The People, Respondent,v.Lee Carr, Appellant.BriefN.Y.February 10, 2015 TO BE ARGUED BY AMY DONNER (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEE CARR, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. 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 DECEMBER, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT ..................................................................... 1 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT’S CLAIM, 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. ................................................................ 2 CONCLUSION .............................................................................................. 10 ii TABLE OF AUTHORITIES FEDERAL CASES Kentucky v. Stincer, 482 U.S. 730 (1987) ...................................................... 9 STATE CASES People v. Smith, 82 N.Y.2d 254 (1993) .......................................................... 2 In re Brown v. Ristich, 36 N.Y.2d 183 (1975) ................................................ 4 People v. Brown, 195 A.D.2d 967 (4th Dept. 1993) .................................... 3-4 People v. Darby, 75 N.Y.2d 449 (1990) .......................................................... 3 People v. Fabrico, 3 N.Y.3d 402 (2004) .......................................................... 2 People v. Frost, 100 N.Y.2d 129 (2003). ......................................................... 3 People v. Mauro, 49 A.D.3d 268 (1st Dept. 2008) ...................................... 3-4 People v. Morales, 80 N.Y.2d 450 (1992) ................................................... 8-9 People v. Parks, 41 N.Y.2d 36 (1976) ............................................................. 4 People v. Rensing, 14 N.Y.2d 210 (1964) ....................................................... 4 People v. Smith, 82 N.Y.2d 254 (1993) .......................................................... 2 People v. Wardlaw, 6 N.Y.3d 556 (2006) ....................................................... 9 iii CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6. ................................................................................... 2 U.S. Const., Amend. VI ................................................................................... 2 U.S. Const., Amend. XIV ................................................................................ 2 STATUTES C.P.L. §210.15(2) ............................................................................................ 3 C.P.L. §620.10 ................................................................................................. 4 C.P.L §620.50 .................................................................................................. 3 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : LEE CARR, : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT This brief is submitted in reply to the arguments set forth in Respondent’s brief, which we received by mail on October 29, 2014 and by email on October 23, 2014. It addresses several unavailing claims by respondent. As to all other aspects of Appellant's appeal, he relies on his opening brief. 2 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT’S CLAIM, 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. Respondent devotes the first portion of his argument to asserting that appellant did not have a right to be personally present at the April 22nd and April 27th in camera, off-the record examinations of star prosecution witness and long-term crack and heroin addict, Gerald Rose, even though appellant did not raise this argument on appeal (RB.20-22).1 Toward this end, Respondent repeatedly uses cases on whether a defendant has a right to be personally present at a proceeding, rather than on the issue presented on appeal -- whether defense counsel may be properly excluded (RB.20-22, citing inter alia, People v. Fabrico, 3 N.Y.3d 402 (2004) and People v. Smith, 82 N.Y.2d 254 (1993). These are entirely separate issues, each with a 1 Numbers preceded by “RB.” refer to the pages of Respondent’s Brief; those preceded by “AOB.” refer to the pages of Appellant’s Opening Brief. Numbers in parentheses preceded by “A.” refer to the pages of the Appendix; those without prefix refer to the trial transcript. 3 distinct legal standard. Respondent’s repeated use of the cases pertaining to whether a defendant has a right to personal presence, however, is misleading inasmuch as the standard for when a defendant, as opposed to his attorney, may be excluded from a proceeding is a much easier one for the prosecution to meet. By contrast, a criminal defendant has a fundamental constitutional right to have counsel present at all material stages of a prosecution. People v. Darby, 75 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 129, 134 (2003). Respondent concedes that counsel’s presence would have been necessary at the in camera proceedings involving Rose had a legal question been at issue, but erroneously claims that the proceedings here did not involve a legal determination (RB.22). Attempting