The People, Respondent,v.Reyes Rodriguez, Appellant.

Brief

N.Y.September 12, 2013

New 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 REPLY 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: March 24, 2013 Of Counsel: Arnold J. Levine -i- TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii- ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Crawford Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Bruton Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C. The Constitutional Errors Were Not Harmless Beyond A Reasonable Doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT II THE TESTIMONY OF THE PROSECUTION’S TWO COOPERATING-WITNESS ACCOMPLICES WAS NOT SUFFICIENTLY CORROBORATED AS REQUIRED BY C.P.L. § 60.22 TO PERMIT DEFENDANT-APPELLANT’S CONVICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 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. . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 -ii- TABLE OF AUTHORITIES United States Supreme Court Cases Bruton v. United States, 391 U.S. 123 (1968).................................................10, 12, 13 Crawford v. Washington, 541 U.S. 36 (2004).........................................................3, 11 Cruz v. New York, 481 U.S. 186 (1987)...................................................................12 Gray v. Maryland, 523 U.S. 185 (1998)....................................................................11 Richardson v. Marsh, 481 U.S. 200 (1987).............................................................9, 10 Federal Cases United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003).............................................5 New York State Cases People v. Beasley, 16 N.Y.3d 289 (2011).................................................................11 People v. Garguilio, 57 A.D.3d 797 (2d Dept. 2008)...............................................20 People v. Goldstein, 6 N.Y.3d 119 (2005)................................................................15 People v. Hamlin, 71 N.Y.2d 750 (1988)..............................................................13, 15 People v. Kello, 96 N.Y.2d 740, 743-44 (2001).......................................................11 People v. Liner, 9 N.Y.3d 856, 856-57 (2007)........................................................11 iii People v. Liner, 33 A.D.3d 479, 479 (1st Dept. 2006), aff’d,9 N.Y.3d 856, 856-57 (2007) ...................................................................................................11 People v. Poole. 48 N.Y.2d 144, 149 (1979)............................................................19 People v. Slade, 283 A.D.2d 155 (1st Dept. 2001)......................................................20 People v. Wheeler, 62 N.Y.2d 867 (1984)............................................................10, 11 Constitutional Amendments and New York Statutes C.P.L. § 60.22..................................................................................................14, 16, 17 C.P.L. § 60.22(1).......................................................................................................17 C.P.L. § 60.50..............................................................................................................17 C.P.L. § 240.45(1)(a).............................................................................................19, 21 C.P.L. § 240.60. ..........................................................................................................19 1 ARGUMENT 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. A. Crawford Violation (Replying to Respondent’s Point II.B and II.C.) Defendant-Appellant’s rights under the Federal and State Constitutions to confront and cross-examine the witnesses against him were violated when the trial court permitted Sergeant Clancy to identify Defendant-Appellant as “Rumba” and to testify that cellular phone records in the name of Hankook Binoon actually were for Defendant-Appellant, based on information conveyed to him by a non-testifying cooperator. Importantly, and virtually fatal to its position, Respondent concedes that “at trial, Sergeant Clancy testified that he had come to associate certain cellphone records with defendant and other conspirators based on information about the conspirators’ nicknames that had been provided by a cooperator.” (RB: 45.) This concession comes as no surprise, as there is no escaping the fact that Clancy stated in no uncertain terms at trial that he was informed by a non-testifying cooperator that Defendant-Appellant’s nickname was “Rumba.” (A258-259; A294-95.) Based on 2 the information conveyed to him by the non-testifying cooperator, Clancy then repeatedly told the jury that the phone records in evidence for a phone registered in the name Hankook Binoon, and the phone number of which matched the entry for Rumba in Hernandez’s cell phone, were actually Defendant-Appellant’s phone records. (A253-57; A262-64.) Respondent, nevertheless, argues that Clancy’s testimony did not violate Defendant-Appellant’s rights to confrontation and cross examination. Those arguments are misplaced for several reasons. At the outset, Respondent states matter-of-factly that the cell phones seized from Hernandez and the non-testifying cooperator Jairo DelRosario “contained entries for the nicknames of defendant” and his alleged co-conspirators. (RB: 47.) Respondent, however, seems to ignore the fact that Defendant-Appellant has at all times disputed that claim. In fact, aside from the cooperation-agreement induced testimony of career criminals Hernandez and Eulalia Rodriguez and the disputed hearsay testimony of Clancy, there literally was no evidence that Defendant- Appellant was the person listed as “Rumba” in those cell phone directories. Indeed, although Defendant-Appellant, Hernandez, and DelRosario were arrested at the same time and at the same place on September 1, 2005, no phone seized from Defendant-Appellant or his vehicle on that date was associated with the Hankook Binoon phone records or the phone number listed for “Rumba” in 3 Hernandez’s or DelRoasario’s phones. (A291.) Moreover, because the cell phone seized frm Defendant-Appellant on that date was a T-Mobile phone and not a Sprint/Nextel phone, it literally was incapable of making the “chirp” communications reflected not only in the Hankook Binoon phone records, but also in Hernandez’s phone records. (A250-51; A274; A281.) Thus, despite Respondent’s attempt to pass off as fact that Defendant-Appellant’s nickname and phone number were listed in Hernandez’s and DelRosario’s cell phone directories, the evidence supporting that claim is far from persuasive. Respondent’s legal arguments fare no better. First, Respondent argues that this claim “is only partly preserved.” (RB: 51.) That is, Respondent reasons that because “Defendant did not take any issue with Clancy’s testimony about how he had come to associate cellphone records with Hernandez and DelRosario,” he has not preserved his argument concerning “calls made to or from Hernandez and DelRosario.” (RB: 51.) This statement is vastly overbroad, insofar as it would seem to suggest that Defendant-Appellant has not preserved his Confrontation Clause argument as to calls claimed by Clancy to have occurred between Defendant-Appellant and either Hernandez or DelRosario. Insofar as Clancy testified that the phone records evidenced communications between Defendant-Appellant and Hernandez or DelRosario, (see A256–57; A262-64), his argument certainly is preserved by his 4 hearsay and “Crawford” objections, which were registered during cross examination, (A275), and later, when it was finally disclosed by the trial prosecutor that the cooperator to whom Clancy had referred was a non-testifying cooperator, as opposed to Hernandez or Eulalia Rodriguez. Indeed, until now, Respondent has never even suggested otherwise. Second, as it did in the court below, Respondent again claims that “defendant either misapprehends or misrepresents the purpose of the relevant testimony.” (RB: 52.) Respondent claims that Clancy’s testimony regarding the nicknames was not offered for its truth. (RB: 52.) It is Respondent, however, who seems simply to ignore the clear import and purpose of Clancy’s testimony. To begin, Respondent seems not to understand the true Confrontation Clause issue. That is, Respondent continues to labor under the misimpression that the Confrontation Clause violation is rooted in Clancy’s disclosure at trial that the real source of his testimony identifying Defendant-Appellant by his alleged nickname actually was a cooperator. (See RB: 52-53.) The finding of hearsay violations and Confrontation Clause violations, however, are not dependant on the jury’s realization that the testimony it is hearing and considering was actually delivered through a surrogate who was merely repeating what he had been told by a non-testifying declarant. Rather, the Confrontation Clause and the rule prohibiting hearsay bar the use 5 of the surrogate testimony itself, regardless of the jury’s awareness of its hearsay nature. Indeed, as recognized by the Second