The People, Respondent,v.Lee Carr, Appellant.BriefN.Y.Feb 10, 2015To BE ARGUED By AMy DONNER (15 MINUTES) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, APL-2014-00068 v. LEE CARR, Defendant-Appellant. BRIEF FOR DEFENDANT-ApPELLANT JUNE, 2014 SCOTT A. ROSENBERG AMY DONNER Attorneys for Defendant-Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-3487 Fax: (646) 616-4487 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT ..................................................................... 1 QUESTION PRESENTED .............................................................................. 4 STATEMENT OF FACTS .............................................................................. 4 Introduction ........................................................................................... 4 The Trial ................................................................................................ 6 The People's Case ...................................................................... 6 Exclusion of Defense Counsels and Defendants, Over Objection, From An Off-the Record Court Colloquy at which the Court Questioned Rose Concerning his Late Appearance, Medical Unfitness to Testify and Whether he was on Drugs ................................... 9 Gary Rose's Testimony ...................................................... 18 Testimony of Jerome Mitchell ............................................ 25 The Defense Case ..................................................................... 31 Summations, Charge, Deliberations and Verdict.. ................... 34 Sentencing ........................................................................................... 36 The Appellate Division Proceedings .................................................. 36 1 ARGUMENT POINT I APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AT MATERIAL STAGES OF TRIAL WHERE THE COURT, OVER DEFENSE OBJECTION, EXCLUDED DEFENSE COUNSEL FROM TWO OFF-THE-RECORD IN CAMERA EXAMINATIONS OF THE MAIN PROSECUTION WITNESS ADDRESSING THE WITNESS'S MENTAL AND MEDICAL CAPACITY TO TESTIFY. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I, §6 .................... 38 CONCLUSION .............................................................................................. 71 11 TABLE OF AUTHORITIES FEDERAL CASES Chapman v. California, 386 U.S. 18,24 (1967) ...................................... 63, 64 Davis v. Alaska, 415 U.S. 308 (1974) ..................................................... 49-51 Delaware v. Van Arsdall, 475 U.S. 673 (1985) ...................................... 63-64 Kentucky v. Stincer, 482 U.S. 730 (1987) .................................. .42-44, 49-51 Norde v. Keane, 294 F.3d 401 (2d Cir. 2003) ............................................... 61 Perry v. Leeke, 488 U.S. 272 (1989) ............................................................. 61 United States v. Cronic, 466 U.S. 648 (1984) ............................................... 61 STATE CASES In re Tracy C., 186 A.D.2d 250 (2d Dept. 1992) ......................................... 53 People v. Ahmed, 66 N.Y.2d 307 (1985) .................................................. 3, 64 People v. Carr, 111 A.D. 3d 472 (1st Dept. 2013) ......................... 1, 37, 54-55 People v. Carracedo, 89 N.Y.2d 1059 (1997) ............................................... 62 People v. Cates Sr., 92 A.D.3d 553 (1st Dept. 2012) ...................................... 2 People v. Combest, 4 N.Y.3d 341 (2005) ................................................ 42, 58 People v. Contreras, 12 N.Y.3d 268 (2009) ............................................ 38, 40 People v. Crimmins, 36 N.Y.2d 230, 237 (1975) .................................... 63, 64 People v. Darby, 75 N.Y.2d 449 (1990) .................................................. 39-42 People v. Dokes, 79 N.Y.2d 656 (1992) ........................................................ 45 People v. Frost, 100 N.Y.2d 129 (2003) ........................... 38, 40, 46-48,51-52 People v. Goggins, 34 N.Y.2d 163 (1974) ............................................ .40 n. 6 111 People v. Harrison, 85 N.Y.2d 794 (1995) .................................................... 53 People v. Hilliard, 73 N.Y.2d 584 (1989) ..................................................... 62 People v. Johnson, 189 A.D.2d 318 (4th Dept. 1993) ................................... 65 People v. Lovett, 192 A.D.2d 326 (1st Dept. 1993) ...................................... 52 People v. Margan, 157 A.D.2d 64 (2d Dept. 1990) ..................................... 65 People v. McLean, 15 N.Y.3d 117 (2010) ................................................ 3, 65 People v. Morales, 80 N.Y.2d 450 (1992) ................................... 43-44,49,51 People v. Narayan, 54 N.Y.2d 106 (1981) .................................................... 65 People v. Ortega, 78 N.Y.2d 1101 (1991) ........................................ .40, 51, 53 People v. Rosario, 9 N.Y.2d 286 (1961) ................................................ .42, 58 People v. Sanders, 56 N.Y.2d 51 (1982) ................................................. 64-65 People v. Sprowal, 84 N.Y.2d 113 (1994) ................................................... .45 People v. Strothers, 87 A.D.3d 431 (1st Dept. 2011) .................................... 65 People v. Taylor, 73 N.Y.3d 683 ................................................................... 53 People v. Torres, 20 N.Y.3d 890 (2012), aff'g, 97 A.D.3d 1125 (4th Dept.) ..................................................... 68-70 People v. Vargas, 88 N.Y.2d 363, 379 (1996) ............................................. .47 People v. Velasco, 77 N.Y.2d 469 (1991) .................................................... .45 People v. Wardlaw, 6 N.Y.3d 556 (2006) ............................................... 62-63 People v. Wicks, 76 N.Y.2d 128, 133 (1990) ............................................... 62 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6 ................................................................... 4, 38, 39, 70 IV u.s. Const., Amend. VI ................................................................. 4, 38, 39, 70 U.S. Const., Amends. XIV ........................................................... .4, 38, 39, 70 STATUTES C.P.L. §210.15(2) .......................................................................................... 40 C.P.L. §450.90(1) ............................................................................................ 3 C.P.L. §470.05(2) ...................................................................................... 3, 66 C.P.L. §690.40(1) .......................................................................................... 53 P.L. § 125.25(1) ............................................................................................ 1, 4 v COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LEE CARR, Defendant-Appellant. ---------------------------------------------------------------------)( PRELIMINARY STATEMENT By permission of The Honorable Victoria A. Graffeo, Judge of the Court of Appeals, granted March 31, 2014 (A. 1)/ appellant, Lee Carr, appeals from an order of the Appellate Division, First Department, entered November 14, 2013, People v. Carr, 111 A.D.3d 472 (lst Dept. 2013) (A. 2-4), that affirmed with opinion a judgment rendered on June 10, 2009, by the Supreme Court, Bronx County, convicting appellant, after a jury trial, of murder in the second degree (P.L. § 125.25), under Bronx County References to pages of the record included in the Appendix are preceded by "A." Numbers in parentheses without prefix refer to the minutes of the trial transcript, dated April 13 to May 11, 2009. The voir dire is contained in a separately numbered volume, which is included in the Appendix but to which this brief does not refer. Those preceded by "H." refer to the pretrial suppression hearing pertaining to Cates, Sr., Davis, Walter Cates Jr., Tyshon Cates and appellant, which was held on September 28,2008. Numbers in parentheses preceded by "S." designate the sentencing transcript. No issue is being raised regarding the suppression hearing. 1 Indictment Number 4896/06, and sentencing him to an indeterminate prison term of 25 years to life (Carter, J., at trial and sentence). Appellant's application for poor person's relief was filed on May 23, 2014 and currently is pending. Mr. Carr is currently incarcerated pursuant to the judgment herein appealed. Codefendant Walter Johnson a/ka/ Water Cates, Sr. was tried with appellant before the same jury and also convicted of second-degree murder and sentenced on June 10,2009, to an indeterminate prison term of 25 years to life. Cates, Sr. did not raise the issue discussed in this letter either in his Appellate Division brief or in his initial leave application to this Court. His conviction was affirmed and on April 16, 2012, the Honorable Victoria A. Graffeo denied his application for leave to appeal to the Court of Appeals. People v. Cates Sr., 92 A.D.3d 553 (1st Dept.), leave denied, 18 N.Y.3d 992 (2012) (Graffeo, J.). After leave to appeal to this Court was granted to appellant, Cates, Sr. moved for reconsideration of his leave application. On June 25, 2014, the Honorable Victoria A. Graffeo granted reconsideration and upon reconsideration, granted his application for leave to appeal. Codefendant Tyshon Cates was tried with appellant and Cates, Sr., by a separate jury, and the case resulted in a mistrial. Tyshon Cates later 2 pleaded guilty to first-degree manslaughter. On June 22,2009, Tyshon Cates was sentenced to a determinate 6-year prison term. Codefendant Walter Cates, Jr., pleaded guilty to first-degree manslaughter, and, on June 10, 2009, was sentenced to a prison term of 15 years. Codefendant Raheem Davis, under separate Bronx indictment # 1812007, pleaded guilty to first-degree manslaughter and also was sentenced, on June 10,2009, to a prison term of 15 years. This Court has jurisdiction to entertain this appeal pursuant to C.P.L. §450.90(l), and the issue raised is fully preserved for this Court's review under C.P.L. §470.05(2). The exclusion of defense counsel from the first private examination of Gary Rose constitutes an error affecting "the mode of proceedings prescribed by law." See People v. McLean, 15 N.Y.3d 117,121 (2010); People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985). Moreover, the erroneous exclusion of defense counsel from the second in camera examination of Rose was preserved for this Court's review by the arguments of the attorneys for Cates Sr. and appellant, respectively, which also make clear that appellant's attorney joined in the contentions of Cates Sr.'s attorney, as well as by the court's comments in response to those of defense counsel (A. 1754,1761-65,1770,1773-75; 667, 674-78, 683, 686-88). 3 Introduction QUESTION PRESENTED Whether appellant was denied his right to counsel at material stages of trial where the court, over defense objection, excluded defense counsel from two off-the-record in camera examinations of the main prosecution witness addressing the witness's mental and medical capacity to testify. