The People, Respondent,v.Lee Carr, Appellant.

Brief

N.Y.February 10, 2015

APL-2014-00068; APL-2014-00169 To be argued by MELANIE A. SARVER (15 minutes requested) COURT OF APPEALS STATE OF NEW YORK _______ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LEE CARR and WALTER CATES, SR., Defendants-Appellants. _____________________________________________________ R E S P O N D E N T’ S B R I E F _____________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-6280 sarverm@bronxda.nyc.gov JOSEPH N. FERDENZI PETER D. CODDINGTON MELANIE A. SARVER Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT ............................................................................................................ 1 QUESTION PRESENTED ........................................................................................ 3 THE FACTS .............................................................................................................. 4 THE INDICTMENT .............................................................................................. 4 THE PRE-TRIAL SUPPRESSION HEARING ........................................................... 4 THE TRIAL ........................................................................................................ 5 The People’s Case ................................................................................. 5 The Defense ......................................................................................... 12 ARGUMENT ........................................................................................................... 15 THE TRIAL COURT’S IN CAMERA EXAMINATION OF PROSECUTION WITNESS GARY ROSE WAS NOT A MATERIAL PART OF TRIAL THAT REQUIRED THE PRESENCE OF DEFENDANTS OR THEIR ATTORNEYS ..................... 15 CONCLUSION ........................................................................................................ 33 ii TABLE OF AUTHORITIES CASES Kentucky v. Stincer, 482 U.S.730 (1987) ................................................................. 25 People v. Aguilera, 82 N.Y.2d 23 (1993) ............................................................... 20 People v. Antommarchi, 80 N.Y.2d 247 (1992) ..................................................... 20 People v. Brown, 195 A.D.2d 967 (4th Dept. 1993) ........................................ 22, 23 People v. Carr, 111 A.D.3d 472 (1st Dept. 2013) ........................................... 20, 25 People v. Castillo, 80 N.Y.2d 578 (1992) .............................................................. 23 People v. Contreras, 12 N.Y.3d 268 (2009) .................................................... 21, 22 People v. Darby, 75 N.Y.2d 449 (1990) ................................................................. 21 People v. Fabricio, 3 N.Y.3d 402 (2004) ............................................................... 20 People v. Frost, 100 N.Y.2d 129 (2003) ......................................................... 21, 23 People v. Hilliard, 73 N.Y.2d 584 (1989) .............................................................. 32 People v. Lovett, 192 A.D.2d 326 (1st Dept. 1993) .................................... 24, 25, 26 People v. Mauro, 49 A.D.3d 268 (1st Dept. 2008) ........................................... 24, 25 People v. McLean, 15 N.Y.3d 117 (2010) .............................................................. 29 People v. Mendez, 208 A.D.2d 358 (1st Dept. 1994) .............................................. 24 People v. Morales, 80 N.Y.2d 450 (1992) ....................................................... 28, 29 People v. Ortega, 78 N.Y.2d 1101 (1991) ............................................................... 25 People v. Pavao, 59 N.Y.2d 282 (1983) ................................................................. 27 iii People v. Smith, 82 N.Y.2d 254 (1993) .................................................................. 20 People v. Spotford, 85 N.Y.2d 593 (1995) ............................................................. 21 People v. Sprowal, 84 N.Y.2d 113 (1994) ............................................................... 25 People v. Velasco, 77 N.Y.2d 469 (1991) ………………………………………..20 People v. Wardlaw, 6 N.Y.3d 556 (2006).………………………………………..32 STATUTES CPL Article 620 ................................................................................................ 24, 25 New York Administrative Code § 17-201 ........................................................ 1, 2, 4 Penal Law § 125.20(1) ............................................................................................... 4 Penal Law § 125.25(1) ...................................................................................... 1, 2, 4 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent-Appellee, -against- LEE CARR and WALTER CATES, SR., Defendants-Appellants. --------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, defendant Carr appeals from an order of the Appellate Division, First Department, entered on November 14, 2013, which affirmed an order of the Supreme Court, Bronx County, rendered June 10, 2009, convicting defendant Carr, after a jury trial, of Murder in the Second Degree (Penal Law §125.25[1]) and Report of deaths; removal of body (New York Administrative Code § 17-201), and sentencing him to an indeterminate term of incarceration of from twenty-five years to life (Carter, J.). By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, defendant Cates, Sr. appeals from an order of the Appellate Division, First Department, entered on February 21, 2012, which affirmed an order 2 of the Supreme Court, Bronx County, rendered June 10, 2009, convicting defendant Cates, Sr., after a jury trial, of Murder in the Second Degree (Penal Law §125.25[1]) and Report of deaths; removal of body (New York Administrative Code § 17-201), and sentencing him to an indeterminate term of incarceration of from twenty-five years to life (Carter, J.). 