The People, Respondent,v.Reyes Rodriguez, Appellant.BriefN.Y.September 12, 2013New York County Indictment No. 1772/06 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against REYES RODRIGUEZ, Appellant. To Be Argued By: Arnold J. Levine Time Requested: 30 Minutes BRIEF FOR APPELLANT LAW OFFICE OF ARNOLD J. LEVINE Attorney for Appellant 233 Broadway, Suite 901 New York, New York 10279 212-732-5800 Date Completed: November 30, 2012 Of Counsel: Arnold J. Levine -i- TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Testimony of the Two Self-Proclaimed Accomplices . . . . . . . . . . . . 4 The Alleged Corroboration . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 (1) Evidence of a red minivan . . . . . . . . . . . . . . . . . . . . 9 (2) Cell phone records . . . . . . . . . . . . . . . . . . . . . . . . . 10 The Verdict and Post-Verdict Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 POINT I DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM WHEN THE JUDGE PERMITTED THE PROSECUTOR TO ELICIT IN ITS CASE-IN-CHIEF (1) TESTIMONY BY SERGEANT CLANCY CONCERNING WHAT HE WAS TOLD BY A NON-TESTIFYING COOPERATOR REGARDING THE NICKNAMES OF PERSONS LISTED IN THE DIRECTORY OF CELLULAR PHONES SEIZED FROM ALLEGED CO- CONSPIRATORS, THEREBY CONNECTING DEFENDANT- -ii- APPELLANT TO THE NICKNAME AND PHONE NUMBERS IN THOSE PHONES. (2) TESTIMONY THAT HIS CO-DEFENDANT, WITH WHOM HE WAS JOINTLY TRIED, MADE AN EXTRAJUDICIAL STATEMENT IN WHICH THE CO-DEFENDANT IMPLICATED DEFENDANT-APPELLANT, IN VIOLATION OF BRUTON V. UNITED STATES, 391 U.S. 123 (1968), AND ITS PROGENY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. Crawford Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 B. Bruton Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 POINT II T H E T E ST IM O N Y O F T HE P R OS E C UTION’S TW O COOPERATING-W ITNESS ACCOM PLICES WAS NOT SUFFICIENTLY CORROBORATED AS REQUIRED BY C.P.L. § 60.22 TO PERMIT DEFENDANT-APPELLANT’S CONVICTIONS; EVEN IF THE EVIDENCE WAS LEGALLY SUFFICIENT, THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 POINT III DEFENDANT-APPELLANT’S RIGHTS TO DISCOVERY, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE PEOPLE FAILED TO PROVIDE ROSARIO MATERIAL RELATING TO SERGEANT CLANCY’S GATHERING OF INFORMATION FROM THE NON-TESTIFYING COOPERATOR. . . . . . . . . . . . . 54 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 -iii- TABLE OF AUTHORITIES United States Supreme Court Cases Bruton v. United States, 391 U.S. 123 (1968)...................................................passim Crawford v. Washington, 541 U.S. 36 (2004).............................................. passim Cruz v. New York, 481 U.S. 186 (1987)...............................................................36, 40 Davis v. Washington, 547 U.S. 813 (2006)..............................................................22 Gray v. Maryland, 523 U.S. 185 (1998)....................................................36, 37, 39, 43 Pointer v. Texas, 380 U.S. 400 (1965).......................................................................21 Richardson v. Marsh, 481 U.S. 200 (1987).....................................................39, 40, 43 State Oil Co. V. Khan, 522 U.S. 3 (1997).................................................................41 Federal Cases United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003)...........................................31 United States v. Gomez, 617 F.3d 88 (2d Cir. 2010)...............................................31 United States v. Hamilton, 597 F. Supp. 2d 407 (S.D.N.Y. 2009).............................22 United States v. Meises, 645 F.3d 5 (1st Cir. 2011)..................................................32 United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)............................................22, 31 United States v. Rubi-Gonzalez, 311 Fed. App. 483, 2009 WL 464208 (2d Cir. 2009)...................................................................31 -iv- New York State Cases People v. Bell, 48 N.Y.2d 913 (1979)......................................................................48 People v. Besser, 96 N.Y.2d 136 (2001)..................................................................48 People v. Colletti, 73 A.D.3d 1203 (2d Dept. 2010)...............................................22 People v. Crimmins, 36 N.Y.2d 230 (1975).............................................................45 People v. Cruz, 45 A.D.3d 1462 (4th Dept. 2007).....................................................37 People v. Eastman, 85 N.Y.2d 265 (1995)...............................................................45 People v. Goldstein, 6 N.Y.3d 119 (2005)................................................................34 People v. Hardy, 4 N.Y.3d 192 (2005).................................................................35, 45 People v. Killane, 203 A.D.2d 386 (2d Dept 1994).................................................48 People v. Malagon, 50 N.Y.2d 954 (1980)..............................................................48 People v. McRae, 15 N.Y.3d 761 (2010)..................................................................48 People v. Montefusco, 44 A.D.3d 879 (2d Dept. 2007)............................................53 People v. Moreno, 58 A.D.3d 516 (1st Dept 2011)...................................................48 People v. Prindle, 16 N.Y.3d 768 (2011)..................................................................48 People v. Reome, 15 N.Y.3d 188 (2010)...............................................................48, 49 People v. Russell, 71 N.Y.2d 1016 (1988)...............................................................39 People v. Russo, 81 A.D.3d 666 (2d Dept 2011).................................................40, 44 People v. Sanchez, 286 A.D.2d 512 (2d Dept. 2001)...............................................56 -v- People v. Walker, 71 N.Y.2d 1018 (1988)...........................................................38, 39 People v. Wheeler, 62 N.Y.2d 867 (1984)......................................................36, 37, 44 Constitutional Amendments and New York Statutes U.S. Const. Amend. 6..............................................................................................1, 21 U.S. Const. Amend. 14.............................................................................................21 C.P.L. § 60.22(1)...............................................................................................1, 20, 47 C.P.L. § 240.45(1)..................................................................................................55, 56 C.P.L. § 240.60...........................................................................................................55 C.P.L. § 240.75......................................................................................................56, 59 C.P.L. § 470.05(2).....................................................................................................38 Dictionaries Black’s Law Dictionary (Abridged 5th ed. 1983).......................................................40 -1- QUESTIONS PRESENTED 1. Whether Defendant-Appellant’s right to confront and cross-examine the witnesses against him was violated when (1) the trial court permitted a Sergeant witness for the prosecution to testify regarding information he received from a non-testifying cooperator; and (2) the trial court refused either to grant a severance or to redact the statement of a non- testifying co-defendant that implicated Defendant- Appellant. U.S. Const. amend VI, XIV; N.Y. Const. Art. 1, section 6. 2. Whether the testimony of two cooperating- witness accomplices was sufficiently corroborated as required by C.P.L. § 60.22 to permit Defendant- Appellant’s convictions. 3. Whether Defendant-Appellant’s rights to discovery, a fair trial, and due process were denied by the People’s failure to provide Defendant-Appellant with Rosario material concerning Sergeant Clancy’s conversations with the non-testifying cooperator on whom he relied for his testimony -2- STATEMENT OF FACTS Introduction Appellant was charged with being a ringleader of a multi-defendant conspiracy to burglarize various residential homes for the purpose of robbing suspected drug dealers of drugs and/or drug-sale proceeds, as well as robbing a couple of bodegas. Although Appellant was charged by indictment with one count each of Conspiracy in the Second Degree and Conspiracy in the Fourth Degree, and three counts each of Burglary in the First Degree, Kidnaping in the Second Degree, Robbery in the First Degree, and Robbery in the Second Degree, he was convicted only of the two Conspiracy counts (P.L. § 105.15, 105.10[1]) and one count of Robbery in the First Degree (P.L. § 160.15[2]). He was acquitted of all other charges. He was sentenced to a prison term of twelve (12) years for the Robbery, six-to- eighteen (6-18) years for Conspiracy in the Second Degree, and one and one-third to four (1 1/3 - 4) years for Conspiracy in the Fourth Degree, each sentence to run concurrently with each other but consecutively to a previously imposed sentence. The Indictment The indictment charged Defendant-Appellant with one count each of Conspiracy in the Second Degree (P.L. § 105.15), and Conspiracy in the Fourth Degree (P.L. §105.10 [1]), three counts each of Burglary in the First Degree (P.L. § 1Co-defendant Christopher Inoa pleaded guilty following jury selection but before the court’s opening instructions to the jury. -3- 140.30 [4]), Kidnaping in the Second Degree (P.L. §135.20), Robbery in the First Degree (P.L. 165.15 [4]), and Robbery in the Second Degree. Defendant-Appellant was named in three of the overt acts in the indictment: A May 18, 2005, Robbery in the vicinity of 65th Avenue in Queens County; a May 25, 2005, Robbery in the vicinity of Davidson Avenue in Bronx County; and a May 29, 2005, Robbery of a bodega in the vicinity of East 167th Street in Bronx County. Those overt acts also formed the basis for all of the substantive charges against Defendant-Appellant: Counts 8-14, charging Robbery, Kidnaping, and Burglary based on the May 18, 2005, overt act; Counts 15-17, charging Robbery and Burglary based on the May 25, 2005, overt act; and Counts 18-19, charging Robbery based on the May 29, 2005, overt act. The Trial Although the indictment in this case named seventeen defendants, Defendant- Appellant was tried with only two co-defendants1, Robert Amarante and Manuel Vasquez. The People presented the testimony of approximately 37 witnesses over the course of three weeks. None of the defendants testified, but Defendant-Appellant called one witness in order to impeach a prosecution witness. Despite the number of witnesses called by the People, not a single victim, 2Eulalia Rodriguez is referred to by her first name to avoid any confusion between her and Defendant-Appellant, who, though unrelated, has the same last name. -4- eyewitness, or other non-accomplice fact witness identified Defendant-Appellant or either of his two co-defendants as participants in any of the crimes. Nor was there any physical evidence or forensic evidence that implicated Defendant-Appellant or either of his co-defendants in any of the crimes. Thus, the People’s case against Defendant- Appellant rested on the testimony of two self-proclaimed accomplices, Eulalia