The People, Respondent,v.Nicholas Brooks, Appellant.BriefN.Y.February 7, 2018APL-2016-00141 New York County Clerk’s Indictment No. 6074/10 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against NICHOLAS BROOKS, Defendant-Appellant. >> >> REPLACEMENT BRIEF FOR DEFENDANT-APPELLANT BLANK ROME LLP Attorneys for Defendant-Appellant The Chrysler Building 405 Lexington Avenue New York, New York 10174 212-885-5000 Of Counsel: Susan C. Wolfe Jeffrey C. Hoffman Jerry D. Bernstein Dated: December 20, 2016 To Be Argued By: Susan C. Wolfe Time Requested: 30 Minutes i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 JURISDICTIONAL STATEMENT .......................................................................... 6 STATEMENT OF FACTS ........................................................................................ 7 A. Motion for the Frye Hearing ............................................................... 10 1. The Testimony at the Frye Hearing .......................................... 12 a) Testimony of Dr. Gerard Catanese ................................. 12 b) Testimony of Dr. Wetli ................................................... 13 2. Court’s Rulings After the Frye Hearing ................................... 14 B. The Pretrial Hearsay Ruling ................................................................ 15 C. The Proof at Trial ................................................................................ 16 1. The Testimony of the Friends ................................................... 16 2. The Scientific Evidence ............................................................ 18 3. The Limitations on Cross-Examination Regarding Drug Testing ....................................................................................... 20 4. Limitations on Developing Alternative Explanations for Bruising ..................................................................................... 21 5. The Defense Case: Dr. Charles Wetli ....................................... 23 6. The Jury’s Notes ....................................................................... 24 7. A Juror’s Contact With A Witness ........................................... 25 ii POINT I THE COURT ERRED IN GRANTING A FRYE HEARING AND PERMITTING IT TO BECOME A DISCOVERY TOOL THAT THE PEOPLE EXPLOITED TO PREPARE FOR TRIAL ................................................................................................. 26 A. The Frye Hearing Was Erroneously Granted Because the Expert’s Testimony Did Not Involve a Novel Scientific Theory or Procedure ........................................................................................ 27 B. The Court Erred in Allowing The People To Conduct An Extended Deposition of Dr. Wetli in the Guise of a Frye Hearing ................................................................................................ 33 1. The Problem is Prevalent .......................................................... 35 POINT II THE TRIAL COURT DEPRIVED BROOKS OF A FAIR TRIAL BY RESTRICTING DR. WETLI’S OPINIONS ON THE CENTRAL ISSUE IN THE CASE, PRECLUDING RELEVANT CROSS-EXAMINATION, AND THREATENING DEFENSE COUNSEL WITH CONTEMPT ........ 37 A. The Limitations Placed on Dr. Wetli’s Testimony: Sphenoid Sinus, Posterior Neck Structure, and Drug Testing ............................ 38 B. Limitations on Cross-Examination of the People’s Experts ............... 40 POINT III THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW AND DEPRIVED BROOKS OF A FAIR TRIAL BY WITHHOLDING TESTIMONY THAT WAS RESPONSIVE TO THE JURY’S NOTES ......................................... 44 POINT IV THE TRIAL COURT ERRED IN PERMITTING ELEVEN OF CACHAY’S FRIENDS AND ACQUAINTANCES TO TESTIFY TO A SLEW OF DEROGATORY HEARSAY STATEMENTS ABOUT BROOKS ................................................... 48 A. Applicable Law: There is No Hearsay Exception for Evidence of Domestic Strife in Homicide Cases ................................................ 49 B. The Inadmissible, Prejudicial Hearsay Statements ............................. 53 iii POINT V THE COURT ERRED IN REFUSING TO HOLD A HEARING WHEN A JUROR CONTACTED A WITNESS AFTER TRIAL AND MADE STATEMENTS THAT SHOWED SHE WAS GROSS DISQUALIFIED AS A JUROR ....... 58 CONCLUSION ........................................................................................................ 62 iv TABLE OF AUTHORITIES Page(s) Cases Barran v. Dep’t of Education, 20 A.D.3d 752 (3d Dept. 2005), lv. to app. denied, 5 N.Y.3d 713 (2005) .................................................................................................................. 30 Brown v. Grosso, 285 A.D.2d 642 (2d Dept. 2001) ........................................................................ 33 C. v. ex. rel. Williams v. St. Luke’s-Roosevelt Hosp. Center, 16 Misc. 3d 688 (N.Y.Co. 2007) ........................................................................ 34 Commonwealth v. Reynolds, 17 Mass. L. Rptr. 109 (Middlesex Co. 2003), affd, 67 Mass. App. Ct. 215 (Mass.App. 2006), rev. denied, 447 Mass. 1112 (2006) ....................... 30 Credle v. Astrue, 2012 WL 4174889 (E.D.N.Y. September 19, 2012) .......................................... 29 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) .......................................................................passim In re Montgomery Department of Human Resources, 10 So.3d 41 (Ala. 2008) ...................................................................................... 29 Marsh v. Smyth, 12 A.D.3d 307 (1st Dept. 2004) ......................................................................... 34 Massey v. State, 2011 WL 2418482 (Tex. Ct. App. June 14, 2011) ............................................. 29 Matter of Miller v. Schwartz, 72 N.Y.2d 869 (1988) ......................................................................................... 33 Meth v. Gorfine, 34 A.D.3d 267 (1st Dept. 2006) ......................................................................... 28 Nonnon v. New York, 32 A.D.3d 91 (1st Dept. 2006), affd, 9 N.Y.3d 825 (2006) ................................ 28 v Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597 (2001) ......................................................................................... 49 Ortho-McNeil Pharmaceutical, Inc. v. Teva Pharmaceuticals Industry, Ltd., 344 Fed. Appx. 595 (Fed. Cir. 2009) .................................................................. 30 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) ........................................................................................... 28 People v. Arnold, 96 N.Y.2d 358 (2001) ......................................................................................... 61 People v. Bierenbaum, 301 A.D.2d 119 (1st Dept. 2002), lv. denied, 99 N.Y.2d 626 (2003) .... 50, 51, 55 People v. Brensic, 70 N.Y.2d 9 (1987) ............................................................................................. 49 People v. Buford, 69 N.Y. 2d 290 (1987) ........................................................................................ 60 People v. Canady, 186 A.D.2d 749 (2d Dept. 1992), lv. denied, 81 N.Y.2d 786 (1993) ................. 56 People v. Clark, 81 N.Y.2d 913 (1993) ......................................................................................... 59 People v Harvey, 270 A.D.2d 959 (4th Dept., 2000) ................................................................ 50, 54 People v. Kimes, 37 A.D.3d 1 (1st Dept. 2006), lv. denied, 8 N.Y.3d 881 (2007) .................. 50, 51 People v. Maher, 89 N.Y.2d 456 (1997) ................................................................................... 52, 54 People v. Meadows, 140 A.D. 3d 1596 (4th Dept. 2016) lv. Denied, 28 N.Y.3d 933 (2016) ...................................................................................................... 50, 51, 57 People v. Middleton, 54 N.Y.2d 42 (1981) ........................................................................................... 28 vi People v. Molineux, 168 N.Y. 2d 292 (1901) .................................................................... 51, 54, 55, 57 People v. Morgan, 76 N.Y.2d 493 (1990) ......................................................................................... 49 People v. Natal, 75 N.Y.2d 379 (1990) ......................................................................................... 33 People v. Oddone, 22 N.Y.3d 369 (2013) ............................................................................. 31, 37, 39 People v. Rodriguez, 71 N.Y.2d 214 (1988) ................................................................................... 60, 61 People v. Taylor, 26 N.Y.3d 217 (2015) ......................................................................................... 48 People v. Taylor, 75 N.Y.2d 277 (1990) ......................................................................................... 36 People v. Valez, 298 A.D.2d 213 (1st Dept. 2002), lv. denied, 99 N.Y.2d 565 (2002) ................ 28 People v. Vega, 3 A.D.3d 239 (1st Dept. 2004) ........................................................................... 52 People v. Wesley, 83 N.Y.2d 417 (1994) ............................................................................. 28, 32, 38 People v. Whitaker, 289 A.D.2d 84 (1st Dept. 2001), lv. denied, 98 N.Y.2d 682 (2002) .................. 28 People v. Williams, 5 N.Y.3d 361 (2007) ........................................................................................... 41 People v. Wlasiuk, 32 A.D. 3d 674 (3rd Dept. 2006) .................................................................. 54, 57 Sansevere v. United Parcel Service, Inc., 181 A.D.2d 521 (1st Dept. 1992) ....................................................................... 56 vii Selig v. Pfizer, Inc., 185 Misc.2d 600, affd, 290 A.D.2d 319 (1st Dept. 2002), lv. denied, 98 N.Y.2d 603 (2002) ............................................................................ 32 State v. Austin, 2011 WL 6884793 (Tenn. Ct. App. December 27, 2011) .................................. 30 State v. Kiser, 2006 WL 2076341 (Tenn. Ct. App. July 27, 2006) ............................................ 30 State v. Norton, 1999 WL 508654 (Tenn. Ct. App. 1999)............................................................ 30 State v. Pollock, 2012 WL 4057265 (Tenn. Ct. App. September 17, 2012) ........................... 29, 30 Tyrrell v. Wal-Mart Stores, Inc., 97 N.Y.2d 650 (2001) ................................................................................... 49, 52 United American Life Insurance Co. v. Beadel, 13 Ariz. App. 196, 475 P.2d 288 (Ct. App. Ariz. 1970) .................................... 30 Wiehler v. Barnhart, 2007 WL 840085 (D.Conn. February 9, 2007) .................................................. 30 Zito v. Zabarsky, 28 A.D.3d 42 (2d Dept. 2006) ............................................................................ 28 Statutes P.L. § 125.25(1) ......................................................................................................... 6 Other Authorities Forensic Science Evidence and Judicial Bias in Criminal Cases, Judges’ Journal, 49 (2012) .................................................................................. 35 N.Y. C.P.L. § 240.30................................................................................................ 33 N.Y. C.P.L. § 240.40................................................................................................ 33 N.Y. C.P.L. § 270.35(1) ........................................................................................... 60 N.Y. C.P.L. § 330.30(2) ........................................................................................... 59 viii N.Y. C.P.L. § 460.20.................................................................................................. 6 Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 Am. J. Pub. Health 107 (2005) ........................................................................................................... 36 U.S. Const. amend. VI ............................................................................................. 44 Wes R. Porter, Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends on Who is Asking, Rutgers Law Record, Vol. 36 (2009); available at http://ssrn.com/abstract=1600531. ................................................................ 