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §6. STATEMENT OF FACTS Under New York County indictment number 4596/06, appellant Lee Carr, co-defendant Walter Cates Sf., Tyshon Cates and Walter Cates Jr. were all charged under an acting in concert theory with second-degree murder and related charges, pertaining to the June 21, 2006 New York County death of Matharr Cham, who was beaten and strangled and whose body later was burned [P.L. §125.25(1)/intent to kill]. Appellant and Cates Sr. were tried together by the same jury. Tyshon Cates was tried at the same time by a different jury and the case resulted in a mistrial. The only trial testimony linking appellant to Cham's death, and the primary evidence against appellant, was the testimony of Gary Rose, a thirty-year user of heavy-duty drugs and the lessor of the apartment where 4 the crime occurred. Rose was the only witness to allegedly see appellant holding the cord with which Cham was strangled or participating in the beating of Cham by Cates Sr. and the other co-defendants immediately before that. Cham was Rose's drug dealer and was in Rose's bedroom immediately before the beating and strangulation. Additionally, Rose did not come forward to the police and prosecutor for months. Thus, the case against appellant hinged on the reliability and credibility of Rose's testimony. On the morning of Wednesday, April 22, 2009, when Rose was ordered to testify, he did not arrive as scheduled and the prosecutor sent out detectives to look for him. The court discharged the jurors and promised to inform defense counsel of any developments. Afterward, detectives brought Rose in and the court examined him off the record, absent the defendants' attorneys and without any indication that it tried to reach them. The court ordered Rose to appear ready to testify on the following Monday, April 27, 2009 -- five days later. On April 27th, the prosecutor informed the court that Rose had arrived but was in no condition to testify. Over defense objection, the court examined Rose in a proceeding from which it excluded defense counsel and of which it refused to have a transcript made for later disclosure to counsel. Afterward, the court informed the defense for the first time that, on April 5 22nd, it had conducted a private examination of Rose off the record, after court had been adjourned. In response to counsel's question, the court explained that no transcript had been made of the April 22nd private examination. Rose finally testified April 28th, the day after the second private off the record examination. Following trial, a jury convicted appellant and Cates Sr. of second-degree murder. The Trial The People's Case At approximately 8:20 a.m. on June 22, 2006, Officer Christopher Verde discovered a partially burned body in a dumpster at Ii in the Bronx (Verde: A. 1124-27; 41-44). The body was later identified as decedent, Matharr ("Mack") Cham (Verde: A. 1134, 1136; 51, 53; Aisha Jobe: A. 1116, 1119-20, 1123; 33, 36-37,40). On June 23, 2006, Sergeant John Neesen received information from an anonymous phone caller to New York City's Crime Stoppers Hotline (Neesen: A. 1171, 1178; 88, 95). The caller stated that "they" were cleaning the apartment, at .... Laconia Avenue,. S and that the person whose 6 body was found in the dumpster had been killed there (Neesen: A. 1179-80; 96-97). Neesen and other officers discovered an open criminal complaint against Cates Sr. at that location (Neesen: A. 1182-83; 99-100). Upon arriving there, the police knocked on the apartment door. Cates Sr. opened it and stepped into the hallway (Neesen: A. 1185-86; 102-03). The police ordered Cates Sr. to accompany them to the stationhouse (Neesen: A. 1186; 103). Refusing, Cates Sr. fled back into the apartment and the police chased him inside and handcuffed him (Neesen: A. 1186-87; 103- 04). Hearing a voice in the back of the three-bedroom apartment, the police asked three other apartment occupants to leave (Neesen: A. 1187; 104). They included Gary Rose, the main prosecution witness against appellant (Neesen: A. 1196, 1216; 113, 133). On the apartment's living room floor, the police observed puddles of liquid with a strong smell, a mop and bucket (Neesen: A. 1186, 1190; 103, 107). Neesen found a jug of "biowash fluid," and two rubber gloves on the floor of a bedroom (Neesen: A. 1190; 107). Later that day, Detective Christopher Florio, of the Crime Scene Unit, 7 visited the apartment (Florio: A. 1263, 1266, 1269-70, 1279-80; 180, 183, 186-87, 196-97). The only possible blood in the residence was a substance that may have been blood on a sheet in the bathroom (Florio: A. 1271-84, 1300; 188-201, 217). Florio explained that biowash is "industrial strength" solution used to clean biological fluids (Florio: A. 1289; 206). On June 24, 2006, Officer Abdul Miah recovered a fan, mop head, bucket, towels, gloves, bed sheets, biowash, and other items, including pieces of floor tile, from the apartment (Miah: A. 1706-16; 620-30). Kecia Harris, a "criminalist" with the medical examiner's office, examined the evidence from the apartment (Harris: A. 1723; 637). Two gloves contained DNA which matched that of Cates Sr. (A. 1730; 644). Harris determined that a substance on Cates Sr.' s jeans that, at the time of the arrest, had been believed to be blood, did not match Cham's DNA (A. 1964-66; 875-77). DNA testing revealed that none of the DNA on Cham's body came from Cates Sr. or appellant (A. 1971; 882). Deputy Chief Medical Examiner James Gill, who testified as an expert in forensic pathology (A. 1977; 888), conducted an autopsy of Cham on June 23, 2006 (Gill: A. 1774-75, 1977, 1994; 885-86, 888, 905). While Cham's body contained some bruises, the cause of death was strangulation (A. 1994; 905). 8 Exclusion of Defense Counsels and Defendants, Over Objection, From An Off-the Record Court Colloquy at which the Court Questioned Rose Concerning his Late Appearance, Medical Unfitness to Testify and Whether he was on Drugs On Wednesday, April 22, 2009, when Rose was scheduled to testify at appellant's trial, the prosecutor noted that Rose had not "show[n] up and the detectives [were] currently looking for" him (A. 1744; 657). She requested "some time to locate that witness" (A. 1744; 657). The court agreed to the prosecutor's proposal to play for the jury People's Exhibit 8, the surveillance tape at the gas station and People's Exhibit 9, the surveillance tape of ~Street (the dumpster) (A. 1744-45, 1749-50 ; 657-58, 662 - 663). The parties agreed that Rose previously made a 50-minute audiotape statement stating that he had "seen nothing" (A. 1745; 658).2 The prosecutor denied that any agreement or inducement had been given to Rose at that point (A. 1747-48; 660-61). After the tapes were played, the court informed the jurors, "Due to some complications, that's all the testimony we are going to have for you today" and dismissed them until Monday (A. 1751-52 ; 664-65). 2 They disagreed as to whether the statement was sworn (A. 1745-47; 658-60). 9 After the jurors had left the courtroom, the following occurred: THE COURT: Okay. My understanding [is] there's been a development with regard to your witness. You're going to let me know what's going ·h? on, ng t. MS. IMBO [PROSECUTOR]: Yes, Your Honor. THE COURT: In the next day or two. MS. IMBO [PROSECUTOR]: Yes, Your Honor. THE COURT: Okay, if there's nothing else. MR. BRA VERNMAN: Will you let us know in a day or two? THE COURT: Yeah. We'll let you know. We're done until Monday morning 10 o'clock. Have a good weekend. MR. JOHNSON [CATES, SR.]: Thank you, Judge. Have a good weekend. (Whereupon case was adjourned until April 27, 2009). (A. 1754; 667). The transcript pertaining to the next court date -- Monday, April 27, 2009 -- states: ********** (Whereupon, the following proceedings takes place, on the record, in open court, among the Court, the Assistant District Attorneys, the defense counsels and all the defendants outside the hearing and the presence of the juries). 10 CA. 1755; 668). After the clerk called the court to order and had the attorneys state their appearances CA. 1755-56; 668-69), the following colloquy occurred: THE COURT: Ms. Imbo, I understand we have no witnesses today? MS. IMBO: That is correct, Your Honor. The witness scheduled today is Gary Rose. He was late coming to my office. He's ill. He's not able to take the stand today. We're asking for an adjournment. THE COURT: For the record - MS. IMBO: Sorry for the inconvenience. THE COURT: -- I've ordered the DA to bring [Rose] over. I'm going to interview him in camera and then - I want defense counsels to stick around. MR. BRAVERMAN [CATES SR.'S ATTORNEY]: Absolutely. Further, I understand from Ms. Gottlieb [one of the case's prosecutors]- she indicated she was going to obtain medical attention for Mr. Rose. If, in fact, the People do that, I would ask that his medical records be provided to the Court for an in camera review, if he comes in and if his illness - if there is anything along the lines [of] intoxication to narcotics, anything like that, and we know from his sworn statement [that] he's a regular user of narcotics [,] I think that should be disclosed to defense as well. If he refuses medical attention - Ms. Gottlieb indicated he might refuse medical attention. If he's unable to perform and he refuses medical attention, I think that's something that should be disclosed CA. 1756-57; 669-70). 11 Counsel for defendant Tyshon Cates noted the possibility that Rose could be "rebounded" by the court and suggested that the court examine Rose before dismissing the juries, in case the court determined Rose indeed was able to testify, so that the trial could commence with Rose's testimony that day (A. 1757; 670). Appellant's attorney said, "That was my thought. I would join in that" (A. 1758; 671). The court agreed (A. 1758; 671). Following a pause in the proceedings -- presumably during which the in camera examination of Rose occurred -- the court informed the juries, "We're not able to proceed today, so there will be no action in this case, at least as far as you're concerned today .... We expect to continue tomorrow. So once again, I'll see you here tomorrow at ten o'clock" (A. 1757-58; 670- 71). Afterward, the court placed the following on the record: THE COURT: Okay. For the record, on Wednesday[,] shortly after I dismissed the juries, we got word that Mr. Gary Rose, who was supposed to be here first thing Wednesday, [had] arrived. You know - this was after the proceedings were over. I asked the People to have him brought over here to find out why he was late. He told us that he was late. He seemed to be in bad shape. But he told us, you know, he was running late. I instructed him that he had to be here today. I told him that he could be put in jail, but we weren't going to do that, at this point, but that he had to be here today at ten 0' clock to be able to testify, 12 This morning, I've received a phone call from [ADA] Imbo stating that although Mr. Rose was here, he was in no condition to testify. We had a discussion amongst the DA and the defense lawyers at the bench. I've instructed everyone that I was going to speak to him in camera which I did off the record. I spoke to him this morning. He informed me that he suffers from migraines [,] that he needed a half a day to recover. And I asked him if he was on drugs. He said, no. I asked him if he was suffering from any alcohol problem. He said, no. I asked him if he's on crack. He said, no. And he said he would be ready to go tomorrow. So basically, that's - I ordered him to be here tomorrow and that's where we stand (A. 1760-61; 673-74). At that point, counsel for the co-defendant stated, inter alia,: Thank you Judge. A couple of issues. I appreciate the opportunity to make them now. First and foremost, even though we all had a discussion before-hand, I think the Court agrees that there was a unanimous decision of the three defense lawyers that we wish[ed] to be present with our clients when the Court did the inquiry of Mr. Rose. When that was denied, we wish[ ed] the inquiry by the Court go on the record[,] which also was denied. This was a request before the Court conducted the independent inquiry. The second thing is as follows: We were made aware today of the Court's inquiry from Wednesday. If that was on the.record, as well, we would like copies of that transcript. .... we do not have a copy of that transcript. We ask that a copy of that transcript be made available to us, if we get 13 an unsealing order or a request to the Court. We would like a copy of that transcript. Third, we would like to know - according to the People, Mr. Rose was in the District Attorney's Office last Mondal as [he] was today when he was subpoenaed to arrive and when he - the record should be clear that Mr. Rose arrived at the earliest in the very late morning on Wednesday or later. We know from being here in [c ]ourt that the District Attorney had their detectives looking for him. [AD A] Gottlieb indicates he just walked into the office at some point. We would like to know what excuses he gave for not showing up on that day. Since he was subpoenaed and ordered to arrive at a particular time and he did not. (A. 1761-62; 674-75). Neither the court nor the prosecutor contradicted the co-defendant's attorney regarding the earlier sidebar in any way. The co-defendant's attorney reiterated that Rose's prior statement stated that Rose "was a regular user of methadone and a regular user of crack cocaine" (A. 1764; 677). After the co-defendant's attorney had spoken, the ensuing colloquy occurred: THE COURT: Mr. Bruno [defense counsel]? MR. BRUNO: My colleague was quite thorough. I join in his applications 3 While the co-defendant's attorney stated that Rose was in the prosecutor's office last Monday, it appears that this was a misstatement and that, in fact, the co-defendant's attorney was referring to the previous Wednesday. 