The People, Respondent,v.Ricardo Ricketts, Appellant.BriefN.Y.September 7, 2016APPELLATE ADVOCATES 111 JOHN STREET- 9TH FLOOR, NE'\V YORK, NE'\V YORK 10038 PHONE: (212) 693-0085 FA.X: (212) 693-0878 A ITORNEY-IN-CHARiiE LYNN W. L. FAHEY A!i!i/STANT AITORNEY-IN-CHAR(iE BARRY S. STENDIG SUPERV/S/N(i A 1TIJRNEYS DAVID P. GREENBERG ERICA HORWITZ PALIL SKIP LAISLIRE LISA NAPOLI WILLIAM G. KASTIN KENDRA L. HLITCHINSON LEILA Hllll A. AlEXANDER DoNN PATRICIA PAZNER DIRECTOR OF INNIK'ENCE /NVEST/(iA 110N.~ DE NICE POWEll Hon. John P. Asiello Clerk of the Court Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 June 28, 2016 Re: People v. Ricardo Ricketts APL-2016-00009 MICHAEL ARTHUS ALEXIS A. ASCHER STEVEN R. BERNHARD SAMUEL E. BROWN ELIZABETH E. BUDNITZ DENISE A. CORSi GOLNAZ FAKHIMI LAUREN E. JONES ANNA KOU BRYAN KREYKES JOSHUA M. LEVINE TAMMY E. LINN BENJAMIN S. LITMAN ANDERS NELSON ANNA PERVUKHIN YVONNE SHIVERS SHANDA SIBLEY ANGADSINGH LAURA 8. TATELMAN NAOTERAI ERIN TOMLINSON MARK W. VORKINK KATHLEEN E. WHOOLEY JENIN YOUNES RONALD ZAPATA DINA ZLOCZOWER OF CouN.~EI. MELISSA S. HORLICK Reply Submission Pursuant to Rule 500.11 Your Honor: Pursuant to this Court's Rule 500.11, appellant respectfully requests permission to le a reply SSM letter, as outlined below. This reply addresses arguments made in Respondent's SSM Letter, dated and served by express mail on June 14, 2016. I respectfully submit that a reply would be helpful to the Court in light of, among other things, the People's misinterpretation of the record and misapplication of this Court's decision in People v. Waver, 3 N.Y.3d748 (2004). ARGUMENT Because the People's central witness against appellant was permitted to testify anonymously despite their failure to show why his anonymity was excusable, appellant's conviction should be reversed without regard to harmless error analysis. Moreover, this matter was preserved for review by counsel's timely protest and the court's ruling. Hon. John P. Asiello June 28, 2016 Page 2 of 10 A. The People Did Not Meet Their Burden under Stanard to Show "Why" it Was Necessary to Withhold the Detective's Identity. Neither the record nor legal authority supports the People's claim that they "met their burden" under People v. Stanard, 42 N.Y.2d 74, 84 (1977), "by showing that [the detective] feared that revealing his identity would jeopardize his safety and by showing that there was a basis for that fear" (Respondent's SSM Letter [hereinafter "Res"] at 31). The detective's response, "I do," to the court's single question, "Do you have a concern for your safety if you testify in open court by name," was merely a conclusory, unsubstantiated assertion of concern. It did not meet Stanard's first requirement, that the People make a "showing of why" the detective was concerned or should be excused from giving his name. Stanard at 84. That the People must make this particularized threshold showing to justify anonymous testimony is based upon a plain reading of Stanard and the caselaw applying it and not, as the People assert, on a "conflat[ion]" of their burden to justify anonymity with their burden to justify courtroom closure (Res. at 33). Stanard requires the People to make "some showing of why" their witness should be permitted to withhold his identity. Stanard, 42 N.Y.2d at 84, quoted in People v. Waver, 3 N.Y.3d 748, 750 (2004). Here, the plain meaning of this rule required the People to provide at least some basis for the detective's purported concern for his safety before the court allowed him to testify anonymously. The bald assertion of a general concern was, as a practical matter, nothing more than a mere request for anonymity. To hold otherwise and relieve the People of their threshold burden to provide a basis for that concern would fly in the face of the principles underlying the general prohibition against anonymous testimony: [W] hen the credibility of a witness is in issue, the very starting point in "exposing falsehood and bringing out the truth" through cross-examination must necessarily be to ask the witness who he is. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross- examination itself. Smith v. Illinois, 390 U.S. 129, 131 (1968), citing Pointer v. Texas, 380 U.S. 400, 404 (1985) (emphasis added). Hon. John P. Asiello June 28, 2016 Page 3 of 10 Thus, in Stanard, anonymity was warranted because "[a] fter conducting a hearing," the court "found that [the witnesses, who had been placed in a federal witness protection program,] had been provided new identities, addresses and occupations for the purpose of safeguarding their lives 'from people who have an interest in taking them.'" Stanard, 42 N.Y.2d at 82. Such a particularized showing was entirely absent here. Contrary to the People's argument (Res. at 32-35), even when there has been no accompanying request for courtroom closure, appellate courts have demanded more than a concl usory, unsubstantiated assertion that the witness has a concern for his safety. For example, in People v. Remgifo, 150 A.D.2d 736 (2d Dep't 1989), the Appellate Division held that the prosecution had made a "showing" of the officer's "justifiable fear," and laid out the particulars provided, i.e., the witness was "still an undercover officer" buying drugs "in the vicinity" of the subject location, and he was "still assigned" to the unit he was in when he made the subject purchase." Thus, the People mistakenly rely on Remgifo to suggest that a bald assertion of concern satisfies their initial burden under Stanard (Res. at 35, n.6). Similar particulars were provided in other anonymity cases in which there was no companion claim regarding courtroom closure. For example, in People v. Ortiz, 74 A.D.3d 672, 673 (1st Dep't 2010), the Appellate Division held that the prosecution in a Bronx case had satisfied its burden, noting: The officer articulated particular concerns for his safety as a result of his continuing undercover operations. These included investigations into large-scale drug trafficking that was likely to be connected to the Bronx, notwithstanding the officer's current assignment in Queens (emphasis added). See also People v. Mills, 30 A.D.3d 294 (1st Dep't 2006) (anonymity permitted when officer was involved in ongoing investigations in vicinity of sales at issue and had been frequently threatened and as saul ted during undercover operations) ; People v. Nelson, 26 A. D. 3d 195 (1st Dep' t 2006) (same, when officer was "currently involved" in "highly confidential special investigations"). Moreover, it is evident from even cases involving both anonymous testimony and courtroom closure that an unsubstantiated assertion does do not suffice to excuse anonymity. See People v. Acevedo, 62 A.D.3d 464, 465 (1st Dep't 2009) ("in addition" to Hon. John P. Asiello June 28, 2016 Page 4 of 10 showing with respect to courtroom closure, "both officers provided particularized explanations for their fear of disclosing their true names") (emphasis added); People v. Scott, 211 A. D. 2d 589 (1st Dep' t 1995) (aside from showing as to courtroom closure, "the officer expressed a particularized fear" for his and his family's safety "if his unusual surname were revealed") (emphasis added). In apparent recognition that they made no "showing of why" the detective in the instant case should be allowed to withhold his name (Stanard, 42 N.Y.2d at 84 [emphasis added]; quoted in Waver, 3 N.Y.3d at 750), the People now attempt to retroactively justify the court's erroneous ruling. They cite the detective's post- ruling trial testimony that he had made over 100 buys during his six years as an undercover officer as "a reasonable basis to believe that revealing [his] identity would endanger him" (Res. at 32). Even assuming that the detective's past productivity or tenure, in a particular context, could provide a reasonable basis for anonymity, this was plainly not the basis for the court's ruling since only the detective's unelaborated claim of "concern" was before it at the time (53; U.C. 0062: 57-59), and it clearly did not suffice. See Waver at 750 (although Appellate Division found that officer's direct testimony provided the necessary predicate for anonymous testimony, reversing for failing to undertake Stanard protocol). Even had the detective's productivity and tenure been provided before the court's ruling, it would not have sufficed. How many buys he had made in the past or for how long was not relevant to his concern over future danger. It was involvement in an open ongoing operation, plans to return to the vicinity of the purchase site, plans to pursue subjects who evaded arrest, having been the target of a threat, or the like that could substantiate a claim of concern for the detective's future safety. But no such explanations were offered here. Thus, the detective's post-ruling trial testimony regarding his past service would not have been, nor is it now, a "reasonable basis to believe that revealing [his] identity would endanger him" (Res. at 32). Incredibly, the People also attempt to retroactively justify the court's ruling by claiming that the detective's post-ruling disclosure