The People, Respondent,v.Ricardo Ricketts, Appellant.

Brief

N.Y.September 7, 2016

ll l )H'."'. I l/IJR\U-f\-Cl/4RGF L\ "' \\ L F \llF\ ISSISll\I lt!llH\l.l-l\-Cll4HGF BARR\ s. Sff'IJIG S't PFRI '/Sf\'(, ·t rf()N_\'f rs ().\\If) P. (;RU'\flFR(; ERIC\ l!OR\\ 111. P\I I. SKIP 1.-\l'il RF LIS\ '\.\POU \\111.l\\lG. h:A'il'I'\ h:E'\IJRA I.. Ill fflll'SO'\ I.Ell.\ Ill I.I. /)//?/.( I()/? IJF I\'\'(}( F\'('/:' I \'l 'E\' //(;.1 F/f J,\'S llf. '\ICE PO\\ Fii Hon. hn P. Cl rk of Court 0 r~siello Court als urt of a s Hal 0 Eag e Street bany, New York 207 ou Honor: ADVOCATES lRK I March 30, 2016 Re: e v. Ricardo Ricketts 0]6-00009 -\LF\.f:-. A. ASOtFR S TT\'F' R. BU<:\ HARD SA\1CU L BRO\\'\ EL17,.\BFTH L Ht ir .. rri'. DE"d!-.F A. COR'.-.1 -\. Au:x.\-..{H:J·{ DO'' L\l 'RF'\ L .fO'\f-,<.,. BRYA' h'.Rf:\ KF<.., .JO'-'HI \ \1. LH !'\f L\\1\W L LI"' RF"-J.\\11'.\' S. Li r \!-\ ..._ L\l RE'\ '\AKA\11'RA P.\-1 RICIA p.\J.'."'U{ .\:'<'.\A PER\'LKHI'\ Y\ O'."''iE SHI\ ER<., SHA'.'<[)A SlllLF\ \'\CAD SJ .... (,lf '\.\OTF.RAI ERi'\ T0\1Ll"\.0'\ \lARK \\. \oRk.l'\k. h:.A fHLFY\ E. \\ HOOLF\ .J["I'\ 'Ol "P' Ro'\.\l.D Z-\P.\T.\ DI"·\ ZLOCU>\\f R 01 C/JI \S/-.1 \h I r:-.!-iA S. HOR! HI\, Submission Pursuant to Ru e 500. 1 This letter const tutes appellant's argument on the merits in support of reversal. osed are copies of the transcri s, the llate v s on briefs, ate Div sion' s order aff rm ng appe t's convi tion, the o to appe to thi Cou op name ncJt test pernn hat e i d vJh n The SS e be u h s Court is whe r a that the eal hi counsel, e' s primary Wl shou d have been to was pres r'"vecl appellate r view whe ens g that the cou room was ng anonymously, nd ting anon ty was based c ted onl n une abora hat the witness was open, comp a ned about the wi nes the cour 's ub equent ruling a s ngle quest on to th wi n ed cho of the pros cu or's earl e "cancer ed for hi sa e y." Bas d pr for se the dete rily ling sma i beg on a detective's testimony, quan i ies of me hadone tes if ng under only his appe an was nd clonazepam. shield numbe . John e o Page of 15 de e se counse protested. response, the prosecutor assert d tha he det tive was "concerned for his saf ty." The cour asked th detect on y whet r he had a "concern" for h s safety if he h s name. The d ecti answered, "I do," and dia el rul d that he could testify under h s sh e r. Be for h of appe rd, 42 N.Y.2d tep, the 11a e a s on, - and 4, 83-84 (19T7), e d a w t followed ( the Peop e d d not contest h or good reason. In this Court held hat, wheneve dent ty, a s s s added) . ' ome forward wi h tn s xcus d'" from aling his ident ty, "a ng t wou d] endanger the witn ss" (emph is e v. Waver, 3 N .. 3d 748, 750 (2004), 42 N. Y. 2d at 84. Here, the Peop e did not to substantiat he dete e's plain, ha he was oncerned for his safe y. Thus, to meet the r initial burden, nd the court's ruling t e ve to tes i fy anonymous y was revers ibl rror req rd to harml ss rror analysis. Waver at 750. t a y to th ople' on y argume t th hi ssu was preserved for rev ew. nal (2) does no requ n express a po t of law on appeal. Rat er, question of law w th respe o a ru ng n re[s]ponse o a protest a party, ded the questio rais on appeal." .L. re, i r spon e to appel ant's objection to t e te t y ng nonymous y, th court sked a singl qu s on People' vague ass r ion o "concern" and l d could w thhold hi name. Be use the i the propri ty of that rul ng, whi was mad in dire t pen to appell nt's obj ion, t s pr rved. OU t should eve rs he lla sio e hold r1at appe t ame , 'v1a estirnony. him, tanarcl and Wa be p con +- L t ial Wl ] ding view. which encompass s knowing t witn ss admiss on o h detecti anonyrnou u t rly fai ed to meet their in tial burden r o make a "showing of why" t detect ve ow thhoid hi id nt ty. And coun e' of he de c ve' onyrnous est imony, court's erroneous ruing perrni t ng im