The People, Respondent-Appellant,v.V. Reddy Kancharla, Appellant-Respondent.BriefN.Y.March 26, 2014APL-2013-00012 and APL-2013-00013 To be argued by DANIEL R. ALONSO (30 Minutes Requested – Kancharla) (15 Minutes Requested – Barone) (15 Minutes Requested – Cross-Appeal) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, - against - VINCENT BARONE AND V. REDDY KANCHARLA, Defendants-Appellants-Respondents. REPLY BRIEF FOR RESPONDENT-APPELLANT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent-Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov DANIEL R. ALONSO GINA MIGNOLA AMYJANE RETTEW ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 22, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 A. The Defendants’ Flawed Jurisdictional Theory ............................................................ 3 B. The Defendants’ Illusory Sufficiency Analysis ........................................................... 12 CONCLUSION ................................................................................................................... 20 -ii- TABLE OF AUTHORITIES STATE CASES People v Bleakley, 69 NY2d 490 (1987) ................................................................................... 6 People v Bloomfield (Stuart Creggy), 15 AD3d 302, 303-04 (1st Dept 2005), reversed, 6 NY3d 165 (2006), on remittal, 30 AD3d 151 (1st Dept 2006) ..................................................................... 8-9 People v Conway, 6 NY3d 869 (2006) ................................................................................... 4-8 People v D’Alessandro, 13 NY3d 216 (2009) .......................................................................... 6 People v Danielson, 9 NY3d 342 (2007) .................................................................................. 2 People v DiNapoli, 108 AD2d 650 (1st Dept), majority opinion rev’d and indictment reinstated, 66 NY2d 812 (1985) .............................. 19 People v Flack, 125 NY 324 (1891) ....................................................................................... 18 People v Gerard, 50 NY2d 392 (1980) ................................................................................... 19 People v Giles, 73 NY2d 666 (1989) ........................................................................................ 7 People v Hampton, 21 NY3d 277 (2013) ................................................................................. 6 People v Letterlough, 203 AD2d 589 (2nd Dept), appeal dismissed, 84 NY2d 862 (1994) ............................................................................ 11 People v Mackell, 40 NY2d 59 (1976) ..................................................................................... 7 People v Medina, 111 AD2d 653 (1st Dept), appeal dismissed, 67 NY2d 644 (1986) ............................................................................ 11 STATE STATUTES Criminal Procedure Law §450.90 ......................................................................................... 6 Criminal Procedure Law §470.35(2)(a) ................................................................................ 6 Penal Law Article 460 ............................................................................................................ 3 Penal Law §175.05 .................................................................................................................. 9 -iii- Penal Law §175.10 .................................................................................................................. 9 Penal Law §460.10(3) ............................................................................................................. 9 Penal Law §460.20(1)(a) ....................................................................................................... 13 OTHER AUTHORITIES Preiser, Practice Commentary to CPL §450.90, McKinneys (1994) ....................................... 6 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, -against- VINCENT BARONE and V. REDDY KANCHARLA, Defendants-Appellants-Respondents. REPLY BRIEF FOR RESPONDENT-APPELLANT INTRODUCTION Resolution of the People’s appeal in this case requires this Court to answer two questions. First, this Court must determine whether the majority’s decision to reverse the enterprise-corruption count was based on a review of the legal sufficiency of the evidence or on an evaluation of the facts. Second, this Court must ascertain whether, viewed in the light most favorable to the People, the evidence could justify the trial jury’s conclusion that the defendants were guilty of enterprise corruption. The defendants try to sidestep both of these issues. We urge the Court to address them directly, for they lead to the inexorable conclusion that the Appellate Division’s enterprise corruption holding is both reviewable and legally incorrect. On the jurisdictional issue, the defendants concede that the majority below ruled on the legal issue and that it found the evidence legally insufficient (Barone -2- Resp. Brief: 4, 22; Kancharla