The People, Appellant,v.Shane Morris, Respondent.BriefN.Y.May 31, 2016To be argued by SHARON Y. BRODT (TIME REQUESTED: 15 MINUTES) N.ew Vnrk ~upr.em.e Gtnurt Appellate Division--Second Department AD No. 10-07371 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against SHANE MORRIS, Defendant-Appellant. BRIEF FOR RESPONDENT JOHN M. CASTELLANO SHARON Y. BRODT Assistant District Attorneys Of Counsel AUGUST 16,2013 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard KewGardens, New York 11415 (718) 286-5878 Queens County Indictment Number 2912/08 TABLE OF CONTENTS Page No. PRELIMINARY STATEMENT .................................. 1 FACTUAL AND LEGAL BACKGROUND ........................ 2 POINT ONE DEFENDANT'S JURY NOTE CLAIM IS UNPRESERVED AND WHOLLY WITHOUT MERIT ........................................... 8 POINT TWO THE COURT'S CHARGE DEFINING THE PEOPLE'S BURDEN OF PROOF WAS PROPER ........ 16 CONCLUSION .............................................. 26 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SHANE MORRIS, Appellant. ---------------------------------------------------------------------X BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant Shane Morris appeals from a July 14, 2010, judgment of the Supreme Court, Queens County (Aloise, J.). By that judgment, defendant was convicted, after a jury trial, of Assault in the First Degree (Penal Law§ 120.30[2]) and two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], [3]). He was sentenced, as a second felony offender, to concurrent determinate prison terms of seventeen years on the assault charge, and fifteen years on each of the weapon possession charges, to be followed by five years of post-release supervision. Defendant is currently incarcerat\d pursuant to that conviction. FACTUAL AND LEGAL BACKGROUND On November 4, 2008, in the Rockaways, in Queens County, defendant shot Harold Whitmore twice in the face. One of those shots nicked the victim's facial artery, from which Mr. Whitmore could have bled to death were he not treated. The shooting occurred because defendant demanded money from the victim to pay for damage to a door that Mr. Whitmore had caused. The door belonged to a mutual friend of Mr. Whitmore and defendant. Mr. Whitmore had promised to fix the door, but had not yet.done so. Because he still intended to fix the door, he refused to give defendant the money. Defendant, angry over this refusal, shot Mr. Whitmore. The shooting was witnessed by Mr. Whitmore's friend, Gary Richards. Mr. Whitmore intended to treat the wound himself- he did not want to report the incident to the police because he was a parole violator with an open parole warrant. But when the wound started to spew blood, he agreed to go to the hospital with Mr. Richards and be treated. Ultimately, he named defendant as the shooter, and when defendant was arrested, he gave one oral and two written statements to the police. He claimed that, after he demanded the money for the door, Mr. -2- Whitmore came after him with a knife. At that point, one of his "homeboys," who was there with him, handed him a gun and he shot Mr. Whitmore in self- defense. For these acts, defendant was charged with Attempted Murder in the Second Degree (Penal Law§§ 1101125.25[1]); Assault in the First Degree (Penal Law§ 120.10[1]); two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law§§ 265.03(1][b], [3]); and Assault in the Second Degree (Penal Law § 120.05(2]) (Queens County Indictment Number 2912/08). Defendant proceeded to trial before the Honorable Michael B. Aloise of the Supreme Court, Queens County, and a jury. At trial, Mr. Whitmore and Mr. Richards testified to the events of the crime. 1 Dr. Kenneth Fretwell, testified to the severity of the victim's injuries and his treatment of them, and Detective Courtney Cummings testified to her interrogation of defendant and his statements.2 1 Mr. Richards did not want to testifY, and was in court only because the police had shown up at his door to take him to court (Richards: 159-60, 170- 71). 2 Police Officer Michael McCabe described his observations as the first responding officer to Gary Richards's 911 call. He described the victim's condition and the state ofthe apartment (McCabe: 143-46, 146-50). He also -3- Mr. Whitmore and Mr. Richards, who knew Mr. Whitmore by his nickname, D'Angelo, or "D," were celebrating the victory ofBarack Abomey in the presidential election that day. Having already drunk a substantial amount of alcohol, they went out to get more (Whitmore: 185-89; Richards: 160-63 ). They were on their way back to Richards's home when defendant- whom Richards knew as "Blue" - came up to Mr. Whitmore and demanded $96 for the repair of a door he had damaged in Martha Madder's apartment. Mr. Whitmore had promised to fix the door himself- he did some contracting work and had a door that he