The People, Respondent,v.Oliverio Galindo, Appellant.BriefN.Y.June 3, 2014 To be argued by MARISA K. CABRERA (Time Request: 15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - OLIVERIO GALINDO, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 MARISA K. CABRERA Of Counsel November 6, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . 3 STATUTES INVOLVED.. . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 5 Introduction.. . . . . . . . . . . . . . . . . . . . . . . 5 People’s Evidence. . . . . . . . . . . . . . . . . . . . . 6 Motion for Trial Order of Dismissal. . . . . . . . . . . . 8 Jury Charge. . . . . . . . . . . . . . . . . . . . . . . . 9 Sentencing.. . . . . . . . . . . . . . . . . . . . . . . 10 Appellate Division Decision. . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT I THE VERDICT CONVICTING MR. GALINDO OF SECOND-DEGREE POSSESSION OF A WEAPON WITH UNLAWFUL INTENT WAS LEGALLY INSUFFICIENT WHERE INTENT COULD ONLY BE ESTABLISHED THROUGH THE PERMISSIVE PRESUMPTION OF PENAL LAW § 265.15(4) AND WAS REBUTTED BY THE PROSECUTION’S OWN EVIDENCE AND THEORY OF AN “ACCIDENTAL” SHOOTING. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6... . . 12 POINT II MR. GALINDO WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO MOVE FOR DISMISSAL AS TO THE OTHER TOP COUNT OF THE INDICTMENT, POSSESSION OF A WEAPON OUTSIDE OF HOME AND PLACE OF BUSINESS, ON THE ONLY VIABLE AND OBVIOUS LEGAL ARGUMENT: THAT THE PROSECUTION FAILED TO PROVE ONE OF THE ELEMENTS OF THE OFFENSE – MR. GALINDO’S POSSESSION OF THE GUN OUTSIDE OF HIS HOME. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I, § 6.. . . . . . . . . . . . . . . . 20 i CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 26 ii TABLE OF AUTHORITIES Cases Carella v. California, 491 U.S. 263 (1989).................... 18 Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140 (1979).... 15-17 In re Raquel M., 99 N.Y.2d 92 (2002).......................... 15 Jackson v. Virginia, 443 U.S. 307 (1979)...................... 13 Lind v. Artuz, 2001 WL 262662 (S.D.N.Y. 2001)................. 15 People v. Benevento, 91 N.Y.2d 708 (1998)..................... 21 People v. Caban, 5 N.Y.3d 143 (2005)...................... 22, 26 People v. Contes, 60 N.Y.2d 620 (1983)........................ 13 People v. Flores, 84 N.Y.2d 184 (1994)........................ 22 People v. Gray, 86 N.Y.2d 10 (1995)........................... 23 People v. Henry,95 N.Y.2d 563 (2000).......................... 21 People v. Hobot, 84 N.Y.2d 1021 (1995)........................ 22 People v. Leyva, 38 N.Y.2d 160 (1975)..................... passim People v. Nesbitt, 20 N.Y.3d 1080 (2013).................. 21, 25 People v. Oliverio Galindo, 101 A.D.3d 408 (1st Dep’t 2012)................................................... 1, 11-12 People v. Rodriguez, 68 N.Y.2d 674 (1986) ................ 20, 23 People v. Rosano, 50 N.Y.2d 1013 (1980)....................... 16 People v. Schulz, 4 N.Y.3d 521 (2005)......................... 13 People v. Stultz, 2 N.Y.3d 277 (2004)......................... 21 People v. Turner, 10 A.D.3d 458 (2004)........................ 22 Strickland v. Washington, 466 U.S. 668 (1984)............. 21, 26 Sullivan v. Louisiana, 508 U.S. 275 (1993).................... 14 iii Statutes 8 U.S.C. § 1182(a)(2).......................................... 2 C.P.L. § 70.10(1)............................................. 13 N.Y. Const., art. I, § 6.................................. passim P.L. § 265.03(1)(b)..................................... 1, 3, 13 P.L. § 265.03(3)........................................ 1, 4, 12 P.L. § 265.15(4).......................................... passim U.S. Const., Amend. XIV................................... passim U.S. Const., Amend. VI................................. 3, 20, 21 iv COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : OLIVERIO GALINDO, : Defendant-Appellant. : ----------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, granted on April 5, 2013, this appeal is taken from an order of the Appellate Division, First Department, People v. Oliverio Galindo, 101 A.D.3d 408 (1st Dep’t 2012). That order, entered December 4, 2012, affirmed with1 opinion a judgment of the Supreme Court, New York County. Such judgment, rendered October 25, 2011, convicted appellant, Oliverio Galindo, after a jury trial, of two counts of criminal possession of a weapon in the second degree (P.L. § 265.03(1)(b), (3)), and sentenced him to concurrent terms of four years’ imprisonment to be followed by three years’ post-release supervision (Konviser, J., at hearing, trial and sentence). The Order Granting Leave to Appeal is reprinted in the1 Appendix at A.2. Citations to the Appendix are in parentheses preceded by “A.” 1 The issues herein were preserved for appellate review by defense counsel’s motion to dismiss on