o his dent ty, p es rved he issue tor Hon. John P. As el o March 0, 0 6 indicted fourth and for crimin sale fifth degrees nd Page 3 of of a cont o re ated er ed me 11 nt was in the emming f ram a " clinic. and-bust" operation near a Brook yn me hadon The Peopl 's primary witness was an undercover det t ve. Imrned ate y fter he det c ve identifi h mse f on the w tnes st and by h s shield number, "0 0 62," defense counsel asked o the bench. Following an off-the-record conferen h cou the jury (51-52). t t en asked the detective a ingJ question: Wi and s COURT: [Oja you have a concern for your safety if you t stify in open cou t name, if you gave your name? u.c. 0062] sking zed [T] he I do (52) detecti nything mo , t e court ant of h bench conf nee: raised the ssue w th the t th n recoun the par i s' po i s· would p obably t g ving his ba cally t n di eel DA' s to w t he witness. The wi ne s did con x ed Hon. John P. Asi 11 Mar h 30, 20 6 Page 4 of that he did no wish his name to be g ven becaus he was concerned for his safety (52 53) (emphas s added). N xt, the court xplained why t had asked th detect ve to confirm the Peop e's claim that he had a con ern for his sa ty: As the w t ess was walking out o the courtroom, in abundan o ca ion, and no any way o question what the 's did, but I did nqui re so t' s on the record hat the witness has expressed his des re to test fy anonymousl unde h s undercover name and not give h s name because he was concerned about h s safe (53). Citing e v. fo, 150 A.D.2d 736 (2d 't 1989), th ou t ru ed that the detect i could testify anonymously ( 5 3) . As h court re ayed, in Renii , the undercover off er was "proper y l owed" to test fy anon sly because "there ha[d] be n a showing tof the witness' [s] ustifiab e fear [for] h s personal safe y," a "su ficien ly cognizable interest of he s ate" ( 3). ord ngly, the court continued, the "bu n of s ab sh ng [the] ri 1 ty" of" hew ness['s name [] sh fted to he defenda t," o "has no estab ished tha the name of th unde cover offi ma r al 1 any way to the issues a sed at n r al. So the Court wil adhere to ha 11 (53). x e be ch nd, h On t on , the cour on fer nee (54 t st ed ha July 15, 2009, ssed another matter rais 56). One the dee tive he had "retired" on Oc du CJ an undercov r near a Brooklyn thadone J nic, u.c. by C0 1-lnS 1 u ned to th 01 ( 5 7) • "buy and bust" 0062 observed woman CJ appe an money n xchange for d wh pil H he "n addit on," '1Jh the t.h unit tha was d a o o know i () relayed, coun e wa ed to know a membe of par u r narco i s corrupt on ( 5 4) . Couns l added that detective had ever been he pros tor conferred w th report d cti resumed e had no en nvest ga ed, and the t y ng (55-56). on. John P. Asi llo March 0, 2016 Page 5 of 1 gave llant $20 n prerecorded buy money in xchange fo four meth done pills (70 wa ched the scene anyth ng. 71). A ~ st" undercover off cer, from a ross the street, bu did not hear Minutes lat r, aft r a bri f strugg e, the f e d team arres ed llant. They recove ed rom his person he prerecorded buy money and add onal cash, bu no ter, appe lant be te n the pris r van, but was quick y subdued. The team a so d the woman the detective had seen w t appe ant, and ecovered a single p 11 o c onazepam from her. l a t t f ed that, whi e waiting for the clinic to open, methadone p l s rom the woma wh was ater arrest Af er consuming one pill, he oached the dete t ve, who looked y ill. The det ti ntly cl imed that he was sick and needed a dos of methadone im over un the clinic opened. P ty ng h llan e n ually re ented. The ury acqui ed appe ant of the sa e and poss ss on rges rela eel to the c onazepam, as we as att eel escape in econd degr e. It conv1 cted him of riminal sale of a r:o t o l d subst e in the fourth degre nd na poss ssion t o led subs an e n t seven h deg e with r spect o the methadone, as we as res st ng ar st nd obstruction o gove nmental admini t at on. Be o he Divi ion, pr o confront i the al CC)Ur a he ify anonymously eve t they had i e pa ticul rized th shold showing of Ill no_is, 390 U. 129, 3 (1968); '0laver, 748, 750 (2004). This error eversal o an 's conviction w hout regard to ror analysis. Wa t 750. nally, d ens counsel's objec ion at t out et the det ct i ve' s di rec xamina t ion and ou t' s exp res ' "" 1 L on hat th op e had fu 11 d their burde pr served his o rev ew (C:.P.L. § 4 0.05[2]). ke U.C:. 