The People, Respondent,v.Lyxon Chery, Appellant.BriefN.Y.September 15, 2016 To be argued by MARISA K. CABRERA (Time Request: 15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - LYXON CHERY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28 Floorth New York, NY 10005 TEL (212) 577-2523 FAX (212) 577-2535 MARISA K. CABRERA Of Counsel January 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I THE TRIAL COURT ERRED WHEN IT ALLOWED THE PROSECUTION TO IMPEACH MR. CHERY WITH OMISSIONS MADE DURING THE COURSE OF A SPONTANEOUS, PRE-MIRANDA-WARNING STATEMENT (replying to respondent’s Point I)... . . . . . . . . . . . . . 1 POINT II THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED COUNSEL’S TIMELY REQUEST FOR A MISSING WITNESS INSTRUCTION WHERE THE NON-TESTIFYING OFFICER WOULD HAVE PROVIDED NON-CUMULATIVE TESTIMONY IN THIS CASE, WHERE THE FACTS WERE SHARPLY DISPUTED (replying to respondent’s Point II).. . . . . . . . . . . . . . . . . . . . . . 7 POINT III THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH THAT ALHANAH SUFFERED SUBSTANTIAL PAIN (replying to respondent’s Point III).. . . . . . . . . . . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 14 i TABLE OF AUTHORITIES Cases Matter of Phillip A., 49 N.Y.2d 198 (1980). . . . . . . . . . 11 People v. Bornholdt, 33 N.Y.2d 75 (1973). . . . . . . . . . 2, 4 People v. Brown, 34 N.Y.2d 658 (1974).. . . . . . . . . . . . . 9 People v. Cephas, 90 A.D.3d 557 (1st Dep’t 2011). . . . . . . . 8 People v. Chavis, 91 N.Y.2d 500 (1998). . . . . . . . . . . . 7-8 People v. Chery, 127 A.D.3d 533 (1st Dep’t 2015). . . . . . . . 6 People v. Chiddick, 8 N.Y.3d 445 (2007).. . . . . . . . . . . 12 People v. Concepcion, 17 N.Y.3d 192 (2011). . . . . . . . . . 7-8 People v. Conyers, 52 N.Y.2d 454 (1981). . . . . . . . . . . . 4 People v. Conyers, 49 N.Y.2d 174 (1980).. . . . . . . . . . . . 4 People v. DeGeorge, 73 N.Y.2d 614 (1989). . . . . . . . . . . . 4 People v. LaFontaine, 92 N.Y.2d 470 (1998). . . . . . . . . . . 8 People v. Muhammad, 17 N.Y.3d 532 (2011). . . . . . . . . . . . 8 People v. Nieves, 67 N.Y.2d 125 (1986). . . . . . . . . . . . 7-8 People v. Pavone, 2015 N.Y. Slip Op. 09315 (Dec. 17, 2015). . 3-6 People v. Payne, 3 N.Y.3d 266 (2004). . . . . . . . . . . . . . 6 People v. Rodriguez, 38 N.Y.2d 95 (1975). . . . . . . . . . . . 9 People v. Rothschild, 35 N.Y.2d 355 (1974). . . . . . . . . . . 2 People v. Santiago, 936 N.Y.S.2d 37 (1st Dep’t 2012). . . . . . 8 People v. Savage, 50 N.Y.2d 673 (1980). . . . . . . . . . 2, 4-5 People v. Thomas, 21 N.Y.3d 226 (2013). . . . . . . . . . . . 10 People v. Williams, 25 N.Y.3d 185 (2015). . . . . . . . . . 2, 4 ii Statutes C.P.L. § 470.05.. . . . . . . . . . . . . . . . . . . . . 5-7, 11 C.P.L. § 470.15(1). . . . . . . . . . . . . . . . . . . . . . 7-8 iii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : LYXON CHERY, : Defendant-Appellant. : ----------------------------------------x PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief (“RB”) filed on December 23, 2015. ARGUMENT POINT I THE TRIAL COURT ERRED WHEN IT ALLOWED THE PROSECUTION TO IMPEACH MR. CHERY WITH OMISSIONS MADE DURING THE COURSE OF A SPONTANEOUS, PRE-MIRANDA-WARNING STATEMENT (replying to respondent’s Point I). Contrary to respondent’s claims, the test for whether a defendant can be impeached by an “unnatural omission” is not simply predicated upon whether “the defendant omitted the most salient exculpatory allegations from his pre-trial statement” at that moment. RB at 33-34, 37. Rather, as this Court has held, determining whether an omission is unnatural requires an assessment of the circumstances under which the statement was provided and 1 whether the substance of the statement provided was incriminating. See, e.g., People v. Savage, 50 N.Y.2d 673 (1980) (citing the “incriminatory” nature of the statements as well as a defendant’s “opportunity to inform the officer of his involvement in the crime” in determining whether impeachment by omission was proper). Historically, this Court has precluded the prosecution from impeaching a defendant by omission “absent unusual circumstances.” People v. Williams, 25 N.Y.3d 185, 191 (2015) (citing People v. Savage, 50 N.Y.2d 673 (1980), and People v. Rothschild, 35 N.Y.2d 