the grounds that the prosecutor’s evidence was legally insufficient as a matter of law to establish that Mr. Galindo intended to use the weapon unlawfully against another (A. 178-81). Mr. Galindo’s motion to assign Robert S. Dean as counsel on appeal was granted by this Court on May 2, 2013. No motion for a stay of execution of sentence has been made. Mr. Galindo has completed his sentence of incarceration and was released into ICE custody on February 21, 2013. Thereafter, on March 1, 2013, Mr. Galindo was deported to Mexico. On May 16, 2013, the prosecution2 moved to dismiss Mr. Galindo’s appeal due to his deportation and absence from the jurisdiction. On September 10, 2013, this Court denied the prosecution’s motion. Although Mr. Galindo was involuntarily deported, relief in2 this case could impact Mr. Galindo’s future attempts to seek reentry into the United States. See 8 U.S.C. § 1182(a)(2). 2 QUESTIONS PRESENTED 1. Whether the verdict convicting Mr. Galindo of second-degree possession of a weapon with unlawful intent was legally insufficient where intent could only be established through the permissive presumption of Penal Law § 265.15(4) and was rebutted by the prosecution’s own evidence and theory of an “accidental” shooting. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6. 2. Whether Mr. Galindo was denied effective assistance of counsel when trial counsel failed to move for dismissal as to the other top count of the indictment, possession of a weapon outside of home and place of business, on the only viable and obvious legal argument: that the prosecution failed to prove one of the elements of the offense – Mr. Galindo’s possession of the gun outside of his home. U.S. Const., Amends. VI, XIV; N.Y. Const., art. I, § 6. STATUTES INVOLVED P.L. § 265.15(4) The possession by any person of any dagger, dirk, stiletto, dangerous knife, or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. SUMMARY OF ARGUMENT Mr. Galindo was charged with and convicted of two different counts of possession of a weapon in the second degree. Under count one, he was charged with possession of a firearm with the intent to use it unlawfully against another in violation of Penal Law § 265.03(1)(b). Under count two, he was charged with possession of 3 a firearm outside of his “home and place of business” in violation of Penal Law § 265.03(3). As to the second-degree possession of a weapon with unlawful intent (count one), Mr. Galindo challenges the jury’s verdict as legally insufficient in light of the prosecution’s theory at trial and the lack of evidence. The jury’s verdict was premised entirely upon the unlawful intent presumption of Penal Law § 265.15(4), as the only evidence the prosecution proffered as to Mr. Galindo’s intent was that his discharge of the weapon was “accidental.” That evidence, coupled with the fact that no other evidence of unlawful intent was offered, firmly rebutted the presumption. Indeed, it cannot be said that there was even a “rational connection” between the prosecution’s evidence and the statutory presumption. People v. Leyva, 38 N.Y.2d 160 (1975). The Appellate Division thus erred when it found the verdict based upon the statutory presumption to be legally sufficient. Unlike count one, defense counsel failed to preserve the only available legal argument as to count two, possession of a weapon outside of home and place of business: that the prosecution presented no evidence that Mr. Galindo possessed the gun outside of his home. Although the two charges were both the top counts and shared the same penalty, defense counsel failed to assert the only viable and obvious legal argument. No witnesses observed Mr. Galindo in possession of a weapon, nor was there any testimony as 4 to the location of the shooting, except that it did not occur inside the bar. Indeed, the only evidence the prosecution presented was that Mr. Galindo possessed the gun outside of his place of business, the Broome Street Bar. As there existed no strategic basis for failing to make this obvious argument, which prejudiced Mr. Galindo, Mr. Galindo was deprived of his right to effective assistance of counsel. STATEMENT OF FACTS Introduction Appellant Oliverio Galindo, a husband and father of two children, had worked as a salad chef at the Broome Street Bar for six years to support his family before he was charged with two counts of possession of a weapon in the second degree. With no prior felonies or misdemeanors on his record, it was alleged that Mr. Galindo accidentally shot his cousin and friend, Augustine Castaneda, in the hip outside of his home and place of business and with the intent to use the weapon unlawfully against another. No testifying witness observed the alleged incident and Mr. Castaneda did not testify at trial. No weapon was recovered, nor were video recordings introduced