Rodriguez and Joseph Hernandez, who testified for the prosecution pursuant to cooperation agreements. They both identified Appellant by a nickname they attributed to him: Rumba. That is, they referred to him throughout trial only as Rumba, and Hernandez testified that Appellant’s phone number was listed in Hernandez’s cell phone under the name Rumba. Appellant, of course, contested his identify as Rumba. Testimony of the Two Self-Proclaimed Accomplices Eulalia Rodriguez and Joseph Hernandez were not only the prosecutor’s two star witnesses but also boyfriend and girlfriend. Both witnesses identified Defendant- Appellant at trial by his alleged nickname, “Rumba.” (A99-100; A133.) Both testified in detail how they committed multiple burglaries and robberies with other people in The Bronx, Queens, and Manhattan. Eulalia2 was specifically recruited by -5- Hernandez to help him and his cohorts gain entry into target apartments by knocking on the apartment doors. (A98-100.) After the occupants of the apartments unlocked and began to open their doors for Eulalia, Hernandez and his accomplices would push their way into the apartment armed with weapons, often tying up or otherwise restraining the occupants while they searched the apartment for drugs, money, or other valuables. They both testified that Defendant-Appellant joined them in committing these crimes on several occasions, including the three that gave rise to the specified overt acts and substantive crimes of which Defendant-Appellant was accused in the indictment. The accomplices also testified that they, Defendant-Appellant, and other accomplices robbed a bodega on East 167th Street in The Bronx. (A101-108; A137- 147.) Eulalia stated that she and Hernandez were in her house when Hernandez received a phone call, after which he told her to get ready because they were going to do a job at a grocery store. (A101.) She further testified that she and Hernandez were picked up by Defendant-Appellant in his red van at Eulalia’s house and that they then went to a bar by Webster Avenue in The Bronx allegedly owned by Defendant- Appellant. (A101-103.) Hernandez, testified, however, that on that day they all had originally met at 183rd Street and Grand Concourse and that he asked everybody whether any of them was going to rob the store with him. (A139.) He said that he, -6- Eulalia, and other accomplices then got into “Rumba’s minivan,” but that Rumba was in the passenger seat as another accomplice, Miguelito, drove them to Rumba’s bar. (A140.) Somebody allegedly went into the bar to retrieve a weapon and then they headed to the bodega on 167th Street. (A103-104; A140.) Eulalia was dropped off down the block from the bodega to act as a lookout, (A104-105; A140),while Miguelito proceeded toward the bodega, double parking across the street, (A140-141). Hernandez claimed to have instructed Defendant-Appellant to walk down the block to act as a lookout. (A141.) He also claimed to be in contact with Defendant- Appellant through the use of Nextel phones. (A141.) After exiting the vehicle, Hernandez approached from behind as an employee was pulling down the gate. (A141.) As the employee was pulling down the third gate, Hernandez put a gun in his ribs, announced a hold up, and ordered him inside the store, (A142), where there were about ten customers in addition to other employees, (A142-144). In fact, Hernandez testified that two or three more customers entered the store while he was robbing it. (A144.) Eventually, Hernandez took money and phone cards before fleeing. (A145- 146.) Notably, Hernandez testified that he did not leave the scene in the red minivan, but in a car driven by other guys who, up to that point, were not involved with this job. (A146.) Although Eulalia testified that Miguelito had called her and told her to -7- leave in a cab, (A106), Hernandez testified that is it was he, Eulalia’s boyfriend, not Miguelito, who called her and told her to take a cab, (A146). None of the victims of the 167th Street robbery, or any other in which he was implicated by the cooperating accomplice witnesses identified Defendant-Appellant as being present and no physical or forensic evidence connected Defendant-Appellant in any way to those crimes. Finally, Eulalia and Hernandez testified regarding the events of September 1, 2005. On that day, Hernandez and Defendant-Appellant were arrested at Hunts Point in The Bronx as the result of a police sting operation. (A173; A180; A211-212.) Hernandez had received information that there were 150 kilograms of drugs at Hunts Point and called Defendant-Appellant to get people together. (A174.) Eulalia and Hernandez testified that Defendant-Appellant showed up at their building in his red minivan and that he was hiding guns behind the radio in his vehicle. (A111-112; A174-175.) In Hunts Point, the police stopped their vehicles, broke their windows, and pulled them out of their cars. (A180.) The trial court instructed the jury that Defendant-Appellant was not charged in this case with any crime for the September 1, 2005, incident. (A181.) Hernandez also testified that he had Rumba’s phone number stored in his cell phone. (A171.) Well before Eulalia was called as a witness, the People requested permission -8- to have her testify that Amarante, one of the trial co-defendants, said to her in the presence of detectives who escorted her back to the Department of Correction holding area within the courthouse that “They had nothing on us until you opened your mouth.” (A61) The court granted the People’s application over the objection of Defendant-Appellant (A95-97; A122.) Defendant-Appellant argued that even were a curative instruction given, the risk that the jury would use it against Defendant- Appellant was too great to allow its use at a joint trial. (A63.) Furthermore, the court denied Defendant-Appellant’s request to redact the statement to replace the word “us” with “me” and also denied his application for a severance. (A96-97.) Instead, the court said it would give a “curative” instruction to the effect that the statement was being admitted into evidence only against co-defendant Amarante. (A95; A123.) The court permitted the People to elicit the statement on re-direct examination despite it being beyond the scope of cross-examination, over the objection of all defense counsel. (A122-123). The prosecutor then opened his summation by repeating the co-defendant’s extrajudicial statement, without any limiting instruction. (A380.) Shortly thereafter, he made reference to it again, this time, however, alluding to the three defendants as a group, saying “They almost got away with it until someone opened up their mouth.” (A402.) -9- The Alleged Corroboration The People’s efforts at corroboration of the accomplice testimony fell within two areas: the red minivan and phone records. (1) Evidence of a red minivan The People presented non-accomplice evidence of the presence of a red minivan around the time of the incidents in the vicinity of the 167th Street bodega robbery through the testimony of a store employee, Junior Tejada, who said that as he exited the store to take the gates down he noticed a red minivan double parked in front of the store. (A14.) He also testified that he did not know whether the minivan remained outside while he was in the store with the robbers, (A53), or whether the robbers fled in the minivan, (A52-53). Nor did he see whether the robbers came from the minivan in the first place.(A14; A35-36.) Although detectives and the People had a photograph of Defendant-Appellant’s red minivan, (A206), Tejada testified that neither the detectives nor the prosecutors ever showed him a photograph of any kind of a red minivan, (A36). Despite a discovery request many, many months earlier by Defendant-Appellant, the People revealed to Defendant-Appellant for the first time only after all of their victims and eyewitnesses, including Delgado, had completed their testimony that, in fact, not only did they have a photograph of Defendant- Appellant’s red minivan, but that they intended to introduce it through Sergeant -10- Clancy, their second to last witness. (A206-207.) Counsel for Defendant-Appellant objected immediately, requesting preclusion for the discovery violation. (A207-210.) The trial court ignored defense counsel’s objection to the photograph and his request for preclusion, simply declaring that it was “not taking argument on this now.” (A207) In fact, when defense counsel reminded the court that it had not ruled on his objection to the photograph, the court again ignored him, instead instructing the court officers to “bring in the jury.” (A209.) Even then, defense counsel yet again expressly requested a ruling on his objection and was again ignored by the court. (A209.) Oddly, when the prosecutor pointed out to the judge that defense counsel had an objection to the officer’s proposed testimony regarding what he had observed during the September 1, 2005, “take down,” the court inexplicably said “He can object and I rule and we move on.” (A210.) Defense counsel renewed his objection when the photograph was identified by Sergeant Clancy, finally prompting the court to say “overruled.” (A213.) Following a brief voir dire after the photograph was offered as evidence, defense counsel again renewed “the objection [he] made before,” which the court again overruled. (A215.) (2) Cell phone records In an effort to provide the necessary corroboration for the accomplice testimony, the prosecution introduced phone records for Hernandez, for Rumba, for -11- phone numbers attributed by Hernandez to Appellant’s two co-defendants at trial, and for a non-testifying cooperator, Jairo DelRosario. The People presented extensive testimony regarding the cell phone records, through Andrew Arnold, who was a representative of Sprint/Nextel, and Sergeant Clancy. According to the phone records admitted into evidence by the prosecution, however, the phone number for Rumba actually was registered in the name of Hancook Binoon, not Reyes Rodriguez. (A245; A253.) Although the phone records themselves evidenced numerous communications between Hernandez and the number registered to Hancook Binoon and, therefore, attributed to Rumba, there was nothing in those records that identified Appellant himself as either Hancook Binoon or Rumba. Importantly, the cell phone seized from Appellant upon his arrest was not associated in any way with the phone number registered to Hancook Binoon or listed in the Hernandez and DelRosario phone directories under “Rumba.” (A291.) Indeed, the phone seized from Appellant was not even physically capable of making the communications, i.e. “chirps,” indicated on the phone records. (A250-251; A274; A281.) Thus, the only evidence up to that point connecting Appellant to that phone number remained the testimony of the two accomplice cooperators identifying Appellant as Rumba. The prosecution tried to bridge that gap through the testimony of Sergeant -12- Clancy. Clancy testified that, before arresting Appellant or examining any cell phones, he had never heard of the names Reyes Rodriguez or Rumba. (A266-267.) Sergeant Clancy was permitted not only to summarize for the jury the frequency and types of communications between Hernandez and DelRosario and Hancook Binoon, or Rumba, but