The People, Respondent,v.Joshue DeJesus, Appellant.BriefN.Y.February 17, 2015APL-2014-00084 To be argued by ALICE WISEMAN (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSHUE DEJESUS, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ELEANOR J. OSTROW ALICE WISEMAN ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 9, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................... 2 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT TRIAL ............................................................................................ 5 The People’s Case ....................................................................................................... 5 The Defense Case ..................................................................................................... 28 The People’s Rebuttal Case ..................................................................................... 32 POINT DEFENDANT’S CONFRONTATION RIGHTS WERE NOT VIOLATED. ....................................................................................... 33 CONCLUSION ................................................................................................................... 73 TABLE OF AUTHORITIES FEDERAL CASES Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705 (2011) ..................................... 50 Crawford v. Washington, 541 U.S. 36 (2004) ........................................... 42, 50-51, 54, 60 Davis v. Washington, 547 U.S. 813 (2006) ........................................................................ 50 Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) ....................................................................... 54 Mendez v. Graham, 2012 WL 6594456 (E.D.N.Y. 2012) ............................................... 54 Michigan v. Bryant, __ U.S. __, 131 S.Ct. 1143 (2011) ................................................... 50 Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011), cert. denied, 133 S.Ct. 62 (2012) ................................................................................... 54 Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) ...................................................................... 54 Tennessee v. Street, 471 U.S. 409 (1985) .......................................................... 50-51, 60-61 United States v. Matera, 489 F.3d 115 (2d Cir. 2007) ...................................................... 50 United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) ..................................................... 50 STATE CASES People v. Belge, 41 N.Y.2d 60 (1976) ................................................................................ 46 People v. Boyd, 58 N.Y.2d 1016 (1983) ............................................................................ 48 People v. Clarke, 81 N.Y.2d 777 (1993) ............................................................................ 48 People v. Crimmins, 36 N.Y.2d 230 (1975) ...................................................................... 65 People v. DeJesus, 105 A.D.3d 476 (1st Dept. 2013) ............... 4-5, 34, 52, 55, 59, 64, 71 People v. Eastman, 85 N.Y.2d 265 (1995) ........................................................................ 50 People v. Goode, 87 N.Y.2d 1045 (1996) ......................................................................... 46 People v. Gray, 86 N.Y.2d 10 (1995) ............................................................................ 45-46 -ii- People v. Hawkins, 11 N.Y.3d 484 (2008) ........................................................................ 46 People v. Jackson, 8 N.Y.3d 869 (2007) ............................................................................ 65 People v. Johnson, 57 N.Y.2d 969 (1982) ......................................................................... 71 People v. Kello, 96 N.Y.2d 740 (2001) .............................................................................. 45 People v. Love, 57 N.Y.2d 1023 (1982) ............................................................................. 48 People v. Martin, 50 N.Y.2d 1029 (1980) .......................................................................... 46 People v. Morris, 21 N.Y.3d 588 (2013) ............................................................................ 52 People v. Qualls, 55 N.Y.2d 733 (1981) ............................................................................ 48 People v. Reid, 19 N.Y.3d 382 (2012) ................................................................................ 51 People v. Reynoso, 2 N.Y.3d 820 (2004) ......................................................... 50-51, 54, 60 People v. Rivera, 96 N.Y.2d 749 (2001) ...................................................................... 51, 59 People v. Rosen, 267 A.D.2d 28 (1st Dept. 1999), aff’d, 96 N.Y.2d 329 (2001) ........................................................................................... 49 People v. Tosca, 98 N.Y.2d 660 (2002) ............................................................................. 51 FEDERAL CONSTITUTIONAL PROVISIONS U.S. Const. Amend. VI, XIV .............................................................................................. 50 U.S. Const. Amend. VI, XIV .............................................................................................. 50 STATE STATUTES AND CONSTITUTIONAL PROVISIONS CPL 470.05(2) ................................................................................................................. 45, 48 N.Y. Const, Art. I, § 6 .......................................................................................................... 50 N.Y. Const., Art. VI, § 3 ...................................................................................................... 46 Penal Law § 125.25(1) ............................................................................................................ 