The People, Respondent,v.Oliverio Galindo, Appellant.

Brief

N.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. REPLY BRIEF FOR DEFENDANT-APPELLANT MARISA K. CABRERA Of Counsel January 17, 2014 RobertS. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 7 4 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 ARGUMENT 1 POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT MR. GALINDO'S CONVICTION WHERE MR. GALINDO'S UNLAWFUL INTENT WAS IMPROPERLY ESTABLISHED ONLY THROUGH THE PERMISSIVE PRESUMPTION. . . . . . . . . . . . . . . . . . . . . 1 POINT II CONCLUSION RESPONDENT'S BELATED RELIANCE UPON EVIDENCE NEVER INTRODUCED AT TRIAL TO NOW PROVE THAT THE SHOOTING OCCURRED OUTSIDE OF MR. GALINDO'S HOME DEMONSTRATES THE SEVERE GAP IN THE PROSECUTION'S TRIAL EVIDENCE AND COUNSEL'S INEFFECTIVENESS IN FAILING TO MOVE TO DISMISS ON THIS GROUND. . 7 11 i TABLE OF AUTHORITIES Cases Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140 (1979) . 5, 6, 7 People v. Lemmons, 40 N.Y.2d 505 (1976) ....................... 6 People v. Leyva, 38 N.Y.2d 160 (1975) ...................... 5, 6 Sullivan v. Louisiana, 508 U.S. 275 (1993) .................... 4 Secondary Sources Joyce Cohen, If You're Thinking of Living In/Kips Bay; Cohesive, With a Relaxed Ambiance, N.Y. Times, Apr. 11, 1999, http://www.nytimes.com/1999/04/11/realestate/if-you-re-thinking-o f-living-in-kips-bay-cohesive-with-a-relaxed-ambiance.html?pagewa nted=all&src=pm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 N. Huntley Holland & Harvey H. Chamberlin, Statutory Criminal Presumptions: Proof Beyond a Reasonable Doubt?,, 7 Val. U. L. Rev. 148-67 (1973) ............................................ 6 ii 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 This brief is submitted in reply to Respondent's Brief ("RB") filed on January 2, 2014. ARGUMENT POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT MR. GALINDO'S CONVICTION WHERE MR. GALINDO'S UNLAWFUL INTENT WAS IMPROPERLY ESTABLISHED ONLY THROUGH THE PERMISSIVE PRESUMPTION. Respondent concedes that Mr. Galindo harbored no intent to use the weapon unlawfully against his cousin, Mr. Castaneda, as he was shot "accidentally." (RB at 15). Thus, respondent's only claim is that Mr. Galindo intended to use the weapon unlawfully against another unidentified person. To support this theory, respondent does not explain why Mr. Galindo, a hard-working father of two children without any prior arrests or contacts with the law, would 1 suddenly come to possess a firearm with the specific intent of using it unlawfully against another person. Nor, as respondent concedes, could the prosecution hypothesize as to against whom Mr. Galindo intended to use the weapon (RB at 16) . In a failed attempt to muster evidence demonstrating Mr. Galindo's unlawful intent, respondent summarizes and confronts the lack of evidence in its case in the penultimate paragraph of Point I (RB at 29). Specifically, respondent contends that it met its burden of proving Mr. Galindo's unlawful intent beyond a reasonable doubt because the evidence demonstrated that Mr. Galindo possessed the weapon at the time of the accidental shooting, "show[ed]" the gun to Mr. Castaneda, "dump[ed]" the gun in a trash can, and did not want Mr. Castaneda to testify at trial ( Id.) . This paltry evidence, however, in no way demonstrated Mr. Galindo's intent to use the weapon unlawfully against another person. To the extent that we can even assume that Mr. Flores' own translation of Mr. Galindo's statements to him in Spanish were accurate (A. 67), that Mr. Galindo "showed" the gun and "dumped" it in the garbage do not support an inference of unlawful intent - quite the contrary in fact. That the gun accidentally discharged in the course of the display rebuts that Mr. Galindo's "showing" the gun to Mr. Castaneda established an unlawful intent. It supports instead that he likely discovered it on the street and was completely unfamiliar with its operation. After all, if Mr. 2 Galindo had been "showing" the weapon to, as respondent audaciously speculates, "employ [] some imminent criminal venture" with his cousin, it