-vis Benjamin, by lumping a murder charge related to him by way of transferred intent, onto the homicide of the bystander, Carol Simon, whose death also gave rise to the depraved indifference conviction count. The People also contend that appellant’s convictions may stand because it possible to possess two states of mind simultaneously. See Respondent’s Brief at 37. But, again, appellant’s conviction for intentional murder was predicated upon a theory of transferred intent, which “should not be employed to ‘multiply criminal liability,’” as it was here, but to prevent a defendant from escaping responsibility for harming an unintended victim due to bad aim or similar circumstance. People v. Fernandez, 88 N.Y.2d 777 (1996) (internal citations omitted). Thus, contrary to the People’s claim (see Respondent’s Brief at 43), even when the intentional crime is predicated upon transferred intent, the jury must still determine whether, with respect to the death of a single person, the defendant acted intentionally or recklessly. People v. Molina, 79 A.D.3d 1371, 1374 (2010), citing People v. Gallagher, 69 N.Y.2d 525, 530 (1987). For this reason, Suarez v. Bryne, 10 N.Y.3d 523 (2008), does not authorize doubling appellant’s liability for a single death. See Respondent’s Brief at 36. Suarez held that the defendant’s initial conviction for depraved indifference 4 murder (which had been dismissed for lack of proof), would not be inconsistent with a subsequent conviction at a retrial for intentional manslaughter, which had been submitted at the first trial as a lesser of intentional murder. Suarez at 528- 529, 541. Critically, those intentional homicide counts were not predicated upon a theory of transferred intent to a victim whose death was also the basis for another conviction count, id. at 525-526, distinguishing Suarez from appellant’s case.2 Nor does People v. Ramos, 19 N.Y.3d 133 (2012), authorize doubling appellant’s liability for a single death. See Respondent’s Brief at 36. Ramos was convicted of only one crime, first-degree manslaughter, for which second-degree manslaughter had been submitted as a lesser. Ramos at 135. Unlike appellant, he was not subjected to double liability for a single result. Thus, the mere “possibility” that Ramos’s “conduct also might have been deemed consistent with a reckless state of mind,” id. at 136, does not speak to the facts here. No more persuasive, the People argue that it was permissible to submit the intentional and depraved indifference murder counts in the conjunctive because they were not inconsistent with each other and neither was a 2Thus, even if the counts here were consistent, they still could not have been submitted in the conjunctive under C.P.L. § 300.40(5). See Respondent’s Brief at 38. Nor does People v. Baker, 14 N.Y.3d 266 (2010), bar relief (see Respondent’s Brief at 42) since neither of the homicide counts in that case was the product of transferred intent. 5 lesser-included offense of the other, citing C.P.L. §§ 300.40(5) and 300.50(1), and Gallagher, 69 N.Y.2d at 530. See Respondent’s Brief at 38-39. But Gallagher establishes that these counts were indeed inconsistent since “[o]ne who acts intentionally in shooting a person to death . . . cannot at the same time act recklessly.” 69 N.Y.2d at 529. “The act is either intended or not intended . . . .” Id. As noted above, appellant’s alleged intent to kill his target was transferred to the bystander. Thus, appellant’s “act [of shooting the bystander] [was] either intended or not intended.” Gallagher at 529. Accordingly, the counts should have been submitted in the alternative because “the shooting (the act) and the death (the result) [were] the same,” and “a defendant cannot be convicted twice for [] murder, once for acting ‘intentionally’” and once for acting ‘recklessly.’” Id. (internal citations omitted). Nor did Baker, 14 N.Y.3d 266, justify submitting the homicide counts in appellant’s case in the conjunctive. See Respondent’s Brief at 39. In Baker, this Court held that the jury was permitted to consider simultaneously both homicide counts of the conviction — depraved indifference murder of a child and first-degree manslaughter of a child — because they were not inconsistent with each other. But both counts required proof of reckless conduct. P.L. § 125.20(4) (“recklessly engages in conduct”); P.L. § 125.25(4) (same). This common element of recklessness renders Baker 6 distinguishable from appellant’s case, which concerns purely intentional conduct for one count and purely reckless conduct for the other. Finally, the People mistakenly assert that appellant did not suffer “additional liability” on