1 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSHUE DEJESUS, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, defendant Joshue DeJesus appeals from an order of the Appellate Division, First Department, dated April 9, 2013. That order affirmed a September 16, 2009 judgment of the Supreme Court, New York County (Bruce Allen, J.), convicting defendant, after a jury trial, of Murder in the Second Degree (Penal Law § 125.25[1]) and sentencing him to an indeterminate prison term of 20 years to life. Defendant is currently incarcerated pursuant to that judgment. COUNTER-STATEMENT OF QUESTIONS PRESENTED 1) Where defendant did not object when the court ruled pre-trial that the People could introduce background testimony that he now contends on appeal violated his Confrontation Clause rights, and where his mid-trial objection to the testimony, while ostensibly based on the Confrontation Clause, relied on a different legal theory than the one he asserts on appeal, is defendant’s present appellate claim preserved? 2) Where the defense strategy at trial was to urge that the People’s identifying witness framed defendant to shield the real shooter and where defendant had indicated before trial that he might suggest to the jury, without basis, that the witness had focused the police on defendant as a possible suspect in the first instance, did the trial court violate defendant’s Confrontation Clause rights by allowing the people to introduce limited background evidence that the police had come to suspect defendant as a result of their investigation even before the witness identified defendant as the shooter from a photo array? INTRODUCTION At about 3:45 a.m. on June 9, 2006, near the corner of 135th Street and Broadway in Manhattan, defendant walked up to 20-year-old Julio Montes and shot him in the abdomen. The shooting was witnessed by Montes’s friend Lenny Carrasco, who had seen defendant many times in the neighborhood where all three men lived. After the shooting, defendant turned and walked back towards Carrasco, passing him at close range. As he did so, Montes pointed after defendant, saying, “I know where you live and I know where you’re from.” Carrasco and other friends rushed Montes to the hospital, where he died in surgery two hours later from the effects of the gunshot wound. -2- After initially denying to police that he had seen the shooting, in an effort to avoid being a “snitch,” Carrasco picked defendant out in a photographic array that evening. Defendant’s close friends and family unsuccessfully tried to locate him in the hours after the shooting, and he fled to Florida the following day, remaining at large until November 8, 2006, despite extensive police efforts to locate him. On November 8th, defendant surrendered to police in New York. Carrasco identified him in a lineup that evening. By New York County Indictment Number 6141/06, filed on November 30, 2006, defendant was charged with Murder in the Second Degree. After suppression proceedings not at issue on this appeal, defendant proceeded to a jury trial on June 11, 2009, before the Honorable Bruce Allen. On July 10, 2009, the jury convicted defendant as charged, and, on September 16, 2009, defendant was sentenced as noted above. Defendant appealed to the Appellate Division, First Department. In a brief filed by his attorney, defendant claimed that his rights under the Confrontation Clause were violated by the admission, without a limiting instruction, of testimony regarding when he became a suspect in the shooting. According to defendant, that testimony suggested that he had been identified as the shooter by someone other than Carrasco. Defendant also contended that he was denied a fair trial by testimony that he claimed bolstered the reliability of Carrasco’s identification and by testimony and summation comments that, in his view, suggested that defendant had threatened witnesses. -3- Finally, he argued that his sentence was excessive. In a pro se supplemental brief, defendant made additional complaints regarding the prosecutor’s summation and cross-examination of a defense witness. On April 9, 2013, a unanimous panel of the Appellate Division affirmed defendant’s conviction, rejecting all of his claims. People v. DeJesus, 105 A.D.3d 476 (1st Dept. 2013) (A3-6).1 As is relevant here, the court concluded that defendant’s right of confrontation was not violated. Noting that “the prosecutor did not actually introduce any testimonial statements by nontestifying declarants,” the court found that a detective’s “brief, limited testimony that defendant was already a suspect at the time the People’s main witness was interviewed” did not violate the Confrontation Clause because it was not offered for its truth but rather “for the legitimate nonhearsay purposes of completing the narrative, explaining police actions, providing the context of the interview, correcting a misimpression created by defendant on cross-examination and preventing jury speculation.” The court further concluded that “[t]he probative value of this evidence for its nonhearsay purposes outweighed any prejudicial effect.” Id. at 476 (A3-4). The court determined that defendant had not preserved his claim that the trial court should have given the jury a limiting instruction regarding the testimony, and, as an alternative holding, found that the absence of such an instruction was “harmless under all the circumstances of the case, including the 1 Parenthetical page references preceded by “A” are to defendant’s Appendix. -4- limited prejudicial effect of the challenged evidence.” People v. DeJesus, 105 A.D.3d at 477 (A4-5).2 On appeal to this Court, defendant renews his claim that his right to confront the witnesses against him was violated by testimony that the police considered him to be a suspect before Lenny Carrasco identified him. THE EVIDENCE AT TRIAL The People’s Case For several years, defendant, Julio Montes, Lenny Carrasco and their friends live within blocks of each other on 135th Street and 136th Street. On June 8, 2006, 20-year-old Julio Montes, a salesman and aspiring rapper known to his family and friends as “June,” lived on West 135th Street between Broadway and Amsterdam Avenue in Manhattan, with his mother and other family members (RACQUEL JACHERO [Montes’s Sister]: A169-71). Montes’s best friend, LENNON “Lenny” CARRASCO, lived across the street. The two men, who were the same age, had known each other all their lives, and spent time together every day during the summer of 2006 (Carrasco: A625, A671, A673-75, A682-83, A696-97). 