is likely that he would have understood how to handle the weapon and would have avoided such accidents (RB at 14) . Respondent contends, however, that this is not a plausible scenario because Mr. Galindo, an undocumented person with no legal background or English-speaking ability, should have known that he "would have faced no real criminal liability" and, thus, would have called the police (RB at 18). That argument ignores the practical realities of being an undocumented person in the United States with the interest of avoiding police interaction at all costs - a task that Mr. Galindo had accomplished until the instant arrest. Similarly, respondent argues that the fact that Mr. Galindo "dumped" the weapon in a trash can demonstrates his unlawful intent. On the contrary, Mr. Galindo's disposal of the weapon is important in demonstrating his lack of unlawful intent. Once the weapon accidentally discharged, Mr. Galindo only intended to bring Mr. Castaneda to the hospital and to dispose of the weapon. Indeed, Mr. Galindo's undisputed actions demonstrate that he possessed no unlawful intent to use the weapon against anyone at the moment of discharge and thereafter. Confronted with a dearth of any actual evidence, respondent uses the innocuous words of "show" and "dump" in a failed attempt to prove Mr. Galindo's intent to commit and "cover up his obvious crime." (RB at 18). 3 Additionally, respondent contends that Mr. Galindo's possession of the weapon at the moment of the accidental discharge, coupled with the fact that Mr. Galindo understandably did not want Mr. Castaneda to testify against him at trial, was sufficient to demonstrate unlawful intent. To support this claim, respondent quips that "people do not generally obtain loaded firearms as fashion accessories," but entirely ignores the glaring fact that there was no evidence demonstrating that Mr. Galindo possessed the weapon any time prior to its discharge (RB at 13). Without any evidence of possession of the weapon prior to discharge, the presumption should not even apply, see Sullivan v. Louisiana, 508 U.S. 275 (1993), let alone operate as proof of any intent to use the gun unlawfully. 1 Throughout its brief, respondent misstates Mr. Galindo's position. For example, respondent claims that Mr. Galindo improperly placed a burden upon the prosecution to prove that he "intended to use the gun unlawfully against Castaneda." (RB at 14) (emphasis added). Mr. Galindo made it clear throughout his brief, however, that the prosecution was required to prove that he intended to use the weapon "unlawfully against another." (DB at Respondent contends that the timing issue is unpreserved for this court's review. However, that argument directly addresses whether Mr. Galindo possessed the requisite intent and was, therefore, fully preserved by defense counsel's motion for dismissal on the grounds that the prosecution failed to prove the element of "intent to use the firearm" (A. 178). Albeit unnecessarily, defense counsel further elaborated that there was no evidence of Mr. Galindo's possession of the weapon (A. 178-79). 4 12-13, 15-16, 19). To support his position, Mr. Galindo noted that the prosecution could not contend that his intention was to use the weapon unlawfully against Mr. Castaneda since their own theory at trial, that Mr. Galindo "accidentally" shot Mr. Castaneda, controverted any showing of unlawful intent as to Mr. Castaneda. In other words, although the prosecution failed to prove that Mr. Galindo intended to use the weapon unlawfully against anyone, they certainly could not claim that his intention was to use it against Mr. Castaneda. Finally, respondent concedes that it cannot meet its burden of proof by relying only upon statute (RB at 23, 28). Citing People v. Leyva, 38 N.Y.2d 160 (1975), respondent acknowledges that the presumption can only serve as "'part of the support for the prosecution's prima facie case.'" ( RB at 2 3) (emphasis added) . Similarly, respondent cites to Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140 (1979) to again note that a presumption cannot be the "sole and sufficient basis for a