The People, Appellant,v.Anner Rivera, Respondent.

Brief

N.Y.May 8, 2014

To be argued by: ADAM M. KOELSCH (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANNER RIVERA, Defendant-Respondent. Kings County Indictment Number 9921/2007 APL-2013-00175 APPELLANT'S REPLY BRIEF LEONARD JOBLOVE ADAM M. KOELSCH Assistant District Attorneys of Counsel Telephone: (718) 250-3823 Facsimile: (718) 250-1262 January 10, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES............................................i ARGUMENT - DEFENDANT’S ARGUMENT THAT A VIOLATION OF THE RIGHT TO BE PRESENT AT A CORE PROCEEDING CANNOT BE SUBSTANTIALLY CURED IS WITHOUT MERIT. DEFENDANT’S ARGUMENT THAT THE COURT VIOLATED THE NOTICE REQUIREMENT OF C.P.L. § 310.30 IS UNPRESERVED AND DOES NOT FALL WITHIN THE “MODE OF PROCEEDINGS” EXCEPTION TO THE PRESERVATION REQUIREMENT .................. 1 CONCLUSION - FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE’S MAIN BRIEF, THIS COURT SHOULD REVERSE THE ORDER OF THE APPELLATE DIVISION AND REMIT THE CASE TO THAT COURT FOR IT TO DECIDE WHETHER TO CONSIDER DEFENDANT’S CLAIM IN THE INTEREST OF JUSTICE .............. 19 i TABLE OF AUTHORITIES Pages CASES People v. Alcide, 21 N.Y.3d 687 (2013) ..................... 11, 17 People v. Bragle, 88 N.Y. 585 (1882) .......................... 6-7 People v. Kadarko, 14 N.Y.3d 426 (2010) ................ 7-9, 15-16 People v. Kelly, 5 N.Y.3d 116 (2005) ............................ 9 People v. Kisoon, 8 N.Y.3d 129 (2007) ................ 8, 11, 13-14 People v. Mehmedi, 69 N.Y.2d 759 (1987) ......................... 6 People v. Morales, 80 N.Y.2d 450 (1992) ...................... 3, 6 People v. O’Rama, 78 N.Y.2d 270 (1991) ................... 8, 10-13 People v. Rice, 75 N.Y.2d 929 (1990) ............................ 2 People v. Santiago, 52 N.Y.2d 865 (1981) ........................ 2 People v. Umali, 10 N.Y.3d 417 (2008), cert. denied, 556 U.S. 1110 (2009) ..................................... 5-6 People v. Young, 48 N.Y.2d 995 (1980) ........................... 2 Rushen v. Spain, 464 U.S. 114 (1983) ............................ 4 United States v. Frazier, 280 F.3d 835 (8th Cir. 2002) .......... 3 United States v. Triumph Capital Group, Inc., 487 F.3d 124 (2d Cir. 2007) ........................................... 4-6 STATUTES AND CONSTITUTIONAL PROVISIONS N.Y. Const. art. VI, § 3 ....................................... 10 C.P.L. § 310.30 ............................................. 10-11 C.P.L. § 470.05 ................................................ 10 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANNER RIVERA, Defendant-Respondent. Kings County Indictment Number 9921/2007 APPELLANT’S REPLY BRIEF ARGUMENT DEFENDANT’S ARGUMENT THAT A VIOLATION OF THE RIGHT TO BE PRESENT AT A CORE PROCEEDING CANNOT BE SUBSTANTIALLY CURED IS WITHOUT MERIT. DEFENDANT’S ARGUMENT THAT THE COURT VIOLATED THE NOTICE REQUIREMENT OF C.P.L. § 310.30 IS UNPRESERVED AND DOES NOT FALL WITHIN THE “MODE OF PROCEEDINGS” EXCEPTION TO THE PRESERVATION REQUIREMENT. A As the People have argued in their main brief, in light of the remedial steps taken by the trial court, any alleged violation of defendant’s right to be present during the court’s conversation with a deliberating juror was not a “mode of proceedings” error and does not require reversal of the conviction. In response, defendant argues that whenever a judge gives a supplemental legal instruction to a deliberating juror alone, without an explicit waiver by the defendant of his right to be present, “reversal will always be required, regardless of what ‘remedial’ steps the trial court subsequently tries to take” (Def. Brief at 46) (emphasis 2 added). In essence, defendant is arguing that, if a judge gives a supplemental legal instruction to a deliberating juror in the absence of the defendant, but then realizes that it was a mistake to have done so, the judge is compelled, in every such case (absent an explicit waiver by the defendant), to declare a mistrial, and no lesser remedy could ever suffice. That inflexible and unforgiving rule advocated by defendant -- that, once a judge inadvertently violates a defendant’s right to be present at a core proceeding, the judge will, in every such case, be utterly incapable of correcting the error by any remedy short of a mistrial -- should be rejected for three reasons. First, defendant’s position is contrary to the principle that, with rare exception, errors at trial can be adequately corrected without the judge having to resort to a mistrial, which is considered a “drastic” remedy. See People v. Rice, 75 N.Y.2d 929, 932-33 (1990) (trial court did not abuse discretion in denying “drastic remedy” of