355 (1974), as two unusual scenarios in which impeachment by omission has been upheld). Respondent’s argument rests upon the incorrect notion that Mr. Chery’s impeachment by omission was proper simply because there were more favorable facts that he neglected to include during the course of his spontaneous, pre- Miranda-warning statement. However, respondent’s rule would allow defendants to be subject to impeachment for omitting any mitigating facts even where there was virtually no opportunity to include them – a position this Court has previously rejected. See People v. Bornholdt, 33 N.Y.2d 75, 88 (1973). In Bornholdt, this Court held that a witness may only be impeached by omission when “the witness’ attention was called to the matter and . . . specifically asked about the facts embraced in the question propounded at trial.” 33 N.Y.2d at 88. While respondent seeks to distinguish Bornholdt, on the grounds that Mr. 2 Chery “was not simply a witness describing what he had seen or experienced,” (RB at 34), the principles upheld there are applicable in this case: “a witness may not be impeached simply by showing that he omitted to state a fact, or to state it more fully at a prior time.” 33 N.Y.2d at 88. Further, respondent’s argument suggests that Mr. Chery would have had more protections against impeachment by omission if he had been a witness, rather than a defendant – a position that runs counter to fundamental constitutional principles. Moreover, in People v. Pavone, 2015 N.Y. Slip Op. 09315, *5-6 (Dec. 17, 2015), this Court recently reaffirmed the tremendous protections our State accords to a defendant’s silence, holding that using a defendant’s silence for impeachment violates “state due process guarantees.” Respondent’s attempts to distinguish and dismiss Pavone fail. RB at 37 n.18. In Pavone, this Court explicitly “reject[ed] the People’s artificial distinction between defendants who are arrested and remain silent before Miranda warnings have been provided, and those who remain silent afterwards” – the same argument respondent advances on this appeal. Id. at *8; RB at 30-31. Here, respondent contends that omissions made during a pre-Miranda statement are more probative than a defendant who has received Miranda warnings as the “defendant has not been assured by the authorities that his silence would not be used against him.” RB at 3 30-31. As a general matter, the probative value of silence is very limited as “[o]nce a defendant is arrested, the defendant is confronted by law enforcement and the reasons for the defendant’s silence are no less ambiguous.” Pavone, 2015 N.Y. Slip Op. 09315 at *8. Indeed, this Court has historically expressed its concerns “about the inherent unfairness attendant to the use of a defendant’s pretrial silence” whether used “as part of the case-in- chief or for impeachment purposes.” Id. at *7; see People v. Williams, 25 N.Y.3d 185 (2015); People v. DeGeorge, 73 N.Y.2d 614, 619 (1989); People v. Conyers, 52 N.Y.2d 454, 458 (1981); People v. Conyers, 49 N.Y.2d 174, 181 (1980). Additionally, respondent argues that the non-incriminating nature of Mr. Chery’s initial statement is irrelevant to the Savage analysis. RB at 35. However, as Pavone now makes clear, the substance of the statement is significant in determining whether impeachment by omission is appropriate. Just as in Pavone, Mr. Chery’s case “is not an example, as the People suggest, of defendant contradicting a prior statement about what he remembered.” 2015 N.Y. Slip Op. 09315 at *8 (emphasis added). Since respondent does not even dispute that Mr. Chery’s statements at trial did not contradict his initial spontaneous statement to the officer, but that he simply “omit[ted] the facts that would best accomplish [his] goal[]” of exculpating himself, impeachment was not warranted. RB at 35. Thus, under Bornholdt, Savage, and 4 now Pavone, and in light of this State’s ardent protection of a defendant’s right to remain silent after arrest, the prosecution’s impeachment of Mr. Chery with omissions from his spontaneous, non- incriminating statement was error. This error was fully preserved for appellate review. First, contrary to respondent’s contention, defense counsel’s distinction of Savage in response to the prosecution’s