2 The Appellate Division also rejected defendant’s claim that his attorney rendered ineffective assistance by not requesting such an instruction, both because that claim had been improperly raised for the first time in a reply brief and because defendant had not “established that the absence of the instruction resulted in prejudice under the state or federal standards.” People v. DeJesus, 105 A.D.3d at 477 (A5). -5- ARAMIS CATEDRAL, who lived nearby on 136th Street, was a good friend of both Montes and Carrasco (Catedral: A970-73, A1012). Defendant Joshue DeJesus, who was known as “Sway,” lived with his family on 135th Street between Broadway and Riverside Drive, a block away from Montes and Carrasco. His close friend LEOMALIS TORRES and her husband, Kenny Tello, lived across the street. ROBERT REYNOSO and ERIKA CASTRO, another couple who were close friends of defendant, lived in Pennsylvania but had grown up in the neighborhood and were staying with family on 135th Street on June 8th (Reynoso: A826-27, A849-50; Castro: A919-20; Torres: A1549-50, A1557). MIGUEL BLANCO, a bouncer at a local club called “J.J.’s Sports Bar,” lived across the street from defendant, whom he had known casually for about eight years (Blanco: A278-83, A291, A310, A360-61). Montes and defendant were “acquaintance[s] from the neighborhood” (TANIERY CASTILLO [Montes’s Stepsister]: A1472). In June 2006, defendant was a “big” man with long hair that he typically wore in a shoulder-length ponytail (Blanco: A284-87; Carrasco: A680; Castillo: A1497-98; Torres: A1594-95; People’s Exhibit 30 [photograph of defendant as he appeared in June 2006]). He frequently stood in front of his building on 135th Street (Blanco: A282-83; Carrasco: A760; Reynoso: A850; Castro: A911; Castillo: A1448-49, A1495). Although Carrasco did not personally know defendant, he saw defendant “hanging out” in that location 18 to 20 times during the two years preceding June 2006, and -6- people “in the street” told him that defendant was known as “Sway” or “Jose.”3 Carrasco had never had any “problems” with defendant (Carrasco: A650-52, A704-05, A736-38, A754, A757-60). Defendant and his “crew” spend the evening of June 8, 2006 to June 9, 2006 in J.J.’s Sports Bar, as do Montes, Carrasco, and their friends. Montes leaves at the same time as a group that has a dispute with defendant’s crew. Starting at about 11:00 p.m. on Thursday, June 8, 2006, Carrasco and Catedral played basketball with friends in a park at 136th Street and Amsterdam Avenue. The men drank rum and smoked marijuana as they played. At some point, Montes arrived and urged the men to join him at J.J.’s Sports Bar, on the east side of Broadway between 135th Street and 136th Street. Carrasco eventually did so at about 1:00 a.m. (Blanco: A287, A289, A291; Carrasco: A635-42, A683, A699-700; Catedral: A973-75). That night, Miguel Blanco was working a 10:00 p.m. to 4:00 a.m. shift at J.J.’s. As someone “from that neighborhood,” his job was to mingle with patrons and “make sure everything was good” (Blanco: A289-90, A295-96, A344). Defendant, who regularly spent Thursday nights at J.J.’s, was there with four or five friends, including Reynoso, Tello, and a black man nicknamed “Gotti,” who had once dated Montes’s sister (Blanco: A301-02, A336, A369; Reynoso: A833, A835-39, A841-42; 3 Carrasco testified in the grand jury that he knew defendant as “Jose” or “Joshue,” and by “no other nicknames” (Carrasco: A705-06, A757). Reynoso explained that Joshue and “Sway” were “like in Spanish, same name” (Reynoso: A826). -7- Castillo: A1450-52). When defendant and his friends first arrived, the bar was not crowded, and they went to “their corner” near the entrance of the club, where they “usually stand as a crew” (Blanco: A304, A317, A343, A350).4 At some point, a “second crew” of regulars came into the club: a group called the “White T’s” (Blanco: A305-06, A337, A341-43; Carrasco: A695). Because Blanco had heard rumors that the White T’s and defendant’s “crew” had gotten into some sort of argument during the day, he asked defendant’s “crew” whether “everything was good.” He was told that there was “no problem.” Blanco kept an eye on the two groups thereafter, and saw no interaction between them until the end of the night (Blanco: A305-06, A311- 12, A337, A372). Neither Carrasco nor Montes was a member of the White T’s. However, Montes was “friendly” with the group and spent some time with them at the club that night (Blanco: A306-09, A339, A344-47; Carrasco: A695-96; Catedral: A980-82). Carrasco stayed at J.J.’s until about 3:45 a.m. (Carrasco: A643, A645, A700-01, A753). There was a one-dollar special on beer, and Carrasco had several, although he did not remember how many. He also had one or two glasses of cognac, but did not drink as much as he usually did (Carrasco: A642, A644, A700-01, A753-54). As the 4 Male patrons entering the bar were patted down for weapons (Blanco: A362; Reynoso: A839). Blanco was not responsible for security on the night of June 8-9 and he did not search defendant or anyone in his group. He did not recall seeing anyone search defendant that night (Blanco: A362, A367-68, A379-81). Carrasco received a “quick” pat down, and Reynoso also recalled being searched for weapons that night (Carrasco: A754; Reynoso: A839). -8- bar was starting to close, Carrasco was “feeling right.” He was not drunk to the point that he “couldn’t speak or talk or walk” (Carrasco: