The People, Respondent,v.Julio Peguero-Sanchez, Appellant.

Brief

N.Y.March 21, 2017

New York Supreme Court APPELLATE DIVISION SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, against JULIO PEGUERO-SANCHEZ, Defendant-Appellant. >> >> To Be Argued By: Stephen N. Preziosi Time Requested: 15 Minutes BRIEF FOR DEFENDANT-APPELLANT STEPHEN N. PREZIOSI, ESQ. Attorney for Defendant-Appellant 570 Seventh Avenue, Suite 600 New York, New York 10018 212-300-3845 Suffolk County Clerk’s Indictment No. 2891/11 Docket No. 2014-02568 STATEMENT PURSUANT TO CPLR § 5531 SUPREME COURT: STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT _____________________________________________ PEOPLE OF THE STATE OF NEW YORK Respondent, Docket No. -against- 2014-02568 JULIO PEGUERO-SANCHEZ, Appellant. _____________________________________________ 1. The indictment number in the court below was 2891/11. 2. The full names of the original parties in the indictment were the People of the State of New York against Julio Peguero-Sanchez. 3. The action was prosecuted in the County Court of Suffolk County New York, The Honorable William J. Condon presiding. 4. Defendant-Appellant was found guilty of criminal possession of a controlled substance in the first degree (Penal Law §220.21), operating motor vehicle without a rearview mirror (VTL § 375(10)(a)), defective license plate light (VTL § 375(2)(a)(4)). 5. This is an appeal of the guilty verdict dated January 22, 2014 and the subsequent judgment and sentence on February 25, 2014 in the County Court of Suffolk County New York and each and every aspect thereof. 6. The notice of appeal was filed on February 25, 2014. 7. The Law firm of Stephen N. Preziosi was retained as counsel for this appeal on the original record and computer generated brief and the appeal is being perfected on the full original record. i TABLE OF CONTENTS Pages STATEMENT OF FACTS ........................................................................... 1 The Pre-Trial Suppression Hearing Re-Opened By The Trial Court ...................................................................................................... 2 Janickey’s Stated Reason For Approaching The Vehicle ..................... 4 At Trial Janickey Changes The Facts Leading Up To His Approach To Julio’s Vehicle ................................................................ 5 Julio Answered All Of Janickey’s Questions About What He Was Doing There And Where He Was Going ...................................... 5 Janickey’s Vantage Point From Outside The Vehicle .......................... 6 The Prosecution Presented Evidence Of Julio’s Invocation Of His Right To Counsel And His Choice Not To Speak To The Police ..................................................................................................... 8 The Prosecution Emphasizes The Elements Of Drug Sales When Julio Was Charged With Drug Possession ............................... 11 The Prosecution Consistently Made References To The Uncharged Crime Of Selling Illegal Drugs Throughout The Trial And Introduced Such Evidence And Highlighted These Uncharged Crimes In Closing Arguments .......................................... 12 The People Offered Text Messages On Their Rebuttal Case Attempting To Prove That Julio Was Present In The Applebee’s Parking Lot For The Purpose Of A Drug Sale ................ 13 The People’s Interpretation Of The Text Messages And Inferences Made At Closing Arguments ............................................. 14 ii The Prosecution’s Closing Arguments: The Dollar Value Of The Cocaine ......................................................................................... 14 The Prosecution’s Closing Arguments: Exaggeration Of Weight And Amount Of Cocaine ........................................................ 16 The Prosecution’s Closing Arguments: The Coded And Secretive Messages ............................................................................. 17 At Sentencing The Prosecution Argues That Julio Should Be Punished For Selling Drugs Even Though He Was Charged Only With Possession .......................................................................... 18 POINT I THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS COUNT TWO OF THE INDICTMENT AND THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURY ON THE LAW ON COUNT TWO IN ITS CHARGE TO THE JURY ................. 21 The Indictment Was Defective: It Was Not Factually Sufficient ....... 21 An Incorrect Statement Of The Law In The Indictment Renders The Indictment Insufficient And Defective On Count Two ...................................................................................................... 22 The Evidence At Trial Was Insufficient To Show A Violation Of VTL § 375(10)(a) ........................................................................... 24 POINT II THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS THE TANGIBLE EVIDENCE FOUND IN APPELLANT’S CAR BECAUSE THE POLICE LACKED REASONABLE SUSPICION THAT THERE WAS CRIMINAL ACTIVITY WHEN THEY SEIZED HIS CAR ....................................... 25 The Legal Analysis Under The Fourth Amendment Must Start At The Inception Of The Illegal Police Action ................................... 25 iii Blocking Appellant’s Car In The Parking Lot Constituted A Seizure ................................................................................................. 26 The Police Had No Reasonable Suspicion When Appellant Was Seized And The Tangible Evidence Found In His Car Should Have Been Suppressed By The Trial Court ............................ 28 POINT III WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN THE PROSECUTION EVOKED TESTIMONY FROM A PROSECUTION WITNESS THAT DEFENDANT INVOKED HIS RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL POST-ARREST ........................................................................................ 30 Harmless Error Analysis Is Not Applicable In This Case As The Testimony Was Deliberately Evoked By The People And The Witness In Order To Prejudice Peguero-Sanchez ....................... 33 The Overwhelming Majority Of Cases In The Appellate Division, Second Department Find That This is Not Harmless Error ..................................................................................................... 34 POINT IV THE PROSECUTION COMMITTED MISCONDUCT BY INTRODUCING EVIDENCE OF UNCHARGED CRIMES AND COMPOUNDED THE ERROR BY MAKING NO LESS THAN 21 REFERENCES TO THE UNCHARGED CRIME IN ITS CLOSING ARGUMENTS DENYING JULIO THE DUE PROCESS RIGHT TO A FAIR TRIAL .................................................. 36 The Admission Of Evidence Of An Uncharged Crime By A Prosecution Witness Violated The Molineux Rule ............................. 37 The Prosecution’s Witness Deliberately Gave Unsolicited Testimony Of Uncharged Criminal Acts On Cross- Examination......................................................................................... 38 iv The People’s Rebuttal Case - The Highly Prejudicial Testimony Was Exacerbated When The People Introduced Evidence In The Form Of Text Messages From The Defendant’s Phone Showing That He Was In The Parking Lot Waiting To Meet Someone Other Than His Girlfriend ...................... 40 The Trial Court Erred And Violated The Collateral Matter Rule By Allowing The Introduction Of The Text Messages Into Evidence ....................................................................................... 41 Prosecutorial Misconduct: The People’s Closing Arguments Emphasized The Evidence Of A Sale Of Illegal Drugs Making No Less Than 21 References To Evidence Of The Uncharged Crime ................................................................................................... 42 The Dollar Value Of The Cocaine ...................................................... 42 The Prosecution Exaggerates The Amount And Weight Of Cocaine ................................................................................................ 45 The Coded Messages ........................................................................... 47 The Arguments That The Prosecution Inferred In Closing Remarks Became Explicit At Sentencing: The Prosecution Blatantly Disregards The Due Process Rights Of The Defendant At Sentence ........................................................................ 48 POINT V THE TRIAL COURT ERRED WHEN IT DENIED MR. PEGUERO-SANCHEZ THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO QUESTION POLICE OFFICER JANICKEY REGARDING THE REASON FOR WRITING THE TICKET FOR VTL §375(10)(a) .................................. 51 The Right To Confrontation Under The U.S. Constitution And The New York State Constitution ....................................................... 51 v The Trial Court May Impose Reasonable Limits On Cross- Examination, But May Not Impede The Defendant From Presenting A Defense .......................................................................... 52 The Trial Court Violated Both The Confrontation Clause And The Due Process Clause When It Prevented Defense Counsel From Cross-Examining The People’s Witness ................................... 54 CONCLUSION .......................................................................................... 56 CERTIFICATE OF COMPLIANCE .......................................................... 57 1 STATEMENT OF FACTS On November 10, 2011 Mr. Peguero-Sanchez (“Julio”) was seated in his car in the parking lot of Applebee's in Lindenhurst, town of Babylon, Suffolk County, New York (T608). He was waiting for some friends to have dinner inside the Applebee’s restaurant at about 7 o’clock in the evening (T762). His car was parked inside the lines of the parking space, and he was not committing any criminal activity (T675). The parking lot of Applebee’s is large, approximately five acres, (2H21)1 and services a strip mall containing Applebee’s and several other stores (T765). Julio’s car was parked about nine parking spaces away from the front entrance to the Applebee’s (T759). Some of the parking spots between Julio’s car and the front entrance were occupied and some were not (T760). Julio was approached by a police officer while sitting in his parked car and eventually arrested for drug possession. The reasons for the police officer’s approach to the parked car and the facts surrounding the approach are at issue on this appeal and were the subject of a suppression hearing 1 1H refers to March 5, 2013 Mapp Dunaway hearing citations; 2H refers to July 9, 2013 Mapp Dunaway hearing citations and T refers to trial citations. 