The People, Respondent,v.Christopher Oathout, Appellant.BriefN.Y.March 21, 2013To Be Argued By: Time Requested: STEVEN M. SHARP Ten (10) minutes COURT OF APPEALS STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHRISTOPHER OATHOUT Defendant-Appellant. _______________ ________________________________________________________________________ RESPONDENTâS BRIEF ________________________________________________________________________ P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANYCOUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK12207 TEL. (518) 487-5460 STEVEN M. SHARP DATE COMPLETED: Of Counsel NOVEMBER 1, 2012 ___________________________________________________________________________________________ i TABLE OF CONTENTS Page TABLE OF CONTENTS (APPENDIX) ..................................................................................... ii TABLE OF AUTHORITIES ...................................................................................................... iii PRELIMINARY STATEMENT ................................................................................................. 1 STATEMENT OF FACTS .......................................................................................................... 2 ARGUMENT ............................................................................................................................... 7 I. DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL .................. 7 A. Failure to Object During the Trial Prosecutorâs Summation did not Deprive Defendant of his Right to Effective Assistance of Counsel ..................................... 9 B. Failure to Object to Uncharged Crime Evidence did not Deprive Defendant of his Right to Effective Assistance of Counsel ...................................................... 15 C. Defense Counselâs Failure to Object was not so Egregious as to Deprive Defendant of a Fair Trial ......................................................................................... 18 D. The Peopleâs Pretrial Motion Regarding Defense Counselâs Representation Means Nothing .......................................................................................................... 20 CONCLUSION ........................................................................................................................... 23 ii TABLE OF CONTENTS (APPENDIX) DESCRIPTION Page(s) Sandoval Excerpt ..................................................................................................................... RA 1 Peopleâs Opening Statement .................................................................................................... RA 7 Defendantâs Opening Statement .............................................................................................. RA 8 Testimony of Asher................................................................................................................. RA 13 Testimony of Grogan .............................................................................................................. RA 18 Testimony of Sikirica .............................................................................................................. RA 31 Testimony of Ham .................................................................................................................. RA 35 Testimony of Nelson ............................................................................................................... RA 41 Testimony of Lugo .................................................................................................................. RA 47 Testimony of Reyes ................................................................................................................ RA 72 Testimony of OâHanlon .......................................................................................................... RA 75 Testimony of Reuter ............................................................................................................... RA 82 Testimony of Gazeley ............................................................................................................. RA 85 Defendantâs Summation.......................................................................................................... RA 92 Peopleâs Summation ............................................................................................................. RA 124 Jury Charge ........................................................................................................................... RA 127 Verdict................................................................................................................................... RA 133 Sentencing ............................................................................................................................. RA 135 Defendantâs Motion .............................................................................................................. RA 136 iii TABLE OF AUTHORITIES CASES Page(s) FEDERAL CASES Florez v United States, 2009 WL 2228121 [EDNY 2009] .....................................................................................13 Strickland v Washington, 466 US 668 [1984] ..............................................................................................................7 United States v Newton, 369 F3d 659 [2d Cir 2004] ................................................................................................13 United States v Perez, 144 F3d 204 [2d Cir 1998] ................................................................................................13 NEW YORK CASES People v Aiken, 45 NY2d 394 [1978] ...........................................................................................................8 People v Angelakos, 70 NY2d 670 [1987] ...........................................................................................................8 People v Ashwal, 39 NY2d 105 [1976] .........................................................................................................10 People v Baldi, 54 NY2d 137 [1981] .......................................................................................................7, 8 People v Benevento, 91 NY2d 708 [1998] .................................................................................................7, 8, 18 People v Berg, 59 NY2d 294 [1983] .........................................................................................................13 People v Brown, 45 NY2d 853 [1978] ...........................................................................................................9 People v Claudio, 83 NY2d 76 [1993] .............................................................................................................7 People v Felder, 47 NY2d 287 [1979] ...........................................................................................................7 iv TABLE OF AUTHORITIES (Cont.) CASES Page(s) People v Ferguson, 82 NY2d 837 [1993] .........................................................................................................14 People v Fisher, 18 NY3d 964 [2012] ...........................................................................................................9 People v Flores, 84 NY2d 184 [1994] .......................................................................................................8, 9 People v Galloway, 54 NY2d 396 [1981] .........................................................................................................10 People v Gonzalez, 194 AD2d 436 [1st Dept 1993] .........................................................................................12 People v Henry, 95 NY2d 563 [2000] ...........................................................................................................8 People v Hernandez, 91 AD2d 227 [1st Dept 1983] ...........................................................................................12 People v Hobot, 84 NY2d 1021 [1995] ...................................................................................................7, 18 People v Knowles, 88 NY2d 763 [1996] .........................................................................................................21 People v Llanos, 13 AD3d 76 [1st Dept 2004] .............................................................................................18 People v Love, 307 AD2d 528 [3d Dept 2003] ...........................................................................................7 People v Lovello, 1 NY2d 436 [1956] ...........................................................................................................10 People v Modica, 64 NY2d 828 [1985] ...........................................................................................................8 People v Myers, 220 AD2d 461 [2d Dept 1995] .........................................................................................22 v TABLE OF AUTHORITIES (Cont.) CASES Page(s) People v Puglisi, 44 NY2d 748 [1978] .........................................................................................................10 People v Rivera, 71 NY2d 705 [1988] ...........................................................................................................8 People v Salsbery, 78 AD2d 1624 [4th Dept 2010] ........................................................................................18 1 PRELIMINARY STATEMENT By permission of the Honorable Judge Eugene F. Pigott, Jr., Associate Judge of the New York Court of Appeals, granted May 18, 2012, Christopher Oathout appeals from an order of the Appellate Division, Third Department, entered December 29, 2011, which affirmed a judgment of the County Court of the State of New York, Albany County (Breslin, J.), rendered April 25, 2008, convicting him of Murder in the Second Degree (Penal Law § 125.25[1]), upon a jury verdict, and sentencing him to an indeterminate prison term of twenty-five years (25) to life. Defendant is currently incarcerated pursuant to this judgment of conviction. 2 STATEMENT OF FACTS In January of 2007, an Albany County Grand Jury handed up a one-count indictment charging defendant, Christopher Oathout, with one count of Murder in the Second Degree, in violation of Section 125.25[1] of the Penal Law of the State of New York, a Class A-I Felony (A 9). This charge stems from an incident wherein defendant caused the death of Robert Taylor, the victim, by choking him and stabbing him in the chest (A 9). The Murder In October of 2006, Oswaida Lugo lived with her friend, Ernie Nelson at 142 State Street; defendant also lived with Nelson during this time period (RA 47). In addition to living with Lugo and Nelson, defendant would purchase crack cocaine for the three of them to smoke (RA 48). Since defendant was unemployed, he would âtrickâ â exchange sex for money â to purchase crack cocaine (A 40). On or about October 8, 2006, Lugo and defendant wanted to smoke crack cocaine, but they did not have money to purchase the cocaine (A 40, RA 49). Defendant asked Lugo if she was willing to make some money and explained that they could earn money if they had sex in front of the victim (RA 45, 49). Lugo agreed to have sex with defendant in front of the victim in exchange for money (RA 49). That night, defendant and Lugo went to the seventh floor of the apartment building at 142 State Street (A 40, RA 49). The victim opened the door, allowing Lugo and defendant to enter his apartment (RA 49). Defendant and the victim went into the bathroom together and eventually returned to the living room between five and ten minutes later (RA 49, 60). Defendant handed Lugo a twenty dollar bill and told her âDonât worry about it. You donât have to do nothingâ (RA 49-50). 3 After he handed her the twenty dollar bill, defendant began to argue with the victim over how much money he was supposed to receive (RA 50). The argument became heated and defendant punched the victim in the side of his head (RA 51). The victim screamed and defendant grabbed the victim around the neck (RA 51). Lugo tried to stop him and asked why he was doing this; defendant told her âHeâs making me do itâ (RA 57). When the victim retreated to the couch, defendant grabbed a knife from his back and stabbed the victim several times, using a downward stabbing motion (RA 43-44, 52-53). After he stabbed the victim several times, defendant told Lugo to âGo down the hall. Buy a 20 and go downstairs and wait for meâ (RA 52). Lugo went across the hall and bought a â20 pieceâ of crack cocaine and returned home to smoke the cocaine with Nelson (RA 54). Discovery of the Victim On October 8, 2006, Officer Glenn Asher was on patrol in downtown Albany when he responded to an EMS call for police assistance at apartment 724, 142 State Street (RA 13-14). Asher entered the