A644; Catedral: A977-80, A1008).5 Sometime before 3:45 a.m., the White T’s left J.J.’s, passing by the table where defendant and his “crew” were standing. Montes headed towards the door at the same time, walking about 10 feet away from the White T’s (Blanco: A316, A320-22, A356-57, A374-75, A378).6 As the White T’s walked out, one of them forcefully threw a piece of ice at defendant’s “crew,” hitting the wall near them. The ice thrower then tried to “hide within the group.” Once outside, the man looked back at defendant’s crew through the glass “to see their reaction” (Blanco: A316-17, A319, A323-25, A327, A353-55, A357-60). When the ice was thrown, the members of defendant’s group “kind of looked at each other as i[f] they were surprised,” and their faces “transform[ed]” from smiling 5 Blanco saw Carrasco for a “good portion” of the evening. Carrasco was usually a “real quiet, laid back kind of person,” who would “sit there with a beer” and watch television. That night, however, he was “real happy.” At one point, Blanco saw Carrasco dancing on a chair, and told him to stop. Carrasco jumped down and hugged Blanco, which was what first indicated to Blanco that Carrasco was “a little tipsy” or “semi drunk” (Blanco: A312-15, A345-46, A363, A366-67). Blanco never saw Carrasco stumble, and he did not recall him slurring his words; although Blanco thought Carrasco was acting more intoxicated than Blanco had seen him act before, the only thing that made Blanco think Carrasco was drunk was that he was “overly friendly” (Blanco: A313, A315, A346, A366-67). 6 Blanco did not recall exactly when Montes and the White T’s left, but it was about 10 or 15 minutes before J.J.’s closed, which occurred earlier that morning than the usual 4:00 a.m. closing; the manager abruptly shut the club down early in the wake of the shooting (Blanco: A320-21). When called as a witness on rebuttal, Blanco testified that the manager shut the club down “a few minutes” after the White T’s left (Blanco: A1901-02). -9- to surprise, then “anger” (Blanco: A324, A326, A352, A370-71).7 Once they noticed that the ice thrower was looking back inside, the group all left the club together in a rush. Blanco thought that they were “mad,” because they slammed the door open as they left (Blanco: A330-31, A354, A359, A371-72, A375; see Blanco: A1902). Catedral saw some sort of “commotion” at the door, and observed “[e]verybody” walking towards the door, including Montes and Carrasco. Montes approached Catedral and asked “if the problem was with” Catedral and Catedral’s friends. Catedral said that it was not. Montes and others then went outside (Catedral: A984-85, A1005-06, A1018). As Lenny Carrasco watches from less than 10 feet away, defendant shoots Montes at close range on 136th Street. Montes is rushed to the hospital, where he dies. Carrasco left the bar at about 3:45 a.m., after “most of the guys,” including Montes, had already left. As Carrasco stepped outside, a man he knew from the neighborhood as “Sisco” pointed north, towards the corner of 136th Street and Broadway, and told Carrasco not to go that way because “[s]omething is going to happen” (Carrasco: A645-46, A662, A702, A715-16, A753). Carrasco looked in the direction Sisco was pointing, and he saw Montes on the corner, arguing with a man Carrasco did not know (Carrasco: A646-48, A653, A662-67, A703-04, A708, A776- 7 Reynoso, a member of defendant’s group, testified that he did not remember anyone throwing a piece of ice (Reynoso: A842-43). -10- 77).8 Other people, also unknown to Carrasco, were standing around them (Carrasco: A749-50). Carrasco heard “a lot of loud commotions” and screaming, but no punches were thrown and neither man had a weapon in his hand. He could not hear what they were arguing about (Carrasco: A647, A708). Carrasco walked north on Broadway to see what was going on (Carrasco: A647-48, A653, A774). As he did so, he noticed defendant walking in the same direction in front of him, wearing jeans and a “hoody sweater” (Carrasco: A648-50, A652-54, A665-66, A772-75).9 No one else was walking along Broadway at that point (Carrasco: A653, A774). 8 Carrasco testified in the grand jury that Montes was arguing with “some guy named Gotti” (Carrasco: A707-08, A745). At the time of trial, Carrasco was “not sure” why he had said Montes was arguing with “Gotti” (Carrasco: A710, A745, A776-77). He was also “not sure” whether he had ever seen the man who was arguing with Montes in defendant’s company (Carrasco: A663). When asked if he “kn[e]w Gotti,” Carrasco said that he did not (Carrasco: A776). As already noted, defendant had a friend nicknamed “Gotti,” whom witnesses described as a short, stocky black man in his late 20’s with very short hair, who had once dated Montes’s sister and was at J.J.’s with defendant on the night of the shooting (Reynoso: A831, A835-37, A841-42; Castillo: A1450-54, A1465). There was also testimony at trial regarding another man nicknamed “Gotti,” who was a friend of Montes and who had played basketball in the park with Catedral and Carrasco on the evening of June 8th (Catedral: A1019; Castillo: A1457-58). That man was described as a “very skinny” Hispanic man, about five feet seven inches tall, with hair that could be put in a short ponytail (Castillo: A1458-59, A1474-76, A1491-92). He looked nothing like defendant, who had a long ponytail down to his shoulders in 2006, about four or five inches longer than Gotti’s hair, and was also “way heavier” than Gotti (Castillo: A1458-60, A1497-98). Montes’s friend Gotti was not allowed to enter J.J.’s because he was under age, and he did not go there with Carrasco and Catedral after playing basketball; indeed, Catedral did not see that Gotti at any point that night after the basketball game ended (Catedral: A1017-20). 