3 QUESTION PRESENTED Whether, in an effort to determine why prosecution witness Gary Rose, a recovering drug addict and eye-witness to murder, was unable to take the witness stand on the day he was scheduled to testify, the trial court properly examined him in camera and reported to the parties the contents of the discussion. On the morning Rose was scheduled to appear in court, the court learned that he was ill and unable to testify. The court announced its intention to question him in camera, and then reported the source of his complaint: he was suffering a migraine headache and needed the day to recuperate. The court specifically noted that Rose denied any recent drug or alcohol use. Later, during cross-examination, Patrick Bruno, Esq., and Sam Braverman, Esq. counsel for defendants, questioned Rose about the reason for the delay and his history of drug use. 4 THE FACTS THE INDICTMENT By indictment filed on or about December 22, 2006, the Bronx County Grand Jury charged defendant Carr, defendant Cates, Sr., Tyshon Cates, and Walter Cates, Jr., acting in concert, with second-degree murder (Penal Law § 125.25[1]), first-degree manslaughter (Penal Law § 125.20[1]), and Report of deaths; removal of body (New York Administrative Code § 17-201) (Indictment No. 4596/2006).1 THE PRE-TRIAL SUPPRESSION HEARING On February 23, 26, and March 3, 4, and 10, 2009, the Honorable John W. Carter held a consolidated Mapp/Huntley/Payton/Wade/Rodriguez/Dunaway hearing for purposes of determining suppression issues raised by both defendants, Tyshon, and Walter Cates, Jr. The court denied all motions (Judgment Roll: Decision and Order [Carter, J.], dated Mar. 26, 2009). 1 Defendant Carr, defendant Cates, Sr., and Tyshon Cates were tried together, but by two separate juries. Tyshon’s jury acquitted him of murder, but could not reach a unanimous verdict on first-degree manslaughter (T. 1564, 1571). Thereafter, Tyshon pled guilty to first-degree manslaughter and was sentenced to a prison term of six years. Walter, Jr. pled guilty to first- degree manslaughter and received a prison sentence of 15 years. Both defendants were tried by the same jury. The jury found them guilty of second-degree murder and removal of a body. The court sentenced both defendants to 25 years to life imprisonment (S. 15). Citations denoted “T.,” “S.,” or “PSR.” refer to the trial minutes, sentencing minutes, or pre-sentence report, respectively. 5 THE TRIAL The People’s Case On June 21, 2006, at approximately 9:00 p.m., Gary Rose2 heard a noise coming from the front door of his three-bedroom apartment and saw Matharr “Mack” Cham coming down the hallway towards him as he stood by the doorway to his room. Concerned that Mack “[wasn’t] supposed to be [there],” Rose inquired why he had come to visit. As Mack entered the bedroom, he promised Rose he would stay for just “a couple seconds,” only to be interrupted by defendant Cates, Sr. and his son, Walter, Jr., both of whom had been following a “few steps” behind 2 On April 22, 2009, the day Rose was originally scheduled to testify, the prosecutor informed the court that Rose had not yet arrived (T. 657). When he finally showed up, some two hours late, Rose appeared before a Bronx County judge to address a warrant that had been issued because he failed to complete community service in an unrelated matter (Rose: T. 814-16). After questioning Rose in camera to determine why he was late, the court ordered him to be ready to testify on April 27, 2009 (T. 672-73). On the morning of April 27, 2009, however, Rose was ill and could not testify that day. The court held a bench conference where it announced its plan to examine Rose in camera. The court conducted the inquiry after denying all three defense attorneys’ requests to be present with their clients when the court conducted the independent inquiry (T. 674). After questioning Rose, the court summarized its April 22 and April 27, 2009, interviews (T. 673). The court reported that, with respect to his illness, Rose complained of a migraine and needed a half day to recover. The court also noted that Rose denied using drugs—crack, in particular—or alcohol that day (T. 672-73, 687-88). The next day Rose appeared in court ready to testify. His criminal record was the subject of both direct and cross-examination. He testified that he was convicted of Criminal Possession of a Weapon in the Fourth Degree for which he received a sentence of 60 days jail (1980); Attempted Possession of Gambling Records (1981); and Petit Larceny (1982, 2005, 2006). He was also convicted of Criminal Possession of a Controlled Substance in the Seventh Degree (for which he received a three-year probationary sentence in 2000), and Attempted Sale of a Controlled Substance (for which he received a one-year prison sentence in 2001) (Rose: T. 734- 37). When asked to describe the underlying facts of these crimes, he was able to recall details from each incident. Finally, defense counsel questioned Rose about why he was unable to testify on April 27, as well as his drug use and recovery efforts over time (Rose: T. 818-19, 825-26, 837-38). 6 him. The two grabbed Mack and placed him in a “choke hold.” A struggle ensued, but Walter, Jr. managed to keep Mack’s arms steady as they “pulled him out [the bedroom] and slammed him down . . . to the ground near the bathroom” (Rose: T. 737, 745-48, 754, 757). Once they restrained Mack, defendant Cates, Sr. and his son began punching him several times in the head. “All of a sudden,” defendant Carr, known in the neighborhood as “Nasty,” appeared and delivered multiple, unobstructed “head shots” of his own. Tyshon Cates, who entered the apartment sometime during the attack, “threw a few punches” too. At some point, Mack bit defendant Cates, Sr. on the finger and defendant Cates, Sr. bit Mack on the chest in response. As the attack progressed, Rose heard Mack screaming, even though the volume of a radio inside the apartment had been turned up and was “blasting” (Rose: T. 738-42, 747-50, 756; Jerome Mitchell: T. 272). Defendant Carr eventually yelled to Rose, “Get the fuck back in the room . . . Nobody knows nothing.” Scared, Rose retreated to his bedroom where he tried to sleep, but couldn’t, because “[i]t was like a nightmare.” When the opportunity presented itself, he looked back into the hallway and saw Raheem Davis3 sitting on a chair at the entrance of another bedroom and handling a cord, which he was 3 Raheem Davis was indicted separately under Indictment No. 18/2007 and pled guilty to first- degree manslaughter. Like Walter Cates, Jr., he received a prison sentence of 15 years. 