apartment and discovered the victim lying on a couch (RA 15-16). The victim was dead (RA 17). Police Canvass Detective John Grogan assisted in a canvass of the building at 142 State Street (RA 18- 19). He, along with other officers, went door to door, spoke to anyone who was home and asked if they knew the victim and if they had any information about the murder that occurred (RA 19). During one such encounter, Grogan was told that the victim frequently paid for sex from prostitutes and he was instructed to visit Nelsonâs apartment on the third floor (RA 20). Based on this information, Grogan went to Nelsonâs apartment with Detectives McNally and OâNeil (RA 19). Nelson answered the door and invited the detectives into the apartment 4 (RA 21, 41). When McNallyâs attempt to wake defendant was unsuccessful, Grogan shook defendant, causing him to wake up (RA 21, 41). After giving defendant time to gain his composure, Grogan asked defendant for his name and his date of birth (RA 21). Defendant told Grogan that his name was Christopher McQueen (RA 22, 42, 87). Grogan called the detective office to check for any warrants for a âChristopher McQueenâ and was informed that no such warrants existed (RA 22). Grogan asked defendant if he knew who the victim was and if he had any information about the murder (RA 22). Defendant denied knowing who the victim was and told Grogan that he had never been in the victimâs apartment (RA 22). Instead, defendant claimed that he had watched football on Sunday and slept in Nelsonâs apartment that night (RA 22). The detectives left Nelsonâs apartment and continued the canvass (RA 23). Eventually, the detectives were in the lobby of the apartment building when Grogan saw defendant again (RA 23). Grogan asked defendant where he was going and defendant responded âIâm getting out of here. Iâm going back to Watervlietâ (RA 23). Following the canvass, Grogan obtained the apartment log book for Nelsonâs apartment (RA 24). While reviewing the log book, Grogan observed that a Christopher Oathout had signed in, but the name Christopher McQueen did not appear in the log book (RA 24). Grogan checked with the detective office to see if any warrants existed for a âChristopher Oathoutâ and there was a warrant for his arrest (RA 24). Once Grogan discovered that defendant had given him a false name and that there was a warrant out for his arrest, he sent two detectives to defendantâs last known address in Watervliet (RA 25). Though no one answered the door, the downstairs neighbor told the detectives that defendant had recently departed (RA 25). 5 Defendantâs Admission to His Friend After defendant left Nelsonâs apartment, he called George Ham, his roommate (A 36, RA 35, 89). Defendant wanted to go for a ride with Ham and they ended up in Lake George (RA 35, 89). Later that evening, they stopped for dinner at a Red Lobster in Glens Falls (RA 36, 89). During dinner, defendant borrowed Hamâs cell phone to make a phone call outside (RA 36). When he returned to the table, defendant was crying (RA 36). Defendant told Ham that he had to leave town because he was going to be blamed for a murder (RA 37-39). Ham drove defendant to a bus station in Saratoga, where defendant got on a bus headed for New York City (RA 37, 90). Defendantâs Interview Defendant was subsequently arrested by detectives in New York City and transported to the Albany County Jail based on the outstanding warrant (RA 26-27). After defendant had completed his time in jail, Grogan and Detective OâHanlon went to visit defendant (RA 27). Grogan and OâHanlon met defendant outside of the Albany County Jail upon defendantâs release (RA 27, 75). They introduced themselves and asked if defendant would be willing to accompany them to the detective office to answer a few questions (RA 27). Defendant agreed to go to the detective office and got into the police vehicle; defendant was not handcuffed (RA 27, 76). Once they arrived at the office, defendant was directed to an interview room and Grogan read defendant his Miranda warnings (RA 27, 383). Defendant indicated that he understood the warnings and that he was willing to speak with Grogan without counsel being present (RA 28). Defendant apologized for lying about his name and claimed that he gave a fake name because he knew there was a warrant out for his arrest and he did not want to go to jail (RA 28, 77). While defendant continued to deny that he knew the victim, after further questioning, 6 defendant stated he had been in the victimâs apartment in the past and that he may have used the victimâs phone previously (RA 28, 77). Defendantâs Admission in Jail Daniel Reuter met defendant in prison, where defendant was being referred to as âKiller Chrisâ (RA 82). Reuter asked defendant why people were referring to him as âKiller Chrisâ and defendant told Reuter that he killed an older man with a knife in an apartment (RA 82, 84). Defendant elaborated and told Reuter that he was smoking crack and he and his girlfriend planned to do sexual favors for a man in exchange for money (RA 82). Defendant explained that the older man did not give him enough money and he âsnappedâ (RA 82-83). Defendant told Reuter that he stabbed the older man five or six times (RA 83). Victimâs Autopsy The victim sustained injuries around his right ear and had a total of seven stab wounds to the chest (RA 31, 33). The majority of the stab wounds penetrated the victimâs internal organs, including the aorta, the pulmonary artery and both lungs (RA 32). In addition, Dr. Sikirica observed injuries consistent with strangulation: âthere was evidence of traumatic injury to the neck, with hemorrhage around the neck, and a small fracture of a portion of the thyroid cartilageâ (RA 32-33). The cause of death was hemorrhage due to perforations of the aorta, pulmonary artery, heart and lungs, due to multiple stab wounds of the chest (RA 34). Verdict and Sentencing After deliberations, the jury reached a unanimous verdict and convicted defendant of murder in the second degree (RA 133-34). Defendant was sentenced to 25 years to life for his conviction of murder in the second degree (RA 135). 