that he had retired three and a half months earlier provided a "reasonable basis to believe that revealing [his] identity would endanger him" (Res. at 32). Since there was no claim that the detective had been the target of any threat, this argument is completely unconvincing. Once he retired, he was no longer participating in any of the activities that might endanger an officer, such as returning to the scene, participating in Hon. John P. Asiello June 28, 2016 Page 5 of 10 ongoing operations, or the apprehension of lost subjects. That he was retired showed, if anything, an absence of justification for permitting him to testify anonymously. Because the People failed to make a threshold "showing of why" the detective's anonymity was warranted, the burden never shifted to the defense to demonstrate the value of having him testify under his real name (Res. at 31, 36}. Stanard, 42 N.Y.2d at 84, quoted in Waver, 3 N.Y.3d at 750. B. Permitting the Detective, the People's Main Witness, to Testify Anonymously over Defense Objection Requires Reversal Without a Finding of Harm. Just like the officer in Waver, the detective here was "central to the People's case," so improperly allowing him to testify anonymously mandates reversal without regard to harmless error analysis. People v. Waver, 3 N.Y.3d 748, 750 (2004). Nevertheless, by misconstruing the record, the People mistakenly claim that harmless error analysis applies (Res. at 36-40). The detective was the only witness who participated in, or heard anything during, either of the charged sales. The ghost officer watched the scene from across the street but did not hear anything, and the People did not present any other witnesses to the incidents themselves. Thus, the detective was unquestionably "central to the People's case," precluding harmless error analysis for the error of permitting him to testify anonymously over defense objection. Waver at 750. 1 The People assert that defense counsel "confirmed" wanting the detective's name only for the purpose of learning "whether [he] had been disciplined for impropriety" and, since counsel was informed that he had not, his anonymity was harmless error. (Res. at 37). In doing so, they both misread the record and artificially narrow the purpose of requiring witnesses to testify by name. 1Al though reversal is required without regard to harmless error analysis, it bears noting that appellant's conviction was hardly a foregone conclusion. Not only did appellant testify that the detective entrapped him into making the alleged drug sale underlying his conviction, but he was entirely acquitted of the sale and possession charges related to the alleged transaction with the apprehended other. Hon. John P. Asiello June 28, 2016 Page 6 of 10 After considering defense counsel's protest of the detective testifying anonymously, the court concluded its ruling: [Appellant] has not established that the name of the undercover officer was material in any way to the issues at trial. So the Court will adhere to that (53). It then noted: In addition, [defense counsel] did ask the Court to inquire of the People whether the undercover was in any way involved in Brooklyn South, during the time of allegations of impropriety (54). The court found a basis for that inquiry, confirmed what counsel "wish[ed] to know," and directed the prosecutor to speak with the detective (54-55). She reported back that he had not been investigated or been a member of Brooklyn South (55). Counsel never withdrew his protest of the detective's anonymity. Nor did counsel ever suggest that he was now satisfied to have the detective testify anonymously. That the court held two separate and distinct colloquies - one involving anonymity and the other involving the detective's investigative or disciplinary history - revealed that the court did not interpret the two concerns to be one and the same. To the contrary, it firmly concluded the first issue with its ruling, "So the Court will adhere to that" (53), before taking up counsel's "addition [al]" concern (54). Counsel's protest of the detective's anonymity was broader than his additional concern about impropriety, reflecting the principles underlying the general prohibition against anonymous testimony: that a witness's identity opens "countless avenues of in-court examination and out-of-court investigation" and "To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself." Smith v. Illinois, 390 U.S. 129, 131 (1968) (emphasis added); People v. Stanard, 42 N.Y.2d 74, 84 (1977) ("the underlying purpose of identity