to testify that, in reality, the phone records in the name of Hancook Binoon and listed in Hernandez and DelRosario’s phones as Rumba, were actually Appellant’s. (A253, A162.) Indeed, Clancy repeatedly stated that these records evidenced communications between Hernandez, Delrosario, and “Reyes Rodriguez.” (A254, A256, A257, A262, A263, A264.) Counsel for Appellant objected to this testimony citing the lack of a foundation for Clancy’s conclusion that Hancook Binoon, and therefore Rumba, was actually Reyes Rodriguez. (A253.) After further objection by defense counsel, the trial court eventually asked Clancy “How did you figure out that was Reyes Rodriguez’s phone?” to which Clancy replied “Through the contact number.” (A255.) This only begged the question, however, as the contact number was listed under the nickname “Rumba,” not Reyes Rodriguez. Clancy then testified over objection that he was “able to determine from the contact list which individuals those numbers were associated with” . . . “From the nicknames we knew about.” (A255-256.) After repeated objections to Clancy’s testimony connecting Appellant and his co-defendants with the nicknames in the -13- phones belonging to Hernandez and DelRosario and the allegedly fictitious names on the phone records, the court finally engaged in the following colloquy with Clancy (A258-259): THE COURT: How did you know the nickname of the certain people you’re referring to? THE WITNESS: Through the contact number. THE COURT: How did you figure out what the nickname was of the person, how did you figure that out? THE WITNESS: Through the cooperator. MR. ORZICK: Objection. MR. GARDNER: Objection. THE COURT: Overruled. MR. LOMUSCIO: Objection. THE COURT: Go on. (A258-259; see also A294.) The court then inexplicably overruled the objections of all three defense counsel. (A258) Defense counsel were collectively prevented at every effort to determine the identify of “the cooperator” who provided Clancy with this crucial information. (A275, A277, A278, A280, A298.) -14- It was not until the charge conference that the prosecutor finally disclosed that “the cooperator” to whom Clancy referred in his testimony was, in fact, not one of the two cooperating accomplices who testified at trial, but, rather, a non-testifying cooperator, presumably DelRosario. (A318.) In fact, the People effectively conceded later that Clancy’s testimony connecting Appellant and his co-defendants to the respective nicknames was based on hearsay. (A360.) The trial court, nevertheless, expressly permitted the prosecutors to argue that the phone records corroborated the testimony of their two cooperating accomplices. (A378-379.) More importantly, the jury clearly attached great significance to the phone records, asking three separate times during deliberations to examine the phone records and asking another time for read back of Clancy’s testimony concerning the records. . Sergeant Clancy was called by the prosecution primarily to testify concerning two cell phones seized during the September 1, 2005, takedown and phone records for those two phones and for numbers found in the contact lists in those phones. (A210- 220; A251-A301.) Those two cell phones were admitted into evidence as prosecution exhibits 72 and 73, and, according to Sergeant Clancy, belonged to Joseph Hernandez and non-testifying accomplice, Jairo Del Rosario a.k.a. Wellington, respectively. (A217.) Although Sergeant Clancy “was present” when the phones were seized, he -15- did not personally seize them. (A269.) Rather, the phones were seized by Detectives Roman and Fallon, (A270), neither of whom testified at Defendant-Appellant’s trial. Sergeant Clancy said that he examined the contact lists in those two phones and determined that at least some phone numbers were listed only under nicknames. (A252; A255-256.) He admitted that before September 1, 2005, when the cell phones were seized and Defendant-Appellant was arrested, he had never heard the name Reyes Rodriguez nor of the nickname Rumba. (A266.) The People introduced into evidence through Andrew Arnold, a representative of Sprint/Nextel, phone records for four cell phone numbers, as People’s exhibits 74- 77. (A236.) According to those phone records, the subscriber names for those numbers were Morris Thomas, Hancook Binnon, Joe Khaif, and Carol Jackson. (A245.) Sergeant Clancy, nevertheless, was permitted to testify over repeated objections that those billing records were really for phone numbers used by Joseph Hernandez, Defendant-Appellant, Jairo Del Rosario, and Eulalia Rodriguez, respectively. (A252; A253.) He further testified that he learned which real names to associate with which nicknames, and therefore with which phone records, through a cooperator. (A258) Thus, Clancy was permitted to testify that the phone records in evidence under the name Hancook Binnon were really for Defendant-Appellant. (A253.) He testified that he learned that Rumba, and therefore Hancook Binoon, was -16- really Defendant-Appellant, Reyes Rodriguez, from a non-testifying cooperator. (A258.) The trial court itself was the first to elicit explicitly that Sergeant Clancy’s testimony regarding which defendant was associated with which phone records in evidence was based on hearsay statements of “the cooperator:” Defense counsel were thwarted at every attempt to learn more about the source of Clancy’s information. (A277; A278; A280; A298). Notably, despite eliciting during their direct examination of Sergeant Clancy that he learned the defendants’ nicknames from “a cooperator,” it was not until the charge conference that the People finally confirmed that the cooperator through whom Sergeant Clancy learned the defendants’ nicknames actually was a non-testifying cooperator, not Joseph Hernandez or Eulalia Rodriguez. (A318.) In fact, the People eventually conceded that Sergeant Clancy’s testimony was based on hearsay. (A360.) The court even questioned the prosecutor during the charge conference “how do you connect the 3 men here with those phone records? I don’t understand that, absent using the accomplices.” (A372-373.) The court similarly asked “what evidence independent of the accomplice that Hancock Binnion’s [sic] phone was actually used by Rodriguez [Defendant-Appellant].” (A320.) Despite these observations, the court very soon thereafter ruled that “of course” the People would be permitted to argue in summation that the phone records are corroboration. (A378-379.) -17- Counsel for Defendant-Appellant argued that the testimony regarding the phone records violated Crawford v. Washington, 541 U.S. 36 (2004), and requested a mistrial and a missing witness charge as to the non-testifying cooperator. (A355.) He also requested Rosario material regarding the non-testifying cooperator. (A301-302.) Despite the fact that the People did not reveal until after the close of all the evidence that the cooperator to whom Clancy was referring was a non-testifying cooperator, the court deemed the request for a missing witness instruction untimely. (A355; A357- 361.) Even though Clancy obviously testified in this case and even tough his entire testimony was based on what he had been told by a non-testifying cooperator, the court denied the Rosario request on the ground that Sergeant Clancy “did not investigate this case. He was part of the take down for the September 1st case which was a separate indictment.” (A302.) Sergeant Clancy was permitted to testify regarding the contents of the phone records in evidence and to refer to the phone records in evidence using the alleged true names attributed to them by his confidential informant, (See A254-258; A263-264), as opposed to the names on the phone records or the names in the contact lists associated with those numbers. Sergeant Clancy’s testimony was crucial to connect the phone records in evidence to the phones seized and, more importantly, to identify the true names and -18- nicknames associated with the phone records in evidence under still other names, as the phone records themselves were not in Defendant-Appellant’s name and that only the two testifying accomplices had identified Defendant-Appellant as Rumba. Sergeant Clancy then testified that based on the information her received from the non-testifying cooperator about the nicknames, he concluded based on the phone records for Hancook Binoon and Morris Thomas that there were phone calls between Defendant-Appellant and the People’s cooperating witness accomplice, Joseph Hernandez on at least four dates. (A256.) In an effort to avoid a missing witness charge and despite Clancy’s repeated testimony under oath that he learned the real names associated with the nicknames from “a cooperator,” the People claimed for the first time after all the evidence was closed that Clancy’s sworn testimony was false and that the source of Clancy’s “knowledge” regarding the true names was not simply “a cooperator” but multiple cooperators and non-cooperators. (A359-360.) Importantly, also, the phone records that Sergeant Clancy testified were for Defendant-Appellant’s phone were not associated with the phone actually seized from Defendant-Appellant on September 1, 2005. (A291.) Whereas People’s exhibits 74- 77 were phone records obtained from Sprint/Nextel, the only phone seized from Defendant-Appellant at any time was a T-Mobile/Nokia phone. (A291) Thus, the -19- phone seized from Defendant-Appellant on September 1, 2005, was not connected to the phone records in evidence. In fact, because Defendant-Appellant’s cell phone was a T-Mobile/Nokia, and not a Sprint/Nextel, it was not even capable of making the communications, i.e. “chirps,” about which Sergeant Clancy testified and that he attributed to Defendant-Appellant by name. (A274.) Accordingly, the phone records admitted as Exhibit 75, which had a subscriber name of Hancook Binnon, could not be linked to Defendant-Appellant except by Sergeant Clancy’s hearsay testimony regarding what he had been told by his confidential informant, i.e. that Reyes Rodriguez and Rumba, and therefore Hancook Binoon, were all the same person. Furthermore, these records proved critical to the People’s case. In fact, with the trial court’s express permission, (A378-379), the People relied on the phone records as necessary corroboration of their cooperating-witness accomplices during their closing argument. (A414-417.) Moreover, the jury asked three times during deliberations to examine the phone records in evidence, (A435; A463; A466), and sent another note requesting read back concerning the phone records, (A464). The Verdict and Post-Verdict Motions Although Defendant-Appellant was convicted of both counts of Conspiracy and the one count of Robbery in the First Degree arising from the May 29, 2005, overt act, he was acquitted of all of the substantive crimes based on the May 18, 2005, and May -20- 25, 2005, overt acts. Each of his two co-defendants was convicted only of the two counts of Conspiracy. Post-trial, the court denied Defendant-Appellant’s written Motion for a Trial Order of Dismissal but granted both codefendants’ motions to dismiss. ARGUMENT Defendant-Appellant’s convictions and sentences must be reversed and vacated for several reasons. First, Defendant-Appellant’s right to confront and cross-examine the witnesses against