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. >> >> REPLY BRIEF FOR DEFENDANT-APPELLANT Susan C. Wolfe LAW OFFICE OF SUSAN C. WOLFE 360 Lexington Avenue, Suite 1502 New York, New York 10017 917-209-0441 Jeffrey C. Hoffman WINDELS MARX LANE & MITTENDORF, LLP 156 West 56th Street New York, New York 10019 212-237-1018 Jerry D. Bernstein BLANK ROME LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 212-885-5511 Attorneys for Defendant-Appellant Dated: June 12, 2017 To Be Argued By: Susan C. Wolfe Time Requested: 30 Minutes i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ……………………………………………… 1 POINT I THE COURT ERRED IN GRANTING A FRYE HEARING AND PERMITTING ITS SCOPE TO FAR EXCEED THE RELEVANT INQUIRY …………………………………….. 1 POINT II THE COURT DEPRIVED BROOKS OF THE RIGHT TO PRESENT A DEFENSE BY EVISCERATING DR. WETLI’S ABILITY TO STATE HIS OPINIONS AND EXCLUDING HIS BASES FOR REACHING THEM ………………………… 3 A) Fluid In the Sphenoid Sinus ……………………………… 3 B) Damage to Posterior Central Neck Structures …………. 6 C) Drug Testing Done and Note Done and Absence of Any Explanation for Cachay’s Condition at the Hotel ………………………………………………………. 7 D) The Errors Were Not Harmless …………………………... 10 POINT III THE READBACKS PERMITTED BY THE COURT WERE INCOMPLETE AND MISLEADING …………………………………. 11 POINT IV THE TRIAL WAS CONTAMINATED BY INADMISSIBLE HEARSAY THAT PROTRAYED BROOKS AS AN AWFUL, REPRESENSIBLE PERSON ………………………. 15 ii POINT V THE TRIAL COURT ERRED IN REFUSING TO HOLD A POST-VERDICT HEARING REGARDING A JUROR’S BIAS AND CONTACT WITH ALTERATE JURORS DURING DELIBERATIONS ……………………….. 22 CONCLUSION …………………………………………………………….. 24 Certificate …………………………………………………………………… 25 iii TABLE OF AUTHORITIES Page(s) Cases People v. Chambers, 125 A.D.2d 88, 89 (1st Dept. 1987) ……………………………… 20 People v. Dorm, 12 N.Y.3d 16 (2009) …………………………………. 19 People v. Frankline, 27 N.Y. 3d 1113 (2016)………………………… 19 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ……………….. 1, 2, 5 People v. Maher, 89 N.Y.2d 456, 461 (1997) ………………………… 15, 19 People v. Malizia, 92 A.D.2d 154, 160, 460 N.Y.S. 2d 23 (1st Dept.), affd. on other grounds, 62 N.Y.2d 755 (1984) ………………………………………………………….. 20 People v. Meadows, 140 A.D. 3d 1596 (4th Dept.) lv. denied, 28 N.Y.3d 933 (2016) ………………………………. 15 People v. Molineux, 168 N.Y. 2d 292 (1901) ………………………… 15 People v. Oddone, 22 N.Y.2d 369 (2013) ……………………………. 5, 6 People. v. Reynoso, 73 N.Y.2d 816, 818-819 (1988) ………………… 21 People v. Rojas, 97 N.Y.2d 32 (2001) ………………………………… 19 Statutes CPL §330.40 ……………………………………………………………… 22 1 REPLY BRIEF OF APPELLANT NICHOLAS BROOKS PRELIMINARY STATEMENT Nicholas Brooks respectfully submits this Brief in Reply to the People’s answering brief. With respect to any arguments not addressed, Mr. Brooks rests on his opening brief, to be addressed orally as necessary. POINT I THE COURT ERRED IN GRANTING A FRYE HEARING AND PERMITTING ITS SCOPE TO FAR EXCEED THE RELEVANT INQUIRY The People argue that, although counsel objected to numerous individual questions at the Frye hearing, he did not object that the People’s examination exceeded the scope of the hearing and provided the People with unwarranted extensive discovery (PB32).1 In pretrial motions and a motion for reconsideration, Brooks objected to a hearing, the proposed areas of inquiry, and that a hearing would provide unwarranted discovery. He also argued that a hearing was unnecessary after the submission of Wetli’s detailed affidavit and supporting materials, which satisfied the Frye standard (SA37-44; 1 References preceded by the letters “PB” are to pages of the People’s Brief. 2 SA143-146; SA147-151; A560-569). Defense counsel objected, at the very beginning of the hearing, when the prosecutor asked Dr. Catanese if he agreed or disagreed with each line of the autopsy report. Counsel told the court: “[t]he whole issue here is whether [Wetli’s] determinations are done with a reasonable degree of medical certainty based on methods and literature that are acceptable in the community, the medical community, obviously.” The court summarily dismissed the objection (A137). Brooks preserved his objection to both the hearing and its scope. The People analogize the Frye hearing to a suppression hearing through which a defendant incidentally receives discovery of the People’s case (PB32). It is hard to imagine a five-day suppression hearing that goes so far beyond the question of probable cause for arrest or seizure or the administration of Miranda warnings that it morphs