7 POINT I DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL Defendant claims that he was denied the effective assistance of counsel. Specifically, defendant argues that defense counselâs failure to object during the prosecutorâs summation and defense counselâs failure to object to various Molineux evidence, deprived defendant of the right to effective assistance of counsel. None of these supposed failings rise to the level of ineffective assistance of counsel. Both the federal and state constitutions guarantee a criminal defendant the right to counsel (see US Const amend I; NY Const Art I, § 6), which has been described as â[a]n âessential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial contextââ (see People v Benevento, 91 NY2d 708, 711 [1998] quoting People v Felder, 47 NY2d 287, 295 [1979]). Under both the federal and state constitutions, the right to the effective assistance of counsel is recognized âânot for its own sake, but because of the effect it has on the ability of the accused to receive a fair trialâ in an adversarial system of justiceâ (see Benevento, 91 NY2d at 711 quoting People v Claudio, 83 NY2d 76, 80 [1993]; Strickland v Washington, 466 US 668, 686 [1984]). Recognizing, however, that there is no âprecise definition of what constitutes ineffective legal representation,â this Court has adopted a âflexible standardâ to assess whether or not a defendant has received âmeaningful representationâ (see People v Hobot, 84 NY2d 1021, 1022 [1995]; Benevento, 91 NY2d at 712). Under New York law, the constitutional requirement of effective assistance of trial counsel is satisfied when ââthe evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representationââ (see Benevento, 91 NY2d at 712 quoting People v Baldi, 54 NY2d 137 [1981]). The term âmeaningful representationâ includes a 8 prejudice component which âfocuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the caseâ (see People v Henry, 95 NY2d 563, 566 [2000]). Thus, under this approach, an alleged error must be viewed in the context of the trial as a whole, with the result that what may constitute error in one case, need not constitute error in another (see People v Flores, 84 NY2d 184, 188 [1994]; People v Aiken, 45 NY2d 394, 398 [1978]). In order to prevail on an ineffective assistance of trial counsel claim, a defendant bears the âwell-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representationâ (see Hobot, 84 NY2d at 1022). To satisfy this burden, the defendant must âdemonstrate the absence of strategic or other legitimate explanationsâ for trial counselâs allegedly deficient conduct (see People v Rivera, 71 NY2d 705, 709 [1988]). In applying this test, âcounselâs efforts should not be second guessed with the clarity of hindsight to determine how the defense might have been more effectiveâ (see Benevento, 91 NY2d at 712). For â[i]t is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy . . . [b]ut trial tactics which terminate unsuccessfully do not automatically indicate ineffectivenessâ (see Baldi, 54 NY 2d at 146). Instead, counselâs performance must be objectively evaluated to determine whether the tactics and strategies were consistent with those of a âreasonably competent attorneyâ (see People v Angelakos, 70 NY2d 670, 674 [1987]). Stated simply, the test is âreasonable competence, not perfect representationâ (see People v Modica, 64 NY2d 828, 829 [1985]). For that reason, trial counsel is not ineffective when he does not pursue a course of action that is meritless or unlikely to succeed because such decisions not to engage in meritless conduct plainly reflects upon counselâs competence and provides a âlegitimate explanationâ for the omitted conduct (see People v Love, 307 AD2d 528, 533 [3d Dept 2003]). 9 Lastly, even where trial counselâs conduct is found to be deficient, in order for the âerrorâ in counselâs representation to rise to the level of ineffectiveness, it must be âso serious that defendant did not receive a âfair trialââ (see Flores, 84 NY2d at 188-89). A. Failure to Object During the Trial Prosecutorâs Summation did not Deprive Defendant of his Right to Effective Assistance of Counsel Recently, this Court held that a defense counselâs failure to object to a prosecutorâs improper remarks during summation rose to the level of ineffective assistance of counsel, prompting the dissent to assert that this Court has ânever, so far as I know, done such a thing before, and I hope it will be long before we do it againâ (see People v Fisher, 18 NY3d 964, 968 [2012][Smith, J., dissenting]). Defendant now asks this Court to do it again â to hold that the failure to object during the trial prosecutorâs summation amounts to ineffective assistance of counsel. Reaching unpreserved arguments directed at a prosecutorâs summation, under the guise of an ineffective assistance of counsel claim, is a troubling development and one that should be reserved for the most egregious remarks that â by themselves â deprive a defendant of his right to a fair trial. According to defendant, the trial prosecutorâs summation contained improper argument, to which his counsel failed to object (Defendantâs Brief at 28). 1 Specifically, defendant argues that counsel should have objected to âtwo egregious comments:â one comment allegedly vouched for the credibility of a witness and the other comment allegedly encouraged the jury to infer guilt based on facts not in evidence (Defendantâs Brief at 28-29). In evaluating a defense counselâs decision of whether to object to a prosecutorâs remarks during summation, the principles governing the propriety of those remarks should be borne in 1 To the extent that counselâs decisions not to object to certain of the trial prosecutorâs remarks was or could have been a matter of trial strategy, defendantâs claims should be brought in a Criminal Procedure Law Section 440.10 motion (see People v Brown, 45 NY2d 852, 853-54 [1978]). 