Resp. Brief: 4, n.4, 14). Although logically that concession leads to the conclusion that there is a legal issue for this Court to review, the defendants instead argue that the majority’s legal ruling should be shielded from this Court’s review because the majority supposedly also conducted an alternative evaluation of the weight of the evidence. But there is no logical reason for a court to evaluate the weight of evidence if it has already found that evidence legally insufficient to prove guilt, because all legally insufficient evidence must by definition fail the weight test. Indeed, allowing a court to make an “alternative” finding of this kind, which could by whim accompany any legal insufficiency ruling, would serve no purpose but to eviscerate this Court’s jurisdiction to review legal rulings of the intermediate appellate courts, case by case, simply because those courts say so. The defendants’ arguments on the merits of the enterprise-corruption issue are equally flawed. To its detriment, this Court has been presented only with “sky-is- falling” hyperbole in the form of a marshaling of the evidence in the opposite way that sufficiency review is supposed to be conducted. The point of legal sufficiency review, after all, is “to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof.” People v Danielson, 9 NY3d 342, 349 (2007). Yet neither defendant makes even a pretense of evaluating the legal sufficiency of the evidence in this way. Far from gathering all the evidence that supports the jury’s decision on enterprise corruption, the defendants instead take snippets of the evidence out of -3- context, interpret those bits and pieces in the light most favorable to the defense, and then assert that the mere existence of some possibly-favorable inference means the jury had no right to convict. In fact, the defendants’ decision to ignore the sufficiency issue and the need to view the evidence in the light most favorable to People is a tacit admission that the majority erred in concluding that the evidence was legally insufficient. Instead, the reasonable inference the jury drew from a mass of evidence presented by the People was that the defendants participated in a criminal enterprise, fitting the definition in Penal Law Article 460, including an “ascertainable structure,” through a pattern of criminal activity spanning many years. There was, in other words, nothing unreasonable about this jury: it had sufficient evidence before it to return the verdict it did. A. The Defendants’ Flawed Jurisdictional Theory As noted, the defendants concede that the majority below ruled that the proof of enterprise corruption was not legally sufficient – a clear question of law (Barone Resp. Brief: 4, 22; Kancharla Resp. Brief: 4, n.4, 14).1 Yet in spite of this concession, 1 The defendants’ concession on this point comes as no surprise given the language and content of the majority decision. For instance, the majority highlighted this Court’s legal-sufficiency analysis in Western Express and then stated that, in this case, there was “no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a ‘criminal enterprise’” (101 AD3d at -4- they seek to avoid further review of that legal determination by asserting that the lower court also reviewed the weight of the evidence and reversed on that ground as well (Kancharla Resp. Brief: 4, n.4; see also Barone Resp. Brief: 4). We argued in our opening brief that a careful reading of the opinion as a whole, rather than merely the decretal paragraph, shows that the reversal was solely on the ground of legal insufficiency (People’s Opening Brief: 61-70). But even if the Appellate Division had grafted onto its legal insufficiency opinion an alternative analysis based on a purported weighing of facts, as the defendants urge, that alternate theory cannot be allowed to defeat this Court’s review of their legal ruling. Nothing in the law allows lower courts to divest this Court of its jurisdiction to review and correct legal sufficiency rulings simply by grafting purportedly alternative factual theories to their legal rulings. If that were the law, this Court would soon have no legal jurisdiction left over reversals in criminal cases. This Court’s decision in People v Conway, 6 NY3d 869 (2006), is instructive on this point. In Conway, a police officer who shot and wounded a suspect during a struggle was convicted, following a bench trial, of third-degree assault. Id. at 870-71. The key issue on appeal was whether the defendant had acted with criminal ______________________ 591) (emphasis added). At another point, they wrote that the finding of a common purpose was “simply unsupportable by any fair view of the evidence of record.” Id. at 593. Other examples of the lower court’s use of classic legal sufficiency language are detailed in our opening brief at pages 64-65. Indeed, Kancharla at one point characterizes the decision below as “a familiar sufficiency review” (Kancharla Resp. Brief: 14), just as Barone specifically references the majority’s “legal sufficiency analysis” (Barone Resp. Brief: 22). -5- negligence. The Appellate Division reversed the conviction “on the law,” taking issue with the testimony of the People’s expert witness on proper police procedures, and concluded that, without that testimony, there was “no evidence” of criminal negligence on the officer’s part. 21 AD3d 309, 312-14 (1st Dept 2005). On appeal to this Court, the defense argued that the Appellate Division’s decision should be viewed as one that was based on the weight of the evidence and therefore unreviewable. 