into an unlimited exploration of the People’s case and the credibility of its witnesses. In addition, contrary to the People’s claim that the defendant failed to preserve his argument that the Frye standard has been applied with a bias in favor of the prosecution, the defendant made this 3 argument in opposition to the People’s motion for a Frye hearing (SA37, 42). POINT II THE COURT DEPRIVED BROOKS OF THE RIGHT TO PRESENT A DEFENSE BY EVISCERATING DR. WETLI’S ABILITY TO STATE HIS OPINIONS AND EXCLUDING HIS BASES FOR REACHING THEM A) Fluid in the Sphenoid Sinus The defense expert, Dr. Charles Wetli, was a medical examiner in Suffolk County for over eleven years, eventually assuming the role of Chief Medical Examiner. Before that, he had spent 17 years as a medical examiner in Dade County, Florida (A2142-46; 2162-63). His experience included hundreds of drowning cases when he was an ME in Florida, and he supervised and consulted on many more (A2162). He was just as qualified as the People’s Medical Examiner, if not more so, to evaluate the cause of death in a drowning case. Although Wetli testified that he could recall, generally, only one forcible drowning case in the 1970’s, the People’s ME had no experience with forcible drowning. The court nevertheless ruled that Wetli could not offer his “personal opinion” -- that he could not call the circumstances a forcible drowning – because it was based on, in the court’s view, such “meager experience” and “there is not one treatise in the field that said you can 4 never have forcible drowning if there is no fluid in the sphenoid sinus” (PB21). Wetli’s proffered opinion was that, without fluid in the sinuses, he could not call it a forcible drowning. Wetli did not say “never,” and he agreed with the prosecutor on cross-examination, that it was possible, although he’d never seen it, for there to be a drowning without fluid in the sphenoid sinus (269). The People argue that this possibility precluded Wetli from rendering his opinion. 2 This is wrong and would allow the People to exclude any expert testimony on the cause of death that disagrees with the People’s expert. Wetli proffered his opinion, as did Dr. Sampson, based upon the unique combination of circumstances of the case, which is what an expert does. Wetli’s opinion was unfairly and improperly precluded and the jury heard only the opinion of the People’s expert. The People’s expert testified based on her experience, not straight out of a scientific treatise (A2015). Wetli, however, was held to a different standard. 2 The People’s ME, Dr. Sampson, testified that, when there are multiple petechiae, “it is possible that the person was strangled” (A1656). Sampson was not precluded from testifying to her conclusion that Cachay was strangled, resting in large part on the existence of petechiae, because she could only say that the presence of petechiae made strangulation a possibility. 5 Moreover, although Wetli did not produce a treatise, the defendant showed at the hearing that Wetli’s methods and analyses were generally accepted in the scientific community (per Frye), by calling Dr. Catanese, a current Medical Examiner in Nassau County, who verified that Wetli’s analysis was a generally accepted method in the scientific community, validating his conclusions (A48, 58). The People attempt to distinguish People v. Oddone, 22 N.Y.2d 369 (2013), because there the expert, Dr. Wilson, testified from his personal observations and experience about “how long the neck must be compressed for petechiae to form.” Id.at 376. The testimony of the People’s expert in Oddone was almost identical in nature to Wetli’s. Dr. Wilson had never witnessed an altercation and counted the minutes until he saw petechiae emerge. He testified, based on his experience as a medical examiner examining petechiae and put that together with accounts of what witnesses said, without any scientific treatises. Id. at 375-377. 