mistrial for inadvertent destruction of police tape of radio transmission); People v. Santiago, 52 N.Y.2d 865 (1981) (defendant’s motions for mistrial were properly denied, because any prejudice from brief mention of uncharged criminal activity was alleviated when court sustained defendant’s objections and took prompt curative action); People v. Young, 48 N.Y.2d 995, 996 (1980) (trial court did not err in denying defendant’s requests for mistrial based on peripheral references 3 to uncharged criminal act of defendant, in light of availability of “less drastic means” of alleviating any prejudice). Indeed, the rationale for the principle that a judge generally should be able to correct errors at trial without having to resort to a mistrial is the most compelling with respect to errors that occur during the jury’s deliberations, because, at that late stage of the trial, the waste of judicial resources that would result from an avoidable mistrial is the greatest. See United States v. Frazier, 280 F.3d 835, 851 (8th Cir. 2002) (district court properly denied motion for mistrial during jury deliberations; after lengthy trial, mistrial would have resulted in “a waste of judicial resources”). Second, defendant’s position is inconsistent with the settled principle that a violation of a defendant’s right to be present at a core proceeding of a trial may be de minimis, and therefore may not require reversal of the conviction, even when the trial court took no steps to remedy that violation. Given that some violations of the right to be present are sufficiently minor that they do not require reversal of the conviction, the employment of any remedial steps by the trial court should be considered in evaluating whether an alleged violation of the right to be present was de minimis, because any remedial steps may have mitigated the seriousness of the alleged violation of that right. See People v. Morales, 80 N.Y.2d 450, 457 n.2 (1992) (“a de minimis violation of the absolute right to be present at trial would not necessarily 4 result in reversal”); Rushen v. Spain, 464 U.S. 114, 130 (1983) (Stevens, J., concurring in the judgment) (“a very brief absence [of the defendant during the direct examination of prosecution witnesses] might be held a de minimis violation [of the right to be present at trial] and afford no basis for relief”). In an analogous context, the United States Court of Appeals for the Second Circuit has held that, when a trial court imposes a restriction on communication between the defendant and his attorney, curative steps taken by the court are relevant to a determination of whether the restriction on communication violated the defendant’s Sixth Amendment right to counsel. See United States v. Triumph Capital Group, Inc., 487 F.3d 124, 133-34, 137 (2d Cir. 2007). In that case, the trial court imposed an unjustified restriction on communication between the defendant and his attorney, and that restriction remained in place for three hours. Id. at 133-34. After the Government realized that the restriction might raise constitutional concerns, the court, “in an attempt to rectify the effects of the restriction,” gave the defendant time to discuss the case with his attorney. Id. at 128. In holding that the restriction on communication was “sufficiently insignificant that it d[id] not amount to a constitutional violation” (id. at 134), the Second Circuit explicitly relied in part on the fact that the trial court had taken the remedial step of giving the defendant and his attorney time to talk before the trial resumed. Id. at 133-34, 137. 5 Just as, in Triumph Capital, the trial court’s remedial step supported the conclusion that the unjustified restriction on communication between the defendant and his attorney was sufficiently insignificant that it did not require reversal of the conviction, so too, in this case, the trial court’s remedial steps support the conclusion that defendant’s absence during the court’s conversation with a deliberating juror was a de minimis violation of his right to be present and therefore does not require reversal of the conviction. See also People v. Umali, 10 N.Y.3d 417, 423- 24 (2008) (restriction on communication between defendant and attorney was insignificant and did not require reversal, where court rescinded restriction and time between objection to restriction and its withdrawal was no more than three hours [citing Triumph Capital]), cert. denied, 556 U.S. 1110 (2009). Moreover, contrary to defendant’s contention (Def. Brief at 39), an inquiry into whether a violation of the right to be present was de minimis is not an inquiry into whether that violation was harmless. An unconstitutional restriction