needed to shave down so that it would fit Martha's apartment. He had known Martha and her family since he was thirteen years old, but defendant had only known them for a short while. He was increasingly annoyed that defendant was making these demands, as he felt that it was none of defendant's business. He told defendant to "fuck off," and turned away, intending blowing defendant off (Whitmore: 189-95; Richards: 162-64 ). Mr. Whitmore saw a movement in the peripheral vision of his eye, and felt a thud, then heard ringing in his ears (Whitmore: 195-98). described Mr. Whitmore's reluctance to cooperate (McCabe: 150-55). His partner accompanied the victim to the hospital (McCabe: 146). -4- Mr. Richards heard snatches of the argument between defendant and Mr. Whitmore; he was standing nearby (Richards: 162-64). Then he saw defendant take something out of his pocket- he could not actually see the gun - and heard the sound of two shots fired from a small-caliber gun. Mr. Whitmore had nothing in his hands but one of the cans of alcohol they had bought. Mr. Whitmore staggered and then he felt his face and felt blood. Mr. Richards took off running in the opposite direction (Whitmore: 197-99; Richards: 164-66). Mr. Richards joined Mr. Whitmore shortly thereafter, at Mr. Whitmore's home. He saw that Mr. Whitmore was injured but trying to treat himself, applying pressure to the wounds, but every time Mr. Whitmore removed the towel, blood spewed from the wound. He told the victim to go to the hospital, but Mr. Whitmore did not want to call the police or an ambulance, because he had an open parole warrant. Because Mr. Whitmore was passing out of consciousness, Mr. Richards finally called the police (Richards: 167-70). When they came, Mr. Whitmore was uncooperative, but ultimately, he allowed them to take him to the hospital. But he gave them a different name that he was also known as, -5- D'Angelo Adams, because of the parole warrant. 3 Nonetheless, when he came to in the hospital, he was handcuffed to the bed. At that point, he admitted who he was (Whitmore: 199-207). After a few days, he was transferred to the hospital unit at Rikers Island. After a month, he was taken to meet with an assistant district attorney, where he signed a proffer agreement. It required him to tell the truth about what had happened. His parole was exonerated shortly thereafter (Whitmore: 207-10). Detective Cummings brought defendant to the precinct, and told him the victim's version of events, that it appeared that defendant was a cold- blooded killer, and asked him if he wanted to give his version. Defendant said that he and the victim had argued about the door, Whitmore had told him to "fuck off," then started to reach into his waistband, and defendant had shot him in the face. Defendant then wrote down that version of his story. When asked how he got the gun, defendant hesitated, then gave another statement, which he subsequently wrote out, in which he stated that one of his "homeboys" had handed him the gun (Cummings: 269-84). 3 Mr. Whitmore had an extensive record and many aliases. -6- At the conclusion of the trial, defendant was found guilty of the first-degree assault and both weapon-possession charges, but was acquitted of the attempted-murder charge.4 On July 14, 2010, defendant was sentenced as noted above. On appeal, defendant raises two claims. First, defendant argues that the court erred when it did not follow proper procedures concerning a jury note asking only for a read back, because the court failed to read the jury note into the record verbatim, and also allegedly failed to show it to the parties before calling in the jury and responding to it. But defendant's claim is unpreserved, and his claim that the court's reading of the note was somehow misleading is simply wrong. Second, defendant claims that the court erred in its reasonable- doubt charge to the jury, because the charge was based on the prior pattern jury instruction and not the current one. But again, defendant's claim is unpreserved. Further, defendant's claim is without merit, as he fails to show that any appellate court has ever declared the language of the prior charge defective or inadequate to convey the People's burden of proof. 