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 and does not open the door to every expert’s flight of 6 fancy.” Id. at 377. The same standard should have been applied to the defense expert in this case, who was eminently qualified and experienced. B) Damage to Posterior Central Neck Structures The court similarly erred in precluding Dr. Wetli from testifying that damage to the posterior neck structures, which did not exist in this case, is seen approximately 90% of the time in the case of manual strangulation (A393-394; A533, 2100). Both Dr. Wetli and Dr. Catanese testified on direct at the hearing that they would expect to see such damage if there had been manual strangulation (A228, 236, 253). When pressed on cross-examination to give a “percentage of the time [he] would expect damage to the . . . posterior neck structures,” Wetli responded that it is “probably [seen] 90 percentage of the time” (A393- 394). Unhappy with the answer, the People moved to preclude it at trial and the court obliged (A533, 2100). In the words of this Court in Oddone, Wetli’s testimony came from a seasoned medical examiner who had “examined may dead bodies and heard and read many accounts of how victims met their deaths.” 22 N.Y. 3d at 377. Of course, an expert may testify from his experience, and Dr. Wetli’s was vast. It was error 7 to limit Dr. Wetli’s testimony to only that which could be confirmed by medical treatises. The People repeatedly use the word “junk science” to describe Wetli’s conclusions that they claim were insufficiently supported and unreliable (PB 28). “Junk science” is a new and novel scientific technique with little or no scientific backup. Id. at 376 (e.g. “that baldness is related to the phases of the moon”). The expert opinion of a seasoned medical examiner on the issue of cause of death is not “junk science.” The appropriate challenge to an expert’s conclusions, when they do not involve new or novel science, is cross-examination. C) Drug Testing Done and Not Done and the Absence of Any Explanation for Cachay’s Condition at the Hotel Wetli testified that he did not know of any studies of the synergistic effect of the combination of Cachay’s medications (A245-46). The People make the specious argument that Wetli’s testimony was inadmissible absent a study showing the interaction of five specific drugs. Every case has a unique combination of facts (such as a combination of drugs). To require a study involving each unique combination of facts would render expert testimony inadmissible in virtually every case. Experts take the unique facts of a case and apply 8 scientific principles to them, just as Dr. Wetli did. Wetli looked at the properties of each drug and applied the principle of synergy – that the combination of two drugs having the same side effect (drowsiness) will magnify the side effect (SA158). Scientific inquiry typically requires extrapolation, and Wetli’s testimony had a more than adequate scientific foundation. Moreover, the admissibility of testimony about the synergistic effect of drug combinations is supported by abundant case law, including the cases cited in Appellant’s Brief (Appellant’s Brief at p. 30, fn. 7). Given the number of pharmaceutical drugs that exist, it was unreasonable for the court to require a published study of the combined effect of the five drugs in this case before permitting Wetli’s testimony on the subject. The court also precluded Wetli from “speculating” that Cachay was under the influence of something, such as bath salts, alcohol, Ativan or Klonopin, because there was no evidence that of any of those substances were in her bloodstream (PB 21-22; 29). Cachay behaved in an intoxicated (whether by drugs or alcohol) manner when she entered the hotel, and she told her hotel escort that she had taken a sleeping pill (A1361, 1356, 1360). Wetli would not be a credible scientist if he 9 did not question whether other drugs might have contributed to her condition. Yet, the court did not permit him to discuss the tests that were not done that may have shed light on her behavior, a lack of evidence the jury was entitled to consider (A2149-50). Defense counsel was precluded from asking whether the ME’s office had tested for any sedative type drugs that would have explained her behavior. The court limited counsel’s questioning to the drugs that were listed in the toxicology report and he was not allowed to explore or challenge the type and range of testing that was done (A1767, 1769, 1929, 2000, 2004- 2005). In attempting to justify the court’s rulings, the People claim that when Cachay walked into a wall at the hotel and asked for help opening a bottle of water, “she could simply have been tired from a long and harrowing day” (PB 29). This purported inference is untethered to any facts in the case and is certainly not a basis to exclude Wetli’s testimony about the heightened sedative effects of multiple drugs. The People leave out the hotel employee’s testimony that Cachay said she had taken a sleeping pill (A 1356). The