The People, Respondent,v.Tyrone Prescott, Appellant.BriefN.Y.March 21, 2013COURT OF APPEALS STATE OF NEW YORK To Be Argued By: MATTHEW B. POWERS Requested Time: 20 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent V TYRONE PRESCOTT, Defendant-Appellant Indictment No. 00711-2004 BRIEF FOR RESPONDENT FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858—7922 DONNA A. MILLING MATTHEW B. POWERS Assistant District Attorneys of Counsel November 9, 2012 TABLE OF CONTENTS Page Table of Authorities i Question Presented 1 Preliminary Statement 2 Point. Defendant’s petition for a writ of error coram nobis was properly denied 4 Conclusion. The judgment of conviction should be affirmed in every respect 13 TABLE OF AUTHORITIES CASES People v Alicea, 61 NY2d 23 (1983) People v Baldi, 54 NY2d 137 (1981) People v Gomberg, 38 NY2d 307 (1975) People v Gravino, 14 NY3d 546 (2010) People v Hamilton, 96 AD3d 1518 (4th Dept 2012), lv denied 19 NY3d 997 People v Harris, 99 NY2d 202 (2002) People v Jordan, 83 NY2d 785 (1994) People v Macerola, 47 NY2d 257 (1979) People v Mattinson, 67 NY2d 462 (1986) People v Ortiz, 76 NY2d 652 (1990) People v Perez, 70 NY2d 773 (1987) People v Prescott, 66 AD3d 1357 (4th Dept 2009), lv denied 13 NY3d 909 People v Russell, 83 AD3d 1463 (4th Dept 2011), lv denied 17 NY3d 800 PAGE • . • 6—10 4 • • • 4, 9 • • . . 10 • • • • 10 6, 7 4, 7, 8 4 • . • 6, 7 • • . • 11 2 • . . . 10 9People v Wandell, 75 NY2d 951 (1990) i STATUTES CPL 440 10 Penal Law § 20.00 2 Penal Law § 110.00 2 Penal Law § 120.06 5 Penal Law § 120.07 2 Penal Law § 120.10(3) 2 Penal Law § 125.25(1) 2 Penal Law § 170.05 5 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent V TYRONE PRESCOTT, Defendant-Appellant Indictment No. 00711 BRIEF FOR RESPONDENT QUESTION PRESENTED Was defendant’s petition for a writ of error coram nobis properly denied? —1 — PRELIMINARY STATEMENT This is an appeal from an order of the Appellate Division, Fourth Department, entered on September 30, 2011, denying defendant’s petition for a writ of error coram nobis. Under Indictment No. Indictment No. 00711, defendant was charged with attempted murder in the second degree (Penal Law § 125.25[1], 110.00, 20.00), assault in the first degree (Penal Law § 120.10[3], 20.00), and gang assault in the first degree (Penal Law § 120.07, 20.00) . The charges were based on an attack committed by defendant, and his three co-defendants, against the victim, David Brown. After being struck and kicked numerous times by defendants, Brown sustained multiple, independently life- threatening injuries. Defendant was found guilty, after a non-jury trial, of assault in the first degree and gang assault in the first degree. He was subsequently sentenced, as a second violent felony offender, to concurrent terms of twenty years of incarceration, and five years of post-release supervision. Defendant took a direct appeal. In a decision issued October 2, 2009, the Appellate Division unanimously affirmed the judgment (People v Prescott, 66 AD3d 1357 [4th Dept 2009], lv denied 13 NY3d 909) —2 — By motion papers dated July 9, 2011, defendant filed a petition for a writ of error coram nobis. Defendant claimed that he was denied his right to effective assistance of counsel —— specifically, his right to conflict—free counsel. His petition was denied on September 30, 2011. —3 — POINT DEFENDANT’S PETITION FOR A WRIT OF ERROR CORAM NOBIS WAS PROPERLY DENIED. Defendant contends that the Appellate Division wrongly denied his petition for a writ of error coram nobis. In his petition, defendant argued that he was denied effective assistance of appellate counsel (see generally People v Baldi, 54 NY2d 137 [1981]). The record shows that defendant’s appellate counsel was at one point simultaneously representing his co—defendant and prosecution witness, Calvin Martin. This overlap in representation, defendant argues, deprived him of his right to conflict—free representation (see People v Gomberg, 38 NY2d 307 [1975]; People v Macerola, 47 NY2d 257 [1979]) . Because defendant has not met his “heavy burden” of showing that the conflict operated on his defense, or more precisely, his direct appeal, this court ought to affirm the order of the Appellate Division (People v Jordan, 83 NY2d 785, 787 [1994]). The People’s proof at trial included Martin’s testimony. Martin testified that he was with defendant, and his two co defendants, during the early morning hours of April 11, 2004. After they left a local nightclub and purchased sandwiches, they were approached by the victim, David Brown. Martin’s brother, —4 — Jermain, thought Brown had tried to reach into Calvin’s pocket; he punched Brown in the face. Brown fell to the ground and the four co-defendants began kicking and stomping on him. Calvin Martin watched defendant repeatedly stomp on Brown’s head (T4 69 - 84; numbers in parentheses preceded by T refer to pages of volume four of the trial transcript) In exchange for his testimony, Martin was permitted to plead guilty to one count of gang assault in the second degree (Penal Law § 120.06, 20.00) and one count of forgery in the third degree (Penal Law § 170.05) (T4 70). He was sentenced to a determinate term of ten years in prison, and five years of post— release supervision (AA 36; numbers in parentheses preceded by AA refer to pages of the appellant’s appendix) Martin was sentenced on August 31, 2005 (AA 17) . For that proceeding, and neither before nor since, he was represented by Thomas J. Eoannou, Esq.’