to support his argument, Respondent analogizes the April 22nd and 27th in camera examinations of Rose to material witness hearings and cites two Appellate Division cases pertaining to such proceedings -- People v. Mauro, 49 A.D.3d 268 (1st Dept. 2008) and People v. Brown, 195 A.D.2d 967 (4th Dept. 1993) (RB. 22- 25).2 2 Brown held that a defendant’s absence from a material witness hearing conducted pursuant to C.P.L §620.50 did not violate his constitutional right to be present. Brown, 195 A.D.2d at 967. Mauro held that both defendant and counsel could be excluded from an in camera proceeding involving the prosecutor and complainant, which the Appellate Division deemed indistinguishable from a material witness proceeding under C.P.L. Footnote continued on next page 4 The question litigated at the hearings discussed in Brown and Mauro is whether the court must fix bail or incarcerate a witness in order to secure his appearance to testify in a pending criminal action. See C.P.L. §620.10 et seq.; Mauro, 49 A.D.3d at 269; Brown, 195 A.D.2d at 967. By contrast, the issue litigated at a proceeding to determine testimonial capacity is whether the prospective witness has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what he has seen and heard vis-à-vis the subject of interrogation. People v. Parks, 41 N.Y.2d 36, 45 (1976), citing People v. Rensing, 14 N.Y.2d 210, 213 (1964). If the witness does not, he cannot testify at all at the defendant’s trial. A witness has testimonial capacity when he has the ability to observe, recall and narrate – meaning that the events he sees are impressed in his mind, retained in his memory and can be recounted by him with sufficient ability that the court is satisfied that he understands the nature of the questions and can respond accordingly, as well as understand his moral responsibility to speak the truth. In re Brown v. Ristich, 36 N.Y.2d 183, 189 (1975). This is a legal determination. People v. Parks, 41 N.Y.2d at 45-46. Certainly, testimonial capacity is a much more article 620. Mauro, 49 A.D.3d at 269. The proceeding in Mauro resulted in the complainant’s compliance without the necessity of a material witness order. Id. 5 fundamental issue than whether bail must be set or a witness incarcerated in order to get the witness to appear and testify, which is the issue at a material witness proceeding. Significantly, at a material witness proceeding, there is no issue as to the admissibility of the witness’s testimony. Here, the record indicates that the April 22nd and 27th in camera examinations were to determine whether Rose’s drug addiction, withdrawal symptoms and any other medical issues rendered him unable to meet this standard.3 Indeed, the record is laden with facts calling into question Rose’s ability to stay off drugs long enough not to be under the influence of these substances or suffering from the effects of withdrawal therefrom. Yet either of conditions had the potential to cloud his mental faculties such as to render him incapable of understanding the nature of the questions and responding accordingly. On April 22nd, Rose did not show up for over two hours and until after detectives had searched for him and the parties and the jury had been dismissed for the weekend (A. 1760-62, 1770; 673-64, 674-75, 683). When Rose finally arrived, he “seemed,” in the court’s words, “in bad shape.” The court’s description of its examination of Rose that day indicated Rose was 3 Respondent concedes that “in conducting the examination in the first place, it is evidence that the court was intending to ensure that [Rose] was physically capable of testifying” (RB.28). Nevertheless, Respondent refuses to acknowledge that such an inquiry pertains to testimonial capacity. 6 reticent as to the reasons for being “in bad shape” and extremely late. At the in camera proceeding that day, the court sought “to find out why he was late,” but Rose merely “told us he was late. He seemed to be in bad shape. But he told us, you know, he was running late” (A.1760-61; 673-74). While the court acknowledged its failure on April 22nd to ask Rose about his physical condition, it noted that he looked “tired [and] disheveled” (A 1773- 75; 686-88). The court specifically refused to answer the co-defendant’s lawyer’s question as to whether Rose looked “like someone who might be withdrawing from methadone” (A 1773-75; 686-88).4 It noted, however, that Rose looked worse and even more “hyper” than he subsequently looked on April 27th. This underscores just how bad Rose must have looked on April 22nd since, on April 27th – the day Rose looked better – he still looked bad enough that the prosecutor informed the parties she would be obtaining medical attention for him. Even on Monday, April 27th, when Rose arrived earlier than on April 22nd -- meaning before the parties and jurors had been dismissed for the day -- Rose was, by the prosecutor’s own admission, “late coming to [her] 4 Indeed, the court’s refusal to answer this question is a further indication of why the court’s statements regarding the in camera proceedings and cross-examination at trial were inadequate to eliminate the prejudice created by the exclusion of defense counsel from both in camera proceedings involving Rose and failure to provide a transcript of them to counsel. See AOB. 52-53. 