2 conducted by the County Court and then later re-opened by the same Court to determine certain facts not presented by the People at the first hearing. The Pre-Trial Suppression Hearing Re-Opened By The Trial Court Prior to trial a Mapp/Dunaway hearing was held on March 5, 2013 to determine if the physical evidence obtained by the Suffolk County police would be suppressed. The People produced one witness, officer Thomas Janickey. However, at that hearing the People failed to produce certain physical evidence, specifically the bags in which cocaine was found, and defense counsel was not able to question Janickey regarding the location, arrangement and condition of those bags and whether the bags were actually visible from Janickey’s vantage point. In April of 2013, defense counsel moved to re-open the suppression hearings to further question the officer on the facts of his approach to the Julio’s vehicle and what he was able to observe. The trial court granted defense counsel’s motion and a second Mapp/Dunaway hearing was held on July 9, 2013. To distinguish citations to the record, references to the first hearing will be denoted as (1H) followed by the page number, citations to the second 3 hearing will be denoted as (2H) followed by the page number, citations to the trial will be denoted as (T) followed by the page number. 2 Janickey’s testimony at the hearings is as follows: On November 10, 2011 Officer Janickey was working on a tour of duty from 5pm to 1am (1H8). At that time he was assigned to the “Peace Out” Unit. The focus of this unit is guns, narcotics, and gangs (1H9). On that evening at approximately 6:59pm he was in plain clothes, and he was driving an unmarked police car (1H9). His car was at 600A Wellwood Avenue in the town of Lindenhurst, New York. That location was a parking lot that contained several stores: Applebee’s, Rite Aid and a former King Kullen (1H10). At that time it was dark out and the parking lot was fairly well lit with scattered lighting (1H11). At one point Officer Janickey observed a 1995 BMW, parked in the lot with a Hispanic male in the driver’s seat (1H11). While Janickey’s vehicle was in motion and behind the BMW, Janickey noted that there was no light illuminating the license plate (1H12). Janickey testified at the second hearing that Julio’s vehicle’s parking lights were on (2H16). When questioned further by defense counsel, he admitted that he had never before 2 1H refers to March 5, 2013 Mapp Dunaway hearing citations; 2H refers to July 9, 2013 Mapp Dunaway hearing citations and T refers to trial citations. 4 mentioned that the parking lights were on at the first hearing, or in his supplemental report, or at the Grand Jury (2H17). Janickey continued his patrol and at some point was in front of the BMW and noted that there was no rear view mirror on the vehicle (1H12). Janickey testified that he stopped his vehicle in front of Julio’s parked vehicle so that Julio was unable to pull away in a forward position without coming into contact with Janickey’s vehicle (1H54-55). Janickey claims to have made eye contact with the driver while Janickey’s vehicle was moving at the rate of 5 to 10 miles per hour. At the same moment they made eye contact, Janickey claims Julio threw his seat back and attempted to lay low in the vehicle (1H13). At this point Janickey’s car was parked directly in front of Julio’s car (1H13); he exited his vehicle and approached the driver’s side of the BMW (1H14). Janickey’s Stated Reason For Approaching The Vehicle Officer Janickey testified that as he approached the BMW he had no intention of issuing summonses based on the rearview mirror or the missing light over the license plate (2H28-29) and that the only reason he was approaching Julio’s car was because he “threw” his seat back and that this raised his suspicions (2H29). At trial, Janickey adjusted or recanted his testimony from he “threw” his seat back to he threw his “back backwards” 5 and “slid backwards” in the seat (T629-630), presumably because he had learned that the vehicle had electric seats and that it would be impossible for Julio to throw his seat back (T717-718). At Trial Janickey Changes The Facts Leading Up To His Approach To Julio’s Vehicle. The very reason that Janickey had asserted prior to trial for the approach to Julio’s car, in all of his reports, and at the Grand Jury, he negated at trial because he had learned of the impossibility of “throwing” the seat back when he was confronted with the fact that the BMW is equipped with electric seats. Electronic seats cannot be moved backwards quickly, but move back gradually with the press of a button (T717-718). So at trial, Janickey testified to a new version of the reason for his approach to Julio’s vehicle. The new version for Janickey’s approach was that Julio had “thrown his back backward” (T) Julio Answered All Of Janickey’s Questions About What He Was Doing There And Where He Was Going. Upon approaching the BMW Janickey asked the driver what he was doing in the area and the driver responded that he was going into Applebee’s (1H14). Janickey then asked him if he was by himself and Mr. Sanchez responded that he was by himself at the moment but that he was meeting 6 some friends at Applebee’s and that was the reason that he was present in the parking lot that evening (1H38). Janickey testified that the purpose of his approach to Julio’s vehicle was that he was suspicious because he observed him “throwing” his seat back (1H34), (2H28-29). After this brief conversation, where Janickey determined what Julio was doing, his purpose for being there, who he was meeting with and where he was going, he continued to question him. After all the questions that had initially aroused his suspicions had been answered, he then asked Julio for his driver’s license (1H44). Janickey’s Vantage Point From Outside The Vehicle Julio turned his license over to Officer Janickey. The officer’s testimony was that even though the driver’s license and other documentation was within Julio’s reach in the center console/cup holder, it was for some reason necessary for him to turn on the inside light of the vehicle (1H45-46). While Janickey was on the driver’s side of the car and about two feet away from the driver outside the car, he was able to see the driver’s side floor (1H48). Janickey testified that he was able to see past the steering wheel, past both of Julio’s legs, past any shadows in the vehicle and observe the floor inside of the car (1H48-49). Although Janickey had no flashlight, he noticed an open black plastic bag on the floor of the car between the 7 driver’s feet (1H49). Janickey claims that neither the driver’s legs nor the steering wheel obstructed his view of the black plastic bag and that the black bag was open revealing smaller plastic bags that he was immediately able to recognize as cocaine (1H49). Although the officer had not activated the lights on his police vehicle, and the lighting in the parking lot was sporadic, and it was dark out as the sun had set two hours prior, and Janickey was not using a flashlight (1H50), he testified that he was able to see inside of a black plastic bag on the floor of Julio’s car and see several clear plastic bags of white powder cocaine inside of the black plastic bag (and the black plastic bag happened to be open for his viewing) that was obstructed by both the steering wheel and Julio’s legs as he was sitting in the driver’s seat. At that point Janickey asked the driver to exit the vehicle and, he testified, that the driver started to walk into the Applebee’s. He asked him to come back and place his hands on the back of the car and he handcuffed him and arrested him (1H17). Upon retrieving the black plastic bag Janickey also noticed a brown lunch bag to the left of the black bag. Although the brown lunch bag was not open, Janickey removed it from the vehicle and testified that inside of that bag were several clear plastic bags containing cocaine. 8 Both of the bags recovered from Julio’s vehicle were removed from the vehicle before any photographs were taken and their precise location remains undocumented. Even though the arresting officer did have a camera on him and had the capability of taking photographs of the location of these bags, no photographs were taken and both bags were removed from the vehicle, and no other police officers observed their precise location (1H46- 47). The Prosecution Presented Evidence Of Julio’s Invocation Of His Right To Counsel And His Choice Not To Speak To The Police. During the trial the prosecution brought forth evidence of Julio’s choice to remain silent after being Mirandized and invoking his right to counsel. After Julio’s arrest, he was brought back to the first precinct in Suffolk County, New York (T867), he was processed for arrest by Detective Ralph Rivera (“Rivera”) (T863). Rivera had more than 26 years of experience as both police officer and detective in law enforcement with hundreds of arrests (T865-866). At trial the following colloquy took place between the prosecutor and Rivera before the jury: Question: Can you explain to the jury, please, what you did with respect to the defendant and those items at the First Precinct that evening. 