4 The People dismissed the second-degree assault charge before the case was submitted to the jury. -7- POINT ONE DEFENDANT'S JURY NOTE CLAIM IS UNPRESERVED AND WHOLLY WITHOUT MERIT (Responding to Defendant's Brief, Point One). Defendant did not object to the court's failure to follow the exact procedure laid out in People v. 0 'Rama, 78 N.Y.2d 270 (1991 ), when the court responded to a jury note asking for a readback. But counsel had notice of the exact contents of the note, and was aware of the court's response to that note. Thus, defendant had an obligation to object to both the court's alleged failure to read the note into the record outside the presence of the jury, and to the court's response. Nevertheless, defendant now claims that the court erred in failing to read the contents of the note "verbatim" into the record outside the presence of the jury, arguing that the court's reading of the note somehow misled counsel as to its actual content, which in tum caused counsel not to object to the court's response. But defendant's claims are unpreserved for this . Court's review, and the claim that the note was not read "verbatim" and that counsel was misled is simply wrong. As a threshold matter, defendant's claim is unpreserved. The Court of Appeals recently made clear that a failure to comply precisely with the -8- O'Rama procedures is not a mode-of-proceedings error and reqmres preservation. Peoplev. Williams, 21 N.Y.3d 932,934-35 (2013). In Williams, "the jury sent several notes requesting further legal instruction." The People's brief in Williams indicates that Williams's claim was "[b]ased on the absence of record proof of a discussion between the court and counsel just before the supplemental instruction," but that "at no time until the defendant was before the Appellate Division did he complain that the court had failed to read or show the note to his counsel, give counsel an opportunity to provide input into the court's instruction, or that the court provided an objectionable instruction" (see People's Brief, pp. 11, 18-19, 30). On these facts, the Court of Appeals unanimously rejected defendant's 0 'Rama claim, holding, "We are not persuaded by defendant's argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v 0 'Rama . . . . Where, as here, defense counsel had notice of a jury note and 'failed to object ... when the error could have been cured,' lack of preservation bars the claim." Id.; see also People v. Ramirez, 15 N.Y.3d 824, 825 (2010) (preservation required, and no mode-of-proceedings error, when counsel, having been provided notice of jury note's content, failed to protest against court's -9- response, even though record was unclear as to whether counsel had been shown no teas required byO'Rama);Peoplev. Kadarko, 14 N.Y.3d426 (2010) (no mode-of-proceedings error when court disclosed to counsel fact of jury's split of votes for conviction and for acquittal, though erroneously withholding exact numbers of votes for each; such error requires preservation).5 Here, the record reflects that the court received two notes: the first requesting defendant's statements, and the second stating, "We the jury request 5In this respect, Williams undermines the holdings of this Court's decisions in People v. Lockley, 84 A.D.3d 836 (2d Dept. 2011), and cases following that decision: see People v. McGhee, 103 A.D.3d 667, 667 (2d Dept. 2013), and People v Stocks, 101 A.D.3d 1049, 1051 (2d Dept. 2012). In those cases, this Court held that the failure to read a jury note into the record before the trial court called the jury out was a fundamental mode-of-proceedings error. In Williams, however, the Court of Appeals held otherwise, concluding that even though the court first read the jury note aloud in front of the jury itself, -as occurred here- no mode of proceedings error had occurred. Counsel had ample opportunity to object at that time, which was sufficient, according to the Court, to remove the issue from the narrow class of mode of proceedings errors. Moreover, to the extent that Lockley and its progeny relied on People v. Tabb, 13 N.Y.3d 852 (2009), for its holdings, Williams requires a different interpretation of Tabb. In Tabb, the Court found a mode of proceedings error where nothing in the record indicated that the court informed either defense counsel or the prosecutor about the contents of the note- at all. The Court of Appeals found no inconsistency between Tabb and Williams, where the trial court read the note aloud to the jury in the presence of counsel before responding. Thus, in light of Williams, nothing in Tabb requires reversal where the note is read aloud for the first time to the jury, in the presence of counsel and the defendant, before the trial court responds. -I 0- a read back of Gary Richard's testimony" (Court Exhibits 1, 2). The record reflects that the court brought in the jury, confirmed that the jury had received the statements, and then said, "Secondly, you requested a read-back of Gary Richard's testimony. We are prepared to give it to you right now. This is direct examination of Gary Richards by Mr. Brennan." The testimony was then read back (Proceedings: 359). Thus, here, it was clear that counsel was informed of the exact contents of the note, and of the court's response. Yet defendant made no protest. He did not complain of the court's failure to read the note "verbatim into the record before calling out the jury; did not complain that he had not