Circuit, instead of being obviated by the jury’s ignorance, 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). Thus, contrary to the assumption made by Respondent, the Confrontation Clause violation occurred not when Clancy first disclosed the hearsay nature of his testimony, but, rather, it occurred every time Clancy referred to Hankook Binoon’s phone records as belonging to Defendant-Appellant, as opposed to Hankook Binoon or Rumba, and every time Clancy testified that the various phone records evidenced communications between Defendant-Appellant, as opposed to Hankook Binoon or Rumba, and Hernandez and other alleged co-conspirators. Next, Respondent inexplicably argues that Clancy referred to Hankook Binoon’s phone records as Defendant-Appellant’s, not for the truth of that assertion, but only to explain why he had focused on those records in his analysis. (RB: 52-53; RB: 58; RB: 59 n.17.) That claim is refuted by the record. In fact, although the 6 prosecutor asked Clancy how he obtained the cell phone records and which records were the subject of his focus, she never asked Clancy why he focused on those cell phone records. (A252.) And Clancy himself never claimed to be identifying Defendant-Appellant as Hankook Binoon and Rumba only to explain why he focused on those phone records. Instead, he stated to the jury repeatedly that the records were, in fact, Defendant-Appellant’s billing records and that the records, in fact, contained evidence of communications between Defendant-Appellant, by name, and Hernandez and other alleged co-conspirators. Along the same lines, Respondent also claims that “The limited purpose of the testimony is underscored by the fact that the People initially attempted to elicit testimony merely about calls between various numbers.” (RB: 53; see also RB: 54.) It would seem that Respondent read the transcript of a different trial altogether. An inspection of the record proves the falsity of this assertion. First, it is unclear why the trial prosecutor would have been relegated to a mere “attempt” to elicit such testimony if that had been her purpose. In fact, she made no such “attempt.” Rather, her questions of Clancy at all times either used or elicited Defendant-Appellant’s name, as opposed to the phone number on the records or the name Hankook Binoon or Rumba. (See A252-57; 262-64.) The trial prosecutor never made any effort to elicit testimony about calls between mere phone numbers, choosing instead to take 1Although the prosecutor asked Clancy which “phones” he had focused on and although Clancy asnwered that he “focused on[Defendant-Appellant] Reyes Rodriguez’s phone,” (A252), in fact, it is clear from his testimony that he was really speaking of the Hankook Binoon phone records, which he attributed to Reyes Rodriguez. 7 every opportunity to have Clancy identify Defendant-Appellant himself as the source or recipient of the cell phone communications. Indeed, when asked which “phones”1 he had focused on, he responded that “We focused on Reyes Rodriguez’s phone” among others. (A252.) Despite the fact that no phone ever seized from Defendant- Appellant matched the Hankook Binoon phone records, Clancy then identified the Hankook Binoon billing records as belonging to Defendant-Appellant, by name, as opposed to identifying them as belonging to Rumba. (A253.) The trial prosecutor then asked Clancy several questions regarding phone calls and point-to-point communications between Defendant-Appellant, by name, and Hernandez and other alleged-coconspirators. (A257-62.) In response to the prosecutor’s questions, Clancy repeatedly testified that the records evidenced phone calls and point-to-point- communications to and from Defendant-Appellant, as opposed to Hankook Binoon or Rumba. (A257-62.) That Clancy’s testimony was offered for the truth of the matter asserted, i.e. that Hankook Binoon, and therefore Rumba, was actually Defendant-Appellant, that Hankook Binoon’s billing records were actually Defendant-Appellant’s records, and that Defendant-Appellant himself had actually 8 made and received the communications with Hernandez and other alleged co- conspirators indicated therein, therefore, is unmistakable. Indeed, at trial, neither the prosecutor nor the judge even suggested another purpose for Clancy’s repeated reference to Defendant-Appellant, as opposed to Hankook Binoon or Rumba, when referring to the phone records. Respondent argues that this failure is “unsurprising” because “the People did not seek to elicit the testimony.” (RB: 54.) Respondent then