The People, Respondent,v.Nicholas Brooks, Appellant.

Brief

N.Y.February 7, 2018

APL-2016-00141 To be argued by DAVID M. COHN (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - NICHOLAS BROOKS, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 ALAN GADLIN DAVID M. COHN ASSISTANT DISTRICT ATTORNEYS Of Counsel MAY 12, 2017 -i- TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 3 THE TRIAL ........................................................................................................................... 5 The People’s Case ....................................................................................................... 5 Defendant’s Case ...................................................................................................... 14 The People’s Rebuttal Case ..................................................................................... 17 POINT I THE TRIAL COURT CORRECTLY APPLIED THE FRYE STANDARD. .................................................................................... 18 A. The Relevant Record ................................................................... 18 1. The Frye Hearing ............................................................... 18 2. The Trial ............................................................................. 22 B. The court’s rulings were appropriate exercises of discretion. ............................................................................................ 23 C. Any error was harmless. .............................................................. 33 POINT II THE COURT RESPONDED MEANINGFULLY TO THE JURY’S READBACK REQUESTS ................................................. 37 A. The Relevant Record ................................................................... 37 B. The court responded meaningfully to the jury’s requests. ............................................................................................... 41 -ii- POINT III EVIDENCE OF CACHAY’S STATE OF MIND WAS PROPERLY ADMITTED. ......................................................................... 45 A. The Relevant Record ................................................................... 45 B. The state-of-mind evidence was properly admitted. ............... 48 POINT IV THE TRIAL COURT PROPERLY DENIED DEFENDANT’S POST-VERDICT MOTION ...................................... 54 A. The Relevant Record ................................................................... 54 B. Defendant’s motion was properly denied. ................................ 58 CONCLUSION ................................................................................................................... 62 WORD COUNT CERTIFICATION .............................................................................. 63 -iii- TABLE OF AUTHORITIES FEDERAL CASES Delaware v. Van Arsdall, 475 U.S. 673 (1986) ..................................................................... 25 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ........................................................passim Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892) ......................................... 50 Tanner v. United States, 483 U.S. 107 (1987) ........................................................................ 61 STATE CASES People v. Walker, 83 N.Y.2d 455 (1994) ............................................................................... 25 Cornell v. 360 West 51st Street Realty, 22 N.Y.3d 762 (2014) .............................................. 24 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006)................................................................... 24 People v. Almodovar, 62 N.Y.2d 126 (1984) .......................................................................... 42 People v. Berry, 27 N.Y.3d 10 (2016) ..................................................................................... 24 People v. Besner, 21 Misc. 3d 144(A) (App. Term 1st Dept. 2008).................................... 43 People v. Brooks, 134 A.D.3d 574 (1st Dept. 2015) .......................................................passim People v. Brown, 48 N.Y.2d 388 (1979) ................................................................................. 59 People v. Buie, 86 N.Y.2d 501 (1995) .................................................................................... 49 People v. Cass, 18 N.Y.3d 553 (2012) ................................................................................... 48 People v. Charleston, 56 N.Y.2d 886 (1982) .......................................................................... 32 People v. Corby, 6 N.Y.3d 231 (2005) .................................................................................... 25 People v. Davis, 58 N.Y.2d 1102 (1983) ............................................................................... 50 People v. DeJesus, 42 N.Y.2d 519 (1977) ............................................................................... 31 People v. Dorm, 12 N.Y.3d 16 (2009) .................................................................................... 49 People v. Frankline, 27 N.Y.3d 1113 (2016) ......................................................................... 49 -iv- People v. Freidgood, 58 N.Y.2d 467 (1983) ............................................................................ 58 People v. Gamble, 18 N.Y.3d 386 (2012) ............................................................................... 49 People v. Gilmore, 66 N.Y.2d 863 (1985) .............................................................................. 36 People v. Gonzalez, 38 N.Y.2d 208 (1975) ............................................................................ 31 People v. Halter, 19 N.Y.3d 1046 (2012) .............................................................................. 25 People v. Irizarry, 83 N.Y.2d 557 (1994) ............................................................................... 58 People v. James, 93 N.Y.2d 620 (1999) .................................................................................. 50 People v. LeGrand, 8 N.Y.3d 449 (2007) .............................................................................. 24 People v. Long, 307 A.D.2d 647 (3d Dept. 2003) ................................................................ 42 People v. Lourido, 70 N.Y.2d 428 (1987) .............................................................................. 42 People v. Martinez, 257 A.D.2d 410 (1st Dept. 1999) ......................................................... 49 People v. McCullough, 27 N.Y.3d 1158 (2016) ...................................................................... 24 People v. Miller, 91 N.Y.2d 372 (1998) ................................................................................. 24 People v. Molineux, 168 N.Y. 264 (1901) .............................................................................. 48 People v. Morris, 27 N.Y.3d 1096 (2016) .............................................................................. 42 People v. Nicholson, 26 N.Y.3d 813 (2016)............................................................................ 26 People v. Norrell, 105 A.D.3d 546 (1st Dept. 2013) ............................................................ 61 People v. Oddone, 22 N.Y.3d 369 (2013) ................................................................... 24-25, 28 People v. Powell, 27 N.Y.3d 523 (2016) ........................................................................... 29, 41 People v. Reynoso, 73 N.Y.2d 816 (1988) ............................................................................... 50 People v. Rodriguez, 100 N.Y.2d 30 (2003) ........................................................................... 59 People v. Rodriguez, 71 N.Y.2d 214 (1988) ............................................................... 58-59, 61 People v. Rojas, 97 N.Y.2d 32 (2001) .............................................................................. 48, 51 -v- People v. Santiago, 17 N.Y.3d 661 (2011) .............................................................................. 24 People v. Scarola, 71 N.Y.2d 769 (1988)................................................................................ 48 People v. Speaks, 28 N.Y.3d 990 (2016) ................................................................................ 53 People v. Sutherland, 154 N.Y. 345 (1897) ............................................................................ 49 People v. Taylor, 26 N.Y.3d 217 (2015) ................................................................................. 41 People v. Thau, 219 N.Y. 39 (1916) ....................................................................................... 49 People v. Tosca, 98 N.Y.2d 660 (2002) .................................................................................. 49 People v. Wernick, 89 N.Y.2d 111 (1996) ............................................................................. 24 People v. Wesley, 83 N.Y.2d 417 (1994) ........................................................................... 23-24 People v. Wright, 27 N.Y.3d 516 (2016) ................................................................................ 61 STATE STATUTES CPL 270.35 ............................................................................................................................ 59 CPL 310.30 ............................................................................................................................ 41 CPL 330.30 ....................................................................................................................... 58-59 CPL 330.40 ............................................................................................................................ 58 Penal Law § 125.25 ................................................................................................................. 2 -1- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- NICHOLAS BROOKS, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION In the early morning hours of December 9, 2010, defendant strangled his girlfriend, Sylvie Cachay, and drowned her in the bathtub of their Manhattan hotel room. In an attempt to manufacture an alibi, defendant left Cachay in the tub with the water running and had drinks at a bar with a newfound companion. Hotel employees investigating a water leak subsequently discovered Cachay’s body. Paramedics unsuccessfully attempted to revive her. At about 5:30 a.m., defendant returned to the hotel in an intoxicated state. When informed of Cachay’s death, he barely reacted, remarking only that she had been asleep when he had gone out for drinks. Subsequently, in a statement at the precinct, defendant denied having touched the bathtub. Forensic testing, however, revealed defendant’s DNA on a -2- bathtub fixture. In addition, the autopsy revealed that Cachay had been strangled and then drowned while still alive. On July 11, 2013, a New York County jury convicted defendant of second- degree murder (Penal Law § 125.25[1]), and on September 23, 2013, the Honorable Bonnie G. Wittner sentenced him to a prison term of 25 years to life. The Appellate Division, First Department, unanimously affirmed his conviction, People v. Brooks, 134 A.D.3d 574 (1st Dept. 2015), and a Judge of this Court granted him leave to appeal (A3177).1 1 References designated as “A,” “SA,” “PA,” and “DB” are to defendant’s appendix, defendant’s sealed appendix, the People’s appendix, and defendant’s brief, respectively. -3- QUESTIONS PRESENTED Did the trial court properly exercise its discretion by: 1. Holding a Frye hearing to assess the admissibility of scientific evidence, and limiting the scope of that evidence to theories supported by scientific literature and the facts of the case? 2. Responding to the jury’s readback requests by providing testimony responsive to the jury’s requests that was properly admitted into evidence, and by declining to read back testimony that was not responsive to the jury’s requests or that was elicited in violation of the court’s evidentiary rulings? 3. Admitting background evidence of defendant’s relationship with the victim that was probative of motive, intent, and state of mind, while cautioning the jury that references to defendant’s prior bad acts could not be used to show propensity and that out-of-court statements were not admitted for their truth? 