The People, Respondent,v.Vilma Bautista, Appellant.

Brief

N.Y.September 12, 2017

To be Argued by: NATHAN Z. DERSHOWITZ TIME REQUESTED: 20 MIN. APL-2016-00079 State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- VILMA BAUTISTA, Defendant-Appellant. REPLY BRIEF OF APPELLANT VILMA BAUTISTA NATHAN Z. DERSHOWITZ NATHAN Z. DERSHOWITZ, LLC 330 East38th Street, Suite 23A New York, NY 10016 Telephone: (212) 889-4009 Facsimile: (917) 633-4825 email: ndershowitz@lawdea.com Of Counsel Amy Adelson Attorney for Defendant-Appellant Vilma Bautista December 7, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... ii INTRODUCTION ............................................................................................... 1 ARGUMENT I. THE PROSECUTOR’S FACTUAL MISSTATEMENTS OF DEFENSE WITNESS SHERWOOD’S TESTIMONY WERE NOT REASONABLE INFERENCES FROM THE RECORD AND IMPROPERLY AND PREJUDICIALLY DISTORTED HIS ACTUAL TESTIMONY (Reply to PB, Point I) ........................................................................... 4 II. THE REFUSAL TO DISCLOSE THE ABAYA INTERVIEW NOTES CONSTITUTED A BRADY VIOLATION BECAUSE THE NOTES WERE EXCULPATORY, THEIR CONTENTS UNKNOWN, AND THEIR NON-DISCLOSURE INTERFERED WITH A DEFENSE DECISION ABOUT WHETHER TO INTERVIEW OR CALL ABAYA AS A WITNESS (Reply to PB, Point II) ........................................................................ 10 CONCLUSION .................................................................................................. 18 PRINTING SPECIFICATIONS CERTIFICATION ......................................... 19 ii TABLE OF AUTHORITIES Brady v. Maryland, 373 U.S. 83 (1963) .................................................................................. 10, 13 Leka v. Portunondo, 257 F.3d 89 (2d. Cir. 2001) ........................................................................... 15 People v. Conteras, 12 N.Y.S.3d 268 (2009) ................................................................................ 12 United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) .......................................................................... 12 People v. Vilardi, 76 N.Y.2d 67 (1990) ...................................................................................... 10 1 INTRODUCTION Appellant Vilma Bautista, now in her late 70s, was a Foreign Service officer who worked closely with Imelda Marcos for many years. She has raised only two issues before this Court, both seeking reversal of convictions stemming from the filing of her 2010 New York State tax returns. Though only the tax counts are before this Court, Bautista’s month-long trial focused almost exclusively on a conspiracy count that alleged, inter alia, that Bautista and her two alleged co-conspirators agreed to sell valuable paintings they did not own – paintings that the People, at various times, claimed belonged to Imelda Marcos, or to the Philippine people, or to the Philippine government. Much of the trial focused on the history of the Philippines during the Ferdinand Marcos regime, in and of itself prejudicial. Before the First Department, Bautista raised several appellate issues that went directly to the fairness of her trial. The Appellate Division reversed the conspiracy count on the ground that the trial court had improperly taken judicial notice of factual claims in a Philippine Supreme Court decision involving the Marcoses, and not Bautista, and different property, not the paintings at issue on this appeal. In the Appellate Division, the People conceded that the Philippine Supreme Court Decision (the “Decision”) and the judicial notice issue provided the underpinnings for the People’s ownership claim, and that ownership of the paintings formed the basis for the tax counts as well as the conspiracy count. (SA.60)1 The Appellate Division nonetheless 1 “SA.__” refers to Bautista’s Supplemental Appendix; “A.__” to Bautista’s Appendix; “RSA.__” to the 2 affirmed the convictions on the two tax counts, deciding that, though the trial court wrongfully took judicial notice of the Decision (which the People relied on to argue that the paintings rightfully were owned by the Philippine people), the Decision itself was harmless as to the tax counts. On this appeal, the People have retreated from that concession, arguing that ownership of the paintings is irrelevant to the tax counts. (People’s Brief, “PB”, at 27) Once the conspiracy count was vacated, the issues that remained in this case for appellate review narrowed. One related to the prosecutor's repeated misstatements in his summation, over objection, about the crucial testimony of James Sherwood, the sole defense witness who testified only about the tax counts. The other related to a Brady violation that affected the entire presentation of the case. The record on the tax counts is short and clear. Bautista has addressed the issues before this Court without extensively rehashing the whole unfair trial. The People, in contrast, rely heavily on trial transcripts that related to the reversed conspiracy count, which they have chosen not to retry, and which, in most respects, are irrelevant to this appeal. (PB at 5-15) Yet, at the same time, the People seek to have the two issues on this appeal reviewed in isolation. They cannot be. The trial court used one rule book when ruling on the People's claims, and a different rule book to rule on defense objections. The numerous, pervasive errors going to the fairness of the trial, though perhaps more People’s Supplemental Appendix for Respondent. 