The People, Respondent,v.Ricardo Ricketts, Appellant.BriefN.Y.September 7, 2016DISTRICT ATTORNEY KINGS COUNTY 350 JAY STREET BROOKLYn NY 11201-2908 (718) 250-2000 W\VW.BROOKLYNDA.ORG Kenneth P. Thompson District Attorney Michael L. .Brenner Assistant District Attorney Honorable Janet DiFiore Chief Judge of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 June 14, 2016 Re: People v. Ricardo Ricketts APL-2016-00009 Kings County Indictment Number 6427/2009 Submission pursuant to Rule 500.11 Dear Chief Judge DiFiore: Defendant Ricardo Ricketts appeals from a February 18, 2015 order of the Appellate Division, Second Department. People v. Ricketts, 125 A.D.3d 893 (2d Dep't), leave granted, 26 N.Y.3d 1091 (2015) (Lippman, C.J.). That order affirmed a judgment of the Supreme Court, Kings County, rendered on January 26, 2012 (as amended on February 8, 2012), convicting defendant, after a trial, of one count each of Criminal Sale of a Controlled Substance in the Fourth Degree (P.L. § 220.34[5]), Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220. 03), Resisting Arrest (P.L. § 205.30), and Obstructing Governmental Administration in the Second Degree ( p. L. § 195.05), and sentencing him to concurrent terms of People v. Ricardo Ricketts June 14, 2016 imprisonment of eight years (plus three years of post-release supervision) on the conviction of criminal sale of a controlled substance, and one year on each of the other convictions (Ingram, J., at trial and sentence) . The People do not oppose summary treatment of this case under Rule 500.11. STATEMENT OF FACTS The Crimes On July 15, 2009, in the vicinity of Georgia and Livonia Avenues in Brooklyn, an undercover police officer (hereinafter referred to as "UC 62") saw defendant sell clonazepam, a controlled substance, to another person. Defendant then sold a methadone pill to UC 62 in exchange for twenty dollars of pre- recorded buy money. When the police attempted to apprehend defendant, defendant ran away, and then, once the police caught him, defendant flailed his arms and punched at the police officers as they were attempting to place him in handcuffs. Defendant's struggle with police caused Detective Peter Nangle to fall and to injure his knee. The pre-recorded buy money was recovered from defendant's pants pocket. After defendant was placed in a prisoner van, he attempted to escape from the van through the back door, and he struggled with the police officer who stopped him. 2 People v. Ricardo Ricketts June 14, 2016 For these crimes, defendant was charged, under Kings County Indictment Number 6427/2009, with one count of Criminal Sale of a Controlled Substance in the Fourth Degree (P.L. § 220.34[5]), two counts of Criminal Sale of a Controlled Substance in the Fifth Degree (P.L. § 220.31), two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03), one count of Assault in the Second Degree ( P. L. § 120.05 [3] ) , one count of Assault in the Third Degree (P.L. § 120.00[1]), two counts of Resisting Arrest (P.L. § 205.30), two counts of Obstructing Governmental Administration in the Second Degree ( P. L. § 195. 05) , one count of Attempted Escape in the Second Degree (P.L. §§ 110.00/205.10[2]), and one count of Attempted Escape in the Third Degree (P.L. §§ 110.00/205.05). The Anonymity Issue After UC 62 was sworn in, but right before he began his testimony, defense counsel asked to approach the bench (51) . 1 Defense counsel did not provide the reason that he wished to approach. An unrecorded discussion ensued. The court asked the jurors to step out (51-52). The court then asked UC 62: "Undercover, do you have a concern for your safety if you 1 Unless otherwise noted, all citations are to pages of the trial transcript. Citations to testimony are preceded by witness names. 3 People v. Ricardo Ricketts June 14, 2016 testify in open court by name, if you gave your name?" (52). UC 62 answered, "I do" (52). The court made the following record: (53-54). [T] he record shall reflect two issues. One, the Court raised the issue with the People as to whether or not the undercover would testify giving his name. The People have not asked for a courtroom closure, [and] have not asked for a Hinton hearing. So because of that, I was concerned about the witness testifying. And we did have a bench conference. Mr. Klein has said, Judge, the same thing, since he's testifying in open court and we haven't asked for the court to be closed, why can't his name be given. I basically said the DA said that they believe the officer, the undercover, may be concerned about his safety, and that he would probably not want to testify giving his name. I basically then directed the DA's to confer with the witness. The witness did confirm that he did not wish his name to be given because he was concerned for his safety. As the witness was walking out of the courtroom, in abundance of caution, and not in any way to question what the DA' s did, but I did inquire so it's on the record that the witness has expressed his desire to testify anonymously under his undercover name and not give his name because he was concerned about his safety. The court ruled that UC 62 was entitled to testify anonymously because he exhibited a "justifiable fear of his personal safety," which "constitutes a sufficiently cognizable interest of the state" (53). The court cited as a basis for its 4 People v. Ricardo Ricketts June 14, 2016 ruling People v. Remgifo, 150 A.D.2d 736 (2d Dep't 1989) -- a case in which the Appellate Division affirmed that a witness's justifiable fear for personal safety constituted a sufficiently cognizable interest for the purpose of permitting the witness to testify anonymously. The court then noted that the burden of establishing the materiality of the witness's name "is shifted to the defendant," and the court found that defendant had failed to establish that the undercover officer's name "was material in any way to the issues raised at the trial" (53). After the court ruled that UC 62 would be permitted to testify anonymously, the court noted that defense counsel had asked the court to ask the People whether UC 62 had been "in any way involved with Brooklyn South" or if UC 62 been accused of "impropriety" (54) . The court ruled that defense counsel had a basis for inquiring of the People as to whether the undercover officer "was in any way ever disciplined for integrity matters or whether he was part of Brooklyn South," a unit in which there had been "serious integrity issues" (54). The court asked defense counsel whether that was "what you wish to know," and defense counsel answered "Yes," and he also asked that, in the event that UC 62 had been "investigated for any improprieties," the court "look into it in-camera" (54). The prosecutor reported to the court