4. Declining to hold a post-conviction hearing on an allegation of juror bias where the juror averred in an affidavit that she had kept an open mind throughout the trial and had followed the court’s instructions, and defendant failed to submit sworn allegations supporting his claim of bias? -4- The Appellate Division found that the trial court properly exercised its discretion in each instance. -5- THE TRIAL The People’s Case In June 2010, 33-year-old Sylvie Cachay began dating defendant Nicholas Brooks, an unemployed 24-year-old who lived off a trust fund. Cachay told friends, acquaintances, and even a stranger on an airplane that they had a “rollercoaster” relationship, with frequent, short-lived break-ups (see PA71, A822-25, A844, A853, A907-09, A956-57, A971, A992-93, A996-1000, A1021-24, A1075-79, A1251, A1253, A1500, A1829-30). Cachay expressed frustration with defendant’s marijuana use, lack of ambition, and unsanitary habits (A823-24, A907, A998, A1087, A1139-40, A1830). Cachay complained too that she paid whenever they went out (A824-25, A1024, A1080-81) and that defendant wanted “porn sex,” by which she meant that he wanted to have “sex all the time” (A1038-39, A1043-44, A1054-55). Cachay was bothered by the fact that defendant frequently took baths at her apartment. As Cachay’s father, brother, former roommate, and friends verified, she did not take baths; she found them “disgusting” and “gross” (PA9, PA39, A853, A1017, A1139-40, A1147-48, A1220, A1478). Cachay and defendant “would drink too much,” resulting in “big arguments” (A951-52). During one argument in October 2010, defendant threatened to kill Cachay and took her keys to prevent her from going home. Cachay, who was “very distressed,” called a friend (Michaela Cawley) that night to talk about the incident. -6- She called another friend (Sharon Lombardo) “first thing” the next morning, still “very upset” about the incident (A825, A1024-28, A1837-39, A1872-73). On November 22, 2010, Cachay told three friends that she intended to end her relationship with defendant (A1138-40, A1221, A1479). Cachay, however, was “concerned” about doing so, because defendant “would get very upset when she tried to have these conversations with him” (A1222). On December 3, during a trip to Miami with two friends, Cachay revealed that she had recently learned that defendant used escorts. She also suspected that defendant had been using her ATM card and making unauthorized withdrawals from her account. In an attempt “to win her back,” defendant promised to write Cachay a handwritten apology (A1479-81, A1840-42). Cachay “put a lot of emphasis [o]n this note” (A1843). On the morning of December 8, Cachay texted a friend (Lucia Tait) that defendant had “lost it” the previous night (A1494). At work that morning, Cachay was “very consumed” with defendant; “all she was talking about[] [was] he better have those letters” (A1169-74). At about 10:40 a.m., Cachay sent defendant an email titled, “Fuck you.” Cachay wrote that she had “supported” defendant “financially and emotionally” for “the past six months.” She proclaimed, “The fact that you cheated on me makes me sick and you will fucking pay.” Cachay added that she was “speaking with the credit card company and the police and I’m going to tell them that I never allowed you to use my card.” Cachay concluded, “Have fun in jail” (A2091- -7- 92). That afternoon, Cachay told Tait that she and defendant had a “really bad fight” the previous evening concerning his use of prostitutes. Cachay remarked that she was “freaked out” (A1494-95). After midnight that night (December 9), Cachay called the SoHo House, a luxury hotel and club where she was a member. Cachay said there had been a fire at her apartment and asked if the hotel had a room available. At 12:31 a.m., defendant and Cachay arrived at the hotel. Front-desk employees Kristen Stephens and George Gamarra checked them in (A1323-28, A1342-43, PA372-73). Cachay appeared “very exhausted,” so Stephens suggested that Cachay go up to the room while defendant finished checking in (A1329, A1360-61, PA374). On the way upstairs, Cachay apologized to Stephens for being “extremely tired,” explaining that she had “taken [her] sleeping pill.” Cachay added that defendant was a “f-in’ stoner” and that he had accidentally set the bed and her hair on fire. She said she had showered before coming to the hotel (A1330-33, A1373). While they were walking, Cachay lost her balance and bumped into a wall. Stephens grabbed her hand and led her into Room 20, on the fifth floor (A1330-31, A1372-73). Stephens helped Cachay get into bed and open a bottle of water. At Cachay’s request, Stephens inspected her hair and saw no visible injury to Cachay’s head, face, or neck (A1327, A1333-35, A1360). When defendant arrived, he asked for ice to be delivered (A1336, A1362). -8- At 12:43 a.m., Stephens went to an empty room next to defendant and Cachay’s room, to look for an item requested by another guest. When Stephens exited the elevator, she heard “raised voices” coming from Room 20, including Cachay’s voice. Before Stephens reached the empty room, “the voices c[a]me to a hard stop,” and she heard nothing but “[s]ilence” (A1337-41, A1348-49, A1363-64). At 12:46 a.m., hotel busboy Titu Mirza delivered ice to Room 20. Defendant escorted Mirza inside, and Mirza placed the ice by the mini-bar (PA640, PA644, PA647-48). Mirza did not see or hear anyone else in the room (PA643). At 12:48 a.m., defendant went downstairs and inquired about food; Gamarra and night manager Brian Alvarez told him the hotel restaurant was still open (PA375- 76, PA413-15, PA446-47). At 12:53 a.m., defendant ordered two meals and had them sent to the restaurant (PA357, PA464, PA467-68). Restaurant staff set up a table for two, but defendant arrived alone. Defendant appeared “distraught,” and he only “pick[ed] at” his food (PA468-71, PA644-45). Defendant returned to Room 20 at 1:48 a.m. (PA665). At 2:11 a.m., the hotel received a complaint about a water leak on the fourth floor (PA291, PA376-77, PA416-17, PA451-52). At 2:19 a.m., defendant appeared at the front desk and asked where he could get a drink. Hotel staff introduced defendant to David Raleigh, who was leaving the hotel at the same time (PA378, A1385-86, A1389-91). Defendant and Raleigh went to a nearby bar, Employees Only, where they drank alcohol and snorted cocaine (A1395-1401; see PA624-30). Around -9- 4:00 a.m., they left the bar, bought beer, and drank in the basement of Raleigh’s apartment building (A1401-02, A1404-07). At one point, defendant told Raleigh he was calling his girlfriend “to check on her,” but apparently she did not answer the phone (A1409-10). A short time later, defendant took the remaining beers and returned to the SoHo House (A1401). Meanwhile, hotel employees investigated the water leak. At 2:36 a.m., a second leak was reported, this time on the third floor. Ultimately, Alvarez and Gamarra followed the path of the water to Cachay’s room on the fifth floor (PA291-92, PA378-79, PA420-24, PA452). At 2:51 a.m., Alvarez and Gamarra entered Room 20 and found Cachay lying face-up in the bathtub, “[f]ully submerged.” Cachay was wearing a turtleneck sweater and panties. The water was running, and the tub was “overflowing” (PA379-81, PA426-27, PA431, PA449). Alvarez pulled Cachay from the tub and began CPR; Gamarra called 911 (PA380-83, PA429-31). Around 3:00 a.m., EMS technicians and police officers arrived (PA95, PA114, PA118, PA132-34, PA137, PA153, PA227, PA383, PA431-32, PA477-48). EMS workers performed CPR and used a tube to pump oxygen into Cachay’s body. But she had been deprived of oxygen for too long and was pronounced dead at 3:33 a.m. (PA153-75). Robert Yee, a medical legal investigator at the Medical Examiner’s Office (“OCME”), arrived and examined Cachay’s body (A1428). Yee observed signs of strangulation on Cachay’s head and neck (A1428, A1433-38, A1445, A1449, A1455-56). -10- The bathtub was swabbed for DNA. Subsequent testing revealed Cachay’s DNA on the water controls, and defendant’s DNA on the “portable hand sprayer” (PA511-12, PA531-33, PA542-44, PA598-602, PA607, PA612). Five bottles of Cachay’s prescription medications were found in the room: Duloxetine (Cymbalta), Carisoprodol (Soma), Pregablin (Lyrica), Topiramate (Topamax), and Lorazepam (Ativan) (A1455, A1536, A1574-75, PA519-21, PA538). Hotel surveillance video showed that only defendant and hotel employees Stephens and Mirza had entered Room 20 that night (A1560, A1588-89, A1595). When defendant returned to the hotel around 5:30 a.m., a police officer informed him that his “girlfriend was hurt.” Defendant barely reacted; he did not ask what happened to Cachay or if he could see her. Defendant said only that she had been asleep when he went out for drinks (A1200-07, PA245-46, PA249, PA254, PA482). Defendant agreed to come to the police station (A1537-39, PA62-63, PA81- 82). At about 11:30 a.m., defendant told Detective Thomas Jones that Cachay was upset with him because he had hired escorts. Defendant said that he wrote an apology letter, but she complained it “wasn’t long enough,” and “they had an argument” (A1549-51, A1588). Defendant added that he had gone to Cachey’s apartment the previous evening, where they lit candles around the bed and had sex. Cachay then “passed out.” While defendant was taking a shower, the bed caught fire, and Cachay’s hair was singed. After defendant put out the fire, they went to the -11- SoHo House. According to defendant, Cachay was so “pilled out” that she fell “a couple of times,” including down the stairs on the way out of the apartment. Defendant said that, at the hotel, Cachay fell asleep, after which he went out for food and had drinks at a bar with another club member (A1547-56, A1573, A1580). Defendant claimed that when he left the hotel room, Cachay was asleep. He denied having drawn a bath for her or having touched the bathtub (A1551, A1580). Defendant subsequently repeated essentially the same story to Detective Alfred Titus (A2037-50). Defendant again admitted that over the previous two days, he had argued with Cachay about his use of prostitutes (A2041-42). He claimed Cachay fell in the shower at her apartment and that she fell on the stairs as they were leaving her apartment (A2046, A2061, A2064). Defendant denied having argued with Cachay at the hotel (A2050). Cachay’s brother, Patrick Orlando, retrieved her personal items from her workplace. Orlando found a note that Cachay had written to defendant urging him to do a number of things, including “get a job,” “prove ambitious,” “be less moody,” “clean up after yourself,” “no smoking,” and “way less to no pot” (PA21-22, PA32- 33). Cachay’s note added, “if you can’t do all these things, then this likely won’t work” (PA34). Orlando also found defendant’s responsive letter, extolling the “deep feelings” he had developed for Cachay over “the past six months” (PA35-36). Defendant wrote that he “love[d] smoking weed,” but added that he “want[ed] to -12- quit” to “prove my love and devotion to you.” Defendant wrote that he would make Cachay “the happiest wife, mother, sister, and daughter in the world” (PA36-37). The police arrested defendant on December 10 (PA67-69). While being transported to Central Booking, defendant asked the detectives “[h]ow much time he could get” and “if he should pay for protection” in prison (A1565-66, PA70-72, PA84, PA332-33). Acting Chief Medical Examiner Barbara Sampson conducted Cachay’s autopsy (A1635, A1638). Cachay’s body exhibited tell-tale signs of strangulation, including numerous petechiae, or tiny hemorrhages, in and around her eyes (A1650-55). Sampson explained that petechiae are present in the “majority” of manual strangulation cases, because when the jugular vein is blocked, “blood essentially backs up,” creating an “increase in pressure in all the blood vessels” and causing tiny bloods vessels in and around the eyes to pop (A1657-59). In addition, Cachay had contusions in the middle and right side of her neck, as well as hemorrhages several layers deep “in the strap muscles of the neck,” indicating “direct compression” of the area, or strangulation (A1664-69, A1674-90). The autopsy also revealed petechial hemorrhages in the lining of Cachay’s throat, another indication of strangulation (A1691). The autopsy also showed signs of drowning. Cachay’s lungs were filled with fluid, and there was “frothy fluid” in her airways, indicating that she had been trying to breathe while being held under water (A1709-13, A1801-02). While Cachay had -13- only a “minimal amount” of fluid in the sphenoid sinus, Sampson explained that many drowning victims have “no water” or a “minimal amount” in their sphenoid sinuses (A1802, A2015-16).2 Further, Cachay suffered various blunt impact injuries, none consistent with falling down. Specifically, Cachay had small cuts and bruises in her mouth, which could have been caused by a hand “pushing the lips against the teeth” (A1659-64). She had hemorrhages on the vertex of her head and by her left temple, consistent with either having been “hit over the head” or “hitting her head against something,” such as the bathtub or a headboard (A1692-96). Further, Cachay had bruises in the middle of her back and on her right arm, wrist, and hand (A1696-97, A1700-04). Cachay had no injuries to her face, hands, elbows, or knees, which are typically associated with a fall (A1662-63, A1692-93, A1701, A1729-30). Testing of Cachay’s blood, conducted by OCME and an outside laboratory, revealed no alcohol, illegal drugs, sleeping pills, or benzodiazepines, a class of drugs that includes Lorazepam (Ativan) and Alprazolam (Xanax). The testing screened for hundreds of prescription drugs and detected five in Cachay’s blood: Topiramate (Topamax), Carisoprodol (Soma), Pregablin (Lyrica), Duloxetine (Cymbalta), and Baclofen (A1714-17, A1720-21, A1768, A1932). Dr. Ann Lena Remmes of the New 2 Sampson also explained that healthy adults who are “neurologically intact . . . do not drown in a bathtub.” If a healthy adult falls asleep in the bath and slips underwater, she will “sit up” as soon as she tries to take a breath and realizes she cannot breathe (A1744). -14- York Headache Center, who had treated Cachay since 2007, had prescribed that combination of drugs to treat Cachay’s migraines, fibromyalgia, and anxiety (A1269- 74). Cachay had never reported “unusual side effects” from the medications (A1277), nor had she complained of seizures or loss of consciousness (A1299). Cachay took her medications as instructed and was “very responsible” in managing them (A1277, A1299). Sampson found no reason to conclude that the prescription drugs, individually or in combination, had contributed to Cachay’s death (A1724, A1757-58). All of the medications found in Cachay’s blood were present in therapeutic levels or lower, with the exception of Duloxetine, which was present in a “somewhat higher amount” (A1720-21). Known fatal overdoes of Duloxetine had involved concentrations more than four times higher (A1721-23). Sampson concluded that the cause of Cachay’s death was “compression of the neck and drowning” (A1736-37, A1740-44, A2027). Sampson stated it was “not a close case” (A2027). Regarding the sequence of events, Sampson explained that Cachay was “strangled first and then . . . forcibly placed under water,” as the frothy fluid in her lungs and airways showed that “she took at least several breaths under water before she died” (A1741-45). Defendant’s Case Dr. Charles Wetli, a former medical examiner, was the sole defense witness. Wetli made $500,000 annually as a consultant, offering medical opinions to litigants -15- and testifying at trials. He expected to be paid at least $17,000 for his work on defendant’s case (A2142-44, A2200-03). In a published article, Wetli described some expert witnesses as “hired gun[s] who will testify to almost anything for a price” (A2270). In a previous wrongful death suit, Wetli had been retained by both sides at different times, and he offered two, contradictory opinions about the cause of the decedent’s death (see A2215-16, A2220-21, A2235-48). After reviewing Cachay’s autopsy report, Wetli could not determine her cause of death. He found “nothing to definitively indicate that she drowned” or that “compression of the neck actually resulted in death” (A2169-70, A2179, A2467-69). Instead, “a number of different scenarios” were “possible” (A2469). As for strangulation, Wetli noted that the petechiae on Cachay’s face and eyes could have been caused by CPR (A2168-69, A2287). In addition, Wetli opined that the injuries to Cachay’s neck were partly attributable to resuscitation efforts (A2159). Wetli noted that there was no damage to the central structures of Cachay’s neck, which he, opined, “are usually injured during the course of manual strangulation” (A2161-62). Wetli acknowledged, however, that Cachay had dozens of petechiae and external and internal injuries to both sides of the neck, indicating that she had been choked at some point that day (A2181, A2195-96, A2363). As for drowning, Wetli asserted that the frothy fluid in Cachay’s lungs and airways could have been caused by a drug overdose, an epileptic seizure, or congestive heart failure (A2164-65). If Cachay had been trying to breathe while being held -16- underwater, Wetli would have expected to find “the sphenoid sinus filled with water,” but instead it had only a “minimal amount” (A2163-64, A2169-70, A2469). Wetli added that all of Cachay’s prescription medications had possible side effects of sedation and, when combined together, could have had a “synergistic effect,” meaning that “two plus two equals six” (A2153, A2167, A2405). Wetli acknowledged, however, that two of the drugs (Baclofen and Duloxetine) could have a side effect of insomnia (A2419-21). Wetli opined that, based on the video of Cachay arriving at the hotel, she appeared to be “under the influence of something” (A2440). He theorized that Cachay’s medications could have rendered her unconscious after she entered the bathtub, and she could have “slid under the water” and drowned (A2171, A2469). Wetli admitted, however, that he was not an expert in toxicology or pharmacology (A2145, A2420, A2422). Further, Wetli acknowledged that Cachay had been found in the bathtub wearing a turtleneck sweater, panties, and a Rolex watch (A2391-93). While this fact was “consistent with somebody placing her there,” Wetli maintained that she might have taken a bath “with clothing on” for some “bizarre reason” (A2392-93).3 3 Wetli agreed that “neurological[ly] intact people don’t ordinarily drown in bathtubs” (A2401). -17- The People’s Rebuttal Case Dr. Robert Allen Middleberg, a forensic toxicologist with NMS Labs, testified that Cachay was taking a routine and safe combination of medications for fibromyalgia (A2519-20, A2529-31, A2536-37). According to a preeminent treatise, the two reported cases of Duloxetine overdoses involved levels significantly greater than those found in Cachay’s blood: one involved a dose “about five times higher,” and the other involved a dose “about ten to fifteen times higher” (A2539-42). The level of the drug in Cachay’s blood after her death was “median” for Duloxetine users (A2552-58). Because of the way Duloxetine spreads through the body, post-mortem levels usually appear artificially high (A2545-47, A2550). Middleberg found no evidence that Cachay had taken her drugs improperly or that her death had resulted from an overdose (A2567, A2595-96). -18- POINT I THE TRIAL COURT CORRECTLY APPLIED THE FRYE STANDARD (DB: Points I and II). Defendant challenges limitations placed by the trial court on the testimony of his paid expert witness and on his cross-examination of the People’s experts (DB: 26- 44). These claims lack merit. A. The Relevant Record 1. The Frye Hearing Before trial, the prosecutor sought a Frye hearing, noting that defendant intended to call Wetli to testify that Cachay “died of an accidental drug overdose” -- a theory “fully at odds” with the evidence and with generally-accepted science (SA1, 6- 7). In a responsive affidavit, Wetli averred that Cachay could have been rendered unconscious by drugs while in the tub, leading her to sink underwater and drown (SA144-45). Wetli added that the “‘minimal amount” of fluid in her sphenoid sinus “would not be expected with a homicidal drowning” (SA146). The court granted a hearing, noting that Wetli’s conclusion appeared to be based on “speculation” and “unsubstantiated” facts (A6). At the hearing, Wetli testified that he would expect to see the sphenoid sinus “filled with water” if the victim drowned, and he would expect “even more fluid” in a forcible drowning since the victim was “trying to breathe” (A252). On cross- examination, however, Wetli acknowledged that it was “possible” to have a forcible drowning with no fluid in the sphenoid sinus (A268-69). Wetli acknowledged too that -19- neither of the two treatises cited in his affidavit (see SA146) discussed the presence of water in the sphenoid sinus of a person who had been forcibly drowned (A494-95). Wetli, in fact, did not know of any “treatises which talk of forcible drownings having to have fluid in the sphenoid sinus” (A495; see A121-22, A376). Further, as a medical examiner, Wetli had worked on only one case (in the 1970s) involving a forcible drowning, and he could not recall whether that victim had fluid in the sphenoid sinus (A269-73). Next, Wetli testified that there was no damage to Cachay’s posterior central neck structures, which he would “expect to see” in a case of manual strangulation (see A228-29, A236, A254). Wetli opined that in “probably 90 percent[]” of manual strangulation cases, the posterior central neck structures, including the larynx and the area around hyoid bone, sustain bleeding or bruising (A393-94). Wetli admitted, however, that he could not cite any treatise to support that 90% statistic (see A405-06). In fact, Wetli acknowledged that he had “never looked it up” (A406), nor could he could recall the last time he had performed an autopsy where the cause of death was manual strangulation (A366). Further, Wetli speculated that the injuries on the top of Cachay’s head could have been caused by her head hitting the headboard of a bed (A501-02), and that the hemorrhaging in her neck could be consistent with being choked during sexual activity (A502-03). Wetli admitted, however, that there was “no information” indicating that Cachay had suffered those injuries during sexual activity (A508-09). -20- In addition, Wetli testified that the drugs found in Cachay’s blood had “sedative effects,” and together, they could have had an “additive effect” (A241, A245-48). Wetli opined that if Cachay “put herself” in a “tub full of water, . . . becoming unconscious and slipping under the water is a distinct possibility” (A241-42; see A304). Wetli acknowledged that only one of the drugs present in Cachay’s system (Duloxetine) was “above therapeutic” levels (A246-48, A430). While Wetli maintained that “[s]ynergy will happen even at therapeutic levels” (A306), he knew of no studies on the synergistic effects of Cachay’s combination of medications (A245- 46). Wetli noted, too, that it was merely “possible” that any particular drug would have a sedative effect on a particular person; “the same drug that could make somebody sleepy could cause sleeplessness in another person” (A472). As Wetli recognized, Cachay’s medical records did not indicate that she had reported “any adverse drug reactions or overdose[s]” (A468-69). Wetli added that one of the drugs in Cachay’s system, Baclofen, would not interact with the other drugs and would, if anything, cause insomnia (A248, A431). Wetli also suggested that Cachay might have been drinking alcohol earlier in the evening, which had metabolized and thus was not present in her blood (A500-01), or that she might have ingested substances such as “bath salts,” which were “not picked up on routine toxicology testing” (A277). Following the hearing, the court precluded Wetli from delving into matters “not supported by the medical literature” (A519). Specifically, the court precluded -21- Wetli from testifying that “without fluid in the sinuses . . . he could not call it a forcible drowning” (A529-30); the court explained that “there is not one treatise in the field that said you can never have forcible drowning if there is no fluid in the sphenoid sinus” (A519; see A530-31). In addition, the court ruled that Wetli could not testify that in “90 percent” of manual strangulation cases he would expect to find damage to the posterior central neck structures, because that statistic was not supported by studies or medical literature (A533). Instead, the court permitted Wetli to opine that damage to the posterior central neck structures would be “consistent with manual strangulation” (A533). The court also precluded Wetli from suggesting Cachay could have been choked during sex, since there was “not one scintilla of evidence this was . . . sex gone bad” (A518). Further, the court ruled that Wetli could not “speculate” that Cachay had “overdosed” (A529), since he had offered “no study or anything” to support his theory that the combination of drugs in Cachay’s system would “cause an overdose” (A527). The court noted that, aside from Duloxetine, Cachay had only “minute traces and therapeutic amounts” of prescription drugs in her system, which “she had been on for years” (A529). The court likewise precluded Wetli from speculating that Cachay had ingested bath salts, that she had been under the influence of alcohol, or that she had taken Ativan or Klonopin. The court explained that testing had revealed no alcohol in Cachay’s system (A517) and that “[t]here was no evidence of bath salts -22- in this case,” nor was there any evidence of Ativan or Klonopin in Cachay’s blood (A531). In response to defense counsel’s argument that the court should not have held a Frye hearing, the court explained that “a lot of” Wetli’s “theories” were “not supported by the . . . medical literature,” and the testimony of an expert could be precluded in that circumstance (A523-24). The court noted that Wetli had worked on only one forcible drowning case in the 1970s and only a “handful” of manual strangulation cases,” and he was not entitled to offer his “personal opinion[s],” based on such meager experience, that were not supported by medical literature (A524-25). 