7 “fitting . . . to a size.” While Mack was restrained on the ground, defendant Carr tied the cord around Mack. After hearing a “couple of thumps” that grew “weaker” and “weaker,” Rose left his bedroom and, by permission, walked to the bathroom where he saw Mack lying in the tub. Raheem reassured him, “Don’t worry, [Mack’s] dead” (Rose: T. 740, 752-57, 857).4 Forty-five minutes later, Tyshon called Jerome “JJ” Mitchell and asked him to do him a favor after work. Mitchell agreed and, at 11:00 p.m, left work and drove to 227th Street and Laconia Avenue where he met Tyshon. As Tyshon walked Mitchell to Rose’s apartment he informed Mitchell that “Mack was dead upstairs.” Once inside the apartment, Tyshon and Mitchell followed Walter Cates, Jr. into a bedroom where defendant Carr and Raheem were waiting. There, Tyshon asked Mitchell for help in discarding Mack’s body. Mitchell followed defendant Carr to the bathroom where he observed Mack’s corpse in the tub, a plastic bag wrapped around Mack’s head, and a white extension cord tied around his neck and hands (Mitchell: T. 246, 250-51, 255-57, 261-68). Thereafter, defendant Carr and defendant Cates, Sr. proceeded to drag Mack from the bathroom to the living room, remove his clothes, and place him into a 4 On June 24, 2006, police questioned Rose about the murder, but Rose told police he saw nothing that transpired in his apartment on June 21 (Rose: T. 800-01). Eventually, however, Rose came forward. When asked why, on June 24, he did not tell police what he observed, he responded, “I live in the neighborhood and I was scared. I was hoping after all that maybe it would pan out where they will find another witness” (Rose: T. 857-58). 8 black plastic bag while Walter Cates, Jr., Raheem, and Mitchell discussed where to dump the body. When Walter Cates, Jr. got word from Tyshon that “it was clear” to move the body from the apartment to Mitchell’s car, defendant Cates, Sr. carried a TV, pretending that they were moving, then assisted defendant Carr in lifting the bagged corpse. Once outside the building, the two placed Mack in the trunk of Mitchell’s car, which Mitchell had driven backwards onto the building sidewalk for the purpose of receiving the body (Mitchell: T. 269-72, 281-83, 406). Mitchell drove away, picked up Walter Cates, Jr. and Raheem at 226th Street, and soon found a dumpster in an industrial area where they dumped the corpse. Fearing that they had left fingerprints on the bag, Walter Cates, Jr. instructed Mitchell to purchase gas at a nearby gas station. Mitchell complied, then returned to the dumpster. Walter Cates, Jr. poured the gas into the dumpster and threw a lit piece of paper inside. Without delay, all three drove away in Mitchell’s car (Mitchell: T. 273-74, 283-88). The next day, at 8:20 a.m., Police Officer Christopher Verde responded to a 911 call from a sanitation worker regarding a dead body in a dumpster at 1655 East 233rd Street. Upon arrival, he observed a “badly burned male” that “looked like a piece of charcoal.” Bones were “sticking out of the legs” and the body, the arms and back had “burn marks” on them, and the body appeared to be “wrapped up in a paper bag of some sort.” Later that day, at the Bronx Medical Examiner’s Office, 9 Matharr Cham’s mother, Aisha Jobe, identified the body as her son. Several days later, Officer Verde identified the body as the one he found in the dumpster (Verde: T. 41-51; Jobe: T. 34-35, 37-40). Meanwhile, Detective Michael DePaolis of the Bronx Homicide Task Force responded to 1655 East 223rd Street with his partner. There, Detective DePaolis reviewed two surveillance videos: one from the salvage yard located at East 223rd Street and the other from a nearby Mobil gas station. The video of the salvage yard captured Mitchell, Raheem, and Walter Cates, Jr. exiting a car and “dump[ing] something from the trunk . . . into the dumpster.” The car left and returned ten minutes later. The three were then seen “light[ing] something on fire and throw[ing] it into the dumpster.” The recording from the Mobil gas station showed Mitchell buying gasoline within the same time-frame (DePaolis: T. 472-80, 483, 490).5 At 11:45 p.m. the next day (June 23), Sergeant John Neesen, of the 47th Precinct Detective Squad, received a tip from an anonymous caller on the Crime Stoppers hotline informing police that the people who killed Mack were currently cleaning apartment 3B at , the murder site. Upon 5 Detective DePaolis arrested Jerome Mitchell on October 2, 2006. Police recovered and vouchered his car, which contained the gasoline can used to obtain the gas poured inside the dumpster on the night of the murder. Mitchell later signed a cooperation agreement with the People wherein he agreed to testify about what took place on June 21, 2006, after Mack was murdered. The People, in turn, agreed to permit him to plead guilty to removal of a body, a misdemeanor, and receive a probationary sentence (Mitchell: T. 290-91, 460-61; DePaolis: T. 484-85, 489). 