states that “The trial court did elicit the testimony, but as part of a series of questions seeking to clarify how Clancy came to analyze certain cellphone records.” (RB: 54.) Respondent, again, seems to be misapprehending the issue. While the trial prosecutor may have tried to hide from defense counsel, the court, and the jury the true basis for Clancy’s identification of Defendant-Appellant as Hankook Binoon and Rumba, i.e. that a cooperator told him, she purposely and repeatedly elicited from Clancy the actual hearsay statement, i.e. that Defendant- Appellant actually was Hankook Binoon and Rumba and that the phone records in the name of Hankook Binoon and matching a phone number for Rumba in the seized cell phones were actually Defendant-Appellant’s records. (A252-267.) Furthermore, as is clear from the record, when the court elicited the true source of Clancy’s “knowledge,” it was not for the purpose of clarifying how Clancy came to analyze 9 certain cellphone records; instead, it was to clarify Clancy’s basis for identifying Hankook Binoon’s records and Rumba’s phone number as Defendant-Appellant’s records and phone number. (A255-56; A258-59.) Further evidence of Respondent’s misunderstanding of the Confrontation Clause is its attempt to pass off Clancy’s testimony concerning the non-testifying cooperator as two “passing reference[s].” (RB: 54-55; RB: 56.) As explained above, Clancy’s eventual disclosure of his true basis for identifying Defendant-Appellant as Hankook Binoon and Rumba, i.e. “the cooperator,” is not the point at which the constitutional and hearsay violations occurred; rather, that merely marked the point at which the hearsay and potential constitutional violations themselves were revealed to defense counsel, the court, and the jury. Thus, at issue here is not Clancy’s or the prosecutor’s “passing reference” to the non-testifying cooperator, but Clancy’s repeated identification of Defendant-Appellant as Hankook Binoon and Rumba. That is not to say, however, that Clancy’s revelation did not contribute to the harm suffered by Defendant-Appellant as a result of the hearsay and constitutional violations. In an apparent effort to justify the trial prosecutor’s blatant and calculated attempt to hide from defense counsel, the court, and the jury the hearsay nature of Clancy’s testimony, Respondent cites the United States Supreme Court decision in Richardson v. Marsh, 481 U.S. 200, 208-11 (1987), for the proposition that “it is 10 appropriate to elicit evidence carefully so that it does not inadvertently prejudice a defendant.” (RB: 60.) It is interesting that Respondent would be citing Richardson for that proposition, given that the point of the Court in Richardson, as well as the rest of the Bruton progeny, was to avoid having the defendant in those cases identified in court through the statement of a non-testifying declarant, which is precisely what happened in this case. In any case, Respondent is falsely equating the hearsay and confrontation violation with the jury’s awareness of the violation. Despite Respondent’s refusal to acknowledge it, the violation occurs regardless of the jury’s awareness of it. In this case, Defendant-Appellant’s right to confront the witnesses against him was violated each and every time Clancy testified that the billing records in evidence belonged to Defendant-Appellant and that the communications contained in those records evidenced calls and point-to-point communication received or sent by Defendant-Appellant, as opposed to Hankook Binoon or Rumba. B. Bruton Violation. (Replying to Respondent’s Point III.) Defendant-Appellant’s state and federal constitutional right to confront and cross-examine the witnesses against him was violated when the trial court refused to redact the statement of a non-testifying co-defendant that inculpated Defendant- Appellant. See Bruton v. United States, 391 U.S. 123, 135-36 (1968); People v. 11 Wheeler, 62 N.Y.2d 867, 869 (1984). In claiming that Defendant-Appellant’s Bruton claim is unpreserved, Respondent predictably holds true to its “already well-established tendency to pounce on every arguable imperfection in a defense lawyer’s argument as a barrier to deciding a case on the merits.” See People v. Beasley, 16 N.Y.3d 289, 293 (2011) (Smith, J., concurring). Respondent’s reliance on this Court’s decision in People v. Kello, 96 N.Y.2d 740, 743-44 (2001), in that regard is unavailing. (See RB: 75.) In Kello, the defendant limited his objection to the state common-law rule prohibiting hearsay. See id. at 