on communication between a defendant and his attorney “defies harmless error analysis and requires automatic reversal” (Triumph Capital, 487 F.3d at 131 [quotation marks and citations omitted]), but an unjustified restriction on communication may still be found to be insignificant or trivial and therefore not require reversal. Id. at 134-35. Similarly, harmless error analysis does not apply to a violation of the right to be present at a core proceeding of 6 a trial (see People v. Mehmedi, 69 N.Y.2d 759, 760-61 [1987]), but a violation of that right may still be found to be de minimis and therefore not require reversal. And remedial steps, if any, that were taken by the trial court may render a violation of that right de minimis. See Triumph Capital, 487 F.3d at 133-34, 137; Umali, 10 N.Y.3d at 423-24. Defendant contends that “[t]here can . . . be no after-the- fact cure for being deprived of the right to witness core proceedings,” because even offering to read a verbatim record of a conversation between the judge and a juror is not the same as allowing the defendant “to witness the exchange as it occurred” (Def. Brief at 41-42) (emphasis in original). But the fact that some violations of the right to be present at a core proceeding are de minimis and therefore do not require reversal means that reversal may not be required even when the defendant did not “witness” the core proceeding. Indeed, in People v. Bragle, 88 N.Y. 585 (1882), this Court held that the defendant’s absence from the courtroom for five minutes during cross-examination of a witness -- which, like the giving of instructions to a deliberating juror, was certainly a core proceeding of the trial -- did not require reversal. Id. at 589-90. Thus, just as a defendant has an absolute right to be present during the examination of a witness, but his absence during that proceeding may be a de minimis violation of that right and therefore not require reversal (see id.; Morales, 80 N.Y.2d at 457 n.2), so too 7 a defendant has an absolute right to be present when the judge gives instructions to a juror, but the defendant’s absence during that proceeding may be a de minimis violation of that right and therefore not require reversal. In determining whether the defendant’s absence during a core proceeding was a de minimis violation of his right to be present, there is no reason why any remedial steps that were taken by the trial court should not be considered, notwithstanding that, despite those remedial steps -- as in any case of a de minimis violation of the right to be present -- the defendant will not have actually witnessed the proceeding that occurred in his absence. A third reason to reject defendant’s position -- that, if a judge gives a supplemental legal instruction to a deliberating juror in the absence of the defendant, then, without an explicit waiver by the defendant, the court can never correct the error by means of any remedy short of a mistrial -- is that defendant’s position rests on the premise that “this Court has never held that mode of proceedings error can be ‘cured’” (Def. Brief at 34), but that premise is incorrect. As the People have argued in their main brief (see People’s Main Brief at 25-26), this Court, in People v. Kadarko, 14 N.Y.3d 426 (2010), apparently held that the trial court had sufficiently remedied an error that, but for the trial court’s remedial step, would otherwise have constituted a mode of proceedings error. In Kadarko, the trial court informed counsel of the content of a note in which the jury reported a 8 deadlock, but the court explicitly declined to inform counsel, before the court gave the jury an instruction in response to the note, of the numerical breakdown of the votes reported in the note. Id. at 428. The trial court “later corrected itself” by showing counsel the note after the jury instruction had been given and deliberations had resumed. Id. at 428, 429-30. Defendant contends that, in Kadarko, “this Court held that the trial court never committed a mode of proceedings error in the first place because, even before the full note was revealed, counsel had ‘meaningful notice of [its] contents’ and ‘an opportunity to respond’” (Def. Brief at 35) (emphasis in original; quoting Kadarko, 14 N.Y.3d at 429). Defendant’s reading of Kadarko is incorrect, because, if the trial court in Kadarko had never revealed (or offered to reveal) the full content of the note to defense counsel, then, in light of this Court’s decisions in People v. O’Rama, 78 N.Y.2d 270 (1991), and People v. Kisoon, 8 N.Y.3d 129 (2007), the withholding of the numerical breakdown of the jurors’ votes in Kadarko plainly would have constituted a mode of proceedings error. See O’Rama, 78 N.Y.2d at 275-80 & n.2 (trial court committed mode of proceedings error by refusing to reveal to defense counsel numerical vote reported by jury in deadlock note); Kisoon, 8 N.Y.3d at 132-35 (mode of proceedings error where trial court failed to inform defense counsel that deadlock note included numerical vote reported by jury). 