14 (A. 1765; 678).4 Additionally the prosecutor stated: But, in any event, Your Honor has addressed those issues. Your Honor made a record as to, you know, why - Mr. Rose told Your Honor and myself why he was not here at nine 0' clock on Wednesday. He was late and he showed up at about, you know, sometime in the afternoon at about 11 - I believe it was 11:15. It was late. He was held at the office and he came over here to explain to Your Honor why he was late. So I think that's been addressed (A. 1770; 683). Then the court ruled: And furthermore, I don't think there is any legal requirement for my discussions with him on Friday - excuse me, on Wednesday or today to be on the record. Obviously, defense counsel will, you know, have a full range of cross examination. They can cross [on] why he wasn't here Wednesday. They can cross him [on] why he wasn't able to proceed today. You know, the jury is going to find out that we've been sitting around waiting for him. (A. 1770; 683). The prosecutor reiterated her denial that there was a cooperation agreement with Rose (A. 1770; 683). 4 At the suppression hearing, the first proceeding before Judge Carter, defense counsel and Cates Sr.'s attorney stated that they each joined in the objections and arguments and requests of any of the other defense attorneys unless they specifically stated they did not join in the others' application (A. 18-19; H. 14-15). 15 The following colloquy ensued in pertinent part: MR. BRAVERMAN: The District Attorney argues . . . that the fact that [Rose is] not present is irrelevant to us. The District Attorney subpoenaed him and - the People want to say that he was just late. If he was just late, then why doesn't he come before a [c]ourt when ordered by a [c]ourt to show up. So I dispute their characterization of that. It's just not the way it happens. They wouldn't send detectives out looking for a guy who is late and just didn't show-up. THE COURT: Again, you can cross. MR. BRAVERMAN: I don't know anything about it. Put it this way. The District Attorney's Office interviewed him. The Court spoke to him. I have no records of either of this. If he gets on the stand and says something different from either what he told them or told you, I assume what will happen at that moment is, someone will interrupt the proceedings and say, excuse me, he told me in my office or the Court will say, ladies and gentlemen of the jury, let's stop here. Mr. Rose you told me something different the other day because I wouldn't have a record to cross examine him on. Only the Court would know and only the DA's Office will know. And I will be stuck with Mr. Rose's answer. Even if he's telling the truth about this, it's not always that way and I wouldn't know because I don't know Mr. Rose. THE COURT: Yeah. But I told you that he indicated to me today that he was suffering from a MR. BRAVERMAN: A migraine. 16 THE COURT: - a migraine. And he needed 12 hours to recover from this. MR. BRAVERMAN: Did he- THE COURT: He also said he was not on any drugs or alcohol today. MR, BRAVERMAN: Did he say last Wednesday he had a migraine? THE COURT: I didn't ask him about last Wednesday, I didn't ask him about his physical condition last Wednesday. MR. BRAVERMAN: In the Court's opinion, this morning, you thought last Wednesday he looked worse. THE COURT: That's my impression. MR. BRAVERMAN: If I can ask the Court[,] what the Court though it was that he looked worse? Did he looked tired? THE COURT: He looked tired, disheveled and much more hyper than he is today. MR. BRAVERMAN: Like someone who might be withdrawing from [m]ethadone? THE COURT: I can't say. MS. GOTTLIEB: Judge? THE COURT: It's not fair for me to say. In any event- CA. 1773-75; 686-88). Following some additional colloquy, the court 17 adjourned the case until the following morning CA. 1775-77; 688-90). The prosecutor denied having a cooperation or other agreement regarding Rose or that the People had given Rose any inducement CA. 1747, 1770; 660, 683). Gary Rose's Testimony At the time of the crime, Gary Rose was using approximately $40-50 worth per day of crack cocaine, which he had been taking, in varying amounts, since the early 1980s CA. 1912-16, 1918; 823-27, 829). Additionally, he was getting 90 milligrams of methadone per day, five days a week, from a methadone maintenance program CA. 1912-13; 823-24). Rose had been using methadone, which was supposed to reduce dependence on heroin, for approximately ten years CA. 1915; 826). His prescribed amount of methadone had been gradually increased because he had come in with several "dirty urine" samples, from sniffing heroin notwithstanding the methadone CA. 1915; 826). Rose had been a heroin addict since around the mid 1970s, but had reduced his heroin usage as he became addicted to crack CA. 1914-17; 825-28). Rose, who was 54 years old at the time of the trial, had not had a legitimate job for 25 years CA. 1820, 1931-32; 733, 842-43). At some point, 18 he worked for approximately 6 years for an illegal organization and was arrested in connection with it CA. 1932; 843). Rose had a 2001 felony conviction for attempted sale of a controlled substance involving a "significant amount of heroin," for which he was sentenced to one year in jail CA. 1823; 736). Additionally, he had a 1980 conviction for weapons possession as an A misdemeanor for which he was sentenced to a $250 fine or 60 days in jail; a 1981 conviction for attempted possession of gambling records as a B misdemeanor; a 1982 petit larceny conviction; a 2000 conviction of criminal possession of a controlled substance for which he was sentenced to 3 years' probation; and several petit larceny convictions CA. 1821-24, 1921; 734-37, 832). One of the petit larceny convictions involved a guilty plea on June 25, 2006 for which he was sentenced to community service CA. 1824; 737). Rose admittedly sold crack from 1984 to 1986 CA. 1916-17; 827-28). He was charged a few times with drug possession as a felony, but avoided going to an upstate prison on any of those cases due to good plea bargains to lesser charges CA. 1923-25; 834-36). Rose was sentenced, however, to 1 Y2 years of prison, at some point, although it is unclear for what crime CA. 1924-25; 835-36). Rose also stole items from stores, usually relatively expensive items which he could resell, including approximately $800 worth 19 of jewelry fromJC Penney (A. 1823, 1911, 1922-26; 736, 822, 833-37). On June 21, 2006, Rose was living with co-defendant Cates Sr. at .aconia Avenue, apartment _ which had three bedrooms (A. 1832; 744). Rose's bedroom was at one end of the living room and Cates Sr.'s bedroom was straight down and caddy corner (A. 1832; 744). At the time, Cates Sr. had been staying there "maybe a little over a year" and Rose had been living there "awhile" (A. 1833; 745). In court, Rose identified appellant in court as Lee Carr and also identified Cates Sr. and Tyshon Cates (A. 1825-26, 1844-45; 738-39, 756- 57). Rose knew appellant through appellant's brother, Chris (A. 1828; 741). At approximately 9 p.m., Rose was in the apartment when Cham, who was one of Rose's several crack dealers, entered the apartment and walked down the apartment's hallway (A. 1824; 737). The apartment door was not locked (A. 1942-43; 853-54). Cham apparently entered Rose's room and tried to get into the closet (A. 1824-25, 1834-36; 737-38, 746-48). Getting up from his bed, Rose told Cham he could not be there and tried to block the entrance to his bedroom (A. 1824; 737). Cham told Rose, "I just got to stay here for a couple [of] seconds. I'll be right out" (A. 1833; 745). 20 At around that time, Walter Jr. ("Little Walt") and Cates Sr. (whom Rose referred as "Walt Sr.") came down the hallway (A. 1824, 1833-34; 737, 745-46). They pulled Cham out of the room, "slammed him down" and "choke hold[ed] him [sic] down to the ground right near the bathroom" (A. 1836; 748). They were hitting and "head punching" him (A. 1825; 738). Cates Sr. kept Cham on the ground by planting his knee on Cham's back (A. 1826, 1836; 739, 748). Walter Jr. held Cham's arms and preventing them from "going wild" (A. 1826-27, 1836; 739-40, 748). Eventually they positioned Cham's back against the wall (A. 1837; 749). During much of the incident, Rose was in bed in his bedroom, except for using the bathroom (A. 1836, 1840; 748,752). When he peeked in, he saw them punching Cham with head shots while Cham was on the ground (A. 1837; 749). Rose went back to the bedroom and walked "back and forth" from his bedroom to where Cham was being hit (A. 1827, 1840; 740, 752). Nevertheless, he "dozed off," though he did not really sleep, because it was "like a nightmare" (Rose: A. 1841; 753). Rose testified that eventually appellant came down the hallway and also punched Cham repeatedly in the head (Rose: A. 1827-29, 1837-38; 740- 742, 749-50). According to Rose, appellant's punches were "head shots" because "It makes no sense hitting somebody in the body. You will be there 21 all day" (A. 1828; 741). At the time, Cham was "like crunched up" and made a noise saying "ah, ah, ah, like that" (A. 1828-29; 741-42). Then Rose heard the radio blasting CA. 1829; 742). Rose testified that appellant ordered him to get into his bedroom, saying, "[G]et the fuck back in the room then, and nobody knows nothing" (Rose: A. 1840-41; 752-53). Then Rose stepped back into his room and sat on his bed (A. 1827, 1841; 740, 753). He claimed that his own life "was in danger so I was scared [and] stepped back" CA. 1840; 752). Rose stated that he did not recall what happened (A. 1840; 752). He "dozed off for - I didn't really sleep, just was laying there trying to take it all in. It was like a nightmare" (A. 1841; 753). While Rose was in his bedroom, he heard a "couple of thumps, then it got faint and again, you know, weaker and weaker" (A. 1841; 753). At some point, Rose looked back into the hallway while Cham was on the ground (A. 1841; 753). Rose testified that he saw appellant "with some type of cord or something, you know, playing with a cord or something. Looked like he had it tied around him, but I don't know where" (A. 1841- 42; 753-54). Rose did not know from where appellant allegedly had gotten the cord (A. 1842; 754). Rose also noticed separately indicted co-defendant Raheem Davis, sitting in a swiveling chair, at the front entrance of the third 22 bedroom where they usually watched sports (A. 1838-39; 750-51). Co- defendant Raheem Davis, who was not tried with appellant and Cates Sr., was holding the cord and fitting it "to a size or something. He wasn't cutting it or nothing. I don't know what the hell he was doing with it" (A. 1842; 754). Rose indicated that Raheem was moving his hands back and forth (A. 1843; 755). In addition to appellant, Walter Jr., Cates Sr., Raheem and eventually Tyshon Cates were there (A. 1843; 755). Tyshon also punched Cham (A. 1844; 756). Additionally, Rose seemed to remember the presence of another man, but realized that was impossible because the man he though was there already was dead at the time of the incident (A. 1843; 755). Later Rose was given permission to walk to the bathroom and did so (A. 1840, 1845; 752, 757). In the bathroom, he saw Cham's dead body, laying down (A. 1845; 757). Raheem told Rose, "Don't worry, he's dead" (A. 1845; 757). Shortly after midnight on Saturday, June 24, 2006, Rose was in the apartment when the police entered it (A. 1849; 761). They took him and others out into the hallway and at approximately 1 :00 a.m., drove Rose to the "47th station," where they detained him for close to a full day (A. 1849- 50, 1885-86; 761-62, 797-98). At the precinct, Rose was interviewed by a few people including a 23 prosecutor and a homicide detective named DePaolis, whose interview of him was tape-recorded (A. 1886-88; 798-800). DePaolis and the prosecutor inquired whether he had seen any indication of a beating or murder that had occurred in Rose's apartment on June 21st (A. 1888; 800). Rose told them, "I've got nothing to say" (A. 1888-89; 800-801). He initially denied seeing any bloodshed or anybody being beaten in his apartment and claimed that he had been out getting drugs when Cham died (Rose: A. 1861, 1863, 1888-89; 773, 775, 800-01). Rose told them, "I swear on my mother and I love my mother so much," which he admitted was a "strong oath" (A. 1889; 801). According to Rose, he denied seeing anything because he lived in the neighborhood, was scared and hoped that the police would find a witness other than him (A. 1947; 858). Rose admitted that he initially was supposed to be in court to testify at approximately 9:00 a.m. on the morning of April 22nd (Wednesday), but did not appear or testify (A. 1902-04; 813-15). That day, when he entered his apartment, he was told that detectives had been looking for him (A. 1904; 815). He immediately went to court, arriving at approximately 11:40 a.m. (A. 1904; 815). In court, he was informed that a warrant had been lodged against him for not completing his community service based on a June 2006 petit larceny conviction, which apparently was based on the June 24, 2006 24 petit larceny arrest (A. 1896, 904-05; 807, 815-16). The detectives and one of the two trial prosecutors in appellant's case accompanied Rose to warrant court, where a judge re-sentenced him to time served and released him with instructions to testify in court at appellant's trial at approximately 9:00 a.m. on Monday morning (A. 1905-06; 816-17). Rose testified that, on Monday, he arrived in court on time, but was not physically or medically fit to testify (A. 1906; 817). He had a terrible migraine headache and was "full of stress" (A. 1908; 819). Rose claimed that when he got migraines, he needed to lay down in total darkness and quiet for at least 12 hours (A. 1908; 819). Rose was kept overnight at a hotel in the company of two detective investigators, meaning detectives who specifically work for the District Attorney's office (A. 1908-09; 819-20). These detective investigators remained in court while Rose testified at appellant's trial (A. 1909-10; 820-21). Testimony of Jerome Mitchell At about 9:30 p.m. on June 21, 2006, Jerome Mitchell received a cell phone call from his friend Tyshon Cates, asking Mitchell to come to Cates's apartment (Mitchell: A. 1333-34, 1338, 1487-88; 250-51, 255, 401-02). Mitchell lived in another building of the same housing development (A. 1335, 1337 ; 252, 254). 