9 Answer: I processed each, the defendant and the drugs. Question: Can you explain to the jury how you processed the defendant. Answer: The defendant was placed into an interview room where he was read his Miranda rights. He invoked his right to counsel – Mr. Brown (defense counsel): Objection. Objection, Judge. The Court: On what grounds? Mr. Brown: Can we approach, Judge? The prosecution elicited this testimony from the witness at the precise moment that they knew Julio had chosen to remain silent and invoke his right to counsel. Defense counsel immediately objected to this testimony and moved for a mistrial (T867-868). (T868 lines 8-15) Mr. Brown: All right. Judge, at this point I move for a mistrial. The prosecutor has elicited testimony from this witness that my client did not – In essence, was advised of his Miranda warnings and didn’t speak because he claimed he wanted an attorney. Defense counsel did not want to highlight this testimony for the jury and so specifically asked that the judge not give a curative instruction. (T869) Mr. Brown: And I don’t want a curative instruction because that’s – I don’t want a curative instruction because then you’re drawing attention to it. There’s no reason – I don’t know why he elicited that. I don’t understand. There’s no statements. I don’t know why that came into play. 10 Defense counsel raised an important point because there were no statements of Julio that were being introduced into evidence and no statements, in fact, were ever made. There was no reason for the prosecutor to highlight this portion of the arrest, and elicit this testimony from the Detective. Both the prosecutor and the detective were long time veterans and were both well aware that this testimony was both illegal and highly prejudicial to the defendant. The trial court denied defense counsel’s application for a mis-trial and wanted to give a curative instruction to the jury (T870). Mr. Brown again requested that no curative instruction be given: (T870-871) Mr. Brown: I don’t want a curative instruction, Judge, with all due respect, because that – What he did, from our standpoint, is extremely egregious. But I don’t want the curative instruction because that’s going to draw – if you deny my application for a mistrial due to his conduct, that is – what’s going to happen then, it’s going to draw attention to that issue, and I don’t want any attention drawn to that issue. Defense counsel correctly assessed the highly prejudicial nature of the testimony and asked that the court not give a curative instruction to the jury for fear of highlighting testimony that was so highly and egregiously prejudicial to the defendant, that it should not be repeated and underscored in the jurors’ minds. 11 The Prosecution Emphasizes The Elements Of Drug Sales When Julio Was Charged With Drug Possession Throughout the trial the prosecution proffered evidence that Julio was selling drugs when he was, in fact, never charged with the sale of drugs, but only drug possession. The trial evidence put forth by the prosecution tried to paint a picture of Julio as a drug dealer. He was not charged with the sale of drugs, or even possession with intent to sell, but only with straight possession. During the trial the prosecution elicited testimony that Julio was “dealing” drugs and that there were text messages on his phone that was evidence of a pre-arranged drug deal. Exacerbating the evidence of these uncharged crimes was the closing argument of the prosecutor that intimated drug sales no less than 21 times. On cross-examination, one of the prosecution witnesses gratuitously added to his answer that Julio was dealing drugs: (T896) Question: So you wanted to see if his DNA was on the bag, right? Answer: Yes. Question: But also may be his DNA wasn’t on the bag, that would be important for us, right? Answer: Or maybe anybody that he may have been dealing with, yes. 12 Defense counsel objected to this testimony and made an application for a mis-trial. (T938) Mr. Brown: Judge, we have another application for a mistrial. And this is based on Detective Rivera. I didn’t comment at the time because again, I didn’t want to draw attention to it, Judge. During my cross-examination of Detective Rivera, I had asked him specifically about my client’s fingerprints and/or DNA being on the plastic bags and it could eliminate him or it could actually corroborate he’s the one who possessed it, according to the charges that are before the Court, and Detective Rivera gratuitously offered to the jury that it could also show who – and I’m quoting – who my client is “dealing with.” Those were gratuitous comments. That, again, is in line with the People’s position from the beginning, especially with the text messages and phone calls, which the Court agreed to preclude because dealing, i.e. selling of cocaine is not part of the Indictment and would be extremely prejudicial and there’s little or no probative value to that type of testimony. (T939) So Detective Rivera on his own gratuitously offered that evidence before the jury and that suggested clearly to the jury that my client is a drug dealer because he’s dealing with somebody in regards to those bags. For that reason, Judge, we again have an application for a mistrial. The trial court denied Mr. Brown’s motion for a mis-trial (T943). The Prosecution Consistently Made References To The Uncharged Crime Of Selling Illegal Drugs Throughout The Trial And Introduced Such Evidence And Highlighted These Uncharged Crimes In Closing Arguments. Although Julio was never charged with the sale of illegal drugs or possession with intent to sell illegal drugs, the prosecution persistently 13 offered evidence trying to show to the jury that Julio was a drug dealer. The People presented evidence and made numerous statements in their closing arguments and at sentencing to show that Julio was a drug dealer despite the fact that he was never charged with these crimes. Julio was charged only with possession. The People Offered Text Messages On Their Rebuttal Case Attempting To Prove That Julio Was Present In The Applebee’s Parking Lot For The Purpose Of A Drug Sale On the People’s rebuttal case they put text messages from Julio’s phone into evidence over the objection of defense counsel (T1065). There was extensive argument as to whether the text messages should be allowed into evidence (T1054-T1065). Defense counsel argued that the text messages on the People’s rebuttal case were hearsay (T1055), not relevant, and highly prejudicial because the People intended to use these messages to show that Julio was about to commit a drug transaction and that he is a drug dealer (T1063). The text messages consisted of an exchange between Julio and presumably another male arranging a meeting at the Applebee’s restaurant.3 The trial court admitted the text messages into evidence over the objection of defense counsel (T1065). 3 The text messages have been forwarded to the court and are included in the transcripts that counsel has provided to this Court. 14 The People’s Interpretation Of The Text Messages And Inferences Made At Closing Arguments During the prosecution’s closing arguments they made no less than 21 references to the evidence that pointed to the inference that Julio was in the Applebee’s parking lot for the purpose of selling drugs. The various references during closing arguments consisted of mentioning the dollar value of the cocaine, the prosecution’s exaggeration of the weight and the amount of cocaine, the text messages and the prosecution’s statements at closing that those messages were made in “coded and secret language” to conceal the sale of cocaine. The Prosecution’s Closing Arguments: The Dollar Value Of The Cocaine On no less than six occasions during closing arguments the prosecutor mentioned the dollar value of the cocaine allegedly possessed by Julio: At T1118 lines 2-4 the prosecutor argued: “He had over –approximately, conservatively, twenty thousand dollars worth of cocaine at his feet. And that’s why he slid down in his seat.” Again at T1120 lines 5-10 the prosecutor repeated: “If you have half a kilo of cocaine at your feet, over twenty thousand dollars worth of cocaine, you recognize a police officer, it’s reasonable that someone who had that cocaine in their possession would slide down.” Again at T1128 lines 14-15 the prosecutor emphasized: 15 “Where did he get twenty thousand dollars worth of cocaine?” At T1129 lines 3-5 the prosecutor highlighted the dollar value again: “He went out and bought twenty thousand dollars worth of cocaine in order to make a case.” At T1130 lines 17-20 the prosecutor underscores the dollar amount again: “So he’s claiming that one of the barber shop boys left the twenty thousand dollars worth of cocaine in their boss’ car without telling him” At T1135 (lines 20-25) – T1136 (lines 1-6) the prosecutor infers that Mr. Peguero-Sanchez is supplementing his income as a barber with the proceeds from the sale of cocaine: “Now, the defendant also testified that he owns a home, makes approximately – you know, I’ll give him the high end – thirty two hundred a month and pays – again, I’ll give him the high end because I think he said twenty seven, twenty eight – twenty eight hundred dollars a month in mortgage. He makes thirty two hundred a month, pays a mortgage of twenty eight hundred a month. Now, that’s not paying for cable, food, heat, dinners with girlfriend, gas or any car expenses. Here, the prosecution is making the argument that, based on Julio’s personal expenses, he does not make enough money as a barber, and that he is supplementing his income by selling illegal drugs. Again, Julio was never charged with the sale of drugs; he was charged with possession only. 16 The Prosecution’s Closing Arguments: Exaggeration Of Weight And Amount Of Cocaine. In closing arguments the prosecution used exaggerated terms when referring to the amount of cocaine allegedly possessed by Julio. The prosecutor stated in closing arguments seven times that he possessed either half a kilo or three quarters of a kilo of cocaine. The prosecution’s expert witness, Peter Tracy, a forensic scientist who actually weighed the material, testified at trial that there was 300 grams or 10.6 