finding of guilt." (RB at 28) . Apart from this well-settled legal principle, respondent's lengthy recitation of the facts and law in Leyva, Allen, and a host of other cases serves only as a distraction since Mr. Galindo does not contest the issuance of the presumption. Rather, Mr. Galindo's claim is that the presumption improperly served as the sole basis for proving unlawful intent. Indeed, none of the cases respondent cites involve sufficiency challenges to the evidence on the basis 5 of a presumption. See Allen, 442 U.S. 140 (determining whether P.L. § 265.15(3) violated defendant's due process rights); People v. Lemmons, 40 N.Y.2d 505 (1976) (finding that the presumption was properly submitted to the jury); Leyva, 38 N.Y.2d 160 (same). To the extent that these cases are applicable here, they demonstrate the caution courts must exercise in issuing presumptions since their improper admission can "affect the application of the 'beyond a reasonable doubt' standard." Allen, 442 U.S. at 157; Leyva, 38 N.Y.2d at 166. That concern has equal application here. In light of the dearth of evidence, it is evident that the presumption affected the jury's application of the "beyond a reasonable doubt" standard, as there was no other evidence of Mr. Galindo's unlawful intent. See generally N. Huntley Holland & Harvey H. Chamberlin, Statutory Criminal Presumptions: Proof Beyond a Reasonable Doubt?, 7 Val. U. L. Rev. 148-67, 166 (1973) (analyzing the effect of presumptions to conclude that, where there is a lack of evidence, permissive presumptions trench and "modif [y]" the presumption of innocence "to a presumption of guilt, and proof beyond a reasonable doubt is modified to the requirement that the accused raise a reasonable doubt."). Notably, throughout trial, the prosecution could not even concoct a theory as to why Mr. Galindo possessed the weapon, nor was there any evidence of Mr. Galindo's possession of the weapon prior to the accidental shooting. Since the only evidence 6 of intent was Mr. Galindo's accidental shooting of his cousin and his possession thereafter was only to dispose of the weapon, it is clear that the presumption was the sole and, therefore, insufficient basis for a finding of guilt. See Allen, 442 U.S. at 167. As such, Mr. Galindo's judgment of conviction must be reversed and the indictment dismissed as to count one. POINT II RESPONDENT'S BELATED RELIANCE UPON EVIDENCE NEVER INTRODUCED AT TRIAL TO NOW PROVE THAT THE SHOOTING OCCURRED OUTSIDE OF MR. GALINDO'S HOME DEMONSTRATES THE SEVERE GAP IN THE PROSECUTION'S TRIAL EVIDENCE AND COUNSEL'S INEFFECTIVENESS IN FAILING TO MOVE TO DISMISS ON THIS GROUND. Respondent concedes that there was no video recording or witness to the accidental shooting of Mr. Castaneda. Moreover, respondent does not dispute that there was no evidence of Mr. Galindo's home address presented at trial. Thus, respondent's arguments as to why defense counsel did not make a motion to dismiss on the grounds that the prosecution did not prove the shooting occurred outside of Mr. Galindo's home are based on speculative assumptions, the improper addition of evidence never introduced at trial, and a mischaracterization of testimony. Respondent contends that Mr. Flores' testimony that Mr. Galindo informed him that the shooting occurred "outside" of the Broome Street Bar was proof that it did not occur within his home 7 (RB at 31). Respondent also argues that because Mr. Galindo is presumably of a lower socioeconomic class, he could not live in the neighborhood of the bar because it is comprised of "'expensive' residential lofts and, thus, not likely to be inhabited by [a] restaurant worker supporting a wife and two children." (RB at 32). As a result of this "evidence," respondent contends that defense counsel reasonably chose not to challenge that gap in the prosecution's case as to this element of the charge and move to dismiss the shared top count on that ground. First and foremost, the jury was never provided with any evidence as to the actual location of the shooting - that it occurred on the street or anywhere else. All Mr. Flores' testimony