6 NY3d at 873. And, as Judge Smith observed in his dissenting opinion, it was somewhat “hard to say … whether the Appellate Division decision [wa]s based on the weight or the sufficiency of the evidence …” Id. at 873- 74. Although the decision said that it was “on the law, implying that it was ruling on the sufficiency of the evidence,” the Appellate Division did not seem to “view the evidence in the light most favorable to the People, as it should have if it were deciding a sufficiency issue.” Id. at 874. Yet, the majority in this Court refused to allow the opacity of the First Department’s decision to be used as a vehicle to divest this Court of its jurisdiction to review the legal issue of sufficiency. Id. at 871, n*. Notable here is Judge Smith’s correct observation that, in Conway, “[e]ven if the Appellate Division decided a legal question, the sufficiency of the evidence, it also implicitly decided a factual question, the weight of the evidence,” or at least signaled quite clearly how it would rule on that factual question. Id. at 874. But that will be true in nearly every case in which a lower court concludes that the evidence is not legally sufficient. After all, a finding that the proof was legally insufficient means – by -6- definition – that, even after marshaling the competent facts and every permissible inference in the light most favorable to the People, the intermediate appellate court felt that no rational jury could have convicted. See People v Hampton, 21 NY3d 277, 287 (2013). Inevitably, then, that panel of that appellate court must necessarily also have concluded that the irrational jury that reached an irrational conclusion also “failed to give the evidence the weight it should be accorded.” See People v Bleakley, 69 NY2d 490, 495 (1987).2 Moreover, if that panel’s sufficiency decision rests on a legal error about what evidence is required, its analysis of weight will also rest on that same legal error. Preiser, Practice Commentary to CPL §450.90, McKinney’s at 741 (1994) (noting that before 1979 amendment to CPL 470.35[2][a]), review was precluded even when “the intermediate court determined facts and applied an erroneous legal standard to reach an erroneous conclusion”). For that very reason, an Appellate Division decision encompassing a reversal on legal sufficiency and an “alternative” weight-of-the- evidence reversal – whether explicit or supposedly implicit – cannot be allowed to divest this Court of jurisdiction to review the legal sufficiency issue. See People v D’Alessandro, 13 NY3d 216, 219 (2009)(“[a]ny other interpretation would allow a 2 Or, as Judge Smith put it, an appellate court that has decided that the evidence against a defendant is so weak that no reasonable fact-finder could convict him will almost certainly conclude, ultimately, that the verdict was also against the weight of the evidence (6 NY3d at 874) – at least if there were no legal errors in their initial assessment of what type of proof the law requires. -7- mislabeled or wrongly denominated order of the Appellate Division to bar appellate review of ‘real issues of law,’ thereby interfering with this Court’s ‘[unique] authority … to determine [its] jurisdictional range.’”)(quoting People v Giles, 73 NY2d 666, 668 [1989]). Indeed, the defendants’ “alternative theory” device could easily end up stripping this Court of the power to review any reversal in a criminal case. An intermediate court could, for instance, rule – on a properly preserved legal claim – that the trial court had committed a legal error, which is of course reviewable. By the defendants’ reasoning, however, the intermediate appellate court could insulate its legal ruling from further review simply by adding on an “alternative” statement that, if the claim had not been preserved, it would have reversed in the interests of justice. In this way, the defendants’ reasoning would allow the intermediate appellate court’s phraseology to frustrate this Court’s power to determine both the preservation issue and the underlying legal issue – precisely what the 1979 amendment was intended to prevent. See People v Giles, 73 NY2d 666, 669-70 (1989); People v Mackell, 40 NY2d 59, 64-65 (1976) (Breitel, Ch. J., concurring). Nor is it true that the lower court will always reject the verdict on the facts, as it ultimately did in Conway,3 even if this Court concludes that the evidence is legally 3 On remand, the Appellate Division, noting that it had “previously rejected the testimony” of the People’s expert witness, then concluded that “[i]n retrospect, we