9 At that point, Carrasco was behind defendant, and Carrasco did not yet realize who the man in front of him was. Moments later, when defendant turned and walked towards -11- (Continued…) When Carrasco reached 136th Street, he stopped at the payphone near the corner. Defendant turned the corner and kept walking “up to the crowd” (Carrasco: A648-49, A654, A664, A711, A772-73, A775). At that point, Montes and the man he was arguing with had moved a short distance from the corner, towards Amsterdam Avenue, but still remained close to Broadway, 8 to 10 feet away from where Carrasco was standing (Carrasco: A653, A662-63, A711-12, A716-17). They were still arguing as defendant approached to within arm’s length of Montes. With his back to Carrasco, defendant reached into his waistband with his right arm, then extended his arm towards the center of Montes’s chest from about two feet away (Carrasco: A648, A654-59, A666-67, A725-26, A735, A750, A778-79, A781-83).10 The end of defendant’s arm was “pretty close” to Montes’s chest, but Carrasco could not say “within inches” how close it was (Carrasco: A784). Carrasco could not see what was in defendant’s hand. Montes had nothing in his hands, and did not lunge at or threaten defendant (Carrasco: A647, A681, A725, A750). Carrasco heard a single sound that he did not recognize as a gunshot at first because it “sounded low” (Carrasco: A656-57, A668, A712). Defendant then turned Carrasco after shooting Montes, Carrasco saw defendant’s face and recognized him (Carrasco: A648, A661). 10 Carrasco demonstrated several times to the jury how defendant reached into his waistband and extended his arm towards Montes (Carrasco: A658-59, A725, A779, A781- 82). -12- ______________________ (…Continued) around and walked back the way he had come, towards Carrasco, who had an unobstructed view of defendant’s face under the street lights. The “hoody” defendant was wearing covered his head, not his face, and Carrasco recognized defendant as the man known as “Sway,” whom Carrasco had seen on 18 to 20 occasions around the neighborhood (Carrasco: A649, A651-52, A657, A661, A668, A704-05, A723). Carrasco did not realize at first what had happened, but Montes took “a couple of steps” towards Carrasco and said, “Yo El, they just shot me” (Carrasco: A657, A660). Montes lifted up his shirt, and Carrasco saw a “hole” in his chest, but no blood (Carrasco: A669, A713, A722). Pointing at defendant, Montes said, “I know where you live and I know where you’re from” (Carrasco: A660, A669). Defendant turned the corner onto Broadway and continued back in the direction of J.J.’s (Carrasco: A669, A723). Meanwhile, about “12, 14 minutes” after Montes had left J.J.’s, Catedral walked outside (Catedral: A985, A1005-06, A1018). He saw “everybody walking to like the corner” of 136th Street and Broadway, where a “little circle” had formed (Catedral: A985-86). As Catedral walked in the same direction, to see what was going on, he heard a shot (Catedral: A986-87, A1000). After a brief pause, Catedral ran towards the corner as “everybody start[ed] scattering” (Catedral: A987, A1000-01, A1016). Catedral, who did not know defendant, saw a man run towards Broadway and then back towards J.J.’s, in the direction of 135th Street. The man wore dark blue jeans, a black “hoody,” and black boots, and was about five feet eight or nine inches tall and -13- weighed 190 to 195 pounds (Catedral: A994-95, A1005, A1018). Catedral did not see the man’s face (Catedral: A995, A1005, A1018).11 Seconds after the shooting, Carrasco called 911, asking for an ambulance and the “5-0,” or police (Carrasco: A670-71, A685, A691-92, A748-49, A761; Police Department Media Service Technician PILAR RAMOS: A959, A963-67). He became frustrated and angry when the operator kept asking questions. Thinking that the operator was not requesting an ambulance, Carrasco hung up (Carrasco: A671, A84- 85). When Catedral reached the corner of 136th Street and Broadway, Montes was on the ground. Carrasco, Sisco, and a man named Kelvin were kneeling beside him, “trying to calm him down” and keep him from talking (Catedral: A989-90, A1001-03, A1007). Catedral joined the group, and heard Montes cursing and saying, “[H]e hit me” or “He shot me” (Catedral: A990-91, A1003-04). Sisco went to get his van, and Montes was placed in the back, lying down. The van raced to Columbia Presbyterian Hospital on 168th Street (Carrasco: A671-74, A685; Catedral: A990, A992). 11 Defendant’s friend Reynoso had also left J.J.’s alone sometime before closing; he did not know whether defendant was still there (Reynoso: A844). He began walking towards his apartment on 135th Street, but then noticed a “crowd of people” on 136th Street and went over to see what was happening. He saw “young kids” arguing, but no one that he recognized, so he turned and walked back towards 135th Street (Reynoso: A844-48). As he was doing so, he heard people “screaming and running” behind him (Reynoso: A844, A848). He did not hear a gunshot (Reynoso: A848). -14- Montes was “still responsive” when he arrived at the hospital at 4:03 a.m. He was taken into the operating room at around 4:30 a.m., but was pronounced dead at 5:45 a.m. (Doctor ELIZABETH BUNDOCK: A802-03). Carrasco and the others stayed at the hospital until they were told that Montes was dead (Carrasco: A674). Police respond to the scene and attempt to locate witnesses and evidence. Afraid to be involved, Lenny Carrasco initially denies witnessing the shooting, but later tells police he saw the shooting and identifies defendant in a photo array. Minutes after Montes had been brought to the hospital, a police officer arrived and spoke with some of the people who had accompanied Montes there. However, Carrasco did not go over to speak with the officer because he “didn’t want to get involved” and “go through the court situation” (Carrasco: A692-94, A761-62). He was “frightened” about something happening to him or to his family (Carrasco: A761- 62). Meanwhile, Night Watch Detective CURTIS BONILLA and his partner had responded to the crime scene. They obtained a list of the telephone numbers of all the people who had called 