3 directly related to the conspiracy count, contaminated the trial and cannot be separated from review of the tax counts. The jury heard one case only, and an unfair trial, with one- sided rulings, is still an unfair trial. Using an example that is relevant to an issue on this appeal, defense counsel was prevented from making arguments during her summation based upon reasonable inferences from the record, even castigated in front of the jury when she made such arguments. The trial court told the jury that part of defense counsel’s summation was “not a quotation from the evidence” and therefore should be “disregarded.” (SA.38)2 One issue on this appeal is whether the prosecutor misstated Sherwood’s testimony in his summation and did so with the trial court’s imprimatur. Sherwood testified repeatedly that he never spoke with Bautista about her obligation to pay taxes on proceeds or earnings from the sale of the painting. (A.227, 240-41, 264, 278-79) Despite repeated objections, and though “not a quotation from the evidence,” the court allowed the prosecutor to argue that Sherwood had testified that “it was communicated” to Bautista “more than once” that she should report the sale of the painting on her tax return. (A.319) The Appellate Division upheld the tax counts, deciding that, though the prosecutor’s summation was not accurate, it constituted a “reasonable” inference from the testimony. (A.4) 2 The prosecutor repeatedly disrupted the defense summation, objecting 36 times, and defense counsel was summoned to the bench to discuss objections, further interfering with the defense summation. 4 The People also argue that, because only six pages out of 160 of the closing argument are at issue, the misstatements of Sherwood’s testimony could not affect the fairness of the trial. (PB at 24) Though the tax count evidence and the tax count closing argument may have occupied a smaller portion of the trial than the conspiracy count, the prosecution’s skill at weaving them together for the jury throughout the proceedings renders that distinction meaningless, and this Court should review the issue in light of the entire closing argument and through the prism of this entire unfair and contaminated trial. Unless the tax counts are reversed, those six pages will result in this elderly woman going to prison for two to six years. ARGUMENT I. THE PROSECUTOR’S FACTUAL MISSTATEMENTS OF DEFENSE WITNESS SHERWOOD’S TESTIMONY WERE NOT REASONABLE INFERENCES FROM THE RECORD AND IMPROPERLY AND PREJUDICIALLY DISTORTED HIS ACTUAL TESTIMONY (Reply to PB, Point I) Bautista did not claim that she had no obligation to report the proceeds or income derived from the sale of the painting. Rather, her defense was that the People had not proved that she had acted intentionally and willfully. Specifically, the issue was whether the return, which was filed on April 16, 2011 (three days after investigators approached Bautista (RSA 390)), was willfully and intentionally false (Count 2) and whether she knowingly and intentionally filed a false statement with intent to defraud. (Count 4) (A.23, 25) No issue was raised as to filing any amended return. It is in the context of this narrow 5 defense that the prosecutor’s misstatements must be examined. The evidence reflected that Bautista’s tax return was filed while tax attorney James Sherwood was trying to determine Mrs. Marcos’ tax liability. Sherwood had already advised Bautista that she could not pay Mrs. Marcos’ taxes. (A.223-25) If Mrs. Marcos owned the painting, her tax obligation would impact on what Bautista was required to pay. While these complex Marcos tax issues were being addressed, Sherwood – dealing with Abaya directly -- told Abaya to secure an extension on the filing of Bautista’s tax return. (A.241-42) Abaya never did. (A.284-87) Sherwood testified that he never spoke to Bautista directly about securing such an extension. (A.243) Sherwood repeatedly and unequivocally testified that he never spoke to Bautista about her obligation to pay taxes on proceeds or earnings from the sale of the painting. (A.227, 240-41, 264, 278-79) The prosecutor nevertheless stated to the jury that Mr. Sherwood had testified that Bautista was told more than once was that she must report her income from the sale. The prosecutor characterized this as “very, very powerful” evidence, adding, “I can’t emphasize that enough.” (A.318) According to the prosecutor, “from [the] defense[’s] own witness you found out something incredibly powerful… He said any income she earned related to the sale had to be reported. And actually what he said from the stand is I reminded them, which means they were told multiple times. Defense witness confirms she was told you must report.” (A.317) (emphasis added).) The defense objected and the court told the prosecutor to “rephrase