defendant had more than an adequate basis to question the toxicology in the case in order to rebut 10 the People’s argument that the combination of drugs in her system would not have caused sedation. A failure to test for other drugs that could have accounted for Cachay’s behavior was not a “flight of fancy,” it was grounded in the facts of the case and a well-qualified expert’s view of them. The People posit this issue as a matter of the court’s discretion in controlling the scope of cross examination, rather than one flowing from the erroneous Frye rulings. The court did not “control” cross- examination in an exercise of discretion; it foreclosed whole areas of cross-examination based on an erroneous view of the law, areas that were necessary to the defendant’s defense. Here, the court’s ruling went beyond an abuse of any discretion and violated Brooks’ right to a fair trial. D) The Errors Were Not Harmless Dr. Sampson testified with resolute certainty that Cachay was forcibly drowned (A2027). Dr. Wetli disagreed because he found the physical evidence inconclusive. Dr. Wetli’s opinion arose from the existence of a particular alternative cause of death suggested by the lack of fluid in Cachay’s sphenoid sinus, her drugged-like state upon 11 entering the hotel, and her ingestion of multiple prescription drugs that cause drowsiness. Her drugged state could explain why she would get into a bath tub in her clothes. Wetli’s theory that Cachay could have slid under water and drowned was not, as the People claim, “absurd” (PB34). Wetli made clear that he was not giving an affirmative opinion on the cause of death because there were numerous possible causes and none were conclusive (A2169-71). Wetli’s testimony was the cornerstone of Brooks’ defense, a defense that the jury clearly considered, sending out nineteen notes during deliberations. The trial court’s preclusion of critical aspects of Wetli’s testimony and related areas of cross-examination was not harmless. POINT III THE READBACKS PERMITTED BY THE COURT WERE INCOMPLETE AND MISLEADING In a note during deliberations, the jury requested a readback of “testimony on water found in the sphenoid sinus solely in relation to the forcible drowning” (A2954). The readback included Wetli’s testimony that he would have expected the sinus to be filled with fluid if Cachay had struggled. The court refused to read back his opinion that Cachay could have slid underwater because of the influence of drugs that cause 12 sedation (A2956-7; 2169-76; 2468-69). Even though the People had not objected to the latter testimony, the court said it should not have been admitted and should have been stricken (2949-50). Having been admitted for the jury’s consideration without objection, the court did not have the discretion to exclude it; it was part of the evidence in the case. Wetli testified that he would expect the sinus to be filled with fluid if drowning were forcible, and he explained the circumstance under which there would not likely be water in the sphenoid sinus (e.g. unconsciousness) (A2169; see A2468 (testimony about Cachay’s intoxicated state stricken)). By reading the jury’s questions as narrowly and literally as possible, the testimony read back was consistently skewed toward the prosecution. In response to the jury’s note about Dr. Middleberg not having viewed the hotel video, the court allowed a readback only of his testimony that was favorable to the prosecution (that the “MLI report” about Cachay’s spaciness had no effect on his opinion) (A2595), but refused to read back his testimony that it is important to gather as much information as possible in making a toxicological determination (A2961). The fact that he neglected to review the most graphic 13 information –seeing Cachay’s condition and behavior in real time on a video – could not have been more relevant to the credibility of his opinion testimony. The court was wrong in ruling that this testimony was not “responsive to the jury’s request.” Id. This testimony was clearly important to the jury because it responded to the readback with another note asking for Middleberg’s testimony about whether the video would be useful if he had seen it (A2964). Instead of giving the jury Middleberg’s testimony on cross- examination about the importance of gathering as much information as possible (but not viewing the video), the court told the jury that neither lawyer had asked the word for word question the jury had posed (A2970). The jury had