25 Mitchell drove his car to Tyshon' s apartment building and parked in the driveway on the side CA. 1339; 256). He saw Tyshon and they started walking toward the building CA. 1339-40; 256-57). While they were walking there, Tyshon told him, "[Cham] was dead upstairs" CA. 1345, 1488; 261, 402). Nevertheless, Mitchell accompanied Tyshon upstairs CA. 1488-89; 402-03). At Tyshon's apartment, Tyshon knocked on the door CA. 1345; 261). Walter Cates Jr. -- Cates Sr.'s son -- answered CA. 1345-46; 261-62). Tyshon and Mitchell walked into the apartment, following Walter Jr. down the hallway and into the first room on the right CA. 1346-47; 262-63). There Mitchell saw Walter Jr.'s friend, Raheem Davis, and appellant CA. 1339, 1345-50; 256, 261-66). Nobody was talking CA. 1348; 264). Mitchell smelled "weed and stuff' CA. 1349; 265). Walter Jr. sat on the bed and Raheem sat on the chair CA. 1349; 265). Appellant Lee Carr, whom Mitchell had known through Walter Jr. for approximately two years and saw almost every day near the housing development, also was there CA. 1349-50; 265-66). While Mitchell was in the room, Tyshon asked him to help them get rid of Cham's body and Mitchell agreed to do so CA. 1350-51; 266-67). After approximately a couple of minutes, appellant walked down to the 26 bathroom which was right across from that room and Mitchell followed him CA. 1351; 267). Cham's body was in the bathtub; a supermarket plastic bag was over Cham's head and a white extension cord was wrapped around his neck and hands CA. 1350-52, 1491; 266-68, 405). According to Mitchell, appellant removed the plastic bag from Cham's head and cut off the wire to release Cham's hands CA. 1491-92; 405-06). Then Mitchell observed Cates Sr., appellant and a man he did not identify drag the body from the bathroom and bring it to the living room where they lay it on a black plastic bag face up CA. 1354-55, 1365-66, 1492; 270-71,281-82,406). Mitchell observed Cates Sr. and appellant in the living room taking off Cham's clothes CA. 1354-56; 270-72). At some point, Raheem Davis and Walter Jr. also were in the kitchen, discussing where to take the body CA. 1354; 270). They asked for Mitchell's input, but he said he did not care where they took the body and just wanted "to get it over with" CA. 1354; 270). Subsequently, Mitchell allegedly saw appellant help some of the others including Cates Sr. carry Cham's body down to Mitchell's vehicle CA. 1357, 1492; 273, 406). Mitchell got in the car and drove it backwards onto the sidewalk CA. 1356; 272). Cates Sr. and appellant placed the body in the trunk of Mitchell's car CA. 1356; 272). Mitchell did not see appellant again 27 (A. 1492; 406). Cates Sr. also brought down a television set to pretend that they were moving (Mitchell: A. 1356; 272). He waited there while Raheem and Walter Jr. also got in the car (A. 1357; 273). Mitchell and the others then closed the trunk and Mitchell drove out of the housing development (A. 1356; 272). They drove around looking for a place to leave the body (A. 1357; 273). Mitchell drove toward an industrial area and saw a dumpster (A. 1357; 273). He backed up to the dumpster, "popped" the trunk and, looking out the car window, saw the others pulling the body out of the trunk and dropping it on the floor (A. 1357, 1367-68; 273, 283-84). Then Mitchell got out of the car and helped them put it in the dumpster (A. 1357, 1367-68; 273, 283-84). Noting that there might be fingerprints on the bag, Walter Jr. gave Mitchell $5 and instructed Mitchell to drive to a gas station (A. 1357, 1369- 70, 1373; 273, 285-86). Mitchell did so, bought gas, put it in a gas can he had in the car and drove back to the dumpster (A. 1357, 1369-70, 1373; 273, 285-86, 289). Then Walter Jf. got out of the car and went toward the dumpster with the gas can, but could not open it and returned to the vehicle (A. 1357, 1371; 273, 287). Mitchell opened the gas can's top and Walter Jr. poured it, came back, got a piece of paper, returned to the body, lit it and "threw it in" the dumpster (A. 1357, 1371-72, 1492-93; 273, 287-88, 406- 28 07). Then they drove off (A. 1357, 1372; 273, 288). Mitchell drove Walter Jr. and Raheem home and then went home himself (A. 1357-58, 1372, 1493- 94; 273-74,288,407-08). From June 22, 2006 until his arrest on October 2, 2006, Mitchell did not come forward to the police regarding Cham's death and his participation in the disposal of Cham's body (A. 1494-95; 408-09). Shortly after the crime, however, police officers, including Detective Michael J. DePaolis, viewed video images taken by surveillance cameras of the industrial yard containing the dumpster (DePaolis: A. 1558, 1565-70; 472, 479-84). The video showed three men throwing something into the dumpster. The police also saw a video image of Mitchell buying gasoline at a local gas station. At least one of the video images showed the license plate number on Mitchell's car. On October 2, 2006, Mitchell received a telephone call from a detective who informed him that the police were looking for him down south because he had North Carolina license plates (A. 1374; 290). He talked to the detectives (A. 1374; 290). Mitchell informed them that he would give himself up (A. 1374; 290). He was arrested that night and charged with hindering prosecution for the June 22, 2006 incident (A. 1374; 290). His car was vouchered and impounded (A. 1497; 411). The police found the 29 gasoline can used to burn the body in the trunk of his vehicle CA. 1497; 411). Retaining a lawyer, Mitchell then entered a plea to a felony in the case CA. 1374-75, 1498-99; 290-91, 412-13). He entered a written cooperation agreement whereby he agreed to be a witness at this trial and possibly another trial and tell the "truth," meaning that he would testify that he saw appellant, Cates Sr. and Tyshon Cates participate in disposing of the body CA. 1497-99; 411-13). The terms of the agreement were to stay out of trouble, cooperate on all matters in this case and tell the truth CA. 1375; 291). If he failed to do any of these things, he would be sentenced to an indeterminate prison term of 3 V2 to 7 years CA. 1375, 1499; 291, 413). By contrast, if he abided by the agreement's terms, the felony plea would be changed to a misdemeanor conviction and he would receive misdemeanor probation CA. 1375, 1499; 291, 413). Mitchell had been dealing crack for several years at the time of the incident CA. 1484, 1485; 398, 399). He was allowed to plead gUilty to a misdemeanor for a 2004 crack sale after initially pleading to a class B felony CA. 1332, 1484; 249, 398). By the terms of the plea, he entered a drug program that was to last approximately 18 months CA. 1485; 399). If he successfully completed it, the prosecutor would permit him to take back the felony and plead to a misdemeanor CA. 1485; 399). The prosecutor still 30 permitted him to enter the misdemeanor plea on the February 2004 crack case, although he subsequently was arrested for possession of marijuana while in the drug treatment program and sentenced to 30 days in jail (A. 1332, 1486-87; 249, 400-01). Mitchell also had prior convictions for drug sale and drug possession and had been a drug dealer for several years (Mitchell: A. 1331-32,1517; 248-49,431). The Defense Case On the day of the incident, Walter Cates Sr. aJk/a Walter Johnson, had been living at ~Laconia Avenue, Apartment., with Gary Rose, for approximately six months (A. 2056-59,2062,2107; 967-70, 973, 1018). He had known Rose and Rose's siblings for approximately 45 years (A. 2058; 969). He used to smoke crack cocaine in the apartment on a regular basis with Rose and also sometimes with a woman named Thelma (A. 2058-59, 2063-64, 2105-06; 969-70, 974-75, 1016-17). Rose would permit people to "cut their drugs up" and store their drugs in the apartment and "do their own thing" in an extra bedroom (A. 2109-10; 1020-21). Appellant was the friend of Cates Sr.'s son, Walter Jr. (A. 2108; 1019). Cates Sr. had known appellant for 10 to 20 years, but did not consider him a friend or somebody with whom he would "hang out" (A. 2108-09; 1019-20). He knew Cham because he occasionally bought drugs from him 31 (A. 2064-65; 975-76). Cates Sf. had a criminal record which included larceny and assault (A. 2099-2100; 1010-11). On June 21, 2006, Cates Sf. was in and out of the apartment all day (A. 2065-73, 2113-27; 976-84, 1024-38). When Cates Sr. returned to apartment. at approximately 5:30 or 6:00 p.m., Rose and Walter Jr. were there (A. 2128; 1039). Then Cham knocked on the door and Cates Sr. let him in, leaving the apartment door unlocked (A. 2133; 1044). Cham went directly into Rose's room (A. 2133-34; 1044-45). While in the front of the apartment, Cates Sf. heard a slap and a noise from Rose's bedroom in the back of the apartment, causing him to go to Rose's room (A. 2134-35; 1045- 46). Rose and Cham were "having words" (A. 2135; 1046). Then Cates Sf. left the apartment (A. 2136; 1047). He stated that Rose "gets himself into problems like that" (A. 2136-37; 1047-48). When Cates Sr. returned to the apartment at approximately 7:30 to 8:00 p.m., Walter Jr., Walter Jr.'s friend, Raheem Davis, and Rose were in the apartment, though Cham was not (A. 2073-84; 984-95). Then Cham knocked on the door and Cates Sr. let him in the apartment (A. 2074-75; 985-86). Cham again went into Rose's room (A. 2074-75; 985-86). Once again, Cates Sr. heard a slap, arguing and yelling in the room (A. 2058, 2072-75; 969, 983-86). He left the apartment again (A. 2068, 2071-77; 979, 32 982-88). Cates Sr. did not return to his apartment until approximately 11 :30 p.m. CA. 2138-40; 1149-51). When he did, he observed Cham's naked dead body on the floor, by the wall in the small hallway that connects to the living room CA. 2077-78,2140-42; 988-89,1051-53). There was, however, no cord around Cham's neck or a bag wrapped around his head CA. 2141-42; 1052- 53). Cham did not appear to be bloody CA. 2141-42; 1052-53). Appellant, Rose, Walter Jr. and Raheem Davis were in the apartment CA. 1987-88; 898-99). Cates Sr. admitted to assisting the others in placing the body in bags, and in the carrying it downstairs CA. 2079-80; 990-91). He testified that appellant also assisted in bringing Cham's body to Mitchell's car at approximately 12:00 midnight CA. 2057, 2079-82; 968, 990-93). Cates Sr. denied ever seeing his stepson, Tyshon Cates, at the apartment that day CA. 2049,2079, 2142; 960,990, 1053). He saw Mitchell drive off with the body in the trunk CA. 2079-81; 990-92). Then Cates Sr. left and went to his girlfriend's house CA. 2083; 994). The police arrived a few days later and arrested him in the apartment CA. 2083-84; 994-95). He denied that there was an operating fan or puddles of liquid in there when the police entered CA. 2163-64; 1074-75). The bottle 33 the People claimed to be "biowash" was a housing authority pine cleaner (A. 2165-66; 1076-77). Cates Sr. admitted he used the gloves for housecleaning (A. 2167; 1078). Summations, Charge, Deliberations and Verdict Counsel contended in summation that Rose's testimony was