been informed of the note prior to its being read to the jury; did not complain that he had had no opportunity to contribute to the court's response to the note; and did not complain about the court's substantive response. Thus, it is clear that, under Williams, defendant's claim is wholly unpreserved. Defendant nevertheless complains that, when the court read the note back in open court with the jury already present, the court did not read the note "verbatim," and that this non-verbatim reading may have "misled" counsel as to the request the jury was making. Defendant argues that it is only because -II- counsel was misled that he did not protest that only direct testimony, and not cross-examination, was being read back. But defendant's claim that the note was not read back "verbatim" is simply disingenuous, as the note was read to the jury virtually verbatim. Indeed, the only change was in the pronouns being used. The note, because it was written by the jury, said, "We the jury request a readback of Gary Richard's testimony", whereas the court's reading, because it addressed the jury, stated, "You requested read-back of Gary Richard's testimony" (Proceedings: 359)(emphasis added). There was simply no substantive difference, and it is impossible to see on what language defendant bases a claim that counsel might have been misled. For this reason, there is no basis upon which to bring this case under People v. Kisoon, 8 N.Y.3d 129 (2007). in which the jurors sent a note indicating that their vote was ten-to-two in favor of conviction, and that they did not believe that further deliberations would help. Id. at 132. The trial court, without informing counsel that the jury had indicated its split, much less informing counsel of the exact number of the split, instructed the jury to continue its deliberations. Id. The Court of Appeals held that, had defendant known that there were two holdouts for acquittal, he might have requested an -12- Allen charge, "stressing the importance of individual jurors not surrendering conscientiously held views .... " Id. at 135. The Court therefore held that this was a mode of proceedings error that did not require defendant to object, because the trial court had failed in its "core responsibility" of informing counsel of the note's contents. Id. But it is clear that Kisoon is distinguishable from all the cases in which the Court of Appeals requires preservation by the salient fact that the court failed to inform the parties of the existence of a whole portion of the note -not the exact phrasing of the note or even its details. And it is clear that the Court's logic rests on the fact that, if counsel is unaware ofthe existence of a whole portion of the note, she cannot be aware that there is an objection to be raised to that part of the note. This is made manifest in the Court's decision in People v. Kadarko, 14 N.Y.3d 426, supra. There, the Court found no mode-of- proceedings error where the court disclosed to counsel the fact of the jury's split of votes for conviction and for acquittal on each count, but withheld the exact numbers of votes for each. Defendant requested a mistrial based on a hung jury; the court instead gave an Allen charge and informed the parties it would show them the note with the information on the exact splits afterward -13- charging the jury; and, when it did so, counsel lodged no further objection. !d. at 428. Defendant claimed that the court's failure to show the note and disclose the numbers of the splits was error, but the Court held that, because the parties had "meaningful notice" of the contents of the note, such error was not a mode-of-proceedings error and was subject to the rules of preservation. !d. at 429-30. Here, defendant had better than meaningful notice of the note's contents - he had virtually verbatim knowledge of the contents. Thus, he cannot defeat his need to have objected to the procedures. This Court has also held that notes requesting readbacks of testimony, like notes that request exhibits, may be deemed ministerial in nature, and thus be subject to preservation requirements. People v. Gerrara, 88 A.D.3d 811, 812-13 (2d Dept. 2011), lve. denied; 18 N.Y.3d 957 (2012), cert. denied, Gerrara v. New York, _U.S._, 133 S.Ct. 857 (2013). Defendant nevertheless argues that this is not the case here because the jury's request was "ambiguous" (Defendant's Brief at 19). But again, as with his claim that counsel may have been "misled," defendant makes the conclusory claim and does not show how an unelaborated request for a readback of a single witness's testimony is "ambiguous." -14- Ultimately, defendant's real objection is to the court's response to the note- the decision to read back only the direct testimony. But there is no ambiguity about the long-standing requirement that a defendant object to the court's