006 who d anonymo s y. tes if ied right e defense did no befo obj ct him, .C:. 0074 to is do ng o. on. P. Asi llo 6 of 15 March 30, 2016 The op made no attempt to argue that they had sat s ed h ir bur n o demonstrating a need for anonymous testimony or hat a y error was harmless. Instead, they a only that defense couns l waived appe ant's c aim or, at the least, a ed to preserve it for review because he d d not object to the court's manner of arr ving at ts ruling. 2 3 to 1 de is on affirming appellant's conv ction, th te vision, Second rtment, rejected appellant's c aim, rel vant pa +-· [T]he d f ndant's conten ion ha his r ght o confrontation was violated when the trial court permitted two undercover police o f t i e rs to t e st f anon yrn o u s y t t r i a l i s unpreserved for appellate rev ew (s CPL 4 0 . 0 5 [ 2 J ; • Sm th, 2 6 A. D. 3 d 3 9 6, 8 0 8 N.Y.S.2d e v. Montoya, 3 .D.3d 5 7, 558, .2d 123; e v. Alvarez, 278 A.D.2d 332, 333, 7 8 N.Y.S.2d 204), and we decline to r a h the issue in the exercise of our int rest of justice urisdi tion (see CPL 470.1 [6J[a]). RicktJtts, 125 A.D.3d 893, 893 894 (?d 't 2015). Dis enting, he Honorab e L. Pris Hall xpla d tha " [ t l he cursory inquiry conduc ed by the r a c:ou t fa led to s abli that the buy g det cti had any jus ifiab e basis for ::; f ar." d. a 895. Thus, " he Peop e did not sat sfy heir burde of showing th d for non y." Id. While wr t ng tha the ma r "may not be preserv d for appe ]a review," Jus ice Hall wouJd have reached in the n rest of jus ice. Id. On December 9, 201 , fo r Chief ,Jonathan Lippman gra t d appe]lan leave to appe 0 his Cour v. ,C(icketts, 26 N.Y.3d 1091 ( 0 5) Hon. John P. ic o Page 7 o 15 ;>1urch 30, 0 6 Unde over Dete t ve 0062 was the People's so e witness to the er t cal charg himse lements of the drug transac ions with which appe ant wa th ou se of his direct testimony, when he identif ed on y his shie d number, defense counse promptly n response, the pros cutor claimed t t the de ct ve concerned for his s f y, which t detecti onf irrned by sayinq, " do," w thout e abor on, in response to a s ngle to t on by the court. Th s unparticu a i ed claim utt r y fa ed hat the det c i - wh later revealed that he was me o trial d riny has s or his con ern. him to testify nonymously w thout the site show g appella of his ix h con ront hi ccusers nd his due pro ess ri t to a U.S. Const., nds. V, XIV; N. Const., Art. I, §6; s Law§ 12; Smith v. linois, 390 U.S. 9, 131 Waver, 3 N.Y.3d 48, 750 ( 004); e v. Stana 4, 83 (1977). xth Amendment of the Unit d S a es dant he undamenta right o confron witn through c SS + ' xam n c.lon. U.S. Const. 380 400, 40 (198 ;; Stana 42 N.Y. r ss-examination . i 0 conf ron ation and helps h h-determining pr , 4 0 U . S . 