that UC 62 had never been investigated for 5 People v. Ricardo Ricketts June 14, 2016 any impropriety and had never been a member of Brooklyn South (55) . Defense counsel did not object to the court's ruling permitting UC 62 to testify anonymously. Defense counsel also did not object to the court's remedy of permitting inquiry into whether UC 62 had been a member of Brooklyn South, and whether UC 62 had been disciplined or investigated. The Trial The People's Case On July 15, 2009, at about 7:40 a.m., UC 62, who was an undercover police officer with six years of experience as an undercover officer, and undercover officer 74 (hereinafter referred to as "UC 74"), a police officer with four years of experience, were in the vicinity of Georgia and Livonia Avenues in the East New York section of Brooklyn, conducting a "buy" operation near a methadone clinic (UC 62: 57, 59, 62, 67, 74; UC 74: 112, 127; People's Exs. lA, lB [photographs of the corner of ' Georgia and Livonia Avenues], 4 [map of Georgia and Livonia Avenues]). UC 62 was assigned to be the primary undercover, with the responsibility of purchasing drugs, and UC 74 was assigned to be the "ghost" undercover, with the responsibilities of protecting UC 62 and serving as the "eyes and ears for the field team" by giving the team a "play by play" account of what 6 People v. Ricardo Ricketts June 14, 2016 was occurring and describing subjects and locations to the field team using a point-to-point radio (UC 62: 59; UC 74: 113-15). The field team included Detectives PETER NANGLE, WILLIE JOHNSON, and SEKOU BOURNE (Nangle: 206, 210; Johnson: 284; Bourne: 309). After UC 62 left his unmarked car, he saw defendant talking with Nicolosi Gillespie (UC 62: 57, 62, 64-65, 90; People's Ex. 2 [photograph of defendant], 3 [photograph of Gillespie]) . UC 62 saw Gillespie hand money to defendant, saw defendant give a white pill to Gillespie, and then saw defendant and Gillespie ftpart[] ways" (UC 62: 65, 89). UC 62 then approached defendant, and asked defendant if 6 anybody was working," by which UC 62 was asking whether anyone was selling drugs (UC 62: 66, 69; UC 74: 118-19; People's Ex. 2) . UC 62 saw that defendant was a black male, and that defendant was wearing a black t-shirt, blue jeans, and white and blue sneakers (UC 62: 67; People's Ex. 2). Defendant responded that he had ftmeth pills" and he asked UC 62 how many pills he needed (UC 62: 70). UC 62 told defendant that he needed four pills (UC 62: 70). Defendant took four small white methadone pills from his left front pocket and handed them to UC 62 (UC 62: 70, 71, 92; BERNADINE LOPEZ: 360; People's Ex. 5 [methadone purchased from defendant by UC 62]). 7 People v. Ricardo Ricketts June 14, 2016 At that point, an unidentified Hispanic man walked over to where UC 62 and defendant were standing and had a conversation with defendant (UC 62: 70). Defendant told the man that he had "a bottle with 100 pills• and that he was prepared to sell the bottle for $400 (UC 62: 70). Defendant told the man that this was a good price because the man could then sell the pills individually for $5 apiece, and make a profit (UC 62: 70, 92) . The man told defendant that they would "talk later about it,• and left defendant with UC 62 (UC 62: 70). After defendant finished his conversation with the unidentified man, UC 62 handed defendant $20 of pre-recorded buy money, and defendant told UC 62 to "come back• if UC 62 needed anything (UC 62: 71) . UC 62 left the location, and made a "positive buy signal• to UC 74 (UC 62: 71; UC 74: 124, 139). UC 74 radioed to the field team that UC 62 had bought drugs (UC 74: 124, 139). UC 7 4 also gave a description of defendant as a black male, 20 to 35 years old, approximately five foot six to five foot ten inches in height, 130 or 140 pounds, wearing a black t-shirt, blue jeans, and white sneakers, and standing at the corner of Georgia and Livonia Avenues (Nangle: 212; Johnson: 286) . Detectives Nangle and Johnson responded to UC 7 4 • s radio communication by driving their cars to the corner of Georgia and 8 People v. Ricardo Ricketts June 14, 2016 Livonia Avenues (Nangle: 217; Johnson: 286-87). Detective Nangle saw defendant walking toward the corner of Sheffield and Livonia Avenues (Nangle: 216). As soon as Detective Johnson, who was in plain clothes, saw defendant, he got out of his car, pulled out his detective shield, identified himself as a police officer, and approached defendant (Johnson: 28 5' 28 7) . Defendant began to "backpedal" and "yell [ ed] no, no." Defendant then ran down Sheffield Avenue toward Riverdale Avenue, and Detective Johnson gave chase (Johnson: 289). Detective Nangle got out of his vehicle and, along with Detective Johnson, began chasing defendant down Sheffield Avenue toward Riverdale Avenue, eventually catching up with him (Nangle: 217-18; Johnson: 289; People's Ex. 4). When Detective Nangle caught up to defendant, he grabbed defendant by the shirt and tried to tackle him (Nangle: 221; Johnson: 289). As Detective Nangle grabbed defendant, defendant smarted kicking and punching Detective Nangle and flailing his arms (Nangle: 221-22; Johnson: 289, 298). As Detective Nangle held on to defendant, both men fell to the ground, and Detective Johnson "tackle[d]" defendant to hold him down, and also fell to the ground (Nangle: 221; Johnson: 291). Detective Nangle's fall caused his knee to hit the concrete ground (Nangle: 222; Johnson: 293). As a result of the fall, Detective Nangle's knee 9 People v. Ricardo Ricketts June 14, 2016 was "cut up," swollen, and red, and he walked with a slight limp (Johnson: 293). Detective Nangle later received treatment for his knee at Jamaica Hospital, was in pain for a couple of days, and was still experiencing occasional pain in his knee at the time of the trial (Nangle: 222-23, 278). After placing handcuffs on defendant, Detective Nangle searched defendant and recovered the $20 of pre-recorded buy money, commingled with $238 in cash that was not pre-recorded, from defendant's pants pocket (Nangle: 224-26; Johnson: 292; People's Exs. 10 [pre-recorded buy money recovered from defendant], 11 [$238 recovered from defendant)). The $238 was comprised of one $100 bill, six $20 bills, one $10 bill, one $5 bill, and three $1 bills (Nangle: 226). Approximately two to three minutes after Detective Nangle arrested defendant, UC 62 and UC 74 identified defendant as the person who sold methadone to UC 62 (UC 62: 76; UC 74: 127; Nangle: 272). Approximately five minutes after defendant was arrested, Detective Nangle arrested Nicolosi Gillespie at the corner of Georgia and Livonia Avenues (Nangle: 232, 248). Detective Nangle recovered one clonazepam pill from Gillespie's hand 10 People v. Ricardo Ricketts June 14, 2016 (Nangle: 233, 253, 256; CINDY BAKER: 345, 348; People's Ex. 5). 