743. Similarly, in People v. Liner, there is no indication that the defendant at trial objected at all to the admission of the trespass notices as evidence. See 9 N.Y.3d 856, 856-57 (2007). Nor is it clear from the Appellate Division’s decision in Liner whether any objection was lodged at trial and, if so, the grounds for the objection. See 33 A.D.3d 479, 479 (1st Dept. 2006). In the instant case, however, Defendant-Appellant expressly requested the two remedies specifically mandated by the Confrontation Clause decisions of the United States Supreme Court as well as this Court. See Gray v. Maryland, 523 U.S. 185, 192 (1998); Wheeler, 62 N.Y.2d at 869. This should have been sufficient to put the trial court and prosecutor on notice as to the basis for the objection. Defendant- Appellant’s Bruton claim, therefore, is preserved for this Court’s review. 12 Turning to the merits of the claim, Respondent’s reliance on Crawford v. Washington, 541 U.S. 36, 51 (2004), is misplaced in the context of a Bruton claim. Notably, Respondent makes no argument that Bruton and its progeny have been overruled. Also notable is that none of the Supreme Court cases cited by Respondent for the proposition that Bruton applies only to testimonial statements actually concerned the application of Bruton. (See RB: 75-79.) Instead, Respondent relies on non-binding decisions by various federal Courts of Appeal that, themselves, seemed to ignore the Supreme Court’s holdings in its Bruton line of cases and the reasoning therefor. As explained in Defendant-Appellant’s opening Brief to this Court , the Supreme Court has recognized that its Bruton line of cases constitutes an exception to the typical Confrontation Clause analysis, as in the those cases the co- defendant’s extrajudicial statements were not admissible against the defendant and, thus, the co-defendant could not be said in any of those cases to be a “witness” against the respective defendants. (See DB: 40-41) (citing Cruz v. New York, 481 U.S. 186, 190 [1987]). For these same reasons, Respondent’s claim, accepted by the Appellate Division, that Bruton applies only to a non-testifying co-defendant’s statements admitted for their truth, (see RB: 77-78), is likewise misplaced. That is, the Supreme Court held in Bruton and its progeny that a limiting instruction through which the 13 trial court would direct the jury not to consider the statement of the non-testifying co- defendant against the defendant is insufficient to protect the defendant. 391 U.S. at 135. So, the overriding concern in the Bruton cases is the constitutionally unacceptable risk that, despite all instructions from the trial court not to consider the co-defendant’s statement for its truth insofar as it implicates the defendant, the jury will consider it for such unlawful purpose anyway. Thus, it does no good for Respondent or the Appellate Division to suggest that Bruton’s holding is inapplicable where the non-testifying co-defendant’s extrajudicial statement is not admitted for its truth, for in the Bruton cases it is never admissible for its truth as to the defendant. Accordingly, as Bruton has never been overruled by the only Court with the authority to do so, its holding is still binding on this Court. Under a Bruton analysis, it was unquestionably error for the trial court to refuse to redact the statement of Defendant-Appellant’s non-testifying co-defendant before allowing it into evidence. Defendant-Appellant’s right to confrontation, therefore, was violated by the prosecution’s use of that statement at the joint trial. C. The Constitutional Errors Were Not Harmless Beyond A Reasonable Doubt. These constitutional violations were not harmless beyond a reasonable doubt. See People v. Hamlin, 71 N.Y.2d 750, 756, 758 (1988). Although Defendant- 14 Appellant was identified by the testifying cooperators at trial as co-conspirator “Rumba,” their testimony was hotly contested by the defense. The credibility of those two career criminals who were testifying pursuant to formal cooperation agreements with the prosecution and who were engaged in a romantic relationship with each other was absolutely essential to the People’s case. Moreover, because Hernandez and Rodriguez were accomplices as a matter of law, their testimony was required to be corroborated by other evidence that tended to connect Defendant-Appellant to the crimes for which he was convicted. See C.P.L. § 60.22. However, despite a parade of 40 non-accomplice witnesses, many of whom were victims and eyewitnesses, over the course of the