motion satisfied the preservation requirements of C.P.L. § 470.05, whether or not counsel explicitly stated “that he opposed the application.” RB at 23. As evinced through the prosecution’s response and the court’s decision that the post-Miranda-warning distinction was irrelevant to the analysis, all parties understood counsel’s arguments to be an objection to the application of Savage in light of the facts of this case (A.292-93). See C.P.L. § 470.05(2) (“Such protest need not be in the form of an ‘exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal.”). Counsel’s statement fully satisfied the purposes of preservation. Moreover, respondent’s assertion that defense counsel needed to further explain “why it mattered that no Miranda warnings had been given” (RB at 24) “elevate[s] preservation to a formality that would bar an appeal even though the trial court . . . had full opportunity to review the issue in question” – a rationale this 5 Court explicitly rejected in People v. Payne, 3 N.Y.3d 266, 273 (2004). Here, the court immediately rejected defense counsel’s arguments that the pre- versus post-Miranda warning distinction was significant, indicating that it understood counsel’s position and did not need further legal arguments on the matter to reach its determination (A.293). See C.P.L. § 470.05(2) (“[A] party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.”). Notably unmentioned by respondent, is that the Appellate Division squarely addressed the merits of the issue, with no discussion of preservation whatsoever. See People v. Chery, 127 A.D.3d 533 (1st Dep’t 2015). Finally, for the reasons discussed in Mr. Chery’s original brief, the error cannot be deemed harmless. See Main Brief at 30- 33. Indeed, Mr. Chery satisfies both the non-constitutional and certainly the more lenient constitutional standard now available in light of the Court’s recent decision in Pavone holding that the prosecution’s “use of defendant’s silence constitute[s] a violation of his state constitutional rights.” 2015 N.Y. Slip Op. 09315 at *9. 6 Accordingly, for the reasons stated above and in Point I of the original brief, Mr. Chery’s judgment of conviction should be reversed and a new trial ordered. POINT II THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED COUNSEL’S TIMELY REQUEST FOR A MISSING WITNESS INSTRUCTION WHERE THE NON-TESTIFYING OFFICER WOULD HAVE PROVIDED NON-CUMULATIVE TESTIMONY IN THIS CASE, WHERE THE FACTS WERE SHARPLY DISPUTED (replying to respondent’s Point II). As a preliminary matter, respondent’s argument on appeal that a missing witness instruction was not warranted because Mr. Chery “failed to show that Tunis could have provided material” testimony, is unpreserved for this Court’s review. RB at 50-52. Rather, the prosecution only made two arguments below: that Tunis’ testimony would be “cumulative” and that Mr. Chery did not “show[]” that the testimony would be “hurtful to the People’s case and helpful to [Mr. Chery’s] case.” (A.329). Since this argument was not raised by the prosecution below, it is not preserved for appellate review and cannot now be addressed for the first time on appeal. See C.P.L. § 470.05; People v. Chavis, 91 N.Y.2d 500, 506 (1998); People v. Nieves, 67 N.Y.2d 125, 134-36 (1986). In addition, because the materiality issue was not decided adversely to Mr. Chery these claims cannot now be considered by this Court. See C.P.L. § 470.15(1); People v. Concepcion, 17 7 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998); Chavis, 91 N.Y.2d at 506; see also Nieves, 67 N.Y.2d at 134-36; People v. Santiago, 936 N.Y.S.2d 37 (1st Dep’t 2012). Criminal Procedure Law § 470.15(1) bars this Court, “from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court.” Concepcion, 17 N.Y.3d at 195 (emphasis in original); see People v. Muhammad, 17 N.Y.3d 532, 536- 37 (2011); Santiago, 936 N.Y.S.2d at 37; People v. Cephas, 90 A.D.3d 557 (1st Dep’t 2011). This imposes a “legislative restriction” on the power of appellate courts “to review issues either decided in an appellant's favor, or not ruled upon, by the trial court.” Concepcion, 17 N.Y.3d at 195 (quoting LaFontaine, 92 N.Y.2d at 474). Since the trial court denied counsel’s request on the two reasons the prosecution