account of his conviction for two counts of murder because he received concurrent prison sentences. See Respondent’s Brief at 42-43. Not only do the People fail to address the consequences beyond imprisonment appellant may have to face (see Appellant’s Brief at 42-43), but the case law they cite does not support their contention. First, in People v. Gonzalez, 99 N.Y.2d 76 (2002), this Court never reached the question of whether dual convictions with concurrent sentences for third-degree criminal sale of a controlled substance and sale in or near school grounds violated double jeopardy; the claim was unpreserved. And while convictions with concurrent sentences for robbery and misdemeanor weapon possession were upheld in People v. Perez, 45 N.Y.2d 204 (1978), the multiple liability in that case is patently different from that in appellant’s case. Although the counts in Perez arose out of the same incident, they concerned entirely distinct conduct — violent theft versus possession of a weapon. In appellant’s case, the conduct underlying the homicide counts — fatally shooting someone — was identical. In sum, the court’s submission of intentional and depraved indifference murder in the conjunctive violated due 7 process. (B) On three occasions, the court’s attention was drawn to whether it could submit the murder counts in the conjunctive. Nevertheless, the People contend at length that this matter is unpreserved for review (see Respondent’s Brief at 30-35), a claim which the Appellate Division did not even bother to address. The trial court specifically recognized that “charging [both] intentional and depraved indifference [murder]” was problematic because “case law came down indicating there has to be an election.” The court added, “you have two different crimes so to speak” and “there is a distinct difference in the crimes” (A 801). Because it is such contradictions that, at least in part, give rise to the question of whether counts may be submitted in the conjunctive (see [A], ante), the court’s concern necessarily related to how the murder counts should be submitted. That the “case law” requiring an “election” was likely a reference to People v. Suarez, 6 N.Y.3d 202 (2005), as the People contend (see Respondent’s Brief at 34), further demonstrates that the court considered whether it could submit the counts in the conjunctive. The general prohibition against submitting both intentional and depraved indifference murder counts in Suarez is an essential principle underlying the requirement that certain counts be submitted in the 8 alternative. See Appellant’s Brief at 4, 36-38, 42. So when the court decided to submit both murder counts over counsel’s objection (A 803), and then did so in the conjunctive, it necessarily determined that an election did not have to be made, expressly deciding the matter on appeal. Cf. People v. Prado, 4 N.Y.3d 725 (2004) (specific finding of sufficient corroboration of confession preserved matter for review despite general motion to dismiss). Counsel’s “preference” that the verdict sheet direct the jury to disregard the depraved indifference murder count if it convicted appellant of intentional murder (A 958) did not limit the court’s consideration to whether it would exercise its discretion under C.P.L. § 300.40(3) to opt for submission in the alternative. Because the court would have had to first determine whether it had discretion in the matter, the legality of the submission was again preserved for review. Cf. People v. Finch, ___ N.Y.3d ___, 2014 N.Y. Slip Op. 03424 (May 13, 2014) (criticizing overbroad application of specificity rule as to preservation of sufficiency claim). * * * Accordingly, for the above reasons and those stated in appellant’s main brief, the Court should reverse appellant’s conviction, on the law, and order a new trial. 9 POINT II BECAUSE THE TRIAL RECORD DID NOT ESTABLISH THAT APPELLANT HAD BEEN FOREWARNED OF A IMPENDING SHOWDOWN OR THAT HE HAD HAD A PRIOR DISPUTE WITH THE GROUP THAT CONFRONTED HIM, THERE WAS INSUFFICIENT EVIDENCE THAT HE AGREED TO ENGAGE IN MUTUAL COMBAT, A MATTER THAT WAS PRESERVED FOR REVIEW. Contrary to the unpersuasive arguments of the People (see Respondent’s Brief at 49-64), there was legally insufficient evidence presented at trial that appellant entered into an explicit or tacit agreement with co-defendant Herburtho Benjamin to engage in mutual combat. See Appellant’s Brief, at 46-52. Moreover, counsel indeed preserved this issue for review when he explicitly asserted that the trial proof did not sustain a finding of mutual combat. See Appellant’s Brief at 52-54; Respondent’s Brief at 45-48. (A) The record contradicts the People’s claim that appellant was still in the building when a member of Benjamin’s group announced, “That’s him,” prompting “‘everybody,’ presumably including [appellant],” to exit the building. From this, the People mistakenly conclude that appellant overheard the announcement and thereby anticipated the gunfight. See Respondent’s Brief at 53-54 and n. 13. But both the exterior and interior surveillance tapes plainly show that Benjamin’s group did not exit the building until almost thirty seconds after appellant had already left (People’s Exhibit ## 1 and 1A). 