testimony is to establish a background setting in which to test veracity"). For example, with the detective's identity counsel in appellant's case might have unearthed evidence that he had, in fact, been investigated; that uninvestigated or otherwise ignored Hon. John P. Asiello June 28, 2016 Page 7 of 10 allegations of entrapment or impropriety had been made against him; that he had a relationship to a participant in the incident or the proceedings; or that he had given either contradictory or suspiciously similar testimony in other cases. See Smith, 390 U.S. at 390 U.S. at 131 (a witness's identity is the "very start in 'exposing falsehood'") (internal citation omitted); Alford v. United States, 282 U.S. 687, 691 (1931) (the principal purpose of cross-examination is to identify a witness within his community so that independent evidence of his reputation may be obtained) . Accordingly, just as in Waver, the notion that appellant had a sufficient "ability to cross-examine the anonymous [detective]" despite his anonymity was, indeed, "speculative." Waver, 3 N.Y.3d at 750 (Res. at 37). C. The Anonymity Issue Was Fully Preserved by Counsel's Protest and the Court's Ruling in Response to It. Defense counsel was not required to utter any magic words to manifest his protest to the detective's anonymous testimony. He needed only to alert the court to the issue so it had the opportunity to rule on it. C.P.L. § 470.05(2); see People v. Floyd, 21 N.Y.3d 892, 894 (2013) (issue preserved because counsel "unquestionably apprised" court of error) . Here, as soon as it became plain that the undercover detective was withholding his name, defense counsel objected by requesting a conference, the contents of which the court later put on the record. According to the court, defense counsel observed that the courtroom was open, noted that the People had not requested a Hinton hearing, and complained, "[Wl hy can't his name be given" (52-53) . Far from ambiguous, as the People claim (Res. at 24-25), the only reasonable interpretation of counsel's protest is that he objected to the detective testifying anonymously. And there can be no question whatsoever that the court understood the nature of counsel's protest. Remarking, "I was concerned about the witness testifying [anonymously]," the court explicitly stated that defense counsel had voiced the very same concern- "[He] 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" (52-53). The court then attempted to comply with the Stanard protocol and issued its ruling permitting the detective to testify anonymously. People v. Stanard, 42 N.Y.2d 74, 84 (1977). Thus, the court "expressly decided the question[] raised on appeal" in response to counsel's protest, preserving the matter for review. C.P.L. § 470.05(2). See People v. Feingold, 7 N.Y.3d 288, 290 (2006) (rejecting People's contention that mens rea Hon. John P. Asiello June 28, 2016 Page 8 of 10 claim was unpreserved because the defense did not "plainly present to it the trial court"; judge's decision "demonstrates that he specifically confronted and resolved" the issue) . The People mistakenly rely on People v. Gray, 86 N.Y.2d 10 (1995), and other cases concerning legal insufficiency claims to assert that greater specificity was required (Res. at 23-25, 28). But defense counsel did not make a general, unspecified objection to the officer's testimony, leaving anyone in the dark. He objected to the detective's anonymity in particular and the court explicitly ruled on that issue. C.P.L. § 470.05(2). Counsel need not have argued with the court further after it ruled (Res. at 22, 26-28). People v. Waver, 3 N.Y.3d 748 (2004); see People v. Rosen, 81 N.Y.2d 237, 245 (1993) (rejecting People's contention that prose defendant's claim regarding right to attend sidebar conferences with stand-by counsel was not preserved because defendant "'dropp[ed] the subject without further discussion' after the court announced its ruling"; "defendant's specific application and the court's equally specific ruling were sufficient to preserve the issue") . Rather, the onus was on the People to meet their initial burden to show "why" the detective's anonymity was warranted, Stanard, 42 N.Y.2d at 84, and counsel did not have to "apprise" the court that "the People had failed [to do so]" {Res. at 25) . Just as in Waver, 3 N.Y.3d 748, defense counsel here protested an officer's anonymous testimony, but did not protest further when the court erroneously allowed him to withhold his identity because the defense had not shown prejudice. Waver at 7 4 