agree that -8- sufficient and remands. On the contrary, in many instances, this Court’s decision will correct legal errors that skewed the lower court’s original reasoning and will lead to a different result. In contrast, allowing the lower court to evaluate the weight of the evidence in the first instance – in the alternative – would guarantee that its weight-of- the-evidence review is infected by the same legal error. Thus, approval of the “alternative theory” device as a means to preclude legal review would mean this Court might never have an opportunity to review decisions based on flawed definitions of the elements or misunderstandings about what proof is required to establish guilt. Certainly, when a lower-court sufficiency decision is premised on a mistaken view of the law, it is quite likely that the same court that initially held the evidence insufficient might later find, once its legal error had been corrected, that the verdict was not against the weight of the evidence. 6 NY3d at 874 (Smith, J., dissenting); see also People v Bloomfield (Stuart Creggy), 6 NY3d 165 (2006) (reversing Appellate Division decision that had found evidence to be legally insufficient), on remittal 30 AD3d 151 (1st Dept 2006) (affirming Creggy’s conviction). Most important, rejection of the “alternative theory” device will also ensure that lower courts and litigants around the state are not hamstrung by intermediate decisions purporting to settle legal issues, when those decisions could well be ______________________ this was a factual finding and therefore a weight of evidence finding, to which we continue to adhere.” 40 AD3d 455, 456 (1st Dept 2007). -9- incorrect on the law. Again, the Bloomfield/Creggy decision provides a good example. In that case, the First Department reversed two men’s convictions of falsifying business records, based on their erroneous theory that documents held by a corporate entity’s lawyer, rather than by its corporate managers, cannot qualify as business records under Penal Law Sections 175.05 and 175.10. People v Bloomfield, 15 AD3d 302, 303-04 (1st Dept 2005). On appeal, this Court had the opportunity to correct that legal error and clarify that the location of the records is not dispositive, but only one factor to consider in determining if the records fall within the statutory definition. People v Bloomfield, 6 NY3d at 170. Review and clarification on that point was critical for all the trial courts in the state, who would otherwise have been compelled to follow the First Department’s erroneous initial legal ruling. In other words, had the Appellate Division adopted the defendants’ “alternative theory” device, and had that device been allowed to preclude legal review by this Court, the erroneous decision of the intermediate appellate court could have misled trial courts and litigants for years. That serious risk is equally present in this case. The enterprise corruption statute requires proof that the defendants were associated in an “ascertainable structure distinct from [their] pattern of criminal activity.” Penal Law §460.10(3). Even the defendants seem to acknowledge that the majority below tested the evidence against standards it engrafted onto that statutory language – including a demand for proof of “a leadership structure,” something that can apparently be proven only by evidence of “coordinated ‘planning’” between the defendants and “communications” -10- they have with each other or with others “in furtherance of the enterprise” (Barone Resp. Brief: 22, quoting 101 AD3d at 592). At still other points, the majority’s analysis rested on the legal theory that the structure must be hierarchical to qualify, a legal question that is very much open in this Court (and, we argue on this appeal, wrong).4 Other novel views of the law relied on in defendants’ current arguments and the majority opinion below are likely to do even more damage to the prosecution of organized-crime, business crime, and public corruption – the three principal areas where the statute is used. For instance, many of the defense arguments, and much of majority decision below, appear to rest on the theory that defendants cannot properly be convicted of enterprise corruption unless the corporate enterprise within which they operate is wholly devoted to crime and performs no legitimate work at all. For example, mirroring one portion of the majority opinion, Barone argues that the defendants should not have been convicted because one Testwell client thought the company’s concrete field inspectors did “very good” work at his site (Barone Resp. Brief: 14; see also 101 AD3d at 594). Similarly, Barone attempts to transform the allegation that the “common purpose” of the defendants in the Testwell Group was to make money for Testwell through fraud into a requirement that the evidence 4 Examples include the majority’s observations that “[t]he Western Express decision … reiterates that the People must prove there is … an ‘ascertainable’ hierarchical structure” and that “[o]ther decisions on continuing criminal