him was violated in at least two distinct ways, which, either individually or taken together, require a reversal of his convictions and sentences. First, the trial court improperly permitted a police witness to testify regarding information provided to him by a non-testifying cooperator, which incriminated Defendant-Appellant. Second, the trial court improperly refused either to grant Defendant-Appellant a severance or to redact the extrajudicial oral statement of a non- testifying co-defendant, even though the non-testifying co-defendant’s statement implicated Defendant-Appellant. In addition, reversal is required because the prosecution did not present at trial legally sufficient evidence to corroborate the testimony of its two cooperating-witness accomplices as required by C.P.L. § 60.22. Finally, Defendant-Appellant is entitled to a reversal based on the prosecutor’s intentional and prejudicial discovery violations -21- and the trial court’s failure to tailor any remedy whatsoever for those violations. These errors, individually and cumulatively, require the reversal of Defendant- Appellant’s convictions and sentences. POINT I D E F E N D A N T - A P P E L L A N T W A S D E N I E D H I S CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS- EXAMINE THE WITNESSES AGAINST HIM WHEN THE JUDGE PERMITTED THE PROSECUTOR TO ELICIT IN ITS CASE-IN-CHIEF (1) TESTIMONY BY SERGEANT CLANCY CONCERNING WHAT HE WAS TOLD BY A NON-TESTIFYING COOPERATOR REGARDING THE NICKNAMES OF PERSONS LISTED IN THE DIRECTORY OF CELLULAR PHONES SEIZED FROM ALLEGED CO-CONSPIRATORS, THEREBY C O N N E C T IN G DEFENDANT-APPELLANT TO TH E NICKNAME AND PHONE NUMBERS IN THOSE PHONES; AND (2) TESTIMONY THAT HIS CO-DEFENDANT, WITH WHOM HE WAS JOINTLY TRIED, MADE AN EXTRAJUDICIAL STATEMENT IN WHICH THE CO-DEFENDANT IMPLICATED DEFENDANT-APPELLANT, IN VIOLATION OF BRUTON V. UNITED STATES, 391 U.S. 123 (1968), AND ITS PROGENY. The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the right to confront and cross-examine the witnesses against him. Const. Amend. 6. This guarantee is applicable in state criminal trials through the Fourteenth Amendment to the United States Constitution. See Pointer v. Texas, 380 U.S. 400 (1965). -22- A. Crawford Violation Defendant-Appellant’s right under the Federal and State Constitutions to confront and cross-examine the witnesses against him was violated when the trial court permitted a police witness to testify concerning information he learned from a non-testifying cooperator that incriminated Defendant-Appellant. The United States Supreme Court has held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69 (2004). Thus, “[t]estimonial statements of witnesses absent from trial [can be admitted] only where the declarant is unavailable, and where the defendant has had a prior opportunity to cross-examine.” Id. at 59. Statements “are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). Statements to the police by arrestees and cooperators clearly fall within this definition. See United States v. Mejia, 545 F.3d 179, 198 (2d Cir. 2008); United States v. Hamilton, 597 F. Supp. 2d 407, 411-12 (S.D.N.Y. 2009); People v. Colletti, 73 A.D.3d 1203, 1208 (2d Dept. 2010). Sergeant Clancy was called as a prosecution witness in this case primarily to -23- testify concerning cell phones seized from numerous persons on September 1, 2005, and phone records that he had subpoenaed. (A210-220; A251-A301.) The People introduced into evidence through Andrew Arnold, a representative of Sprint/Nextel, phone records for four cell phone numbers, as People’s exhibits 74- 77. (A236.) According to those phone records, the subscriber names for those numbers were Morris Thomas, Hancook Binnon, Joe Khaif, and Carol Jackson. (A245.) Those names, however, were neither the true names nor the alleged nicknames of any of the persons, including any of the trial defendants, arrested on September 1, 2005, or otherwise alleged to be part of the charged conspiracy. Sergeant Clancy, nevertheless, was permitted to testify over repeated objections that those billing records were really for phone numbers used by Joseph Hernandez, Eulalia Rodriguez, Jairo Del Rosario, and Defendant-Appellant, Reyes Rodriguez. (A252; A253.) Sergeant Clancy further testified, however, that he determined which phone numbers, and therefore which phone records, belonged to which person by examining the contact lists in Exhibits 72 and 73, the phones allegedly seized from Joseph Hernandez, who did testify, and Jairo Del Rosario, who did not. (A217; A252; A255). The phone numbers in those contact lists, however, were listed by alleged nicknames, not real names, requiring Sergeant Clancy to determine which nicknames to match with which real names. (See A255.) Sergeant Clancy testified that he -24- determined which nicknames to associate with which real names through a cooperator. (A258). Indeed, he admitted that before September 1, 2005, when the cell phones were seized, he had never heard the name Reyes Rodriguez or of the nickname Rumba. (A266.) Sergeant Clancy was then permitted to testify regarding the contents of the phone records in evidence and to refer to the phone records in evidence using those true names. Thus, Sergeant Clancy’s testimony was crucial to connect the phone records in evidence to the phones seized and to identify the true names and nicknames associated with the phone records in evidence. To that end, and over objection, Despite the phone records in evidence being in the names of Morris Thomas, Joe Khaif, Hancook Binnon, and Carol Jackson, (A237), Sergeant Clancy was permitted to testify over objection that they really belonged to Joseph Hernandez, Reyes Rodriguez (Defendant-Appellant), Jairo Del Rosario, and Eulalia Rodriguez, respectively, (A252; A253). Sergeant Clancy then testified that based on his determination of which nickname was associated with which phone number, he concluded based on the phone records of Hancook Binnon and Morris Thomas that there were phone calls between Defendant-Appellant and the People’s cooperating witness accomplice, Joseph Hernandez on at least four dates. (A256.) The trial court itself was the first to elicit explicitly that Sergeant Clancy’s -25- testimony regarding which defendant was associated with which phone records in evidence was based on hearsay statements of “the cooperator.” THE COURT: How did you know the nickname of the certain people you’re referring to? THE WITNESS: Through the contact number. THE COURT: How did you know what the nickname was of the person, how did you figure that out? THE WITNESS: Through the cooperator. MR. ORZICK: Objection. MR. GARDNER: Objection. THE COURT: Overruled. MR. LOMUSCIO: Objection. THE COURT: Go on. (A258-259; see also A294.) Notably, despite eliciting during their direct examination of Sergeant Clancy that he learned the defendants’ nicknames from “a cooperator,” it was not until the charge conference that the People finally confirmed that the cooperator through whom Sergeant Clancy learned the defendants’ nicknames actually was a non-testifying cooperator, not Joseph Hernandez or Eulalia Rodriguez. (A318.) In fact, the People -26- eventually conceded that Sergeant Clancy’s testimony was based on hearsay. (A360.) Importantly, also, the phone records that Sergeant Clancy testified were for Defendant-Appellant’s phone were not associated with the phone actually seized from Defendant-Appellant on September 1, 2005. (A291.) Whereas People’s exhibits 74- 77 were phone records obtained from Sprint/Nextel, the only phone seized from Defendant-Appellant at any time was a T-Mobile/Nokia phone. (A291) Thus, the phone seized from Defendant-Appellant on September 1, 2005, was not connected to the phone records in evidence. In fact, because Defendant-Appellant’s cell phone was a T-Mobile/Nokia, and not a Sprint/Nextel, it was not even capable of making the communications, i.e. “chirps,” about which Sergeant Clancy testified and that he attributed to Defendant-Appellant by name. (A274.) Accordingly, the phone records admitted as Exhibit 75, which had a subscriber name of Hancook Binnon, could not be linked to Defendant-Appellant except by Sergeant Clancy’s hearsay testimony regarding what he had been told by his confidential informant, i.e. that Reyes Rodriguez and Rumba, and therefore Hancock Binoon, were the same person. Thus, without the information conveyed to Sergeant Clancy by the non- testifying cooperator, the phone records in evidence could not possibly be associated in any way, shape, or form with Defendant-Appellant. The court even questioned how the phone records were connected to the defendants, and to Defendant-Appellant, in -27- particular, except for the accomplice testimony. (A320; A372-373.) Despite this observation, the court very soon thereafter ruled that “of course” the People would be permitted to argue in summation that the phone records are corroboration. (A378- 379.) Furthermore, these records proved critical to the People’s case. Thus, with the trial court’s express permission, (A378-379), the People relied on the phone records as necessary corroboration of their cooperating-witness accomplices during their closing argument. (A414-417.) Perhaps more importantly, the jury asked three times during deliberations to examine the phone records in evidence, (A435; A463; A466), and sent another note requesting read back concerning the phone records, (A464). The importance of Sergeant Clancy’s testimony to the jury’s verdict and, specifically, to its apparent determination that the testimony of the cooperating-witness accomplices was sufficiently corroborated, therefore, can not seriously be disputed. Defendant-Appellant’s request for a mistrial based on the evidentiary and constitutional violation, (A355-74), therefore, should have been granted. In any event, Clancy’s testimony regarding the true names, nicknames, phone numbers, and phone records was permitted in error, in violation of Defendant-Appellant’s rights under the Federal and State Constitutions to confront and cross-examine the witnesses against him. In addition, absent Clancy’s testimony connecting Defendant-Appellant or his co-defendants to the phone records, no proper foundation had been laid for the -28- introduction into evidence of those records. Thus, the receipt of those phone records in evidence at trial was a direct result of the confrontation-clause violation. Sergeant Clancy’s testimony matching Appellant and his co-defendants with the respective phone records through nicknames told to him by a non-testifying cooperator violated Appellant’s right to confront and cross-examine the witnesses against him. The Appellate Division rejected this argument for two reasons, both of which are incorrect. First, as noted by the Appellate Division, this issue was properly preserved at trial when Appellant’s counsel cited the Supreme Court’s decision in Crawford. See People v. Reyes Rodriguez, (A7-8). In fact, even earlier, counsel for Appellant had objected that “There’s a complete violation of hearsay rules and an opportunity to challenge--” when he was abruptly interrupted by the court and prevented from finishing his sentence. (A275.) Indeed, the People have never suggested that this claim, was not preserved. In addressing this claim on the