10 investigation, Sgt. Neesen learned that defendant Cates, Sr. lived in the apartment and that a complaint report had been filed against him (for an unrelated matter) that was outstanding. Armed with this information, Sgt. Neesen drove to with several other detectives (Neesen: T. 88, 95-101). When police arrived, defendant Cates, Sr. answered the knock on the door, stepped into the hallway, and pulled the door behind him, leaving it slightly ajar. While police attempted to impress on defendant Cates, Sr. the need for him to come to the precinct regarding the open complaint, Sgt. Neesen noticed a “very strong smell”—“[l]ike . . . bleach and [a]monia”—coming from the apartment. Defendant Cates, Sr. began to make his way back inside when detectives apprehended him after a brief struggle (Neesen: T. 102-04). Upon entering the apartment, Sgt. Neesen observed a fan blowing in the direction of three or four puddles on the living room floor and, leaning against the wall, a mop and a mop bucket. Sgt. Neesen walked down the hallway only to find, in the rear left bedroom, a “jug of biowash” fluid sitting next to a pair of rubber gloves. Detective Christopher Florio, who led his own investigation of the apartment on June 24, described the substance as an “industrial cleaner” “used to clean up biological fluids.” Sgt. Neesen obtained a search warrant for the apartment and photographed its contents. The mop bucket, mop head, rubber gloves, and biowash were later vouchered as evidence (Neesen: T. 106-08, 113- 11 18; Florio: T. 179-80, 195, 197-202, 206-07; Police Officer Abul Miah: T. 625- 30). DNA analysis revealed the presence of defendant Cates, Sr.’s DNA on the rubber gloves (Criminalist Kecia Harris: T. 644). An autopsy (performed on June 23, 2006) revealed that, aside from the second- and third-degree burns covering 72% of his body, Mack had sustained bleeding under his scalp, “two quarter inch lacerations” to the “upper and lower lips,” a one-inch contusion to the right side of his forehead, bleeding under both the right and left side of his head, and swelling to the left side of his head. According to Dr. James Gill, Deputy Chief Medical Examiner for Bronx County, these “blunt impact injuries” likely resulted from punches and kicks inflicted before death and could have rendered Mack unconscious (Gill: T. 885, 891, 893, 900-01, 931). Mack also sustained bleeding between the ribs, bruising to both his chest and left side of his ribs, and a curved abrasion to his chest. The rib injuries were consistent with Mack being kicked and punched, while the bruising to his chest was “consistent with some type of compressive force.” The curved abrasion on his chest resembled an “upside down smiley face,” consistent with a bite wound (Gill: T. 892, 900-05). The autopsy further revealed that Mack’s death was caused by strangulation. Based on his expertise, Dr. Gill concluded that a cord and a hand (or an arm) had 12 been forcefully and continuously applied against his neck for at least one minute. This conclusion was supported by the existence of “evidence of a blunt compression of a neck” where “[t]here were fine parallel kinds of linear marks.” Such markings were “a sign of a ligature being applied to the neck.” “[E]xtensive hemorrhaging in the muscles, in the structures in the front [and center] of the neck” also validated the cause-of-death finding. Additionally, Mack suffered a fracture to his hyboid bone, the U-shaped bone above the voice box, as well as a horizontal abrasion with “a large amount of bleeding” (Gill: T. 896-900, 903-06). The Defense Defendant Carr did not testify nor did he call witnesses to testify on his behalf. Defendant, Walter Cates Sr.,6 testified that, on June 21, 2006, he spent the day stealing merchandise from local stores, and that when he returned to his apartment, he was “getting high” on crack-cocaine. Defendant Cates, Sr. allegedly heard gunshots, and ensured that his grandchildren, who were playing outside, were safe. Defendant Cates, Sr. returned to his apartment and saw Gary Rose, his roommate, and Cham, who had formerly sold him drugs (Cates, Sr.: T. 968-969, 976-979, 1024-1027). Defendant Cates, Sr. and Rose left the building during which time Cham stopped at Apartment 2D. Defendant Cates, Sr. and Rose later returned to the 6 Defendant claimed his real name is Walter Johnson (T. 968). 13 apartment, where defendant Cates, Sr. encountered Walter Cates, Jr., and Davis. Then, Cham knocked on the door. Defendant Cates, Sr. opened the door, and Cham walked into Rose’s bedroom. Defendant Cates, Sr. “hear[d] a slap” and an argument ensue between Cham and Rose. Defendant Cates, Sr. stated that when he left “around 7, 7:30, 8 o’clock,” Walter Cates, Jr., and Davis remained in the apartment, and that Cham and Rose were still arguing (Cates, Sr.: T. 982-986, 1030-1050) Defendant Cates, Sr. claimed that he spent the evening with his girlfriend, Yvonne Smith, but that when he returned around 11:30 p.m., he found Cham’s naked body lying by a wall. Defendant Cates, Sr. denied ever seeing a bag wrapped around Cham’s head, or a cord wrapped around his neck, or any blood or swelling on his body (Cates, Sr.: T. 988, 1051-1053). Defendant Cates, Sr. asserted that Davis, Walter Cates, Jr., and defendant Carr were also inside the apartment, and he admitted that rather than notifying the police that he discovered a dead body in his apartment, he told his “son and that people that was in the house that they had to get that out of the house. I didn’t care how it get . . . out of the house, but that [it] had to go” (Cates, Sr.: T. 989-990) Both defendants wrapped Cham in a black garbage bag in the living room, and the two carried Cham downstairs with Walter Cates, Jr. carrying a TV ahead of them. Mitchell, accompanied by Walter Cates, Jr. and Davis in his car, backed up 14 the vehicle to the building doorway. Defendants put Cham into the trunk; Mitchell, Davis, and Walter Cates, Jr. drove away, and defendant Cates, Sr. returned to his girlfriend’s house (Cates, Sr.: T. 991-993, 1054-1069). Defendant Cates, Sr. denied that he had a blowing fan directed at puddles of liquid on the apartment floor when the police arrested him. Defendant Cates, Sr. claimed that the mop, mop bucket, and biowash fluid, which he insisted emitted a pine scent, were owned by the New York City Housing Authority, but admitted he used the rubber gloves for housecleaning (Cates, Sr.: T. 1073-1080). 