established was that it did not occur inside the bar. Respondent can only inject that fact on appeal by putting before this Court Detective Rivera's suppression hearing testimony- which included facts never introduced at trial - in a belated attempt to prove the actual location of the shooting (RB at 39). That improper tactic only serves to expose the lack of evidence at trial. Indeed, a review of the trial record demonstrates that Mr. Flores' testimony was offered only to establish that the shooting did not occur within Mr. Galindo's place of business. At trial, the prosecutor admitted that he was concerned that "the jury would think that this may have happened inside of the bar, and that certainly the defendant possessed the gun inside of the bar." (A. 185). 8 Therefore, the prosecutor spent time during Mr. Flores' direct examination to establish that employees are not "authorized to possess a gun for any reason whatsoever.u (A. 140). Although respondent repeatedly claims that it is unreasonable to believe that Mr. Galindo lived in the area of the Broome Street Bar due to respondent's assumptions about Mr. Galindo's income, respondent entirely ignores the likelihood that Mr. Galindo lived near Bellevue Hospital, which, as respondent concedes, is 30 blocks away and in a very different neighborhood than the bar (RB at 32). See Joyce Cohen, If You're Thinking of Living In/Kips Bay; Cohesive, With a Relaxed Ambiance, N.Y. Times, Apr. 11, 1999, http://www.nytimes.com/1999/04/11/realestate/if-you-re-thinking-o f-living-in-kips-bay-cohesive-with-a-relaxed-ambiance.html?pagewa nted=all&src=pm (noting that the area of Bellevue Hospital, also known as Kips Bay, is occupied by a "large population of homeless peopleu and has subsidized housing complexes with "low- and moderate-income rental[s] .u) Moreover, respondent's inappropriate addition of the Pre- Sentence Report ("PSRu), a document that was neither introduced nor even created at the time of trial, to support the position that Mr. Galindo possessed the weapon outside of his home due to the listed Queens address is improper. The inclusion of the PSR, and the suppression hearing minutes, belies respondent's contention that they met their burden of proving Mr. Galindo's possession of the 9 weapon outside of the home at trial and highlights the need for additional evidence to meet their burden. In claiming to have met its burden, respondent cites to the fact that "the presentencing report prepared by the New York City Department of Probation indicates that defendant lived in Queens" and assumes that this is "a fact of which defense counsel was undoubtedly aware." (RB at 39). At no point, however, did the prosecution introduce any evidence at trial of Mr. Galindo's address, nor is the PSR even reliable evidence of Mr. Galindo's address at the time of the offense. Indeed, it is certainly possible that after Mr. Galindo's September 2009 arrest in the instant offense, his family, for which he was the sole financial provider, moved to a different address or with extended family due to the financial toll of Mr. Galindo's arrest. Notably, the PSR was completed over a year later. See PSR (dated October 21, 2010). Further, to suggest that defense counsel was "undoubtedly aware" of Mr. Galindo's address at the time of trial is speculative and, again, outside of the appellate record (RB at 39). Since counsel failed to make the only viable legal argument available to Mr. Galindo in requesting dismissal of count two of the indictment without any strategic basis, Mr. Galindo was deprived of effective assistance of counsel. Accordingly for the reasons detailed above and in Mr. Galindo's original brief, the 10 judgment of conviction should be reversed and the indictment dismissed as to count two. CONCLUSION FOR THE REASONS SET FORTH IN POINT I AND IN THE ORIGINAL BRIEF, MR. GALINDO'S JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED AS TO COUNT ONE. FOR THE REASONS STATED IN POINT II AND IN THE ORIGINAL BRIEF, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED AS TO COUNT TWO. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation 11