9 Thus, in Kadarko, the only reason that the trial court’s error under C.P.L. § 310.30 -- namely, the failure to give counsel notice of the actual content of the note (or to offer to give counsel that notice) before the court gave its instruction in response to that note -- was not a mode of proceedings error, is that the court “later corrected itself” by showing counsel the note after the jury instruction had been given and deliberations had resumed. See Kadarko, 14 N.Y.3d at 429-30. Consequently, contrary to defendant’s contention, Kadarko does indeed stand for the proposition that an error that would otherwise constitute a mode of proceedings error may be removed from that category by the trial court’s remedial measures. And, in any event, regardless of whether this Court held as much in Kadarko, that decision poses no bar to this Court’s holding, in this case, that the trial court’s remedial measures removed from the category of mode of proceedings error, and rendered de minimis, the alleged violation of defendant’s right to be present during the court’s conversation with a deliberating juror. Similarly, defendant’s reliance on this Court’s characterization of a mode of proceedings error as one that renders the entire trial “irreparably tainted” (Def. Brief at 34) (quoting People v. Kelly, 5 N.Y.3d 116, 119-20 [2005]) is misplaced. A fair reading of that language in Kelly is not that a trial court is invariably incapable of correcting or mitigating a mode of proceedings error, but rather that, if such an error is 10 not corrected, then, even without a specific showing of prejudice, the error is presumed to have tainted the trial and is deemed to be “inherently prejudicial.” See O’Rama, 78 N.Y.2d at 280. B Defendant also claims, for the first time, that the trial court violated the notice requirement of C.P.L. § 310.30 by failing to give defense counsel notice of the specific content of the juror’s request before a response was given (Def. Brief at 42- 44). At the trial, however, defendant did not object at all to the adequacy of the notice to counsel of the juror’s request (see 586-88).1 Consequently, the claim is unpreserved for appellate review and beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Moreover, contrary to defendant’s suggestion, the alleged violation of the notice requirement of C.P.L. § 310.30 does not fall within the exception to the preservation requirement for “mode of proceedings” errors. The procedure to be followed when a court responds to a deliberating jury’s request for further instruction on the law is set forth in C.P.L. § 310.30. That statute provides, in relevant part: At any time during its deliberation, the jury may request the court for further instruction or information 1 Numbers in parentheses refer to pages of the trial transcript, which is included in the appendix under the same page numbers. 11 with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. (Emphasis added). “[T]he trial court’s core responsibility under [C.P.L. § 310.30] is both to give meaningful notice to counsel of the specific content of the jurors’ request -- in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response -- and to provide a meaningful response to the jury.” People v. Kisoon, 8 N.Y.3d 129, 134 (2007) (citing People v. O’Rama, 78 N.Y.2d 270, 277 [1991]). However, the point of C.P.L. § 310.30 is “not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response.” O’Rama, 78 N.Y.2d at 278, quoted in People v. Alcide, 21 N.Y.3d 687, 692 (2013). Here, the court notified defense counsel about the content of the conversation in the robing room immediately after that conversation had occurred and offered to read back the record of the conversation. But defense counsel did not object to the court’s discussion with the juror, did not request a readback of that discussion, and did not request that any further instruction 12 be given. Thus, although the court did not provide defense counsel with an opportunity to suggest a response to the juror’s question before the court gave its response, the court did give defense counsel an opportunity to hear a verbatim account of the juror’s question, and to provide input regarding the court’s response, at a time when any error in the court’s response could have been corrected or any appropriate further instruction could