10 Furthermore, Sanders testified that the group left immediately after the announcement: [SANDERS]: . . . a dude walked down the steps from the hallway, and the only thing I heard was, That’s him right there; and when they said that was him, everybody walked out (A 71). * * * [THE PROSECUTOR]: . . . . That’s the guy that someone said, That’s him and you all went out. [SANDERS]: I think so; yes. That’s when everybody went out the building (A 79). Murphy testified similarly: [MURPHY]: Well, everything got quiet and I hear somebody coming down the stairs real slow, so we all just stood quiet till he came downstairs. * * * [THE PROSECUTOR]: And when he came out of the stairs, what happened? [MURPHY]: Nothing. He just walked out. * * * [THE PROSECUTOR]: When he walked out, where did he go? [MURPHY]: Straight out the building. [THE PROSECUTOR]: What happened when he walked straight out of the building? [MURPHY]: I hear somebody say, There he go, there he go. Then people started exiting the building (A 196-197). Thus, it is plain from Murphy’s account that appellant 11 was already outside when the announcement was made.3 In addition, contrary to the People’s suggestion, there was no reliable testimony that appellant acknowledged having had a precipitating dispute with Benjamin’s group. See Respondent’s Brief at 53. When 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.” Only moments later, however, he clarified that he had not, in fact, said any such thing to his girlfriend (A 751-752). In short, with no proof that appellant had been forewarned of an impending confrontation, there was a dearth of evidence establishing that appellant agreed to mutual combat. Accordingly, the People failed to prove his guilt of depraved indifference murder. (B) Counsel’s assertion during a charge conference that “the evidence does not sustain a finding that there was mutual combat” (A 802) preserved this issue for review. It is of no matter, contrary to the People, that he made this argument while also asking the court to issue a justification charge for the count of depraved indifference murder. See 3In the above excerpted testimony, Sanders and Murphy themselves discuss the sequence of events. But in the testimony relied upon by the People (see Respondent’s Brief at n. 13), the prosecutor suggested a sequence in his questions. 12 Respondent’s Brief at 47-48. Counsel’s point could not have any more plainly and explicitly “made his position [on this matter] known to the court.” C.P.L. § 470.05(2). Plus, by refusing to charge justification as to depraved indifference murder and rejecting defense counsel’s argument that this was a “factual issue” for the jury (A 802), the court necessarily held there was legally sufficient evidence of mutual combat. Counsel similarly alerted the court to this issue when he argued, “I don’t think that there is any evidence in this record that would suggest or support the position that [appellant] acted with the reckless intent to cause the death of [the co-defendant]” (A. 804) (emphasis added). In accordance with the People’s theory of the case and the court’s charge, the reckless conduct that created the grave risk of death to the bystander was “engag[ing] in mutual combat with firearms in a public space” (A 938). Because the reckless conduct and engagement in mutual combat were one and the same, counsel was contesting the sufficiency of the proof of mutual combat, preserving this issue for review. * * * For these reasons, appellant’s conviction for depraved indifference murder must be reversed, on the law, and that count of the indictment dismissed. 13 CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE PRINCIPAL BRIEF, THIS COURT SHOULD REVERSE APPELLANT’S MURDER CONVICTIONS AND ORDER A NEW TRIAL; REVERSE HIS CONVICTION FOR SECOND-DEGREE MURDER (DEPRAVED INDIFFERENCE) AND DISMISS THAT COUNT OF THE INDICTMENT; AND REVERSE HIS ENTIRE CONVICTION AND ORDER A NEW TRIAL. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085 ________________________ By: Denise A. Corsí Of Counsel Dated: August 13, 2014 New York, New York 14