2 After defendant's arrest, Detective Bourne placed defendant in last row of the prisoner transport van, the row closest to the van's rear door (Bourne: 309, 311, 319-20, 322). At approximately 8: 30 a.m., Detective Bourne stopped the van at Burger King to pick up breakfast, and he parked the van in the vicinity of Livonia and Ashford Avenues to eat (Bourne: 311; People's Ex. 13 [photograph of corner of Livonia and Ashford Avenues]). While Detective Bourne was eating, defendant "started becoming irate within the van" and began kicking the side window with his right leg, yelling that Detective Bourne was "not going to eat no F' ing French toast sticks in front of me" (Bourne: 311-12). Detective Bourne got out of the van and went to open the rear door so that he could stop defendant before defendant broke the window (Bourne: 312). When he opened the rear door of the van, Detective Bourne saw that defendant had slipped through his handcuffs so that defendant's handcuffs were in front of his body (Bourne: 312, 324). Defendant leapt out of the back of the 2 Cindy Baker was the criminalist in the controlled substance analysis unit of the New York City Police Department laboratory who tested the pill that Detective Nangle recovered from Nicolosi Gillespie (Baker: 339, 345, 348). 11 People v. Ricardo Ricketts June 14, 2016 van, landing on top of Detective Bourne and sending both to the ground (Bourne: 313). Detective Bourne struggled with defendant, trying to restrain defendant so that he would not escape (Bourne: 313) . Detective Bourne had to physically place defendant back inside of the van (Bourne: 325-26). On April 11 1 2011, after testifying at a pretrial hearing for this case, Detective Nangle was standing outside of a courtroom >-Jith Detective Bourne (Nangle: 234-35; Bourne: 315) . At that time, defendant exited the courtroom with a woman, walked to the elevator bank, turned around, walked back to where the officers were standing, and began speaking to the detectives (Nangle: 235;. Bourne : 315; People's Ex. 12 [security video of defendant walking out of the courtroom, walking to the elevator, stopping, turning around, and talking to the detectives)). Defendant told the detectives , "[Y] ou guys know I'm not a drug dealer. I just gave you those things" (Nangle: 235). Defendant spoke to the detectives for a minute to a minute and a half (Nangle: 235, 239). On June 24, 2011, at 9:11 a.m., while incarcerated on Riker's Island, defendant placed a call to a woman named Linette at IIIII 111111111 (JOSETTE McLEAN: 156, 158 ; Peopl e's Ex. 78 12 People v. Ricardo Ricketts June 14, 2016 [compact disc of redacted telephone call]). 3 A recording of an excerpt of that call was entered into evidence and played. During that portion of the call, defendant asked Linette, who referred to defendant as "Ant," to bring him a "dub" and told Linette that "That's why I be selling drugs" and "[w]hy [do] you think I was doing what I was doing?" (McLean: 160; People's Ex. 7B). Both Detectives Nangle and Bourne were able to recognize the voice on the recording as defendant's voice from their encounter with defendant outside of the courtroom on April 11, 2011 (Nangle: 242-43; Bourne: 318) . 4 Defendant's Case Defendant, RICARDO RICKETTS, testified on his own behalf. Defendant testified that on July 15, 2009, at approximately 7:40 a.m., he was at the corner of Alabama and Livonia Avenues, waiting for the methadone clinic to open (Ricketts: 397, 447-48; People's Exs. lA, lB). Defendant said that he was there because. he was "an addict" and that he wanted to enter a drug treatment 3 Josette McLean was an employee of the Department of Correction responsible for responding to requests for recordings of inmate telephone calls by making copies of recordings of those calls, and sending them to the District Attorney's Office (McLean: 147-48). 4 At the conclusion of dismissed the assault charges evidence (369, 389). the People's case, the court for legal insufficiency of the 13 People v. Ricardo Ricketts June 14, 2016 program (Ricketts: 397) . Defendant had also been in the JCap and Samaritan Village drug programs (Ricketts: 448). Defendant testified that while he was standing at the corner of Alabama and Livonia Avenues, Nicolosi Gillespie approached defendant, asked if defendant wanted to purchase methadone, and told defendant the price for the pills was $10 (Ricketts: 398, 443-44; People's Ex. 3). Defendant admitted that he purchased six pills from Gillespie for $50, and that he took one of the pills (Ricketts: 398, 483). According to defendant, about two minutes later, he saw Gillespie speaking to UC 62 in Spanish. UC 62 looked at defendant, and Gillespie looked at defendant and gave him "a confirmatory head shake" (Ricketts: 399). Defendant testified that a few seconds later, UC 62 walked over to defendant and asked defendant to sell UC 62 "one of those pills" that Gillespie had just sold to defendant (Ricketts: 400, 445, 484). Defendant testified that he told UC 62 that he did not sell pills, and asked UC 62 why he had asked defendant to sell him the pills. Defendant said that UC 62 told defendant that Gillespie had sent UC 62 over to defendant. Defendant claimed that he again told UC 62 that he did not sell pills, and that he only used pills (Ricketts: 400). 14 People v. Ricardo Ricketts June 14, 2016 Defendant testified that UC 62, who defendant asserted was " [ s] weating, eyes watery, nose running" and "dingy," claimed that he was "sick," that he was "on E right now," and that he had "almost caught the runs in [UC 62's] car" (Ricketts: 401). Defendant testified that he told UC 62 that he was "in front of the right spot" because there was a drug program where UC 62 could get pills if he wanted them (Ricketts: 401). Defendant testified that UC 62 told him that he needed pills immediately, and that defendant told UC 62 there was nothing defendant could do (Ricketts: 401). Defendant testified that UC 62 asked him why defendant was standing in that location (Ricketts: 401). Defendant testified that he told UC 62 that defendant was there for both "the regular program" and the "methadone program," and that he had Medicaid (Ricketts: 401). According to defendant, UC 62 told him that UC 62 went to the drug program "every day" and that if defendant gave him a pill, UC 62 would give the pill back to defendant when the drug program opened (Ricketts: 401-02). Defendant testified that he told UC 62 that he did not know UC 62, and testified that UC 62 again said that he was "sick" (Ricketts: 402). Defendant claimed that he nevertheless took UC 62's request "into consideration" and asked UC 62 when defendant would "get his medication" from UC 62 in return (Ricketts: 