The People, Respondent,v.Derrick Hill, Appellant.

Brief

N.Y.Oct 16, 2014

To be argued by Jonathan Garelick (10 minutes) COURT OF APPEALS State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DERRICK IDLL, APL-2013-00177 Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SCOTT A. ROSENBERG THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor New York, New York 10038 (212) 577·3607 jgarelick@legal.aid.org Attorneyfor Defendant-Appellant JONATHAN GARELICK OfCounsel April l l , 2014 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 ARGUMENT THE CIRCUMSTANCES IN TI-llS CASE DID NOT JUSTIFY INTRODUCING EVIDENCE THAT APPELLANT EXERCISED IDS RIGHT TO SILENCE, AND THE TRIAL COURT'S DETERMINATION TO THE CONTRARY WAS ERROENOUS AS AMAT'I'EROFLAW 1 CONCLUSION 7 TABLE OF AUTHORITIES CASES People v. Conyers, 52 N.Y.2d 454 (1981) 2 People v Massie, 2 N.Y.3d 179 (2004) 2, 5 People v. Melendez, 55 N.Y.2d 445 (1982) 1,5 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DERRICK HILL, Defendant-Appellant. ---------------------------------------------------------------------J( PRELIMINARY STATEMENT This brief replies to Respondent's brief, received on or about March 6, 2014. It addresses a number ofunavailing claims by the People. As to all other aspects ofAppellant's appeal, he relies on his opening brief. REPLY ARGUMENT POINT THE CIRCUMSTANCES IN THIS CASE DID NOT JUSTIFY INTRODUCING EVIDENCE THAT APPELLANT EXERCISED HIS RIGHT TO SILENCE, AND THE TRIAL COURT'S DETERMINATION TO THE CONTRARY WAS ERRONEOUS AS A MATIER OF LAW. Although respondent urges this Court to defer to the trial court's determination that the door was opened to evidence of pre-trial silence, the court's discretion in this matter was in fact limited, and it failed to rule within those limitations. See People v. Melendez, S5 N.Y.2d 445 (l982)("By simply broaching a new issue on cross-examination, a party does not run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on re-direct... [T]he trial court should normally exclude all evidence which has not been made necessary by the opponentl]"); see also People v Massie, 2 N.Y.3d 179, 184 (2004)(before admitting evidence on an "opening the door" theory, court must consider "whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading"). Review for abuse of discretion is particularly critical given the nature of the evidence at issue. Under New York State evidentiary law, evidence that a suspect chose to exercise his right to silence is inadmissible except in "unusual circumstances." People v. Conyers, 52 N.Y.2d 454, 458 (1981). The protections afforded by New York evidentiary law in this regard are broader than under federal law. See id at 458 (evidence of pre-trial silence may be barred by .New York State evidentiary rules even in circumstances where such evidence is permitted under United States constitution). This Court has emphasized that the special protections under New York evidentiary law are based on the great potential for prejudice where evidence of pre-trial silence is placed before the jury, and the dubious probative value of such evidence. See Conyers, at 458, n.2, 458-459 (this Court warns of "grave danger of prejudice" from such evidence and finds that "evidence of a defendant's silence may have a disproportionate impact on the minds of the jurors"). Based on those concerns, this Court has held that pre-trial silence is 2 admissible on cross-examination only in unusual circumstances, and is presumptively inadmissible on the direct case for any purpose. It is inconsistent with these principles for this Court to grant broad discretion to the trial court, merely because the evidence comes in under a door- opening theory. To be sure, it is possible, in carefully limited circumstances, for a defendant to open the door to even this highly disfavored evidence. But to r simply defer to the trial court's determination that the door was opened in a given case is inconsistent with the concerns underlying New York's limits on the use ofpre-trial silence. On the merits, respondent's argument is dependent to a great extent on an assumption this Court should reject --Le., that a defendant's mere exercise of his right to remain silent is, standing alone, evidence that he was uncooperative. Indeed, respondent mischaracterizes the facts of this case by asserting that appellant "refused" to speak with the police, where, in fact, there was no evidence that the police even had any questions to ask him. This Court may take notice that the reading of Miranda rights concludes, as standard practice, with the police asking if the suspect, having just been informed of his rights, wishes to speak with the police. In many such cases, and certainly in this one, the police in fact have nothing further of significance to ask a defendant. Surely a defendant, listening attentively and answering 3 appropriately when asked if he understood each right as read, cannot be deemed uncooperative merely exercising the very right he was just told he had. Even assuming that there are specific circumstances in which a defendant's decision not to speak with the police may be fairly characterized as uncooperative, this was not one of them. This was not a situation where the police were still actively trying to solve the case, or trying to determine the extent of a defendant's criminal involvement or the location of important evidence or the identity of other participants in a crime. There was not the slightest indication that the police themselves regarded appellant as uncooperative in any way, and no special circumstances that made appellant's silence especially probative. Under the circumstances, appellant's mere exercise of his right to remain silent was insufficiently probative on the issue of appellant's cooperativeness to justify placing it before the jury.1 Finally, respondent argues for the first time on appeal to this Court that the door was opened by counsel's comment that appellant, if asked, would have consented to a blood test. Respondent did not raise this door-opening argument before the trial court; rather, the trial assistant argued that appellant opened the 1 Notably, the case cited by respondent for the contrary position are all federal decisions or decisions from other states (Respondenfs Brief, p. 20-21). Accordingly I there is no indication that the special concerns around pre-trial silence in New York evidentiary law informed those decisions. 4 door "merely by bringing up Miranda." And the trial court likewise made no reference to counsel's comments in its ruling permitting the evidence. Even assuming this theory is properly before the Court, it does not support the trial court's ruling. The question of whether appellant would likely have consented to a blood test was entirely peripheral to counsel's main argument that the Breathalyzer test was not sufficiently dependable to justify a conviction - an argument that the prosecutor had ample opportunity to contest. And although counsel focused on appellant's cooperative demeanor, he did not do so only or even primarily to establish that appellant would have taken a blood test. Rather, it is apparent from a fair reading of the record that counsel's focus on appellant's cooperation throughout the arrest process was primarily for the purpose of arguing that appellant's level of cooperation - along with his ability to speak coherently with the police and his level of success in the coordination tests -- was itself indicative ofa lack of drunkenness. Under these circumstances, the door was not opened to by counsel's comments. See Massie, 2 N.Y.3d at 184 (court must consider "whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading"); Melendez, 55 N.Y.2d at 452 (merely by broaching issue, party does not run risk that remote or tangential evidence will be brought up on re- direct). 5 For these reasons argued here and in appellant's main brief, the trial court erred as a matter of law in permitting evidence that appellant exercised his right to remain silent after being advised of that right. Since, for the reasons argued in appellant's main brief, that error was not harmless, the judgment of conviction must be reversed and a new trial ordered. 6 CONCLUSION FOR TIffi REASONS DISCUSSED HERE AND IN APPELLANT'S MAIN BRIEF, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, ~_. JONATHAN GARELICK SCOTT A. ROSENBERG Attorneys for Defendant-Respondent 199 Water Street 5th Floor New York, New York 10038 212-577-3607 jgareIick@legal-aid.org April 11, 2014 7