9. Although Waver's attorney did not ask the trial court to inquire of the officer, complain that it had not properly executed the Stanard protocol by skipping over the People's initial burden entirely, or otherwise object to the ruling, this Court reached the issue and reversed. Id. at 750 ("The sequential three-step inquiry mandated by Stanard was not undertaken, and this is reversible error"). Similarly here, counsel did not complain when the trial court did the same thing by failing to elicit a need for anonymity and shifting the "burden" to appellant to "establish[] that the name of the undercover officer was material [to the trial issues]" (53). Thus, as in Waver, any further protest was unnecessary to preserve the anonymity issue for this Court's review. C.P.L. § 470.05(2). In apparent recognition of the striking parallels between Waver and appellant's case, the People attempt to distinguish the· two by arguing that, unlike the initial protest in Waver, appellant's protest was "ambiguous" (Res. at 29). But, for reasons Hon. John P. Asiello June 28, 2016 Page 9 of 10 discussed throughout this section, there was nothing ambiguous about defense counsel's protest or the court's explicit ruling in response to it. Absurdly, the People also attempt to distinguish the two cases by noting that, while the Waver attorney said that he did not "see any reason why [the officer's name] should be withheld," counsel in appellant's case complained, "[W] hy can't his name be given" (Res. at 29). These nearly identical protests both unquestionably "apprised the trial court of [the defendants'] legal position[s]" (Res. at 29). The People also mistakenly contend that, because appellant did not assert a "constitutional argument" during his objection, he did not preserve a Sixth Amendment Confrontation Clause claim (Res. at 23, 29-30). But protesting a witnesses's anonymity is, in and of itself, raising a Confrontation Clause claim, obviating the utterance of any magic words to invoke it. The Stanard protocol is born of the Sixth Amendment right to confront one's accuser via the crucible of cross-examination. Stanard repeatedly framed the anonymity issue as a tension between the defendant's right to cross-examine the witnesses against him and the state's interest in withholding their identities, Stanard at 83-85, and discussed at length the two leading United States Supreme Court cases regarding restrictions on cross-examination. Stanard at 83 ("In both Alford and Smith there was no showing of any interest of the state or the witness that would justify restriction of cross-examination") (emphasis added). Thus, by protesting the detective's anonymity, counsel necessarily made a Confrontation Clause claim. 2 Again misconstruing the record, the People also claim that this matter is unpreserved because defense counsel "explicitly acquiesced" in the court's purported "remedy" of "asking the People to determine whether [the detective] had been disciplined [or] a member of Brooklyn South [Narcotics Unit]" (Res. at 21-22, 28-29). But, as argued above (see section B, ante), it is abundantly clear that counsel in no way withdrew his anonymity protest or acquiesced in the ruling allowing the anonymous testimony. See People v. 2Contrary to the People's argument (Res. at 29-30), People v. Kello, 96, N. Y .2d 740 (2001), does not indicate otherwise. In Kello, the defendant argued that a 911 call did not fall into the present sense impression exception to the hearsay rule. Id. at 742-743. Because that objection was based on state rules of evidence, a separate objection was required to preserve the distinct federal constitutional Confrontation Clause claim. Id. at 743. Here, in contrast, there was but a single error, which flowed from the Confrontation Clause. Hon. John P. Asiello June 28, 2016 Page 10 of 10 Mezon, 80 N.Y.2d 155, 160-61 (1992) (the prosecution had not waived its right to a written suppression motion when, after requesting one, they participated in a suppression hearing without further protest; a party is not required to "make repeated pointless protests after the court has made its position clear"). * * * For the reasons stated above and in appellant's main SSM Letter, this Court should reverse appellant's conviction and order a new trial. Respectfully yours, LYNN W. L. FAHEY Attorney for the Defendant-Appellant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 By: Denise A. Corsi Of Counsel cc: Hon. Kenneth P. Thompson District Attorney, Kings County 350 Jay Street Brooklyn, NY 11203 Attn: A.D.A. Michael Brenner