supporting the prosecution’s theory. There was no evidence that Mr. Galindo had possessed the weapon prior to, or after, the incident in question. The evidence was simply that 5 Mr. Galindo brought his cousin to the hospital with a gunshot wound and later told a friend the gun had accidentally discharged. People’s Evidence In 2003, Appellant Oliverio Galindo was hired by Luis Flores, a manager at the Broome Street Bar, to begin work as a dishwasher. (A. 141). During the course of Mr. Galindo’s many years of employment, he and Mr. Flores developed a friendship (A. 142). In addition to advising and mentoring Mr. Galindo, Mr. Flores came to know Mr. Galindo’s wife and two children (A. 153-54). After a few years of working at the bar, Mr. Flores promoted Mr. Galindo to the position of salad chef (A. 141-42). Later on, in 2008, Mr. Flores hired Mr. Galindo’s cousin, Augustine Castaneda, as a dishwasher per Mr. Galindo’s recommendation (A. 143). On September 20, 2009, Mr. Galindo was working the late shift, from 6:30 PM until 1:00 AM (A. 66). During Mr. Galindo’s shift, Mr. Castaneda arrived at the bar at around 10:30 or 11:00 PM to wait for his cousin, Mr. Galindo, to finish work (A. 54-55). As he waited, Mr. Castaneda sat at the bar drinking alcohol for the next two and a half to three hours until the bar closed (A. 68, 154-55). Mr. Galindo and Mr. Castaneda left the bar at 1:00 AM with their co-workers, Erin Darke and Michael Hunt (A. 57). As Ms. Darke and Mr. Hunt left for the nearest subway station, Mr. Galindo and Mr. Castaneda remained on the corner of West Broadway and 6 Broome Street (A. 57, 66). Ms. Darke was the last person to see the two cousins together and did not observe either Mr. Galindo or Mr. Castaneda with a gun (A. 68). Later that night, Mr. Galindo brought Mr. Castaneda to the Bellevue Hospital emergency room (A. 47; People’s Exhibit 1, Bellevue Hospital Surveillance Video). Mr. Castaneda had sustained a gunshot wound to his hip (People’s Exhibit 7, Medical Record). No witness testified as to having seen either party from 1:00 AM until their arrival at Bellevue hospital at 1:19 AM. Mr. Castaneda was not called by the prosecution as a witness at Mr. Galindo’s trial (A. 167). After daybreak, Mr. Galindo worked Mr. Castaneda’s early shift at the Broome Street Bar (A. 144). When Mr. Flores arrived at work to find Mr. Galindo working Mr. Castaneda’s shift, Mr. Galindo allegedly admitted that “he was showing the gun to [Mr. Castaneda] and while he was showing the gun . . . it just went off as an accident” when they were “outside” of the bar. (A. 144, 146-47). Detective Laureano Rivera arrived at the bar and spoke with Mr. Flores regarding Mr. Galindo’s whereabouts (A. 90, 117, 158- 59). Mr. Flores lied to the detectives and told them that he had not seen Mr. Galindo (A. 159-60). When Mr. Galindo learned that the detectives were at the bar hoping to speak with him, he approached the detectives, who ultimately placed him under arrest (A. 91, 160). 7 Motion for Trial Order of Dismissal After the prosecution rested, defense counsel made a motion to dismiss arguing that the prosecution’s evidence was legally insufficient as to both counts of the indictment (A. 178). More specifically, defense counsel argued that since “[t]he People’s theory is he accidentally shot someone, . . . there’s no intent to use the firearm” and, thus, “[t]hat count should be dismissed.” (Id.). Additionally, defense counsel argued that “count two should be dismissed as well.” (Id.). Counsel cited the fact that “no one saw [Mr. Galindo], nobody testified that they saw him in possession of a loaded firearm.” (Id.). Further, defense counsel noted “the prosecution is relying on circumstantial evidence as to his possession of that weapon . . . in that early morning hour[], and, as well as a statement allegedly made by [Mr. Galindo] to Mr. Flores.” (A. 179). Defense counsel, however, never argued that the prosecution failed to prove that Mr. Galindo possessed the weapon outside of his home. The court denied defense counsel’s motion and found that “view[ing] the evidence in the light most favorable to the People . . . I do believe there is a prima facie case with respect to both counts” (A. 180-81). At the end of the entire case, defense counsel “renew[ed] [his] motion, in light of the fact that all 8 evidence is in at this time,” which the court denied for the same reasons (A. 181). During summation, defense counsel highlighted the lack of evidence against Mr. Galindo (A. 212-13). Specifically, counsel noted that no weapon was recovered and that the prosecution never brought their only witness, Mr. Castaneda, in to testify despite knowing where he was working at the time of trial (A. 223). Moreover, counsel focused his summation on the credibility of Mr. Flores arguing that Mr. Flores “lie[d] to