it.” The prosecutor instead 6 repeated his statement. (A.318-19) The repeated misstatements of the key evidence on the sole contested issue of intent and willfulness requires a reversal. The Appellate Division acknowledged that Sherwood did not testify that he had spoken to Bautista about her obligation to pay taxes, but inexplicably reasoned that because Sherwood testified that he discussed this with Abaya “[i]t was reasonable to infer that this information was conveyed to defendant.” (A.4) (emphasis added) Now, the People, noting the prosecutor’s “wide latitude” in commenting on the evidence, contend that the prosecutor was permitted to tell the jury that Sherwood actually had testified from the witness stand that he told Bautista to pay her taxes – what the People now characterize as “nothing more than an invitation to the jury to make the most obvious inference from the undisputed facts in evidence.” (PB at 24, 25) The prosecutor’s comments went beyond “an invitation to make an inference.” In any event, the People may never misrepresent the evidence, and the misstatements of Sherwood’s testimony did not constitute a fair inference in this case. Bautista’s mens rea was the only contested issue on the tax counts. The People’s entire “reasonable inference” argument is based on a series of misinterpretations of the record. First, the presumed inference was stated as a fact. Second, the presumed inference directly conflicted with Sherwood’s actual testimony “from the stand.” Third, what Sherwood told Abaya is itself unclear. Fourth, there is no basis in the record to infer that Abaya conveyed the information to Bautista. And fifth, the record supports the 7 opposite inference: that Abaya, who for years counseled Mrs. Marcos, was representing Mrs. Marcos’ interests, and not Bautista’s. As a Philippine attorney who lived in the United States for decades, he certainly knew or should have known that that it would be improper to have Bautista pay Mrs. Marcos' tax liability, as she originally suggested during the initial meeting with Abaya and Sherwood, yet he allowed Bautista to offer that solution to Mrs. Marcos’ tax problems. (A.223-24) The first and second problems are by themselves sufficient to warrant reversal of the tax count convictions. As to the first, the prosecutor never told the jury that it could infer that Abaya had passed on Sherwood’s remarks. Instead, he told the jury that Sherwood testified “from the stand” that Bautista was told to pay her taxes. (A.318) That was false. As to the second, the prosecutor’s “facts” were contradicted by Sherwood’s actual testimony: that he never communicated with Bautista about her taxes. If the prosecutor wants the jury to draw an inference from the evidence, at a minimum, he or she must accurately state the evidence and then must ask the jury to draw an inference, not mislead the jury into believing he or she is summing up the testimony from the witness stand. A long line of this Court’s precedents confirm the impropriety of a prosecutor misstating key facts in summation. (Bautista Brief at 20) Moreover, as to the third, it is unclear what conversations Sherwood had with Abaya, let alone whether Abaya communicated anything to Bautista. The “inference” is premised on a brief snippet of Sherwood’s cross-examination. After being shown notes 8 of a telephone conference from April 18, 2011, Sherwood said that he “may have mentioned it to Mr. Abaya in a previous conversation, but I don't – this suggests that I did, yes.” (A.264-66) Later, on redirect, he reiterated that he never had spoken with Bautista about what taxes she might owe, if any, on the sale proceeds. (A.227) From this confusing testimony, it is not clear whether Sherwood, in fact, told Abaya that Bautista must pay her taxes at any time before April 16th, when Bautista’s tax return was filed. Fourth, this was not a reasonable inference from this muddied fragment of Sherwood’s cross-examination. The time line is important: The return was filed on April 16, 2011. The note reflected that Sherwood spoke to Abaya about Bautista’s reporting income on the sale of the painting on April 18, 2011, two days after Bautista’s tax returns were filed. (A.264-65) What Sherwood may have told Abaya on April 18th after Bautista’s tax return was filed does not support a jury inference that he told Abaya that Bautista should report her income before she filed her return. There is nothing in the record to indicate when, if ever, that hypothetical conversation with Abaya may have taken place. If it took place at all, and it occurred after Bautista’s tax returns were filed, it was irrelevant to whether the omission was intentional and willful. The investigators interviewed Bautista on April 13, 2011. (RSA.390) It is unlikely that three days later Bautista would intentionally and willfully file a false return knowing she was under investigation. It is far more reasonable to infer that on April 16th she did not know how much was due and owing or even that Sherwood had suggested that Abaya secure an 9 extension. The People emphasize that Sherwood was not advised about the facts of the transaction as it applied to Bautista, as