merits, the Appellate Division held that Clancy’s “testimony did not violate Crawford, because the officer did not directly place before the jury any testimonial statement by a nontestifying delcarant, and this portion of the officer’s testimony was not offered for it truth.” A7-8. These conclusions are supported neither by case law nor the record in this case. -29- To begin, it is somewhat unclear what the Appellate Division meant when it stated that “the officer did not directly place before the jury any testimonial statement by a nontestifying delcarant.” It is clear from the record that Clancy “directly” testified on direct examination that Appellant, Reyes Rodriguez, was, in fact, Hancook Binoon and Rumba. It is also clear from the record that Clancy’s testimony identifying Appellant as Hancook Binoon and Rumba was not based on his own independent personal knowledge and familiarity with Appellant, but, rather, was based on what he was told by a non-testifying cooperator. So, it is likewise clear that, in fact, Clancy did “directly place before the jury” a testimonial statement by a nontestifying declarant. Insofar as the Appellate Division’s rather ambiguous statement actually was meant to be an endorsement of the People’s argument that there was no constitutional violation because the court, rather than the trial prosecutors, elicited Clancy’s revelation that his knowledge of which nicknames to associate with Appellant and his co-defendants came from “the cooperator,” it is contrary to the law on confrontation and hearsay. The law does not permit the prosecution to circumvent a defendant’s confrontation rights or the prohibition against hearsay simply by instructing its witness to omit the words “a cooperator told me” from his answers on the witness stand, even though his answers are, in fact, merely a repetition of what a cooperator -30- has told him. Whether trial testimony is hearsay or violates the defendant’s right to confrontation does not turn on the jury’s awareness of the testimony’s hearsay nature. Instead, it is the fact that the testimony is hearsay that is determinative. That is, hearsay does not somehow become non-hearsay and admissible simply because the prosecutors and the witness collude to hide from the jury, the defendants, and the court the true source of the witness’s testimony. Taken to its logical conclusion, the prosecutor’s argument in the Appellate Division, and the Appellate Division’s apparent endorsement of it, would have permitted the People to prove their case against Appellant without ever calling to the witness stand either of the cooperating accomplice witnesses or the complainants. Rather, under the Appellate Division’s reasoning, the prosecutors could simply have relied exclusively on various police officers and detectives who had interviewed the accomplices and complainants who would then have been permitted to testify as if they had personal knowledge of the events they were describing, so long as they did not “directly” volunteer or reveal in response to questions by the prosecutors, and only the prosecutors, the true sources of their testimony. This, of course, is not the law. Indeed, hiding from the jury the hearsay nature of the testimony only makes the matter worse. The United States Court of Appeals for the Second Circuit has recognized that -31- “the hearsay problem is exacerbated when the out-of-court source of the evidence is not revealed, because the jury is not even able to factor into its deliberations the reliability (or unreliability) of the particular source. Moreover, when it is unclear to the jury that the source of an accusation is an out-of-court declarant (rather than expertise, for example), the jury is even less aware of any potential unreliability of such hearsay testimony.” United States v. Dukagjini, 326 F.3d 45, 57 n.7 (2d Cir. 2003). Indeed, in this case, the Confrontation Clause violation was only exacerbated by the trial court’s refusal to allow any of the defense attorneys to explore on cross examination the true source of Clancy’s testimony In United States v. Mejia, the Second Circuit held that the defendant’s constitutional right to confrontation was violated when a police witness “communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.” 545 F.3d 179, 198 (2d Cir. 2008). Accord United States v. Rubi-Gonzalez, 311 Fed. Appx. 483, 2009 WL 464208 (2d Cir. 2009). Notably, in Mejia, it was the defense counsel, not the prosecutor, who elicited from the witness the hearsay nature of his testimony. 545 F.3d at 186-88. Similarly, in United States v. Gomez, the Second Circuit “recognize[d] that Gomez’s claim directly implicates the Confrontation Clause and his right to confront his accusers in court.” 617 F.3d 88, 96 (2d Cir. 2010). In -32- that case, the law enforcement witness’s “testimony told the jury, by implication, that Rivas had accused Gomez of being his drug supplier.” 617 F.3d at 96-97 (emphasis added). Similarly, in United States v. Meises, the First Circuit acknowledged that “The opportunity to cross-examine the declarant to ‘tease out the truth’ is no less vital when a witness indirectly, but still unmistakably, recounts a co-defendants out-of- court accusation.” 645 F.3d 5, 21 (1st Cir. 2011) (emphasis added) (quoting Crawford, 541 U.S. at 67). The First Circuit, thus, explained that “if what the jury hears is, in substance, an untested, out-of-court accusation against the defendant, particularly if the inculpatory statement is made to law enforcement authorities, the defendant’s Sixth Amendment right to confront the declarant is triggered.” Id. Accordingly, Clancy’s testimony based on what he was told by a nontestifying cooperator clearly and directly implicated Appellant’s constitutional rights to confront and cross- examine the witnesses against him. Furthermore, the Appellate Division’s statement that “this portion of the officer’s testimony was not offered for its truth” is not supported by the record. In fact, the Appellate Division does not even venture to suggest another purpose for which Clancy’s testimony identifying Appellant, Reyes Rodriguez, as Hancook Binoon and Rumba was relevant, if not for its truth. As already noted, the phone records in evidence were in the name Hancook Binoon. Those phone records were for -33- a phone number listed in the cell phones of Hernandez and DelRosario under the name Rumba. The phone records, therefore, proved nothing against Appellant unless it were established that Rumba, Hancook Binoon, and Appellant, Reyes Rodriguez, were all the same person. Clancy expressly testified that the phone records for Hancook Binoon were, in reality, Appellant’s. (A253.) Clancy was specifically asked on direct examination whether the phone records under the name Hancook Binoon were, in fact for Appellant, Reyes Rodriguez. (A253.) Indeed, during the entire direct examination of Clancy regarding the phone records, the prosecutors and Clancy repeatedly identified the records in the name of Hancook Binoon, and the phone number which was listed in Hernandez’s and DelRosario’s phones as Rumba, as belonging to Reyes Rodriguez. Clancy’s testimony was the linchpin connecting the phone records to Appellant, in particular, as opposed merely to Rumba. The People were even permitted to argue that the phone records corroborated the accomplice testimony. That Clancy’s testimony identifying Appellant as Hancook Binoon, and therefore as Rumba, was admitted for it truth, is inescapable. In fact, despite hearsay and Confrontation Clause objections at trial, the People never claimed that Clancy’s testimony regarding the names was being introduced for any purpose other than the truth. The trial court, likewise, never instructed the jury that his testimony regarding the names and identities was being admitted for a purpose other than its truth. Indeed, -34- if it were not admitted for its truth, his testimony would have been largely irrelevant. Cf. People v. Goldstein, 6 N.Y.3d 119, 127-28 (2005). The Appellate Division’s conclusion that Clancy’s hearsay testimony was not offered for its truth finds no support in the record. Finally, the Appellate Division opined that “were [they] to find any error, [they] would find it harmless.” (A8.). This conclusion is also flawed for two reasons. First, it is unclear whether the Appellate Division even applied the correct harmless-error standard. As this Court has recognized, “Since the error was a violation of defendant’s constitutional rights, the constitutional test for harmless error applies: The People must show that any error was harmless beyond a reasonable doubt.” Goldstein, 6 N.Y.3d at 129. Thus, “[i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence.” Id. Here, the People’s case against Appellant rested almost entirely on the testimony of two cooperating accomplices who had lengthy criminal records and who received generous plea agreements in exchange for their testimony against Appellant. No other witnesses identified Appellant as a participant in the crimes for which he was convicted. No forensic evidence linked Appellant to any of the crimes. Thus, although the complainants provided corroboration that the crimes actually occurred, -35- there was virtually no evidence corroborating the accomplice testimony of Appellant’s participation in those crimes. Thus, Clancy’s testimony identifying Appellant as Rumba and thereby establishing several communications between Appellant and Hernandez on critical days was crucial to corroborate Appellant’s participation in the conspiracy. The prosecutor argued in summation that the phone records corroborated the cooperating accomplice testimony. (A414.) Perhaps more importantly, during deliberations, the jury requested to hear readback of Clancy’s testimony once and requested to examine the phone records on three separate occasions before returning its verdict. There is, therefore, a “reasonable possibility that the [error] might have contributed to the conviction.” People v. Hardy, 4 N.Y.3d 192, 198 (2005) (internal quotation marks omitted). As in Hardy, the error in admitting Clancy’s improper testimony linking the phone records to Appellant cannot be deemed harmless beyond a reasonable doubt. See id. A. Bruton Violation. The United States Supreme Court has held that the right to confront and cross- examine is violated when a non-testifying co-defendant’s extrajudicial statement incriminating the defendant is admitted in evidence at their joint trial. See Bruton v. United States, 391 U.S. 123, 135-36 (1968). Moreover, the Court held in Bruton that a constitutional violation occurs despite a clear limiting instruction by the trial court -36- to the effect that the evidence is to be considered only against the declarant co- defendant and not against the defendant. Id. at 126; see Cruz v. New York, 481 U.S. 186, 193 (1987). Thus, the Supreme Court has explained that “[u]nless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton court found.” Gray v. Maryland, 523 U.S. 185, 192 (1998). In that vain, this Court has stated that the People have the burden of effectively redacting the co-defendant’s extrajudicial statement “so that the jury would not interpret its admission as incriminating the nonconfessing defendant.” People v. Wheeler, 62 N.Y.2d 867, 869 (1984). In this