36, 40 1 PRELIMINARY STATEMENT On December 9, 2010, Sylvie Cachay (“Cachay”) was found submerged in a bathtub at the SoHo House Hotel in New York City. Nicholas Brooks (“Brooks”) was indicted later that month. The People’s theory was that Brooks forcibly drowned Cachay because she intended to break up with him. Brooks contended that Cachay accidentally drowned in the hotel bathtub because of the combined effect of five prescription medications found in her body. His defense was supported by a hotel video showing Cachay nearly incapacitated when she checked in, and an expert’s opinion regarding the combined sedative effects of the drugs and the significance of the minimal amount of fluid in Cachay’s sphenoid sinus. The case was fraught with error. The court erroneously granted the People’s pretrial motion for a Frye hearing to challenge the testimony of the defense expert, Dr. Charles Wetli. At the hearing, the court permitted the People essentially to “depose” Dr. Wetli at great length on subjects far afield from a proper Frye inquiry. The hearing went on for four days and consumed over 500 transcript pages (A 5-556) 1 It was followed by the imposition of rigid and improper restrictions on Dr. Wetli’s opinion testimony at trial. Wetli was prohibited from giving his opinion that: (i) based on the absence of significant fluid in Cachay’s sinus cavity and the absence of damage to her posterior neck structures, he could 1 References to “A” are to the Appendix filed herewith; “Tr.” to the trial transcript separately filed with the Court. 2 not make a finding of forcible drowning; (ii) the drug tests employed by the NYC Medical Examiner were inadequate and the results failed to explain her condition upon her arrival at the hotel; and (iii) bruising found on her neck could have an alternative cause. These erroneous limitations on Dr. Wetli's testimony eviscerated the defense. The court also limited defense counsel’s cross-examination of the People’s medical examiner and toxicologist. Despite evidence that Cachay arrived at the SoHo House “spacey” and disoriented, having ingested five different prescription drugs, the court precluded defense counsel from inquiring about the laboratory process by which the drugs were discovered in Cachay’s system and what other drugs had not been tested for. When defense counsel persisted in his efforts to defend his client and create a record of the questions that were precluded, the trial court repeatedly threatened to hold him in contempt. In addition, the People called eleven of Cachay’s friends and acquaintances to testify about hearsay statements made by Cachay, purportedly to show why she intended to break up with Brooks, i.e., because he was a bad boyfriend and a loathsome person. Over Brooks’ objections, the court admitted the testimony as “background,” on the ground that the hearsay rule does not apply in domestic violence homicide cases, and to show motive. 3 Further, during jury deliberations, the court refused to allow the readback of testimony the jury requested (A 3178-3183). Finally, the court refused to hold a post-trial hearing concerning a juror who contacted a prosecution witness after trial, and told the witness that she had been a victim of domestic abuse during the trial, and how much she identified with Cachay. The Appellate Division, First Department, endorsed all of the trial court’s rulings (A3178-3183); see, infra, Questions Presented. These rulings were errors of law and erroneous applications of law. Individually and in combination, they deprived Brooks of his due process right to a fair trial under the State and Federal Constitutions. His conviction must be reversed. QUESTIONS PRESENTED I. Whether the trial erred in granting the People’s motion for a Frye hearing and allowing the hearing to become a multiple-day, exhaustive deposition of the defense expert, where the expert’s proffered testimony did not involve novel science and was supported by medical treatises and the expert’s vast experience as a medical examiner? The Appellate Division held that a Frye hearing was properly granted because the defense expert was not a toxicologist and could not provide authority 4 for the theory that the five prescription drugs found in Cachay’s system interacted so as to heighten their sedative effect, causing Cachay to die accidentally. The court also found Brooks’ claim that he was prejudiced by the hearing “unsubstantiated” (A 3178). II. Whether the trial court erred: (a) in making post-hearing rulings that limited the testimony of the defense expert on issues central to the defense, including the import of the amount of fluid in the deceased’s sphenoid sinus, the absence of substantial injury to her posterior and central neck structures, and the inadequacy of drug tests done by the New York City Medical Examiner, and (b) in limiting cross-examination of the People’s witness in these areas and threatening to hold defense counsel in contempt for attempting to make a record of the testimony he sought to elicit. The First Department affirmed the trial court’s rulings, holding that the defense expert’s experience performing hundreds of autopsies, but only one involving forcible drowning, was not a sufficient basis for his opinion that “fluid in the sphenoid sinus is a sine qua non marker of forcible drowning” (an opinion that was never in fact proffered). The court also held that defense counsel’s questions about drug-testing were properly precluded because they called for speculation, and the evidence in the case gave the defense “ample room” to argue that the drugs in Cachay’s system may have incapacitated her and caused her to slip under the 5 bath water. In addition, the court found that the trial court did not act improperly in threatening to hold defense counsel in contempt for “flouting the court’s preclusive rulings” (A 3189-3181). III. Whether the trial court erred in refusing to read back testimony to the jury that was directly responsive to the jurors’ inquiries, including, inter alia, testimony of the People’s toxicologist about the significance of considering a video of Cachay’s unsteadiness upon entering the hotel? The First Department held that the court provided meaningful responses to the jury’s questions. Id. at 3181. IV. Whether the trial court erred in admitting, through the testimony of eleven of Cachay’s friends, prejudicial hearsay statements that Cachay purportedly made about Brooks, portraying Brooks as an unemployed, insolvent, marijuana- smoking layabout and letch, who patronized prostitutes and adult entertainment websites and who once threatened to kill Cachay during an argument, where the court admitted the testimony under a non-existent exception to the hearsay rule for “background evidence in domestic violence homicide cases.” The First Department held that evidence of “the victim’s state of mind” and the strife in her relationship with Brooks were relevant to Brooks’ motive to kill Cachay. Relying on its prior case law, the court also stated that the background evidence was related to or “inextricably intertwined with his identify as the killer,” 6 despite the fact that accident, not identity, was the disputed issue in the case (A 3181-3182). V. Whether the trial court err in refusing to hold a hearing regarding a juror who contacted a prosecution witness after trial, and who told the witness she had been the victim of domestic violence during the trial and how much she (the juror) identified with Cachay, instead accepting the People’s choreographed affidavit from the juror in which she explained and minimized the witness’s description of her prior statements. The First Department held that there was no evidence of juror misconduct or that the defendant was prejudiced, and that Brooks was not entitled to a hearing based on his “hope that a hearing might reveal the essential facts” (A3182). JURISDICTIONAL STATEMENT This is an appeal by permission granted on July 1, 2016, by Hon. Eugene Pigott, Jr., following a conference with the parties, pursuant to CPL §460.20 (A3177). The Appellate Division, First Department, affirmed Brooks’ conviction for second degree murder pursuant to P.L. § 125.25(1) on December 22, 2015. Brooks was sentenced to prison for twenty-five years to life on September 23, 2013. The Questions Presented by this appeal are all questions of law preserved for this Court’s review: 7 Question 1: SA9-44,143-151 (Frye motion, cross-motion and for reconsideration); A5-6 (decision granting Frye hearing and denying cross motion); A368, 401, 515, 521, 523, 532 (record citations); Question 2: See Question 1 and A518, 529, 533 (evidentiary preclusions following Frye hearing); A1305-1305, 1604, 1609, 2000- 1, 2024, 2072, 2148-51, passim (record citations to precluded questioning); Question 3: A2913, 2953-2956, 2961, 2964, 2966, 2970-71 (record citations to readback objections and arguments) Question 4: A642-653, 725-727 (opposition to motion in limine); A 535-36, 553, 542, 551 (oral arguments); A1024, 1058-1063; 1064- 1065, 1075-1077, 1080-1081, 1082-1084, 1087-1100, 1139-1141, 1144-1145, 1190-1192, 1221-1223, 1478, 1480, 1495, 1507-1508 (record, objections and arguments) Question 5: SA233-237, 270-275 (motion for a hearing and ruling) STATEMENT OF FACTS In December 2010, Nicholas Brooks and Sylvie Cachay had been dating for about six months and, like many couples, their relationship had its ups and downs. Purportedly to prove the nature and background of the relationship, the People introduced hearsay testimony, texts, and emails containing statements Cachay 8 made to her friends that portrayed Brooks, nine years younger than Cachay, as an unemployed, insolvent, marijuana-smoking layabout and letch, who patronized prostitutes and adult entertainment websites. On December 8, 2010, Brooks met Cachay at her apartment after work. They had sex, as the autopsy report confirmed. After Cachay fell asleep, candles near the bed set fire to the bedding, singeing some of Cachay’s hair before Brooks extinguished the fire. Because of the smoke in the apartment, the couple went to the SoHo House Hotel for the night, where Cachay had membership privileges (A332, 347, 1215, 1220, 2243-4, 2260). When the couple checked into the hotel at 12:30 a.m., a SoHo House employee, Kristen Stephens, noticed that Cachay was falling asleep (A1361). As Stephens assisted her, holding her hand until they reached the room, Cachay walked into a wall and lost her balance, all of which was captured on the hotel’s video (A1372; Ex.32). Stephens testified that Cachay told her that she had already taken a sleeping pill (A1356). Once they were in the room, Stephens observed that she was unable to open a bottle of water (A1360). Sometime during the evening, Cachay had taken a number of prescription medications. Five medications, Duloxetine (Cymbalta), Carisoprodol, Meprobamate, Pregablin (Lyrica) and Topiramate (Topamax), were found in the 9 hotel room and later found in her body in therapeutic dosages, except Duloxetine, which was found in elevated amounts (A1800, 2800, 3043). According to the SoHo House surveillance videos, Brooks received room service at 12:47 a.m., then went to the sixth floor dining room at 1:06 a.m., returning to the room at 1:49 a.m. Thereafter, the front desk received a call about a leak in the room on the 4th floor. Shortly after the leak was reported, Brooks left the SoHo House with another guest and went to a bar. Another leak on the third floor was reported at 2:36 a.m.. A SoHo House employee found Cachay submerged in a bathtub with the water running at 2:50 a.m. The police and EMS pronounced her dead at 3:33 a.m. (Tr. 522, 544, 1422, 1445). Brooks returned to the SoHo House at approximately 5:30 a.m., after spending time at a bar with, and at the apartment of, a male acquaintance. He accompanied the police to the hotel restaurant where he was interviewed and then arrested. Later that morning, New York City Medical Examiners, Dr. Sampson and Dr. McCubbin, performed an autopsy (A1637, 3032). Sampson testified that the cause of death was compression of the neck and drowning (A1740-1743). The defense expert disagreed and defense counsel so informed the People prior to trial. The expert, Dr. Charles Wetli, had spent 17 years as a medical examiner in Dade County, Florida and then 11½ years in Suffolk County, where he served as the Chief Medical Examiner (SA27-218). 10 A. Motion for the Frye Hearing2 Prior to trial, the People moved for a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in order to challenge Dr. Wetli’s anticipated testimony (SA 1-7). In response, Brooks proffered Dr. Wetli’s affidavit summarizing his anticipated testimony, inncluding that he could not make a finding of forcible drowning because the combined sedative side effects of the drugs found in Cachay’s body at the time of her death “could easily have rendered her unconscious while in the tub, leading to an ultimate shut down of the brain mechanism that controls respiration as she sunk under the water and experienced brief asphyxiation” (SA146 at ¶ 4). Further, he opined that Cachay’s death was not the result of forcible drowning because of the “minimal amount” of clear fluid in the sphenoid sinus, which was inconsistent with a homicidal drowning (SA146 at ¶6). His detailed affidavit cited scientific treatises and public information from the National Institute of Health (SA13-36; 143-146). Wetli did not intend to give an opinion on the cause of death, other than that it could not be determined, and the defendant reminded the court that it was not the defendant’s burden to prove a cause of death (SA11, 146). Brooks argued that Dr. Wetli’s testimony would assist the jury in determining whether the People had proved beyond a reasonable doubt that Cachay 2 The Frye motion submissions were filed under seal and are contained in a Sealed Appendix (“SA”). 