(AA 17) . Eoannou did not represent Martin at the time of his guilty plea, nor during his testimony at defendant’s trial. Eoannou did not take a direct appeal on 1. It ought to be noted that defendant’s brief, on direct appeal, was authored and argued by Jeremy D. Schwartz, Esq., who was of counsel to Eoannou. Given their professional relationship, the People recognize that the potential for a finding of ineffectiveness remains (see generally People v Mattinson, 67 NY2d 462 [1986] ) —5 — Martin’s behalf, nor has he sought any variety of post-judgment relief. Defendant was sentenced on March 7, 2005. He filed a timely notice of appeal. By an order of the Appellate Division entered on August 5, 2005, Eoannou was assigned as appellate counsel (AA 48). Defendant’s direct appeal was perfected on February 23, 2009 (RA 1; numbers in parentheses preceded by RA refer to pages of the respondent’s appendix) -- three and one-half years after Martin’s sentencing. On appeal, appellate counsel argued that the verdict was against the weight of the evidence and that defendant was denied due process at sentencing. Central to his contention that the verdict was against the weight of the evidence was his less-than- favorable appraisal of Martin’s testimony. To establish a claim of ineffectiveness based upon conflict, defendant must show (1) the existence of a potential conflict, and (2) “that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest’ or that the conflict ‘operated on’ the representation” (emphasis added) (People v Harris, 99 NY2d 202, 210 [2002], quoting People v Ortiz, 76 NY2d 652, 657 [1990], quoting People v Alicea, 61 NY2d 23, 31 [1983]) —6 — Given the divergent interests of Martin and defendant, a potential conflict existed. This Court has observed that “a lawyer representing two clients whose interests actually conflict cannot give either client undivided loyalty” (Harris, at 210, quoting Ortiz, at 656) . Here, the record supports the determination that simultaneous representation occurred between August 5, 2005, when appellate counsel was assigned, and August 31, 2005, when Martin was sentenced. The record does not support the determination, however, that simultaneous representation lasted beyond this point. There is no indication on this record that appellate counsel appeared on Martin’s behalf in any court, in any capacity, for any purpose, after sentencing. As such, and given the three and one—half year gap between Martin’s sentencing and the perfection of defendant’s direct appeal, this Court ought to analyze defendant’s claim in the context of successive representation of co—defendants (see Jordan, at 787, 788, Alicea, 29 — 31) . It cannot be sensibly concluded that simultaneous representation occurred at any time critical to the prosecution of defendant’s direct appeal. It is not conceivable that three and one-half years would be required to author a 13-page brief. At a minimum, there is no record support for this proposition. —7 — Even in the context of successive representation, however, this Court has observed that a deprivation of effective assistance may still occur. In Alicea this Court noted that “a conflict of interests from an attorney’s successive representation of multiple defendants may support a finding of ineffective assistance of counsel where the defendants are not tried together” (61 NY2d, at 29) . There, counsel represented defendant at trial some three years after he had represented a co-defendant, who pleaded guilty and fled the jurisdiction pending sentencing (Id., at 29). This Court observed that even though counsel’s representation of the co—defendant appeared to have terminated, he, nevertheless, would have “a continuing duty to maintain any confidences or secrets he had gained in representing [defendant]” (Id., at 29, 30). Because the Alicea Court found, as the lower courts did, that the successive conflict did not “in fact affect the manner in which the attorney conducted defendant’s defense”, defendant was not entitled to a new trial (emphasis added) (Id., at 30, 31) Similarly, in Jordan, this Court rejected a claim of ineffectiveness based upon successive representation of defendant and his unindicted co-defendant (83 NY2d, at 786, 787) . The Jordan Court, like the Alicea Court, determined that because the conflict did not in fact affect or operate on the defense, there