2. The Trial At trial, Wetli testified that that there was no damage to the central structures of Cachay’s neck, which he, opined, “are usually injured during the course of manual strangulation” (A2161-62). Further, Wetli opined that if Cachay had been forcibly drowned, he would have expected to find “the sphenoid sinus filled with water” (A2164, A2170). Wetli added that all of Cachay’s prescription medications had the side effect of sedation (A2153). Thus, he theorized that the combination of medications could have rendered Cachay unconscious, and she could have “slid under the water” and drowned (A2469). In accordance with its pretrial rulings, the court precluded Wetli from testifying that Cachay had been under the influence of drugs not found in her system (see A2148.1-2151, A2438). In addition, the court sustained objections to counsel’s -23- repeated attempts to imply, by asking questions about Cachay’s medical history and drug testing procedures, that Cachay might have been under the influence of other drugs (see, e.g., A1307-08, A1769-78, A1804-1805, A1986-90, A2000-2004, A2569-75). The court reasoned that OCME had performed a “comprehensive toxicology screen” (A2149), and a private lab, NMS, had tested for other medications that Cachay had been prescribed (A2150). The court precluded counsel from speculating, without any evidence, “that there is some unknown drug out there that caused [Cachay] to overdose” (A2150; see A2149, A2183). Similarly, the court sustained objections to defense counsel’s attempts to imply, through questions of Sampson and Wetli, that the injuries to Cachay’s head and neck could have been caused by rough sex or erotic asphyxia (see A1785-88, A1997-99, A2133-36). The court also struck counsel’s summation comments implying that Cachay had sustained those injuries during sex (A2723-26). Indeed, counsel flouted the court’s pretrial rulings so often that it threatened to hold counsel in contempt for further violations (see A1305, A2024, A2576). B. The court’s rulings were appropriate exercises of discretion. As this Court has long recognized, the rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), governs the admissibility of expert testimony in New York. Under the Frye standard, expert testimony may be admitted only after a scientific “principle or procedure has gained general acceptance in its specified field.” People v. Wesley, 83 N.Y.2d 417, 422 (1994) (internal quotations omitted). A trial court may preclude an -24- expert from offering opinions not based on generally-accepted science. See People v. Berry, 27 N.Y.3d 10, 18-21 (2016); People v. Wernick, 89 N.Y.2d 111, 115 (1996); Cornell v. 360 West 51st Street Realty, 22 N.Y.3d 762, 780-786 (2014); Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 449 (2006). Further, a party must lay an “adequate foundation” for “particular” expert testimony offered. Id. at 429. This foundational question is “separate and distinct” from the “Frye inquiry.” Parker, 7 N.Y.3d at 447. Thus, while a qualified expert may draw conclusions from personal experience, he may not “say anything” to the jury merely by prefacing it with “the words ‘in my experience.’” People v. Oddone, 22 N.Y.3d 369, 376 (2013). Indeed, “tolerat[ing] the admission of junk science” would “undermine the basic purpose of Frye.” Id. Instead, a court may assess proffered expert testimony by holding a Frye hearing. See People v. LeGrand, 8 N.Y.3d 449, 457 (2007) (“it was not error for the court to conduct a Frye hearing” to assess expert testimony regarding eyewitness identifications); accord People v. Santiago, 17 N.Y.3d 661, 672 n.3 (2011). Simply put, a trial court fulfills its duty under Frye by making a “reasoned determination concerning the kinds of expert testimony that [are] relevant.” Berry, 27 N.Y.3d at 20. “[T]he admission of expert testimony lies within the sound discretion of the trial court,” and “review beyond the intermediate appellate level is generally unwarranted in the absence of an abuse of discretion.” People v. Miller, 91 N.Y.2d 372, 379, 694 (1998); accord People v. McCullough, 27 N.Y.3d 1158, 1161 (2016) (“trial courts -25- generally have the power to limit the amount and scope of [expert] evidence”) (internal quotations omitted). Likewise, the trial judge retains “wide latitude” to control the scope of cross- examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see People v. Corby, 6 N.Y.3d 231, 234 (2005). The judge is “entitled to weigh the probative value of” cross- examination “against the possibility of confusion, unfair prejudice or cumulativeness.” People v. Halter, 19 N.Y.3d 1046, 1050 (2012). “[T]his Court will intervene only where the trial court ha[s] either abused its discretion or exercised none at all.” People v. Walker, 83 N.Y.2d 455, 459 (1994) (internal quotations omitted). Here, the trial court’s Frye rulings were appropriate exercises of discretion. Initially, in accord with this Court’s precedents, the trial judge correctly held a Frye hearing to assess the scientific basis for Wetli’s proffered theories. Indeed, the treatises cited in Wetli’s affidavit did not support his assertion that the lack of fluid in Cachay’s sphenoid sinus disproved forcible drowning, and Wetli -- who was not a toxicologist -- cited no studies showing that the drugs found in Cachay’s system could combine “synergistically” to cause a loss of consciousness. A Frye hearing, therefore, was necessary to ensure that the jury was not exposed to “junk science.” Oddone, 22 N.Y.3d at 376. Defendant responds that Wetli’s theory about the sphenoid sinus was “common sense” (DB: 31). But if that were true, defendant would not need an expert, whose role is to provide “professional or technical knowledge . . . beyond the -26- ken of the typical juror.” People v. Nicholson, 26 N.Y.3d 813, 828 (2016) (internal quotations omitted). Indeed, Wetli proffered his opinion not as a layperson but as an expert pathologist. Similarly, while defendant asserts that it is “generally accepted” that “drugs interact synergistically,” he supports that assertion not with specific, scientific evidence about Cachay’s medications but with citations to various court decisions discussing synergistic effects of other drugs (DB: 30 n.7). Moreover, defendant’s appellate arguments aside, Wetli offered no support for his theories in his pretrial proffer, necessitating a Frye hearing. Notably, the hearing revealed that several of Wetli’s theories were not supported by generally-accepted science or by the facts. And, following the hearing, the court issued well-considered rulings permitting Wetli to render opinions supported by facts and science but prohibiting him from engaging in unsupported speculation. Thus, as the Appellate Division found, the court properly convened a Frye hearing and correctly precluded Wetli from offering opinions unsupported by either “published authority” or his own experience. Brooks, 134 A.D.3d at 574-75. In fact, the limitations about which defendant complains -- regarding the sphenoid sinus and the injuries to Cachay’s neck (DB: 38-39) -- demonstrate that the Frye hearing served its purpose. At the Frye hearing, Wetli acknowledged that it was “possible” to have a forcible drowning with no fluid in the sphenoid sinus (A269). Thus, the court precluded Wetli, quite correctly, from testifying that “without fluid in the sinuses . . . he could not call it a forcible drowning” (A529-30). Significantly, the -27- court permitted Wetli to opine that if Cachay had been forcibly drowned, he would have expected to find “the sphenoid sinus filled with water” (A2164, A2170) -- a view consistent with the one that Wetli expressed at the Frye hearing (A268-69). Notably, the court permitted Wetli to render that opinion even though he admittedly was unaware of any treatises supporting his view (A495), and despite the fact that his sole experience with forcible drowning as a medical examiner was a single case in the 1970s, in which he could not recall whether there had been fluid in victim’s sphenoid sinus (A269-73). The court, therefore, arguably gave Wetli more leeway than he deserved to promote questionable theories. In fact, at the Frye hearing, another retained defense expert, Dr. Cantanese, testified that there can be a “forcible drowning when the sphenoid sinus is bone dry” (A62; see A123). Similarly, at the Frye hearing, Wetli could not provide any support -- either in medical literature or from his own experience -- for his theory that in 90% of manual strangulation cases, the “posterior central neck structures” sustain damage (A393-94, A405-06). The court, therefore, correctly precluded Wetli from citing that statistic at trial (A533). Still, the trial court allowed Wetli to opine that the central neck structures “are usually injured during the course of manual strangulation” (A2161-62), despite Wetli’s failure to cite any authority for the opinion that such injuries are “usual.” Thus, once again, the court arguably gave Wetli more leeway to press his theories than he deserved. -28- People v. Oddone, supra, on which defendant relies, is not to the contrary. In Oddone, this Court held that the trial court properly exercised its discretion by allowing a medical examiner to testify, based on his personal observations from conducting the autopsy as well as his personal experience, that the petechiae around the victim’s eyes indicated that his neck had been compressed for two to four minutes. See Oddone, 22 N.Y.3d at 375-77. Because the medical examiner’s conclusion was based on his personal observations and experience, this Court upheld its admission, even though scientific treatises did not indicate “how long the neck must be compressed” for the petechiae to form. See id. at 376-77. Here, in contrast, Wetli’s proffered theories -- that the sphenoid sinus is always filled with fluid in a forcible drowning, and that in 90% of manual strangulation cases, the posterior central neck structures sustain damage -- were not supported either by scientific treatises or by his own experience. The trial judge thus properly instructed Wetli to “temper” his opinions (DB: 38), because -- as this Court has recognized -- it would “undermine the basic purpose of Frye” if experts were permitted to present “junk science” to the jury. Oddone, 22 N.Y.3d at 376. Indeed, the compromise brokered by the court -- permitting Wetli to opine that his observations about the sphenoid sinus and posterior central neck structures were significant but not dispositive -- reflected the most accurate view of the science as presented by defendant’s own experts at the Frye hearing. Similarly, the court properly prevented defense counsel from asking speculative questions designed to insinuate, without any evidentiary basis, that Cachay was under -29- the influence of an unidentified drug (DB: 39-42). As the court observed, comprehensive toxicology screening showed that, aside from the five prescription medications, Cachay’s blood had no trace of any other drugs (see A2148.1-2151, A2438). Nor was there a shred of evidence that the testing had been faulty