2 8 , 2 9 ( 1 9 7 3 ) , qz 1 o t (1970) It s tt ed law that to te ify "anonymously" may ss.' 11 Chambe g Dutton . EvAn permitt ng gove o 1 t e he v. f 4 0 () to t on. Smit , V10 U.S. a 31; Wa 3 N.Y.3d at 7 0. act, ry start ng ruth' th ou who h ford v. purpo ommun t:ained); wh n "the red bility of a w tness is in issue, po nt in 'exposing fal e ood and bring ng o ross-examination must cessar ly be o ask i ." Sm th, 390 U.S. at 131, quoting Poin ne the the 380 w tne 's ident ty opens "countl ss avenues of in- and out of-cour inves igation. To forbid s inqt1.iry the thresh ld is f ective y o of cross-ex nat on ts lf." Id., see also Stat 282 lJ. 68 , 691 ( 1931) (the pr inc pal s to ident y a witness with n h s nden evidenc of his at on may be t 84 (" under ying purpo e of o . Joh March 30, . Asi llo 2016 Page 8 of 15 iden ity timony s to estab s bac round s tt ng in wh ch to t t vera ity"). n Smith, th Supreme Cour held that t was unconstitut anal o w h o d primary pros cu ss' s name and address from Smith, 90 U.S. wi ness n Sm th, us li tive in llant's case, purchased drugs from th d fe dant during a buy-and-bust opera ion and provided a of the in r t ng evidenc as to he sa Nevertheless, he w tness s perm tted to testify under his sh e d number. Id. at 30. Thus, s here, he r court in Smith to compe d sclosure of identi y y violati of the ix h l\mendment. Id. at 132, ti g 282 U.S. at 692-69 . ''d_ernor1s r t Smith, this Court he d in Stanard that, whenever k o shi d aw tness's ident ty, a sequential thr "mus " be owed. 42 N.Y.2d at 83-84. Under come forward w th should from "Excus may ar se from ndang r thew t ss." A tep two, the burden te the rial o [t wi revea ng identity [revealing vvaver, 3 defense to denti ty] o t a showing that Id., quoted h ft of gui t o n the ts invo sutf c entl rcome the in At step th court mu t of its d s r tio , weigh he various nd de rmin " whether the w tness's ident ty to the ques on of guilt or innocence o r st o the opposing party." Id. Unde th Stanard protocol, here o a police ,,,r t ss ot be perrnitt d to t s if nonymously unles h pt'OSP ut mak s a p rt c arized th showing that the w tn Leg timat ly fears for his pe sonal sat ty or that integri y of a ongoing ope a ion wil be compromi ed th the revelation o hi true ame. See, .g., Frost, N.Y.2d 9 (2003) me su test tter condu ting h aring into the dangers of r ac ual name) e v. Acevedo, 62 A.O. d 464 d ng ps udonym witness's 'r 009) crov ded fo losing true names); 1 9 9 ) ( a no n yrn i t ssed rt cularized fear fo his and d s losed his "unusual surname n fo, 1 () A.D.2d 736 d 't 1989; officer was s ill conduc ng undercover buy- oper tions in inity o in de t). Hon. Joh March 30, P. Asiel o 2016 Page 9 o 1 h s Court reaff rmed Stanard in Waver, ho cl ng that ts three "sequen ial s eps" " be followed whenever the ople s k o shield a witness's identi y, address and/or occupat on." Wa r a 750 ( asis added). Becaus he e n Waver had not at s he r bu of showing the for anon ty and no s ep-thr e balancing had be n undertaken, s Court reversed. I held th t harm ess rror d cl not appl : When the requirements of Stanard have not been me , a f nd ng of harml ss error i~ no warranted where, as here, he testimony of the anonymous w tness is central o he Peop e' case and defendant's ab ty to cross-examine he anonymous w tness i purely speculat Id. Her , S anard' s first step - a "showing of wh he w tness hou d be allowed to stify anonymously, 42 N.Y.2d a 84 w s ot satisfied because the prosecutor's cone usory cam tha the rima y undercover dete i was concerned for his safety in no way demons ra cl a need for his anon ty. And the court's sing que on added abso utely noth ng: de tee Na COURT: [D o you have a con e for your sa ety if you t sti y n open cour by name, if you gave your name? [U.C. 0062]: do (52). h 0 cour hus rema nee! totally uninformed as e mi t be concerned. Stana 42 N.Y.2d at 3 N.Y.3d at 0. Net r he detec i offered any particu a z cl to 8 4; e on "why" th quoted in nor h for concern. Th y provided no exampl s of s tlel g a resul f tes if ng cas . They ass rted claim th t he had bee threat nee! by pas , current, sub4 o hat he was 11 nvol cl in under n a or, indeed, at 11. And hey exp ssed no conce abou jeopardizing on going nves igat ons. See v. Ramos, 90 N. cl 490, 4C)8 (1997) ( fusing to sane ion per se rul o closur for a ac ive undercover w tnes es); cf. e v. Mi ls, 30 . D. 3d ? 