ounces of cocaine (T926). The prosecution’s closing arguments that there was either a half-kilo or three quarters of a kilo was belied by the well-known fact that there are 1000 grams in a kilo or 35.2 ounces; here, there was 10.6 ounces. The exaggerations at prosecution’s closing are as follows: At T1113 lines 12-14: “On November 10th, 2011, Mr. Peguero had over half a kilo of cocaine at this feet and he knew it was there” At T1117 lines 20-23 “Well, he’s not a casual observer because he had a half a kilo of – over half a kilo of cocaine at this feet.” At T1120 lines 5-8 “If you have half a kilo of cocaine at your feet, over twenty thousand dollars worth of cocaine, you recognize a police officer…” At T1123 lines 6-8 17 “ I would suggest to you is not nearly as important as the fact that he had half a kilo of cocaine at this feet.” At T1128 lines 11-13 “Officer Janickey planted it there. Officer Janickey is driving around with over half a kilo of cocaine looking to make a case?” Again at T1128 lines 17-20 the prosecutor exaggerates even further by stating that there was three-quarters of a kilo of cocaine: “All the back and forth regarding one plastic bag. That’s one plastic bag. This is three quarters of a kilo of cocaine. Twenty thousand dollars.” At T1135 lines 13-17: “These text messages later on set up the exact time, they set up the same location and the exact date where the defendant was found in possession of over half a kilo of cocaine.” The Prosecution’s Closing Arguments: The Coded And Secretive Messages. During the prosecution’s closing arguments they argued that Julio was using coded and secretive language to disguise a drug sale: At T1135 lines 3-7 “Again, this incoming describes him as old man. Then the defendant is asked here, ‘What do you have there?’ He responds, ‘I’ll tell you personally. Thanks.’ Coded, secretive.” At T1137 lines 16-19 18 “As to knowingly, the defendant’s – the circumstances, how do we know he possessed it? It’s in his car, it’s at his feet. He used coded, secretive language.” At Sentencing The Prosecution Argues That Julio Should Be Punished For Selling Drugs Even Though He Was Charged Only With Possession Although the prosecution denied making inferences that Julio was a drug dealer at trial, it became obvious at sentencing that the prosecution’s principal argument, at both trial and sentencing, was to prove that Julio was a drug dealer and was selling drugs. Although Julio was never charged with selling, attempting to sell, or having the intent to sell any illegal drugs, the prosecution made the sale of drugs a principal part of their case. The following arguments were made by the prosecution at sentence: At T3 of the sentencing transcript the prosecution argues an uncharged crime: “ And without even including a significant amount of living expenses, which I’m sure he is paying, he would be left with a shortfall of around at least $500 a month; and I would submit to your Honor that he filled that shortfall by selling cocaine.” At T5 of sentencing transcript the prosecution exaggerates the weight of the cocaine: “ And the specifics of this crime include the defendant having almost three-quarters of a kilo of cocaine.” At T5 of the sentencing transcript prosecution argues the uncharged crime of sale: 19 “…he was meeting someone not for dinner according to those text messages, he was meeting someone there to complete a cocaine sale.” “The defendant is a cocaine dealer, in fact, he is a large-scale cocaine dealer selling a hundred grams at a time.” At T6 of sentencing transcript: “Having access to cocaine that comes right off the kilo indicates his level, high level of involvement in cocaine trafficking here in Suffolk County.” At T6 of sentencing transcript: “And yet the defendant chose to seek additional money by trafficking in large amounts of cocaine despite having a legitimate source of income.” At T7 of the sentencing transcript the prosecution continues to argue that defendant should be punished for the uncharged crime: “and I would say, your Honor, the text messages which came from his very phone clearly indicate that the defendant was trafficking in cocaine that evening.” At T8 of sentencing transcript the prosecution recommends that he be punished for the uncharged crime of sale of illegal drugs: “After weighing all those factors, the People are recommending twelve years incarceration. We believe that’s appropriate for the defendant’s trafficking in this amount of cocaine and appropriately weighs the lack of criminal history with the severity of this crime, and that’s what our recommendation is. Thank you.” At each stage of the trial and sentence, the prosecution put forth evidence of crimes that Julio was not charged with (i.e. the sale of drugs), 20 they made arguments at closing and at sentence, to the jury and the judge, that Julio was committing crimes for which he was not being tried. 21 POINT I THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS COUNT TWO OF THE INDICTMENT AND THE TRIAL COURT INCORRECTLY INSTRUCTED THE JURY ON THE LAW ON COUNT TWO IN ITS CHARGE TO THE JURY. The jury received the wrong instruction on the law in both the indictment and in the trial court’s charge to the jury. The indictment was defective because under count two it incorrectly stated the law when it specified that Vehicle and Traffic Law §375(10)(a) is violated when a vehicle does not have a rearview mirror. The trial court’s charge to the jury was also incorrect because the trial court parroted the words of the indictment; the charge incorrectly instructed the jury on the law by stating that no rearview mirror constituted a violation of VTL §375(10)(a) – this was incorrect, and the statute says no such thing. The Indictment Was Defective: It Was Not Factually Sufficient Count two of the indictment charged Mr. Peguero-Sanchez (“Appellant”) with “operating a motor vehicle without a rearview mirror”. Significantly, Vehicle and Traffic Law §375(10)(a), does not require a rearview mirror, nor does it state that the lack of a rearview mirror constitutes a violation. The statute specifically states the following: Every motor vehicle, when driven or operated upon a public highway, shall be equipped with a mirror or other reflecting device so adjusted that the operator of such vehicle shall have a 22 clear and full view of the road and condition of traffic behind such vehicle. The statute does not require that one must have a rearview mirror; the indictment incorrectly stated the law required a rearview mirror and there was insufficient factual support in the indictment for a violation of VTL § 375(10)(a). The trial court, therefore, erred when it refused to dismiss count two of the indictment when defense counsel made a specific and timely motion with regard to the insufficiency of that count. An Incorrect Statement Of The Law In The Indictment Renders The Indictment Insufficient And Defective On Count Two The function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of New York State’s Constitution and that of the Sixth Amendment to the Federal Constitution. The indictment is required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements. People v. Ianonne, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656 (1978). Another traditional function of the indictment has been to provide a means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury. The indictment 23 is the proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes. This function is based upon the constitutional prohibition against double jeopardy. Criminal Procedure Law §200.50(7)(a) states that the indictment must allege facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision. In this case, the indictment does not allege facts that would support a violation of every element of the crime; it simply states that there was no rearview mirror. However, that is not what the statute requires. VTL §375(10)(a) requires that there be a mirror or other reflecting device so adjusted that the operator of such vehicle shall have a clear and full view of the road and condition of traffic behind such vehicle. Simply stating that there was no rearview mirror fulfills neither the notice requirements under the New York State Constitution, nor the statutory requirements under Criminal Procedure Law §200.50(7)(a). The indictment was defective both constitutionally and under the statutory requirements of the Criminal Procedure Law. 24 The Evidence At Trial Was Insufficient To Show A Violation Of VTL § 375(10)(a) The evidence at trial was insufficient to prove that there was a violation of VTL § 375(10)(a). The People’s witness testified that there was no rearview mirror. This does not constitute sufficient factual support for a violation of that statute. The statute does not require a rearview mirror; it only requires that there be some reflecting device that is so adjusted that the operator…have a clear and full view of the road and condition of traffic behind such vehicle. There was no testimony proffered by the People that would indicate whether the other mirrors that were affixed to Julio’s car were able to provide a clear and full view behind the vehicle. His car was equipped with two fully operational side-view mirrors (T767). The indictment was factually insufficient because it did not state sufficient facts to support that count of the indictment, and the People’s evidence at trial was insufficient because there was no factual support to show a violation of the statute. 