11 died of neck compression and drowning (SA11 at ¶5). Brooks relied on case law holding that a Frye hearing is warranted only when a “novel” area of forensic science is involved. Determining whether drowning was forcible does not involve “novel science,” nor does an evaluation of the side effects and interaction of prescription medications (SA11 at ¶6; SA13-36). In light of the conflict between the parties’ experts, Brooks cross-moved for a Frye hearing of the People’s expert, which the court denied, and it denied the defendant’s motion for reconsideration (SA9-36; A5-6). In granting the People’s motion for a Frye hearing, the court found that the medical examiner’s conclusion of forcible drowning was supported by the autopsy report and treatises, whereas Dr. Wetli’s opinion of “a drug overdose” was “not based on generally accepted principles or established facts.” The court ordered a hearing “to determine if Dr. Wetli should be permitted to testify as to the cause of death,” even though no such testimony was proffered. The Frye hearing was conducted over four days, resulting in a 500-page transcript, the vast majority of which was cross-examination designed to elicit Dr. Wetli’s view of every scientific aspect of the People’s case and to impugn Dr. Wetli’s credibility (SA147). 12 1. The Testimony at the Frye Hearing a) Testimony of Dr. Gerard Catanese To establish the general acceptability of Dr. Wetli’s analysis and methodology, Brooks called Dr. Gerard Catanese, the current deputy Medical Examiner for Nassau County (A21-216).3 According to Dr. Catanese, Dr. Wetli’s methodology for ascertaining the side effects and interaction of the drugs in Cachay’s system was generally accepted in the medical community. Wetli consulted and referenced the leading pharmacologic treatises on the subject and Catanese verified that the synergistic, i.e. additive, effect of drugs is an accepted concept in the field (A25-33; 37-38). Based on his own experience, Dr. Catanese corroborated Dr. Wetli’s opinion that the minimal amount of fluid in Cachay’s sphenoid sinus was inconsistent with being forcibly held under water, and that the drugs in Cachay’s system could have caused her to lose consciousness and slip under the water (A49). As a result, Catanese concurred that the manner of death was undetermined (A41-54; 168-169). On cross-examination, the People elicited and challenged Dr. Catanese’s own evaluation of the autopsy report and the photographs, over defense counsel’s 3 The court questioned the value of having another medical examiner “give me his opinion [] instead of me deciding whether the evidence of principles that Wetli is relying on is generally accepted in the scientific/medical community” (A13). Brooks argued that, because Dr. Wetli had provided a detailed affidavit, another medical examiner was in the best position to evaluate whether his proposed testimony was based on principles and methods that are generally accepted in the scientific community (A10-12). 13 objection that the purpose of the hearing was to assess whether Dr. Wetli’s method of analysis was generally accepted in the medical community (A83 -86, 125-140). b) Testimony of Dr. Wetli Dr. Wetli, with 30 years of experience as a medical examiner, first in Dade County, Florida, then in Suffolk County, had performed approximately 7,500 autopsies, hundreds of them involving drowning (A220-221, 251). Dr. Wetli testified that the drugs found in Cachay’s system had a sedative effect and that the synergy, i.e. the additive interaction between them, could have resulted in her “becoming unconscious and slipping under the water. . . .” (A241-242; 245-248; 304). In reaching that conclusion, Wetli also relied on the hotel employee’s description of Cachay as “spacey” and that Cachay required the employee’s physical assistance to get to her room. (A242). Wetli also considered the absence of soft tissue damage to certain parts of her neck that, in his experience, is seen 90% of the time in cases of manual strangulation (A228-229, 394). The People’s cross-examination was an extended “deposition,” eliciting Dr. Wetli’s opinions about every aspect of the autopsy report, asking stereotypical trial-type credibility questions, and generally developing the People’s cross- examination for trial.4 4 The court stated on the second day of the hearing that it was setting no time limits and that parties would have “all the time in the world to explore the issues that are relevant” (A197). 14 The People questioned Dr. Wetli about, inter alia: (i) whether he agreed with the observations and conclusions contained in the autopsy report (e.g., A341, 351); (ii) what he saw in numerous photographs and whether he agreed with various propositions and conclusions posited by the prosecutor (SA146 at ¶ 6; A338, 340, 348, 355-361); (iii) whether there was any reason for x-rays to be taken and whether the medical examiner should have tested what looked like a bite mark (A373, 370); (iv) what Dr. Wetli knew about the relationship between Cachay and Brooks (A284); (v) whether Dr. Wetli asked counsel if he could speak with Brooks (A287); (vi) whether Dr. Wetli had worked with defense counsel before (A288- 289), and; (vii) Dr. Wetli’s sources of income (A331-334). The People pursued concessions from Dr. Wetli that would corroborate findings of their medical examiner, e.g., pressing Dr. Wetli to distinguish between bruises on Cachay’s neck that were likely caused by resuscitation efforts (insertion of a lumen catheter) and other types and areas of bruising (A340-358, 360; 385- 391; see 337-360, 391-396). Dr. Wetli maintained his position that he would have expected to see different areas of damage on the neck if there had been manual compression (A393-394, 406). 2. Court’s Rulings After the Frye Hearing After post-hearing briefing, the trial court precluded Dr. Catanese from testifying because he did not opine on the cause of death (A517). The court 15 precluded Dr. Wetli from testifying that: (i) “without fluid in the sinuses he could not call it a forcible drowning”; (ii) 90% of the time in manual strangulation cases he would expect there to be damage to the posterior central neck structure; and (iii) Cachay’s death occurred during sexual activity (an assertion the defense had never made) (A518, 529, 533). B. The Pretrial Hearsay Ruling The People moved in limine prior to trial to introduce conversations (verbal and electronic) between Cachay and her friends and acquaintances in order to show the nature of her relationship with Brooks, which allegedly involved domestic violence (A547-555; 629-630). Brooks countered that these hearsay statements did not fall within any recognized exception to the hearsay rule, and that the evidence did not show a relationship characterized by domestic violence and was unduly prejudicial (A644-646). The court found that “there is no a history [of domestic abuse] here as [in] the other cases,” but it would await the presentation of evidence at trial; if the defense contended that it was a “smooth relationship,” Cachay’s statements could become admissible (A553). The court did not adhere to its preliminary rulings, admitting numerous hearsay statements through Cachay’s friends and acquaintances with few limitations. 16 C. The Proof at Trial The People called police officers, detectives, a paramedic and SoHo Hotel personnel to testify about the events of December 8th and 9th. Supra at 7-8. Dr. Barbara Sampson and Dr. Yee from the medical examiner’s office testified about the autopsy, and Dr. Middleberg, a toxicologist, testified about drug testing reports. The People also called Dr. Remmes, who prescribed the medications for Cachay, and eleven of Cachay’s friends and acquaintances, who testified about statements she made to them. 1. The Testimony of the Friends The prosecution called eleven women, nine of whom were friends of Cachay, another was her personal trainer, and another was an author whom Cachay once sat next to on a plane. Over objection, these witnesses testified to conversations they had with Cachay about Brooks. The testimony, taken together, was a blatant character assassination: Sharon Lombardo: Cachay “complained about him getting stoned all the time . . . partying too much. . . having to pay for everything . . . how angry he got when he would drink” (A1024). Cari Kamm: she met Cachay on an airplane and Cachay told her that Brooks smoked pot too much, had become less like a boyfriend and more like a child, and she was supporting him financially (A996-998). Katherine Erskine: Cachay said “she was frustrated with how often he smoked pot, that he didn’t respect her belongings or her apartment, that he was “overall immature and childish”; that he was unemployed and she paid for him when they went out (A1075-1076; 1078, 1080). 17 Jacqueline Easton: Cachay told her and two other friends/witnesses, that she was ending the relationship because “he was a dead beat, he was a stoner, he lacked ambition, he had no motivation in life, he was not going to ever accomplish anything and he had no job” (A1139). Alicia Maleno: Cachay was “complaining about his habitual marijuana habit,” and that he had no ambition and no job (A1220). Alicia Bell: Cachay told her “he smoked a lot of pot, he didn’t have a job” and she paid for them when they went out (A 823-825; 844-845). Lucia Tait: Cachay told her that Brooks had been stopping by her apartment unannounced, smoking pot, and that she was suspicious he was somehow using her ATM card to make withdrawals (A1478, 1480). Michaela Cawley: Cachay told her that she found Brook’s life choices -- his “lack of a job, drug use, lack of ambition” -- unacceptable (A1252). Cheri Fogelman, Cachay’s personal trainer: Cachay complained that Brooks was a stoner, without employment, and messy (A950-952). Tait, Cawley and Fogelman: Cachay told them that Brooks had used prostitutes in the past, and that he had recently accessed adult websites (A950-952, 963, 1495, 1908-1909). Other evidence was admitted to show that Brooks was late in paying his rent and that he was delivering marijuana to his roommate (A919-927, 2627). In addition, and over objection, Lombardo related statements by Cachay that, in October 2010, Brooks held Cachay’s keys over her head during a dispute outside a bar and threatened to kill her (A 1024-1027).5 The court also admitted, over objection, emails and texts between these witnesses and Cachay (Ex.8, A850, 2988; Ex.18, A958-959, 2998; Ex.23, A1029- 1042, 3000; Ex. 26, A1087-1100, 3003; Ex.29, A1144-1145, 3015; Ex.46 A1225- 5 The testimony was strategically staggered throughout the trial, minimizing any numbing effect from repetition and maximizing the impact of putting Brooks’ character on trial. 18 1229, 3016; Ex.75, A1843-1850, 3022). At the same time, the court barred the defense from attempting to impeach the hearsay declarant (Cachay) because, the court said, it would improperly place character evidence about the deceased before the jury (A1064-1065; 1191). 2. The Scientific Evidence Paramedic Samantha Wilding testified that she arrived at the hotel at 3:02 a.m. Robert Yee, a physician’s assistant from the medical examiner’s office, arrived two hours later. Wilding did not observe, even with a flashlight, any petechiae, small hemorrhages on the eye and inside the eyelids. Her contemporaneous report noted no injuries (A987-989). Similarly, a police officer who examined the body after 4 a.m. testified that there were no physical markings or injuries on the body and no red marks on Cachay’s face (A1206). Wilding testified that EMS’ resuscitation efforts could have caused the injury to Cachay’s lips because of the pressure applied to create a tight seal for the oxygen mask. (A 981-985; see 1995-1996). Robert Yee testified that numerous intravenous catheters and an endotracheal tube in the throat were used (A1427). Yee observed bruising on the sides of Cachay’s neck, but not across the neck (A 1445, 1456). Yee could not tell whether the bruising was two or ten hours old and, therefore, whether it had occurred earlier in the evening independently of Cachay’s death (A1450). 