or incomplete. The trial court, therefore, properly prevented defendant from distracting the jury with unsupported, speculative questions. See People v. Powell, 27 N.Y.3d 523, 526 (2016) (upholding preclusion of “speculative third-party culpability evidence”). To be sure, as defendant notes, Cachay walked into a wall at the hotel and requested help opening a water bottle. But that did not “open[] the door” to counsel’s insinuation that another drug must have been in her system (DB: 42). After all, Cachay could simply have been tired from a long and harrowing day. Defendant had no facts supporting the theory that Cachay was under the influence of another drug, and he was not entitled to encourage baseless speculation. Nonetheless, as the Appellate Division stressed (see 134 A.D.3d at 575), the court permitted Wetli to theorize that Cachay’s medications could have rendered her unconscious, causing her to “slid[e] under the water” and drown (A2469). Further, the court permitted defendant to elicit evidence that Cachay’s prescription medications could have had a synergistic, sedative effect (A2153, A2167, A2405). Defense counsel reiterated those points in summation (A2690-92, A2720, A2755-56), emphasizing, too, the lack of fluid in Cachay’s sphenoid sinus (A2745, A2750). Thus, -30- the court allowed defendant to present his defense, precluding only those theories that had no basis in science or the established facts. Further, as the Appellate Division also concluded (134 A.D.3d at 575), the court appropriately threatened defense counsel with contempt for repeatedly violating its evidentiary rulings -- not, as defendant suggests, for counsel’s legitimate “attempts to develop relevant proof and make a record” (DB: 42). Indeed, the record is replete with evidence of counsel’s obstreperous conduct. For instance, despite the court’s pretrial ruling that the defense could not speculate that Cachay had taken Ativan (A530-31), in his opening remarks, defense counsel argued that Cachay had “taken a lot of pills” earlier in the evening and that “one of the pills she took . . . was Ativan” (A790). Additionally, despite the court’s ruling precluding questions about medication prescribed by a psychiatrist, counsel asked Remmes, Cachay’s headache doctor, whether she was aware of Cachay’s Ativan use and whether Cachay discussed other drugs that she had been prescribed (A1311). Counsel also asked both the medical examiner (A2002) and the toxicologist (A2573) whether they had seen Cachay’s psychiatric records. Further, counsel asked questions implying that Cachay had been prescribed medications other than the five identified in the toxicology report (A2003- 04, A2575). Additionally, counsel disregarded the court’s rulings precluding the unsupported theory that Cachay’s neck injuries had been caused by rough sex. Indeed, despite the court’s directive not to link Cachay’s head and neck injuries to the -31- fact that the couple had sex (A2133-39), counsel told the jury: “You can put together those facts” (A2723). Given counsel’s systematic violations of the trial court’s rulings, the court acted within its rights by cautioning counsel on three occasions -- outside the jury’s presence -- that additional violations could lead a finding of contempt (A1305, A2024, A2575-76). A trial judge, of course, may take affirmative action “to enforce propriety, orderliness, decorum and expedition in trial.” People v. DeJesus, 42 N.Y.2d 519, 523 (1977); accord People v. Gonzalez, 38 N.Y.2d 208, 210 (1975) (court properly took “aggressive control of the proceedings” where counsel “persistently failed to obey proper evidentiary rulings”). Significantly, despite the warnings, the court did not hold counsel in contempt, and counsel continued his zealous advocacy on defendant’s behalf. Defendant, therefore, can hardly claim prejudice -- much less a violation of his constitutional rights (DB: 44) -- from the court’s well-justified admonitions. Similarly, contrary to defendant’s argument (DB: 43), the court properly admonished counsel for asking the toxicologist whether Duloxetine is used to treat depression (A2590-2591). As the judge explained, Cachay had not been given the drug for that purpose, and counsel was trying to “sling dirt” with a misleading question (A2590). Finally, defendant asserts that the Frye hearing constituted a “deposition” of Wetli that gave the People unauthorized “discovery.” He complains that “the court imposed no parameters” on the scope of the hearing (DB: 33-35). But these -32- arguments are unpreserved. Although counsel objected to a number of the prosecutor’s questions at the hearing, he did not claim that the questioning exceeded the scope of the hearing or constituted impermissible discovery. Cf. People v. Charleston, 56 N.Y.2d 886, 887-88 (1982) (counsel’s objections “to specific questions” posed by the court did not preserve judicial interference claim challenging court’s “participation as a whole”). In any event, as discussed above, the court properly held a Frye hearing. That some pretrial “discovery” might have resulted was merely an unavoidable side effect; it was not a reason to decline to hold the hearing. By analogy, defendants often obtain “discovery” when a court holds a pretrial hearing on a motion to suppress. But that, of course, is not a valid reason to decline to hold a suppression hearing that is otherwise warranted. Notably, too, the trial did in fact control the scope of the hearing, sustaining many of defense counsel’s objections.4 Indeed, the court curtailed questions that were appropriate for trial and not for a Frye hearing (see A402-03). Regardless, even if this Court concludes that the hearing was unnecessary or overbroad, defendant suffered no articulable prejudice from “the mere fact that a hearing was held.” Brooks, 134 A.D.3d. at 574. Tellingly, defendant does not explain how he was prejudiced by the purportedly excessive “discovery.” And, defendant 4 See A267-68, A270, A271, A276, A281, A284, A290, A292, A293, A303, A321, A324, A328, A341, A343, A344, A345, A359, A372, A382, A387, A396, A397, A398, A401, A402-03, A407, A410, A412, A414, A421, A427, A428, A429, A442, A443, A444, A461, A469, A474. -33- cites no authority holding that, absent specific prejudice, a new trial is an appropriate remedy for an unnecessary or overbroad Frye hearing. Lastly, defendant argues that the Frye standard has been applied unfairly in other cases to preclude the testimony of defense experts (DB: 35-37). But that claim too is unpreserved. Regardless, as demonstrated, the court fairly applied the law here. C. Any error was harmless. In any event, any error was harmless given the overwhelming evidence of defendant’s guilt. To begin, the evidence compellingly demonstrated that Cachay met a violent end under suspicious circumstances. Shortly after she checked into the hotel with defendant, they were heard arguing loudly by a hotel employee who happened to pass by. The argument ended abruptly, turning to silence. Less than two hours later, Cachay was found dead in the bathtub, clothed and submerged underwater, with trauma to her neck and head and water in her lungs. It is undisputed that Cachay had drowned. Moreover, the autopsy revealed that she had been strangled -- even defendant’s paid expert conceded she had been choked. In that regard, Cachay had numerous petechiae in her eyes, contusions and hemorrhaging deep in her neck, blunt force injuries to her head, and cuts and bruises in her mouth, indicating that she had been the victim of a struggle. Further, there was fluid in Cachay’s airways, showing that she struggled to breathe while being held underwater. -34- To be sure, in an attempt to avoid those facts, the defense expert focused on the paucity of fluid in Cachay’s sphenoid sinus and the lack of damage to her posterior central neck structures. But as even he acknowledged, a victim of a forcible drowning will not necessarily have fluid in the sphenoid sinus, and a victim of strangulation will not necessarily sustain damage to the posterior central neck structures. Defendant’s expert could offer only wild speculation that Cachay had slid under water and drowned, rendered unconscious, he posited, by an oft-prescribed regimen of medicines she had been taking for years with no adverse effects. And of course, the defense theory depended on the assumption that Cachay, who despised baths, voluntarily entered the tub -- wearing a turtleneck sweater, panties, and a Rolex watch. Not only was this theory contradicted by the evidence, it was absurd. Significantly, defendant had a strong motive to kill Cachay. They had a tumultuous relationship, and in the preceding weeks, Cachay had repeatedly expressed her desire to break it off. In the days before the murder, the tensions escalated, with Cachay’s discovery that defendant had been using escorts and making unauthorized withdrawals from her account. The morning before the murder, Cachay sent defendant the “Fuck you” email, threatening to report him to the police and concluding, “Have fun in jail.” As the jury undoubtedly realized, these matters were the likely subject of the loud argument overheard by hotel employee Stephens. And, given defendant’s emotional instability, his dependence on Cachay, and his expressed -35- intention to make her his “wife,” the only logical conclusion from the evidence is that he flew into a violent rage when Cachay finally told him they were through. Indeed, no one but defendant had the opportunity to commit the crime; only he and two hotel employees entered the room that night. Further, defendant was still in the room when the front desk learned of a water leak; he did not go downstairs, where he met David Raleigh, until several minutes later. Defendant’s decision to have drinks with Raleigh was an obvious attempt to create an alibi, as he would be long gone when the police found Cachay’s body in the bathtub with the water running. Defendant even tried to call Cachay, for no apparent reason, while he was out with Raleigh -- another attempt to pretend that he thought Cachay was alive. Further, defendant’s statements to the police revealed his consciousness of guilt. When informed that his girlfriend was “hurt,” defendant showed no concern or surprise. Instead, he immediately offered an alibi, claiming she was asleep when he went out for drinks. In subsequent statements, defendant claimed that Cachay had fallen before they arrived at the hotel -- a transparent effort to explain her injuries, which was refuted by the medical examiner’s findings. Defendant also falsely claimed that he had not argued with Cachay at the hotel, unaware that Stephens had overhead their quarrel. And, defendant denied having touched the hotel bathtub -- a statement proved false by DNA testing. Finally, after his arrest, defendant asked the detectives “[h]ow much time he could get” and “if he should pay for protection” in prison. -36- Those were not the statements of an innocent man wrongly accused of a heinous crime. Thus, the evidence pointed to one conclusion only: defendant murdered Cachay. There is no reasonable probability that any error in the trial court’s Frye rulings affected the verdict. See People v. Gilmore, 66 N.Y.2d 863, 867 (1985) (error in curtailing defendant’s testimony harmless “in view of the overwhelming evidence”). -37- POINT II THE COURT RESPONDED MEANINGFULLY TO THE JURY’S READBACK REQUESTS (DB: Point III). Defendant challenges the court’s responses to some of jury’s readback requests (DB: 44-48). His arguments are partially unpreserved and entirely unavailing. A. The Relevant Record During deliberations, in a 5:20 p.m. note on July 10, the jury requested “Testimony regarding intoxication leading to drowning and neurologically intact people not drowning”; “testimony regarding porn sex and or rough sex”; and “Toxicologist and Dr. Remmes’ testimony relating to the video of Sylvie at hotel and his understanding of her state of mind” (A2929-30). The court proposed to instruct the jury, first, that there was “no evidence in this case about ‘rough sex’ or about Cachay being “intoxicated by alcohol” (A2937). Defendant offered no objection (A2937-38). The next morning, the court issued that proposed instruction (A2944). Further, without objection, the court read back Remmes’ testimony about the side effects of Cachay’s prescription drugs and Middleberg’s testimony about Cachay’s “state” at the hotel (A2945). That readback included a passage in which, on