25 POINT II THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS THE TANGIBLE EVIDENCE FOUND IN APPELLANT’S CAR BECAUSE THE POLICE LACKED REASONABLE SUSPICION THAT THERE WAS CRIMINAL ACTIVITY WHEN THEY SEIZED HIS CAR. The trial court erred at the suppression hearings when it failed to suppress the physical evidence found in Appellant’s car. The police vehicle blocked the appellant’s car from moving, and that constituted a seizure. The police did not have any reasonable suspicion to block Julio’s vehicle; the search was illegal at its initiation, and the trial court should have suppressed the tangible evidence found. The Legal Analysis Under The Fourth Amendment Must Start At The Inception Of The Illegal Police Action. Inquiry as to whether a particular search or seizure is reasonable requires consideration of whether action of police was justified at its inception and whether it was reasonably related in scope to circumstances, which rendered its initiation permissible. People v. Cantor, 36 N.Y.2d 106, 324 N.E.2d 872 (1975). Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the 26 Fourth Amendment. This is true whether a person submits to the authority of the badge or whether he succumbs to force. People v. Cantor, 36 N.Y.2d 106, 111, 324 N.E.2d 872, 876 (1975). If the initial stop of defendant was unlawful, evidence thereafter acquired must be suppressed absent independent establishment of probable cause. People v. Cantor, 36 N.Y.2d 106, 324 N.E.2d 872 (1975). See also People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975) holding that if the stop of an automobile is unreasonable the subsequent discoveries constitute derivative evidence obtained by an illegal seizure and should be suppressed; People v. Graham, 54 A.D.3d 1056, 865 N.Y.S.2d 259 (2d Dept. 2008) holding that for a stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope to the circumstances that justified the detention in the first instance. Blocking Appellant’s Car In The Parking Lot Constituted A Seizure. It is well settled law in New York that where the police prevent a vehicle from leaving by blocking its path of egress, the intrusion is not minimal and it constitutes a seizure and the police must have reasonable suspicion that criminal activity is afoot in order to make such a seizure. People v. Jennings, 45 N.Y.2d 998, 385 N.E.2d 1045 (1978); People v. 27 Loper, 115 A.D.3d 875 (2d Dept. 2014); People v. Hurdle, 106 A.D.3d 1100 (2d Dept. 2013); People v. Lopez, 75 A.D.3d 610 (2d Dept. 2010); People v. Morrison, 161 A.D.2d 608 (2d Dept. 1990); People v. Brown, 112 A.D.2d 945 (2d Dept. 1985). In all of the cases cited above, a police vehicle blocked only the forward progress of the defendant’s vehicle, just as they did here, and the defendant was approached by the police officers. The Court of Appeals and the Appellate Division have consistently found that where a vehicle’s forward progress or egress is blocked by the police, then the vehicle and its passengers are seized under the Fourth Amendment. For the seizure to be lawful, the police must have reasonable suspicion that some criminal activity is at hand. In all of the cases cited above, where such a seizure occurred and there was no reasonable suspicion, any physical evidence subsequently obtained by the police was ordered suppressed by the Courts. The Cantor Court found that the initial seizure of the defendant, i.e. the blocking of his vehicle, constituted a seizure by the police for which there was no reasonable suspicion of criminal activity. Because the initial seizure by the police was illegal, all physical evidence obtained afterwards was suppressed as fruit of an unlawful search. 28 The Cantor case is analogous to this case. Here, Mr. Peguero- Sanchez was seized the moment that the police vehicle blocked his car from moving forward; this constituted a significant limitation on his freedom of movement. At that moment, the police seized him and his vehicle without reasonable suspicion that any criminal activity was at hand. The Police Had No Reasonable Suspicion When Appellant Was Seized And The Tangible Evidence Found In His Car Should Have Been Suppressed By The Trial Court. The arresting police officer’s testimony at the hearing was that he blocked Julio’s vehicle because he saw him “throw” his seat back when they made eye-contact (T13). This testimony was later recanted by the police officer at trial when he was confronted with the fact that the car had electronic seat adjusters and Julio could not have “thrown” his seat back to avoid being seen. (T756) The officer, in fact, admitted that there was no criminal activity at the moment that he blocked the vehicle and seized Julio under the Fourth Amendment. However, the most important factual admission of the officer was that the sole reason for blocking the vehicle into the parking spot was because he saw him “throw” the seat back, and no criminal activity had occurred, and no criminal activity was witnessed. The blocking in of the vehicle constituted a seizure without any reasonable suspicion of criminal activity - a seizure that was illegal at its 29 inception. The physical evidence that was later discovered as a result of this illegal seizure should have been suppressed because there was no reasonable suspicion at the time that the defendant was seized. The tangible evidence was the fruit of an illegal search and seizure because the police officer had no reasonable suspicion when he blocked Julio’s car rendering the seizure illegal at its inception. The trial court erred at the suppression hearing when it failed to suppress all tangible evidence found in the vehicle because it was found as a result of illegal police activity. The officer’s testimony at trial that Julio “threw” his seat back to avoid being seen (again, this testimony was recanted by the police officer on cross-examination), was not illegal activity that constituted reasonable suspicion of any crime. Anyone is free to avoid the police and specifically has the right to be left alone. People v. DeBour, 40 N.Y.2d 210, 217 (1976) holding that recent decisions have emphasized the primacy of the right to be free from aggressive governmental interference. 30 POINT III THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN THE PROSECUTION EVOKED TESTIMONY FROM A PROSECUTION WITNESS THAT DEFENDANT INVOKED HIS RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL POST-ARREST Julio was denied the due process right to a fair trial when, during the People’s case in chief, the People presented evidence that after he was arrested and read Miranda warnings, he invoked the right to remain silent and the right to counsel. Defense counsel made a timely application for a mis-trial, which the trial court denied. The use of the defendant’s post-arrest invocation of the right to counsel and to remain silent during the People’s case in chief easily led the jury to infer that he was guilty, and violated his due process right to a fair trial. The conviction must be reversed and this case remanded for a new trial. It is axiomatic that a defendant’s invocation to the right to counsel, made during interrogation, may not be used against him, and the People may not use the invocation of a constitutional privilege against self-incrimination or the right to counsel on their direct case. People v. Von Werne, 41 N.Y.2d 584, 394 N.Y.S.2d 183, 362 N.E.2d 982 (1977); People v. Whitley, 78 A.D.3d 1084, 912 N.Y.S.2d 257 (2d Dept. 2010); People v. Quinones, 247 A.D.2d 216, 670 N.Y.S.2d 1 (1st Dept. 1998). 31 Such testimony is considered reversible error because it improperly penalizes the defendant for exercising his right to remain silent and creates a prejudicial inference of consciousness of guilt. People v. George, 73 N.Y.2d 614, 618-619 (1989); People v. Whitley, 78 A.D.3d 1084, 1085 (2d Dept. 2010). People v. Hunt, 18 A.D.3d 891 (granting a new trial holding that improper testimony renders inference of consciousness of guilt extremely damaging). During the course of the trial, the People’s witness, Detective Ralph Rivera, testified that the defendant was read his Miranda rights and he refused to make a statement and instead invoked the right to counsel. (T867) The colloquy between the prosecutor and the Detective is as follows: Question: Can you explain to the jury how you processed the defendant? Answer: The defendant was placed into an interview room where he was read his Miranda rights. He invoked his right to counsel. The question asked of the Detective was directly aimed at the moment that the Detective was questioning and Mirandizing Julio. The People’s witness then gratuitously offered the testimony that he had refused to make any statement by invoking the right to counsel. The People surgically targeted the moment when Julio was invoking his constitutional rights and 32 put forward that testimony for the jury to hear. This severely prejudiced him in the eyes or the jury and violated his due process right to a fair trial. Silence in these circumstances is ambiguous at best because an innocent person may have, and New York Courts have consistently recognized, many reasons for not speaking to the police. Some of the reasons found by New York Courts include a person's awareness that he is under no obligation to speak, or to the natural caution that arises from his knowledge that anything he says might later be used against him at trial People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933; a belief that efforts at exoneration would be futile under the circumstances People v. Dawson, 50 N.Y.2d 311, 322, 428 N.Y.S.2d 914, 406 N.E.2d 771; because of explicit instructions not to speak from an attorney People v. Conrow, 200 N.Y. 356, 367–369, 93 N.E. 943. New York Court have consistently found that individuals might refuse to speak to law enforcement not because they are guilty of some crime, but rather because they are simply fearful of coming into contact with those whom they regard as antagonists People v. Conyers, 52 N.Y.2d 454, 458, 438 N.Y.S.2d 741, 420 N.E.2d 933. It is well settled among New York Courts that there is no probative value to the fact that a defendant chooses to remain silent. However, despite 33 its lack of probative value, the evidence undoubtedly affects a witness' credibility. Jurors, who may not be sensitive to the wide variety of alternative explanations for a defendant's pretrial silence, may assign much more weight to it than is warranted and the evidence creates a substantial risk of prejudice. In the case sub judice, the purposefully direct questions of the prosecutor and the gratuitously provided testimony of the Detective were deliberately designed to make the jury aware that the defendant was invoking the right to counsel, remain silent, and hide behind the law. Harmless Error Analysis Is Not Applicable In This Case As The Testimony Was Deliberately Evoked By The People And The Witness In Order To Prejudice Julio. The purposely-directed question, prompting Julio’s invocation of constitutional rights, and the knowingly improper answer by the Detective, bring this case outside the realm of harmless error analysis. Both the prosecutor and the witness were highly experienced professionals and well aware that testimony on the People’s case in chief may not include reference to the defendant invoking constitutional rights because it is so highly prejudicial. 