15 ARGUMENT POINT THE TRIAL COURT’S IN CAMERA EXAMINATION OF PROSECUTION WITNESS GARY ROSE WAS NOT A MATERIAL PART OF TRIAL THAT REQUIRED THE PRESENCE OF DEFENDANTS OR THEIR ATTORNEYS. Defendants Lee Carr and Walter Cates, Sr. take issue on appeal with two ex parte examinations of prosecution witness Gary Rose that occurred during their trial, in an effort by Justice Carter to determine when Rose’s migraine headache would subside, allowing him to testify. On April 22, 2009, when Rose was initially scheduled to testify, Assistant District Attorney (“ADA”) Susanna Imbo stated, on the record, “The witness that was scheduled for today did not show up today and the detectives are currently looking for that witness, so we would ask for, with respect to that witness, some time to locate that witness” (T. 657). On April 27, 2009, Rose arrived late and in no condition to testify: 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. 16 THE COURT: —I’ve ordered the DA to bring him over. I’m going to interview him in camera and then—I want the defense counsels to stick around. MR. BRAVERMAN: Absolutely. Further, I understand from Ms. Gottlieb [prosecutor]—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 from intoxication to narcotics, anything like that, and we know from his sworn statement and 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. MR. VENTURA [counsel for Tyshon Cates]: I would ask that before we let the jury go and you do your in camera inspection with the hopes that perhaps we can put it on in the afternoon. People can be rebounded by a Judge. And maybe before we lose this case, since because we los[t] a day, perhaps we can do the inspection first, the in camera inspection, and then see perhaps we might get started at two o’clock [sic]. MR. BRUNO: That was my thought. I would join in that. THE COURT: That’s a fair point. We’ll take the defendants down. If someone can get Nancy—I told her to get the jurors—to tell her to stop and take them back to their rooms. (T. 669-70). Thereafter, the court dismissed the juries and questioned Rose. Although a transcript of the meeting was not available, shortly after interviewing Rose, when the information was still fresh on his mind, Justice Carter reported to 17 the attorneys what he had learned. The record shows that he summarized the questions he posed to Rose, the responses Rose gave, and his impressions of Rose’s appearance and demeanor: 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, 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 o’clock to be able to testify. This morning, I’ve received a phone call from Ms. 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. Mr. Braverman? (T. 672-74). At that juncture, the court welcomed questions by counsel, addressing any ambiguities raised by or inadvertent omissions from his report: MR. BRAVERMAN: . . . A couple of issues. I appreciate the opportunity to make them now. 18 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. The second this 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 were given something here today. I don’t think it was a copy of—I don’t think it addresses that. It does not. So 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 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 Monday as was today when he was subpoenaed to arrive and then 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 Court that the District Attorney had their detectives looking for him. Ms. 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. . . . MR. BRUNO: My colleague was quite thorough. I join in his applications. . . . THE COURT: . . . I don’t think there is any legal requirement for my discussions with him on . . . Wednesday or today to be on the record. Obviously, 19 defense counsel will, you know, have a full range of cross examination. They can cross why he wasn’t here Wednesday. They can cross him 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. (T. 674. 682-83). Now, defendants claim that “the court’s exclusion of defense counsel from both proceedings was erroneous and denied appellant his right to counsel” (defendant Carr’s brief, p. 39). They further assert that since “[t]here were no facts establishing unusual and exceptional circumstances…it was simply improper for the court to speak with the witness absent counsel” (defendant Cates, Sr.’s brief, p. 25). Arguing that the ex parte examination of Rose assessed Rose’s testimonial capacity and credibility, defendants challenge the exclusion of defense counsel from these proceedings on the basis that it “is not the job of the court to represent the defendant…[t]here is no substitute for counsel when it comes to observation and listening skills, and perhaps participation, in the examination of a witness” (defendant Cates, Sr.’s brief, p. 27). But, the Appellate Division, First Department, correctly determined that the “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 20 determination of any issue requiring input from defendant or his counsel.” People v. Carr, 111 A.D.3d 472 (1st Dept. 2013). Defendants’ presence “is required only where [their] absence would have a substantial effect on [their] ability to defend.” People v. Velasco, 77 N.Y.2d 469 (1991) (holding that defendants do not have the right to be personally present during informal questioning of prospective jurors that relates only to grounds for juror disqualification by the court, such as physical impairment, family obligations and work commitments); see also People v. Aguilera, 82 N.Y.2d 23 (1993) (since “defendant was not excluded from a core segment of trial, reversal is mandated only if defendant's absence might have had an effect on the opportunity to defend”); People v. Antommarchi, 80 N.Y.2d 247 (1992) (“defendant has a fundamental right to be present during any material stage of the trial”). Moreover, this Court has found that where a sidebar conference focused “on a pure question of law,” defendant “did not have a right to be present, as the subject legal discussion did not implicate his peculiar factual knowledge or otherwise present the potential for his meaningful participation.” People v. Fabricio, 3 N.Y.3d 402, 406 (2004). Here, the conference did not concern a question of law, nor did it call for defendants’ peculiar knowledge of any facts. People v. Smith, 82 N.Y.2d 254, 268 (1993) (finding that it cannot “reasonably be said that there was any potential for additional meaningful input