case, the trial court improperly permitted the prosecutor to elicit from a prosecution witness a statement by one of Defendant-Appellant’s non-testifying co- defendants, which incriminated Defendant-Appellant. Specifically, the People presented evidence that co-defendant Amarante stated to the People’s female cooperating witness that “[t]hey didn’t have anything on us until you opened your mouth.” (A122.) Amarante allegedly made that statement upon seeing the cooperator in the Department of Corrections holding pens in the courthouse during the course of the trial when the cooperator was being returned to Corrections after a briefing in the prosecutor’s office. (A61-62.) Given that there were three defendants on trial in the -37- case, Amarante’s use of the word “us” most readily and logically would be interpreted by the jury to be referring to those three defendants. See People v. Cruz, 45 A.D.3d 1462, 1463-64 (4th Dept. 2007) (holding that admission of co-defendant’s extrajudicial statements using the word “we” violated Bruton, because jury could infer only that “we” referred to the three defendants on trial). Nevertheless, the trial court denied counsel’s request for a severance or, in the alternative, that the co-defendant’s extrajudicial statement be redacted to refer only to the declarant, such as “had nothing on me,” instead of “nothing on us.” (A97.) Instead, the trial court gave a limiting instruction in which she told the jury that the statement was admissible only against Amarante and “not as substantive evidence against Mr. Vasquez or Mr. Rodriguez.” (A123.) Whereas the two remedies requested by Defendant-Appellant are expressly required by the United States Supreme Court, see Gray, 523 U.S. at 192, and this Court, see Wheeler, 62 N.Y.2d at 869, the one chosen by the trial court is the one remedy that the Supreme Court held is constitutionally unacceptable, see Cruz, 481 U.S. at 193; Bruton, 391 U.S. at 126. Defendant-Appellant’s confrontation rights, therefore, were violated. Despite defense counsel’s objections and remedial requests, the Appellate Division found this claim unpreserved. (A7.) This claim, however, was sufficiently -38- preserved by trial counsel’s objections and request for specific remedies. According to the C.P.L.: For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing same. Such protest . . . 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. In addition, 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 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. C.P.L. § 470.05(2). Moreover, this Court has advised that “[o]rderly and fair procedure requires that the trial court be given timely and adequate opportunity to rule on and explain claims in the context of the trial and trial record which has relevance to the issue advanced.” People v. Walker, 71 N.Y.2d 1018, 1020 (1988). Judged by these standards, trial counsel’s objection and request for two specific remedies adequately preserved the issue for this Court’s review. That is, counsel for Defendant-Appellant “expressly . . . sought or requested a particular ruling,” C.P.L. § 470.05(2), and, therefore, “is deemed to have thereby protested the court’s ultimate disposition of the matter . . .sufficiently to raise a question of law with respect to such -39- disposition regardless of whether any actual protest thereto was registered.” C.P.L. § 470.05 (2). Cf. Walker, 71 N.Y.2d at 1020; People v. Russell, 71 N.Y.2d 1016, 1017- 18 (1988). Importantly, the two remedies expressly requested by counsel for Defendant-Appellant, but rejected out of hand by the trial court, were the appropriate and proper remedies under Supreme Court precedent. See, e.g., Gray, 523 U.S. at 192, 118 S. Ct. at 1155. Accordingly, the People and the trial court were sufficiently apprised of the requested ruling as to render this claim sufficiently preserved. This claim, therefore, is properly before this Court. The Appellate Division held, in the alternative, that the codefendant’s extrajudicial statement was not “testimonial.” (A7.) This conclusion, however, is misplaced. To begin, nothing in Bruton or its progeny limits its application only to “testimonial” statements. To the contrary, in Bruton, the Court stated that “where the powerfully incriminating extrajudicial statements of a codefendant who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial,” 391 U.S. at 135-36 (emphasis added), “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored,” id. at 135. Likewise, in Gray, the Supreme Court stated that “Bruton, as interpreted by Richardson, holds that certain ‘powerfully incriminating extrajudicial -40- statements of a codefendant’ –those naming another defendant-considered as a class, are so prejudicial that limiting instructions cannot work.” 523 U.S. at 192 (quoting Richardson v. Marsh, 481 U.S. 200, 207 [1987])(emphasis added). Notably, the Supreme Court referred in those cases to “extrajudicial statements of a codefendant,” not to “confessions.” An “extrajudicial statement” is “[a]ny utterance, written or oral, made outside of court.” Black’s Law Dictionary 302 (Abridged 5th ed. 1983). Thus, in People v. Russo, decided long after Crawford v. Washington, 541 U.S. 36 (2004), the court held that the trial court improperly permitted a witnesses to testify about a statement that a non-testifying co-defendant had made implicating the defendant. See 81 A.D.3d 666, 667 (2d Dept. 2011). Importantly, it is axiomatic that in every case in which a Bruton claim is found, the non-testifying co-defendant’s extrajudicial statement is not admissible against the defendant and, therefore, would never be considered “testimonial” evidence against the defendant. As Justice Scalia (the author of the Court’s opinion in Crawford) explained for the Court in Cruz v. New York, [o]rdinarily, a witness is considered to be a witness ‘against’ a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt. Therefore a witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the codefendants will not be considered to be a witness ‘against’ the other defendants. -41- 481 U.S. 186, 190 (1987). He went on to say, however, that in Bruton, the Court “held that this principle will not be applied to validate, under the Confrontation Clause, introduction of a nontestifying codefendant’s confession implicating the defendant, with instructions that the jury should disregard the confession insofar as its consideration of the defendant’s guilt is concerned.” Id. The Court, therefore, effectively considered, and ultimately rejected, in Cruz, the argument that Bruton applies only to “testimonial” statements. That is, even while stating that the admission into evidence of the non-testifying co-defendant’s statement implicating the defendant would not render the co-defendant a witness against the defendant, the risk that the jury will nevertheless use the statement against the defendant is too great to chance. Moreover, even after Crawford, the Supreme Court has neither overruled Bruton nor limited it reach only to “testimonial” statements. The Supreme Court has cautioned that despite how eroded one of its precedents may appear to lower courts as a result of more recent opinions, “it is [the Supreme Court’s] prerogative alone to overrule one of its precedents.” State Oil Company v. Khan, 522 U.S. 3, 20 (1997). As the Supreme Court has neither overruled Bruton nor otherwise expressly disavowed its broad reference to “extrajudicial statements” of a co-defendant, there is no authority for this Court to limit its application only to “testimonial” statements. The trial court erred, therefore, when it permitted the People to elicit from their -42- cooperating witness without redaction the extrajudicial statement by co-defendant Amarante that implicated Defendant-Appellant. Third, the Appellate Division also alternatively concluded that the codefendant’s extrajudicial statement to the cooperating witness was admissible at the joint trial because it was not admitted for its truth and, accordingly, was not hearsay. (A7.) This conclusion, however, also lacks merit. This argument really is just a repackaged version of the earlier argument claiming Bruton’s inapplicability to non- testimonial statements. The fact that Amarante’s statement to the cooperating witness was admissible against him, as the declarant, gives rise to the issue in the first place, rather than resolve it. This is because, as noted above, in every case arising under Bruton and its progeny, the non-testifying co-defendant’s statement necessarily was admissible against that codefendant-declarant. The admissibility of codefendant’s statement against him, therefore, does nothing to distinguish this case from every case in which a Bruton violation has been found. Just as in all cases in which a Bruton violation has been found, the co- defendant’s statement was not admissible against the defendant for any purpose. Thus, the rationale underlying Bruton is not that the statement was not admissible against the non-testifying co-defendant or that it depended on the purpose for which it was offered against that co-defendant. Rather, Bruton’s holding rested on the -43- realization that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” 391 U.S. at 135. There is no reason to believe that the jury would fare any better at performing the mental gymnastics required to follow the “double limiting instruction,” i.e. the instruction limiting the manner in which the jury can use it against the declarant co-defendant and the instruction that it cannot be considered at all against the defendant, than were it told only the latter Fourth, the Appellate Division opinied that the codefendant’s extradjucial statement was admissible because it did not facially implicate Defendant-Appellant, (A7.) The court, however, cited no authority for this reasoning. Precedents of the United States Supreme Court, as well as this Court, however, dictate a different conclusion. In Gray, the Supreme Court held “that the confession [there] at issue, which substituted blanks and the word “delete” for the [defendant’s] proper name, falls within the class of statements to which Bruton’s protections apply.” 523 U.S. at 197. Key to the Court’s holding was that, unlike in Richardson, the statement at issue in Gray “refer[ed] directly to the ‘existence’ of the nonconfessing defendant.” Gray, 523 U.S. at 192. Thus, it mattered not to the Supreme Court in Gray that the statement did -44- not name or otherwise directly implicate the defendant personally. Moreover, in Wheeler, this Court held that the prosecutor’s use of the co- defendant’s statement referring to “we” violated the defendant’s right to confrontation, see 62 N.Y.2d at 869. There, the People argued unsuccessfully that the fact that there was testimony indicating that a third person, other than the co-defendant or the defendant, “may have participated in the crime . . . and that the jury might have viewed collective references in the confession as concerning this additional participant.” Id. This Court held, however, that “[t]he possibility that the jury may have viewed the incriminating references in this manner is insufficient to eliminate the prejudice to defendant from the use of this statement upon his trial.” Id.; Accord People v. Russo, 81 A.D.3d 666, 647 (2d Dept. 2011) (finding a Confrontation Clause violation when a witness testified at a trial of the defendant and one co-defendant that the non-testifying co-defendant said that “we may have had something to do with that,” even though there was evidence that a third person may have been present). As in Wheeler, the mere possibility that the jurors might have assumed that Amarante was referring to other alleged co-conspirators, to the exclusion of the two with whom he was on trial, is “insufficient to eliminate the prejudice to [Defendant-Appellant] from the use of this statement upon his trial.” 