34 The Overwhelming Majority Of Cases In The Appellate Division, Second Department Find That This is Not Harmless Error. The overwhelming majority of cases in New York have held that this is not harmless error. The Appellate Division, Second Department, as well as other Departments, acknowledge that the error and prejudice is too great to ignore. In People v. Tucker, 87 A.D.3d 1077, 1080, 929 N.Y.S.2d 631, 634 (2d Dept. 2011) this Court found that the introduction of testimony of the defendant’s invocation of his constitution rights was not harmless error; in People v. McArthur, 101 A.D.3d 752956 N.Y.S.2d 71 (2d Dept. 2012) this Court remanded a case for a new trial where the People merely mentioned the defendant’s post arrest silence in closing arguments; in People v. Spruill, 125 A.D.2d 510509 N.Y.S.2d 422 (2d Dept. 1986) this Court found that the error was not harmless where the evidence was not overwhelming; in People v. Robinson, 191 A.D.2d 595594 N.Y.S.2d 801 (2d Dept. 1993) this Court found where the prosecutor, as here, deliberately elicited testimony concerning post arrest silence that it could not be deemed harmless error; in People v. Theodore, 113 A.D.3d 703, 978 N.Y.S.2d 357 (2d Dept. 2014) where prosecution impeached the defendant with his post arrest silence was not considered harmless error; in People v. Murphy, 51 A.D.3d 1057 (3d Dept. 2008) the court found that they could not ignore the potential for 35 prejudice to the defendant by such testimony; in People v. Knowles, 42 A.D.3d 662 (3d Dept. 2007) the Court acknowledged that there was a reasonable possibility that evidence of defendant’s invocation of his constitutional rights contributed to his conviction. In this case defense counsel properly requested that the trial court not give a curative instruction for fear of highlighting the prejudicial testimony already before the jury. Forcing the defense to seek a curative instruction where the trial court reiterates and reinforces for the jury the already prejudicial testimony, rewards the prosecution for having evoked improper and prejudicial testimony and punishes the defendant by confining him to a remedy that highlights for the jurors his refusal to speak to the police by invoking constitutional rights. As this Court has consistently held, the possibility for prejudice is too great, and the error is not harmless. The reference during the People’s case in chief to the defendant’s invocation of his right to remain silent and his right to counsel was a due process violation of his right to a fair trial. The conviction should be reversed and a new trial ordered. 36 POINT IV THE PROSECUTION COMMITTED MISCONDUCT BY INTRODUCING EVIDENCE OF UNCHARGED CRIMES AND COMPOUNDED THE ERROR BY MAKING NO LESS THAN 21 REFERENCES TO THE UNCHARGED CRIME IN ITS CLOSING ARGUMENTS DENYING JULIO THE DUE PROCESS RIGHT TO A FAIR TRIAL. Julio was denied the due process right to a fair trial when the prosecution committed misconduct by introducing evidence of an uncharged crime and compounded the prejudice by highlighting the uncharged criminal acts in closing arguments. Although Julio was charged with possession of illegal drugs, the prosecution introduced evidence at trial that led the jury to believe that he was committing the uncharged crime of selling illegal drugs. That evidence included a prosecution witness who testified that he was “dealing” drugs, the introduction of text messages from defendant’s phone, the prosecution’s assertion that he used “coded language” to arrange a cocaine sales, and in closing arguments no less than 21 references to the assertion that he was arranging a meeting to sell cocaine, an uncharged crime at this trial. The cumulative effect of the prosecutor’s misconduct caused such substantial prejudice to defendant that it deprived him of the due process right to a fair trial. Reversal based on prosecutorial misconduct is warranted if the misconduct is such that the defendant suffered substantial prejudice, 37 resulting in a denial of due process. People v. Sandy, 115 A.D.2d 27 (1st Dept. 1986); People v. Story, 81 A.D.3d 1168, 1169 (3rd Dept. 2011). It is well settled in the Appellate Division, Second Department that a prosecutor compounds the prejudice of uncharged crimes when, in summation, the evidence of uncharged crimes is emphasized. People v. Wilkinson, 71 A.D.3d 249, 257 (2d Dept. 2010). The Admission Of Evidence Of An Uncharged Crime By A Prosecution Witness Violated The Molineux Rule. It is well settled in New York that evidence of crimes other than the one charged is irrelevant and may not be introduced to prove guilt. People v. Allweiss, 48 N.Y.2d 400 (1979). If evidence of other, uncharged crimes is offered solely to demonstrate the defendant’s predisposition to commit the offense charged, it is inadmissible. People v. Bradley, 20 N.Y.3d 128 (2012). Where the cumulative effect of improper admission of evidence of uncharged crimes allegedly committed by defendant was prejudicial to defendant, then he is deprived of a fair trial and a new trial is warranted, despite that trial court gave limiting instruction to the jury on that evidence. People v. Sayers, 64 A.D.3d 728 (2d Dept. 2009). Under the Molineux rule, evidence of other crimes is admissible to prove the specific crime charged when the prosecution attempt to establish one of the following: 1) motive; 2) intent; 3) knowledge or absence of 38 mistake or accident; 4) common plan or scheme; and 5) identity of the defendant. Admissibility of this evidence is determined by reference to a two-part inquiry. First, the proponent of the evidence must identify some issue other than propensity to commit the crime charged. Once that showing is made, the court must balance the evidence and determine whether its probative value outweighs the potential for prejudice to the defendant. Where the Molineux type evidence is directly probative of the crime charged, the prejudicial effect of the evidence is outweighed by its relevancy. People v. Allweiss, 48 N.Y.2d 40 (1979); People v. Vails, 43 N.Y.2d 364 (1977). In order for the court to make this assessment, the proponent of the Molineux evidence must request a hearing and present this type of evidence to the court and obtain a ruling on its admissibility prior to trial. In this case, a Molineux hearing was held prior to trial and the People did not raise the crime of sale of illegal drugs. The Prosecution’s Witness Deliberately Gave Unsolicited Testimony Of Uncharged Criminal Acts On Cross-Examination. During the cross-examination of a prosecution witness, Detective Rivera, defense counsel posed a question regarding possible DNA evidence on the outside of the bag that the evidence was found in. The following colloquy took place: (T896) 39 Question: So you wanted to see if his DNA was on the bag, right? Answer: Yes. Question: But also may be his DNA wasn’t on the bag, that would be important for us, right? Answer: Or maybe anybody that he may have been dealing with, yes. The prosecution witness deliberately added this gratuitous testimony that had nothing to do with the question that he was asked by defense counsel. The question posed dealt only with DNA evidence on the bag that the evidence was found in and whether Julio’s DNA had been found on it. The gratuitous response of the prosecution’s witness was that he was “dealing with” someone for the purpose of selling drugs. This was a particularly egregious error because not only was the answer unsolicited by defense counsel, but also because Julio was not charged with selling illegal drugs. The witness, a highly experienced police detective, offered this unresponsive, highly damaging testimony regarding uncharged crimes. Defense counsel made the appropriate objection and moved for a mistrial immediately. (T938) The trial court denied defense counsel’s application for a mis-trial. (T943) 40 The People’s Rebuttal Case - The Highly Prejudicial Testimony Was Exacerbated When The People Introduced Evidence In The Form Of Text Messages From The Defendant’s Phone Showing That He Was In The Parking Lot Waiting To Meet Someone Other Than His Girlfriend The unsolicited testimony of the prosecution’s witness was exacerbated when the People, on rebuttal, offered illegally obtained text messages from defendant’s phone that stated defendant was communicating with someone to let them know that he was there in the parking lot of Applebee’s and had cocaine. (T1054-T1074) The inference that the People foisted upon the jury was that Julio was there to make a drug sale and was communicating with someone else trying to arrange the sale. Defense counsel argued that the People’s presentation of the text messages, which stated that he was waiting for some other man telling him, in “coded language”, that he was at Applebee’s and possessed cocaine, was intended to lead the jury to infer that Julio was attempting to sell illegal drugs. (T1064) The People’s assertion that this was rebuttal evidence to show that he lied about who he was meeting (T1060), was a thinly veiled attempt to place evidence before the jury that only led them to infer that he was selling illegal drugs, an uncharged crime. This clear inference that the People asserted circumvented both the Molineux rule and denied him the due process right to a fair trial. 