response to a jury note while the error can be cured, as it could so easily have been cured here. People v. Starling, 85 N.Y.2d 509, 516 (1995); see also People v. Ramirez, 15 N. Y.3d at 825. Furthermore, it may be inferred that the parties did have notice of the note and the court's intended response, as the record shows that, when the court brought the jury out and read the contents of the note, the readback was already prepared, and it took place immediately (Proceedings: 359). In sum, defendant's claim that the court did not follow the procedures outlined in People v. 0 'Rama is wholly unpreserved and, contrary to his claims, the alleged error was not a mode-of-proceedings error and required preservation. Defendant had meaningful notice of the contents of the note - indeed, the court read the note virtually verbatim. Further, defendant had ample opportunity to object to any lack of notice, as well as to the court's substantive response, but failed to do so. Defendant's claim should therefore be rejected. -15- POINT TWO THE COURT'S CHARGE DEFINING THE PEOPLE'S BURDEN OF PROOF WAS PROPER (Responding to Defendant's Brief, Point Two). The court's charge explaining the People's burden of proving defendant's guilt beyond a reasonable doubt was proper. Defendant nevertheless argues that the court's charge, which used the language of the original pattern jury instructions rather than that of the revised instructions, failed to convey the strength of the evidence necessary to prove guilt. But defendant's claim is wholly unpreserved, and lacks merit because the original instructions have never been declared constitutionally defective or inadequate to convey the law. As a threshold matter, defendant's claim is unpreserved. As with all claims, a claim that a court's reasonable doubt charge was improper or erroneous must be raised with sufficient specificity to allow the trial court to correct the error. People v. Robinson, 88 N.Y.2d 1001, 1001-02 (1996); People v. Benton, 103 AD .3d 746, 747 (2d Dept. 2013). Moreover, the error that a defendant alleges on appeal must be the same error that was alleged below. -16- Here, defendant's objection failed abjectly to alert the court to the error he now claims, both because it failed to alert the court to the fact that it was using the language of the older Criminal Jury Instructions ("CJI I") rather than the revised instructions ("CJ12"), and because it failed to specify to the court the omitted language that defendant now claims was so critical. At trial, when the court invited exceptions to charge, defendant argued that he thought the charge on reasonable doubt was "inadequate to follow the CJI." When the court stated simply that "It was read from the CJI," defendant answered, "I think it was the abridged version of it. As well as credibility of witness. As well as the charge on credibility of witnesses was read from the CJI, but it was the abridged version of it. So I have an objection to those charges" (Proceedings: 354). This was defendant's entire objection, which failed to alert the court of a simple error that could have been simply cured. In fact, defendant raised the wrong objection- that the court had read an abridged version of a standard charge- which the court knew not to be true. Rather, had defendant said, "I think you are using the prior version of the charge," or, "I think you are not using the revised charge," the court would have been alerted to the alleged error and would have had an incentive to check the language - something it -17- had no incentive to do based on the objection as phrased. Thus, defendant lodged the wrong objection, and failed to give the court the opportunity to correct the alleged error. Similarly, defendant failed to specify the missing language he now claims was so critical. By identifying the charge as correct but "abridged," and merely saying that it was "inadequate to follow the CJI," without arguing that the missing language of "firmly convinced" of guilt was critical to the definition of proofbeyond a reasonable doubt, defendant failed to preserve his appellate claim that that language is critical to the jury's determination that the People have proved defendant guilty. Indeed, because the court did not use an "abridged" charge, but rather used an older charge that had never been ruled inadequate by any appellate court, it was as if defendant were saying, "Something is missing from this charge, and I'm bothered by the omission, but I cannot put my finger on it." This simply did not amount to a specific objection or a request for particular language- the court was not required to guess what language defendant wanted. This is especially true with respect to jury instructions, where a defendant may not want certain charges given, or certain language used, in order not to draw attention to certain evidence