19 The People’s medical examiner, Dr. Sampson, testified that Cachay died from neck compression and drowning, drawing her conclusion from petechiae and injuries to her lips and neck (A 1740-1743). Dr. Sampson testified that aggressive resuscitation efforts accounted for damage to Cachay’s liver and blood that was found at the scene, but she opined that petechiae were not the result of those efforts (A1646-7; 2015). In contrast to Dr. Wetli’s pretrial hearing testimony, Dr. Sampson opined that the existence of water in the sphenoid sinus is an unreliable marker for determining whether someone drowned. Dr. Sampson testified that people have drowned with little or no water in the sphenoid sinus; conversely, liquid in the sphenoid sinus has been found in people who have not drowned (A2015-2016). Notably, this was Dr. Sampson’s first case involving forcible drowning (A1767). Dr. Middleberg, a toxicologist from an independent lab, testified about the medications found in Cachay’s system: Duloxetine (Cymbalta), Carisoprodol , Meprobamate, Pregablin (Lyrica) and Topiramate. Although the Duloxetine concentration was above therapeutic range, Dr. Middleberg claimed that it was normal for people taking the drug therapeutically (A2558). He claimed that the synergistic effect of drugs depends on an individual’s tolerance from usage over time, which would reduce side effects, such as sedation (A2561-2564). Even though he had reviewed the testimony of Kristen Stephens about Cachay stumbling 20 and walking into the wall at the SoHo Hotel, nothing suggested to Middleberg that Cachay was acting abnormally, since she was “able to relate the events of that night seemingly okay” (A2565). Dr. Middleberg had not, however, reviewed the hotel video of Cachay stumbling (A2581). He concluded that the medications in Cachay’s system had no impact on the cause of death (A2566, 2568). Dr. Remmes, Cachay’s personal physician, testified that she treated Cachay for fibromyalgia syndrome and migraines, and she prescribed the five medications found in her system (A1291- 99). The People also called an employee of Rite- Aid, who provided a list of the five medications filled at Rite-Aid that had been prescribed by Dr. Remmes (A2065-2069). 3. The Limitations on Cross-Examination Regarding Drug Testing The Office of the Chief Medical Examiner (“OCME”) tested for the five drugs that were found in the hotel room, (Tr.549; Ex.134), only three of which the OCME’s screen could and did detect (Topiramate, Carisoprodol and its metabolite Meprobamate). A private lab, NMS, tested for the other two, Pregabalin and Duloxetine (A2000, 2004-2005); (A1715-1719, 3043; 1455). Dr. Middleberg of NMS testified that NMS detected the two drugs, as well as another one that had not been requested, Baclofen. Id. Cachay’s doctor, Dr. Remmes, testified that Cachay was taking the five drugs at the time of her death, and that she had prescribed Baclofen for Cachay in the past (A1278-1279). 21 The court limited cross-examination to the five drugs found in the hotel room and listed in the toxicology report and Baclofen (A1300-1308). Whenever defense counsel questioned Dr. Sampson about other drugs, the court admonished him and threatened contempt (A2001; 2024). These limitations were imposed even though the SoHo House employee told detectives that Cachay said she had taken a sleeping pill before arriving at the hotel, and there were four Xanax tablets on the NYPD’s inventory of the hotel room (A1257-1265; 1356; 1575-1577). The court also precluded cross-examination of Dr. Remmes about other drugs that had not been tested for, that Dr. Remmes or other doctors had prescribed or that Cachay said she had taken (A1304-1305). The court precluded Dr. Middleberg from explaining why NMS could do analyses that OCME could not (A2569-2570; 2574-2575). When defense counsel asked Middleberg if it was important to know all of the prescription drugs that a person was taking, the court stated at sidebar: “[t]hose are purposefully misleading questions and in violation of my ruling. I should hold you in contempt” (A2576). The court also precluded questioning of the Rite-Aid representative about any prescription records for other medications (A1604, 1609, 2072). 4. Limitations on Developing Alternative Explanations for Bruising Dr. Sampson testified on direct examination that hemorrhages on Cachay’s scalp were consistent with blunt impact to the head, such as might be caused from 22 the side of a bath tub or a headboard (A1695-1696). She also testified that petechiae can result from compression on the neck that does not cause death (A1781-1782). It was undisputed that Brooks and Cachay had sexual intercourse earlier in the evening. In addition to test results, David Raleigh, who went to a bar with Brooks when Brooks left the hotel, told the police that Brooks said he and Cachay had “mad passionate sex” earlier that evening (A1412-1416, 1785-1788). Nevertheless, the court precluded questioning about whether any of Cachay’s more superficial injuries could have occurred during vigorous sexual activity (A1764- 65; 1784-1785). Similarly, the court granted the People’s request to redact references to sex from text communications between Brooks and Cachay because, according to the court, the defense was “trying to create reasonable doubt, and one way is to make her a bad person” (A1464-1472, 1810-1812). In contrast, the court permitted Cachay’s friends to testify, over objection, that Cachay said Brooks wanted “porn sex,” that he was a selfish lover because he did not perform oral sex, and he used of visited websites offering prostitution (A 472-474; 485, 950-952, 963, 1055, 1075-76, 1840-1843, 1885, 1908-1909). In contrast, the People elicited gratuitous testimony that Cachay was a gentle soul, whose dog had recently been run over by a car in front of her, who brought infant clothing to a charity event, and who brought an injured pigeon to work and tried to nurse it back to health without success (A820-821, 1170-72). 23 5. The Defense Case: Dr. Charles Wetli Dr. Wetli started his long career in forensic pathology as the Chief of the Pathology Unit for the United States Army in Japan. He then spent almost 17 years as the Deputy Chief Medical Examiner in Miami (A2142, 2162). Thereafter, he served for eleven years as the Chief Medical Examiner and Director of Forensic Sciences for Suffolk County, New York. He retired in 2006 (A2143). While employed by Suffolk County he supervised 100 employees, including the toxicology and crime laboratory staff (A2146). He published approximately 125 pathology-related articles in peer reviewed journals and testified in court hundreds of times, both for the prosecution and the defense. He estimated that he had been qualified as an expert over one thousand times (A2143- 2144). During his long tenure in Florida, Dr. Wetli worked on more than a hundred drowning cases and supervised and consulted on many more (A2162). He continued to conduct forensic analyses in drowning cases as the Suffolk County Medical Examiner, and he acquired broad experience in toxicology because autopsies often involved toxicology issues (A2163; 2406-7). He testified that all of the drugs found in Cachay’s system had a side effect of sedation and that, when more than one drug is taken at the same time, the drugs can have a synergistic effect, which he described as -- “two plus two equals six” (A2167). This 24 explained Cachay’s behavior when she arrived at the hotel; “unsteady” and “actually walked into a wall” (A2151-2153, 256). The court precluded Dr. Wetli from testifying about drug testing methods and procedures (A2148-2151). Because the court ruled pretrial that Dr. Wetli could not opine that, because of the paucity of fluid in the sphenoid sinue, he could not call it a forcible drowning, (A518), he testified instead that, if Cachay had been forcibly drowned, he “would expect” to have seen significant fluid in her sphenoid sinus, rather than the minimal amount that was present (A2163-4, 2469). He testified on re-direct that, in the absence of intoxication from medication, he would expect that a person who is able to struggle before drowning would have a sphenoid sinus filled with fluid, not the minimal amount present here (A2467-2469). Accordingly, Dr. Wetli opined that the cause of death could not be determined, because of evidence that Cachay, in a sedative state, could have slipped under the water asphyxiated (A2469). 6. The Jury’s Notes During deliberations, the jury sent out several notes indicating its close attention to the defense theory. Within the first hours of deliberations, the jury requested testimony and documents regarding the bruising on Cachay’s neck, drug ingestion, and toxicology. 25 The court, however, refused to read back testimony about whether there was neck compression from the front or the back (A2912, court excluding A1997, line 21 to A1998, line 9 in readback). In response to another request for a read back of testimony about “porn sex and/or rough sex,” the court told the jury there was no such proof and emphasized that speculation was forbidden (A2937; 2944; 1055) (Cachay’s hearsay statement that Brooks wanted “porn sex”). On the subject of the amount of fluid in Ms. Cachay’s sphenoid sinus, the court limited the readback of Dr. Wetli’s testimony to a few lines of his longer discussion (A2954-2956; 2469, lines 14-17). The court also restricted the read back of testimony the jury repeatedly requested about what materials Dr. Middleberg did and did not review and how they affected his opinion (A2954 referencing A2581; A2961, 3171; A2961 referencing A2581; A2964, 3172; 2966, 2970-2971). 7. A Juror’s Contact With A Witness After the jury’s guilty verdict but before sentencing, the People produced an affidavit from a female juror (“Juror”) who had contacted one of the People’s trial witnesses (“Witness”) and they agreed to meet for drinks. At that meeting, the Juror informed the Witness that, during the trial, her ex-boyfriend stayed over at her apartment and kicked her during an argument. The Juror said she did not seek treatment for a minor injury. The Juror told the People’s Witness that she was inspired by what happened to Cachay; “Sylvie . . . was showing [her] in vivid 26 detail a very clear picture leading [her] in the right direction,” and “inspired her to become a domestic violence mentor” (SA230). 6 The Juror did not inform the court or fellow jurors during the trial of the incident (SA221-270). However, the incident was significant enough that she told three alternate jurors about it when she had dinner with them during deliberations (A227). Without informing the defense, the People interviewed the Juror and prepared an affidavit for the Juror to sign (SA239 at ¶ 10). Brooks moved for a hearing to determine whether the Juror had been so influenced by events in her life during the trial that she could not be fair and impartial. The court denied a hearing (A271-275). POINT I THE COURT ERRED IN GRANTING A FRYE HEARING AND PERMITTING IT TO BECOME A DISCOVERY TOOL THAT THE PEOPLE EXPLOITED TO PREPARE FOR TRIAL Dr. Wetli’s proffered testimony did not involve novel or experimental scientific techniques, the standard for granting a Frye hearing. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Compounding the error, the court then permitted the Frye hearing to become a full-fledged deposition of Dr. Wetli, a discovery practice that is not authorized under the Criminal Procedure Law, that 6 All record citations in Point V are to the Sealed Appendix (“SA”). 27 was not reciprocal and that gave the People a dress rehearsal for their cross- examination at trial. Worst of all, the hearing was followed by rulings that erroneously limited the scope of Dr. Wetli’s testimony, making it impossible for Brooks to mount a defense. Ignoring virtually all of Brooks’ arguments, the First Department tersely ruled that a Frye hearing was properly granted because Dr. Wetli was not a toxicologist and he provided “no authority to support his theory that five prescription drugs found in the victim’s system interacted with one another so as to heighten their sedative effect and cause the victim to die accidentally . . . .” (A3178) Contradicting itself, the court upheld the restrictions placed on cross- examination at trial because the evidence gave the defense “ample room to argue that additive and synergistic effects might have incapacitated the victim and caused her to slip under the bath water.” (A3180) Despite the evidentiary support for Brooks’ defense, the Appellate Division permitted the court’s clearly erroneous rulings to stand. A. The Frye Hearing Was Erroneously Granted Because the Expert’s Testimony Did Not Involve a Novel Scientific Theory or Procedure Under New York law, courts are required to apply the test articulated in Frye v. United States, 293 F. at 1014, in resolving a challenge to expert testimony. When the proffered science appears to be novel, the inquiry is whether the underlying technique or methodology is generally accepted in the relevant 28 scientific community and is capable of being performed reliably. See People v. Middleton, 54 N.Y.2d 42 (1981) (upholding admission of bite mark evidence); People v. Wesley, 83 N.Y.2d 417, 436 (1994) (upholding admission of DNA evidence). Where the proffered scientific evidence is not novel, the Frye standard does not apply and there is no basis for a hearing. See Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) (in the absence of a particular novel methodology, there is no occasion to determine whether there is general acceptance); People