have been given. Consequently, the remedial steps taken by the trial court adequately cured any violation of the notice requirement of C.P.L. § 310.30 so as to remove the error from the “mode of proceedings” exception to the preservation requirement. Defendant argues that the trial court violated the notice requirement of C.P.L. § 310.30 -- and apparently argues that the court thereby committed a “mode of proceedings” error -- because the court failed to provide notice to defense counsel, before the court gave its response, of the specific content of the juror’s request (Def. Brief at 42-44). But insofar as the court erred by failing to comply with the notice requirement of C.P.L. § 310.30, the court did not commit a mode of proceedings error. This case is distinguishable from cases in which this Court has held that the trial court committed a mode of proceedings error by violating the notice requirement of C.P.L. § 310.30. In People v. O’Rama, 78 N.Y.2d 270 (1991), during deliberations, a juror sent the trial court a detailed note describing what the juror perceived to be a hopeless deadlock. 13 Id. at 275 & n.2. The court brought the jury and counsel back into the courtroom, declined to read the note aloud, summarized the note by stating merely that the note “indicates that there are continued disagreements among the jurors,” and then delivered an Allen charge. Id. at 275. When the jury left the courtroom, the court stated that it was withholding the precise contents of the juror’s note because “it indicate[d w]hat the present posture is as far as votes.” Id. (brackets in O’Rama). The court refused defense counsel’s specific request for disclosure of the note’s contents. Id. This Court held that the trial court had violated C.P.L. § 310.30, and had committed a mode of proceedings error, because counsel was not afforded a verbatim account of the juror’s communication and was therefore deprived of an advance opportunity to suggest a response. Id. at 278-79. In People v. Kisoon, 8 N.Y.3d 129 (2007), the jury submitted a note to the court that read: “We took a vote. We are not unanimous. We are 10 guilty to 2 not guilty on all three counts. Furthermore, we believe that further deliberations will not change our decision.” Id. at 132. The court summarized the note to the parties, outside of the presence of the jury, stating, “The jury has sent the Court a note saying that further deliberations are hopeless, that they are hopelessly deadlocked.” Id. When the jurors were present in the courtroom, the court announced: “The jury sent the Judge a note, ‘We believe that further deliberation will not change our decision, 3:25 p.m.’” Id. Thereafter, the 14 court instructed the jury to take their responsibility seriously and to continue deliberations. Id. Defense counsel had neither asked to see the note nor objected to the supplemental charge. Id. This Court held that “failure to read the note verbatim deprived counsel of the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response.” Id. at 135. This Court stated that, if the trial court had read the note verbatim, including the jury vote count, “[c]ounsel might have requested, for example, an Allen charge stressing the importance of individual jurors not surrendering conscientiously held views merely for the purpose of returning a verdict.” Id. This case is distinguishable from both O’Rama and Kisoon. First, in both O’Rama and Kisoon, the trial court never offered to read the jury note verbatim to defense counsel or offered to allow defense counsel to read the note himself. In this case, by contrast, the court expressly offered to defense counsel, twice, an opportunity to hear a readback of a verbatim account of the discussion with the juror. Therefore, in this case, unlike in O’Rama and Kisoon, the court gave counsel an opportunity to know the full contents of the discussion at a time when he could have offered some input about how to reinstruct the jury. Indeed, in O’Rama, the trial court specifically refused to read the note aloud and refused to allow defense counsel to read the note. 15 Second, in Kisoon, the trial court not only failed to provide defense counsel with notice of the complete contents of the jury note, but also failed to inform counsel that the court’s notice of the contents of the note was incomplete. Although it was evident that the court had only summarized the jury note when the court discussed the note with the parties outside the presence of the jury, the court’s rendition of the note in the presence of the jury appeared to have been a verbatim reading. Therefore, in Kisoon, defense counsel was not clearly informed that the court had not read the note in its