if that itself is proof of intent. (PB at 16-17) But that was not the subject of the consultation. Sherwood testified that he was retained to evaluate Mrs. Marcos’ tax obligation. (A.221-23) Sherwood afterwards consulted only with Abaya about Marcos’s other tax issues. (A.230) Sherwood testified that he asked Abaya to get an extension for Bautista to file her tax return in order for him to complete his assessment. (A.241-42) Sherwood testified that he never spoke with Bautista about an extension (A.243) and there is no evidence that Abaya ever conveyed this to Romeo Sebastian, the tax preparer, who was also Abaya's tax preparer. It is not reasonable to infer that Abaya, who apparently failed to pass on the advice that Bautista get an extension, nonetheless passed on some comment Sherwood might have made about her possible tax liability. And fifth, even if Sherwood had a conversation with Abaya about Bautista before April 16th, to the extent any inference can be drawn it is more likely that Abaya did not convey that information to Bautista. Abaya was representing Mrs. Marcos; there is no evidence to suggest he had any interest in helping Bautista. Abaya voluntarily met without counsel with the prosecutors. He was named as an unindicted coconspirator. The record is silent as to why he was not indicted. It is completely speculative to argue, without any record support, that Abaya repeated to Bautista what he may have been told by Sherwood. 10 The People also attempt to minimize the prejudice flowing from the prosecutor’s misstatement of the evidence by noting that it consumed only six pages of the closing and should be viewed in the context of the entire summation of 160 pages. (PB at 24) The record that needs to be reviewed is the record relating to the tax counts, and Sherwood’s testimony was the key evidence on those counts. If, as the People suggest, the entire record and summation must be reviewed, we invite this Court to do just that: the Court will see that the misstatements during the summation, which the trial court allowed, were just some of the many improprieties that occurred during the openings and closings and throughout the trial. (Bautista Brief at 23-25) Nevertheless, we submit that this Court can and should reverse the tax counts on the basis of the prosecutor’s serious misrepresentations of the evidence alone. II. THE REFUSAL TO DISCLOSE THE ABAYA INTERVIEW NOTES CONSTITUTED A BRADY VIOLATION BECAUSE THE NOTES WERE EXCULPATORY, THEIR CONTENTS UNKNOWN, AND THEIR NON-DISCLOSURE INTERFERED WITH A DEFENSE DECISION ABOUT WHETHER TO INTERVIEW OR CALL ABAYA AS A WITNESS (Reply to PB, Point II) A defendant’s right to secure exculpatory evidence implicates numerous constitutional rights, including due process, the right to confront and cross-examine witnesses and to prepare a defense. Brady v. Maryland, 373 U.S. 83 (1963). This Court has recognized that the protections under the State’s constitution extend beyond those found in the federal constitution, which sets the floor, but not the ceiling, for the rights of 11 an individual. (Bautista Brief at 26-27) In New York, when the defense has made a specific discovery request, a new trial is required if there is a “reasonable possibility” that the failure to disclose contributed to the verdict. People v. Vilardi, 76 N.Y.2d 67, 77 (1990). It is “seldom, if ever excusable” for the prosecution to withhold exculpatory material. Id. at 74-75. Here there was both a general request and later specific requests for the notes of the Abaya interviews. (A.41, 197-98, 202-16) There was no rational reason for withholding the notes, and there is a reasonable possibility that, if the notes were disclosed, the verdict would have been different. The Appellate Division, concluding without explanation that the notes were not Brady material, failed to properly apply this test, evaluating the refusal to provide the defense with the notes though a retrospective analysis of harmless error; this is not only the wrong test, it undermines the very purpose of the “reasonable possibility” test: to encourage compliance with Brady obligations. (A.4) The People, relying heavily on the trial testimony of investigators Donato Siciliano and Greg Dunlavey (PB at 29-34), argue that Abaya’s statements to the prosecutors were not Brady because, first, the material was not exculpatory; second, Bautista knew about the interview; and, third, disclosure would not have mattered. The People never address the “reasonable possibility” or “seldom if ever excusable rule,” and do not explain why the People did not initially turn over the requested notes to the defense, consistent with 12 this Court’s mandates. From a policy perspective, the People have shifted the burden to the defense in direct contravention of this Court’s policy directive by failing to address why, as this Court has recommended, the People did not err on the side of caution by turning over the requested notes. See, e.g., People v. Contreras, 12 N.Y.3d 268, 285 (2009). The material clearly was exculpatory. The People admit that, at “first blush” the notes might appear favorable to Bautista, but then argue that is only “to the