could be no —8 — finding of ineffectiveness (Id., at 787). This Court relied on the fact that defendant could only engage in “postmortem speculations that defense counsel’s trial representations of defendant appeared to be less than wholehearted” (Id., at 787) Moreover, the Alicea Court observed that, in the case of successive representation, “a Gomberg inquiry is generally not required” (Id., 787, 788). As such, this case is easily distinguished from People v Wandell (75 NY2d 951, 952 [1990]), which defendant relies upon heavily, where defense counsel represented defendant while also representing the prosecution’s primary witness in an unrelated civil mater. In his brief, defendant now argues that “any substantive argument against Appellant’s guilt on appeal would require a direct challenge to the truth of Martin’s testimony and the equivalent of an accusation that Martin had perjured himself at Appellant’s trial” CAB 7; numbers in parentheses preceded by AB refer to pages of the appellant’s brief). He is not wrong in this. For two reasons, however, defendant is wrong in asserting that the conflict actually operated on the prosecution of his direct appeal. First, the appellate record, and not any enduring duty to maintain Martin’s secrets and confidence, circumscribes counsel’s ability to attack Martin’s testimony as part of his weight of the evidence —9 — claim. Second, the content and tone of defendant’s weight of the evidence point vitiates -- quite resoundingly -- any notion that counsel was in fact acting under an on—going duty to Martin. The Appellate Division, like this Court, has consistently held that the parties on direct appeal are bound by the record (People v Hamilton, 96 AD3d 1518, 1220 [4th Dept 2012], lv denied 19 NY3d 997, citing People v Russell, 83 AD3d 1463 [4th Dept 2011], lv denied 17 NY3d 800; People v Gravino, 14 NY3d 546, 558 [2010]) When a defendant’s claims rely on facts outside the record, the proper vehicle is a motion pursuant to CPL article 440 (Id.). Even assuming that, by virtue of his brief representation, appellate counsel learned Martin’s secrets, and those secrets were favorable to defendant’s weight of the evidence claim, he could not make use of them unless they appeared on the record. Of course, if Martin’s secrets did appear on the record, they were no longer, strictly speaking, secrets —— in which case, counsel would no longer be obligated to maintain them. In either case, appellate counsel and the Appellate Division are bound by the record. The Alicea court’s concern (61 NY2d, at 29) -- that a continuing duty to maintain a former client’s confidences and secrets may compromise the representation of a current client with divergent interests -- does not exist in this case because appellate counsel must confine his arguments to the record. — 10 — In any event, if appellate counsel felt any continuing responsibility toward Martin, one would never be able to tell it from reading his brief. Appellate counsel accurately characterized Martin as “an accomplice with two prior convictions for robbery and attempted robbery” (RA 11) . Appellate counsel pointed out the presence of blood on Martin’s boots, which strongly suggested his culpability (RA 6, 11, 13) . Appellate counsel identified prior omissions and inconsistencies in Martin’s testimony (RA 11 - 13). He pointed out that Martin admitted lying under oath (RA 13) Appellate counsel characterized Matin’s testimony as “incredible” and argued that it “should be categorically rejected by this Court as without evidentiary value” (RA 13) . He encouraged the Appellate Division to employ the doctrine of falsus in uno, falsus in omnibus “with a heavy hand” regarding Martin’s testimony (RA 13) . And, appellate counsel concluded by saying that “Martin sang for his proverbial supper” (RA 13) . In short, the only point authored by appellate counsel regarding the verdict was devoted to pointing out Martin’s culpability and perceived dishonesty. In People v Perez (70 NY2d 773 [1987]), this Court rejected a claim of ineffectiveness based upon successive representation by the Legal Aid Society of a defendant and the People’s chief witness, whom that organization had recently represented. Significant to this Court’s analysis was the fact — 11 — that defense counsel vigorously cross—examined the former client, and attacked his credibility on summation (Id., at 774). As here, counsel’s zealous advocacy on behalf of defendant, and at the expense of his former client, foreclosed a finding that the conflict operated on the defense. This Court ought to affirm the order of the Appellate Division denying defendant’s petition for a writ of error coram nobis. — 12 — CONCLUS ION THE JUDGMENT OF CONVICTION SHOULD BE AFFIRMED IN EVERY RESPECT. Respectfully submitted, FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 w- /3. MATTHEW B. POWERS Assistant District Attorney Of Counsel November 9, 2012 — 13 —