unreliable (A. 2378-93; 1288-1303). Regarding Rose, counsel stated, "You saw him coming in, you saw him shuffling, nodding off periodically. It's easy to call him a junky" (A. 2378; 1288). Counsel added that Rose had difficulty sitting straight (A. 2378; 1288). Also counsel noted that Rose initially was "due" to testify on April 22nd and that the jury waited for him and Rose ultimately showed up around noon (A. 2384; 1294). Referring to Rose's professed medical inability to testify on April 27th, notwithstanding his arrival that day, counsel said, "Use your imagination. Migraines" (A. 2386; 1296). Counsel emphasized that, to ensure Rose's appearance on April 28th, two detectives stayed with Rose overnight on April 27th and remained in the courtroom while Rose testified (A. 2386-88; 1296-98). In summation, the co-defendant's attorney, noted that at the time of Rose's alleged observations of the crime, he was taking both cocaine and methadone and thus probably was in a narcotics stupor while he viewed the incident, which 34 called into question the accuracy of his perceptions and memory (A. 2413- 15; 1323-25). Following summations, the court charged the jury (A. 2477-520; 1385-1428). It cautioned the jury against making an adverse inference from appellant's election not to testify (A. 2481; 1389). The court instructed the jury that Mitchell was an accomplice as a matter of law based on evidence that he participated in removal of the body (A. 2049, 2178, 2491; 960, 1089, 1399). It informed the jury that appellant and the co-defendant could not be convicted of any crime based on Mitchell's testimony unless it was supported by corroborative evidence tending to connect them with the commission of that crime (A. 2491-92; 1399-1400). The court submitted to the jury in the alternative the cnmes of second-degree murder, first-degree manslaughter [intent to cause serious physical injury] and removal of a body (A. 2505-12, 2517-18; 1413-20, 1425-26). Additionally, the court instructed the jury as to acting in concert (A. 2502-04; 1410-12). The jury deliberated over two days and requested various readbacks of testimony and supplemental instructions and the photograph of the Cham's neck (A. 2559-563, 2589-90; 1466-70,1496-97). At 1:57 p.m. on the 35 second day of deliberations, it reached a verdict, convicting both appellant and Cates Sr. of second-degree murder and removal of a body (A. 2612-18 ; 1519-25). Sentencing On December 18, 2006, the court conducted sentencing for both appellant and Cates Sr. together. It sentenced both appellant and the co- defendant to indeterminate prison terms of 25 years to life, respectively (A. 2681; S.15). The Appellate Division Proceedings In the Appellate Division, appellant contended, inter alia, that the court violated his right to counsel by excluding defense counsel from and holding off the record a colloquy with Rose, over defense objection, regarding Rose's failure to show up to court on time, claim of medical and physical inability to testify and drug use. Defendant-Appellant's Appellate Division Brief, Point II).5 In affirming appellant's conviction, the Appellate 5 Appellant also briefed, inter alia, that the verdict was against the weight of the evidence because the prosecution's case against appellant was based entirely on the testimony of Rose, a longtime crack addict who had been taken into custody by the police and initially denied seeing anything and Mitchell, who had burned the decedent's body was testifying under a cooperation agreement in exchange for a misdemeanor conviction and probation (Defendant-Appellant's Appellate Division Brief, Point I). 36 Division, First Department held: Defendant's right to counsel and right to be present at material stages of the trial were not violated when the court had an ex parte, in camera conversation with the People's main witness, regarding the witness's assertion that he was too ill to testify that day. This inquiry was not a hearing, nor part of the trial, and it did not involve the determination of any issue requiring input from defendant or his counsel. (citations omitted). The court placed sufficient information on the record about what transpired at the conference, and defendant was not prejudiced by the fact that the conference was unrecorded. There was no impairment of defendant's ability to cross-examine this witness about all matters relating to his credibility, including drug abuse (A. 3; People v. Carr, 111 A.D.3d 472 (1st Dept. 2013». 37 ARGUMENT POINT I APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AT MATERIAL STAGES OF TRIAL WHERE THE COURT, OVER DEFENSE OBJECTION, EXCLUDED DEFENSE COUNSEL FROM TWO OFF-THE-RECORD IN CAMERA EXAMINATIONS OF THE MAIN PROSECUTION WITNESS ADDRESSING THE WITNESS'S MENTAL AND MEDICAL CAPACITY TO TESTIFY. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I, §6. This Court has declared that the exclusion of defense counsel from court proceedings is "undesirable and . .. should be rare." People v. Contreras, 12 N.Y.3d 268, 273 (2009). Similarly, it has emphasized that a court's discretion to do so should be reserved for "only the most unusual and exceptional circumstances," such as where the witness being examined fears for his safety if defense counsel is present. See People v. Frost, 100 N.Y.2d 129, 132, 134 (2003). Here, long-term crack and methadone addict Gary Rose -- the only prosecution witness to claim that appellant participated in the killing of Cham and to place appellant in the apartment while Cham still was alive -- did not arrive on time to testify on April 22, 2009. When he arrived, Rose appeared "in bad shape." The court, which already had adjourned, after 38 promising to inform the defense attorneys of any developments regarding Rose, nevertheless examined Rose without informing defense counsel until April 27, 2009 -- the next court date. Nor did the court make a transcript of the examination. When Rose arrived on April 27th, he claimed to be too sick to testify. The court proceeded to conduct another examination of Rose from which it excluded counsel and refused to make a transcript of it for later disclosure to counsel. Rose testified at trial on April 28th. Both the April 22nd and April 27th private examinations pertained to Rose's mental and medical fitness to testify and thus were material stages of trial. Given the absence of exceptional circumstances here, the court's exclusion of defense counsel from both proceedings was erroneous and denied appellant his right to counsel. Certainly examinations regarding the nature of Rose's physical and medical inability to testify on both occasions went to Rose's credibility and reliability. Without Rose's trial testimony, the prosecution could not have linked appellant to the murder. By excluding counsel from both private conferences with this primary prosecution witness, the court violated appellant's rights to counsel and due process. U.S. Const. Amends. VI, XIV; N.Y. Const., Art. I, §6. A criminal defendant has a fundamental constitutional right to have counsel present at all material stages of a prosecution. People v. Darby, 75 39 N.Y.2d 449,453 (1990); see also C.P.L. §210.15(2). This Court has declared that, "ex parte hearings . . . are unwarranted and impermissible in the vast majority of cases." People v. Frost, 100 N.Y.2d at 134; see also People v. Contreras, 12 N.Y.3d at 273 ("as a general matter, ... ex parte proceedings are undesirable and they should be rare"). Consequently, a court's discretion to exclude defense counsel should be reserved for "only the most unusual and exceptional circumstances," such as where the witness being examined without defense counsel's presence fears for his safety. People v. Frost, 100 N.Y.2d at 132. The Court has emphasized, "the better practice is to allow counsel to attend all hearings." Id. at 134. Thus, in People v. Ortega, 78 N.Y.2d 1101 (1991), this Court held that a private conference conducted by the trial court with an undercover police officer witness, in which the court advised the undercover about a potential Goggins6 problem and attempted to persuade him to voluntarily disclose the informant's identity, constituted a material stage of the trial at which the defendant had a right to the presence of counsel. Ortega, 78 N.Y.2d at 1102. 6 See People v. Goggins, 34 N.Y.2d 163 (1974)(disclosure of informant's identity required where potential testimony could be material to the defendant's guilt or innocence). 40 Further, the Ortega Court reasoned: There is no record, however, to show what was said in chambers or whether it contributed to the court's decision that disclosure was not required. It is possible that [the officer] in explaining his refusal to disclose the identity of the informant, stated an unrebutted view of the facts which influenced the trial court in reaching its subsequent decision. At least, the conference must be viewed in that light on the present state of the record. 78 N.Y.2d at 1103. In People v. Darby, 75 N.Y.2d 449 (1990), this Court explained that a midtrial inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror is inextricably related to a defendant's entitlement to a fair hearing and thus requires counsel's presence to safeguard fundamental fairness to the defendant. Id. at 453-54. A trial court, over defense objection, had refused to allow counsel to be present when it questioned four sitting jurors regarding possible taint and then ultimately kept the four jurors. People v. Darby, 75 N.Y.2d at 452. This Court reversed. Id. In reversing, this Court held that "the unique, indispensable presence of at least the 'single-minded counsel for the accused' is minimally necessary to safeguard that fundamental fairness to defendant, who will be judged as to his charged conduct by a jury selected with his approval and 41 participation." Darby, 75 N.Y.2d at 454, citing People v. Rosario, 9 N.Y.2d 286,290 (1961). As the this Court's language in Darby demonstrates, at least part of the rationale underlying the right to defense counsel's presence at examinations of witnesses is the recognition of the importance of a single- minded advocate for the accused who, by virtue of his role, is sensitive to the potential use of information for cross-examination or to shape a defense. See Darby, 75 N.Y.3d at 453-54. Indeed, as this Court has recognized, "omissions, contrasts, and even contradictions, vital perhaps, for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accused, who, by virtue of his role is in a far better position to appraise the value of a witness' pretrial statements for impeachment purposes." People v. Rosario, 9 N.Y.2d at 290; see People v. Combest, 4 N.Y.3d 341, 349 nA (2005); People v. Darby, 75 N.Y.2d at 454. While rejecting the necessity of the defendant's presence at a proceeding regarding a witness's testimonial capacity, both this Court and the United States Supreme Court have specifically noted that defense counsel's presence at the proceeding was adequate to protect the defendant's rights. In Kentucky v. Stincer, 482 U.S. 730 (1987), the United States Supreme Court held that a defendant did not have a right to be present at a 42 hearing held after the jury was sworn, to determine the competency of a witness. Id. at 739-40. The competency hearing was held in the judge's chambers and in the presence of defense counsel who asked questions of the witnesses. Id. The Supreme Court noted that, although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retained a direct relationship with the trial because it determined whether a key witness would testify. Id. at 740. The Supreme Court specifically noted that defendant's lawyer was present at and participated in the competency hearing. Id. Further, the Supreme Court reasoned that the defendant had not indicated his personal presence would have been useful in ensuring a more reliable determination as to whether the witnesses were competent to testify. Id. at 747. It noted that the defendant had not shown, for example, that he had specific knowledge about the witnesses that would have assisted his lawyer or the judge in asking questions that would have resulted in a more assured determination of competency. Id. Similarly, in holding that a defendant did not have a right to be present at a court's preliminary examination of a child witness to determine whether the child understood the nature of the oath, this Court, in People v. Morales, 80 N.Y.2d 450 (1992), specifically noted that defense counsel had 43 been present at the examination of the child and was permitted to submit questions that he wanted to have posed to the witness at the examination. Id. at 