41 The Trial Court Erred And Violated The Collateral Matter Rule By Allowing The Introduction Of The Text Messages Into Evidence It is well settled in New York that a witness may not be impeached by extrinsic evidence on a matter that is merely collateral. People v. Knight, 80 N.Y.2d 845, 847 (1992). In this case the issue was whether or not the defendant was meeting his girlfriend or some other man (for the purpose of selling illegal drugs according to the People). This was not a material issue in the case because Julio was not charged with sale of cocaine, he was charged with possession only. Who he was meeting was a collateral matter and non-essential to the People’s case of possession of cocaine. Defense counsel, in response to the People’s argument, correctly argued the collateral matter rule when the People sought to introduce the text messages to prove a non-material issue in the case. (T1060) The trial court ruled that the text messages would be admitted, holding that the text messages were not hearsay. (T1065) The trial court never made a ruling on defense counsel’s objection on the ground that the evidence was a collateral matter. The evidence of the text messages exacerbated the Molineux violation/unsolicited testimony of Detective Rivera by placing hearsay testimony into evidence that led the jury to believe that Mr. Peguero- Sanchez was meeting someone in that parking lot for the purpose of selling 42 illegal drugs, an uncharged crime. This evidence constituted further misconduct by the prosecution, and violated the Due Process right to a fair trial because it so highly prejudiced the defendant in the eyes of the jury. Prosecutorial Misconduct: The People’s Closing Arguments Emphasized The Evidence Of A Sale Of Illegal Drugs When They Made No Less Than 21 References To Evidence Of The Uncharged Crime. The People further prejudiced Julio when they emphasized in their closing arguments the evidence that he was there for the purpose of selling illegal drugs. In the People’s summation they made no less than 21 references to the sale of illegal drugs. This was so highly prejudicial to the Julio that it deprived him of the due process right to a fair trial. The various references that the People made in their closing arguments had to do with the dollar value of the cocaine (not an element of the crime charged here), the prosecution’s exaggeration of the weight and amount of cocaine, the text messages that he was there to meet some man and that he was using “coded language” to make him aware that he had cocaine. The Dollar Value Of The Cocaine The prosecution compounded the prejudice to the defendant when, at closing arguments the prosecutor emphasized the dollar amount and value of the cocaine that Julio was alleged to have possessed. This is not an element 43 of the crime and purposefully inflamed the jury and led them to believe that he was selling illegal drugs for big money. On no less than six occasions during closing arguments the prosecutor mentioned the dollar value of the cocaine allegedly possessed by Julio. The excerpts from the prosecution’s closing argument are as follows: At T1118 lines 2-4 the prosecutor argued: “He had over –approximately, conservatively, twenty thousand dollars worth of cocaine at this feet. And that’s why he slid down in his seat.” Again at T1120 lines 5-10 the prosecutor repeated: “If you have half a kilo of cocaine at your feet, over twenty thousand dollars worth of cocaine, you recognize a police officer, it’s reasonable that someone who had that cocaine in their possession would slide down.” Again at T1128 lines 14-15 the prosecutor emphasized: “Where did he get twenty thousand dollars worth of cocaine?” At T1129 lines 3-5 the prosecutor highlighted the dollar value again: “He went out and bought twenty thousand dollars worth of cocaine in order to make a case.” At T1130 lines 17-20 the prosecutor underscores the dollar amount again: “So he’s claiming that one of the barber shop boys left the twenty thousand dollars worth of cocaine in their boss’ car without telling him” 44 At T1135 (lines 20-25) – T1136 (lines 1-6) the prosecutor infers that Julio is supplementing his income as a barber with the proceeds from the sale of cocaine: “Now, the defendant also testified that he owns a home, makes approximately – you know, I’ll give him the high end – thirty two hundred a month and pays – again, I’ll give him the high end because I think he said twenty seven, twenty eight – twenty eight hundred dollars a month in mortgage. He makes thirty two hundred a month, pays a mortgage of twenty eight hundred a month. Now, that’s not paying for cable, food, heat, dinners with girlfriend, gas or any car expenses. The prosecution is clearly making the argument that Julio does not make enough money to live on as a barber, given his expenses. The inference that the prosecutor is hitting the jury over the head with is that Julio is a drug dealer, that he sells illegal drugs – this is an uncharged crime in this trial and the argument made in People’s closing constitutes prosecutorial misconduct. The prosecutor’s arguments were so outrageous and prejudicial to the defendant that he was denied the due process right to a fair trial. All of the People’s arguments and the evidence that they presented to the jury led to the inference of the uncharged crime of intent to sell or an attempted sale of illegal drugs. Julio was not charged with any of these crimes, and the People’s evidence and arguments in closing constituted a 45 violation of the Molineux rule, prosecutorial misconduct and a violation of the due process right to a fair trial. The Prosecution Exaggerates The Amount And Weight Of Cocaine In closing arguments the prosecution used exaggerated terms when referring to the amount of cocaine allegedly possessed by Julio. This was done to emphasize the highly prejudicial argument that he was committing the uncharged crime of selling illegal drugs in large quantities. The prosecutor stated in closing arguments seven times that Julio possessed either half a kilo or three quarters of a kilo of cocaine. The prosecution’s expert witness, Peter Tracy, a forensic scientist who actually weighed the material, testified at trial that there was 300 grams or 10.6 ounces of cocaine. The prosecution’s closing arguments that there was either a half-kilo or three-quarters of a kilo was belied by the well known fact that there are 1000 grams in a kilo or 35.2 ounces. The prosecutor deliberately exaggerated the amounts and weights of the cocaine in order to lead the jury to the inference that Julio was selling large quantities of drugs for big money. This violated his due process right to a fair trial. The deliberate exaggerations at prosecution’s closing are as follows: At T1113 lines 12-14: “On November 10th, 2011, Mr. Peguero had over half a kilo of cocaine at this feet and he knew it was there” 46 At T1117 lines 20-23 “Well, he’s not a casual observer because he had a half a kilo of – over half a kilo of cocaine at this feet.” At T1120 lines 5-8 “If you have half a kilo of cocaine at your feet, over twenty thousand dollars worth of cocaine, you recognize a police officer…” At T1123 lines 6-8 “ I would suggest to you is not nearly as important as the fact that he had half a kilo of cocaine at this feet.” At T1128 lines 11-13 “Officer Janickey planted it there. Officer Janickey is driving around with over half a kilo of cocaine looking to make a case?” Again at T1128 lines 17-20 the prosecutor exaggerates even further by stating that there was three-quarters of a kilo of cocaine: “All the back and forth regarding one plastic bag. That’s one plastic bag. This is three quarters of a kilo of cocaine. Twenty thousand dollars.” At T1135 lines 13-17: “These text messages later on set up the exact time, they set up the same location and the exact date where the defendant was found in possession of over half a kilo of cocaine.” The prosecution deliberately exaggerated the amounts of cocaine allegedly possessed by Julio by almost doubling it, and in one instance 47 almost tripling the amount allegedly possessed. This was all done with the objective of leading the jury to the inference that he was illegally selling large quantities of drugs. The closing arguments by the prosecution focused on the uncharged crime of the illegal sale of drugs, and this constituted a due process violation of the right to a fair trial. The Coded Messages To further perpetuate his theory and aggregate the prejudice that would inure to Julio, the prosecutor argued in closing that the text messages that were introduced into evidence on the People’s rebuttal case were in the “coded” and “secretive” language used by the larger drug dealers so as not to be deciphered by police. Again, the inference that he was committing the uncharged crime of selling illegal drugs. At T1135 lines 3-7 “Again, this incoming describes him as old man. Then the defendant is asked here, ‘What do you have there?’ He responds, ‘I’ll tell you personally. Thanks.’ Coded, secretive.” At T1137 lines 16-19 “As to knowingly, the defendant’s – the circumstances, how do we know he possessed it? It’s in his car, it’s at his feet. He used coded, secretive language.” 