raised below and not on materiality, this Court does not have the jurisdiction to address this claim. In any event, respondent’s claims are without merit. First, respondent’s contention that Tunis’ testimony would have been cumulative as the facts were not in sharp dispute is contravened by the record. Respondent attempts to dismiss “any inconsistencies in the observations and recollections of the witnesses” at trial as the result of differences in perspectives. RB at 51-52. However, both Zapata and Alshmlami were present when Gutierrez and Tunis arrived at the scene and each spoke to the officers immediately 8 before they arrested Mr. Chery (A.115, 123-24). Thus, their testimony that they did not observe a white envelope recovered from Mr. Chery as well as the numerous discrepancies among the witnesses regarding the extent of Alhanah’s injuries and Mr. Chery’s possession of the metal object were material facts in sharp dispute. See People v. Rodriguez, 38 N.Y.2d 95, 101 (1975). Respondent also incorrectly claims that “no witnesses, other than [Mr. Chery]” testified that he did not have a metal object in his hands. RB at 51. In fact, Alshmalami testified that Mr. Chery and Alhanah were “holding each other” and that “[t]hey had a piece of wood and they didn’t [] let it go from each other.” (A.245) (emphasis added). Zapata also agreed that the object in Mr. Chery’s hands at the time of the incident was “consistent with . . . a wooden stick.” (A.116). As such, it is of little significance that Tunis would not have “observed anything outside of the presence of Gutierrez, who did testify” as what Tunis observed would have added a necessary clarifying perspective to the contradictory versions of events offered by the various witnesses at trial. RB at 50. See People v. Brown, 34 N.Y.2d 658 (1974) (finding a non-testifying officer’s testimony would not be cumulative or trivial where he “was an eyewitness to the transaction and was readily available to the prosecution” even though another officer, who “had acted jointly” with him, had testified at trial). Therefore, as counsel argued below, had Tunis 9 testified, he would be “contradicting somebody” in light of the factual discrepancies among the witnesses, warranting a missing witness instruction. Moreover, respondent’s claim that the court did not require that Mr. Chery make a showing of proof as to the favorability of Tunis’ testimony to the prosecution is belied by the record. RB at 53. Contrary to respondent’s contention, the court was not simply “asking defense counsel if there was ‘something’ counsel could ‘point out . . . a reason why [Tunis’s] testimony would not be cumulative.” RB at 53. Rather, a basic reading of the record shows that the trial court had already made its determination as to whether the testimony was cumulative and then affirmatively adopted the prosecution’s second argument, “that there is no showing that Officer [Tunis]’s testimony would be hurtful to the People’s case and helpful to the defendant’s case” when the court stated, “[r]ight. That’s the other reason.” (A.329-30 (emphasis added)). Since respondent concedes that under People v. Thomas, 21 N.Y.3d 226 (2013), Mr. Chery was not “required to establish the content of Tunis’s testimony of that it would actually have harmed the People,” the court erred when it imposed this burden upon the defense. RB at 53. Finally, respondent’s arguments that this claim is partially unpreserved is meritless. Defense counsel preserved these issues for appellate review through his timely request for the charge upon 10 learning that the prosecution did not intend to call Tunis as a trial witness (A.75-76). During the charge conference, counsel explained that a missing witness instruction would be necessary because “[n]o matter what [Tunis] says, he is going to be contradicting somebody because there are different versions of what the scene was when the police arrived,” especially in light of the fact that he individually “interviewed the complaining witness and we have no idea what was said” (A.327-28). Counsel’s spot-on objection fully preserved this error for this Court’s review. See C.P.L. § 470.05(2). Since this error could not be deemed harmless for the reasons stated in Mr. Chery’s original