enterprise similarly rely on evidence of a defendant’s purposeful participation in a distinct hierarchy” (101 AD3d at 590) (emphasis added). -11- establish “that Testwell always employed unqualified workers as a means to enhance corporate profit” (Barone Resp. Brief: 14) (emphasis added). Kancharla, in the meantime, argues that there could not have been a “criminal enterprise” operating within Testwell and corrupting its steel and concrete operations because there was no proof that other services – like its soil and asbestos testing – were also tainted by crime (Kancharla Resp. Brief: 11, n.7). Similarly, the majority below appeared to agree with the defendants that the proof of enterprise corruption was inadequate because the crimes charged generated only a small portion of the company’s revenue, rather than the millions generated by defendants in some other enterprise-corruption cases (Barone Resp. Brief: 17, n.7; Kancharla Resp. Brief: 11, 13; see also 101 AD3d at 593). Simply put, this Court has the power to review and correct these legal determinations.5 5 The cases relied on by Barone in his response brief are not to the contrary. In People v Medina, 111 AD2d 653 (1st Dept 1985), appeal dismissed, 67 NY2d 644 (1986), the court reduced a stolen property conviction notwithstanding testimony in the record indicating that the value of the property exceeded the higher charge’s $1,500 threshold. As such, the reversal was plainly on the weight of the evidence and this Court properly dismissed the appeal. 67 NY2d at 644. People v Letterlough, 203 AD2d 589 (2nd Dept 1994), appeal dismissed, 84 NY2d 862 (1994), is even further afield. There, the Appellate Division reversed a robbery conviction “on the facts,” and, in Barone’s words on this appeal, “weighed the evidence presented on this issue and made a dispositive factual finding concerning an essential element of the crime” (Barone Resp. Brief: 11). This Court, unremarkably, subsequently dismissed the appeal. 84 NY2d at 862. But Letterlough, a clear case of factual review by the intermediate court, is a far cry from the present case, in which the discussion of legal sufficiency was paramount in the majority’s opinion, and any weighing of facts – which we dispute occurred at all – took place as an afterthought to the central sufficiency holding. -12- B. The Defendants’ Illusory Sufficiency Analysis By way of a point heading, Kancharla suggests that he intends to argue that the evidence of enterprise corruption was legally insufficient (Kancharla Resp. Brief: 3). But he never does make a sufficiency argument, and both defendants, in fact, steer clear of any discussion of the merits of that issue.6 Instead, refusing to view the evidence in the light most favorable to the People, and ignoring inferences that can be drawn in favor of guilt, both defendants limit themselves to arguments addressed only to the relative probative strength of the proof, or at least of small items culled from the evidence. At no point do they even recognize that the jury was entitled to reject their view of the evidence. Moreover, even these weight-of-the-evidence arguments are deeply flawed because they are riddled through with many of the same legal errors the Appellate Division majority made, including an attempt to add requirements that the Legislature did not include when it defined enterprise corruption. For example, Kancharla makes much of the fact that he was convicted of enterprise corruption for his involvement in the mix-design and steel-inspection schemes, but not any of the other crimes charged (Kancharla Resp. Brief: 7-8). By this argument, he seems to be suggesting that the enterprise-corruption statute requires proof that a defendant – or at least a criminal enterprise’s “leader” – must ______________________ 6 Barone’s point heading speaks only to the weight of the evidence and his arguments address only the Appellate Division’s “factual findings in favor of defendants” (Barone Resp. Brief: 13). -13- know of and participate in all of the enterprise’s crimes. The statute, however, requires only that a defendant intentionally participate in the affairs of the enterprise by participating in a pattern of criminal activity (Penal Law §460.20[1][a]), not in each and every one of its schemes. Nor is a defendant required to know about all of the enterprise’s schemes. Rather, what is required is that a defendant have “knowledge of the existence of [the] criminal enterprise and the nature of its activities,” and that he commit his own crimes with intent to “conduct or participate in [its] affairs.” Penal Law §460.20(1)(a). In other words, each defendant must be aware of the basic structure and purpose of the enterprise and intentionally participate in its affairs, but need not know of every single criminal act committed by his associates in the enterprise. Here, viewed in the light most favorable to the People, the jury was justified in concluding that Barone and Kancharla were aware of the criminal ventures carried out by their confederates and how those schemes