cross- examination, Middleberg acknowledged that he had not viewed the video of Cachay “walk[ing] into a wall” and affirmed, in an answer to a follow-up question, that “gathering as much information as you can is important in helping . . . assess the toxicological determination” (A2969; see A2580-81). -38- In addition, following an off-the-record discussion, the court said it was “trying to find” the relevant testimony on intoxication and drowning (A2946). Outside the jury’s presence, defense counsel asked the court to read back Wetli’s testimony that Cachay might have slid under the water and drowned as a result of being intoxicated by drugs (A2947-49; see A2169). The court stated, at the outset, that “[w]e will give everything that he says about neurologically intact people not drowning” (A2948). The court added that it would read back Wetli’s testimony that he was unable to determine whether the drowning was a “forced submersion” (A2952-53; see A2468-69, A2482-83), but would exclude Wetli’s “speculative scenarios” about the “cause of death” (A2953). The court explained that “no scientific evidence” supported Wetli’s “speculation” that Cachay might have been “intoxicated on prescription drugs” (A2948-50). The court noted that the toxicologist and the medical examiner had testified that the levels of prescription drugs in Cachay’s system “would not lead to intoxication by anyone,” adding that Wetli had violated the Frye ruling by opining that Cachay might have been intoxicated (A2949-50). The court added that it was inclined to strike the offending portion of Wetli’s testimony, but the judge relented when defense counsel remarked that he had “summed up on it” (A2949-50). Defense counsel conceded, however, that whether to include that testimony in the readback was “the court’s call” (A2951). Meanwhile, the jury sent another note (11:45 a.m. on July 11) asking the court to “hold off on previously requested testimony until we indicate further” (A2954). In -39- addition, the new note requested the toxicologist’s cross-examination testimony regarding whether he had “viewed the video at [the] hotel,” as well as “[t]estimony on water found in the sphenoid sinus solely in relation to the forcible drowning” (A2954). Regarding the toxicologist, the court remarked to counsel that “[w]e read it” and “[w]e will read it again” (A2954). Additionally, the court stated that it would read back Wetli’s testimony that he would have expected the sphenoid sinus to be “filled with fluid” if Cachay had been “able to struggle” (A2955-58; see A2163, A2429, A2469). The court reiterated, however, that it would not read back Wetli’s speculation that Cachay might have succumbed to drugs and slid underwater (A2956- 57; see A2169-71, A2468-69). The court conducted the readback (A2959-60). At 1:15 p.m., the jury requested Middleberg’s testimony about whether “seeing the video of Sylvie Cachay . . . walking down the hall would be helpful” (A2961). The court stated that the “responsive” testimony, which had previously been read back, was from pages 2867-68 of the transcript (A2961). In that cross-examination testimony, Middleberg stated that he had not viewed the video but he had read the “MLI report” describing Cachay as “spacey” (A2595). Middleberg averred that these facts had no effect on his opinion whether “drugs” were responsible for Cachay’s death, since the medical “findings are not consistent with taking an overdose” (A2595-96). The court declined defense counsel’s request to read back the passage in which counsel asked whether “gathering as much information as you can is important in -40- helping you assess the toxicological determination” (A2961; see A2581). The court explained that counsel had merely asked a “general question,” which was not “responsive” to the jury’s request (A2961). After further discussion, the court conducted the readback (A2961-63). At 2:37 p.m., the jury sent another note, requesting Middleberg’s testimony about the “usefulness of the video, if he had seen it, including . . . a response to specific questions regarding whether viewing the video could have been helpful to him regardless of whether the prosecution or defense asked the question” (A2964). The court again declined to read back Middleberg’s testimony that he would want to gather “as much information as you can,” reiterating, “That is not the question” (A2964). The court proposed to tell the jurors that “[n]either lawyer posed that specific question,” and “we’ve read you all the testimony that’s responsive to that question” (A2968). The prosecutors added that the testimony requested by counsel had already been read back “this morning” (A2969). The court then informed the jury, after reading the note on the record, that “neither lawyer” posed the “specific question” to Middleberg whether it would have been “useful if he had seen the video” (A2970). The court added that “[n]evertheless, we have read to you several times now” the “cross” and “redirect . . . which is most responsive to your question” (A2970-71). Around 3:10 p.m., the jury sent two additional notes asking for testimony about “seizures and anti-convulsants” (A2971-72, A3173-74). The prosecutor argued that -41- the court should limit the readback to Remmes’ testimony that Cachay never complained of seizures. Defense counsel asked the court to read back Wetli’s testimony that frothy liquid in the lungs can be caused by a number of things, including an epileptic seizure (A2164-65), and that one of Cachay’s medications, Pregabalin (Lyrica) can be prescribed as an anti-convulsant (A2415-16). The prosecutor responded that Remmes had prescribed the medication to Cachay for fibromyalgia, not seizures (A2975-78; see A1279). The court said it would limit the readback to Remmes’ testimony that Cachay had not complained of seizures, since there was “not one shred of evidence that she suffered from seizures,” and “the jury should decide the case on evidence and not speculation” (A2973). The court then told the jury that it was giving them “the testimony with respect to Sylvie Cachay and seizures,” and the relevant portion of Remmes’ testimony was read back (A2979). Following the readback, the court instructed the jury, “If you want anything else or some other source, please write me a further note” (A2979). The jury sent no further notes and, at 4:26 p.m., reached a verdict (A2982, A3174). B. The court responded meaningfully to the jury’s requests. A trial court must respond meaningfully to a jury’s request for information. See Powell, 27 N.Y.3d at 532. CPL 310.30 states that when the jury makes a request, the court “must give such requested . . . information . . . as the court deems proper.” Hence, the court “has significant discretion in determining the proper scope and nature of the response.” People v. Taylor, 26 N.Y.3d 217, 224 (2015). Further, the -42- court need not provide information that goes “beyond the jury’s request.” People v. Almodovar, 62 N.Y.2d 126, 132 (1984). To obtain an appellate reversal, a defendant must suffer “serious prejudice” from an inadequate response. People v. Lourido, 70 N.Y.2d 428, 435 (1987). Here, as the Appellate Division concluded, the trial court “provided meaningful responses” to the jury’s questions. Brooks, 134 A.D.3d at 575. Initially, defendant has not preserved his claim that, in response to the jury’s note regarding intoxication and drowning, the court should have read back Wetli’s speculation that Cachay might have slipped under water, due to impairment by drugs, and drowned (DB: 45). At trial, defense counsel raised no objection when the court declined to read back that testimony, because it had been precluded by the Frye ruling. In fact, counsel conceded that whether to read back that testimony was “the court’s call” (A2951). Counsel merely asked the court not to strike Wetli’s testimony (A2950), and the court obliged. Thus, defendant’s current complaint is unpreserved. See People v. Morris, 27 N.Y.3d 1096, 1098 (2016). Moreover, before the court responded, the jury sent another note, asking the court to “hold off” on the readback “until we indicate further” (A2954). The jury sent several more notes but did not again request testimony about intoxication and drowning. Therefore, the jury withdrew its readback request, obviating the need for any response by the court. See People v. Long, 307 A.D.2d 647, 648 (3d Dept. 2003) (jury “ultimately withdrew its request for the read back”). Indeed, by reaching a -43- verdict without renewing its request, “the jury resolved the issue on its own.” People v. Besner, 21 Misc. 3d 144(A) (App. Term 1st Dept. 2008). In any event, as defendant conceded below, the court had no duty to read back testimony elicited in violation of its pretrial Frye ruling. For the same reason, defendant is wrong to argue that, in response to a separate note asking for testimony about water in the sphenoid sinus, the court should have read back the same passage from Wetli’s testimony (DB: 44-45). The court correctly determined that the responsive testimony was Wetli’s opinion that he would expect the sphenoid sinus to be “filled with fluid” if Cachay was “able to struggle” (A2955-58). After all, the jury asked for testimony about the sphenoid sinus, not about drug intoxication. Thus, far from “truncat[ing] the readback” (DB: 45), the court provided the precise testimony requested. Equally unfounded is defendant’s complaint (DB: 46-47) that, in response to two requests for any testimony from the toxicologist (Middleberg) about whether the video of Cachay walking down the hotel hallway would have been helpful, the court should have read back Middleberg’s general testimony that “gathering as much information as [he] can is important” (A2581). First, as defendant acknowledges (DB: 46), the court had already read back that testimony in response to a previous note (A2969). Moreover, the two subsequent notes asked a different, highly-specific question: whether Middleberg believed that viewing the video would have been helpful. The court correctly told the jury that Middleberg was not asked that specific question, -44- because he had been asked only whether gathering information generally was important. And, the court properly reminded the jury that it had previously read back the “most responsive” testimony (A2961, A2964, A2970-71). Nor did Middleberg’s answers to two of defense counsel’s questions, taken together, show that he viewed the video as important (DB: 47). On the contrary, Middleberg testified that notwithstanding any video evidence, there was no basis to conclude that Cachay’s death resulted from an overdose (A2567, A2595-96). Thus, Middleberg’s testimony revealed that the video was not important to his medical opinion. Defendant next contends that in response to the jury’s request for “[t]estimony regarding seizures and anti-convulsants” (A3173-74), the court should have read back Wetli’s musings that frothy liquid in the lungs can be caused by an epileptic seizure, and that one of Cachay’s headache medications, Lyrica, can be prescribed as an anti- convulsant (DB: 47-48). Contrary to defendant’s claim, the court properly limited the readback to Remmes’ testimony that Cachay never complained of seizures. Indeed, Wetli’s musings were unmoored from the facts of the case, as “not one shred of evidence” indicated that Cachay suffered from seizures (A2973-76). Defendant’s proposed readback would have invited unwarranted speculation. In short, defendant’s complaints about the court’s handling of the readback requests are partially unpreserved and wholly without merit. Regardless, for the reasons detailed in Point I(C), above, any error in the court’s responses was harmless. -45- POINT III EVIDENCE OF CACHAY’S STATE OF MIND WAS PROPERLY ADMITTED (DB: Point IV). Defendant contends that the court improperly admitted Cachay’s statements to friends and acquaintances, bemoaning the state of their relationship and expressing her intention to end it. Despite the fact that Cachay’s statements were not admitted for their truth, defendant complains that they were inadmissible hearsay (DB: 48-57). He argues, too, that they constituted improper bad acts evidence (DB: 49). These claims lack merit. A. The Relevant Record To show defendant’s motive to commit murder, the People introduced various statements that Cachay made to friends and acquaintances, as well as to a woman she met on an airplane, expressing dissatisfaction with her relationship. Cachay