three-week trial, not a single one of them identified Defendant-Appellant as being present or participating in any of the crimes. Although a witness testified that he saw a red minivan parked across the street from the store shortly before it 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 15 name. Defendant-Appellant made no statements inculpating himself in any of the crimes. Nor did any forensic evidence, such as fingerprints or DNA tie Defendant- Appellant to any of the crimes about which the cooperators testified. Cf. People v. Hamlin, 71 N.Y.2d at 757-58. Thus, Defendant-Appellant was acquitted of ten of the thirteen charges for which he was indicted. Given the lack of other evidence tending to connect Defendant-Appellant to the crimes with which he was charged or convicted, and given the importance the jurors obviously placed on the phone records and Clancy’s testimony about those records, it can not be said that the error in allowing Clancy’s testimony identifying Defendant- Appellant as Rumba and the records as Defendant-Appellant’s was harmless beyond a reasonable doubt. See id. at 756; see People v. Goldstein, 6 N.Y.3d 119, 129 (2005). Similarly, there clearly is a reasonable possibility that the Bruton error, which put before the jury a statement by Defendant-Appellant’s non-testifying co-defendant implicating Defendant-Appellant in the charged crimes, contributed to Defendant- Appellant’s conviction of conspiracy and robbery. Defendant-Appellant’s convictions, therefore, must be reversed and vacated. 16 POINT II THE TESTIMONY OF THE PROSECUTION’S TWO COOPERATING-WITNESS ACCOMPLICES WAS NOT SUFFICIENTLY CORROBORATED AS REQUIRED BY C.P.L. § 60.22 TO PERMIT DEFENDANT-APPELLANT’S CONVICTIONS. (Reply to Respondent’s Point I). 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. Respondent spends several pages discussing how Hernandez and his lover and self-professed accomplice, Eulalia Rodriguez, corroborate each other. (RB: 30-32.) Respondent also spends much time explaining that the testimony of Hernandez and Rodriguez about the crimes is corroborated by non-accomplice witnesses, such as the victims. (RB: 32-34.) Respondent, however, seems to miss the point of C.P.L. § 60.22. The corroboration requirement clearly can not be satisfied by “mutually 17 corroborative” testimony of two accomplices. Rather, accomplice testimony must be corroborated by nonaccomplice evidence. Furthermore, the testimony by non- accomplice witnesses, including the victims, in this case that merely corroborated Hernandez and Rodriguez as to the occurrence of the crimes and overt acts could not serve as the necessary corroboration under C.P.L. § 60.22, because they did not “tend[] to connect the defendant with the commission of such offense.” C.P.L. § 60.22(1) (emphasis added). Compare C.P.L. § 60.50 (requiring only “additional proof that the offense charged has been committed,” but not that the defendant committed it, before permitting a conviction based a defendant’s confession or admission). Thus, almost all of the evidence cited by Respondent to support its claim that there was sufficient corroboration presented at trial fails to come within the ambit of “corroboration” required by C.P.L. § 60.22. Additionally, the cell-phone billing records, absent Clancy’s wrongly permitted testimony identifying Defendant-Appellant as Hankook Binoon and Rumba, fail to offer the necessary corroboration. Because the records are not in Defendant- Appellant’s name and because they do not match any phone or phone number that is connected to Defendant-Appellant other than by the accomplices’ testimony that Defendant-Appellant is Rumba and that Rumba’s number was in Hernandez’s phone, the records do not tend to connect Defendant-Appellant himself, as opposed to 18 Rumba,” to the crimes or overt acts in the indictment. Finally, 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. The People failed to provide their non-accomplice witness an opportunity to say whether or not the photo of Defendant-Appellant’s red minivan matched the red minivan he observed near the bodega at which he worked. Furthermore, the People failed 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 was otherwise distinctive. For these reasons, as well as those contained in Defendant-Appellant’s opening Brief, there was insufficient evidence presented at trial tending to connect the defendant with the commission of the crimes charged and for which he was convicted. His convictions and sentences, consequently, must be reversed and vacated. 