benefitted the enterprise as a whole. Indeed, contrary to Kancharla’s complaint that there was “no proof of banding” (Kancharla Resp. Brief: 10), the nature of the crimes Barone and Kancharla committed individually and together with each other provided the motive for the other schemes: altering field test results ensured no one would question the mix- design testing, and tampering with lab results served to hide the flaws in the field- inspection process (see People’s Opening Brief: 95-97). The way in which some schemes worked seamlessly together to ensure the success of the other schemes and -14- furthered the goals of the enterprise as a whole was convincing proof that the defendants were working together in a corrupt criminal enterprise. At a minimum, the majority below should have respected the jury’s right to draw these inferences. Other defense arguments appear to rest on the theory that they could not be convicted of enterprise corruption unless the company within which they operated was wholly devoted to crime and performed no legitimate work at all. For instance, the defendants find it significant that the profit generated from their illicit schemes was only a small percentage of the company’s total revenue (Barone Resp. Brief: 17, n.7; Kancharla Resp. Brief: 11, 13), that other arms of Testwell’s business seem to have operated legitimately (Kancharla Resp. Brief: 11, n7), that one client thought Testwell’s concrete field inspectors did “very good” work on his job (Barone Resp. Brief: 14), and that Testwell did not “always” employ unqualified workers (Barone Resp. Brief: 14). In fact, though, the statute does not require proof that the defendants corrupted every aspect of the company they used as a vehicle for the crimes they did commit. Nor does proof that the company did legitimate work and secured honest profit in one division undermine a finding that the defendants formed a criminal enterprise that used other corporate divisions as a vehicle to commit their pattern of criminal activity. And, of course, the Legislature did not create a threshold dollar amount for this statute. Equally important, in making this argument, the defendants make no effort to marshal all the relevant facts and view them in the light most favorable to the People. -15- Instead, they routinely grasp at some small bit of evidence that might support their argument and then treat it as dispositive. For instance, Barone asserts that the People “fail[ed]” to prove that Testwell hired unqualified concrete field inspectors and supports that notion with the claim that one defense witness “gave equivocal testimony regarding [field inspector] Kennedy’s certification” (Barone Resp. Brief: 14). What Barone ignores is the fact that the People’s case included incontrovertible evidence from the licensing agency that Kennedy was never ACI certified; instead, Kennedy had tried to pass the necessary tests but failed them (Nehasil: R1037, R1039). Indeed, the defense stipulated at trial that Kennedy was not certified (R1038 [“Judge, we’ll stipulate that [Kennedy and Hoyos] weren’t ACI certified”). In addition, even the cited-to defense witness admitted that Kennedy had worked at the Jet Blue job site, under Barone’s supervision, for two years (R1440). Thus, viewed in the light most favorable to the People, the evidence as a whole clearly supported a finding that Testwell used unqualified field inspectors – not for two days, as the majority below supposed – but for substantial periods of time on jobs Barone himself supervised.7 7 In a similar misreading of one bit of testimony, Kancharla tries to imply that Kennedy might have been working in some job that did not require ACI certification (Kancharla Resp. Brief: 12 n.8, citing SSA4-5). Notably, though, what “the People’s own witness acknowledged” (id.) was that technicians who worked at the concrete supplier’s plant might not need ACI certification (SSA4-5). Here, however, the evidence established that Kennedy was working in the field for Jet Blue and the School Construction Authority and he was, in fact, listed as performing concrete “field inspection” on Testwell’s own reports about -16- Barone’s discussion of Jamar Sellers’s testimony about how Sellers worked for months without the required certification is equally flawed. Barone is right that, when Sellers first joined the company, he worked as a helper along with a trainer/supervisor (Sellers: R293). However, Barone ignores the testimony that follows, in which Sellers explained that he was sent out on his own without supervision long before he obtained the necessary certification. Q: When you went out on your own, did you have your ACI? A: No (R294). Indeed, Sellers estimated that it took “nine or ten months” after he began working by himself for him to get the necessary certification (R295). Kancharla takes a similarly-flawed approach when he proffers up a purported legal sufficiency analysis. For instance, he takes issue with the conclusion that he ended up recruiting Thumma into the mix-design scheme when Thumma became suspicious