10 mind. This Court has always recognized that there are âbroad bounds of rhetorical comment permissible in closing argument,â particularly when such comments made by the prosecutor are in response to defense counselâs comments during summation (see People v Galloway, 54 NY2d 396, 399 [1981]). While counsel âmust stay within âthe four corners of the evidenceââ in summation (see People v Ashwal, 39 NY2d 105, 109 [1976]), where a trial âturns . . . on issues of credibility,â a âjust determinationâ by the jury depends on âthe clash of competing contentions advanced under well-established rules by zealous and independent opposing counselâ (see Galloway, 54 NY2d at 938). Given these factors, set out by this Court, it is clear that defense counsel was not ineffective for choosing not to object to comments that were made in response to his own summation and were simply aggressive â albeit permissible â advocacy by the prosecutor. Trial Prosecutor did not Vouch for the Credibility of his Witnesses Initially, defendant contends that counsel unjustifiably failed to object to the trial prosecutorâs assertion that Oswaida Lugo was credible because she was a police informant and the police will not âdeal with people whose credibility wonât stand up laterâ (A 52; Defendantâs Brief at 28). Defense counselâs decision not to object was not ineffective because there is no merit to the underlying charge of prosecutorial misconduct. The trial prosecutorâs remarks, particularly when considered in context, were responsive to defense counselâs summation. An attorney may not âmak[e] himself an unsworn witnessâ by âsupporting his case by his ownâ or anyone elseâs âveracity and positionâ (see People v Lovello, 1 NY2d 436, 439 [1956]). Thus, a prosecutor may not vouch for the credibility of his witnesses (see People v Puglisi, 44 NY2d 748, 750 [1978]). The defense attorney argued forcefully that Oswaida Lugoâs history of providing 11 information to the police and working as a confidential informant was a stain on her credibility (RA 104-05, 109-11, 113, 119-20, 123). Defense counsel vociferously cross-examined Lugo regarding her work as an informant (RA 61-71). Indeed, defense counsel told the jury that they could not trust the word of a confidential informant because âshe will say anything for anybodyâ (RA 113). Defense counsel suggested that Lugo had âzero credibilityâ due to her past work as an informant, asserting that: Oswaida Lugo, her testimony speaks for itself. I donât have to tell you ten times or hit you over the head what a confidential informant is. All I can tell you is Miss Lugo sat on that chair. And I read the body language and I hope you did, too. She was so proud and arrogant of the fact that she turned on everybody. She wore a wire, I donât know, I think 50 times. The police gave her money. She would buy drugs, get it from her friends. She would be wearing a wire and help the prosecution (RA 104-05). I think she seriously is demented but also that she thinks she is a police officer . . . She has ratted out everybody (RA 105). But then out of the blue, I donât even know how it came up, he said, you know, right after they found Mr. Taylorâs body one of the police officers came up to him and said, âDo you mind if Oswaida Lugo continues to stay with you and live with you?â I donât know what that means, but itâs not good. The police wanted right from the time they found that body to have Oswaida Lugo living in that building, hanging out in that building, to find out information to give them. Thatâs what that means (RA 108-09). Ernie Nelson was asked by the police if Oswaida Lugo could live with him on October 9. Why would the police want Oswaida Lugo to live with him? Why? Because she was an informant. She was a snitch. Thatâs her right. Thatâs her life. All of a sudden, a month and a half, two months later, now she becomes the number 1 eyewitness to the murder. Is that a coincidence or does that show all along that Oswaida Lugo would hopefully get some and when they couldnât solve the crime she would say she saw it? And what she saw was so unreliable. You could hear Oswaida Lugo. She says whatever she has to say thatâs in her own best interests at all times (RA 110). She has been in jail. They know where she is. They can transport her. She wore a wonderful suit, but I think you all know it is what it is. She testified and she will say anything for anybody. And she wants to say no one promised her anything, no one gave her anything. Are you kidding? Her income taxes probably say confidential informant (RA 113). 12 Oswaida Lugo, you heard her testify. She would make a drug buy. And she would tell you she was a solid citizen. She always gave the money to the police and took the 50 or 100 that they gave her. Never took the drugs that they gave her. She would never do that. You heard her. She testified for the police department and sheriffâs department. You also heard that she has been doing this since 1992. She was proud of the fact that she has ratted on all these people that supply her with crack. She is actually really proud of that (RA 119). Look, someone confessed, even though she is an unreliable crackhead, informant, prostitute and heroin user (RA 120). I am going to end where I began, with Oswaida Lugo, a person that I will say had a very poor grip on reality. And I am going to try to say that politely. It is her credibility, and her credibility does not exist. It does not exist. I have to just keep saying it over and over, because it does not exist. You heard her and you saw her. She wanted you to believe her. It is going to be, somehow, some sort of notch in her belt, like all those over 50 or 60 wires that she wore for the Albany Police Department and the Albany County Sheriffs. And you know why she said what she said. She was squeezed and she was mad at Chris (RA 123). In response, the trial prosecutor said: And Mr. Aretakis went to great lengths about how she has been an informant for the Albany Police and Albany County Sheriffâs Department and earlier this year she was still doing buys for the Albany Sheriffâs Department. We are not trying to hide all that. Guess what? I submit that shows she is credible, because if she wasnât credible to those detectives that are using her, do you think they would still be using her to do drug buys? Absolutely not. They donât deal with people whose credibility wonât stand up later (RA 125-26). The trial prosecutor appropriately responded that, if Lugo was stealing the drugs she was purchasing as part of a âbuyâ operation or if Lugo was providing bad information, the police would no longer employ her as a confidential informant. Defense counselâs comments regarding Lugoâs status as a police informant invited this reply. The trial prosecutor prefaced his remark with the phrase âI submit,â indicating that the comment was merely a suggestion as to how the jury could evaluate the evidence (see People v Gonzalez, 194 AD2d 436 [1st Dept 1993]; People v Hernandez, 91 AD2d 227, 230 [1st Dept 1983]). Indeed, it is âgenerally acceptable for the prosecution to avoid the concerns raised by 13 improperly vouching by prefacing its arguments with âI submitââ (see Florez v United States, 2009 WL 2228121 [EDNY 2009] citing United