by defendant”); 21 see also People v. Spotford, 85 N.Y.2d 593, 596 (1995) (“A key factor in determining whether a defendant has a right to be present during a particular proceeding is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position. If so ... then the defendant has a right to be present” [internal citation omitted]). Therefore, there was no error in excluding defendants and their attorneys from the court’s examination of Rose. Defendants, claiming that the conversations were material parts of trial at which they were entitled to be present, attempt to liken the instant decision to examine Rose to other trials in which counsel was excluded from material parts of the proceeding. See People v. Darby, 75 N.Y.2d 449 (1990); People v. Frost, 100 N.Y.2d 129 (2003); People v. Contreras, 12 N.Y.3d 268 (2009). For example, in Darby, this Court held that the “fundamental unfairness to defendant by the exclusion of his counsel from this relevant inquiry [into the possible taint of the empaneled jury] is evident from the inherently speculative nature of the impact on those four jurors.” Darby, 75 N.Y.2d at 453. In Darby, one of the jurors was excused because of the potentially prejudicial incident. Had defense counsel been present at the examination of the other four, he might have advocated or been better able to advocate for their mid-trial dismissal. This assessment – of whether to excuse four jurors in the middle of trial – is clearly a more material proceeding 22 than a simple determination of why a witness did not appear in court and whether the witness was well enough to testify. Even more misplaced is defendants’ reliance on Contreras, in which the court, in fact, initially allowed an ex parte proceeding to determine whether a piece of evidence was Rosario material. First, this Court found the situation to be one in which an ex parte proceeding was acceptable, and, second, though defense counsel was ultimately allowed “to know the contents of the document, to argue for the right to use it at trial and to question the complainant about it,” this proceeding directly addressed a legal evidentiary issue. Contreras, 12 N.Y.3d at 273. The People do not contest that had a legal question been at issue at Rose’s interview, defense counsel’s presence at the proceeding would have been necessary. However, neither facts regarding Rose’s drug use nor legal issues regarding Rose’s competency and capacity to recall and testify were at issue here; rather, the issue was why Rose had not appeared in court as required and whether Rose’s migraine was too debilitating for him to testify on the 27th. In 1993, the Appellate Division, Fourth Department, held that no constitutional right was violated “when the material witness hearing was conducted in [defendant’s] absence.” People v. Brown, 195 A.D.2d 967, 967 (4th Dept. 1993). The Fourth Department found that the “hearing did not address evidentiary matters…or issues on which the defendant had special knowledge…and his 23 exclusion from the hearing did not affect his ability to defend.” Id. The same rationale applies to the instant case. Here, the examination of Rose did not address evidentiary matters, and it certainly did not discuss issues on which defendants had special knowledge. Defendants’ intention in challenging the court’s interview was to attack the reliability and credibility of Rose’s eye-witness testimony (defendant Carr’s brief, p. 58 [“Counsel could have used these observations to confront Rose and attack his credibility on cross-examination.”]). However, both defense attorneys were able to cross-examine Rose on his drug habit and scheduling issues without limits. As defendants point out, this Court has held that “ex parte hearings are not to be granted lightly and are unwarranted and impermissible in the vast majority of cases.” Frost, 100 N.Y.2d at 134. However, there, the hearings in question were proceedings to evaluate the appropriateness of the closure of the courtroom during the testimony of certain witnesses, an issue affecting defendant’s sixth amendment constitutional right to a public trial. In setting this precedent, this Court also considered suppression proceedings challenging the validity of a search warrant. See People v. Castillo, 80 N.Y.2d 578 (1992) (upholding a defense counsel's exclusion from suppression proceedings challenging the validity of a search warrant, on the ground that disclosure of a witness's identity would compromise the safety of the informant and future investigations). There is no evidence in the 24 Frost decision that administrative, ministerial conferences such as the one to determine simply when Gary Rose would be able to testify were to be considered in the same light as suppression hearings and hearings which would affect a defendant’s sixth amendment constitutional right. Thus, defendants’ reliance on these cases is mistaken. After the examination, like at a material witness proceeding pursuant to CPL Article 620, the court reported privately questioning Rose for the permissible purpose of assessing his health, and ensuring his future appearance at trial; the court accomplished this purpose without discussing any facts or trial issues testing Rose’s credibility as a witness. Cf. People v. Mendez, 208 A.D.2d 358, 359 (1st Dept. 1994) (defense counsel’s appearance required during witness credibility inquiry to determine whether witness had been intimidated.); People v. Lovett, 192 A.D.2d 326 (1st Dept. 1993) (trial court permitted to hold private conference with prosecutor and counsel for sole eye-witness to determine what steps to take to ensure safety and production of witness). In People v. Mauro, 49 A.D.3d 268, 269 (1st Dept. 2008), although finding unpreserved a defendant’s challenge to a similar conference conducted by a New York County trial court, the Appellate Division, First Department, rejected the defendant’s claim on the merits. Mauro, 49 A.D.3d at 269. At trial, the court had secured the attendance of the complaining witness in a private, ex parte conference with the prosecutor and the witness without issuing a 25 material witness order. The court likened the conference to a material witness proceeding under CPL Article 620, where bail may be fixed to obtain a witness’s compliance to appear in court. Satisfied that the record of the conference revealed that no improper subjects were broached, this Court found that the conference was proper. Id. Like in Mauro, Justice Carter held a conference in a proper attempt to ensure Rose’s attendance at trial. 