48 All of the references to coded and secretive language are inferences that he is a drug dealer and he is there in that parking lot in front of Applebee’s to commit the uncharged crime of selling illegal drugs. The cumulative effect of the inferences made by the prosecution throughout the trial and especially in closing arguments created such a highly prejudicial inference that Julio was denied the due process right to a fair trial. The Arguments That The Prosecution Inferred In Closing Remarks Became Explicit At Sentencing: The Prosecution Blatantly Disregards The Due Process Rights Of The Defendant At Sentence The arguments that the prosecution made in its closing became even more explicit at sentencing. The prosecution’s disregard of the rule of due process at sentence requires at a minimum a new sentence. This is strong evidence of the prosecution’s attempt to make the argument of the uncharged crime part of this case because at sentence the prosecution expressly argued that this was a sale of illegal drugs. Whether during the trial or at sentence, the argument of uncharged crimes constitutes prosecutorial misconduct and violated due process. At sentence the prosecution argued that Julio was selling drugs. The following argument was made at sentence: 49 At S34 of sentencing transcript the prosecution argues an uncharged crime: “ And without even including a significant amount of living expenses, which I’m sure he is paying, he would be left with a shortfall of around at least $500 a month; and I would submit to your Honor that he filled that shortfall by selling cocaine.” At S5 of the sentencing transcript the prosecution exaggerates the weight of the cocaine: “ And the specifics of this crime include the defendant having almost three-quarters of a kilo of cocaine.” At S5 of the sentencing transcript prosecution argues the uncharged crime of the sale of illegal drugs: “…he was meeting someone not for dinner according to those text messages, he was meeting someone there to complete a cocaine sale.” “The defendant is a cocaine dealer, in fact, he is a large-scale cocaine dealer selling a hundred grams at a time. At S6 of the sentencing transcript: “Having access to cocaine that comes right off the kilo indicates his level, high level of involvement in cocaine trafficking here in Suffolk County.” At S6 of sentencing transcript: “And yet the defendant chose to seek additional money by trafficking in large amounts of cocaine despite having a legitimate source of income.” 4 S numbers refer to the sentencing transcripts of date. 50 At S7 of the sentencing transcript the prosecution continues to argue that defendant should be punished for the uncharged crime: “and I would say, your Honor, the text messages which came from his very phone clearly indicate that the defendant was trafficking in cocaine that evening.” At S8 of sentencing transcript the prosecution recommends that he be punished for the uncharged crime of sale of illegal drugs: “After weighing all those factors, the People are recommending twelve years incarceration. We believe that’s appropriate for the defendant’s trafficking in this amount of cocaine and appropriately weighs the lack of criminal history with the severity of this crime, and that’s what our recommendation is. Thank you.” The prosecution’s arguments don’t even pertain to this case. The prosecution argues that he should be punished as a drug dealer and for trafficking in cocaine. Julio was never charged or convicted of that. The prosecution continued to violate the rule of due process at sentence when they argued that he be punished for trafficking in drugs. He received neither a fair trial nor a fair sentencing hearing. The prosecution insisted that he be punished for something he was never charged with. The allegations made at sentence by the People are tantamount to a violation of the Sixth Amendment right to trial by jury because they insist that he be punished for something that he was never charged with. 51 POINT V THE TRIAL COURT ERRED WHEN IT DENIED MR. PEGUERO- SANCHEZ THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND THE DUE PROCESS RIGHT TO PRESENT A DEFENSE WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO QUESTION POLICE OFFICER JANICKEY REGARDING THE REASON FOR WRITING THE TICKET FOR VTL §375(10)(a). The trial court erred when it denied Julio the right to confront the witnesses against him under the Sixth Amendment of the U.S. Constitution and under Article 1 § 6 of the New York State Constitution. During the trial defense counsel attempted to question a prosecution witness about the details of certain elements of Vehicle and Traffic Law § 375(10)(a) and the writing of a ticket for that violation. The trial court improperly curtailed the cross-examination by defense counsel and refused to allow him to ask any questions of the witness in this area, thereby denying the defendant the right to confront the witness under both the U.S. and the New York Constitutions. The Right To Confrontation Under The U.S. Constitution And The New York State Constitution Both the Sixth Amendment’s Confrontation Clause and the New York State Confrontation Clause confer upon the accused in all criminal prosecutions the right to be confronted with the witnesses against him. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2003); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 52 (2009); Bullcoming v. New Mexico, 131 S.Ct. 2705180 L.Ed.2d 610 (2011) New York State Constitution Article 1 § 6. The right of confrontation permits the accused to face his accusers— to test their credibility, their trustworthiness and their veracity. Cross- examination is important because it is instrumental in “exposing falsehood and bringing out the truth in the trial of a criminal case” (Pointer v. Texas, 380 U.S. at 404, 85 S.Ct. 1065). A Confrontation Clause violation may also constitute a violation of the right of due process and fair trial guaranteed by the Fourteenth Amendment and article I, § 6 of the New York State Constitution. People v. Johnson, 1 N.Y.3d 302, 311, 804 N.E.2d 402, 409 (2003). In Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985), the United States Supreme Court explained the two categories within which Confrontation Clause cases fall. Specifically, those “cases involv[e] the admission of out-of-court statements and ... restrictions imposed by law or by the trial court on the scope of cross-examination” (Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 88 L.Ed.2d 15 [1985] ). People v. Montes, 16 N.Y.3d 250, 253, 945 N.E.2d 1006, 1008 (2011). The Trial Court May Impose Reasonable Limits On Cross-Examination, But May Not Impede The Defendant From Presenting A Defense. While a district court may impose reasonable limits on cross- examination to protect against, for example, harassment, prejudice, 53 confusion, and waste, it must also give wide latitude to a defendant in a criminal case to cross-examine government witnesses. United States v. White, 692 F.3d 235 (2d Cir. 2012), as amended (Sept. 28, 2012); U.S. v. Cedeno, 644 F.3d 79 (2d Cir. 2011). Any curtailment of cross-examination will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. People v. Bryant, 93 A.D.3d 1344, 1345 (4th Dept. 2012). New York Courts have consistently held that restriction on the right to cross-examine key prosecution witnesses can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of a reasonable doubt as to guilt. People v. Montoya, 63 A.D.3d 961, 964 (2d Dept. 2009) citing People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893 (1979). During the course of the trial, the prosecution witness, Officer Janickey, testified that he wrote a citation for a violation of Vehicle and Traffic Law § 375 (10)(a) because defendant had no “rearview mirror”; that was, in fact, written on the ticket issued to Julio. However, the statute does not contain the language “rearview mirror” and makes no requirement that there be a rearview mirror. 54 Defense counsel attempted to cross examine the police officer on why he issued the defendant the ticket and whether or not he was aware that the statute did not contain the language “rearview mirror”. (T692) Defense counsel asked the question directly to the prosecution witness whether the statute mentioned a “rearview mirror”. Upon the objection of the prosecution the trial court refused to allow the defense to ask this question of the People’s witness. (T700) Defense counsel was attempting to demonstrate that the officer had erroneously written the ticket, which stated “no rearview mirror”, because the statute makes no such requirement. This was appropriate cross-examination because the witness’s answer to the question would have demonstrated whether he understood the substance of the violation and whether the ticket was legitimately written. The Trial Court Violated Both The Confrontation Clause And The Due Process Clause When It Prevented Defense Counsel From Cross-Examining The People’s Witness When the trial court refused to allow defense counsel to ask these questions of the witness, he denied the defense the right to confront the witness against him under both the U.S. and the New York State constitution, and also impeded defense counsel’s ability to present a defense. The police officer misunderstood the statute when he wrote “no rearview mirror” on the ticket, and he was therefore not justified in writing 55 the ticket. The trial court’s curtailment of the cross-examination in this sense was not only a violation of Julio right to confrontation, but was also a violation of his due process rights because it impeded him from presenting a defense to the allegation that he had violated Vehicle and Traffic Law §375(10)(a). The defense had a legitimate question as to whether the police officer understood the substance of the violation and whether a violation actually occurred. When the trial court prevented defense counsel from asking this question, he prevented him from confronting the witness on the crucial fact as to whether a rearview mirror was actually required, and, more importantly, the trial court prevented the exploration of a crucial defense. The curtailment of cross-examination on this issue violated both the confrontation clause and the due process right to present a defense. 56 CONCLUSION For all of the reasons stated above, the conviction should be vacated and a new trial granted. Date: June 19, 2015 New York, New York Respectfully submitted, _________________________ Stephen N. Preziosi, Esq. 570 Seventh Avenue Sixth Floor, Suite 600 New York, New York 10018 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 11,875.