7 office” and so “ill” as to cause the prosecutor to ask the court for an adjournment (A1756-57; 669-70). The prosecutor explained that “although Mr. Rose was here, he was in no condition to testify” (A 1760-61, 673-74). Indeed, Rose’s presentation prompted the court to ask Rose “if he was on drugs,” “if he was suffering from any alcohol problem” and specifically “if he’s on crack” (A1760-61, 673-74). As previously mentioned, the prosecutor offered to provide Rose with medical assistance. Interestingly, Rose declined. In addition to these observations by the prosecutor and court, Rose’s extensive history as a heavy drug user increases the likelihood that Rose might have been under the influence of drugs or experiencing drug withdrawal symptoms, notwithstanding Rose’s denial that he had taken drugs or was suffering from an alcohol problem and claim he merely was experiencing a migraine headache. Rose had been a heroin addict since around the mid-1970s, though he had reduced his heroin usage as his crack addiction deepened (A. 1914-17; 825-28). At the time of the crime, he was using approximately $40-50 worth per day of crack cocaine, which he had been taking, in varying amounts, since the early 1980s (A. 1912-16, 1918; 823-27, 829). Indeed, the deceased was one of Rose’s crack dealers. Further, in addition to Rose’s concurrent use of crack and heroin, Rose was receiving 8 90 milligrams of methadone per day, five days a week, from a methadone maintenance program and had been using methadone for approximately ten years (A. 1912-13, 1915; 823-24, 826). While methadone was supposed to decrease his dependence on heroin, Rose, nevertheless, had had several “dirty urine” samples, from sniffing heroin even though he was taking methadone (A. 1915; 826).5 Indeed, at trial, Rose was “shuffling, [and] nodding off periodically,” as noted by counsel in summation, in a description that was not contested by the prosecutor (A. 2378; 1288). When considered in the context of Rose’s severe and long-standing drug addiction, Rose’s behavior before and during the April 22nd and 27th in camera proceedings and during trial on April 28th, and Rose’s inability to obey court orders to appear in court on time and ready to testify on two separate occasions, suggest Rose indeed may have been impaired by drugs, alcohol or withdrawal symptoms. Consequently, the in camera examinations here more closely resembled a hearing on Rose’s testimonial capacity than a material witness hearing. Contrary to Respondent’s claim, People v. Morales, 80 N.Y.2d 450 (1992), strongly supports appellant’s position. See RB. 28-29. In holding 5 Additionally, Rose, who was 54 years old at the time of the trial, had not had a legitimate job for 25 years (A. 1820, 1931-32; 733, 842-43). 9 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 Morales, specifically noted that defense counsel had 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 in Morales pertained to the child’s testimonial capacity – i.e., ability to take an oath. Id. at 455, 457. This Court noted that the issue involved a legal determination, thereby implying a greater need for the presence of counsel than for the defendant personally. Id.; see also Kentucky v. Stincer, 482 U.S. 730, 739-40 (1987)(also noting defense counsel was present and allowed to ask questions of witnesses at competency hearing at which defendant’s personal presence was not required); AOB. 42-45. Based on the foregoing, there is every indication that had defense counsel been present at the April 22nd and 27th in camera examinations, the court might well have found that Rose lacked testimonial capacity and thus could not testify against appellant at trial. See People v. Wardlaw, 6 N.Y.3d 556, 559 (2006) (this Court assumed had counsel been present, the result of maximum benefit to defendant would have occurred). In this scenario, there 10 would have been no witness to the attack on the deceased and no identification of appellant as a participant therein. In sum, because the exclusion of defense counsel from a proceeding should be rare and was unnecessary here, and because the in camera examinations of Rose pertained to his testimonial capacity, the court’s exclusion of defense counsel from these proceedings and refusal to make a record for subsequent disclosure to the defense, constituted reversible error. CONCLUSION FOR THE REASONS STATED HEREIN AND IN APPELLANT'S OPENING BRIEF, THE APPELLATE DIVISION’S ORDER SHOULD BE REVERSED, APPELLANT’S CONVICTION VACATED AND A NEW TRIAL ORDERED. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant AMY DONNER Of Counsel December, 2014 CERTIFICATE OF COMPLIANCE Pursuant to 22 N.Y.C.R.R. §670.10(3)(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, and certificate of compliance, is 2,123.