States v Newton, 369 F3d 659, 681-82 [2d Cir 2004]; see also United States v Perez, 144 F3d 204, 210 [2d Cir 1998]). In this case, the trial prosecutor employed the language âI submitâ to urge the jury to reach certain conclusions based on the evidence, without impermissibly interjecting into the proceeding his personal beliefs. Moreover, any possible prejudice from the trial prosecutorâs responsive remarks was corrected by the judgeâs charge to the jury, telling them that they were the only ones to determine the credibility of witnesses (RA 127-30). Thus, any potential error from counselâs decision not to object was averted (see People v Berg, 59 NY2d 294, 299-300 [1983]). References to Defendantâs Left-Handedness did not Warrant an Objection Defendant maintains that his counsel was ineffective for failing to preserve his claim that it was inappropriate for the trial prosecutor to refer, in his summation, to defendantâs use of his left-hand to write notes throughout the trial (Defendantâs Brief at 28-29). Considering the trial prosecutorâs remarks directly conflicted with the testimony of Lugo, defense counsel made the strategic and tactical decision to remain silent, believing that the prosecutorâs remarks would undermine his own credibility and that of the Peopleâs case. Given the presence of a strategic and tactical explanation for defense counselâs failure to object, defendant was not deprived of âmeaningful representationâ nor was the omitted objection so serious as to deprive defendant of a fair trial. In summation, the trial prosecutor opined: Now, here is the photo in evidence, Peopleâs 5. You can see the blood from his right ear and there is blood over his right eye. And I donât know if you noticed during this trial, but Mr. Christopher Oathout is left-handed, because he has been taking notes. He has been writing with his left hand. I submit to you that if you are standing in front of somebody, a left-handed person is going to come with their strong hand and hit him right there in the ear and the eye (A 53). 14 This remark directly conflicts with the testimony of Lugo, the only witness to the murder, that defendant used his right hand to beat and stab the victim (RA 58-59). Initially, the People note â though not raised in defendantâs brief â that this Court has previously held that remarks during summation regarding a defendantâs handedness without a formal demonstration is an improper reference to facts not in evidence (see People v Ferguson, 82 NY2d 837 [1993]). There, this Court held such remarks were improper, but affirmed the conviction based on the curative instructions directing the jurors to disregard the comments of the prosecutor (see Ferguson, 82 NY2d at 837). In this case, defense counsel did not object to the trial prosecutorâs remark, depriving County Court of the opportunity to issue prompt curative instructions. Though the trial prosecutor was making an argument that conflicted with the testimony of the only eyewitness to the murder, defendant claims that his counsel was ineffective for failing to lodge an objection. Why would defense counsel object? After all, the trial prosecutor was making an exculpatory argument for the defense. Had the jury believed the prosecutorâs argument, then the jury would have rejected the eyewitness testimony of Lugo. On the other hand, had the jury believed Lugoâs testimony that defendant used his right hand to punch and kill the victim, then the prosecutorâs remarks only served to undermine the credibility of his arguments in the eyes of the jury. Moreover, the objection that could have been lodged â arguing facts not in evidence â would have been resolved with a general instruction that the juryâs recollection controls, which the jury heard during the final charge (RA 131-32). 2 But perhaps counsel determined, from his observation of the juryâs reaction to the trial prosecutorâs comments, that such an objection was unnecessary. 2 Even the trial prosecutor provided the jury with a prescient instruction on whose recollection controls (RA 124). 15 Under the circumstances of this case, where counselâs strategy, if successful, would substantially benefit the defense, but would be merely inconsequential if unsuccessful, his decision not object to the prosecutorâs remark constituted a legitimate trial strategy and, as such, did not amount to the egregious error required to sustain a finding of ineffective assistance. Moreover, even if counselâs strategic decision can be characterized as error, it did not prejudice the defense in any respect, and certainly did not deprive defendant of a fair trial, because, at worst, the prosecutorâs remark was irrelevant â not harmful â to defendantâs case, and, thus, defendant was no worse off than if an objection had been made. B. Failure to Object to Uncharged Crime Evidence did not Deprive Defendant of his Right to Effective Assistance of Counsel Although County Court did rule that Lugo could testify as to why she went with defendant to the victimâs apartment on the night of the murder and that defendant had sex with the victim to earn money to purchase cocaine, defendant alleges that he was denied a fair trial when the People elicited general testimony regarding defendantâs history of using crack cocaine. Since no objection was raised to the admission of this evidence, defendant argues that the failure to object to this evidence deprived him of his right to effective assistance of counsel, which denied him a fair trial. While the People agree that the admission of this evidence should have been considered at a hearing prior to trial, the failure to object to its admission does not rise to the level of ineffective assistance nor did its admission deprive him of a fair trial. At trial, the Peopleâs prosecutorial theory was that Lugo and defendant were in the victimâs apartment to engage in sexual acts to obtain money to procure crack cocaine and a dispute over payment led to the victimâs death. In furtherance of that theory, the Peopleâs pretrial Molineux proffer sought to permit the testimony of Lugo who was prepared to testify as to why she and defendant were in the victimâs apartment that day. To justify the introduction of 16 such evidence, the People alleged that it was admissible because it was inextricably interwoven with the charged murder in that it provided necessary background information to explain why Lugo and defendant were in the victimâs apartment (RA 1). Defense counsel argued that the admission of such evidence was not relevant and that its prejudice outweighed any probative value (RA 1). County Court ultimately determined that the probative value of that testimony outweighed its potential for prejudice and permitted Lugo to testify as to why she went with defendant to the victimâs apartment and, while there, defendant had sex with the victim to earn money to buy cocaine (RA 2). 