62 N.Y.2d at 869. On the other hand, had the trial court simply ordered the simple redaction of Amerante’s statement to say “they -45- had nothing on me” instead of “us,” as trial counsel for Defendant-Appellant requested, there would be no need for this speculation and guesswork in the first place. Because, the trial court refused that safe course, coupled with the great risk that the jury would not, or could not, follow the court’s limiting instructions and the drastic consequences of that failure, see Bruton, 391 U.S. at 135. Defendant-Appellant’s state and federal constitutional rights to confrontation were violated. Finally, the Bruton error here was not harmless. Because a Bruton error is of constitutional magnitude, reversal is required “unless the error’s impact was ‘harmless beyond a reasonable doubt.’” People v. Hardy, 4 N.Y.3d 192, 198 (2005) (quoting People v. Eastman, 85 N.Y.2d 265, 276 [1995]). In making this determination, the reviewing court must review the “entire record.” Hardy, 4 N.Y.3d at 198. Moreover, “‘however overwhelming may be the quantum and nature of other proof, the error is not harmless . . . if ‘there is a reasonable possibility that the [error] might have contributed to the conviction.” Id. (quoting People v. Crimmins, 36 N.Y.2d 230, 240- 41 [1975]). In this case, the evidence against Defendant-Appellant was far from overwhelming. Other than the two cooperating-witness-accomplices not a single person identified Defendant-Appellant as participating in any of the charged crimes. Nor was there any forensic evidence tying Defendant-Appellant to any of the charged -46- crimes or overt acts. Indeed, although a witness testified that he saw a red minivan parked across the street from the store shortly before he was robbed, he was never shown a photo of Defendant-Appellant’s vehicle. Nor did he provide any more detailed a description from which it could be determined whether the red minivan he saw was the same make, model, or year as Defendant-Appellant’s vehicle. Moreover, the phone records entered into evidence did not match the phone seized frm Defendant-Appellant upon his arrest; in fact, the phone seized from him did not even have the “chirp” function evident on those records. No phone records entered into evidence were even in his name. Thus, Defendant-Appellant was acquitted of ten of the thirteen charges for which he was indicted. Given the lack of evidence other than the word of two accomplices testifying pursuant to cooperation agreements, there clearly is a reasonable possibility that the Bruton error contributed to Defendant- Appellant’s conviction of conspiracy and robbery. Accordingly, despite the trial court’s limiting instruction, the admission of Amarante’s extrajudicial statement, and its explicit denial of defense counsel’s request either for severance or redaction, violated Defendant-Appellant’s right to confront and cross-examine the witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, section 6 of the New York State Constitution. Defendant-Appellant’s convictions, therefore, must be reversed and -47- vacated. POINT II THE TESTIMONY OF THE PROSECUTION’S TWO COOPERATING-WITNESS ACCOMPLICES WAS NOT SUFFICIENTLY CORROBORATED AS REQUIRED BY C.P.L. § 6 0 .2 2 TO PER MIT DEF END A N T -A P P EL L A NT’S CONVICTIONS. The evidence presented at trial was insufficient to establish Defendant- Appellant’s guilt of any of the charges, because the testimony of the prosecution’s cooperating-witness accomplices was not sufficiently corroborated under C.P.L. § 60.22. The prosecution’s case against Defendant-Appellant rested entirely on the word of two alleged accomplices turned prosecution witnesses. No other witnesses identified Defendant-Appellant as a participant in the crimes, no forensic evidence tied Defendant-Appellant to the crimes, and no physical evidence established Defendant- Appellant’s participation in the crimes. As noted by this Court, “[t]he accomplice corroboration rule provides that a ‘defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.’” People v. Besser, 96 N.Y.2d 136, 143 (2001) (quoting C.P.L. § 60.22[1]); see Peoplev. McRae, 15 N.Y.3d 761, 762 (2010) (finding sufficient evidence, “[b]ecause the accomplice testimony was corroborated with independent -48- evidence as well as evidence that ‘harmonized’ with the accomplice testimony”). Notably, this Court’s decision in People v. Reome, 15 N.Y.3d 188 (2010), holding that the evidence offered to corroborate the accomplice testimony need not be “truly independent” of the accomplice testimony is not applicable in this particular case. The law is clear that “[w]hen engaging in legal sufficiency review, [the appellate court] generally measure[s] the evidence against the jury charge given without objection or exception.” People v. Prindle, 16 N.Y.3d 768, 770 (2011). Moreover, this standard governs regardless whether the charge favored the defendant or the prosecution. See People v. Malagon, 50 N.Y.2d 954, 956 (1980) (holding that “[t]he prosecutor did not object to these instructions and thus was bound to satisfy the heavier burden in this case”); People v. Bell, 48 N.Y.2d 913, 915 (1979) (holding that the People accepted a higher burden of proof by failing to object or take exception to the court’s charge); People v, Moreno, 58 A.D.3d 516, 517 (1st Dept. 2011) (holding that the trial court’s erroneous instruction placing a heavier burden on the People became the “law of the case” by the People’s failure to object); People v. Killane, 203 A.D.2d 386, 387 (2d Dept 1994) (holding that it was “obligated to review the defendant’s argument as to the sufficiency of the evidence in light of the law as it was laid down for the jury, without exception”). In this case, with respect to the corroboration requirement, the trial court -49- instructed the jury that “the corroborative evidence must be truly independent of and may not draw its weight and probative value from the accomplice’s testimony.” (A432.) The court went on to instruct the jury that “[t]he law requires that the other evidence standing alone satisfy you that each defendant here was involved in the criminal transactions. . .” (A432.) The People took no exceptions to the court’s instruction and made no requests after the charge was given. Additionally, the trial court then charged the jury, without objection from the People, that “one accomplice’s testimony cannot be used to corroborate another accomplice’s testimony.” (A433- 434.) Nor had the People voiced an objection during any earlier discussions regarding the proposed charge on accomplice corroboration. (See A189-194.) The legal sufficiency of the evidence against Defendant-Appellant, therefore, must be measured against the charge as given at trial, without exception, regardless of whether that instruction imposed on the People a greater burden than would be required under Reome. Measured by the charge actually given to the jury, the testimony of the two accomplice witnesses was not sufficiently corroborated to permit a conviction of conspiracy or robbery. During and following the trial of this matter, defense counsel argued that the evidence was legally insufficient to permit a conviction, on the ground that the testimony of the self-professed accomplices was not sufficiently corroborated. 3The trial court expressly declined to decide whether Sergeant Clancy’s testimony regarding the phone numbers vis a vis the nicknames corroborated the accomplice testimony. Given that Sergeant Clancy’s testimony violated Defendant-Appellant’s constitutional right to confrontation, see infra. at 30-36, neither his testimony nor the phone records themselves should have been admitted in the first place, and they were wisely disregarded by the trial court in deciding the motion. This, however, did not cure the error in admitting Clancy’s testimony in the first place, in permitting the People to argue in summation that his testimony could be considered by the jury as corroboration, in the court’s instructing the jury that it may be considered as corroboration, or in allowing the jurors to consider the phone records and Clancy’s testimony during deliberations. -50- (A191-92; A194; A305-354.) The People, in turn, argued that there was sufficient corroboration in two areas. First, the People cited Sergeant Clancy’s testimony that a non-testifying cooperator had informed him that Defendant-Appellant went by the alias “Rumba” and that the name “Rumba” appeared in the cell phones of the testifying and non-testifying cooperators. (A306-313; A414.) The People also relied heavily on non- accomplice testimony that a red minivan had been seen by non-accomplice witnesses at the scene of a few of the robberies, that a red minivan had been registered in Defendant-Appellant’s name, and that he was driving a red minivan when he was arrested in a different case, while in the company of one of the accomplice witness. (A305.) Ultimately, in deciding Defendant-Appellant’s post-trial written motion for a trial order of dismissal, the trial court concluded that the non-accomplice evidence concerning the red minivan, by itself, sufficiently corroborated the accomplice testimony to allow a conviction.3 When examined closely, it is clear that the non-accomplice testimony concerning -51- sightings of a red minivan did not provide corroboration that sufficiently tended to connect the defendant to the crimes for which he was convicted. Defendant-Appellant was indicted for three separate robberies, occurring on May 18, 2005, in Queens; May 25, 2005, in The Bronx, and May 29, 2005, in The Bronx. He was acquitted of all substantive charges relating to the May 18, 2005, and May 25, 2005, incidents and was convicted of Robbery in the First Degree for the May 29, 2005, incident and of two counts of Conspiracy. With respect to the May 29, 2005, occurrence, a non- accomplice testified that he noticed a red minivan double parked in the street before feeling a gun in his back and being ordered to enter the bodega where he worked. (A14.) However, he gave no more detailed description of the vehicle than that: he did not identify the make or model, year of manufacture, or license plate. Nor did he describe anything about that vehicle that distinguishes it from the thousands of others in New York City on any given day, such as whether it had tinted windows, bumper stickers, or damage. Moreover, although he testified that he could see that there was a person in the van, he did not get a look at that person and never identified Defendant- Appellant as being in the van or otherwise being involved in that robbery. (A35.) Importantly, despite having a photograph of the vehicle in which Defendant- Appellant was arrested on September 1, 2005, (A206-207 ), the People never showed that photo to the witness, either during the course of trial preparation or during the trial. 