7 Furthermore, 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.” Carr, 111 A.D.3d at 472. Contrary to defendants’ arguments, cases such as Lovett do not establish that “[d]efendant's right to be present at his trial was not violated” because “a complete, contemporaneous record of the conference was prepared and made available to trial counsel.” Defendants’ 7 The instant conference should also not be confused with the improper ex parte conference in People v. Ortega, 78 N.Y.2d 1101 (1991), where the trial court privately met with an undercover police officer and advised the officer about a legal issue in an effort to persuade him to voluntarily disclose the identity of a confidential informant. Nor should it be confused with the cases addressing the right of defense counsel to be present at an inquiry of a witness that tests his/her credibility, or the right a defendant does not have to be personally present at certain “ancillary” or “ministerial” proceedings where defense counsel is present (defendant Cates, Sr.’s brief, p. 26, and defendant Carr’s brief, pp. 42-44, citing Kentucky v. Stincer, 482 U.S.730 [1987] [defendant’s personal exclusion from witness competency hearing not unconstitutional], People v. Sprowal, 84 N.Y.2d 113 [1994] [defendant’s personal exclusion from voir dire sidebar not error]. None of the questions raised in these cases address the issue of proper conduct by a trial court in the context of a CPL Article 620 proceeding or its functional equivalent. 26 rights were also not violated here, even though Justice Carter’s report of what transpired in the ex parte conversations did not rise to the level of the record made in Lovett. Id., 192 A.D.2d at 326. First, Lovett does not require that a complete, contemporaneous record be prepared in each similar case. Simply noted, in that case, there happened to be such a record. Second, the subject at issue in Lovett was more sensitive; “what steps should be taken to insure the safety and production of the witness” (id., at 326) connotes potential witness tampering on behalf of defendant, though the court did deny that was the subject of the proceeding. In Rose’s examination, nothing relating to defendants was discussed at any time. Neither at trial or on appeal does defense counsel suggest that the trial court engaged Rose in improper discussions about the content of his testimony or about any legal or factual issues involving the defendants. Yet, defendant Carr now asserts that a court in this situation “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” (defendant Carr’s brief, p. 45; see also defendant Cates, Sr.’s brief, p. 27). The problems with these assertions are numerous. First, to the extent that Mr. Braverman implied that his assessment of Rose’s condition would be significantly different than the court’s assessment (T. 687-88), neither the court nor defense attorneys are medical experts 27 and the suggestion that defense attorneys could tell the difference between a migraine and drug use,8 whereas the court could not, is fallacious. Second, regardless, it would not have been a good strategy to question Rose about his drug habit outside the presence of the jury. Had Rose denied drug use in his interview in chambers, the collateral evidence rule would have bound defendants to that answer without giving the jury the opportunity to evaluate Rose’s response to the question. See People v. Pavao, 59 N.Y.2d 282 (1983) (finding that “the party who is cross- examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility”). Defense attorneys cannot act as fact witnesses and trial attorneys simultaneously. Third, when Rose was on the witness stand, his answer regarding his absence the previous day was consistent with what the court relayed to defense attorneys, foreclosing any doubt that the court incorrectly summarized the conversation. Thus, conspicuously absent from defendants’ arguments is a legitimate example of what defense counsel might have noticed during the examination and reasonably used during trial that the court did not notice and report, or that defense counsel could not explore on cross-examination. Defense attorneys had no trouble 8 Mr. Braverman requested that he receive the medical records should any medical attention have been sought for Rose, but there is no evidence that medical treatment was ever obtained for the witness (T. 670). 28 seizing numerous opportunities to delve into Rose’s history with drugs, and with three defense attorneys cross-examining Rose, had ample opportunity to assess Rose’s “nervous mannerisms” (defendant Carr’s brief, p. 58). Moreover, given the fact that Rose was a rather unusual witness who spoke freely and honestly about his history of drug use, there was plenty of material on which to cross-examine him (T. 767-840). For example, defendant Carr’s suggested line of questioning regarding “when [Rose] last used drugs, how much drugs he had used, whether he was experiencing symptoms of drug withdrawal,” etc., was effectively covered (T. 817-19, 822-28). Furthermore, in conducting the examination in the first place, it is evident that the court was intending to ensure that the witness was physically capable of testifying. It is solely within the court’s discretion to determine when a witness is medically able to testify, but, regardless, this is not the type of determination that requires the adversarial process. Here, the parties shared the court’s goal of ensuring that they did not force a medically ill man to testify. Defendants’ reliance on People v. Morales, 80 N.Y.2d 450 (1992), to support the proposition that since “the two private