19 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 I N F O R M A T I O N F R O M THE NON-TE S T I F YI NG COOPERATOR. (Replying to Respondent’s Point II.D.) 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.” Further, the People’s discovery obligations are continuing. See C.P.L. § 240.60. In this case, the trial court failed to require the People to make available to Defendant-Appellant the recorded statements of Clancy that related to the subject matter of his direct examination testimony, i.e. his reports and documentation concerning statements made to him by non-testifying cooperator Jairo DelRosario identifying Defendant-Appellant as Rumba or otherwise associating Defendant-Appellant with the phone number attributed to Rumba. Respondent’s arguments that the trial court correctly refused Defendant- Appellant’s demand at trial for disclosure of Clancy’s reports and documentation are unpersuasive. First, Respondent’s reliance on this Court’s decision in People v. Poole. 48 N.Y.2d 144, 149 (1979), is misplaced. Unlike the defendant in Poole, Defendant- 20 Appellant never demanded the entire prosecution file. Nor did Defendant-Appellant object to the court conducting an in camera review of any particular reports or documentation the prosecution refused to disclose. Instead, there was a wholesale failure by the prosecution to disclose Rosario material and a wholesale refusal by the court to require it to comply with its obligations. The Appellate Division cases relied on by Respondent are easily distinguished from the instant case. For example, in People v. Garguilio, 57 A.D.3d 797 (2d Dept. 2008), the court correctly held that the People were not required to produce the Grand Jury testimony of a witness who did not testify at trial. However, in Garguilio, unlike this case, there is no indication that any trial witness actually acted as a surrogate witness in place of the witness who had testified in the Grand Jury. Here, the prosecution sought at trial to take advantage of the non-testifying cooperator’s “knowledge,” which he had imparted to Clancy, while at the same time shielding the declarant from impeachment. The decision in People v. Slade, 283 A.D.2d 155 (1st Dept. 2001), is likewise easily distinguished. In that case, a second chemist conducted his or her own tests of the drugs and, therefore, did not rely on the results or the notes of the first chemist. Thus, the second chemist did not rely for his or her testimony on any statements by the first chemist and was not relating to the jury anything he or she had been told by the 21 first chemist. Here, on the other hand, Clancy clearly was relying for his testimony on what had been told to him by the non-testifying cooperator, i.e. that Defendant- Appellant was Rumba and, therefore, was Hankook Binoon. Clancy’s direct examination testimony concerning the alleged nicknames and phone records of the defendants on trial, as well as the testifying and non-testifying cooperators, consumed fifteen pages of transcript. (A252-A266.) It should, therefore, be beyond dispute that the subject of Clancy’s direct examination testimony concerned the nickname attributed to Defendant-Appellant and his co-defendants and how Clancy came to associate the billing records in evidence with Defendant-Appellant and his co-defendants. Thus, it should also be beyond dispute that any reports or documents created by Clancy concerning Defendant-Appellant’s nickname and phone number, including how he came to learn this information, qualified as Rosario material and was required to be disclosed under the plain language of C.P.L. § 240.45(1)(a). Contrary to the trial court’s beliefs (A302), the fact that Clancy may have created those reports or notes in connection with his investigation into another, but related, matter, as opposed to his investigation of the specific crimes with which Defendant-Appellant was charged in the instant indictment was irrelevant. All that matters is that those reports and notes relate to the subject of his testimony on direct examination in this case. Yet, the trial court denied Defendant-Appellant access to 22 those reports and notes and, thereby denied Defendant-Appellant the opportunity impeach Clancy, as well as his source. 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, as well as the reasons set forth in Defendant- Appellant’s opening brief, 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 March 24, 2013 Counsel for Defendant-Appellant Arnold J. Levine 233 BROADWAY, SUITE 901 NEW YORK, NY 10279 212-732-5800