described the relationship as a “rollercoaster” plagued by frequent, short-lived breakups. She complained that defendant was unemployed, lacked ambition, was messy, and habitually smoked marijuana. Once, in October 2010, she called friends in an excited and disturbed state, relating that defendant had taken her keys and threatened to kill her. Eventually, Cachay told her friends that she intended to end the relationship once and for all. And, just days before the murder, she relayed new discoveries that defendant had used escorts and made unauthorized withdrawals from her accounts. -46- Defendant challenged the admissibility of Cachay’s statements, both prior to trial and by interposing objections during trial. At the outset, the court remarked that Cachay’s statements about escorts and marijuana, which “mirror[ed]” his own admissions, could be introduced (A539-40).5 The court also allowed evidence of defendant’s threat to kill Cachay, since it was “very probative of intent and motive” (A540). The court, however, precluded evidence of defendant’s 2009 threat to kill a previous girlfriend and his 2003, profanity-laced tirade toward his stepmother (A545- 46, A623). Further, the court excluded evidence of defendant’s involvement in “dealing” marijuana (A2314). The court also precluded evidence that, in a previous incident, defendant slapped another man and threatened to slit his throat for looking at Cachay in what he deemed to be a suggestive manner (A540-542, A616, PA407-08). The court initially reserved decision regarding Cachay’s other statements about the relationship, noting that admissibility might depend on the “thrust of the cross and defense” (A553-54). Ultimately, the court admitted the statements referenced above. In addition, the court admitted evidence about the state of the relationship that defendant does not challenge on appeal, including the letters recovered from Cachay’s workplace and the Cachay’s “Fuck you” email to defendant less than 24 hours before her death. 5 The court, however, precluded the People from calling other witnesses to testify that they had seen defendant smoke marijuana (A543, A619) -47- At trial, defense counsel repeatedly sought to characterize the relationship as loving, even if charged. For instance, in his opening, counsel argued that defendant and Cachay “had a boyfriend girlfriend relationship for approximately six months,” which included “anger” and “love” (A786, A789). Counsel called it “ridiculous” to conclude that the December 8 “Fuck you” email drove defendant to murder, noting that the couple had many “back and forth” exchanges and were committed to “mak[ing] it work (A788-90). Additionally, when cross-examining the People’s witnesses, counsel emphasized expressions of love between defendant and Cachay (see, e.g., A1116, PA14, PA405). Counsel introduced a December 7 text message in which Cachay referred to defendant as “my love,” asked him not to smoke, and added, “[T]his is a moment where you have to be strong and prove that to me and to yourself” (A2514). And, in summation, counsel described a relationship of “intense love and affection,” recounting various text messages in which Cachay had expressed feelings of love (A2673-75). The trial court instructed the jury several times that evidence of defendant’s prior bad acts, including his use of drugs and escort services, as well as Cachay’s statements to her friends and acquaintances, could be used for a limited purpose only: to show the background of the relationship, defendant’s motive and intent, and Cachay’s future intent with respect to defendant. The court emphasized that the evidence could not be used to show that defendant was a “bad person,” that he had a -48- “propensity to engage in crimes,” or that he had a propensity to commit the charged offense (A954-56, A1228-29, A1496-97, A1842, A2629). In its final charge, the court reiterated that the aforementioned evidence could not be used to show criminal propensity and was relevant only to the background of the relationship, defendant’s intent and motive (or lack thereof), and Cachay’s state of mind and future intentions toward defendant (A2872-74). Further, the court charged that Cachay’s out-of-court statements, which might ordinarily be considered hearsay, were offered “not for the truth of the statements, but to show that Sylvie Cachay said those things” (A2873). The Appellate Division found Cachay’s statements relevant to her “state of mind” as well as to defendant’s motive, since defendant “was aware of the victim’s attitude.” Brooks, 134 A.D.3d at 576. The Appellate Division added that “[t]he friends’ testimony about disputes between defendant and the victim was similarly admissible.” Id. B. The state-of-mind evidence was properly admitted. Evidence is relevant if it has any “tendency in reason to prove the existence of any material fact.” People v. Scarola, 71 N.Y.2d 769, 777 (1988). Even evidence of a defendant’s other crimes is admissible if probative of some relevant fact other than criminal propensity. See People v. Cass, 18 N.Y.3d 553, 560 (2012); People v. Rojas, 97 N.Y.2d 32, 37-40 (2001). For instance, evidence of uncharged crimes may be admissible if probative of motive, intent, or identity. See People v. Molineux, 168 N.Y. -49- 264, 293 (1901). Additionally, uncharged crimes evidence may be admitted if it provides useful “background information.” People v. Tosca, 98 N.Y.2d 660, 661 (2002). In particular, “[t]he motive for the commission of a homicide is always open to inquiry,” and “considerable latitude in the proof is always allowed.” People v. Sutherland, 154 N.Y. 345, 351-52 (1897). Pertinent here, a defendant’s prior conduct toward an intimate partner is often “probative of his motive and intent to assault” her; it “provide[s] necessary background information on the nature of the relationship”; and it allows the jury to “place[] the charged conduct in context.” People v. Dorm, 12 N.Y.3d 16, 19 (2009).6 Further, a “victim’s espoused intention to terminate [the] relationship with, and stay away from, defendant” supplies a “motive” for the defendant to exact vengeance. People v. Martinez, 257 A.D.2d 410, 411 (1st Dept. 1999). “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice.” Dorm, 12 N.Y.3d at 19. Significantly, too, an out-of-court statement implicates the hearsay rule only if it is “admitted for the truth of the matter asserted.” People v. Buie, 86 N.Y.2d 501, 505 (1995). By contrast, an out-of-court statement offered for a purpose other than its truth -- for instance, to show merely that the statement was made, or to show the 6 The same rule applies even when the prior relationship is not an intimate one. See People v. Frankline, 27 N.Y.3d 1113, 1117 (2016); People v. Gamble, 18 N.Y.3d 386, 398 (2012); People v. Thau, 219 N.Y. 39, 43 (1916). -50- declarant’s state of mind -- is not hearsay. See People v. Reynoso, 73 N.Y.2d 816, 819 (1988); People v. Davis, 58 N.Y.2d 1102, 1103 (1983). Similarly, a declarant’s expressed intention to perform an act in the future may be admitted, notwithstanding the hearsay rule, as evidence that she subsequently performed the act. See People v. James, 93 N.Y.2d 620, 627-31 (1999); accord Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892). The jury is presumed to follow the trial judge’s instructions regarding the admission of evidence. See Davis, 58 N.Y.2d at 1104. Here, Cachay’s statements were highly probative of the People’s theory that defendant killed her in a homicidal rage after she resolved to end their relationship. Critically, Cachay’s statements showed that she was profoundly dissatisfied and had a litany of complaints. She was “freaked out” by the incident where defendant threatened to kill her. And, in the days before her murder, Cachay discovered that defendant frequented prostitutes and, perhaps, had taken money from her accounts. As Cachay told her friends, she was at the breaking point: although she admittedly had a weakness for defendant, she was feeling motivated to end the relationship, once and for all. The jury was entitled to infer that, after defendant accidentally set fire to Cachay’s hair, these tensions boiled over into a heated dispute, which Stephens overheard in the early morning hours of December 9. The jury was entitled to infer, too, that when Stephens heard the dispute end abruptly, it was because defendant, irate at being jilted, resorted to violence. Certainly, the jury had the right to consider -51- Cachay’s statements as relevant to her state of mind about the relationship, since they provided important background to explain why the argument occurred and why, ultimately, Cachay ended up submerged in the bathtub, fully clothed and fatally wounded. Simply put, Cachay’s statements were not offered to show that defendant was an “odious person” (DB: 55-56). The court repeatedly instructed the jury that the evidence could not be used for that purpose. Instead, as discussed, the statements were properly introduced to show Cachay’s state of mind and her intention to end the relationship. Notably, too, Cachay’s complaints to her friends were cumulative of other admissible evidence. For instance, defendant’s own statements confirmed that he smoked marijuana and used escorts. Cachay’s complaints were also aired in the letters recovered from her workplace and in the “Fuck you” email she wrote before her death. Nor did the admission of her state of mind through a variety of witnesses represent a “landslide” of prejudicial evidence (DB: 57). The testimony of multiple witnesses was needed to combat the defense narrative -- that defendant and Cachay were a loving, committed couple who had occasional fights. The fact that Cachay continually complained to numerous people showed that the couple did not merely have passing disputes. The trial court properly gave the People leeway to refute defendant’s misleading description of the relationship. See Rojas, 97 N.Y.2d at 38 (bad acts evidence introduced “to refute defendant’s misleading contentions”). -52- Further, the admission of Cachay’s statements did not implicate the hearsay rule (DB: 48-57). In its final charge, the court instructed the jury, in no uncertain terms, that Cachay’s statements could not be considered for their truth. Instead, reiterating previous instructions, the court emphasized that the statements were admitted to show Cachay’s state of mind regarding the relationship, which was highly probative of defendant’s motive and intent. The jury is presumed to have followed those instructions. For the same reason, defendant is wrong to argue that, by describing Cachay’s statements during trial as “very important” to motive and intent, the court implicitly instructed the jury that the evidence was received for its truth (DB: 53; see A955-56). Indeed, Cachay’s statements did not need to be true in order to be important. On the contrary, Cachay’s statements were significant regardless of their truth, because they showed her subjective dissatisfaction with the relationship and her determination to end it.7 Further, the court’s instruction that Cachay’s statements were not admitted for their truth undermines defendant’s complaint that the First Department has created a hearsay exception for “domestic strife” (DB: 49-52). Indeed, this Court has approved 7 Seizing on an offhand remark by the court, defendant calls Cachay’s statements about his threat to kill her “double hearsay” (DB: 54; see A534). However, Cachay’s statements were not hearsay at all. Defendant’s threat was the admission of a party- opponent, and as discussed, Cachay’s statements about it were admitted only to show her state of mind. Additionally, Cachay’s statements about the threat surely qualified as excited utterances, since Cachay contacted her friends while still frantic from the stress of the event. -53- the admission of background evidence, notwithstanding the hearsay rule, where the jury is instructed not to consider the testimony for its truth. See People v. Speaks, 28 N.Y.3d 990, 991-92 (2016). Defendant next asserts that the court should have permitted him to “impeach the hearsay declarant,” that is, Cachay, with evidence of her drug use (DB: 56). But this was merely an attempt to smear the victim by delving into irrelevant matters. Indeed, whether drugs somehow impaired Cachay’s “ability to observe . . . events” (DB: 56) is beside the point, because Cachay’s observations were not admitted for their truth. Her complaints about defendant were