or -18- principles, as a matter of strategy. Thus, here, defendant failed utterly to preserve his claim.6 In any event, the court did not err in its instructions to the jury on the People's burden of proof, because the pattern instruction that the court used, which tracked the language of CJil, has never been found to be inadequate to convey the constitutional requirements of proof beyond a reasonable doubt. To the contrary, as discussed below, appellate courts repeatedly approved of the prior language and criticized trial courts when they departed from the language of the original pattern jury instructions on reasonable doubt. In establishing the fairness and propriety of a trial court's charge to a jury, "[t]he test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at it decision." People v. Hurk, 165 A.D.2d 687, 688 (1st Dept. 1990)(quotingPeoplev. Russell, 266 N.Y. 147, 153 [1935]). "[I]n considering the adequacy of a jury charge, an appellate court should read it as a whole 6 Defendant's claim that his objection somehow equaled a request for an instruction that conveyed that the jury had to be "firmly convinced" ofhis guilt (Defendant's Brief at 29-30) is simply disingenuous. -19- against the background of the evidence produced at trial." People v. Andujas, 79 N.Y.2d 113, 118 (1992). With respect to the adequacy of a reasonable-doubt charge, a reviewing court must "'read the instruction as a whole to determine if it was likely to confuse the jury as to the proper burden of proof (People v Fields, 87 NY2d 821, 823, 660 NE2d 1134, 637 NYS2d 355 [1995]) or if it is reasonable to conclude that '"the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at [a] decision"' (People v Drake, 7 NY3d at 34, quoting People v Russell, 266 NY 147, 153, 194 NE 65 [1934])." People v. Umali, I 0 N.Y.3d 417, 427 (2008). Here, in using the prior language in the CJI, the court was using language that had been approved of by the Court of Appeals and all of the appellate divisions over and over again. See, e.g., People v. Cubino, 88 N.Y.2d 998, 1000 (1996); People v. Johnson, 245 A.D.2d 570,571 (2d Dept. 1997); People v. Nazario, 236 A.D.2d 232 (I '1 Dept. 1997). This version had been in use, without challenge, from before 1983, (see Preface, CJI[NY]), and supported its language with case law dating from 1948. CJI(NY) § 6.20. In fact, no court has ever found that language inadequate to convey the People's -20- burden of proof, much less found that the language was unconstitutional or deprived a defendant of due process. To the contrary, courts have approved of that language, and of the definitions contained in that charge. See People v. Cubino, 88 N.Y.2d at 1 000; see also Jean v. Greene,_ F.3d _, 2013 U.S. App. LEXIS 7765 (2d Cir. AprillS, 2013). Nevertheless, defendant argues that the court erred in not following the revised language in the CJI2d, and, more specifically, by not charging that proof of guilt beyond a reasonable doubt must leave the jury "so firmly convinced" of the defendant's guilt that it has "no reasonable doubt of the existence of any element of the crime or of the defendant's identity as the person who committed the crime." CJI2d(NY) - Instructions of General Applicability: Reasonable Doubt. Defendant claims that this language affirmatively focuses on the strength of the People's proof rather than on the definition of reasonable doubt (Defendant's Brief at ~0). But defendant is wrong for a number of reasons. First, the prior instruction given by the court conveyed the People's burden of proof affirmatively as well, stressing that the credible evidence had to "convince you beyond a reasonable doubt" that a crime was committed and that defendant had -21- committed it (Charge: 339)(emphasis added). Second, the revised instruction also defines reasonable doubt at length, and, in this respect does not differ from the prior instruction. But, most important, defendant is wrong because of the giant conclusion to which he leaps- that, absent the language of the revised charge, there was a "reasonable likelihood that the jury understood the reasonable doubt instruction actually given to permit conviction based on constitutionally insufficient proof' (Defendant's Brief at 30). This astounding conclusion essentially states that the reasonable doubt charge used for decades, in thousands of criminal cases, until the revised charge was recently approved and adopted, resulted in thousands of verdicts that were based on something less than the mandatory proof beyond a reasonable doubt. 7 Defendant cites no case in support of this proposition. Rather, defendant cites only to the concurring opinion of Justice Ginsburg in Victor v. Nebraska, 511 U.S. 1 (1994), in which Justice Ginsburg praises the "firmly convinced" language. 