3 In addition to the permitted testimony, defendant claims that defense counsel failed to lodge an objection to a few instances where testimony exceeded the Molineux proffer (Defendantâs Brief at 26-27 [âAgain, defense counsel never objected to it. Any of it. Never.â]). Defense counsel, however, did object in some instances (RA 72-73). In other instances, defense counsel did not object (A 32, 35-37, 40). Defense counsel did not object to the remark by the prosecutor in his opening statement, that Lugo and defendant did crack cocaine together and to get money to buy more cocaine, they decided to perform a sexual act in front of the victim, because it did not exceed what the People were permitted to elicit during the trial (A 32, RA 7). Counselâs failure to object in other instances is understandable in light of the defense strategy to concede defendantâs involvement in lesser incidents, but deny his role in the stabbing and murder of the victim. The strategy of conceding defendantâs commission of lesser crimes was clear from the beginning of the case. For example, defendant told the members of the Grand Jury that he âdid do drugs with the girl thatâs testifying against me in this Grand Juryâ (RA 85). At the pre-trial 3 Defendant does not quarrel with County Courtâs decision to permit testimony that defendant had sex with the victim for money to purchase cocaine on the night of the murder because these actions were inextricably interwoven with the charged crime. 17 stage, defense counsel notified the court and the People that he planned to elicit testimony that there were outstanding warrants issued for defendant at the time of the murder to explain why defendant provided the police a false name and fled the area (RA 3-4). County Court told defense counsel that if he did so, testimony regarding the crimes that the warrants were issued for, could be elicited (RA 4-5). Defense counsel knew that at least one of the warrants was for criminal possession of a controlled substance in the seventh degree (RA 6). In the opening statement for the defense, defense counsel told the jury that they would hear that defendant had several outstanding warrants, which was why he gave a false name to the police and went to New York City (RA 8). Throughout the trial, defense counsel continued to follow the strategy of eliciting testimony regarding the outstanding warrants and attempting to elicit testimony regarding the subject of the warrants (RA 29-30, 39-40, 46, 56, 74, 78-79, 81). These questions culminated in testimony that the outstanding warrants were for two charges of criminal possession of a controlled substance in the seventh degree, minor drug charges (RA 80). Not only did defense counsel elicit testimony about defendantâs outstanding warrants, he also made inquiries about defendantâs prior drug use. For example, defendant asked Ernie Nelson whether he had seen defendant smoke crack âon occasion or just onceâ (A 38). Defense counsel also cross-examined Lugo on engaging in sex with defendant in front of Nelson for cocaine (RA 55). The strategic and tactical decision to concede that defendant would use drugs on occasion continued during summation. As defense counsel asserted in summation: Christopher Oathout is an unfortunate young man. In his early twenties, I think he is 25 now, who was in the wrong place at the wrong time. He was smoking crack, doing drugs, hanging out with bad people. We are not going to run from that and we are not going to hide from that (RA 92). And then it makes sense that Christopher Oathout said, âI was living in the 18 DeWitt Clinton. A body turned up dead there. Itâs not a great place. Iâm using drugs and hanging out with bad people. I didnât do it, but there are warrants out for me. If I give the right name when I am on the couch, boom, Iâm in jailâ (RA 94-95). After being woken up by the detectives on the 9 th , knowing something really bad had happened four floors away in the building he was in, he went to New York. He was scared. He was using drugs. He is a young person. And that was big trouble (RA 96). That Grand Jury testimony of Christopher Oathout was excellent. It was exactly consistent with what he has always said, which is, this is not me. I have done bad things. I have hung out with bad people. I have these warrants out. I have done some public urination. Criminal Possession of a Controlled Substance in the Seventh Degree twice. Something in Cohoes. I mean, these are minor, petty things, nothing to do with violence (RA 121-22). Thus, defendant has failed to show that defense counsel had no strategic explanation for conceding defendantâs involvement in lesser incidents and that defendant occasionally used drugs. The existence of outstanding warrants and defendantâs use of drugs provided an explanation for defendantâs having fled the scene of the murder, the use of a false name and defendantâs connection with Lugo. Moreover, where, as here, the trial court had properly ruled that certain evidence of uncharged crimes would be admissible, the fact that defense counsel did not object to certain evidence â similar to the permitted uncharged crimes evidence â that could have been precluded, did not prejudice defendant or deprive him of a fair trial (see Hobot, 84 NY2d at 1024; People v Llanos, 13 AD3d 76 [1st Dept 2004]; People v Salsbery, 78 AD3d 1624, 1625 [4th Dept 2010]). C. Defense Counselâs Failure to Object was not so Egregious as to Deprive Defendant of a Fair Trial Defendant has not demonstrated that defense counselâs failure to object to remarks during summation and uncharged crime evidence was so egregious that it deprived defendant of a fair trial (see Benevento, 91 NY2d at 713). On the contrary, the record clearly establishes that 19 defense counsel provided meaningful representation. Indeed, the record reveals that counsel zealously and effectively represented defendant at every stage of the proceedings. He made appropriate pretrial motions and actively participated in a thorough preliminary hearing, resulting in an opportunity to cross-examine Lugo, creating additional Rosario material. Before trial, counsel extensively cross-examined the Peopleâs witnesses at pretrial hearings. Though defendant faults defense counsel for essentially waiving a number of pretrial hearings (Defendantâs Brief at 9-10), the hearings would have been futile. The police arranged identifications were all confirmatory, as conceded by defendant during his grand jury testimony (A 21, RA 86-88, 91). 