4 ( st 't 006) (anon ty perm ssibl or o flee As th det ctiv t r re l cl, he was r tired, o he cl ot possibly have had any concerns about continued undercove work r ongo ng nvestigations. Hon. John P. Asiello March 30, 20 6 Pag 10 of 15 invol d n ongoing ions in vicin ty of sales at ssue, had been fre opera ans); (same, when compr se hi special invest y ened and assault d dur ng undercove son, 26 .3d 195 (1st 't 2006) perm tt d for off cer' s true name would and the integr ty of a hi y confident a Moreover, the record does not r f ect that any steps wer n to con e the de ect ive' s identity as a member of aw nforcement. As defense couns l noted, the prosecutor did not r qu st a Hinton hear ng and the courtroom was open. Neither the nor the dete t ve c a that he avoided he courthous or ha 11 ways, or ha nter d he court room in some t ous manner. Ne ther claimed that the detect ve hid d, dressed in particular way, or avoided the compa y of officers while in and around he courthouse so as to avoid uggest ng tha he was a member o aw nforcement. the p secuto made no "showing of why the [the de should be excused" from revea ing his denti y. 4 N.Y.2d at 84, quoted i Waver, 3 N.Y.3d at 750. All cour had before t was his ba d, une aborated, and ubs ant] at d ass rt on of "conce " Ac ord ngly, the burden r shJfted lo he def ns to demons rate the value of having the testify unde h r ame. Id., quo ed n vv'a 3 N.Y. 3d at 750. th he office e v. Rem fo, 1 0 A.O. d 736 (2d relied, did no justif tive's une abora d in Rem fo noted: l s ru ing. aff rmation 1989), on wh ch n stark h re, the contras to unde cove s ill an unde cover officer making buys in th ic ni y o the subject "buy and bu t" operation, and that he was till ass gn d to he ame special police unit as h had be when h made he buy from the defenda t in thi se. Id. Because the detective in ppellant's case xpJanation for h s purported co rn, Remi nonymity her gave no comparab e in no way ustified In sum, he People utt und r Stana rd of ma king a w thho d the den ty of h the Stanard/Waver protoc l y f i ed o mee their in tial burde pa t icul dz d showing of a need o i prima y ri witness. ignoring and owing he det ct ve to te tify Hon. John P. As e o March 30, 2016 Page 11 of 5 anonymous y without t requisite show ng, the court r1 ved ppellan of his due process rights o con rontat on and a fair rial. Moreover, because the detect ve - the only witness who participated in, o heard an ing during, either of the charg d sales - was patently "central to the People's case," his e ror is no subject to harml ss rror ana ysis. Waver a 750. 8. Defense counse 's ruling n respons to i rev ew. In rel vant pa protest allowed by preserved appellant's t, C.P.L. § 4 0.0 (2) the court's laim for provides: express lla [A] question of law wi h respect to a ruling . is presented when a pro es thereto was reg stered, the party claiming error, at the ime of such ruling . Here, s soon as the it became p a n tha he undercover was wi thholcling his name, defense counsel ob ectecl by st ng a confe e, the conte s of which he court late h re orcl. According to the court, defense counse noted that e cour room was open ncl the People had not r quested a Hin on ng and comp ainecl, "[W]hy can' his name be given?" ving pla n y pro st cl the de ty, there was no eed for defense couns l o a second protest or "e c ion" to the cou 's de i on on hi complaint. No rul of pr servation requ reel counse o risk a contempt c tation ancl/o argue w th he ourl, whi h unqu s ionab y h arcl, understood, and J niecl h s app ication. Rather, C. . § 470.05(2) prov des u t he opposit Such pr test n cl not be in the form of an lainly, he lower cour "expr s y deeded the question[ ra eel on appeal" in re ponse to counse 's protest. C. P. § 11u.O ( It asked the det