the police” and “was very deceitful” (A. 219). Jury Charge In charging the jury as to count one of the indictment, the trial court instructed the jury of the presumption of unlawful intent: Under our law, the possession by any person of any loaded firearm is presumptive evident (sic) of intent to use the same unlawfully against another. What that means is that if the People have proven beyond a reasonable doubt that the defendant possessed a loaded firearm, then you may, but not required to, infer from the fact that he did so with the intent to use the same unlawfully against another. (A. 266). As to count two of the indictment, the court instructed the jury on the home or place of business exception (A. 267). The jury convicted Mr. Galindo of the two top counts of possession of a weapon in the second degree (A. 291-95). 9 Sentencing Mr. Galindo is an undocumented Mexican citizen, who maintained employment at the Broome Street Bar for the past six years, working five days a week as the sole financial provider of his family (A. 141-42, 156-57; Pre-Sentence Report (“PSR”) at 1, 3). Mr. Galindo has had no other contacts with the criminal justice system (PSR at 2-3). At the October 25, 2010 sentencing proceeding, defense counsel requested the minimum sentence of three and a half years’ imprisonment (A. 301-02). Counsel told the court how he had the opportunity to get to know Mr. Galindo’s wife and their two children and that with an immigration hold against him, Mr. Galindo “will be forced to leave this country and his wife and children which is probably a greater penalty than the sentence to be imposed in this situation.” (A. 300). Additionally, counsel noted that “the victim was not hurt. It was a superficial wound which did not even require . . . overnight treatment.” (A. 301). Moreover, counsel highlighted that “the victim elected not to testify in this case” and “apparently wasn’t interested enough to appear” in court (Id.). The court imposed a prison sentence of four years’ imprisonment to be followed by three years’ post-release supervision (A. 303). 10 Appellate Division Decision On appeal to the Appellate Division, First Department, Mr. Galindo argued that the verdict convicting him of second-degree possession of a weapon must be set aside as to both counts. Specifically, Mr. Galindo argued that where the prosecution presented “no evidence showing that [he] possessed the intent to use the gun unlawfully against another,” the prosecution could not meet its burden of proving unlawful intent by relying solely on the permissive presumption of Penal Law § 265.15(4). The First Department affirmed, finding that there was legally sufficient evidence to support the conviction requiring proof of unlawful intent: [T]he circumstances of defendant’s possession of a loaded firearm, viewed in light of the statutory presumption of unlawful intent (Penal Law § 265.15[4]), provided legally sufficient evidence of defendant’s intent to use a weapon unlawfully against another. Evidence that defendant’s shooting of his cousin was accidental did not warrant a different conclusion, since the People were not required to prove that defendant specifically intended to use the weapon against any particular person. People v. Galindo,101 A.D.3d 408 (1st Dep’t 2012) reprinted at A. 3. In response to Mr. Galindo’s challenge to the legal insufficiency of the conviction for possessing a gun outside of his home and place of business, the court also affirmed: 11 With regard to the conviction under Penal Law § 265.03(3), defendant failed to preserve his claim that the evidence was insufficient to establish possession outside defendant’s home or place of business, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits, because the only reasonable interpretation of a portion of defendant’s admission to a friend was that the shooting took place outdoors. People v. Galindo,101 A.D.3d 408 (1st Dep’t 2012) reprinted at A. 3. ARGUMENT POINT I THE VERDICT CONVICTING MR. GALINDO OF SECOND- DEGREE POSSESSION OF A WEAPON WITH UNLAWFUL INTENT WAS LEGALLY INSUFFICIENT WHERE INTENT COULD ONLY BE ESTABLISHED THROUGH THE PERMISSIVE PRESUMPTION OF PENAL LAW § 265.15(4) AND WAS REBUTTED BY THE PROSECUTION’S OWN EVIDENCE AND THEORY OF AN “ACCIDENTAL” SHOOTING. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6. Mr. Galindo was charged with two counts of criminal possession of a weapon in the second degree; one count required proof of intent to use it unlawfully against another. The prosecution presented no evidence, however, that Mr. Galindo intended to use the gun unlawfully against anyone, including the victim. In fact, the prosecution’s own theory – that Mr. Galindo accidentally shot his cousin while inspecting the gun – undermined their claim that he sought to use the gun unlawfully. Moreover, there was no evidence that Mr. Galindo possessed the weapon prior to, or after, 12 the time of this incident. As such, the conviction was legally insufficient and, therefore, must be reversed. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; Jackson v. Virginia, 443 U.S. 307 (1979). Legally sufficient evidence is “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof.” C.P.L. § 70.10(1); see also Jackson v. Virginia, 443 U.S. 307 (1979); People v. Contes, 60 N.Y.2d 620, 621 (1983). The standard for legal sufficiency of evidence is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt.” People v. Schulz, 4 N.Y.3d 521, 529 (2005) (quoting Jackson, 443 U.S. at 319). In this case, the People proffered no evidence showing that Mr. Galindo possessed the intent to use the gun unlawfully against another. Penal Law § 265.03(1) states that “[a] person is guilty of criminal possession of a weapon in the second degree when: (1) with the intent to use the same unlawfully against another, such person: . . . (b) possesses a loaded firearm.” Under Penal Law § 15.05, a defendant possesses the culpable mental state of intent if his “conscious objective is to cause such result or to engage in such conduct,” that is, here, to use the gun unlawfully against another. 13 No evidence was adduced that Mr. Galindo’s conscious objective was to use the gun against anyone. In fact, the only evidence of Mr. Galindo’s possession of the gun came from his post-hoc admission to having accidentally shot his cousin and friend. The evidence showed that there was no animosity between Mr. Galindo and Mr. Castaneda to support the presumption of intent. Nor did the prosecution dispute the fact that Mr. Castaneda and Mr. Galindo were not only family, but friends, as displayed through Mr. Galindo’s assistance in finding Mr. Castaneda work at the Broome Street Bar, escorting him to the hospital, and then working his shift the next day. Significantly, the prosecution never argued that Mr. Galindo intended to use the weapon unlawfully against Mr. Castaneda or anyone else. Rather, the prosecution’s theory of the case was that Mr. Galindo accidentally shot Mr. Castaneda, which, without more, is legally insufficient to establish the intent element of second-degree weapon possession. With no evidence of an intent to use the gun unlawfully, the prosecution’s entire case rested on a permissive presumption which, standing alone, could not sustain its burden. See Sullivan v. Louisiana, 508 U.S. 275 (1993) (“When a jury is instructed to presume malice from predicate facts, it must still find the existence of those facts beyond a reasonable doubt.”). Penal Law § 265.15(4) creates a presumption that possession of a weapon inferred intent of use: “The possession by any person of . . . any 14 other weapon, . . . designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.” That presumption, however, “is evidentiary and rebuttable, whether by defendant’s own testimony or by any other evidence in the case,” and cannot relieve the prosecution’s burden of proof as to that element of the offense. See People v. Leyva, 38 N.Y.2d 160, 167 (1975); see also Lind v. Artuz, 2001 WL 262662 (S.D.N.Y. 2001) (“But this [permissive] presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.”); In re Raquel M., 99 N.Y.2d 92 (2002) (“A permissive presumption is one that allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof.”). Although a permissible inference does not automatically satisfy the requirement of legal sufficiency, it can improperly “affect[] the application of the ‘beyond a reasonable doubt’ standard.” Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 157 (1979). If a permissive presumption is offered and “there is no rational way the trier could make the connection permitted by the inference,” then there is a “risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual 15 determination.” Id.; see Leyva, 38 N.Y.2d at 167. Thus, in analyzing a permissive presumption, a court must ensure “that there is ample evidence in the record other than the presumption to support a conviction.” Allen, 442 U.S. at 159 (emphasis added); see also People v. Rosano, 50 N.Y.2d 1013 (1980) (finding that “the prosecution was not relieved of its duty to prove defendant’s guilt beyond a reasonable doubt” in relying upon a statutory presumption). Here, the presumption of intent was firmly rebutted by the People’s own evidence. The prosecution’s theory of the case – that Mr. Galindo accidentally shot his cousin – contradicted the inference of unlawful intent as to Mr. Castaneda. Indeed, that was the only evidence proffered purporting to demonstrate Mr. Galindo’s intent, or the lack thereof. Without any evidence as to Mr. Galindo’s intent to use the weapon unlawfully against another person, the prosecution relied solely on the presumption to convict. However, the