403). Defendant 15 People v. Ricardo Ricketts June 14, 2016 asserted that UC 62 told him that UC 62 would get his medication as soon as the program opened because he was there for "medication" only, and not there for the "program," but that defendant would have to wait longer because defendant was in the program (Ricketts: 404). Defendant testified that he "thought about it" and admitted that he gave UC 62 a pill (Ricketts: 404, 445, 453, 485). Defendant testified that UC 62 thanked him and asked defendant's name. Defendant replied that his name was "Ant" or "Black" (Ricketts: 404) . Defendant testified that he had "never sold drugs a day in my life," but admitted that he exchanged drugs for other items, and that he had done so "probably like three or four times" for food and telephone calls while on Riker's Island (Ricketts: 475, 478-79, 502-03). Defendant testified that UC 62 then asked if defendant had another cigarette (Ricketts: 4 05) . Defendant testified that he suggested that he and UC 62 walk to a nearby store, and testified that UC 62 offered to pay for a pack of cigarettes (Ricketts: 405). Defendant said that on the way to the store, UC 62 stopped and told defendant that he had to "go back" because he had left his keys in his car and that his car window was open. Defendant claimed that UC 62 gave defendant $20 and told defendant to go to the store and buy UC 62 a ginger ale and 16 People v. Ricardo Ricketts June 14, 2016 a pack of Newport cigarettes (Ricketts: 405, 453, 455, 485-86). Defendant testified that he put the money in his pocket and continued to walk toward the store (Ricketts: 406). On cross- examination, defendant asserted that UC 62 had "tricked" defendant into taking UC 62's money (Ricketts: 455). Defendant testified that as he walked to the store, before he reached the corner of Georgia and Livonia Avenues, the police came, drew their guns, and told defendant to freeze (Ricketts: 406, 441). Defendant testified that he put up his hands and that he allowed the police to place him in handcuffs (Ricketts: 406, 465-66). Defendant denied flailing his arms and punching at the police (Ricketts: 465-66). Defendant testified that as the police patted him down, defendant told the police that he had pills in his front right pocket (Ricketts: 4 07) . Defendant admitted that, when he was arrested, he had both the $20 that UC 62 had given him and an additional $238 (Ricketts: 464-65). Defendant testified that the police put him in the back row of the police van, and then drove to the corner of Alabama and Livonia Avenues, where the police arrested Gillespie and placed her in the van with defendant (Ricketts: 408-09). Defendant testified that the police then drove to the corner of Ashford and Livonia Avenues, and parked. Defendant claimed that the police officer driving the van ignored defendant's repeated 17 People v. Ricardo Ricketts June 14, 2016 request to loosen his handcuffs, which defendant claimed were too tight (Ricketts: 412-13). According to defendant, he then "stepped over [defendant's] hands" so that he could show the officer that his hands were "black and blue" and "purplish" (Ricketts: 413-14). Defendant claimed that the officer got out of the van, walked to the back, and, without saying a word, punched defendant in the face, though defendant could not remember where on his face the officer allegedly punched defendant (Ricketts: 414) . Defendant claimed that the officer continued to beat him, hitting his legs and face with a baton, and that passersby stopped to take cell phone photographs of the beating (Ricketts: 415-17' 468-69). Defendant claimed that the beating continued for approximately a minute and a half, and that defendant sustained injuries to his back and neck (Ricketts: 417, 425) . However, defendant was unable to produce any medical records documenting his injuries and did not know to what hospital he had been taken for treatment of his injuries (Ricketts: 433-34, 470-71, 491). Defendant denied that he had kicked the windows of the prisoner van and denied that he had tried to leave the van (Ricketts: 466). Defendant admitted that on April 11, 2011, after he walked out of the courtroom, defendant "just got mad" and that he 18 People v. Ricardo Ricketts June 14, 2016 accused Detectives Nangle and Bourne of "lying" about defendant assaulting Detective Nangle and of "beat [ing) [defendant) up" (Ricketts: 419). Defendant also admitted that he was the person on the June 24, 2011 telephone call from Riker's Island, but claimed that he was asking Linette, who was his ex-girlfriend and ex-fiance, to place $20 in his commissary account (Ricketts: 421-23, 473). Defendant asserted that when he admitted on the recording that he sold drugs, he was speaking "in future terms" and that he was referring to his psychiatric medications that he was receiving at Riker's Island (Ricketts: 423-24). Defendant admitted that on November 13, 2001, he had been convicted of first-degree robbery, and that in March of 2009, he had been convicted of another felony, for which he was sent to a drug program (Ricketts: 397, 502). The People's Rebuttal Case REGINALD COLEMAN had been a counselor for four years at St. Martin de Porres, the treatment center near where UC 62 purchased methadone from defendant (Coleman: 526; People's Ex. 1B). On July 15, 2009, the center, located at 420 Alabama Avenue, opened at 6:00 a.m. (Coleman: 530). There was only one methadone program operating at the center on July 15, 2009, and that program operated between the hours of 6:00 a.m. and 3:00 p.m. (Coleman: 530). On that day, there were no other 19 People v. Ricardo Ricketts June 14, 2016 programs, and there was nothing else happening in the building (Coleman: 530-31). Detective Nangle recovered $7 from Gillespie after her arrest, but because Gillespie only received a desk appearance ticket, Detective Nangle returned the $7 to her, and he did not note the recovery on the misdemeanor possession fact sheet that he filled out (Nangle: 520, 522-23). The Verdict and the Sentence On January 12, 2012, the jury found defendant guilty of one count each of Criminal Sale of a Controlled Substance in the Fourth Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, Resisting Arrest, and Obstructing Governmental Administration in the Second Degree. The jury acquitted defendant of Criminal Sale of a Controlled Substance in the Fifth Degree and of one of the counts of Criminal Possession of a Controlled Substance in the Seventh Degree (both arising from the alleged sale of clonazepam to Gillespie [ 635- 36, 638-39]), as well as of Attempted Escape in the Second Degree (663-64). 5 5 For simplification purposes, the court declined to submit to the jury the count of Criminal Sale of a Controlled Substance in the Fifth Degree, related to the undercover sale, and the additional count of obstructing governmental administration (631). 