452. The proceeding pertained to the child's testimonial capacity and thus whether the child would provide only unsworn testimony that would be subject to a corroboration requirement. This Court reasoned that it involved a legal determination. Id. at 457. In concluding that counsel's presence was unnecessary, this Court reasoned that if the defendant had knowledge of particular traits that bore on the witness's competency, he could have told counsel, who undoubtedly would have requested that the court ask questions pertaining to this issue at the hearing. Id. at 455. As long as counsel is present, he can protect the defendant's interests, there by obviating the need for the defendant's presence. The clear implication of Stincer and Morales is that a defendant has a right to counsel at determinations pertaining to the competency of a witness. See Kentucky v. Stincer, supra; People v. Morales, supra. Similarly, New York right-to-be-present cases have shown the importance of the presence of defense counsel in effectuating adequate protection of the defendant's rights where the defendant is not permitted to be present. Courts have said that, where a defendant's personal presence has not been required, "[p ]resence of counsel alone is sufficient to protect a 44 defendant's interests." People v. Sprowal, 84 N.Y.2d 113, 117 (1994); see People v. Velasco, 77 N.Y.2d 469,473 (1991); see also People v. Dokes, 79 N.Y.2d 656 (1992)(defendant's right to be present at Sandoval hearing, stems, inter alia, from defendant's need to provide defense counsel with details regarding underlying facts of charged and uncharged acts so that counsel can help ensure court's determination will not be predicated on prosecutor's unrebutted view of the facts). This Court's recognition of a defendant's right to the presence of single-minded counsel for the accused derives from the fact that everybody looking at a person or situation, though acting in good faith, nevertheless sees the person or situation differently because he views it through his own "filter" or perspective. A court examining a witness to determine whether and when he can testify, while neutral, understandably wants to move the trial along and thus looks at the witness from the perspective of whether the witness will be fit to testify that day or whether the trial must be further delayed. It cannot simultaneously be attuned to everything the defense sees. Indeed, were a judge alone deemed sufficient to embody all perspectives simultaneously, there would be no need for an adversarial system of criminal justice consisting of defense counsel and prosecutors. Instead, our Founding Fathers saw the wisdom of an adversarial system 45 whereby the perspectives of the State and of the defendant are each represented by different attorneys, each with a different focus and viewing the case through his own respective filter. For this reason, the judge cannot simultaneously serve as neutral arbiter and single-minded counsel for the accused and the exclusion of defense counsel is erroneous. In light of the importance of the right to have defense counsel present at material proceedings, this Court has carved out only a limited exception whereby counsel may be excluded in only "the most exceptional and unusual circumstances," as occurred in People v. Frost, 100 N.Y.2d 129, 132 (2003). There, counsel was excluded from both a pretrial hearing on the People's application for a protective order seeking to protect prosecution civilian witnesses' identities prior to trial and at proceedings prior to the testimony of four witnesses to determine whether the courtroom should be closed for those witnesses' testimony. Id. at 132-33. The prosecution had moved for the exclusion of counsel from those proceedings based on a concern that counsel's presence could endanger witnesses' safety. Id. at 132-34. In seeking this and other relief,7 the prosecution had noted, inter alia, the defendant's father's drug sale 7 The court ultimately ordered the closure of the courtroom during three witness' testimony and allowed one witness to testify under a fictitious name and issued a protective order as to his address and occupation. People v. Frost,lOO N.Y.2d at 133. 46 conviction and pending federal narcotics sale indictment, the defendant's stepbrother's convictions for attempted second-degree robbery and attempted murder, the defendant's family's attempt to discourage potential witnesses to the crime at issue and the community's lack of cooperation into prior investigations of crimes believed to have been committed by the defendant. Id. at 132-33. This Court in Frost made a careful review of the sealed record that had been made of the proceedings from which defense counsel had been excluded. Id. at 132-34. In affirming the defendant's convictions, this Court reasoned: . . . there is ample evidence to support the conclusion that the witnesses were in fear for their safety and that exceptional circumstances prevailed. The record suggests that defense counsel had previously represented defendant and other members of his family on unrelated criminal matters. While it is surely the better practice to allow defense counsel to participate in these types of proceedings, under these circumstances "[t]o include defense counsel, who might single- mindedly conclude that a professional obligation bound him to inform the client of the content of the proceedings . . . would defeat the whole point of the legitimate [ex parte] request. People v. Frost, 100 N.Y.2d at 134, citing People v. Vargas, 88 N.Y.2d 363, 379 (1996). In doing so, this Court emphasized "Certainly ex parte hearings are not to be granted lightly and are unwarranted and impermissible in the 47 vast majority of cases. On this record, however, Supreme Court properly exercised its discretion and did not violate defendant's right to assistance of counsel." Frost, 100 N.Y. 2d at 134. Here, the two midtrial examinations of Rose from which counsel was excluded -- on April 22nd and April 27th -- pertained to the legal determination as to Rose's testimonial capacity. Thus, both proceedings constituted material stages at which appellant had the right to the presence of his defense counsel. Certainly both examinations of Rose, a known long-term drug addict, regarding why he did not obey the court's orders to come ready to testify both at the beginning of the morning on April 22nd and on April 27th were material stages of trial, rather than ministerial. The court was not inquiring as to Rose's scheduling conflicts such as work or childcare commitments. The first examination occurred because Rose had shown up too late to testify on April 22nd when he initially was ordered to do so and arrived in "bad shape" after detectives found him. The second examination occurred April 27th when, according to the prosecutor and court, Rose was in no shape to testify notwithstanding his timely appearance.8 8 While the court stated that in the first examination it asked Rose why he had been late, the record demonstrates that the examination was not a mundane scheduling inquiry. Footnote continued on next page 48 The subject matter of why Rose was unable to appear on time and in a condition to testify when ordered to do so by the court on two occasions was whether Rose was physically and mentally fit to testify. Thus, the two private examinations on this issue pertained to Rose's competency, reliability and credibility and therefore, appellant had a right to defense counsel at these proceedings. Kentucky v. Stincer, supra; People v. Morales, supra. Certainly, a prosecution witness has no general right to privacy at a criminal defendant's jury trial. Instead, the defendant -- whose liberty is at stake -- has an absolute right to explore the testimonial capacity, credibility and reliability of prosecution witnesses, whose testimony will be used to meet the People's burden of proof beyond a reasonable doubt. Thus, a prosecution witness's physical and mental condition is "fair game" for the defense and must be disclosed to defense counsel. Davis v. Alaska, 415 U.S. 308, 318-20 (1974) (refusal to allow defense counsel to cross-examine key First, as one of the defense attorneys stated and which was not disputed, the People "wouldn't send detectives out looking for a guy who is late and just didn't show up" (A. 1773; 686). Moreover, the court stated, inter alia, that at Wednesday's private examination, Rose "seemed to be in bad shape. But he told us, you know, he was running late" (A. 1760; 673). From the court's sparse comments regarding its conference with Rose on Wednesday, it would appear that at Wednesday's private examination, the court was attempting to determine why Rose appeared to be in such "bad shape," but that Rose was not being communicative other than to say he was running late and agreeing to be prompt on the next court date. 49 prosecution witness regarding that witness's juvenile criminal record due to state law making juvenile offenders' records presumptively confidential to protect juveniles' anonymity, violated Confrontation Clause; state's policy interest in protecting juveniles' anonymity "does not require yielding of so vital a constitutional right as the effective cross-examination of an adverse witness"). This is especially true where, as here, the People's case rested on the credibility of the prosecution witness (i.e., Rose). Rose was the only witness who allegedly saw appellant hold the cord that later was found around Cham's neck and caused death. Moreover, Rose was the only witness to claim appellant participated in the alleged beating of Rose that immediately preceded the strangulation with the cord. Furthermore, Rose's testimony was necessary to corroborate the testimony of Mitchell, whom, the court instructed the jury, was an accomplice as a matter of law whose testimony had to be corroborated. Thus, the prosecution's entire case against appellant rested on the reliability and credibility of Rose's testimony. Significantly, the very things that would have made Rose unable to obey the court's order to appear at trial ready to testify called into question the reliability and credibility of his testimony - namely his extensive drug use. Thus, the material that was the subject of the two private examinations 50 of Rose from which counsel was excluded went to the very heart of appellant's opportunity to defend. See Kentucky v. Stincer, supra; Davis v. Alaska, supra; People v. Morales, supra. Consequently, any interest in Rose's privacy does not justify the exclusion of counsel from these examinations of Rose. Because the court excluded counsel from two material examinations of the key prosecution witness, on whose credibility appellant's guilt or innocence relied, appellant was denied his right to the assistance of counsel and due process. See ~ Ortega, supra. Certainly, there were no exceptional circumstances justifying the exclusion of counsel. The circumstances of counsel's exclusions here are entirely unlike those in Frost. Significantly, in Frost, the defendant's attorney had represented other members of the defendant's family in criminal proceedings and thus had an allegiance to the client that seemed to go beyond the attorney's ethical obligations. See Frost, 100 N.Y.2d at 134. Nothing like that existed in appellant's case. Here, Rose did not express a fear of defense counselor appellant. Nor did Rose ask for the exclusion of counselor even of appellant. Instead, it appears that the court, without giving reasons, decided sua sponte to exclude counsel from both examinations. Unlike in Frost, there was no claim here 51 that appellant or any of his relatives had tried to intimidate Rose, or signs that anybody in appellant's family other than appellant had a relationship with counselor that counsel would feel bound to inform appellant of any information he had learned at the private conferences with Rose.9 Consequently, given the absence of exceptional circumstances here, the court's exclusion of defense counsel from the two examinations of Rose violated appellant's right to counsel. Furthermore, here, there is no record of the proceedings, even a sealed one, to disclose to defense counselor, indeed, for this Court to review to determine whether the exclusion of counsel was necessary. Compare People v. Frost, 100 N.Y.2d at 132-33 (not reversing, where, inter alia, record of sealed proceedings was made and reviewed by the Court of Appeals in determining that exceptional circumstances prevailed and no constitutional violation existed) and People v. Lovett, 192 A.D.2d 326 (Ist Dept. 1993) (not reversing for exclusion of counsel from court's discussion with sole eyewitness mid-testimony, where, inter alia, complete, contemporaneous record of the conference was prepared and made available to defense 9 While at trial Rose later explained away his initial denials to the police that he had seen the incident by claiming he feared for his safety, Rose specified that his fear pertained to codefendant Walter Cates Sr., who, at the time, was at liberty and living in Rose's apartment. Rose never indicated that he was afraid of appellant or defense counsel. 