not just asked whether there was an answer to a specific question, the jury asked for Middleberg’s testimony about the usefulness of the video, “including a response to specific questions . . . .” (A2964). The jury was entitled to know that there was a question and answer that it may have found relevant, but they were misled into believing that the point was not brought up (A2970). The People argue that, because the testimony in question was read to the jury in response to the first note, there was no harm in the 14 failure to repeat it. Not only was there harm in failing to tell the jury that there was testimony in response to their subsequent, repeated requests, but the court also re-read prosecution-oriented testimony about the lack of value of the video, while refusing to re-read cross- examination (A2945, 2961).3 The court responded similarly to the jury’s request for testimony about seizures and anti-convulsants. The court allowed a readback of the prosecution witness testimony, that there were no seizures or anti- convulsants involved, but excluded Wetli’s brief testimony about the various causes of frothy liquid in the lungs and that one of the prescription medications can be prescribed as an anti-convulsant (A2973). The jury was entitled to a complete answer to its questions and should have been trusted to consider that testimony for whatever value it had to them. The jury likely knew the topics had come up on cross-examination and an accurate readback would have clarified in their minds whether to consider it an issue. The readbacks were a mini 3 The People argue that the error was harmless because Middleberg testified that the video he had not seen was not important to his medical opinion (PB44). The point was that he reached a medical opinion without viewing a video of Cachay within a few hours of her death, which was critically intertwined with whether the jury could accept his testimony as credible. 15 prosecution summation rather than an accurate response to the jury’s questions. In the name of preventing “speculation,” the court excised from the record any testimony that had been admitted that the court thought could support the defense. The court gave the jury an appropriate instruction about speculation in its final charge. It was improper to also sanitize the record. POINT IV THE TRIAL WAS CONTAMINATED BY INADMISSIBLE HEARSAY THAT PROTRAYED BROOKS AS AN AWFUL, REPRESENSIBLE PERSON Ignoring the case law, arguments and reasoning in Brooks’ brief, the People argue that the trove of hearsay statements admitted at trial were properly admitted, not for their truth, but to prove motive under the Molineux rule. People v. Molineux, 168 N.Y. 2d 292 (1901) (evidence of prior bad acts may be admissible for non-propensity purposes) (PB45). However, this Court has ruled that there is no Molineux exception to the hearsay rule. People v. Maher, 89 N.Y.2d 456, 461 (1997). The Fourth Department addressed the same issue in People v. Meadows, 140 A.D. 3d 1596 (4th Dept.) lv. denied, 28 N.Y.3d 933 (2016), where out-of-court statements were admitted for a triad of purposes: background, the victim’s state of mind, and motive or intent to kill the 16 victim. The Fourth Department followed Maher in ruling that there is no Molineux exception to the rule against hearsay. If admissible under a Molineux theory, the evidence must still be in admissible form, such as a witness’s testimony that he saw an assault or heard a threat. Id. at 1599-1600.4 The People suggest that the testimony of nine of Cachay’s friends and acquaintances was somehow admissible to rebut the defense characterization of the relationship between Brooks and Cachay as “loving,” but “charged” and included “love and anger” (PB47, 51; A786, 788-90). This was absolutely true and was borne out through numerous texts in which both expressed their enormous love for one another, and in which they aired their conflicts and in which Cachay told others of her love for him (A1116, 2514, PX53A). There was nothing misleading about defense counsel’s characterization and nothing to rebut about the fact that there was love and anger in a charged relationship. To the extent that the People had admissible 4 The People claim that the hearsay statements about Brooks’ use of escorts and marijuana mirrored in Brooks’ own statements to the police and in texts to Cachay. Brooks purportedly told the police that the escorts were before he met Cachay and the texts (between two people who texted constantly) were about individual instances of smoking pot, with Cachay or on his own (A2623, 3032, 3069, 3081, 3089). 