20 People v. Ricardo Ricketts June 14, 2016 On January 26, 2012, the court sentenced defendant to concurrent terms of imprisonment of eight years on the conviction of criminal sale of a controlled substance and one year on each of the other convictions (Sentence Transcript of Jan. 26, 2012, at 19). On February 8, 2012, the court amended defendant's sentence to include three years of post-release supervision (Minutes of Feb. 8, 2012, at 2). The Appeal to the Appellate Division Defendant appealed from his judgment of conviction to the Appellate Division, Second Department. On that appeal, defendant argued, insofar as is relevant to the appeal to this Court, that the trial court had violated defendant's Sixth Amendment right to confront the witnesses against him by failing to hold the People to the proper threshold for showing the necessity of the primary undercover officer's testifying anonymously. In a decision and order dated February 18, 2015, the Appellate Division, by a three-to-one vote, affirmed defendant's judgment of conviction. People v. Ricketts, 125 A.D.3d 893 (2d Dep't 2015). The Appellate Division held, in relevant part, and unanimously, that defendant's claim that the trial court violated his Sixth Amendment right to confront witnesses against him by allowing UC 62 to testify anonymously was unpreserved for 21 People v. Ricardo Ricketts June 14, 2016 appellate review. I d. at 894; id. at 896 (Hall, J.' dissenting) . The dissenting justice voted to reverse the judgment in the exercise of the Appellate Division's interest of justice jurisdiction. Id. By order dated December 29, 2015, defendant was granted leave to appeal to this Court from the order of the Appellate Division. People v. Ricketts, 26 N.Y.3d 1091 (2015) (Lippman, C.J.). ARGUMENT DEFENDANT FAILED TO PRESERVE HIS CLAIM THAT UC 62 SHOULD HAVE BEEN REQUIRED TO REVEAL HIS NAME TO THE COURT. IN ANY EVENT, DEFENDANT'S CLAIM IS MERITLESS. MOREOVER, ANY ERROR WAS HARMLESS. A. Defendant's Claim Is Unpreserved. As the Appellate Division unanimously concluded, defendant has failed to preserve for appellate review his present contention that the trial court erred by permitting UC 62 to testify anonymously. Contrary to defendant's assertion that, during an unrecorded bench conference, he objected to UC 62's anonymous testimony, in fact, defendant failed to make any valid protest. Even if defendant did validly protest, he failed to do so on the ground that he now raises, and his claim is unpreserved because he failed to protest after the court permitted UC 62 to testify anonymously. Defendant also failed to preserve his claim for appellate review because he acquiesced 22 People v. Ricardo Ricketts June 14, 2016 in the court's remedy, which enabled defendant to learn whether UC 62 had ever been disciplined. Additionally, although defendant now contends that the trial court violated his Confrontation Clause rights under the Sixth Amendment to the United States Constitution, defendant never raised a constitutional claim of any kind at trial. Consequently, defendant's claim is beyond this Court's power of review. See N.Y. Canst. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Hawkins, 11 N.Y.3d 484, 494 (2008) (defendant's claim unpreserved because defendant failed to object to court's ruling); People v. Azaz, 10 N.Y.3d 873, 875 (2008) (defendant's claim unpreserved because defense couns~l acquiesced in court's remedy) . "[The rules of preservation] require, at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error." People v. Luperon, 85 N.Y.2d 71, 78 (1995). Thus, in order to preserve a question of law, "an objection or exception must be made with sufficient specificity at the trial." People v. Robinson, 88 N. Y.2d 1001, 1002 (1996). Objections must be "unambiguous" in order to register as effective protests. See People v. Rogelio, 23 People v. Ricardo Ricketts June 14, 2016 79 N. Y.2d 843, 844 (1992); see also People v. Bierenbaum, 301 A.D.2d 119, 152 (1st Dep't 2002) (defense counsel's statement that he "suspect[ed) we'll object" was insufficient to constitute objection for purposes of preservation). Objections must also disclose defendant's legal position to the court. See People v. Gray, 86 N.Y.2d 10, 19 (1995). Moreover, a general statement that lacks a specific challenge is insufficient to preserve a question of law. See, ~' People v. Jin Cheng Lin, 26 N.Y. 3d 701, 729 (2016) (defendant's statement at trial that jury should reconsider counts because jurors misunderstood law and law's application to facts was insufficient to preserve repugnant verdict claim) . Specificity is particularly important "where the People might have cured the problem if their attention had been called to it." See People v. Finch, 23 N.Y.3d 408, 414-15 (2014). By doing little more than joining the trial court in noting that the People had not asked for courtroom closure, defendant failed to lodge an effective protest. See C.P.L. § 470.05 (2) (protest "is sufficient if the party made his position with respect to the ruling or instruction known to the court"). Defendant's unrecorded statement, as summarized by the court, was not an unambiguous objection. See Rogelio, 79 N.Y.2d at 844 (defendant's noting to the court "for the record" that 24 People v. Ricardo Ricketts June 14, 2016 prosecutor had failed to disclose a requested document was insufficient to preserve for appellate review claim that prosecutor had committed Rosario violation); cf. People v. Waver, 3 N.Y.3d 748, 749 (2004) (defense counsel stated at trial that defendant's constitutional right to confront witnesses had been violated and that People had not asked for witness to testify anonymously) . Nor did defendant's alleged statement convey his legal position to the court. See Gray, 86 N.Y.2d at 19. At most, defense counsel -- whom the court characterized during its summary of the unrecorded bench conference as saying the "same thingn as the court -- joined the court in noting that "we haven't asked for the court to be closed, why can't his name be givenn (52). Consequently, defendant failed to object. In any event, regardless of whether defendant's unrecorded expression of concern about why UC 62 could not provide his name constituted a protest, it was incumbent upon defendant to alert the court to his present claim at the time of the court's ruling. However, defendant failed to apprise the trial court of his argument that the People had failed to meet their burden under People v. Stanard, 42 N.Y.2d 74 (1977), and therefore, for that reason as well, his claim is unpreserved for appellate review. See People v. Graham, 25 N.Y.3d 994, 997 (20 15) (defendant's