examinations…pertained to Rose’s competency, reliability and credibility and therefore, appellant had a right to defense counsel at these proceedings” is improper. An examination to determine whether a child-witness understood the nature of an oath, as in Morales, is a 29 proceeding which ultimately requires a judicial finding of a question of law after the child-witness is asked “any additional questions the attorneys might wish to have posed.” Morales, 80 N.Y.2d at 452. The nature of the instant examination, in which the court simply needed to determine whether Rose would be healthy enough to take the stand that day or the next, does not lend itself to the same, or any, kind of advocacy. Furthermore, Morales also points out that “[a]lthough on this appeal defendant suggests a number of ways he ‘might’ or ‘could’ have affected the court’s competency ruling, he never presented those arguments to the hearing court for evaluation and thus his claims necessarily remain speculative.” Id. at 455; see also People v. McLean, 15 N.Y.3d 117, 121 (2010) (“the rule authorizing review of unpreserved constitutional right-to-counsel claims has been applied only when the constitutional violation was established on the face of the record” [internal citation omitted]). Similarly, here, where “the record falls short of establishing conclusively the merit of the defendant's claim,” appellate review should be barred. Id. The record does not reflect any questions to which defense counsel was unable to get answers. For example, Mr. Braverman asked the court if Rose appeared “[l]ike someone who might be withdrawing from Methadone” (T. 688). The court responded that “[i]t’s not fair for me to say” (T. 688), but when Rose took the witness stand, he was questioned about his use of Methadone by Mr. Ventura (T. 776) and Mr. Braverman (T. 823-24), and he was questioned about his 30 health condition on the 27th by Mr. Bruno (T. 819). There is no assertion that any observations made on the 27th would have changed the questions asked by the defense attorneys on cross-examination or strengthened defendants’ argument. In fact, the questions on cross-examination were quite effective. The defense attorneys were able to elicit answers indicating that Rose had not had a job in quite some time (T. 733, 766-67), that Rose used heroin in the in the 1970s and 1980s (T. 769), that he was addicted to crack at the time he witnessed the crime in question (T. 767), and that he was also in a methadone maintenance program at the time of the crime (T. 769). Cross-examination of Rose also revealed that he had initially denied seeing anything occur in his apartment (T. 800-01), and that he “showed up yesterday but [he was] not physically/medically fit to testify” (T. 817). Furthermore, when questioned as to why he “preferred not to testify yesterday” (T. 818), Rose told Mr. Bruno: GARY ROSE: …I had a terrible migraine headache, full of stress and when I get these migraine headaches I got to lay down at least for 12 hours, not two hours, not one hour and I got to have total darkness and just lay there. I can’t have no sound or nothing like that. (T. 819). Since Rose exhibited great frankness regarding his drug habit, including his admission that he had done narcotics for “a good 30 years” (T. 828), there is no reason to believe he was not telling the truth with respect to his migraine headache. Thus, given the honesty with which he answered the defense attorneys’ questions 31 about his physical condition the day before he testified, there is no reason to believe that any additional information regarding his credibility could have come to light had defendants or their attorneys been present in the ex parte conversations with Justice Carter. Because defendants’ complaint revolves largely around alleged lost opportunities to impeach Rose (defendant Cates, Sr.’s brief, p. 26; defendant Carr’s brief, p. 55; see T. 686-87), their challenge should be rejected as the trial court did not leave counsel without a remedy. After providing a full report of the interviews and after describing Rose’s appearance as “tired” and “disheveled,” and his demeanor comparatively “hyper” (T. 688), the court invited counsel to cross- examine Rose, without limitation, about his whereabouts and why he was unable to testify when scheduled. Moreover, it was in the court’s discretion, not defendants’, to determine whether Rose was fit to testify on April 27th. Defendants could not have forced Rose to take the witness stand even if, after examining him in person, they had wanted to do so. However, one might argue that this strategy would have been unlikely anyway, as forcing an ill witness to take the stand could prejudice defendants’ case in the jury’s eyes. Defendants were on trial for the brutal beating of a man; anyone would agree it would be questionable trial strategy to appear cruel to the jury by forcing a suffering witness to testify with a migraine. Thus, 32 even if it was error to examine Rose privately and off-the-record, the error was harmless. See People v. Wardlaw, 6 N.Y.3d 556 (2006) (holding that where it was clear, beyond reasonable doubt, that the outcome of the suppression hearing at which the defendant's right to counsel was violated could not have affected the outcome of the trial, the error was harmless); cf. People v. Hilliard, 73 N.Y.2d 584 (1989) (holding that where a deprivation of the right to counsel was egregious, and where it might invite future abuse to leave it unremedied, appellate courts may grant relief even though the defendant was not prejudiced by the error). Given all of the avenues of relief available to defense counsel here, this exclusion of counsel from a non-material proceeding cannot reasonably be considered egregious. 33 CONCLUSION THIS COURT SHOULD AFFIRM THE DECISION AND ORDER OF THE APPELLATE DIVISION. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent By: /s/ MELANIE A. SARVER Assistant District Attorney Appeals Bureau JOSEPH N. FERDENZI PETER D. CODDINGTON MELANIE A. SARVER Assistant District Attorneys Of Counsel October 23, 2014