v. Whitaker, 289 A.D.2d 84 (1st Dept.), lv. denied, 98 N.Y.2d 682 (2002) (blood splatter analysis not novel); Meth v. Gorfine, 34 A.D.3d 267 (1st Dept. 2006) (effect of delay in diagnosing cancer did not “involve the type of procedure contemplated for a Frye hearing”); People v. Valez, 298 A.D.2d 213 (1st Dept.), lv. denied, 99 N.Y.2d 565 (2002) (microcrystalline tests for drugs not novel); Zito v. Zabarsky, 28 A.D3d 42, 44 (2d Dept. 2006) (error to preclude expert’s testimony on ground that “no medical literature reported a causal nexus between an excessive dose of Zocor and the onset of polymyositis”); Nonnon v. New York, 32 A.D.3d 91(1st Dept.), affd, 9 N.Y.3d 825 (2006). In response to the People’s Frye motion, Brooks submitted Dr. Wetli’s affidavit demonstrating that novel science was not involved. His opinions were based on substantive knowledge and analysis that was generally accepted in the 29 field, together with his years of experience as a medical examiner. He provided the bases for his opinions that: (i) the drugs found in Cachay’s system at the time of death were sedatives; (ii) the sedatives in question had an additive and/or synergistic effect that could increase the side effect of somnolence; (iii) the paucity of fluid in the deceased’s sphenoid sinus was inconsistent with forcible submersion, and; (iv) 90% of the time in manual strangulation cases, he would expect to see damage to the posterior central neck structures, which he did not see in the autopsy report. From these propositions, together with observations from the autopsy report, Dr. Wetli concluded that he could not find the cause of death to be forcible drowning, and he provided an alternative explanation to that offered by the People (SA145). As to his first proposition, a Frye hearing was not necessary to evaluate Dr. Wetli’s conclusion that the drugs in question had a sedative effect. Wetli provided references to established sources, SA144-5, and abundant case law supports his conclusion. See In re Montgomery Department of Human Resources, 10 So.3d 41 (Ala. 2008) (“side effects of Cymbalta are drowsiness, dizziness, headaches, sleep problems”); Massey v. State, 2011 WL 2418482 (Tex. Ct. App. June 14, 2011) (Carisoprodol causes drowsiness, dizziness, slurred speech, slurred vision, lack of motion coordination); State v. Pollock, 2012 WL 4057265 (Tenn.Ct.App. September 17, 2012) (Meprobamate has sedative effect); Credle v. Astrue, 2012 30 WL 4174889 at *2 (E.D.N.Y. September 19, 2012) (Lyrica caused drowsiness); Commonwealth v. Reynolds, 17 Mass. L. Rptr. 109 (Middlesex Co. 2003) (per package insert, side effects of Topamax include somnolence and fatigue), affd, 67 Mass. App. Ct. 215 (Mass.App. 2006), rev. denied, 447 Mass. 1112 (2006); Wiehler v. Barnhart, 2007 WL 840085 (D.Conn. February 9, 2007) (Topamax causes sleepiness). It was equally well-established by the literature cited by Dr. Wetli, and supported by case law, that drugs interact synergistically, a generally accepted scientific proposition. 7 7 See State v. Kiser, 2006 WL 2076341 (Tenn.Ct.App. July 27, 2006) (synergistic effect of Carisoprodol and Meprobamate, inter alia, supported conviction of driving while impaired); Barran v. Dep’t of Education, 20 A.D.3d 752 (3d Dept. 2005) (doctor denied licensure in part because he should have known of the synergistic effects of the drugs he abused), lv. to app. denied, 5 N.Y.3d 713 (2005); State v. Austin, 2011 WL 6884793 (Tenn.Ct.App. December 27, 2011) (combination of Carisoprodol and Dihydrocodeinone “can have enhanced and additive effect”); United American Life Insurance Co. v. Beadel, 13 Ariz. App. 196, 475 P.2d 288 (Ct. App. Ariz. 1970) (recognizing synergistic effect of Meprobamate, short acting barbiturates and ethyl alcohol); see generally Ortho- McNeil Pharmaceutical, Inc. v. Teva Pharmaceuticals Industry, Ltd., 344 Fed. Appx. 595 (Fed. Cir. 2009); State v. Norton, 1999 WL 508654 (Tenn.Ct.App. 1999) (conviction sustained for driving under the influence of a drug due to synergistic effect of Carisoprodol that metabolizes into Meprobamate; “the metabolite itself may have more effect than the ‘original’ drug.”); State v. Pollock, supra, at *5 (even though Meprobamate was within therapeutic range and Carisoprodol was in lower than therapeutic range, doctor opined impairment could flow from sedative effects). 31 Dr. Wetli also relied on the autopsy finding of minimal fluid in Cachay’s sphenoid sinus. He stated the common sense proposition that, in the absence of sedation, a person who is drowning or being drowned would take in water through gasping, filling the sphenoid sinus with fluid (A2467-2469).8 Dr. Wetli also stated the unrefuted proposition that petechiae of the eyelids are a “non-specific finding,” i.e., they may be found with strangulation as well as in other circumstances, such as cardiac death and drug overdose. In People v. Oddone, 22 N.Y.3d 369 (2013), the defendant was convicted of causing the death of a man by holding him in a headlock. The duration of the headlock was a central issue in the case. A deputy medical examiner testified that the headlock lasted for 2-4 minutes, based on his observation during the autopsy of petechiae and the statements of several witnesses that, by the time the incident ended, the victim’s face had turned purple. Id. at 375. Because there were no scientific studies establishing how long neck compression must last in order to produce petechiae and a purple face, the defense argued that the opinion of the People’s expert was not generally accepted in the relevant scientific community. 8 Dr. Catanese concurred with the opinion that the minimal amount of fluid in Cachay’s sphenoid sinus is inconsistent with being forcibly held under water, whereas a sinus full of fluid would be consistent with the People’s theory of forcible submersion (A49). The Frye hearing should have ended when Brooks established through Dr. Catanese the general acceptability of Dr. Wetli’s opinion. 32 This Court reversed and found that Frye was inapplicable because the expert was relying on his experience rather than on any scientific principle. Id. at 376-377. Here, there was no basis for granting a Frye hearing because there was nothing novel about Dr. Wetli’s methods of analysis. Indeed, if they were novel, the People’s expert’s methods were equally so, and both parties’ experts should have been subject to a Frye hearing. See A2015 (Dr. Sampson testified that “drowned is a difficult diagnosis for us to make at autopsy”). The Frye standard addresses the admissibility of new scientific tests, techniques, processes or theories. People v. Wesley, 83 N.Y.2d at 437 (Frye hearing was “virtually the first in the Nation to consider whether forensic application of DNA analysis had been generally accepted as reliable”); see also Selig v. Pfizer, Inc., 185 Misc.2d 600, 606 (“the majority of New York cases in which a Frye standard has been applied involve the admissibility of obviously novel forensic and social scientific techniques”), affd, 290 A.D.2d 319 (1st Dept. 2002), lv. denied, 98 N.Y.2d 603 (2002). In contrast, Dr. Wetli’s opinion did not involve novelty, but was based on his wealth of experience, supported by treatises, literature and commonly accepted scientific principles. The trial court misconstrued the law and erred in granting a Frye hearing. 33 B. The Court Erred in Allowing The People To Conduct An Extended Deposition of Dr. Wetli in the Guise of a Frye Hearing Discovery in criminal cases is strictly circumscribed by statute and it gives the People limited reciprocal rights to obtain written reports of physical or mental examinations and photographs that the defendant intends to introduce at trial. CPL §240.30 and §240.40; Brown v. Grosso, 285 A.D.2d 642, 644 (2d Dept. 2001) citing Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870 (1988); cf. People v. Natal, 75 N.Y.2d 379 (1990). The People’s cross-examination of Dr. Wetli at the Frye hearing transgressed these limitations. It had little or nothing to do with whether his analysis involved novel scientific methods, and was instead designed to obtain Wetli’s views of the autopsy report and photographs, ferret out any inconsistencies in his opinions of them, and prepare their expert for trial (A337- 360; 385-396; 411-422). In failing to rein in the People’s examination, the court permitted the People to obtain discovery that is not authorized under the law, giving the People a tremendous litigation advantage over the defendant. The People also used the hearing as a dry run through classic areas of impeachment, such as whether Dr. Wetli had worked with defense counsel before, his sources of income, his relationship with Dr. Catanese and his testimony in other cases (A282-284; 298-303; 309-312; 326- 329; 331-334). 34 Judges have recognized the potential for abuse posed by Frye hearings. In Marsh v. Smyth, 12 A.D.3d 307 (1st Dept. 2004), the plaintiff alleged that she suffered nerve palsy from the prolonged, improper placement of her arm while under general anesthesia. In reversing the lower court’s dismissal of the complaint after a Frye hearing, the First Department found that the trial court “went beyond the limited role of a Frye hearing . . . and intruded upon the jury’s realm of weighing the evidence.” Id. at 308. In his concurring opinion, Justice Saxe stated that a dispute about causative agents “does not involve anything novel or experimental as contemplated by the Frye test.” Id. at 311-12. Justice Saxe concluded: “it is indeed arguable that to hold a pre-trial hearing in this type of context is simply to give the defense an extra opportunity to cross-examine the plaintiff’s experts and to pinpoint perceived weaknesses.” Id. at 312 (emphasis added); see C. v. ex. rel. Williams v. St. Luke’s-Roosevelt Hosp. Center, 16 Misc.3d 688 (N.Y.Co. 2007) (Frye hearing would “improperly expand the scope of expert disclosure” and allow the moving party to obtain litigation advantages). The sole defense witness in this purely circumstantial case was Dr. Wetli. The Frye hearing gave the People a preview, not just of his direct testimony, but of his answers on cross-examination on topics far afield from the general acceptability of his analysis and methodology. And, the court imposed no 35 parameters whatsoever, telling the parties that they had “all the time in the world to explore the issues . . . .” (A197) Under the guise of claiming that Dr. Wetli would, in essence, propound junk science, the People obtained a vast amount of unauthorized discovery. By contrast, the court denied Brooks’ cross-motion challenging the People’s expert, depriving Brooks of a comparable opportunity to discover the strengths and weaknesses of the People’s expert and use it to prepare for trial. The error was far from harmless, and requires a new trial at which Brooks will have the equivalent benefit of having already examined the People’s experts. 1. The Problem is Prevalent This Court’s decision in this case will have important ramifications for the fair administration of justice. In an article titled Forensic Science Evidence and Judicial Bias in Criminal Cases, Judges’ Journal, Vol. 49, No. 3 (Summer, 2012), retired Michigan Judge and University of Michigan Sociology Professor Donald E. Shelton observed that forensic expert testimony offered by the prosecution is routinely accepted in the areas of physical science, psychology and sociology. For example, opinion testimony is admissible to show that the conduct of a complainant was consistent 36 with having been sexually abused.9 At the same time, courts have routinely precluded or circumscribed defense social scientists from testifying about the unreliability of eyewitness testimony. Id. at 18. Judge Shelton cites studies substantiating a pro-prosecution pattern and bias. Id. at 20, quoting Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 Am. J. Pub. Health 107 (2005). The Frye standard of “general acceptability” perpetuates this bias, because it allows judges to rely on prior admission of evidence by other judges. Id. at 23. Another article surveyed “the stark contrast” between determinations excluding defense experts and admitting expert testimony from law enforcement witnesses. Wes R. Porter, Repeating, Yet Evading Review: Admitting Reliable Expert Testimony in Criminal Cases Still Depends on Who is Asking, Rutgers Law Record, Vol. 36 (Fall 2009) at 48; available at http://ssrn.com/abstract=1600531. Professor Porter discusses “how vastly divergent admissibility determinations depend on whether the government or the criminal defendant proposes the expert testimony.” Id. at 50. This bias deprives the defense of the kind of powerful evidence that “contributes a badge of legitimacy and an aura of independent, unbiased support to a party’s case presentation.” These admissibility decisions are often based on a judge’s “subjective value judgment about the defendant’s case 9 See People v. Taylor, 75 N.Y.2d 277 (1990) (testimony about “rape trauma syndrome”). 