entirety. In this case, by contrast, defense counsel was effectively informed that the trial court did not give a verbatim account of its discussion with the juror. It was evident that the court’s account of its discussion with the juror was not a verbatim account, because the court was not purporting to read from a juror’s note, but instead was recounting an oral discussion between the court and the juror. Indeed, unlike in Kisoon, the fact that the court offered defense counsel to have the record of the discussion read back to him verbatim, notified counsel that the account that the court had given was not verbatim. This case is similar to People v. Kadarko, 14 N.Y.3d 426 (2010). In Kadarko, the jury sent a note stating that it was divided regarding certain robbery counts, and listing the specific date of each robbery and the jury vote as to each count. Id. at 428. The trial court, outside the presence of the jury, explained 16 the note’s contents to counsel, but declined to show counsel the vote count because the court believed it was inappropriate to do so. Id. The court stated that the note gave divisions among the jurors as to each robbery and date, that there were three different divisions of votes, and that the note did not indicate whether the majority of the jury was voting to convict or acquit. Id. Neither party objected to the court withholding the specific numbers of the jury vote count, but defense counsel asked the court to declare a mistrial, which was denied. Id. The court then stated, without objection, that it was going to give the jury another Allen charge and that the court would show counsel the entire note afterwards. Id. Following the Allen charge and after jury deliberations resumed, the court showed counsel the note with the number divisions. Id. There was no further discussion or objection. Id. This Court held that, because the trial court “later corrected itself” by showing defense counsel the note after the jury instruction had been given and after jury deliberations had resumed, the court’s procedure may have been error under C.P.L. § 310.30, but it was not a “mode of proceedings” error. Id. at 429-30. Similarly, in this case, defense counsel knew that the court’s account of its discussion with the juror was not verbatim, and counsel was therefore on notice that the information conveyed by the court was incomplete. Furthermore, in this case, the 17 court, subsequent to the discussion with the juror, offered to have the court reporter read to defense counsel a verbatim account of the juror’s question. Therefore, although the court did not provide defense counsel with notice of the juror’s inquiry before the court gave its response, counsel was explicitly offered an opportunity to be informed of the verbatim content of the juror’s question immediately after the court gave its response. Thus, the court gave defense counsel an opportunity to provide input regarding the court’s response at a time when any error in that response could have been corrected or any appropriate further instruction could have been given. Consequently, in this case, as in Kadarko, any violation of the notice requirement of C.P.L. § 310.30 did not constitute a “mode of proceedings” error. Indeed, in this case, defense counsel was offered a verbatim account of the juror’s conversation with the court before the jury resumed its deliberations (which had already been suspended when the jury was released for the day), while in Kadarko, the court withheld from defense counsel the numerical vote counts until after the jury had already resumed its deliberations. Therefore, it is even clearer in this case than it was in Kadarko that the timing of the notice to defense counsel regarding the content of the communication from the juror did not constitute a mode of proceedings error. See also Alcide, 21 N.Y.3d at 694-96 (any error in court’s participation in 18 readback of testimony “is not of the mode of proceedings variety”). Accordingly, for the reasons stated above and for the reasons set forth in the People’s main brief, this Court should reverse the Appellate Division’s order and remit the case to the Appellate Division for that court to decide whether to consider defendant’s claim in the interest of justice. 19 CONCLUSION FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE’S MAIN BRIEF, THIS COURT SHOULD REVERSE THE ORDER OF THE APPELLATE DIVISION AND REMIT THE CASE TO THAT COURT FOR IT TO DECIDE WHETHER TO CONSIDER DEFENDANT’S CLAIM IN THE INTEREST OF JUSTICE. Dated: Brooklyn, New York January 10, 2014 Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County LEONARD JOBLOVE ADAM M. KOELSCH Assistant District Attorneys of Counsel