brief, the judgment of conviction must be reversed and a new trial ordered. POINT III THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH THAT ALHANAH SUFFERED SUBSTANTIAL PAIN (replying to respondent’s Point III). Despite respondent’s efforts on appeal, there is simply no “objective basis in the record [to] support[] the jurors’ finding of physical injury” – a standard that respondent acknowledges it must meet to demonstrate substantial pain. RB at 59. See Matter of Phillip A., 49 N.Y.2d 198 (1980). Contrary to respondent’s claim, Mr. Chery is not suggesting that any one type of objective evidence is a “prerequisite” to find physical injury. RB at 64. 11 Rather, Mr. Chery contends only that the evidence introduced at trial did not meet this threshold. Indeed, much of respondent’s argument that it met the objective evidence corroboration requirement relies upon the conclusory fact of an assault having occurred, rather than examining the resultant pain and sustained injuries. RB at 60. However, a review of the objective evidence introduced at trial reveals the opposite – that Alhanah did not suffer substantial pain. Unlike People v. Chiddick, 8 N.Y.3d 445, 447 (2007), which respondent relies heavily upon (RB at 59-61), Alhanah did not seek medical treatment for his injuries nor employ home treatments and remedies to address his injuries – a fact that the Chiddick Court deemed to be relevant in determining whether “pain was significant.” Similarly, Alhanah did not take time from work due to his injuries or preserve the allegedly lost photographs of his injuries. Although the prosecution could have tried to satisfy its burden by eliciting at trial how long Alhanah experienced pain, it did not. Now, respondent attempts to do so by speculating that Alhanah’s assertion that he did not experience pain “for all 10 days” after the incident, “indicates that it continued for a significant portion of the ten days that his injuries lasted” – an inferential leap that has no support in the record. RB at 61. Although respondent contends that Alhanah’s decision not to go to the hospital that night was “not a meaningful indication that 12 his injury was ‘slight or trivial,’” respondent’s concession that Alhanah only suffered “minor lacerations and bruising” only reaffirms Mr. Chery’s position that the injuries did not meet the threshold to establish substantial pain. RB at 64. Since Alhanah only sustained “lacerations and bruising” that were so minor that they “could not have been meaningfully treated by a medical professional,” it is evident that the physical injury element was not established. RB at 64.1 Viewing the evidence in the light most favorable to the prosecution, it is clear that the prosecution could not meet its burden due to the lack of objective evidence to support Alhanah’s undefined, subjective claim that he suffered pain as a result of his injuries. Accordingly, for the reasons stated above as well as in Mr. Chery’s main brief, the judgment of conviction for robbery in the second degree (count two) should be reversed, dismissed, and modified to robbery in the third degree. While Mr. Chery accurately stated in his original brief that1 Alashmlami testified “that Alhanah only had ‘a little scratch on his neck and on his arm,’ specifically his ‘right elbow,’” respondent is correct that appellant mistakenly attributed statements relating to Alashmalmi’s observations of Mr. Chery’s face and body to the complainant’s injuries (A.245-46). Main Brief at 47; RB at 66. Even so, this does not change the strength of Mr. Chery’s position as “a little scratch on [Alhanah’s] neck and on his arm” does not meet the substantial pain threshold and only proves that Alhanah sustained minor injuries during the course of the incident. 13 CONCLUSION FOR THE REASONS SET FORTH TN POINT T, POTNT TÏ, AND IN THE ORIGTNAL BRIEF, MR. CHERY'S .fUDGMENT OF CONVICTION SHOULD BE REVERSED AND A NEW TR]AL ORDERED. FOR THE REASONS STATED ÏN POÏNT ÏÏT AND IN THE ORIGTNAL BRIEF, THE .]UDGMENT OF CONVICTTON FOR ROBBERY IN THE SECOND DEGREE (COUNT TWO) SHOULD BE REVERSED, DÏSMISSED, AND MODIFIED TO ROBBERY TN THE THIRD DEGREE. Respectfully submitted, isa f Counsel ,fanuary 201-6 ra ROBERT S. DEAN Cent,er for Appellat,e f,itigation T4