ive, "[D]o you have a concern for your safety if you testify in open cou t name," e cited h s "I e v. ET nton, 31 N.Y.2d 97 2) . on. John . Asi llo r h 30, 2016 Page 2 of 1.5 do" answer, "show ng [of] s fety" (53). and immed ately hew tness' [s] ruled that ustifiabl his was fear [forl an adequate his personal he ques ion befo his Court is wheth r an une abora ed c aim o aw tness's" oncern" sat sfies the Peep e's burden under Stanard o making a particulari ed thr shold showing of a need for ymou estimon . Thus, the rul ng question here re one and he same, rendering appe nt' s c a preserved for e Fein l . N. Y. 3 cl 8 8, 2 9 0 ( 0 0 6) jecting Peep e's contention that mens rea ca was unpreserved u fen e did no ''plainly p es nt to t the r a t"; deci ion "demonstrates hat he s cif cally r so ved" he ssue) . Counsel need not nave compla any rther. . Fin , 23 N.Y. 3d 408 at 4 3 awyer is not required, in orde to pres r a point, to argument that he court has definitively reJected"), e, 3 N.Y.3d 266, 73 (2004) (declining o t a rma ity that would bar an appeal even . had a fu l oppo tu ity to review the e v. Rosen, 81 N.Y.2d 237, 245 (1993) content on that pro se defendant's c aim r conf rences wi h stand-by couns l us defendant "'droppr d] the sub ect wi hou on' afte the court a ounced ts ng"; i i applica on and t cour 's equally ; F c en t pres rve the ssue" . Thi Cour 's 004 de son i Waver urther establ s e tha ant' l im d for review. In Waver, after the offi e est fy nq on dir ct under onl h number, th ttorney protested. Counse in c se a soo r, quest ng a ben h t the y start of the dete t ve's di rec xam1 atio it became apparent ha ne would not g ve h s name. Tt1 p ot st in he two cases were ana ic y ndist ngu shable. Waver' s attorney noted tha Waver had "the t to confront his accuser," and that "no mot on [was made by he Peopl to withhold [he officer's name] " Waver at 3 N.Y.3d 748, 749. he a torney "d[i]dn' se any re son why [the hheld. 11 Id. Counsel n appell nt's s mad paint - "[S]ince he's t st fying n open court a ked court to be closed, why (52-53) si added). on. John P. Asi llo Mar 30, 2016 Page 3 of 15 In both cases, defe se did not object to the manner in wh h the court made its ruling or 1 a second protest after th u ng tse mmediate y after Waver's attorney ob ct d o th cer's anon ty, the court, fai ng to ask any questions of the offi r or prosecutor, ruled, "[I]t's ncumbent upon you [i.2., he defense] . to show that some prejud w ensue." Id. inc ed to demonstrate any pre udice," the court " '11 permit this officer . to testify under [his number . " Id. Alt Waver's at orney did not ask the court to conduct n nqu y of the offic r or otherw se object to t e ru ing, this Court reached the issue and reversed because the Stanard protocol had no be n fol owed. Id. at 50 ("The sequen ial thr -step inquiry mandated by Stanard was not under aken, and th s is s b error") . And it did so n sp te of the Peopl ' tha the defense attorney's silenc after the cour 's u ing he ssue unpreserved. S Brief for Res nt in Waver, C.A. No. 04 0160, at pp. 5, 18-22. n appellant's ase, counse did not t t the co r h sked on y a single question of the question ha o lie a need for anon ty or add an hing o wh t the pr ecu or had al to d the court a the s debar. And, ust 1 N'a r, he ccu t erroneousl relieved t Peop e of thei tep- one burden under tanard and expli itly "shifted" th "burde " to appellant to "establish[] that the name of the undercover offi r wa al [to the t issues]" 3). Counsel did not, ther af r, sk the cour o pose additional ques ons to anyon or oth object to th ruling itself (53) Becaus h s Court r ached the anon y ssue in Na even t h he de fens at to ney did not protest the court's failure to conduct or its exp ss ru on the matter rdi ed appeal, o reach the anon issue here. C.P.L. § 70.05(2); v. do, 4 N .. 