37 [or] theory of the defense . . . .” Id. at 51. This observation epitomizes the trial court’s decisions to grant and conduct an expansive Frye hearing and circumscribe the defense expert’s trial testimony. POINT II THE TRIAL COURT DEPRIVED BROOKS OF A FAIR TRIAL BY RESTRICTING DR. WETLI’S OPINIONS ON THE CENTRAL ISSUE IN THE CASE, PRECLUDING RELEVANT CROSS-EXAMINATION, AND THREATENING DEFENSE COUNSEL WITH CONTEMPT In restricting Dr. Wetli’s testimony, the court disregarded his experience as a medical examiner, in the following areas: (i) the adequacy of the drug testing conducted by OCME and NMS; (ii) his opinion of the significance of water in the sphenoid sinus; and (iii) the significance of the lack of damage to certain areas of the neck, and alternative explanations for the injuries to Cachay’s head, neck and eyelids. The court also precluded defense cross-examination of the People’s witnesses on the same subjects. These rulings were contrary to this Court’s holding in People v. Oddone, 22 N.Y.3d at 377, that an appropriately qualified expert (the People’s) may testify based on his experience. This Court said: “[t]o allow a pathologist who has examined many dead bodies, and heard and read many accounts of how victims met their deaths, to express an opinion on the subject accords with common sense 38 and does not open the door to every expert’s flight of fancy.”10 Establishing a foundation for an expert’s testimony, whether through showing general acceptance in the scientific community or experience, “should not include a determination of the court that such evidence is true. That function should be left to the jury.” People v. Wesley, 83 N.Y.2d at 425. Dr. Wetli’s opinions about the lack of water in the sphenoid sinus and an absence of damage to the posterior neck structures were a critical part of challenging the People’s case. The court, however, excluded Dr. Wetli’s testimony that it did not believe had been proven to be true. Excluding those portions of Dr. Wetli’s opinion testimony undercut the value of his expertise and his experience, crippling Brooks’ defense. A. The Limitations Placed on Dr. Wetli’s Testimony: Sphenoid Sinus, Posterior Neck Structure, and Drug Testing The court precluded Dr. Wetli from testifying that, because of the paucity of fluid in the sphenoid sinus, he could not find that forcible submersion was the cause of death. He was permitted to say only that he would expect to find more fluid if it were a case of forcible drowning (A518, 2164, 2469). In requiring Dr. Wetli to temper his opinion, the court undermined his testimony and improperly 10 Brooks made exactly the same arguments that the People themselves made, albeit successfully, in Oddone. See Brief of Respondent, People v. Anthony Oddone, No. APL-2013-00080, August 8, 2013 at 54 (“Dr.Wilson repeatedly testified that he drew his conclusions based on his experience in medicine and forensic pathology. Just because the defense armed itself with literature that allegedly contradicted Dr. Wilson’s conclusions, it did not undermine the foundation of his knowledge”) 39 bolstered the testimony of the People’s expert. Dr. Sampson was able to testify that the “predominant” view is that water in the sinus is not dispositive of forcible drowning, even though she could not point to any treatise supporting that view (A2097). Dr. Sampson had no prior experience with forcible drowning cases; whereas, Dr. Wetli based his opinion on experience handling well over a hundred drowning cases as a medical examiner in Florida alone, including a forcible drowning case (A2162-3). In addition, the court precluded Dr. Wetli’s opinion that 90% of the time in manual strangulation cases, he found damage to the posterior central neck structures, which Dr. Wetli did not see in the autopsy report (A228, 236, 254, 393- 394; 2133). Dr. Wetli explained that his percentage was based on his observations and experience (A406). In making both rulings, the court relied exclusively on the fact that the defense had produced no “authority” for the propositions, depriving the jury of the opportunity to hear and determine the weight to be given Dr. Wetli’s testimony (A2133). See Oddone, 22 N.Y.3d at 376 (flaws in opinion testimony based on experience can be exposed through cross-examination). The defense was also barred from asking questions about the drug testing done in connection with the autopsy. Dr. Wetli was prepared to explain the various drug testing methods available and the difference between the OCME’s 40 drug testing capabilities and those of the private lab, NMS. The court precluded the testimony as “speculative” (A2148.1 - 2151). Moreover, the court even struck testimony, at the prosecutor’s request, that the prosecutor elicited from Dr. Wetli on cross-examination. In response to the prosecutor’s accusation that he was speculating that the medications at issue behaved synergistically, Wetli explained why he was not speculating and that his testimony was based on “evidence that she’s under the influence of something, these drugs or a drug that wasn’t detected.” The prosecutor moved to strike his answer, and the court obliged (A2438). As Professor Porter wrote in Repeating, Yet Evading Review, supra, at 59: “No party, especially the government in a criminal case, is unduly prejudiced when a trial court admits testimony or evidence from its adversary that refutes a fact of consequence, promotes the proper weighing of evidence and assists the jury with its key duty of judging witness credibility.” Id. Dr. Wetli’s excluded testimony would have done those things – refuted the testimony of the People’s experts about the cause of death, and assisted the jury in weighing the evidence and evaluating the credibility of the People’s witnesses. B. Limitations on Cross-Examination of the People’s Experts The court also precluded questioning of the People’s medical examiner, Dr. Sampson, about: 41 Whether there are tests such as the GCMS basic drug screen that would show a greater potential number of drugs than the tests Dr. Sampson ordered (A1769-1770). Whether there was a test for a drug such as Xanax (a police report indicated that Cachay told a hotel employee that she had taken Xanax prior to arrival at the SoHo House) (A1770-1774; 1257-1265; 1263). Whether Dr. Sampson could cite any specific literature discussing the synergistic effect of the drugs found in Cachay’s system (A1776-1777). Whether Dr. Sampson would have added medications to the testing list if she were aware of other medications prescribed by Cachay’s doctors (A1777-1778; 1804-1805; 2000-2004). Similarly, the court precluded cross-examination of Dr. Middleberg, the People’s toxicologist, about other drugs and other methods of drug testing (A2569- 2570). The defense was not allowed to ask Dr. Middleberg to explain why NMS could do an analysis that OCME could not and whether there were other, more inclusive testing methods, (A 2570, 2574-2575). The court repeatedly mischaracterized permissible cross-examination as speculation “that there is some unknown drug out there that caused her to overdose that wasn’t tested for” (A2149; see A 1990, 2001, 2024). Cf. People v. Williams, 5 N.Y.3d at 361 court’s instruction not to speculate on the whereabouts of the “‘ghost officer’ was essentially to instruct the jury not to consider the defense”). The People argued that all the drugs in Cachay’s system, separately and together, were benign and would not have produced somnolence (A2566, 2835, 2837, 3097, 3125, 3137, 3140). That premise necessarily suggested the presence 42 of another substance as a reasonable explanation for Cachay’s behavior when she checked into the hotel; that Kristen Stephens had to assist her to her room, holding her hand because she was losing her balance and had walked into a wall, and once in the room, she could not open a bottle of water (A1356, 1360, 1372, 1361). The People’s position, that none of the prescription drugs, in the concentrations found in her system, caused her to be “under the influence,” opened the door to another explanation -- another drug -- that could account for her highly-intoxicated-like behavior. Despite the evidence that Cachay obviously appeared under the influence of something, defense counsel was precluded from exploring the subject. He was precluded from asking whether other tests are capable of detecting a greater number of drugs, if Dr. Samson had reviewed records of Cachay’s doctors, and from clarifying that the Rite-Aid pharmacy produced records of only the five prescriptions subpoenaed, not for all the prescriptions it filled for Cachay during a particular time period (A1769-70; 1987-1991; 1987-88; 2002, 2077). For his attempts to develop relevant proof and make a record, the court several times threatened to hold defense counsel in contempt. When defense counsel questioned Dr. Sampson about testing for other drugs, the court told the jury “defense counsel was admonished not to ask any questions and it’s based on total speculation and the jury is told to totally disregard that” (A2001). During the People’s re-direct of Dr. Sampson, the court responded to an objection by 43 defense counsel by stating at sidebar that: “I’m also precluding you about the speculation from other drugs and this is the last time, the next time I’m holding you in contempt and I’m telling the jury you’re doing it on purpose” (A2023- 2024). The witness was on redirect and defense counsel had barely stated his objection, when the court responded as it did. The court’s threat to tell the jury that counsel’s conduct was purposefully improper created a Hobson’s choice between zealously pursuing his client’s defense and avoiding the court’s threatened criticism of the defense in front of the jury. During counsel’s questioning of Dr. Remmes, the court admonished him, “I don’t want to hold you in contempt, but if you persist in these speculative questions . . . .” (A1305). During cross-examination of Dr. Middleberg, the court told the defense counsel that the questions were purposefully misleading and “I should hold you in contempt . . . I still may” (A2576). When defense counsel asked about the primary usage of the medication Duloxetine, the court accused defense counsel of “slinging mud,” (A2590-2591), and stated that she had “to prescreen” defense counsel’s questions. Id. The preclusion of questioning and the threat to hold counsel in contempt was part and parcel of the court’s often expressed attitude that any defense was “pure speculation” (A1986-1990, 2000-2004; 2950; A2967, 2973); see (A1305, 1604, 1782-1789, 2575-2577, 2590-2592). 44 The restrictions placed on cross-examination of the People’s experts and the direct of the defense expert, together with the threat of contempt and having the jury advised of defense counsel’s purported misconduct, deprived Brooks of his Sixth Amendment right to effective assistance of counsel, his right to present a defense and a fair trial under the New York State and United States Constitutions. POINT III THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW AND DEPRIVED BROOKS OF A FAIR TRIAL BY WITHHOLDING TESTIMONY THAT WAS RESPONSIVE TO THE JURY’S NOTES The jury’s notes during deliberations, nineteen in all, indicated that it was carefully considering alternatives to the People’s theory. Within the first few hours of deliberations, the jury requested testimony and documents pertaining to the bruising on Cachay’s neck, drug ingestion and toxicology. A) Fluid in the Sphenoid Sinus In response to a request for testimony about fluid in the sphenoid sinus, the court restricted the readback of Dr. Wetli’s testimony to his statement that, if a person was not intoxicated with drugs, he would expect the sphenoid sinus to be filled with fluid, not just a minimal amount (A2954-2956; 2469, lines 14-17). This excerpt, however, came from a longer answer, in which Dr. Wetli explained how Cachay could have slipped under the water due to medications, which would explain the minimal amount of fluid in her sphenoid sinus. He testified that this 45 “tells you that drowning was not a mechanism of the death but it is associated with someone who is severely intoxicated” (whether by alcohol or drugs) at the time of their drowning (A2171). The court truncated the readback of relevant testimony that was central to Brooks’ defense (A2946-2949; see 2169-2170). B) Drug Intoxication In another note, the jury requested a readback of testimony regarding: (i) “intoxication leading to drowning”; (ii) “testimony regarding porn sex and/or rough sex”; (iii) Dr. Remmes’ and Dr. Middleberg’s testimony relating to a video depicting Ms. Cachay arriving at the SoHo House and Dr. Middleberg’s understanding of her “state at the hotel;” (iv) petechiae; (v) petechiae in survivors of strangulation; (vi) side effects from prescribed drugs; and (vii) the autopsy (A2929-30; 3169). In response to the request for testimony about intoxication and drowning, the court refused to read back Dr. Wetli’s testimony that he could not determine the cause of death because the drugs may have caused her to slip under water and drown. The court said the evidence should not have been admitted in the first place even though there had been no objection to it, that she should strike it, and therefore she would not allow it to be read back to the jury (A2946-50). This ruling was devastating to Brooks’ defense, as it prevented the jury from receiving evidence it specifically wanted to consider. 