911 about the shooting, and they contacted the callers by telephone (Bonilla: A1031-32, A1037, A1039, A1044).12 At about 4:50 a.m., Bonilla 12 Bonilla, who arrived at the crime scene at about 4:15 a.m., recorded on a police report that the “lighting was sufficient,” meaning that “you could see clearly” (Bonilla: A1031, A1034-37, A1048). Police Officer ERICH OBOJKOVITS, who began safeguarding the crime scene sometime after 4:30 a.m., found the lighting at that hour such that he had “no trouble seeing” people on the street (Obojkovits: A460-62, A464, A471, A477-78). There was a streetlight in the middle of the block, on the same side of the street as the -15- (Continued…) called Carrasco. Carrasco was still frightened and did not want to be “involved” or wind up in court, so he falsely told Bonilla that he had been in front of a Crown Chicken restaurant on Broadway and had heard a “pop,” then went running to the corner and saw Montes lying on the sidewalk (Carrasco: A719-21, A738-39, A763-65; Bonilla: A1039, A1043-44, A1047).13 Later that morning, at about 7:45 a.m., Detective RODRIGO CABALLERO of the 30th Precinct and Detective ANTONIO RIVERA of the Manhattan North Homicide Squad were assigned to the case (Rivera: A1057-58, A1152-53; Caballero: A1231-33, A1236). After arriving at the crime scene shortly after 8:00 a.m., Rivera and Caballero began canvassing the area for witnesses and for cameras that might have surveillance footage of the shooting. One camera had footage that showed “people running up the block” towards Amsterdam Avenue, but it did not show the shooting and it was not possible to make out the faces of any of the people on the tape (Rivera: A1059, A1064-68, A1164-67, A1172; Caballero: A1250-53, A1324-28, A1363-65). As was usual in that area, the people with whom the detectives spoke were not “cooperative” (Rivera: A1069). shooting, and another one on the north side of 136th Street at the corner (Detective RODRIGO CABALLERO: A1306-19, A1356-59). 13 The Crown Chicken was on the west side of Broadway between 135th and 136th Streets, about 100 feet away from the scene of the shooting. The shooting took place on 136th Street, and would not have been visible from the Crown Chicken (Obojkovits: A474- 75; Carrasco: A717). -16- ______________________ (…Continued) At about 4:00 p.m., “as a result of [their] investigation,” detectives began looking for defendant as a suspect in the shooting (Rivera: A1073-75, A1151, A1154- 55, A1200-1201; Caballero: A1240-43). Neither Rivera nor Caballero had spoken with Carrasco at that point (Rivera: A1074; Caballero: A1238). After performing “computer checks,” Rivera obtained an address for defendant on 135th Street between Broadway and Riverside Drive (Rivera: A1075-76, A1201).14 At about 7:00 p.m., Rivera met with Carrasco at the 30th Precinct (Rivera: A1077, A1080-82; Caballero: A1237, A1285). Carrasco was still “scared” and “trying not to get involved,” because he “didn’t want to be . . . a snitch in the hood” and did not want to be called as a witness at a trial (Carrasco: A675, A684, A729). He appeared “nervous” and “not too forthcoming,” giving “[s]hort answers” to Rivera’s questions and not “giving a lot” of details (Rivera: A1082, A1210-11, A1214). Carrasco again claimed falsely that he had been in front of the Crown Chicken during the shooting (Carrasco: A727-29; Rivera: A1163). However, he now told Rivera that, from that location, he saw “somebody walk towards” Montes and shoot him, and gave Rivera a description of the shooter: a light-skinned Hispanic man with long “coarse” hair who was wearing a gray “hoodie” and blue jeans (Carrasco: A675-76; 14 Rivera contacted other police units to confirm that defendant lived at that address, but the police did not immediately go there to attempt to find defendant. On cross- examination, Rivera explained that this was because “scuttlebutt around the neighborhood” was that defendant had not gone home and was not in the neighborhood anymore (Rivera: A1076-77, A1172, A1203-04, A1209-10). -17- Rivera: A1083-84).15 Carrasco said that he recognized the man from “the neighborhood”; in particular, from 135th Street between Broadway and Riverside Drive, and that he could identify him (Carrasco: A766, A787, A789-90; Rivera: A1084, A1162, A1200). Rivera gave information about his conversation with Carrasco to Caballero. After hearing from Rivera, Caballero put together an array of six pictures that included defendant’s photograph and showed it to Carrasco at about 10:00 p.m. (Carrasco: A741-44, A767-68, A790; Caballero: A1239-40, A1243-45, A1286, A1352, A1354-55, A1367-69). Carrasco, who appeared “scared” when viewing the array, picked out defendant’s photograph as the man who had shot Montes (Carrasco: A742, A744, A768-69; Caballero: A1245, A1387). However, when Caballero then tried to get Carrasco to provide more details of “what happened,” Carrasco kept trying to “stall” him and avoid his questions (Carrasco: A768-70). Carrasco was still 15 On cross-examination defendant’s attorney asked Carrasco whether he had told Detective Rivera that, “while across the street . . . in front of Crown Chicken, you were able to . . .. see a dispute with a light skinned male Hispanic, long co[a]rse hair, wearing a gray hoody and jeans and then you hear a shot.” Carrasco responded, “Yes, sir” (Carrasco: A729- 30). Later, counsel again asked Carrasco whether he told Rivera that he saw Montes “in a dispute with a light skin male Hispanic man” who had long coarse hair and wearing a gray “hoodie,” and Carrasco responded affirmatively. Counsel then asked whether Carrasco had told Rivera that he heard a shot and then heard Montes say “to the man with the hoodie” that he knew who the man was and where he lived. Carrasco again replied in the affirmative (Carrasco: A739-40). -18- trying to avoid having to testify at a trial, but, at the same time, his relationship with Montes made him “want to be a part of it” (Carrasco: A770).16 That