17 evidence to show that a “charged” relationship and “anger” escalated to murder, they were free to argue that from the evidence. But nothing in defense counsel’s portrayal of the relationship, supported by the correspondence between the couple, warranted a barrage of witnesses reciting Cachay’s out-of-court complaints and negative characterizations of Brooks. Primarily though, the People rely on the judge’s instructions during trial and in her final instructions that the evidence could only be used for the limited purpose of showing the background of the relationship, defendant’s motive and intent, Cachay’s state of mind and her future intent with respect to the defendant and not for the truth (PB49-50; A954-56, A1228-29, 1496-97, 1842, 2629, 2872-74). The court told the jury, for example, that Brooks was not charged with illegal use of prostitutes, but that the evidence may help them resolve the issue of “intent which will be an element of the crime” (A1842). Only in her final instructions, after listing all the purposes for which the evidence could be used, did the court add that otherwise hearsay statements were offered “not for the truth of the statements, but to show that Sylvie Cachay said those things” (A2873). The jury could not possibly 18 reconcile the long list of what Cachay’s statements could be used to prove with an instruction that they should not be considered for their truth. If the People understood that the evidence was not to be used for its truth (PB45), then the prosecutors flagrantly violated, as early as opening statements, the law it urged the court to apply throughout pretrial motions and in the court’s later instructions. In his opening statement, the prosecutor gave a detailed narrative of the relationship, to be elicited from Cachay’s friends and acquaintances, with nothing about considering those statements only for motive or Cachay’s state of mind, but not for their truth (A756-759; e.g. “he had a history of patronizing prostitutes”). In summation, the prosecutor expanded the narrative, telling the story of a promising young professional woman who loved dogs and nurtured an injured pigeon back to health, who was unhappy in her job and desperate for a relationship, and ended up with a homicidal loser. The prosecutor told the jury: “[i]t's an unlikely couple. It's not only the age difference. She's accomplished. He's not. He has no ambition. No job. No desire for a job. He sits home and smokes pot” (A2777-78). The picture the People painted of Brooks, through the 19 hearsay statements of friends and acquaintances, was given to the jury as if it were true, not as statements that should be considered to show Cachay’s state of mind and Brooks’ motive. Moreover, motive and state of mind cannot be established through hearsay. People v. Maher, 89 N.Y.2d at 461; People v. Meadows, 140 A.D. 3d at 1599-1600. Similarly, “background evidence,” even if relevant and probative and not unduly prejudicial, cannot be presented through hearsay; it can only be shown though non-hearsay evidence, such as through a percipient witness who saw or heard the interactions between Cachay and Brooks. Id. (“Neither we nor the Court of Appeals has recognized a so-called “background exception” to the hearsay rule in criminal cases . . . .”)5 Neither People v. Frankline, 27 N.Y. 3d 1113 (2016), People v. Dorm, 12 N.Y.3d 16 (2009), nor People v. Rojas, 97 N.Y.2d 32 (2001), all cited by the People, suggest that hearsay evidence may be used to show background. According to the People’s position in this Court, somewhat different than in the courts below, the theory of prosecution was that 5 The People frame the hearsay issue as admissibility of background evidence, (PB3), but argue in their brief that it was admitted for several other purposes. 