4 A hearing to suppress the DNA sample police obtained would have been counter to the defense at trial, namely that defendant voluntarily provided a sample to the police and that his DNA had not been discovered on the victim or in the victimâs apartment (RA 97-98, 107). During pretrial Sandoval and Molineux hearings, counsel strenuously objected to the prosecutionâs applications. At trial, counsel conducted a probing voir dire of the prospective jurors and delivered an effective opening statement, in which he raised questions about the credibility of the Peopleâs witnesses and emphasized the prosecutionâs burden of proof (RA 9-12). Furthermore, throughout the course of the trial, defense counsel made numerous objections to the prosecutorâs questions of witnesses, many of which were sustained. He extensively and vigorously cross- examined the Peopleâs witnesses, efficiently attacking Lugoâs credibility by eliciting testimony that she had several prior convictions and that she has been addicted to various drugs. Lugo was thoroughly cross-examined regarding numerous inconsistencies in statements she made to the police, including her failure to accurately identify, when first questioned by the police, where in the apartment the murder actually took place. 4 The People merely could have relied on the testimony of defendant at grand jury at any Rodriguez hearing. 20 In addition, counsel introduced evidence to counter the guilty inferences accompanying his use of a false name and his flight to New York City on the night of the murder. In this vein, defense counsel elicited testimony that there were outstanding warrants for defendantâs arrest that could have resulted in his incarceration. Counsel also established that when defendant traveled by bus to New York City, he did so on a ticket that had been purchased on a date prior to the murder. Defense counsel introduced evidence that no witnesses saw blood on defendantâs clothes nor was defendantâs DNA found on the victimâs body or in the apartment where the murder took place. Moreover, counsel presented defense witnesses, including two DNA analysts to strengthen the defense argument of the lack of DNA evidence. Defense counsel gave a forceful summation, arguing that Lugo and Reuter were not credible (RA 99-107, 110-11, 116-18, 121-22). He sought to minimize the import of defendantâs drug use and prostitution by arguing that âdefendant is an unfortunate young man . . . who was in the wrong place at the wrong time . . . was smoking crack, doing drugs, hanging out with the bad people,â but that nothing in his background indicated that he was capable of committing a murder (RA 92). He highlighted the lack of DNA evidence and persuasively argued that defendantâs flight was not related to the murder (RA 92-97, 107, 111-12). Furthermore, defense counsel provided the jury with a plausible explanation for his use of a false name and subsequent flight to New York City (RA 114-15, 121-22). Accordingly, viewed in its totality, the record demonstrates that counsel zealously, thoroughly and effectively represented defendant throughout the trial. D. The Peopleâs Pretrial Motion Regarding Defense Counselâs Representation Means Nothing Though defendant did not, on appeal to this Court, ârecite all of the pre-trial failings of counselâ (Defendantâs Brief at 25), defendant mentions a pretrial motion made by former Chief 21 Assistant District Attorney Mark Harris (an eventual witness for the defense) for standby counsel based on his observations of defense counselâs representation. The motion asserted that defense counsel had provided âwhat is arguably ineffective assistance of counsel, however not yet to the extent as to give rise to a basis to reverse any future convictionâ (A 26), but the concerns raised by the former ADA were belied by defense counselâs representation at trial. The former ADAâs motion focused on preliminary matters such as an alleged filing of a notice of appeal from the preliminary hearing and premature writ, neither undertaking had any effect on the trial proceedings. As for the motion addressing a perceived inability to impeach a witness with a prior inconsistent statement, such concerns were rendered moot based on counselâs conduct throughout the trial. Defendant argues the County Court ânever addressedâ the Peopleâs motion save âfor a fleeting inquiry of counselâ (Defendantâs Brief at 8). In this respect, it is important to note that a criminal defendant has a right to counsel at all material stages of the proceeding, which is guaranteed under both the federal and state constitutions (see NY Const Art I § 6; US Const Amend VI). To that end, if a criminal defendant retains his own counsel, âthe court must respect that choice absent good cause to remove counselâ (see People v Knowles, 88 NY2d 763, 772 [1996]). Indeed, a court âarbitrarily interfering with a defendantâs chosen retained counsel risks an error of constitutional magnitudeâ (see Knowles, 88 NY2d at 772). In this case, County Court scrupulously honored defendantâs choice of counsel. For example, while defendant expressed some dissatisfaction with defense counselâs performance, he reaffirmed his desire that counsel continue to represent him during the prosecution and that he was satisfied with the representation to date (RA 136-37). In response to the motion by the People, County Court ensured that defendant was aware of its existence and that he wanted to 22 continue with defense counsel as his legal counsel (A 20). In sum, viewing trial counselâs conduct in its entirety, defendant has failed to overcome the âstrong presumptionâ that his trial attorney rendered effective assistance (see People v Myers, 220 AD2d 461 [2d Dept 1995]). 23 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD, IN ALL RESPECTS, BE AFFIRMED. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 Dated: November 1, 2012 By:_______________________ STEVEN M. SHARP Of Counsel