46 The Court also improperly restricted readbacks of the cross-examination of the People’s toxicologist. Three times the jury requested Dr. Middleberg’s testimony about the video of Cachay stumbling as she was helped to her room at the hotel (A3170, 3171, 2954 referencing A2581). The jury first requested defense counsel’s “cross answering if he had viewed the video at hotel” (A3170). The jury was read his testimony that he had not seen the video of Cachay stumbling at the Hotel and his acknowledgement that gathering as much information as possible is important to a toxicological determination, as well as his redirect testimony that not having seen the video did not affect his opinion because he had seen some written proof that she was “spacey” (A2966, 2970-71, 3170). In a second note about an hour and a half later, the jury requested Dr. Middleberg’s testimony about whether seeing Cachay walking down the hall at the hotel would have been “helpful” to him (A2961, 3171). Not having received an answer, in a third note the jury asked for the same testimony, “including direct and cross and a response to specific questions regarding whether viewing the video could have been helpful to him . . . .” (A3172) With respect to both requests, the court refused to include Dr. Middleburg’s testimony on cross-examination that gathering as much information as possible is important, instead limiting the readback to the People’s redirect testimony that, although he had not seen the video, he was aware of other information that did not change his opinion (A2961 referencing A2581; 47 A2964, 3172, 2966, 2970-2971). The court also told the jury that neither lawyer had posed the specific question that the jury had asked about and that they had previously received “several times” the testimony most responsive to their inquiry (A2966, 2971). The jurors were clearly searching for something that one or more of them recollected. Dr. Middleberg had suggested that something he did not see - the video - did not affect his opinion (A2581, 2595-96). Employing a classic technique of cross-examination, defense counsel juxtaposed a question eliciting that Middleberg had not seen the video of Cachay stumbling with a question eliciting the importance of gathering as much information as possible in order to make a toxicological determination (A2581). That series of questions on cross- examination was the answer to the jury’s question. The court, however, essentially told the jurors that they were imagining something that was not there. The court excluded other testimony from readbacks, providing only testimony given on direct that the court viewed as significant, rather than including all relevant evidence and allowing the jury to determine its significance (A2971- 2979) (jury asked for testimony regarding seizures or anti-convulsants; the court allowed testimony that Cachay was never treated for seizures, and excluded testimony that some of her medications were anticonvulsants and that frothy liquid 48 in breathing passages may be caused by an epileptic seizure); A1270, 1272-1273; 1298-1300; 2164-2165; 2415-2416; 2972-2973). In People v. Taylor, 26 N.Y.3d 217, 219, 223 (2015), this Court held that it was an abuse of discretion and reversible error when, in response to a jury’s request “to see the benefits offered to [cooperating witnesses],” the trial court sent the jury the cooperation agreements, told them “that’s what is in evidence,” and refused to read back the relevant testimony about other benefits. The trial court “improperly focused on the phrase ‘to see’ in disregard of the remaining contents of the note,” suggesting to the jury that the other evidence did not exist or that it was irrelevant. Id. As in Taylor, the court cherry-picked the testimony to be provided in response to the jury’s notes, and suggested that other testimony encompassed by the notes did not exist. The court abused its discretion and committed reversible error. POINT IV THE TRIAL COURT ERRED IN PERMITTING ELEVEN OF CACHAY’S FRIENDS AND ACQUAINTANCES TO TESTIFY TO A SLEW OF DEROGATORY HEARSAY STATEMENTS ABOUT BROOKS The People called nine of Cachay’s friends, her personal trainer and an author Cachay once sat next to on an airplane to testify about statements Cachay allegedly made about Brooks. Cachay’s statements were hearsay and did not fall 49 within any recognized exception to the hearsay rule. Nevertheless, the court allowed an avalanche of hearsay testimony that portrayed Brooks as a lazy, lascivious, marijuana-smoking, contemptible bum, who patronized prostitutes, visited adult websites, and once held Cachay’s keys out of her reach during an argument and threatened to kill her. The testimony served no proper purpose and conveyed to the jury that Brooks had a bad character and a propensity to do bad things. A. Applicable Law: There is No Hearsay Exception for Evidence of Domestic Strife in Homicide Cases The hearsay rule prohibits out-of-court statements offered for the truth of the matters they assert, and are only admissible “if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable.” Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597, 602 (2001), citing People v. Brensic, 70 N.Y.2d 9, 14 (1987); Tyrrell v. Wal-Mart Stores, Inc., 97 N.Y.2d 650 (2001) (improper shifting of the burden of establishing hearsay exception); People v. Morgan, 76 N.Y.2d 493, 497-98 (1990). In seeking a pretrial ruling on the admissibility of the statements, the People argued their admissibility under a makeshift exception to the hearsay rule, recognized by the First Department and rejected by the Fourth, when a case 50 involves domestic violence (A629-630 at ¶¶ 49-51; A547). 11 See People v. Bierenbaum, 301 A.D.2d 119 (1st Dept.), lv. denied, 99 N.Y.2d 626 (2003), and People v. Kimes, 37 A.D.3d 1 (1st Dept.), lv. denied, 8 N.Y.3d 881 (2007) (A 626- 628); contra People v. Meadows, 140 A.D. 3d 1596 (4th Dept.) lv. denied, 28 N.Y.3d 933 (2016); People v Harvey, 270 A.D.2d 959, 960 (4th Dept., 2000). The First Department’s decisions in Bierenbaum and Kimes, both with distinctively different and distinguishable facts than in this case, are directly at odds with the Fourth Department’s decisions in Meadows and Harvey. In Bierenbaum, the defendant, a surgeon, was convicted of intentionally killing his wife and then dismembering her body and dropping her remains into the Atlantic Ocean from a small plane he piloted. At trial, the People were permitted to introduce the victim’s hearsay statements made during a three-year marriage; that the defendant had threatened her, once strangled her to unconsciousness, that she was afraid of him and that the marriage was stormy. Bierenbaum, 301 A.D.2d at 583. The First Department held that, “in a domestic violence homicide,” evidence “that a couple’s marriage was strife-ridden and that defendant previously struck 11 The hearsay issue arose in the context of a contested, motion in limine (A611-727). Brooks objected to the admission of hearsay statements from the11 witnesses, as well as to the refusal to permit impeachment (A888-89, 999, 1024, 1058-1063; 1064-1065, 1075-1077, 1080-1081, 1082-1084, 1087-1100, 1139- 1141, 1144-1145, 1190-1192, 1221-1223, 1478, 1480, 1495, 1507-1508). 51 and/or threatened the spouse-victim” is “highly probative of the defendant’s motive and is either directly related to or inextricably interwoven with the issue of his identity as the killer.” Bierenbaum, 301 A.D.2d at 146 (citations omitted); see also People v. Kimes, 37 A.D.3d 1 (hearsay statements made by a murder victim admitted where victim had several times expressed to others her fear of a tenant and tenant’s son and her intention to evict them). The Appellate Division in Brooks’ case affirmed the trial court’s rulings on the same grounds (A3181-3182). The Fourth Department recently reached the opposite conclusion on similarly graphic facts in People v. Meadows, 140 A.D. 3d at 1596, where the victim was found bound and strangled in her apartment. At trial, the court admitted testimony about the victim’s out-of-court statements that her estranged husband had beaten her, handcuffed her to a chair, and threatened to kill her if she didn’t come back to him. Id. at 1597-1599. The trial court found that such evidence is admissible in domestic-violence-type cases to prove intent, motive or identity. Id. at 1597. The Fourth Department reversed and held that Molineux evidence of prior bad acts (beating and threats) is still subject to the hearsay rule; “there is no Molineux [or background] exception to the rule against hearsay . . . evidence must still be in admissible form,” such as testimony from a witness who saw an assault or heard the defendant make threats. Id. at 1599-1600; People v. 52 Vega, 3 A.D.3d 239 (1st Dept. 2004)(court admitted evidence of prior spousal abuse that witnesses observed, and excluded testimony that was hearsay). The Fourth Department also rejected the First Department’s ruling in Bierenbaum that there is a hearsay exception in domestic violence cases for “‘background information.’” Id. at 601 (internal citations omitted). According to the Fourth Department, this Court has never recognized any such exception. In People v. Maher, 89 N.Y.2d 456 (1997), the defendant was charged with killing his estranged paramour. This Court held that the paramour’s prior statements about the defendant’s violent and threatening behavior were inadmissible hearsay. Id. at 461. Such an “unwarranted expansion” of an exception, this Court said, could “convert[] a narrow departure from the hearsay rule into a categorical authority for admissibility of victim’s statements in all homicide cases.” Id. Even if this Court were to find a “domestic violence homicide” exception to the rule against hearsay, it would not apply in this case. There was no evidence that Brooks ever struck Cachay or that their relationship could be characterized as one of domestic abuse involving a pattern of threats and violence. Nevertheless, in addition to derogatory testimony about Brooks’ character, the court admitted hearsay testimony about a single incident during which, in the heat of an argument, an intoxicated Brooks held Cachay’s keys out of her reach and threatened to kill her (A1024-1027). 53 In “limiting” instructions to the jury, the court made it clear to the jury that it could consider the hearsay testimony of Cachay’s friends and acquaintances for its truth and to prove elements of the crime and that it was “very important”: This witness, as well as certain other witnesses that already testified to you, testified as to certain statements that Sylvie made. Obviously, it is hearsay, but she made certain statements to certain friends that she confided in. It is normally not admissible, it is hearsay. However, I have let it in, in this case for several reasons, and you are only to use it as to that, that is the background of their relationship which you will see as we move along is going to become very important and it may help you resolve some of the issues in the case which may be motive of the defendant and intent on the night, date, time in question . . . it is coming in for the background of the relationship between the deceased and the defendant which is inextricably interwoven in this case. (A476-477). The judge told the jury in her final charge that the testimony by Cachay’s friends, text messages and emails were admitted to show Cachay’s state of mind, the background of the relationship, and the defendant’s motive and intent (A 2874). See A1227, 1427, 2121 (court stated bases for admitting evidence of, inter alia, illegal use of prostitutes, using someone’s credit card, and smoking or possessing marijuana, to explain nature and background of the parties’ relationship and the defendant’s motive and intent). B. The Inadmissible, Prejudicial Hearsay Statements Over objection, Sharon Lombardo testified to a litany of complaints she said Cachay voiced about Brooks, including his “getting stoned all the time,” “partying too much,” Cachay “having to pay for everything,” and that Brooks was 54 “immature, turbulent, bringing her down, awful [and] tempestuous” (A1024). Lombardo also testified over objection that Cachay told her, during a telephone conversation in October 2010, that she had drinks with Brooks the night before at the SoHo House Hotel and, while they were arguing in front of the hotel, Brooks took her keys, held them above her head, was “extremely nasty” and threatened to kill her (A1025-1026). Prior to trial the parties