20 the “defendant killed her in a homicidal rage” in the heat of an argument (PB50). Therefore, as the theory seems to go, the hearsay was rendered admissible to prove the defendant’s reaction to Cachay telling him she was breaking up with him. But Cachay’s hearsay statements to friends were not proof of what she told Brooks; they were only evidence of what Cachay told other people. Cachay told friends that she was going to break up with Brooks on numerous occasions, and she either did not do it or she got back together with him almost immediately (e.g., A824). For a statement of future intent to be admissible, it must be “made under circumstances that make it probable that the expressed intent [to meet someone] was a serious one, and that it was realistically likely that such a meeting would in fact take place.” People v. Malizia, 92 A.D.2d 154, 160, 460 N.Y.S.2d 23 (1st Dept.), affd. on other grounds, 62 N.Y.2d 755 (1984); People v. Chambers, 125 A.D.2d 88, 89 (1st Dept. 1987). (conviction reversed where court admitted hearsay statement of the deceased that defendant told her he would come to her apartment at a particular time on the day she was killed). The circumstances here did not make it sufficiently probable that Cachay would carry out her 21 purported intent to break up with Brooks (and there was no evidence that she attempted to do so on the night she died). In a footnote, without citing any cases, the People claim that a witness’s testimony about Cachay’s statement to her that Brooks threatened to kill her outside of a bar while holding her keys over her head is “an admission by a party opponent” (PB52, fn 7). The friend- witness was not testifying to Brooks’ statement, she was testifying about Cachay’s statement to her. Cachay’s statement was not an “admission by a party opponent” (neither she nor her friend, for example, were co-conspirators), and her statement about Brooks’ statement was pure hearsay.6 Finally, the People argue that the hearsay statements were cumulative of other evidence, texts that showed that Brooks smoked marijuana and a vitriolic email from Cachay expressing her anger that Brooks had “cheated” on her. There was nothing in those exhibits about 6 In the same footnote, the People also suggest that Cachay’s statement could qualify as an excited utterance, without having raised the argument below and without any analysis of the requirements of that exception. The exception does not apply. Cf. People. v. Reynoso, 73 N.Y.2d 816, 818-819 (1988) (only relevance of statement would be for the inadmissible purpose of the truth). 22 Brooks using prostitutes or escorts or being a useless slob who sat around smoking pot all the time. (A2091-2092) The testimony was inadmissible hearsay that deprived Brooks of a fair trial. POINT V THE TRIAL COURT ERRED IN REFUSING TO HOLD A POST-VERDICT HEARING REGARDING A JUROR’S BIAS AND CONTACT WITH ALTERATE JURORS DURING DELIBERATIONS Brooks’ motion for a post-trial hearing was based upon an affidavit the People obtained from a Juror. In the affidavit, the Juror responded to and interpreted the statements a trial Witness made in an email to the prosecutor, in which the Witness described her conversation with the Juror. Brooks’ letter motion was made in writing and it relied upon the sworn allegations contained in the Juror’s affidavit, in compliance with the requirements of CPL §330.40. The affidavit contained the discrepancies between the Witness’s account of the meeting and the Juror’s. At trial, the People had called the Witness to testify and could not later complain that she was unworthy of belief. The discrepancies between the Witness’s email and the Juror’s affidavit raised a question 23 about the veracity of the Juror when she claimed that the incident with her boyfriend, which she discussed with three alternate jurors during deliberations, had no effect on “her ability to keep an open mind” (PB59). While the People claim that defense attorneys “routinely interview jurors and obtain affidavits in support of post-trial motions,” judges do not routinely credit those affidavits without a hearing or any further inquiry, as the trial court did in response to receiving a Juror’s affidavit from the People. The trial court erred in refusing to hold a hearing. 24 CONCLUSION The judgment of conviction should be reversed. Dated: New York, New York June 12, 2017 Respectfully submitted, SUSAN C. WOLFE Law Office of Susan C. Wolfe 360 Lexington Ave Suite 1502 | New York, New York 10017 Phone: 917-209-0441 scwolfe@scwolfelaw.com JEFFREY C. HOFFMAN Windels Marx Lane & Mittendorf, LLP 156 West 56th Street, New York, New York 10019 Phone: 212.237.1018 Fax: 212.262.1215 jhoffman@windelsmarx.com JERRY D. BERNSTEIN Blank Rome, LLP The Chrysler Building 405 Lexington Ave New York, NY 10174 212-885-5000 jbernstein@blankrome.com Attorneys for Defendant-Appellant Nicholas Brooks 25 CERTIFICATION I, SUSAN C. WOLFE, an 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 4,751 words excluding the tables. ____________________________ SUSAN C. WOLFE