3d 725, 726 ( 004) r l mot on to di s "coupled i th the t a ourt' s ding " regarding adequa of ev dence co robora ing conf o rved corrobo at on is ue for iew desp e defense's a lu r test cour 's con lu on). Def se counse did nothing o e roa t v ly wa ve ew of nonymi y ssue. t i of no moment that ouns l a asked he the dete ive had been nvestigated. After rend ring compl te rul ng permitt ng he det t ve to st f anonymously h court tellingly characterized counse 's question about Hon. John P. As llo Ma h 30, 0 6 Page 14 of 15 n sum, since defens counsel pr y not fied the court that he did not want the detective to testify anonymously, and the court expre s y ru ed upon that issue, his Court has the uthor ty to reach appellant's confrontat on c ause Neither C. § 470.0 (2) nor caselaw interpreti g t cou el to refs to a t the court's ngs laim for rev ew. * * * In sum, the introduction of anonymous estimony by the primary w tness ag ins appel ant v o ated his federal and state r s to confron his ac user. xth ndment gu tees a criminal defenda t the ri cross xamine the w tnesses aga nst him, which includes the r t to know t:h ir dentities. A witness's identity is "the very start ng point in 'expos nq fa sehood and br ng ng out the truth' thr ross- x nation." Smith, 390 U.S. a 131, quoting Pointer, 380 U.S. a 404. Accordingly, th s Court set forth an unamb guous three-step p th "must" be followed before a witness may w thho d h s iden ity. Waver, 3 N.Y.3d at 7 0, quot ng Stanard, 42 N.Y. d at f3 4 . he firs steo of the protocol i hat the ople "come d wi h ome showing" of n essity o anonymou estimo y, .g., e da nt o thew tness. Id. Hee, the cour rm ted an undercover detecti o tes fy anonymously based upon onl his con l sory, une aborated agreement w th the pros cutor's ass rtion ht he was concerned about r ling his name. Because th s ve t gations as an " dd t on [al]" conce ( 4) . Counsel added to t, and then the prosecutor looked nto t matter ) . Because couns l never w thdrew his object on to the detective's anonymous t timony and his "addit on [al]" con ern was subsequent y addr ssed as epa matt r nt rely, no hing about it undermin d his r he a eady-de ided a on t issue. Nor doe t matt r that couns l did not ob t whe th st offi r began testifying under his sh e d number. wi hdraw his protest o primary det c i 's Mor ove , 1 had no pa l tus to comp ain about the aho t s t court h;:;ci l ns im s he p r detect and sin had not be invo ved in, or overheard, the n ra tions tha l to the drug al charges. s, his testimony shed no on whet r appellan bough from or s ld drugs to t fema e suspe t or had been nt pped by the de c ive. Hon. ,John Mar h 30, P. As e 2016 0 Page 15 of purported showing did not sat sfy the le's step-one burde , the e were not entitled o withho d the detective's identity. Moreov r, as th s witness was central to the People's ase, appe ant's convic ion must be reversed without regard to harml ss ror anal sis. Counsel's ini ial t on to the 's anonymous tes imony followed by tr al court's xp ruling on th ma ter preserved appellant's claim for rev ew. Criminal Proc dure Law§ 470.05(2) exp icitly provides that a party need not an addit onal pro est or ex ion to a rul ng made in respons protest. In addit on, this Court reached an ana indistinguishab e aim in ivaver even though, fo lowing i s initia p otest, the defense d d not l an add iona objections whe th court failed to conduc any inquiry of th ul imate y ru ed in favor of the People. confront Lion ssue and reversing n Waver, witness or whe i Hav ng reached he Cour shou d do so h r as we cc: Fo these r asons, Hon. Kenneth P. Di t ct Attor 3::iO Jay Stre t Brooklyn, NY 203 l\t t A.O .. M ch reversal and new tria r required. Respectfully yours, LYNN W. EY i John SLr oor New York, N 10038 (212) 693-0085 . Corsi son County B r