presumption, without any evidence of intent, could not sustain the prosecution’s burden of proving that Mr. Galindo intended to use the weapon unlawfully against another beyond a reasonable doubt. The Appellate Division’s decision affirming the legal sufficiency of the evidence solely on the basis of the statutory presumption stands in direct contravention of the Supreme Court’s decision in Allen. See Cnty. Ct. of Ulster Cnty. v. Allen, 442 16 U.S. 140 (1979). In Allen, the Supreme Court required that “ample evidence in the record other than the presumption” be proffered at trial to support a conviction relying on a permissive presumption. Allen, 442 U.S. at 159 (emphasis added). As the Court further explained, a permissive presumption cannot be “the sole and sufficient basis for a finding of guilt.” Id. at 167. In Mr. Galindo’s case, however, the unlawful intent presumption was the “sole and sufficient basis for a finding of guilt” as there was no evidence of Mr. Galindo’s unlawful intent. Id. The First Department thus erred when it only examined the evidence “in light of the statutory presumption of unlawful intent” without determining whether there was “ample evidence . . . other than the presumption” proving Mr. Galindo’s unlawful intent beyond a reasonable doubt (A. 3). Allen, 442 U.S. at 159. As there was no rational connection between the facts of Mr. Galindo’s case and the unlawful intent presumption, the jury’s reliance on the presumption improperly “affect[ed] the application of the ‘beyond a reasonable doubt’ standard.” Allen, 442 U.S. at 157. In addition to the prosecution’s failure to present evidence of Mr. Galindo’s intent, the prosecution similarly failed to prove that Mr. Galindo possessed the weapon at any point other than when it accidentally fired. Outside of that moment, the jury was left to speculate as to whether Mr. Galindo in fact possessed the weapon, as there was no evidence establishing such possession. In 17 fact, numerous plausible scenarios could account for Mr. Galindo’s possession of the weapon for only that specific instant, without any further possession. For example, it is very likely that Mr. Castaneda, who had left the bar for a few hours then came back to meet Mr. Galindo, returned with the gun, which accidentally discharged as Mr. Galindo handled it. Another possible scenario is that Mr. Galindo discovered the gun on the street, and retrieved it to “show” Mr. Castaneda, when it accidentally discharged (A. 147). These alternative scenarios, which the evidence of possession failed to exclude, support that the prosecution did not meet its burden of proving the predicate fact of Mr. Galindo’s possession outside the instance of discharge. Indeed, the prosecution was required to prove the predicate fact of Mr. Galindo’s possession beyond a reasonable doubt to permit the jury to presume unlawful intent. See Carella v. California, 491 U.S. 263, 266 (1989) (concluding that a jury must find the existence of facts to support a permissive presumption beyond a reasonable doubt). Since there was no evidence proving beyond a reasonable doubt that Mr. Galindo possessed the weapon outside of the shooting, the presumption could not be applied to any time other than the moment of discharge. * * * * This issue was fully preserved for this Court’s review through defense counsel’s motion for a trial order dismissal at the end of the prosecution’s case and the court’s denial of his motion (A. 18 174-75, 176-77). Trial counsel specifically objected that the proof of intent was insufficient: “The People’s theory is he accidentally shot someone, so there’s no intent to use the firearm as to count one. That should be dismissed.” (A. 174). The trial judge made a clear ruling when, in response to defense counsel’s motion, she stated, “I do believe there is a prima facie case” and denied the motion (A. 177). Notably, the First Department determined that this issue was preserved for appellate review (A. 3-4). When looking at the trial evidence, it is clear that the prosecution did not meet its burden of proving that Mr. Galindo possessed a firearm with the intent to use it unlawfully against another. The prosecution improperly relied solely upon the presumption to prove Mr. Galindo’s unlawful intent. Moreover, the prosecution’s own evidence and theory of the case – that Mr. Galindo accidentally shot Mr. Castaneda – firmly rebutted the notion that Mr. Galindo possessed any unlawful intent, and the prosecution presented no proof at all, let alone beyond a reasonable doubt, that Mr. Galindo possessed the gun at any other moment in time. Accordingly, the judgment of conviction should be reversed and the indictment dismissed as to count one. 19 POINT II MR. GALINDO WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO MOVE FOR DISMISSAL AS TO THE OTHER TOP COUNT OF THE