conspiracy count,” which has been dismissed. (PB at 39) Yet, in the Appellate Division, the People treated the conspiracy count and the tax counts as so interrelated, ownership of the paintings was key to both sets of counts. (SA.60) Ownership of the paintings dictated both the amount of taxes due and whether the failure to refer to the sale, while Sherwood was reviewing the issue of Mrs. Marcos' liability, was intentional or willful. Now, the People walk away from that position. The People argue next that the notes are not Brady material because they included “self-serving hearsay” and “unsupported opinions.” (PB at 39) The People miss the whole point of Brady. The constitutional requirement that the prosecution turn over exculpatory material is not limited to evidence admissible at trial. It is part of pretrial discovery requests, and “exculpatory evidence” may well be broader then “admissible evidence.” Thus, the prosecutor may have a Brady obligation to disclose material even if the evidence, in the form obtained by the police, would not necessarily be admissible at trial. 13 See United States v. Rodriguez, 496 F.3d 221, 226 n.4 (2d Cir. 2007) (“the Government’s obligations under Brady to disclose [exculpatory] information does not depend on whether the information to be disclosed is admissible as evidence in its present form”). For example, a confession by another individual to a crime you are charged with may not be admissible evidence – it may be hearsay – but it most certainly is exculpatory. Likewise, if a cooperating witness tells the prosecutor that the defendant did not know about a fraud, it may not be admissible if the witness does not take the stand, but again, it is most certainly exculpatory. In both cases, the defense has a Due Process right to know of the exculpatory statements in order to determine how to proceed – what investigation should be conducted, and what evidence should be garnered to support the extrajudicial exculpatory statements. Second, the People argue that Bautista knew that Abaya spoke to the investigators, so the information was not suppressed. (PB at 40-45) There is nothing in this record to suggest that the defense knew what was said at the meetings or what was contained in the notes. All the defense knew was that there were meetings, that Abaya made exculpatory statements, and that Abaya was not indicted. Counsel’s pressing of trial witnesses to obtain more detailed information about Abaya’s interviews does not reflect that she knew the content of what was being suppressed. To the contrary, it demonstrates that she did not, and was trying to elicit it from the stand. Knowing that an interview took place, or that exculpatory material exists, is a far 14 cry from knowing its contents. In Brady itself the defense knew that the co-defendant, tried separately, had made extra-judicial statements. Counsel even saw some of them. But it was the substance of one statement, not disclosed, in which the co-defendant admitted to committing the homicide, which resulted in the Brady rule. 373 U.S. at 85. The People assume that the defense knew what Abaya said because Abaya was an unindicted co-conspirator, and, therefore, somehow in cahoots with Bautista. That is a faulty premise. In Brady, both Brady and his co-defendant were charged with murder, but that did not matter. In the real word, not all unindicted co-conspirators cooperate with each other; to the contrary, they commonly make proffers to the authorities that they do not want revealed to the other co-defendants. The People have no proof that Abaya was available and cooperated with the defense. The section of the notes on which the People rely for that proposition (PB at 44), shows only that in a “3-4 minute conversation,” Abaya discussed with Bautista that he was being interviewed and Bautista told him to “answer truthfully.” (A.363) If anything, the evidence points to Abaya’s distancing himself from Bautista. Abaya, a Philippine attorney, had long counseled Mrs. Marcos. Sherwood was retained in an effort to advance Mrs. Marcos’ interest, and the prosecution’s claim late in the trial that Bautista could be guilty of a conspiracy to commit larceny because Mrs. Marcos’s right to the paintings was superior to Bautista put Abaya, at a minimum, in a conflicted position, if not in an adversarial position to Bautista. 15 Third, the People argue that the disclosure would not have mattered. (PB at 47) That is ironic, given that, without ever suggesting what harm the People would suffer if they turned over the interview notes, they vigorously fought to suppress the notes. Now, after fighting so hard to prevent the defense from learning what Abaya had said to the interviewers, the People make the disingenuous claim that the notes were not material. When the burden to disclose rested with the People, the People refused. Now they place the burden on the defense, and contend the defense failed to meet a higher burden. But the “reasonable possibility” standard is not as high as the People claim and is well satisfied here. Ownership of the paintings was key to the whole trial – and a topic on which the People wavered, though they returned