litigated the admissibility of these and other hearsay statements. With respect to the hearsay drunken threat, the court tersely ruled that “[i]t is double hearsay, but there is no other way for the evidence to come in.” Believing that the rules of evidence and the Confrontation Clause operate differently when homicide is charged, the court ruled, “[in] [a]ny circumstantial evidence case where the issue is what happened, accident versus homicide gives broader scope to Molineux because it enlightens the jury as to what happened if there are prior threats. It is very probative” (A534, 536-537). This Court’s holding in People v. Maher, 89 N.Y.2d at 461, that there is no categorical exception to the hearsay rule for victims’ statements in homicide cases, leaves no room for doubt that the hearsay threat allegedly made by Brooks was inadmissible. See People v Harvey, 270 A.D.2d at 960 (court erred in admitting victim’s statements to others that defendant physically abused her previously, citing People v Maher, 89 N.Y.2d at 462; People v. Wlasiuk, 32 A.D. 3d 674, 682, 55 fn.3 (3rd Dept. 2006)(regardless of whether evidence is admissible under Molineux, it is still subject to the rules “governing use of hearsay testimony”). The trial court also erroneously permitted numerous witnesses to give hearsay testimony about Brooks’ marijuana use. Prior to trial, the People argued that Brooks’ marijuana use explained one of the reasons Cachay wanted to end their relationship. Brooks was motivated to kill her, so the argument went, because Cachay was financially supporting him and his ability to buy marijuana would be hampered by an end to their relationship (A630-631 at ¶52-55). This Rube Goldberg-esque argument is nonsensical and shows why the evidence was inadmissible -- it did not have any relation to a material issue of fact in the case and it was prejudicial. Contrary to the People’s argument that Brooks killed Cachay because she threatened to cut him off financially, the reasonable inferences go the other way; if Brooks’ goal was to maintain access to marijuana, he would want her alive and happy. Even the court initially questioned this theory: “[i]f she’s the ATM machine, wouldn’t he want to keep her alive” (A539).12 Nevertheless, the court admitted the hearsay testimony from the friends, acquaintances, text messages, and emails that: Brooks “got stoned” and delivered marijuana to his roommate; was an unemployed deadbeat who lacked ambition or motivation, and; did not pay when he and Cachay went out (A247-248; 268-269; 12 The court also allowed hearsay testimony that Cachay was suspicious that Brooks was using her ATM card to make withdrawals (A1480). 56 472-474, 950-952, 963, 996-998, 1024, 1075, 1139, 1220, 1478, 1480, 1495, 1830; 1908-1909; 2496-2497; 2585-6; 2627).13 In addition, Cachay’s personal trainer and two of her friends testified that Cachay told them that Brooks had used prostitutes in the past and that he had recently accessed adult websites (A950-952, 963, 1495, 1908-1909). Other than to show Brooks was an odious person, there was no logical connection to any issue in the case. The trial court, however, viewed it as “very important” proof of Brooks’ motive to kill Cachay (A471). Had the hearsay evidence been properly admitted pursuant to a valid exception (it was not), it would be subject to impeachment just as if the hearsay declarant had taken the stand. People v. Canady, 186 A.D.2d 749, 751 (2d Dept.), lv. denied, 81 N.Y.2d 786 (1993); Sansevere v. United Parcel Service, Inc., 181 A.D.2d 521 (1st Dept. 1992). In light of the court’s rulings, the defense sought to cross-examine the friends regarding Cachay’s own drug use, including cocaine, as it might affect her ability to observe and repeat events and conversations. The court precluded the questioning on the theory that impeachment of non-testifying declarants is limited 13 It was equally erroneous for the court to admit texts between Mr. Brooks and his roommate regarding the delivery of marijuana (A2496-2497, 2627). The court admitted this evidence despite previously ruling that only evidence of personal use was admissible (A2314). Whether Mr. Brooks delivered marijuana does not fit into any Molineux category as tending to show that he committed murder. 57 to co-conspirators (A1064-1065, 1191-1192; 2119-2120). Thus, Brooks had no opportunity to blunt the inadmissible, prejudicial hearsay. The court permitted a parade of eleven witnesses to offer a landslide of prejudicial out-of-court statements vilifying Books. On the other hand, the People elicited irrelevant testimony to evoke sympathy, such as a co-worker’s testimony that Cachay brought an injured pigeon to work to try to nurse it back to health (A1169-1171). The hearsay testimony was divorced from any proper justification under People v. Molineux, 168 N.Y. 2d 292 (1901). Brooks' purportedly offensive personal habits and prurient interests did not show his motive or intent to kill Cachay; there was no issue of identity or common scheme or plan; and, the evidence did not tend to show that Cachay's death was not an accident (other than by impermissibly showing his bad character). Even when evidence is admissible under Molineux or as “background,” if it is offered for its truth, it is subject to the hearsay rules. People v. Meadows, 140 A.D. 3d at 1600-01; People v. Wlasiuk, 32 A.D.3d at 677, 682, n. 3 (3d Dept. 2006). Those rules were repeatedly violated in this case in the name of proving motive in a counter-intuitive, circuitous way. A fair trial was impossible under the weight of such a mass of disparagement. 58 POINT V THE COURT ERRED IN REFUSING TO HOLD A HEARING WHEN A JUROR CONTACTED A WITNESS AFTER TRIAL AND MADE STATEMENTS THAT SHOWED SHE WAS GROSSLY DISQUALIFIED AS A JUROR After the verdict but before sentencing, the People produced an affidavit from a female juror (“Juror”) regarding a domestic violence incident she experienced while sitting as a juror (SA225-231).14 After the verdict, the Juror contacted one of the People’s witnesses (“Witness”) and they met for drinks. The Juror told the Witness that, during the trial, she had an argument with an ex- boyfriend and he kicked her, causing a minor injury for which she did not seek medical attention (SA225-226). The Juror also told the Witness that she was inspired by what happened to Cachay to do meaningful things and to help others (SA230). Instead of immediately notifying the court and the defense of information potentially affecting the integrity of the verdict, the People interviewed the Juror and prepared an affidavit for her (SA239 at ¶10). Throughout the affidavit, in an apparent effort by the People to forestall defense arguments, the Juror responded to and refuted statements that the Witness made in an email to the prosecutor about the Juror. 14 All record citations in Point V are to the Sealed Appendix (“SA”). 59 For example, the Witness wrote that the Juror had broken off a “turbulent” relationship with her boyfriend and that she (the Juror) went to court with “bruises on her head, shoulder and back” (SA228). In the People’s affidavit, the Juror denied that her relationship was “turbulent” and minimized her injuries (SA230 at ¶19). According to the Witness, the juror said that the altercation with her ex- boyfriend made her decide to “cut all ties with him” and realize that "Sylvie had come into her life for a reason” (SA 228-229). Also according to the Witness, the Juror said “she felt so immersed in Sylvie’s life” that it “inspired her to become a domestic violence mentor” and she had started volunteer work (SA230). In the Juror’s affidavit, however, the Juror said her realization was a generic one about life in general and that the lessons she learned had nothing to do with the evidence at trial (SA230-231). This exercise -- the Juror’s refutation and explanation of the Witness’s account of their meeting -- compromised the fact-finding process that should have been conducted in the presence of both parties. In People v. Clark, 81 N.Y.2d 913, 914 (1993), this Court stated that a motion to set aside a verdict under CPL §330.30(2) “‘may be granted when it is shown that improper conduct by a juror ‘may have affected a substantial right of the defendant.’” While “‘not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically,’” courts must examine 60 each case “on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered. Id. at 914 (internal citations omitted). The Juror’s failure to come forward during deliberations about an experience so obviously relevant to her service as a juror, and discussing it with alternate jurors, qualifies as improper conduct. Had the experiences and sentiments of the Juror (her intense identification with Cachay) been discovered during trial, the court would have been required to conduct a thorough inquiry to determine if the juror was “grossly unqualified” within the meaning of CPL § 270.35(1). A juror is grossly unqualified when the “particular juror possess[es] a state of mind which would prevent the rendering of an impartial verdict.” People v. Buford, 69 N.Y. 2d 290, 298 (1987). The court would have been required to conduct a “probing and tactful inquiry with the juror” to determine whether “the juror can render an impartial verdict according to the evidence and that her verdict will not be influenced by such bias.” People v. Rodriguez, 71 N.Y.2d 214, 220 (1988). Only after such an inquiry would an appellate court be able to review the adequacy of the trial court’s questioning and whether the juror provided “unequivocal assurance . . . that he or she will decide the case solely on the evidence and free from any effect of bias.” Id. No such record was made in this case. 61 The Juror experienced her only incident of domestic violence during a trial in which the prosecutor stressed allegations of domestic violence leading to murder. The incident was so significant to the Juror that she told three alternate jurors about it while having drinks with them during deliberations (SA227). The Juror later contacted a prosecution Witness and told the Witness that “Sylvie . . . was showing (me) in vivid detail a very clear picture leading (me) in the right direction . . . [and motivating] me to put the pedal to the metal in advancing my fashion career [Cachay had been in the fashion business] and by doing more meaningful things in life such as volunteering to help others” (SA230). Nevertheless, the Juror concluded in her affidavit that the “personal lessons that I derived from the death of Sylvie Cachay had nothing to do with my analysis of the evidence or my verdict” (SA231). This “self-analysis” went unquestioned. It should have been obvious to any reasonable person that these personal experiences, and the feelings engendered by them, had a tendency to color the person’s perceptions. This Court has affirmed that “[o]ne of the important rights afforded a criminal defendant under our system of justice is the right to a fair trial before an unbiased fact finder.” People v. Arnold, 96 N.Y.2d 358, 362 (2001); People v. Rodriguez, 71 N.Y.2d at 218. 62 Following post-trial submissions, the court denied the defense request for a hearing because the defense had only submitted an unsworn letter motion (SA273). However, the defense was relying on, and only had access to, the information in the Juror’s affidavit provided by the People. With the integrity of the jury at stake, the court should not have accepted an affidavit transparently designed to bolster the People’s position, without questioning the Juror or the Witness. In a case where the People’s theory involved domestic violence, and the parties learned, post-trial, that a Juror experienced an impactful incident of domestic violence during the trial, it was error for the court to refuse to hold a hearing. CONCLUSION The number and seriousness of the legal errors committed in this case are extraordinary. The trial of Nicholas Brooks did not comport with either the letter or the spirit of the New York State and Federal Constitutions, guaranteeing due process and the right to a fair trial before a fair and impartial judge and an unbiased jury. It is respectfully submitted that this Court should use its stentorian voice to resolve the important issues of law and policy at stake here, and, in so doing, reverse the decision of the First Department, vacate Nicholas Brooks’ conviction and order a new trial. 63 Dated: New York, New York November 21, 2016 Respectfully submitted, ___________________________ SUSAN C. WOLFE JEFFREY C. HOFFMAN JERRY D. BERNSTEIN Blank Rome, LLP Attorneys for Defendant-Appellant Nicholas Brooks The Chrysler Building 405 Lexington Ave New York, NY 10174 212−885-5000 64 CERTIFICATION I, SUSAN C. WOLFE, attorney for the Defendant-Appellant, do hereby certify that the foregoing Brief complies with this Court’s type-word limitation in that it is comprised of 13,990 words excluding the tables, questions presented and certification. __________________________ SUSAN C. WOLFE