INDICTMENT, POSSESSION OF A WEAPON OUTSIDE OF HOME AND PLACE OF BUSINESS, ON THE ONLY VIABLE AND OBVIOUS LEGAL ARGUMENT: THAT THE PROSECUTION FAILED TO PROVE ONE OF THE ELEMENTS OF THE OFFENSE – MR. GALINDO’S POSSESSION OF THE GUN OUTSIDE OF HIS HOME. U.S. CONST., AMENDS. VI, XIV; N.Y. CONST., ART. I, § 6. Defense counsel failed to make the only legal argument available in defense of the count of the indictment alleging that Mr. Galindo possessed a weapon outside of his home and place of business: that the prosecution failed to meet its prima facie burden when it did not introduce any evidence proving that Mr. Galindo possessed the gun outside of his home. A simple review of the elements of the charge would have prepared counsel to lodge that defense. Despite case law addressing this exact issue, counsel unreasonably erred when he failed to make that obvious legal argument. See People v. Rodriguez, 68 N.Y.2d 674 (1986), rev'g on dissenting op. below, 113 A.D.2d 337 (2d Dep’t 1985). Mr. Galindo was greatly prejudiced by counsel’s error as it would have resulted in a trial order dismissal of this count or, at a minimum, preserved the argument for dismissal on appeal. In light of counsel’s error and the prejudice it caused, Mr. Galindo was deprived of his right to effective assistance of counsel under both the Federal and State constitutions. See U.S. Const., Amends. VI, 20 XIV; N.Y. Const., art. I, § 6; Strickland v. Washington, 466 U.S. 668 (1984); People v. Benevento, 91 N.Y.2d 708 (1998). The Federal and New York State Constitutions provide criminal defendants with the right to the effective assistance of counsel. U.S. Const., Amends. VI, XIV; N.Y. Const., art. I, § 6. The federal standard requires a two-pronged showing: (1) counsel’s performance fell short of “prevailing professional norms,” and (2) said deficiencies prejudiced defendant. See Strickland, 466 U.S. at 687–88. In contrast, New York’s standard for effective assistance of counsel “has long been whether the defendant was afforded ‘meaningful representation.’” People v. Henry, 95 N.Y.2d 563, 565 (2000) (quoting Benevento, 91 N.Y.2d at 712). In determining whether counsel provided “meaningful representation,” a court must consider various factors, focusing on the “fairness of the proceedings as a whole.” People v. Stultz, 2 N.Y.3d 277, 284 (2004). A “showing of prejudice,” while a “significant” factor in this determination, is not essential. Id. Of critical importance is whether defense counsel abandoned a viable line of argument that likely would have resulted in a different outcome, in which case the representation may have been ineffective as a matter of law. See People v. Nesbitt, 20 N.Y.3d 1080 (2013). The benchmark for counsel’s performance is not whether the strategy was successful but whether it was objectively reasonable and legitimate under the circumstances and given the evidence presented. See Benevento, 91 21 N.Y.2d at 712–13. Under either standard, however, “a single error,” if “sufficiently egregious,” can render counsel’s otherwise competent representation ineffective. People v. Caban, 5 N.Y.3d 143, 152 (2005) (citing People v. Hobot, 84 N.Y.2d 1021, 1022 (1995) and People v. Flores, 84 N.Y.2d 184, 188 (1994)). Although a new trial is the usual remedy in effective assistance of counsel claims, it is not the remedy in situations where the prejudice caused by counsel’s error would have resulted in dismissal. See People v. Turner, 10 A.D.3d 458 (2004), aff’d 5 N.Y.3d 476 (2005) (dismissing the indictment rather than remitting the matter for a new trial in an ineffective assistance of counsel claim where, but for counsel’s error, the case would have been dismissed). Indeed, in those scenarios, the only remedy to cure the prejudice caused to the defendant is dismissal. See id. Here, defense counsel failed to make the only legal argument available to challenge count two: that the prosecution failed to present any evidence that Mr. Galindo possessed the gun outside of his home. Although the prosecution bore the burden of proving that Mr. Galindo possessed the gun outside of his home or place of business, the prosecution neglected to present any evidence proving that Mr. Galindo’s possession took place outside of his home. Rather, the prosecution’s only evidence as to the location of the shooting was that it occurred outside of Mr. Galindo’s place of business. 