to it constantly – and confusion as to Mrs. Marcos’ tax liability was significant as to Bautista’s intent and willfulness in filing a tax return that did not refer to the painting. Having the notes would have allowed the defense to make a reasonable decision to subpoena Abaya and ask him specifically what he based his comments on. “The opportunity for use under Brady is the opportunity for a responsible lawyer to use the information with some degree of calculation and forethought.” Leka v. Portuondo, 257 F.3d 89, 103 (2d Cir. 2001) Without knowing what Abaya said or did not say, defense counsel could not effectively make a strategic decision about whether to contact Abaya, or whether to call him to the witness stand. The defense could surmise that Abaya had provided sufficient exculpatory information to the prosecutors to avoid an indictment. 16 But the defense did not know what he said to extricate himself. Knowing the details of what he said (or did not say) would have provided the defense with the information necessary to decide whether to call him to testify and provide the jury with the same information that convinced the People not to prosecute him. This satisfies the “reasonable possibility” standard. The People also dismiss the significance of Abaya’s statements, saying “there is nothing in the record to demonstrate that Abaya had any direct personal knowledge of the information contained in statements two through five.” (PB at 39) These statements went to Bautista’s conduct, the process by which she secured the paintings, and whether she had authorization to sell. (PB at 38-39) That Abaya addressed these issues, and furthermore told the prosecutors that Mrs. Marcos had given the paintings to Bautista and authorized her to sell the Monet, was of course material to the defense. That the notes do not expressly explain how he knew this is not the point. Once the defense knew he made these assertions, it would then have been free to explore these areas with him or others. Most critically for this appeal, Abaya was an unindicted co-conspirator on the conspiracy count which included the filing of the disputed tax return as objects of the conspiracy and overt acts. (A.13, 23) The notes do not reflect that Abaya ever told the interviewers that he had communicated Sherwood’s advice about Bautista’s tax liability – the “inference” on which the People rest their sole proof of illegal intent on the tax counts. Surely, the defense would have wanted to know that the key to the People’s case 17 – Abaya passing on Sherwood’s advice – was not reflected in any of the interviews the People conducted with Abaya. Finally, the People argue that there is nothing in the record to show that Abaya was willing to testify. (PB at 47-48) 3 There is nothing in the record one way or the other on this subject, but the Appellate Division speculated that “there is no reasonable possibility that they [the interview notes] would have affected the outcome of the trial [citation omitted] since the alleged coconspirator presumably would have invoked his Fifth Amendment right against self-incrimination if called by the defense.” (A.4) As demonstrated in Bautista’s Opening Brief (Bautista Brief at 31-32), speculating as to what a witness with exculpatory evidence “presumably” may or may not do cannot justify a Brady violation. Again, an analogy to a co-conspirator’s out-of-court confession shows the weaknesses in all three of the People’s arguments. If the defendant knows his alleged co- conspirator has spoken to the authorities (but does not know he has confessed), it parallels Bautista’s knowledge that Abaya spoke to investigators but did not know what he said. Just as the confession may not be admissible, the People argue that Abaya’s statements to the investigators may not have been admissible. And there is a possibility that the co- conspirator make plead the Fifth and refuse to testify, just as the People speculate Abaya 3 It is not surprising that Abaya was named an unindicted coconspirator. That ensured that he would keep his distance from the defense and be reluctant to cooperate or to testify. may have done here. Yet it cannot seriously be asserted that a confession by another individual to the crime with which the defendant is charged is not Brady material and, despite the People's arguments, so are the Abaya exculpatory notes. CONCLUSION For the foregoing reasons, the convictions should be reversed. i. l Dated: December 7, 2016 Of Counsel: Amy Adelson Naili~z{;s~P~ Nathan Z. Dershowitz LLC 330 East 38th St. Suite 23A New York, NY 10016 Telephone: 212-889·4009 Telephone: 917-633-4825 e-mail: ndershowitz@lawdea.com No. 1295914 18 PRINTING SPECIFICATIONS CERTIFICATION I certify that the brief complies with the typeface requirements of this Court's Rule 500.10)(1) and the word limit requirements of Rule 500.13(c) because it has been prepared in proportionally spaced typeface using Microsoft Word 2013 software in Times New Roman, 14-point font and 12-point font in the footnotes, and because this Reply Brief contains 4,557 words, excluding the part.s of the. Brief exempted by Rule 500.13(c)(3). Dated: December 7, 2016 - ·. 19