claim unpreserved where court failed to decide 25 People v. Ricardo Ricketts June 14, 2016 defendant's general suppression motion on ground defendant raised on appeal, and defendant raised no further protest); People v. James, 99 N.Y.2d 264, 271-72 (2002) (failure to make Batson challenge with respect to specific prospective jurors, and silence following court's denial of Batson challenge with respect to different prospective jurors, rendered defendant's Batson claims with respect to those prospective jurors unpreserved); People v. Tehava, 84 N.Y.2d 879, 881 (1994) (defendant's general objection to proffered testimony insufficient to preserve specific claim regarding testimony by arresting officer about general practices of drug dealers); People v. Pollock, 50 N.Y.2d 547, 550 (1980) (courtroom closure claim unpreserved where defendant voiced general objection to People's request to close courtroom, made no request for hearing, and did not dispute People's assertions concerning witnesses' safety). Defendant's silence following the court's ruling granting UC 62 permission to testify anonymously distinguishes this case from cases, relied upon by defendant, in which this Court held that counsel was not required to object continuously in order to preserve a claim that the trial court had rejected (Defendant's Letter at 12) . In those cases, counsel made clear and specific objections in order to preserve the claims for appellate review. 26 People v. Ricardo Ricketts June 14, 2016 See Finch, 23 N.Y.3d at 413; People v. Rosen, 81 N.Y.2d 237, 245 ( 1993) (both cases in which claim was timely and specifically raised by defendant at trial) . The trial court's failure to confront on its own the question of what was required of the People in order to satisfy their burden under Stanard distinguishes this case from People v. Feingold, 7 N.Y. 3d 288 (2006), in which this Court held that though the defendant had not argued before the trial court that depraved indifference was a mens rea, the claim was nevertheless preserved because the trial court had ~specifically confronted and resolved" the question on its own. Id at 290. Here, by contrast, the trial court, relying on the Appellate Division's decision in People v. Remgifo, 150 A.D.2d 736 (2d Dep't 1989), concluded that a witness's concern for his safety was a valid reason for allowing the witness to testify anonymously. However, the trial court never confronted the question of whether, under People v. Stanard, 42 N.Y.2d 74 (1977), the People were required to meet a particularized threshold in order to validate UC 62's safety concern. Defense counsel's lack of specificity also deprived the People of the opportunity to address any objection by eliciting additional facts from UC 62 to support the concern that revealing his identity would compromise his safety. In Gray, 27 People v. Ricardo Ricketts June 14, 2016 this Court held that the defendant's general motion to dismiss at trial was insufficient to preserve the defendant's specific claim that the People had failed to prove that he knew the weight of the drugs he possessed. 86 N.Y.2d at 18. Thus, the defendant in Gray, in addition to failing to alert the trial court to the argument that he raised for the first time on appeal, also failed to alert the People to that argument and therefore failed to provide the People with an opportunity to address that argument by seeking to introduce additional evidence. Gray, 86 N.Y.2d at 21; see also Finch, 23 N.Y.3d at 414. In this case, as in Gray, defense counsel's failure to specifically alert the trial court to defendant's argument deprived the People of the opportunity to remedy the alleged error. In addition to determining that UC 62 was entitled to testify anonymously, the court with defense counsel's explicit acquiescence -- offered a remedy to address defendant's concern by asking the People to determine whether UC 62 had ever been disciplined and whether UC 62 had ever been a member of Brooklyn South, a narcotics unit in which there had been "serious integrity issues" (54). Defense counsel confirmed to the court that this was the information that he wished to know about uc 62 (54). Because defendant acquiesced in the court's 28 People v. Ricardo Ricketts June 14, 2016 remedy, his claim is unpreserved for this reason as well. See Azaz, 10 N.Y.3d at 875. Moreover, contrary to defendant's contention (Defendant's Letter at 12), the protest in Waver and defendant's protest here are not "analytically indistinguishable." Defense counsel in Waver protested unambiguously and specifically that withholding the officer's name would violate his client's constitutional right to confront witnesses and that the People had made no motion to withhold the officer's name. Waver, 3 N.Y.3d at 749. The defendant in Waver also clearly apprised the trial court of his legal position regarding the undercover officer's anonymous testimony by stating to the court that he did not "see any reason why [the undercover officer's name] should be withheld." I d. Defense counsel's ambiguous statement in this case stands in stark contrast to the clear and specific objection raised by defense counsel in Waver. Finally, defense counsel failed to assert in the trial court any constitutional argument as a basis for an objection to the undercover officer testifying anonymously. Consequently, defendant has failed to preserve for appellate review his claim that his rights pursuant to the Sixth Amendment's Confrontation Clause were violated. See People v. Lane, 7 N.Y. 3d 8 8 8, 8 8 9 (2006) (defendant's constitutional claims unpreserved because he 29 People v. Ricardo Ricketts June 14, 2016 failed to raise them in trial court); People v. Grant, 7 N.Y.3d 421, 424 (2006) (same); People v. Kello, 96 N.Y.2d 740, 743-44 (2001) ("[t]he defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error"); cf. Waver, 3 N.Y. 3d at 7 49 (defendant preserved his constitutional Confrontation Clause claim by protesting that his client had "a constitutional right to confront his accuser"). Because defendant failed to object at trial to the undercover officer testifying anonymously, because, even if defendant did object, he failed to do so with requisite specificity, and because defendant ultimately acquiesced in the court's remedy, the claim that defendant advances on appeal was not preserved, and it is beyond the jurisdiction of this Court to review. Accordingly, on that ground alone, defendant's claim should be rejected. B. Defendant's Claim Is Meritless. When a witness wishes to testify anonymously, the People must make "some showing" that the witness has "a cognizably valid interest" in declining to answer questions about his identity. People v. Stanard, 42 N.Y.2d 74, 84 (1977). "Excuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness." Id. Thus, in the event that the People move to have a witness testify anonymously, they 30 People v. Ricardo Ricketts June 14, 2016 may satisfy their burden under Stanard by showing that revealing the witness's identity will endanger the witness's safety. People v. Frost, 100 N.Y.2d 129, 136 (2003); see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, . . the witness' safety") . Once the People establish that the witness has a cognizably valid interest in not answering a question, the burden shifts to the defense "to demonstrate the materiality of the requested information to the issue of guilt or innocence." Stanard, 42 N.Y.2d at 84. The court must then "weigh the various interests involved and determine whether the testimony is sufficiently material to the question of guilt or innocence to overcome the interest of the opposing party." I d. In People v. Waver, 3 N.Y.3d 748 (2004), this Court characterized the holding in Stanard as a "sequential three-step inquiry" that courts were required to follow "whenever the People seek to shield a witness's identity, address and/or occupation." Id. at 750. Here, the People met their burden by showing that UC 62 feared that revealing his identity would jeopardize his safety and by showing that there was a basis for that fear. The People spoke with UC 62 off the record at the trial court's direction, 31 People v. Ricardo Ricketts June 14, 2016 and the trial court confirmed the People's off-the-record representation to the court by eliciting from UC 62, on the record, that revealing his identity would pose a risk to his safety (52-53) . The court made this inquiry to "confirm that [UC 62] did not wish his name to be given because he was concerned for his safety" (53). Moreover, at trial, UC 62 testified that he had worked as an undercover officer for over six years, that he had made over 100 buys during that time, and that he had retired from the New York Police Department on October 1, 2011, less than three and a half months before he testified at defendant's trial (UC 62: 57-59). Thus, there was a reasonable basis to believe that revealing UC 62's identity would endanger him. In addition, defendant made no showing that revealing UC 62's identity was material to defendant's guilt or innocence (53) . Consequently, the trial court complied with this Court's holdings in Stanard and Waver, and the decision to permit UC 62 to testify anonymously was a proper exercise of the trial court's discretion. See Frost, 100 N.Y.2d at 136-37; Van Arsdall, 475 U.S. at 679. Defendant contends that the People were required to provide a "particularized explanation" in order to make a "particularized threshold showing" as to why UC 62 required anonymity (Defendant's Letter at 8-9). But defendant provides 32 People v. Ricardo Ricketts June 14, 2016 no authority for this contention. Defendant suggests that the People failed to meet this burden because they failed to offer examples of past, present, or current threats faced by UC 62, or evidence that he remained an undercover officer with active investigations. Id. at 9. By arguing that the People should be required to make a "particularized threshold showing" in order to justify testimonial anonymity, defendant erroneously conflates the People's burden for justifying anonymous testimony with their burden for justifying courtroom closure. These burdens differ in two significant ways. First, in order to justify courtroom closure, the People must meet a higher burden. In order to prevail on an application to close the courtroom, the People must "establish a substantial probability of prejudice to an overriding interest in the event of open-court testimony." People v. Ramos, 90 N.Y.2d 480, 497-98 (1997); People v. Martinez, 82 N.Y.2d 436, 442 (1993) (citing Waller v. Georgia, 467 u.s. 39, 48 [1984]). Moreover, in addition to establishing that an overriding interest will be prejudiced, the closure must be no greater than necessary to protect that interest, the trial court must consider reasonable alternatives to closure, and the court must place its reasons for closure on the record. See Martinez, 82 N.Y.2d at 442. By contrast, in order to shield a 33 People v. Ricardo Ricketts June 14, 2016 witness from identity questions that might "harass, annoy, humiliate or endanger" the witness, the People must make only "some showing of why the witness should be excused from answering the question," Stanard, 42 N.Y.2d at 84; accord Waver, 3 N.Y. 3d at 7 50, rather than the "particularized" showing that defendant contends should be required. Defendant's reliance on Frost to support his contention that the People must meet a particularized threshold (Defendant's Letter at 8) is unavailing. This Court' s use in Frost of the term "extraordinary measure" (~ 100 N.Y. 2d at 136-37) does not establish that the required threshold for closing the courtroom is the same particularized showing required for courtroom closure. Rather, Frost re-affirmed the holding in Stanard that witnesses were permitted to withhold their pedigree information if providing such information would 34 People v. Ricardo Ricketts June 14, 2016 endanger their safety. 6 Id. at 136. Second, while courtroom closure limits a defendant's "fundamental" right to a public trial, a right that "may yield to other rights or interests in rare circumstances only," Ramos, 90 N.Y.2d at 497 (citations omitted), permitting anonymous testimony limits a defendant's right to cross-examination, which may be limited in the exercise of the trial court's "broad discretion." People v. Schwartzman, 24 N.Y.2d 241, 249-50 (1969); People v. Sorge, 301 N.Y. 198, 202 (1950) ("The manner and extent of the cross-examination lies largely within the discretion of the trial judge") ; see also Van Arsdall, 4 7 5 U.S. at 679; Smith, 390 U.S. at 132 ("The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court") . 