511 U.S. at 26-27 (Ginsburg, J., concurring in part and 7Because defendant essentially asks this Court to be the first and only court to strike down the prior instruction's language as unconstitutional, it is all the more important that the claim be preserved, so that it is subject to review in the Court of Appeals. Because it is not preserved, this Court should not reach the claim. -22- concurring in the judgment). But the concurring opinion, while praising that language does not even suggest that, absent that language, an instruction would be inadequate or unconstitutional. Furthermore, New Y ark's prior instruction contains none of the language criticized by the majority, Justice Ginsburg, or the other concurring justices in the case.8 So, too, the adoption by the CJI committee of the revised language does not amount to condemnation- explicit or implicit- of the prior language. Furthermore, citing to the principles in Victor v. Nebraska, the United States Circuit Court for the Second Circuit has explicitly approved of the language in the prior charge. Jean v. Greene,,_ F.3d at_, 2013 U.S. App. LEXIS 7765, * 14-15 (although preliminary charge contained erroneous language, final charge, which tracked pattern jury instructions, stated "correct standard"). Thus, defendant has simply failed to show that the language used by the court, although revised by the promulgators of CJI2, in any way 8The phrases at issue in the case were "moral evidence," moral certainty," "strong probabilities," and "actual and substantial doubt." The Court ultimately found that, in the context of the entire charge, even these charges were not problematic. Jd.at 16-17,22-23. The Court pointed out that, in the history of its review, it had found that an instruction violated due process only one time. !d. at 5-6 (citing the instruction in Cage v. Louisiana, 498 U.S. 39,40 [1990]). -23- minimized the People's burden of proof or was in any way unconstitutional or even inadequate. Moreover, any error was harmless, because defendant cannot show that the jury would have reached a different verdict given the revised instruction. This was a case in which the only issue to be resolved was the credibility of the two witnesses to defendant's attack - the victim and his friend. Defendant's identity was not in issue; the only question was whether defendant was justified in shooting the victim, and the court made clear that the People had to disprove justification beyond a reasonable doubt. Against the compelling, non-evasive testimony of the two witnesses, defendant relied upon only his statement to the police- he did not testify. Nor did he produce as a witness, much less name, the "homeboy" who had allegedly handed him the gun when the victim allegedly pulled a knife from his waistband. The jury did not struggle with the verdict, and did not require overnight deliberations. The jury reviewed defendant's statements, did not require a readback of the victim's testimony- only of his friend's- and required only a clarification of the elements of first-degree assault and of whether the defendant could be found guilty of attempted murder but not assault or vice versa. The jury did not ask to be recharged on the law of justification. All of this demonstrates -24- that the jury immediately credited the victim and discredited defendant's statement, and deliberated only as to-what charges defendant was guilty of. Thus, there is simply no possibility that the absence of the "firmly convinced" language had no bearing on the jury's determination of the core issue- whom to credit. In sum, the court's charge on reasonable doubt and the People's burden of proof properly and adequately conveyed the law and required the jury to convict defendant based on sufficient proof. Defendant's claim that the use of the original CJI charge, rather than the revised charge, allowed the jury to convict him based on insufficient proof is unpreserved and wholly without merit. -25- CONCLUSION For the reasons set forth above, defendant's judgment of conviction should be affirmed. JOHN M. CASTELLANO SHARON Y. BRODT Assistant District Attorneys Of Counsel August 16, 2013 Respectfully submitted, RICHARD A. BROWN District Attorney Queens County -26- CERTIFICATE OF COMPLIANCE I certify the following in compliance with section 670.10.3 ofthe Rules of this Court: 1. The foregoing brief was prepared on a computer. 2. The typeface used is Times New Roman. 3. The point size of the text is 14 point, except for footnotes, which are 12 point. 4. The brief is double spaced, except for the Table of Contents, point headings, footnotes, and block quotes. 5. The brief contains 5,397 words, exclusive of the Table of Contents, proof of service, and the certificate of compliance, based on the word count of the word-processing system used to prepare this brief. Dated: Kew Gardens, New York August 16,2013 .# Ufi-~ Assistanl&striCt Attorney