4 Also important to note is that the People had violated their discovery obligations by failing to disclose to Defendant-Appellant the existence of the September 1, 2005, photograph until they presented it as evidence during the testimony of their second to last witness, thereby depriving Defendant-Appellant the opportunity of showing it to any of the People’s non- accomplice fact witnesses, including Delgado, the store employee, during cross-examination. See supra at 53-60. -52- (A36.) Thus, despite having the opportunity and means to do so, the People chose not to have their witness identify Defendant-Appellant’s vehicle as the one he saw double parked outside the bodega. Even were the witness unable to testify definitively that the vehicle he saw actually was Defendant-Appellant’s, he certainly could have been expected to testify either that it appeared to be the same make and model or, perhaps to the People’s chagrin, that it definitively was not the same vehicle.4 The People instead chose to rely on the vague description of “red minivan,” of which there are thousands in New York City on any given day. Finally, at trial, the People and the trial court placed great weight on the fact that Defendant-Appellant was, in fact, arrested on September 1, 2005, three months after the bodega robbery for which he was convicted, while driving his red minivan. This evidence, however, is not properly considered corroboration of the accomplice testimony, as it is not independent. Defendant-Appellant was with the testifying accomplice when they were both arrested on September 1, 2005. Thus, to say that Defendant–Appellant’s presence in the red van on September 1, 2005, corroborates the -53- accomplice testimony that a red van was used in the commission of other robberies is tantamount to bootstrapping. It provides a basis separate and apart from Defendant- Appellant’s alleged participation in the charged crimes for the accomplice to know that Defendant-Appellant had a red minivan. That is, having been with Defendant- Appellant when he was arrested in a red minivan, the accomplice’s testimony that Defendant-Appellant used a red minivan to commit robberies with the accomplice can not then be viewed as corroborated by the fact that defendant was arrested with the accomplice in a red minivan. The holding in People v. Montefusco, 44 A.D.3d 879, 881 (2d Dept. 2007), is particularly persuasive in this regard. In that case, the prosecution relied on accomplice testimony to establish the defendant’s guilt of multiple burglary charges. With respect to two of the burglaries for which the defendant was convicted, the Appellate Division, found the accomplice’s testimony was not sufficiently corroborated. The court held that “[t]he fact that two eyewitnesses saw two unidentified individuals inside the Jiffy Lube store on the night it was burglarized, and evidence that the defendant owned a Nissan Xterra, which was the same type of car one of the accomplices allegedly saw him driving on the night of the Parsnips burglary, are insufficient, without more, to connect the defendant to those crimes.” Id. Given the specificity with respect to the make and model of the car owned by the defendant in -54- that case, which matched the make and model of the car described by the accomplice, the corroboration was arguably stronger there than it is here, where there was no testimony by the accomplices or the victims as to the make and model of the red minivan used in, or observed in the vicinity of, the crimes charged. Consequently, the presence of a generic, non-descript red minivan at the scene of the crime, even when coupled with Defendant-Appellant’s ownership of a red minivan, does not sufficiently corroborate the accomplice testimony, particularly given the People’s failure to provide their witness an opportunity to say whether or not the photo of Defendant-Appellant’s red minivan matched the red minivan he observed and the failure of the People to elicit from the non-accomplice witness any testimony from which the jury could conclude that the red minivan outside the bodega was similar in make or model to Defendant-Appellant’s or otherwise distinguished from the thousands of other red minivans that are in New York City on any given day. POINT III DEFENDANT-APPELLANT’S RIGHTS TO DISCOVERY, DUE PROCESS, AND A FAIR TRIAL WERE VIOLATED WHEN THE PEOPLE FAILED TO PROVIDE ROSARIO MATERIAL RELATING TO SERGEANT CLANCY’S GATHERING OF INFORMATION FROM THE NON-TESTIFYING COOPERATOR. The People’s failure to comply with their discovery obligations prejudiced -55- Defendant-Appellant and deprived him of a fair trial and due process of law in violation of the New York and Federal Constitutions. C.P.L. § 240.45(1)(a) requires the People to “make available to the defendant,” even absent a demand by the defendant, “[a]ny written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony.” The People need not make the witness statements available to the defendant until “[a]fter the jury has been sworn and before the prosecutor’s opening address.” See C.P.L. § 240.45(1). Moreover, the People’s discovery obligations are continuing. See C.P.L. § 240.60. This Court has recognized that “[t]he criminal discovery procedure embodied in article 240 . . . evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial.” People v. Copicotto, 50 N.Y.2d 222, 226 (1980). With respect to the failure of the People to provide the defendant with witness statements under C.P.L. § 240.45(1), reversal is required only if the defendant demonstrates “that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial.” See C.P.L. § 240.75. However, if it is unclear on appeal whether the requested, but never disclosed, documents qualify as Rosario -56- material, the appeal should be held in abeyance while the trial court conducts an in camera review of the documents. See People v. Sanchez, 286 A.D.2d 512, 512-13 (2d Dept. 2001). The People’s wholesale failure to provide Sergeant Clancy’s reports concerning his conversations with the non-testifying cooperator whose information provided the entire basis for his testimony requires reversal. At the very least, the trial court erred in denying out of hand as not being Rosario material defense counsel’s request for those reports, without even requiring the People to provide the court with the reports for in camera review. Sergeant Clancy’s testimony concerning the alleged nicknames and phone records of the defendants on trial, as well as the testifying and non-testifying cooperators, consumed almost fifty pages of transcript. (A252-300.) Sergeant Clancy testified that after the September 1, 2005, “take down” he examined the call logs and contact lists of several cell phones, which contained only nicknames for the persons and numbers listed. He also stated that he was informed of the real names associated with those nicknames by a cooperator, (A258-259; A274-275; A294), thereby allowing him to associate the nicknames and phone numbers in the call logs and contact lists with those real names, (A255). Following the September 1, 2005 “take down,” the Sergeant subpoenaed the records for several of the phone numbers in the call logs and -57- contact lists. (A252.) He then was permitted at trial to attribute those phone records to the respective defendants and cooperators using their real names, even though the records themselves had different names. (A253.) Furthermore, he was permitted to testify from the phone records that certain phone calls in those records were made to or by Defendant-Appellant, again referring to him and the others by their real names that didn’t match either the names on the phone records or the nicknames in the seized cell phones. (A252; A253; A254; A256; A257; A262-264.) Thus, the entire foundation for the detective’s testimony rested on statements to him by the non- testifying cooperator, in which the cooperator identified the persons associated with the nicknames and phone numbers listed in the call logs and contact lists. The court inexplicably sustained the prosecutor’s objection to the question by counsel for a co-defendant whether the Sergeant took notes when he “obtained the information regarding the nicknames from the cooperator.” (A300.) She then also denied the request by counsel for Defendant-Appellant for “Rosario about the cooperator.” (A301.) The trial court’s rationale for denying the Rosario demand was seriously flawed. The trial judge reasoned that Sergeant Clancy “did not investigate this case. He was part of the take down for the September 1st case which was a separate indictment.” (A302.) What the court apparently missed, however, was the inescapable conclusion that the cooperator’s information concerning the nicknames and -58- phone numbers was very much the subject matter of the detective’s testimony in this case. Defendant-Appellant, therefore, unquestionably was entitled to Rosario material prepared, or relied on, by Sergeant Clancy regarding the information he learned from the non-testifying cooperator. In fact, as the non-testifying cooperator was really the witness against Defendant-Appellant, see infra at 30-36, the People were required to provide defense counsel with all statements of the non-testifying cooperator, whether recorded by Sergeant Clancy, other law enforcement officers, or a prosecutor, concerning the phone numbers and nicknames, as well as the alleged relationships among the persons about whom he provided information. Absent the Rosario material, defense counsel was deprived of the opportunity to test the cooperator’s knowledge or the circumstances under which he provided his information. Furthermore, Sergeant Clancy’s testimony concerning the phone records and the association between the trial defendants and the respective nicknames and phone numbers played a critical role in the People’s case and the jury’s verdict. During summation, the prosecutor highlighted for the jury the evidence contained in the phone records and Defendant-Appellant’s alleged identity as “Rumba” according to the hearsay testimony of Clancy. (A414; A422.) More important, the jury sent multiple notes requesting to see the phone records during deliberations. (A435; A463; A464; A466.) In fact, despite no other corroborating evidence against either co-defendant, -59- the jury returned verdicts of guilty on the conspiracy counts, which the court dismissed post trial on motion of their respective counsel. There is, therefore, “a reasonable possibility that the non-disclosure materially contributed to the” verdicts in this case. See C.P.L. § 240.75. Thus, the People’s failure to provide Defendant-Appellant with the requested Rosario material, and the trial court’s failure to require its disclosure, requires reversal of all three convictions and sentences. CONCLUSION For the foregoing reasons, Defendant-Appellant respectfully requests that this Court reverse his convictions and sentences and take such other and further action as to this Court seems appropriate. Dated: New York, New York November 30, 2012 Counsel for Defendant-Appellant Arnold J. Levine 233 BROADWAY, SUITE 901 NEW YORK, NY 10279 212-732-5800