22 In his motion to dismiss, counsel could have successfully argued that the prosecution had not met its burden of proving Mr. Galindo possessed the weapon outside of his home and cited to this Court’s decision in People v. Rodriguez, 68 N.Y.2d 674 (1986), rev'g on dissenting op. below, 113 A.D.2d 337 (2d Dep’t 1985) to support this argument. In Rodriguez, the defendant was found with a weapon in a laundromat; however, no evidence was introduced by the prosecution to show that the laundromat was not his place of business. Id. at 339, 348. The Court reversed the conviction and held that “[s]ince it is the People’s obligation to plead and prove as an element of the crime that the possession did not take place in the defendant’s [home and] place of business . . . this fact [cannot] be presumed if no evidence to the contrary is provided.” Id. at 344. Despite the clear Rodriguez precedent, defense counsel failed to make this legal argument and, instead, cited generally to the lack of evidence in this case when arguing on behalf of dismissal of the count. It is well-settled, however, that “even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be ‘specifically directed’ at the alleged error.” People v. Gray, 86 N.Y.2d 10, 19 (1995) (noting that the “preservation mandate is not new.”). Thus, counsel was required to “specifically” challenge the prosecution’s lack of evidence as to this statutory element, rather than make 23 general, broad-sweeping assertions. Surely, defense counsel had no reasonable strategic basis for failing to make this basic argument. Indeed, counsel lodged a specific objection on the element of intent under Penal Law § 265.15(4). As a result of his error, defense counsel was forced to make similarly unsuccessful arguments during summation. For example, counsel argued that Mr. Flores, a long-time friend and mentor of Mr. Galindo who expressed remorse in testifying against him, was an incredible witness and his testimony should not be credited. Mr. Flores’ credibility, however, had no bearing on the issue of whether Mr. Galindo possessed the gun outside of his home since Mr. Flores’ testimony only established that the possession of the weapon occurred outside of Mr. Galindo’s place of business (A. 146- 47). Thus, counsel’s error forced him to focus his argument solely on the credibility of witnesses – a defense doomed to fail – when a challenge to the basic elements of the charged offense – namely whether Mr. Galindo possessed the weapon outside of his home – would have prevailed. Defense counsel’s failure to present a reasonable and available defense to the possession of a weapon outside of home and place of business charge was error without any strategic basis. Here, the second-degree possession of a weapon outside of his home charge was – a class C violent felony offense – just as the second- degree possession of a weapon with unlawful intent charge, and 24 risked the same sentence – a determinate term from three and a half to 15 years. Thus, defense counsel could not have been strategically trying to avoid a top count conviction by focusing his efforts on the unlawful intent charge. Instead, he was effectively litigating only one of two top charges while virtually ignoring the charge that was equally serious and that carried the same sentencing exposure as the other count. See People v. Nesbitt, 20 N.Y.3d 1080 (2013). Even though New York courts do not require a finding of prejudice, it is clear that Mr. Galindo did suffer irreparable harm from this oversight. Had counsel made this basic legal argument in his motion to dismiss, count two of the indictment would have been dismissed. The prosecution offered no evidence as to the location of the shooting and did not even proffer evidence as to Mr. Galindo’s home address at the time of the offense. Without the minimal evidence of Mr. Galindo’s home address, the evidence was legally insufficient to prove that Mr. Galindo possessed the weapon outside of his home, since Mr. Galindo could well have returned home during the nineteen-minute time frame, between 1:00 AM and 1:19 AM. Further, without any evidence of the actual location of the shooting, other than the fact that it did not occur inside the bar, the prosecution could not meet its burden of proof. Despite these gaping holes in the evidence as to the location of the shooting, defense counsel essentially conceded that the prosecution 25 proved that Mr. Galindo possessed the gun outside of his home by foregoing any challenge on this ground. Counsel's "error [was] sufficiently egregious and prejudicial as to compromise [the] defendant's right to a fair trial." People v. Caban, 5 N.Y.3d 143, 152 (2005). Moreover, there was more than a "a reasonable probability that, but for counsel's unprofessional error[], the result of the proceeding would have been different." Strickland, 466 u.s. at 694. Mr. Galindo's judgment of conviction should be reversed and count two of the indictment dismissed. CONCLUSION FOR THE REASONS STATED IN POINT ONE, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED AS TO COUNT ONE. FOR THE REASONS STATED IN POINT TWO, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED AS TO COUNT TWO. f Counsel November 6, 2013 Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation 26