52 counsel) with People v. Ortega, 78 N.Y.2d at 1103 (reversing where trial court did not make a transcript of private conference with witness) and In re Tracy C., 186 A.D.2d 250, 252 (2d Dept. 1992) (same); see also People v. Harrison, 85 N.Y.2d 794, 795-96 (1995)(reversing based on court's refusal to order stenographer to record portions of voir dire, which denied defendant effective appellate review); see generally People v. Taylor, 73 N.Y.3d 683, 689-91 (1989) (violation of C.P.L. §690A0(1)'s recordation requirement required suppression of evidence discovered during search purportedly authorized by defective warrant, where lack of contemporaneous record of informants' testimony, which was basis for warrant, precluded appellate review of warrant's validity). While the disclosure of a transcript to defense counsel would not have been enough to avert a violation of the constitutional right to counsel, here the defense did not even have a cold record transcribing the exact questions and answers at the two private examinations of Rose. As the defense contended, the trial court was wrong when it stated that cross-examination of Rose at trial regarding his failure to arrive ready to testify when ordered to do so on April 22nd and April 27th would be adequate to protect appellant's rights. The defense correctly noted that such cross-examination would be useless to the defense. Having been excluded 53 from the two private conferences and without transcripts, counsel had no basis of knowing the veracity of whatever Rose would testify regarding his condition on April 22nd and April 27th and reasons for failing twice to obey court orders to show up ready to testify. Indeed, it is a maxim of trial litigation that a lawyer should never ask a witness a question to which the attorney does not know the answer in advance. It would have been foolish of counsel to ask such questions for the first time in front of a jury that was to decide appellant's fate. The proper inclusion of defense counsel in this examination would have given counsel a factual basis with which to cross-examine Rose as to his condition on both prior days and elicit information that could undermine the reliability of Rose's trial testimony and possibly provide a source of prior inconsistent statements for impeachment. Nothing in the Appellate Division's reasonmg m appellant's case changes that analysis. First, the Appellate Division's comment that the examination of Rose was not "a hearing nor part of a trial" is perplexing and inaccurate (A. 3; Carr, 111 A.D. 3d at 472). The examination most definitely was part of the trial since it occurred in the middle trial, long after jeopardy had attached and the first witness had been sworn. Regardless of how the examinations of Rose are labeled, they appear, based on the court's 54 summary, to have included questions by the court and responses by Rose. Thus the examinations were material stages of trial. Contrary to the Appellate Division's reasoning, the trial court's statements on the record "about what transpired at the conference" were not "sufficient" and did not eliminate any prejudice to appellant from the court's failure to record the two private examinations of Rose CA. 3; Carr, 111 A.D.3d at 472). The information placed on the record by the court was not an adequate substitute for transcripts of the examinations, which themselves would have been insufficient. The judge was not serving as a trained stenographer whose duty would have been to make a contemporaneous, word for word transcription of the court's questions and Rose's answers at the two private conferences with Rose. Thus the court could not have been expected to give a word for word rendition and did not claim to have done so. Without a transcript, counsel had no way of knowing whether Rose testified inconsistently at trial to what he had said at the private inquiry and thus could not impeach him with prior inconsistent statements. Nor was the court's description of Rose's demeanor extensive. The court gave meager information regarding Wednesday's inquiry and disclosed it five days later -- on the next court date -- when the court's recollection had to have been less fresh than it would have been had it 55 disclosed the information contemporaneously. Regarding Monday's examination, the court stated only that Rose looked "better" and "less hyper" than on the previous Wednesday. The court failed, however, to provide any other details regarding Rose's appearance on Monday, which might still have been poor -- albeit better than five days earlier -- inasmuch as the court still ruled Rose unfit to testify that day notwithstanding his "improved" appearance. Indeed, the Appellate Division had no basis for its finding that the information placed on the record by the court was sufficient. Since the colloquy was not recorded, the Appellate Division had no means of determining the adequacy of the information placed on the record by the court. Moreover, the Appellate Division erred when it reasoned that the exclusion of defense counsel from the two examinations of Rose did not create any impairment of "[appellant's] ability to cross-examine [Rose] about all matters relating to his credibility, including drug abuse" (A. 3; Carr, 111 A.D.3d at 472). To the contrary, the exclusion impaired cross- examination of Rose on matters relating to his credibility, including drug abuse, in a myriad of ways. 56 Indeed, had counsel not been excluded from the two examinations of Rose, counsel would have had a basis at trial to cross-examine Rose regarding the latter's physical and mental condition on both April 22nd, the day he came late and only after detectives had come to his home, and April 27th, when he claimed to be too ill to testify. Obviously Rose's demeanor and condition on April 22nd and April 27th were worse than on April 28th, when Rose finally testified, having had a night of rest while surrounded by detectives. Without knowing what was said at the two examinations of Rose from which the defense was excluded, counsel could not ask Rose questions at trial on these issues. See Defendant-Appellant's Brief, ante, at p. 54. The exclusion of counsel from the two private examinations, which were material stages of trial, prevented counsel from exercising many rights that are components of the right to counsel and which were necessary for a full and fair cross-examination of Rose at trial. Had counsel been present at the two private examinations of Rose, he could have made his own assessment of Rose's demeanor, which might have been different from that of the court or supplemented the court's observations. The court, whose role at the examinations of Rose was to preside over the proceedings and move the trial along, was not in a position to perceive Rose as would a zealous advocate for appellant, looking for material that could be used on cross- 57 examination. See People v. Combest, 4 N.Y.3d at 349 n.4; People v. Rosario, 9 N.Y.2d at 290 ; see Defendant-Appellant's brief, ante, at p. 42. As single-minded advocate for the accused, counsel would be keenly attuned to signs of unreliability in the star prosecution witness against appellant. Counsel would have been able to make observations of Rose's demeanor at the in camera examinations on April 22nd and 27th that could have belied or added light to Rose's words during the these examinations of Rose. Appellant's attorney could have made his own assessment of whether Rose had the cognitive ability to focus and answer a direct question. Moreover, counsel would have been able to make his own assessment of whether Rose, a known long-term drug addict, appeared to be altered by drugs or using illegal drugs or, alternatively, displaying drug withdrawal symptoms. Counsel would have seen whether Rose was showing symptoms of drug use or withdrawal such as whether his hands or other bodily parts were shaking or moving or whether he looked "drugged out." Indeed, drug withdrawal symptoms might well have caused Rose's "migraine headache" on April 27th. Counsel could have used these observations to confront Rose and attack his credibility on cross-examination at trial. Indeed, counsel might have discovered nervous mannerisms in which Rose engaged when lying, which would have been useful both to assess the 58 reliability of his testimony at the private examinations and at trial and certainly would have been useful for cross-examination at trial. Furthermore, the assistance of counsel at the examination of a witness necessarily includes the right to ask questions of the witness that are relevant to the assessment of whether the witness is medically and mentally fit to testify. For example, when Rose at Monday's private inquiry denied having used drugs that day, counsel could have pressed him for details. Counsel could have inquired when he last used drugs, how much drugs he had used, whether he was experiencing symptoms of drug withdrawal and whether the prosecutor had instructed him to stay off drugs on the days of his testimony so that, when asked at trial whether he was taking drugs, he could answer "no." Additionally, had counsel not been excluded from the first private examination, on April 22nd, counsel could have asked Rose whether he was on drugs that day. If at trial Rose denied he had been on drugs on April 22nd, counsel could have confronted him with his demeanor on April 22nd, which the court belatedly described to counsel as tired, disheveled and "hyper." Indeed, by pressing Rose, counsel might have gotten Rose to admit that he was indeed using drugs on April 22nd, April 27th or both. Significantly, counsel's opportunity to observe at the two private examinations how Rose answered defense attorneys' specific direct 59 questions, and questions by the court, would have aided both the defense and the court in the evaluation of the witnesses' medical and cognitive capacity to be a reliable witness. Additionally, the exclusion of defense counsel denied appellant the opportunity to have counsel ask Rose questions that could have given him a factual basis for challenging the court's ruling on Rose's competency to testify on April 27th -- the day of the second private examination when Rose initially was ordered to testify -- or at all. Finally, had counsel not been excluded from the two pnor examinations, he would have been able to advocate for a position regarding whether or not Rose should have been ordered to testify on April 27th, instead of resting up for another day while in effect in the custody of two prosecution detectives. Counsel's observations concerning Rose during the examinations had the potential to supplement the court's observations and influence the court's determination on Rose's testimonial capacity. The court, if it so desired, could have used this information to supplement its own observations which might assist the court in making evaluating the witness's capacity to testify that day. Instead, by excluding counsel from these examinations of Rose on April 22nd and 27th, the court merely had access to its own observations and perspective and that of the prosecutor. As the foregoing demonstrates, the exclusion of counsel from these 60 proceedings resulted in the denial of all of these rights, which are subsumed under the right to counsel's presence at material stages of trial. The complete deprivation of the right to counsel for even part of a critical proceeding is generally not subject to harmless error analysis. United States v. Cronic, 466 U.S. 648,659 n. 25 (1984); Perry v. Leeke, 488 U.S. 272,278-80 (1989); Norde v. Keane, 294 F.3d 401,412 (2d Cir. 2003). In People v. Wardlaw, 6 N.Y.3d 556 (2006), this Court held that a violation of a defendant's right to counsel at a suppression hearing was harmless where it was clear, beyond a reasonable doubt, that the outcome of the suppression hearing at which the right to counsel was violated could not have affected the outcome of the trial. Id. at 558. The trial court had allowed Wardlaw, who had made statements to the police, to proceed pro se at his Huntley hearing, even though the court had failed to first conduct a searching inquiry to make sure that Wardlaw knew and understood the perils of being unrepresented. Id. at 561. While this Court held that the violation of the right to counsel had irreparably tainted the suppression hearing, the Court did not reverse because "it [was] clear beyond a reasonable doubt that any new trial would have [had] the same result, even if defendant's statements were excluded from evidence. Thus, a new hearing would serve no purpose." Id. at 559. 