admitted only to show that she believed them and viewed them as a basis to end the relationship. The trial court correctly precluded defendant from attacking Cachay’s character under the guise of “impeaching” her statements. Finally, for the reasons stated in Point I(C), above, any error in admitting the challenged testimony was harmless in light of the overwhelming evidence. -54- POINT IV THE TRIAL COURT PROPERLY DENIED DEFENDANT’S POST-VERDICT MOTION (DB: Point V). Defendant argues that the trial court should have ordered a hearing before denying his post-verdict motion alleging juror bias (DB: 58-62). The court’s ruling, however, was proper, because no sworn factual allegations supported his claim. A. The Relevant Record About a month after the verdict, the prosecutor informed the court about an email from one of the trial witnesses, Lesa McHale Wright, which had been forwarded by a member of Cachay’s family (SA221 [8/19/13 letter]). In the email, Wright stated that, after the trial, she had a “social meeting” with juror number 6, who stated that during the trial, her ex-boyfriend had kicked her, causing a minor injury (SA221). The prosecutor interviewed juror number 6, who recounted the incident in a sealed affidavit (SA221; see SA223-32 [affidavit]). Specifically, juror number 6 recounted that one weekend during the trial, an ex- boyfriend spent the night at her apartment (SA225). After an argument, the ex- boyfriend kicked her and caused her to fall over some furniture. She sustained bruises to her leg and head; she did not regard the injuries as “serious” and did not seek medical attention (SA225-26). The ex-boyfriend left the apartment and subsequently apologized (SA226). The juror stated that this was the first such incident with her ex- boyfriend, that he had always been a “gentleman” before, and that she “did not -55- consider calling the police” (SA226). The juror averred that when she returned to court, she “continued to listen to the evidence and kept an open mind,” and the incident did not affect her “ability to follow the Court’s instructions” and to base her verdict “solely upon the evidence” (SA226). The juror did not “think of informing” the trial judge about the incident, since it “had no effect on [her] role as a juror” (SA226). The juror noted that, after the first day of deliberations, she discussed the incident over drinks with three alternate jurors, who had been excused from jury service (SA227). The juror averred that, during that social meeting, they “did not discuss the case at all” or “what was going on in the deliberations” (SA227). The juror added that she “faithfully complied” with the court’s instructions “not to discuss the case with anyone” and with her “oath to render a fair and impartial verdict” (SA227). The juror recounted that, after the verdict, she sent an email to Lesa Wright “expressing sympathy for Sylvie’s death” (SA227). The two women had drinks, and they discussed “many things” (SA228). The affidavit summarized Wright’s email recounting that meeting, including Wright’s statements that: • The juror described her relationship with her ex-boyfriend as “turbulent”; -56- • Upon returning to court, the juror decided to “cut all ties” with her ex- boyfriend and “realized that [Cachay] had come into her life for a reason”; • After trial, Cachay’s mother “hugged” the juror and warned her to “stay away from men who aren’t good,” which “reaffirmed” her belief of what her ex-boyfriend was “capable of.” (SA228-29). In her affidavit, the juror confirmed that Wright’s email “capture[d] the general topics we discussed,” although there were “some inaccuracies” (SA230). In that regard, the juror had not described her relationship with her ex-boyfriend as “turbulent,” as there had been no previous violence (SA230). Instead, she “probably” had characterized the relationship as “toxic,” because her ex-boyfriend was “immature” and “had to have someone take care of his every need” (SA230). In addition, when the juror remarked that Cachay had “come into her life for a reason,” she meant that because of the possibility of “dying young whether due to a car accident or a crime,” she realized that “we need to live life to its fullest” and do “meaningful things” (SA230-31). She affirmed that the “personal lessons” she took from Cachay’s death “had nothing to do with my analysis of the evidence or my verdict” (SA231). The juror reiterated that she “kept an open mind” throughout the trial and based her verdict on the evidence (SA231). -57- Defendant moved to set aside the verdict, alleging that the juror had violated “her obligations as an impartial juror” and “had a mission to avenge her muse [Cachay]” (SA236). Alternatively, defendant sought a hearing to examine the juror and Wright under oath (SA234). Defendant complained that the prosecutor had “shaped” the juror’s “self-serving affidavit” (SA233-24). The prosecutor responded that the juror had “averred without any equivocation that the incident with her ex- boyfriend did not have the slightest [e]ffect on the performance [of] her duties as a juror,” and defendant had not provided sworn allegations calling her affidavit into question (SA244-45, SA248). Additionally, the prosecutor observed that the juror had spoken to him voluntarily and that defendant’s allegations of misconduct “lack[ed] any basis in fact or law” (SA240, SA245). Justice Wittner denied defendant’s motion, finding “no suggestion of outside influence” or “improper conduct by the juror” (SA274). The judge reasoned: • The juror had “no obligation to report the ex-boyfriend altercation to the Court,” since it “had no effect on her ability to be an impartial juror” (SA274). • The juror’s meeting with the dismissed alternate jurors “did not involve any discussions of the case whatsoever” (SA274). • Neither defendant’s “unsworn letter motion” nor Wright’s “unsworn” email created a “factual basis” warranting a hearing (SA273-74). -58- • Instead, defendant’s factual allegations were “based on speculation,” and the allegations in Wright’s unsworn email were “refuted by the juror” (SA274). The Appellate Division likewise found “no evidence” of juror misconduct or of “prejudice” to defendant’s “substantial right[s].” Brooks, 134 A.D.3d at 576. The Appellate Division added that, absent evidence of “actual impact on the deliberative process,” defendant was not “entitled to a hearing based on expressions of hope that a hearing might reveal the essential facts.” Id. (internal quotations omitted). B. Defendant’s motion was properly denied. A trial court may set aside a verdict if a juror committed “improper conduct” that affected the defendant’s “substantial right[s].” CPL 330.30(2). Critically, a defendant is entitled to a hearing only “upon assertion of facts indicating misconduct,” People v. Irizarry, 83 N.Y.2d 557, 561 (1994), and the motion must include “sworn allegations” of all essential facts, CPL 330.40(2). Indeed, this Court has long discouraged “efforts to undermine a jury’s verdict” by questioning “jurors long after they have been dismissed in hopes of discovering some form of misconduct.” People v. Freidgood, 58 N.Y.2d 467, 473 (1983). To protect the secrecy of jury deliberations, such a hearing should not be held absent “extraordinary circumstances.” People v. Rodriguez, 71 N.Y.2d 214, 218 n.1 (1988). Further, to prevail, the defendant must show “prejudice to a substantial right,” not a “merely speculative” assertion of prejudice. Irizarry, 83 N.Y.2d at 561-62. -59- Critically, “not every misstep by a juror rises to the inherently prejudicial level at which reversal is required.” People v. Brown, 48 N.Y.2d 388, 394 (1979). After all, even when an allegation of bias or misconduct is made during trial, only a “grossly unqualified” juror may be dismissed. CPL 270.35(1). And, a juror is grossly unqualified “only when it becomes obvious” that she “possesses a state of mind which would prevent the rendering of an impartial verdict.” Rodriguez, 71 N.Y.2d at 219 (internal quotations omitted); accord People v. Rodriguez, 100 N.Y.2d 30, 36 (2003) (reversal not required where juror “unequivocally stated that his relationship with” an Assistant District Attorney “did not influence his deliberations in the slightest”). Since a motion under CPL 330.30(2) requires a “fact-intensive” inquiry, the trial court is “vested with discretion.” Rodriguez, 100 N.Y.2d at 35. Here, the trial court properly denied defendant’s post-verdict motion, because there was no evidence that the juror committed misconduct or was grossly unqualified to serve. To the sure, the juror acknowledged that during the trial, her ex-boyfriend kicked her during an argument. She averred, however, that the incident had no effect on her ability to keep an open mind. Indeed, the juror viewed the incident as too inconsequential to report to the police. Thus, contrary to defendant’s argument (DB: 60), the incident did not did not prevent the juror from rendering an impartial verdict. For the same reason, the juror had no duty to report the incident to the court, because she did not view it as something that would call her impartiality into question. -60- Nor is it significant that, during deliberations, the juror mentioned the incident to three alternate jurors who had been dismissed (DB: 61). As the juror averred, they did not “discuss the case at all,” and she “faithfully complied” with the court’s instructions and with her oath “to render a fair and impartial verdict” (SA227). Similarly, the juror’s post-verdict contact with a witness, Wright, did not call the integrity of the verdict into question. As defendant does not dispute, the juror had every right to socialize with Wright after the trial had concluded. Further, the content of their conversation revealed no misconduct. To be sure, the juror concluded that she had learned a lesson from Cachay’s case -- to live life to the fullest and to avoid bad relationships. The juror averred, however, that the “personal lessons” she took from Cachay’s death “had nothing to do with my analysis of the evidence or my verdict,” reiterating she “kept an open mind” throughout the trial and based her verdict on the evidence (SA231). Thus, the juror’s post-verdict reflections to Wright did not show that the incident with her ex-boyfriend “color[ed]” her perception of defendant’s case (DB: 61). Instead, after evaluating the evidence with an open mind and finding defendant guilty of murder beyond a reasonable doubt, the juror merely reflected on her life and drew lessons that she understandably wanted to share with Cachay’s friend. The juror made clear that she took her oath and the obligations of jury service seriously and that she evaluated the evidence fairly and impartially. Thus, the courts below correctly concluded that this was not the rare case that warranted a post-trial inquiry into the -61- jury’s deliberations, which are supposed to remain private absent “extraordinary circumstances.” Rodriguez, 71 N.Y.2d at 218 n. 1; see Tanner v. United States, 483 U.S. 107, 120-21 (1987) (discussing policy against post-verdict inquiry into a jury’s deliberations). Finally, defendant casts aspersions on the prosecutor, asserting that the juror’s affidavit was “transparently designed to bolster the People’s position” (DB: 62). But the prosecutor did not violate any rule by interviewing the juror. Indeed, defense attorneys routinely interview jurors and obtain affidavits to support post-verdict motions. See, e.g., People v. Norrell, 105 A.D.3d 546, 547 (1st Dept. 2013). Simply put, defendant made only bare, unsupported allegations of misconduct, based on an unsworn email, which were refuted by the juror’s sworn affidavit. The trial court thus properly denied a hearing, since defendant “fail[ed] to provide sworn allegations substantiating or tending to substantiate the essential facts.” People v. Wright, 27 N.Y.3d 516, 521 (2016). CONCLUSION The order of the Appellate Division should be affirmed. ALANGADLIN DAVID M. COHN Assistant District Attorneys Of Counsel May 12,2017 Respectfully submitted, CYRUS R VANCE, JR. District Attorney New York County BY:~~ DAVID M. COHN Assistant District Attorney -62- WORD COUNT CERTIFICATION I, David M. Cohn, Assistant District Attorney, hereby certify that the word count for this brief is 13854, excluding the Questions Presented, Table of Contents, Table of Authorities, and this Certification. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes. David M. Cohn -63-