6 Defendant also relies on several Appellate Division cases in order to argue that a particularized threshold showing is required. See Defendant's Letter at 8. Those cases are inapposite because, in those cases, the People moved to close the courtroom in addition to moving for the witnesses to testify anonymously. See People v. Acevedo, 62 A.D.3d 464, 465 (1st Dep't 2009); People v. Scott, 211 A.D.2d 589, 590 (1st Dep't 1995) . Thus, they offer no guidance on the proper threshold to be applied in cases where the People move only to have the witness testify anonymously. By contrast, in People v. Remgifo, 150 A.D.2d 736 (2d Dep't 1989), the Appellate Division held that the undercover officer witness's "justifiable fear for his personal safety constitute[d] a sufficiently cognizable interest of the State." Id. 35 People v. Ricardo Ricketts June 14, 2016 By showing that there was a basis to believe that revealing UC 62's identity would endanger his safety, the People met their burden under Stanard, and the trial court complied with the holding in Stanard by requiring the People to demonstrate to the court that UC 62 had a cognizably valid interest in testifying anonymously. Cf. Waver, 3 N.Y.3d at 749 (trial court failed to require People to make any showing to justify undercover officer's anonymous testimony). Defendant did not assert in the trial court that UC 62's identity was in any way material to the case, and he does not do so now. The trial court, weighing UC 62's interest in maintaining his safety against defendant's right to cross-examine witnesses, properly exercised its discretion by concluding that UC 62 was entitled to testify anonymously. Accordingly, defendant's claim is meritless. c. Any Error in Allowing the Witness to Testify Anonymously Was Harmless. Even if the trial court failed to hold the People to the proper burden under Stanard, any error was harmless. This Court stated in Waver: When the requirements of Stanard have not been met, a finding of harmless error is not warranted where, as here, the testimony of the anonymous witness is central to the People's case and defendant's ~bility to cross-examine the anonymous witness is purely speculative. 36 People v. Ricardo Ricketts June 14, 2016 3 N.Y.3d at 750. Relying on this language from Waver, defendant contends that this Court should not apply harmless error analysis (Defendant's Letter at 9, 11). Defendant's argument is unavailing, because the facts of this case are distinguishable from those of Waver. Unlike the trial court in Waver, which summarily denied defense counsel's request to have the People show why it was necessary for the undercover officer to testify anonymously, the trial court here asked the People to determine whether UC 62 "was in any way ever disciplined for integrity matters or whether he was part of Brooklyn South" (54) . The court asked defense counsel, "Isn't that what you wish to know[?]" (54). Defense counsel answered, "Yes" (54) . The prosecutor conferred with UC 62, and reported to the court that UC 62 had never been investigated for any impropriety and had never been in Brooklyn South (55). Consequently, in this case, unlike in Waver, defendant's ability to cross-examine the anonymous witness was not speculative at all. Rather, defendant, who confirmed that the purpose of knowing UC 62's identity was to inquire about whether UC 62 had been disciplined for impropriety, was able to learn that UC 62 had never been disciplined and had never been a member of the Brooklyn South Narcotics Unit. Accordingly, and in light of the overwhelming evidence of defendant's guilt, any 37 People v. Ricardo Ricketts June 14, 2016 error in allowing UC 62 to testify anonymously was harmless. See People v. Crimmins, 36 N.Y.2d 230, 237 (1975). There was no issue at trial that defendant provided methadone to UC 62. Moreover, the People adduced overwhelming evidence that defendant sold the methadone and was not entrapped. Defendant sold the methadone to UC 62 for $20 in pre-recorded buy money, and was observed by UC 74 doing so (UC 62: 66-67, 69-71, 92; UC 74: 118-19; People's Exs. 2, 5). Defendant matched the description given by UC 74 to the field team (UC 62: 67; UC 74: 124, 139; Nangle: 212; Johnson: 286). Defendant resisted arrest by running from the police, and then by flailing his arms and by refusing to be handcuffed (Nangle: 217-18, 221-22; Johnson: 285-87, 289, 291, 293, 298). When Detective Nangle finally caught defendant, the detective recovered the $20 in pre-recorded buy money from defendant's pants pocket, commingled with $238 of additional money (Nangle: 224-26; Johnson: 292; People's Ex. 10, 11). Furthermore, the People introduced a recorded conversation in which defendant admitted that he sold drugs. During that conversation, defendant told his girlfriend "that's why I be selling drugs" and "why [do] you think that I was doing what I was doing" (McLean: 156, 158; People's Ex. 7B). 38 People v. Ricardo Ricketts June 14, 2016 Moreover, defendant's trial testimony corroborated his identity as the seller. Indeed, with regard to the sale to the undercover officer, defendant admitted that he provided the methadone to UC 62, denying only that he had exchanged the methadone for money (Ricketts: 404, 445, 485), and he also admitted that he regularly exchanged pills for food items with other inmates at Riker's Island (Ricketts: 489). Furthermore, defendant's entrapment defense was incredible. Defendant's claim that UC 62 tricked him into selling drugs and into taking pre-recorded buy money was directly contradicted by the eyewitness testimony of both undercover officers. In addition, defendant's claim that he was merely waiting for the methadone clinic to open (Ricketts: 4 97' 447-48) was contradicted by Reginald Coleman's testimony that the clinic opened at 6: 00 a.m., more than ninety minutes before defendant sold drugs to UC 62 and Nicolosi Gillespie (Coleman: 526, 528- 3 0) 0 Defendant's claim that he did not resist arrest, but rather, was brutalized by police officers during his arrest and outside of the police van, was directly contradicted by the testimony of several police officers, who testified that defendant resisted arrest, attempted to kick out the van's 39 People v. Ricardo Ricketts June 14, 2016 windows, and then attempted to leave the van, and was unsupported by any medical evidence (Bourne: 311-13, 324-26). Finally, defendant's claim that, in the Riker's Island telephone call, he was merely talking about selling drugs in jail, and not about selling drugs in general (Ricketts: 423-24), was patently incredible. The most logical and reasonable explanation for why defendant would claim in a telephone conversation that he was selling drugs is that defendant was a drug dealer. Defendant's admission, together with his incredible in-court denial that he had sold drugs to UC 62, all served to render his entrapment defense unworthy of belief. Defendant's credibility was also weak in light of his two prior felony convictions (Ricketts: 397). Thus, the evidence of defendant's guilt was overwhelming, his entrapment defense was incredible, and the alleged error was harmless. * * * Defendant's claim should be rejected because it is unpreserved, because, in any event, the claim is meritless, and because, in any event, any error was harmless. Accordingly, the 40 People v. Ricardo Ricketts June 14, 2016 order of the Appellate Division and the judgment of conviction should be affirmed. cc: Denise A. Corsi, Esq. Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 41 Reo;xfZ'1£ Michael L. Brenner ~ Assistant District Attorney (718) 250-3261