61 This Court explained: When a defendant has wrongly been denied counsel at a particular proceeding, we do not inquire whether the presence of counsel would have changed that proceeding's result. In this sense, the denial of the right to counsel many not be treated as 'harmless.' But the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole. Where it had none, the conviction will be affirmed notwithstanding the error - and in that sense, the harmless error rule does not apply. Cf. People v. Wicks, 76 N.Y.2d 128, 133 (1990)("The denial of counsel at a preindictment preliminary hearing ... does not necessarily invalidate the trial"] People v. Wardlaw, 6 N.Y.3d at 559. This Court assumed for purposes of its analysis, that if Wardlaw had had a lawyer at the suppression hearing, his statements would have been suppressed. Id. at 560. It relied, however, on the presence of DNA evidence connecting him to the crime. Id. Moreover, the Court emphasized, however, as a "word of caution" that its holding "does not imply that the harmless error rule can always be applied where the right to counsel has been violated." Id., citing People v. Hilliard, 73 N.Y.2d 584 (1989); see also People v. Carracedo, 89 N.Y.2d 1059, 1062 (1997) (exclusion of counsel constitutes reversible error where there is obvious potential for prejudice at trial as a reSUlt). 62 Here, unlike in Wardlaw, the proceedings from which counsel was excluded occurred in the middle of trial. Thus, they are entirely unlike the pretrial suppression hearing from which counsel was excluded in Wardlaw. Moreover, even if a type of harmless error analysis analogous to that applied in Wardlaw were to be applied to the exclusion of defense counsel from the two private examinations of Rose here, the error could not be deemed harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967); People v. Crimmins, 36 N.Y.2d 230, 237 (1975). In Wardlaw, this Court assumed, for purposes of its analysis, that if Wardlaw had had a lawyer at the suppression hearing, he would have prevailed and his statements would have been suppressed. People v. Wardlaw, 6 N.Y.3d at 560. Here, one must assume, for purposes of analysis, that had counsel been present at the two private examinations of Rose, the result of maximum benefit to the defense would have occurred. Therefore, one must assume either that the court would have found that Rose lacked the testimonial capacity to testify at appellant's trial or that counsel would have obtained such material for cross-examination that at trial Rose's credibility would have been devastated and the jury would have rejected his testimony in its entirety. See Delaware v. Van Arsdall, 475 U.S. 673,684 (1985) ("damaging 63 potential" of cross-examination would have been "fully realized"). In either scenario, the jury could not have rested a verdict on Rose's testimony or used Rose as corroboration for Mitchell, whom the court instructed was an accomplice as a matter of law whose testimony had to be corroborated. Hence the prosecution would not have had sufficient evidence to meet its burden of proving appellant's guilt beyond a reasonable doubt. Thus, as the foregoing demonstrates, even an application of an a harmless error analysis analogous to that used in Wardlaw establishes that the exclusion of counsel from the two private, off the record examinations of Rose addressing his testimonial capacity cannot be deemed harmless beyond a reasonable doubt. Chapman v. California, supra; People v. Crimmins, supra. * * * The issue is properly before this Court as a question of law. The erroneous exclusion of defense counsel from the first examination of Rose, without prior notice to counsel, constitutes a mode of proceedings error. It is axiomatic that "mode of proceedings errors," including deprivation of the right to counsel, are not subject to preservation requirements. See, ~ People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985) ("[W]e have long recognized that certain errors need not be preserved," including "violation[s] of the right to counsel. ... "); People v. Sanders, 56 N.Y.2d 51, 66 (1982) 64 (noting that a right to counsel claim is "so fundamental that it may be raised for the first time on appeal"). Accordingly, a right to counsel claim can be raised for the first time on appeal. See People v. McLean, 15 N.Y.3d 117, 121 (2010). Specifically, New York courts have consistently applied the common- sense principle that if defense counsel is physically absent during a violation of defendant's right to counsel, that violation can be raised for the first time on appeal. See People v. Strothers, 87 A.D.3d 431, 433-35 (lst Dept. 2011) (holding appeal in abeyance and remanding for a new suppression hearing where trial court conducted part of hearing in defense counsel's absence); see also People v. Johnson, 189 A.D.2d 318, 320-21 (4th Dept. 1993) (reversing conviction where trial court conducted voir dire and discharged sworn juror in absence of defense counsel); People v. Margan, 157 A.D.2d 64,70-71 (2d Dept. 1990) (applying "the general rule that a violation of the right to counsel may be raised, as a question of law, for [the] first time on appeal;" reversing conviction where trial court allowed direct examination of witness in defense counsel's absence); cf. People v. Narayan, 54 N.Y.2d 106, 112 (l981)(where counsel was present at the time the erroneous ruling was made and failed to object, the issue could not be raised as a question of law). 65 Here, appellant's counsel could not make a contemporaneous objection to his exclusion from and the court's failure to make a record of the first private examination of Rose because the court did not inform the defense about its occurrence until five days later, after the second proceeding with Rose from which counsel also was excluded. The violation is clear on the face of the record. Consequently, no preservation requirement applies. Counsel, nevertheless, joined cocounsel's request that the defense attorneys be given a transcript of the April 22nd private examination of Rose. The defense attorneys made this request as soon as they were informed that the private examination on April 22nd had occurred. They were not so informed until April 27th, after the second private conference already had occurred. This was their first opportunity to request a transcript. The court informed the defense, however, that no transcript had been made of the April 22nd private examination. Additionally, the court ruled that it had no obligation to hold either of the two private examinations on the record (A. 1770; 683). See C.P.L. §470.05(2). Regarding the erroneous exclusion of defense counsel from the second private examination of Rose, on April 27th, the issue is fully preserved for this Court's review. Preliminarily, the comments of Cates Sr.'s 66 lawyer and appellant's attorney during the colloquy make clear that appellant's attorney joined in the arguments of Cates Sr.'s attorney. Early in the relevant colloquies, counsel for co-defendant Cates, Sr. (i.e., Mr. Braverman) made clear that he also was speaking for appellant's lawyer and appellant's attorney reiterated this. After the co-defendant's attorney made all of his arguments pertaining to both private examinations (A.1756-65; 669-78), the court asked appellant's attorney "Mr. Bruno?" (A. 1765; 678). Appellant's attorney, Mr. Bruno stated, referring to counsel for Cates, Sr., "My colleague was quite thorough. I join in his applications" (A. 1765; 678). It is clear from the context that the arguments of Cates Sr.' s attorney which counsel was joining were those pertaining to the exclusion of defense counsel from the two private examinations of Rose and the refusal to provide defense counsel with a transcript of either proceeding. An examination of the transcript reveals that, on April 27th, prior to the second private examination of Rose, there had been an unrecorded sidebar at which the defense attorneys had contended that they and their clients should be permitted to be present during the examination of Rose and that the examination should be on the record and the court had rejected these requests. Following the court's summary of its second private examination of Rose, the co-defendant's attorney put on the record that, at an unrecorded 67 sidebar held before the private examination of Rose that day, he had contended that the defense attorneys should be present with their clients in the courtroom during the court's examination of Rose and that the latter should be held on the record. He stated: First and foremost, even though we all had a discussion before-hand, I think the Court agrees that there was a unanimous decision of the three defense lawyers that we wish[ed] to be present with our clients when the Court did the inquiry of Mr. Rose. When that was denied, we wish[ed] that the inquiry by the Court go on the record which was also denied. This was a request before the Court conducted the independent inquiry (A. 1761; 674). Thus, the transcript shows, prior to the second examination of Rose, there had been an unrecorded sidebar at which the defense had made these arguments and the court had rejected them. Significantly, the co- defendant's attorney noted his belief that "the court [would] agree" that this occurred - thereby providing an easy opportunity for the court to interject a different recollection of what had occurred (A. 1761; 674). Neither the court nor the prosecutor contradicted the co-defendant's attorney's account of the earlier unrecorded colloquy, making it indisputable that co-counsel adequately represented its contents. See People v. Torres, 20 N.Y.3d 890 (2012), aff'g, 97 A.D. 3d 1125, 1126 (4th Dept.). 68 In People v. Torres, 20 N.Y.3d 890 (2012), before jury selection, the defense, off the record, had objected to courtroom closure. See Torres, 97 A.D.3d at 1125-26 (reference to unrecorded sidebar not put on record until motion to set aside verdict).The Appellate Division, Fourth Department specifically disagreed with the People's claim that the defendant had failed to make the appropriate objection. Torres, 97 A.D.3d at 1125. It noted that the defendant had made this objection before jury selection and "the objection merely was not placed on the record at that time." Id. In affirming, the Court of Appeals specifically held that the defendant adequately preserved the argument regarding courtroom closure. People v. Torres, 20 N.Y.3d at 890. It reasoned that the trial judge was made aware of the defense request regarding his ruling before he ruled on the issue and held that thus preservation was adequate. Here, as in Torres, the defense reference to and recounting of arguments made at an unrecorded sidebar that occurred before the second in camera examination of Rose, without contradiction by the court or prosecutor, preserved the issues for review. Indeed, the preservation in appellant's case is stronger than in Torres, inasmuch as the objection recounted by the co-defendant's attorney was made in court during trial, prior to the court's second private examination of Rose, whereas in Torres, 69 the objection was recounted at arguments on the motion to set aside the verdict, a proceeding at which objections made to trial errors cannot preserve contentions for review. Torres makes clear that objections made at the appropriate time off the record and subsequently referred to on the record constitute adequate preservation. * * * In sum, the exclusion of defense counsel from the court's refusal of these requests violated appellant's right to counsel. Accordingly, the Appellate Division's order should be reversed, appellant's conviction vacated and a new trial ordered. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. 70 CONCLUSION FOR THE ABOVE-REASONS, THE APPELLATE DIVISION'S ORDER SHOULD BE REVERSED, APPELLANT'S CONVICTION VACATED AND A NEW TRIAL ORDERED. AMY DONNER Of Counsel June, 2014 Respectfully submitted, SCOTT A. ROSENBERG Attorney for Defendant- Appellant 71 CERTIFICATE OF COMPLIANCE Pursuant to 22 N.Y.C.R.R. §670.10(3)(t) 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, proof of service, and certificate of compliance, is 15, 707.