and began asking questions about Porter’s role at the company (Kancharla Resp. Brief: 17 n.11). Again, however, viewed in the light most favorable to the People there is no question on that point. Thumma stated, after all: “My best recollection is I was asking about the details how this program works and how these numbers are generated, how these numbers come up and the right way to do it, what ______________________ those jobs (e.g. R1624) – and there is no doubt field inspection was a job that required ACI certification. -17- does that mean, something like that, in these lines. I have asked some questions, may not be exactly, meaning in that sense” (R796). Kancharla’s response to those questions was to recruit Thumma into the scheme (R796). At another point (Kancharla Resp. Brief: 17-18), Kancharla tries to put an exculpatory gloss on part of Thumma’s testimony by quoting it without the parts that do not support the defense cause. To set the matter in context, it is clear that the jury knew that, at one point, Thumma wanted to put an end to the mix-design scheme, but nonetheless continued to do his part because he feared he would be fired.8 Taken together with that evidence, the jury was certainly justified in concluding that Thumma’s decision to join the scheme in the first place (K221) was also prompted by a concern that he would be fired if he chose not to follow the practice. Kancharla can suggest otherwise only by deleting Thumma’s initial acknowledgement that he knew that signing and approving the false test reports was “not appropriate” (K221), and expunging Thumma’s statement that he went along with the scheme because “it became like a kind of in my mind [a] good time to follow” what his boss and his colleagues were doing (K221). In short, defendants can criticize the legal sufficiency of the evidence only by turning the standard on its head, viewing the evidence in the light most favorable to 8 Specifically, Thumma said that “this [was] an area of concern for me and at the same time I am an employee there working for a salary to make ends meet and I can’t simply say no from today I’m not going to sign” (Thumma: R819-20). -18- them, and then erecting hurdles not envisioned by the enterprise-corruption statute. When the evidence is viewed in its proper light and is measured against the elements that are defined by the statute, it becomes clear that the evidence was legally sufficient and that the jury’s verdict should stand. * * * The Appellate Division majority made its most fundamental error when it failed to draw reasonable inferences from the pattern of crimes and schemes the defendants committed with their Testwell associates. As we pointed out in our opening brief, Justice Catterson believed that neither defendant should have been convicted of any crime, but the rest of the majority disagreed: the rest of the majority, like Justice Manzanet-Daniels, found that the evidence supported the jury’s conclusion that the defendants were guilty of the underlying crimes. Having decided on that holding, they were obliged then to consider all of the reasonable inferences that flowed from the pattern of underlying crimes and to assess those inferences in the light most favorable to the People. They failed to do so. This Court has long recognized that a jury may infer that two people are working together for a common criminal purpose from the pattern of criminal activity they commit. See People v Flack, 125 NY 324, 332-33 (1891) (a corrupt agreement between two or more individuals to do an unlawful act “may be established by … inference, as a deduction from conduct which discloses a common design on the part of persons charged to act together for the accomplishment of the unlawful purpose”); -19- People v DiNapoli, 108 AD2d 650, 658 (1st Dept 1985) (Sullivan, J., dissenting) (in assessing the sufficiency of conspiracy charge, analyzing each fact as an isolated piece of evidence “ignored the clear inferences to be drawn from defendant’s pattern of behavior in all four transactions”), majority opinion rev’d and indictment reinstated 66 NY2d 812 (1985); see also People v Gerard, 50 NY2d 392, 399 (1980) (“from the pattern of facts and deceptions as a whole emerges a solid basis for inferring” that defendant “masterminded” the plot to race a prizewinning horse posing as a longshot). Here, the nature of the crimes each Testwell defendant committed and the pattern into which they fell made it fair to infer that all the defendants were part of a concerted enterprise united by a common purpose. -20- CONCLUSION The order of the Appellate Division, First Department, reversing the enterprise-corruption counts should be reversed, the order affirming the defendants’ convictions of the other crimes should be affirmed, and the matter should be remitted to the Appellate Division for a consideration of the facts. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov By: ______________________ ADA Amyjane Rettew DANIEL R. ALONSO GINA MIGNOLA AMYJANE RETTEW Assistant District Attorneys Of Counsel January 2014