night, at about 11:00 p.m., Rivera gave information regarding defendant to Central Warrants, so that it would be entered into a nationwide system and ensure that, if defendant were “stopped,” he would be detained and the detectives would be notified immediately (Rivera: A1084, A1090-92). Defendant’s family and friends exchange early-morning telephone calls in an effort to locate him. On the night of June 8, 2006, defendant’s close friend Leomalis Torres stayed at home while her husband Kenny Tello went to J.J.’s Sports Club (Torres: A1557- 58). Sometime early on the morning of June 9th, Torres was awakened by Tello calling to tell her about the shooting (Torres: A1563-67). Torres testified that she did not remember calling Tello that morning (Torres: A1561-62, A1565), but, after being shown telephone records indicating that she called his cell phone eight times between 4:19 a.m. and 5:35 a.m., she “guess[ed]” that she had called him so many times because Tello had told her that he had heard that defendant had been shot, and Torres was upset and wanted to find out “if he knew anything else” (Torres: A1568; 16 On cross-examination, defense counsel asked Carrasco whether he told Caballero that he “heard the gunshot and . . . heard Julio Montes say to the man he was arguing with, ‘You shot me; I know you and I know where you live.’” Carrasco replied, “Yes, sir” (Carrasco: A741; see also A743-45). Caballero agreed on cross-examination when defense counsel asked whether Carrasco had told him that “the person who shot [Montes] was the guy [Montes] was arguing with” (Caballero: A1385-86, A1390). -19- People’s Exhibit 69 [Tello’s phone records]). Torres and Tello also called defendant’s sister, Charlene Martinez, a “number of times,” to “make sure that [defendant] was okay.” Torres did not try to contact defendant directly (Torres: A1568, A1570-72, A1574). Tello called another of defendant’s friends, Robert Reynoso, at about 4:00 a.m. and several more times that morning (Reynoso: A849, A851, A854-55, A858-59; Castro: A915-17). Reynoso also received calls from “[p]eople in the streets.” Castro received a call from defendant’s sister, then called Tello (Reynoso: A869; Castro: A918-19). Defendant leaves for Florida the day after the shooting. The police attempt to locate additional witnesses and to locate defendant, without success. On June 10th, Torres was “worried” about defendant because she had not heard from him since the shooting. The “words on the street” were that the police were looking for him. She called several people in an attempt to find out where defendant was, and a friend of defendant’s told her that he and defendant were “on their way to Florida” on a bus (Torres: A1580-82). On June 11, 2006, Torres flew to Florida and saw defendant at the Heritage Hotel at 7900 South Orange Blossom Trail in Orlando. She “wanted him to come back,” since she had a “gut feeling” that he was innocent and had “nothing to hide.” Torres stayed with defendant for three nights, encouraging him to return to New York and turn himself in. Defendant said that he was willing to do so as soon as his family got him a lawyer (Torres: A1578-79, A1581-89, A1597). -20- Meanwhile, a day or two after the shooting, defendant called Reynoso at his home in Pennsylvania and asked whether he could stay there. Reynoso refused, saying that he had “overheard in the streets” that the police were looking for defendant “for a murder that happened,” and that he did not want to “get involved in that” (Reynoso: A859-60, A868, A871). Defendant told Reynoso that he “didn’t know what to do,” and Reynoso advised him, “You should turn yourself in if you did something.” Defendant did not respond (Reynoso: A860, A862, A876-77). Over the next weeks, detectives made efforts to locate defendant, putting the word out that anyone who saw defendant should contact them (Rivera: A1115-20). In June and July, police officers visited Torres several times and asked her about defendant’s whereabouts. At some point, she gave them information about her trip to Florida and about seeing defendant (Torres: A1590-93). Torres did not see defendant in the neighborhood after June 9, 2006 (Torres: A1603). By July 7, 2006, Detective Rivera’s efforts to locate defendant were focused on Orlando, Florida, where defendant was believed to be staying at the “Heritage Inn” on South Orange Blossom Trail. Rivera provided local police officers with defendant’s photograph and pedigree information (Rivera: A1125-28; Caballero: A1271). On August 24, 2006, Rivera went to defendant’s family apartment at 135th Street and spoke with defendant’s sister, Charlene Martinez, who said she did not know where defendant was (Rivera: A1131-33, A1144-45, A1185-86, A1207). Efforts -21- to locate defendant and additional witnesses continued through September (Rivera: A1133). In October, Detectives Rivera and Caballero created two wanted posters bearing defendant’s photograph and describing defendant as a male Hispanic, approximately five feet eight inches tall and weighing 200 pounds. The posters were distributed throughout the neighborhood, but were almost immediately torn down, as commonly happened in that area (Rivera: A988-93, A1191-92; Caballero: A1278-79). On October 25, 2006, shortly after defendant’s girlfriend, Rosa Cruz, gave birth to defendant’s baby, Caballero and another detective spent about two hours watching Cruz’s residence (Caballero: A1275-77, A1320-21, A1360). On November 8, 2006, defendant turns himself in and Carrasco identifies him in a lineup that night. On November 8, 2006, Charlene Martinez contacted Detective Rivera and said that defendant was going to turn himself in and would be standing at 155th Street and Amsterdam Avenue. Rivera immediately drove there, and found defendant on the corner. Rivera drove defendant to the 30th Precinct, Detective Caballero then contacted Carrasco and asked him to come to the precinct to view a lineup (Carrasco: A677; Rivera: A1143-47, A1192, A1208; Caballero: A1281). Caballero did not tell Carrasco that defendant or the “person who shot Julio Montes” would be in the lineup (Caballero: A1281). When Carrasco arrived, he was placed in a closed room until he viewed the lineup, which consisted of defendant and five fillers. Carrasco recognized defendant, who was holding the number three, as the man who shot Julio -22- Montes (Carrasco: A678-79; Rivera: A1147-48; Caballero: A1280-84, A1303; People’s Exhibit 39 [lineup photograph]). The physical evidence confirms that Montes was shot at close range. The day after Montes’s death, Doctor ELIZABETH BUNDOCK, of the Office of the Chief Medical Examiner, conducted an autopsy on his body. She determined that Montes died of a single gunshot wound to the center of the abdomen, which caused him to bleed internally (Bundock: A796, A801-19). The presence of “gray soot, a powder residue” in Montes’s abdominal wall, just beneath the skin’s surface, indicated that the gun had been touching the body when fired (Bundock: A813-14, A816-17). ERIN RIETH, a police criminalist and an expert in gunshot residue analysis, analyzed the t-shirt Montes had been wearing when he was shot (Rieth: A481, A503, A507, A510-12; Police Officer ERIC SORENSON: A884-85). Based on the residues found on the shirt, she determined that the shot had been fired at a “relatively close range,” from less than 15 to 18 inches away (Rieth: A517-19, A529-30, A558-59, A589, A599, A607, A612). Although Rieth did not observe the “characteristic ripping and tearing” of a “contact” or “near contact” shot, the tight residue pattern on the shirt was not inconsistent with a “contact shot” from less than three inches away (Rieth: A519, A523-24, A579-80, A598-600, A602-06). -23- Defendant frantically tries to locate Lenny Carrasco on the eve of Carrasco’s testimony. Trial proceedings commenced on June 11, 2009. In her opening statement, the prosecutor named Lenny Carrasco as the sole eyewitness who would testify to seeing defendant shoot and kill Montes (A161-63). In the following two weeks, defendant, who was incarcerated during trial, made a series of phone calls that the Department of Corrections recorded (Department of Corrections Captain HAROLD ERSKINE: A1537-38, A1540-41; People’s Exhibit 68 [recordings]).17 The prosecutor played recordings of three of defendant’s calls for the jury (A1927-28).18 On June 15, 2009, defendant telephoned his sister, Charlene Martinez, who was known as “Chela” (see KARINA REYES: A1411; Torres: A1589). Defendant began the conversation by asking whether Martinez had told Rosa – his girlfriend (see Rivera: A1143; Caballero: A1259) – “the name of the guy.” Martinez responded, “Of what guy? No,” and defendant said, “Of, of, of the one who can, the 17 An inmate handbook given to defendant upon first entering the correctional facility contained a warning that all calls might be “monitored and/or recorded,” and posters in the inmate telephone areas warned, in English and Spanish, that conversations are subject to “monitoring and/or recording” (Erskine: A1526, A1529-36). 18 The conversations were partially in Spanish, and jurors were provided with a transcript and translation for each call, which the court permitted them to use “as an aid” (A1927-28). The summary of the conversations herein is based on those transcripts, and references preceded by “T” are to the transcripts, which are contained in a separately-bound addendum to defendant’s brief. Although part of the People’s direct case, the recordings were played during the defense case because of the time needed to transcribe and review them (see A1770). -24- one who is doing to me. . . You know who” (T: 1-2). Martinez said that the “only people [Rosa] could recognize from the [witness] list were Ken, Leo and me and herself,” and defendant asked, “She didn’t recognize Lene [sic], um . . .? The name of the [unintelligible].” Martinez said, “No.” Defendant insisted that “she knows him,” because “the guy used to talk to her friend or was fucking . . . with her friend” (T: 2). Carrasco was subpoenaed to testify on Monday, June 22nd (Caballero: A1632- 33). On Friday, June 19, 2009, defendant called Martinez again. He told her that they “need[ed] to speak” and asked her to visit him the following day, noting that “[t]his next week that’s coming up that one, that one, that one is going to determine you know?” (T: 16-17). Three times, defendant repeated his need for Martinez to visit so that they could talk, explaining, “[Y]ou know that I can’t talk over the phone” (T: 17- 18). Later in that call, Martinez said, “On Monday, supposedly, they’re going to bring the, that stupid guy, but I won’t be able to go, man.” Defendant asked, “Which stupid guy”? Martinez replied, Um, um, um, that . . . ! What’s his name? [Defendant]: Oh, him! Yeah. [Martinez]: Yeah. That very one. Uhum. [Defendant]: That’s why I need . . . . Damn, B! I [unintelligible] wanted to talk to Macho, men [sic]. Macho didn’t [unintelligible] -25- (T: 20).19 Martinez said that Macho would not “be able to go” on Monday, and defendant responded, “Damn, dude, and I needed that nigga to be there, B.” Defendant then said, “I need people to go up there, man. . . . So they can see this guy” (T: 20-21). On Sunday, June 21st, defendant telephoned his sister and immediately asked, “Tell me you got good news” about the “two things that I told you to do for me” (T: 24-25). Martinez responded, “Oh, um, she doesn’t have it, Rosa doesn’t either,” and added that Rosa had not answered her call or message. Defendant replied, “Damn, man, I needed that fucking number, man” (T: 25). After a discussion of some phone cards Martinez had purchased for defendant, defendant again said, “Yo, um, damn, I needed this guy’s number, Chela, man to speak with him” (T: 33). Defendant asked whether “Edward” – Martinez’s boyfriend (see Reyes: A1415-16; Torres: A1553) – had the number, and Martinez responded that Edward had told her “that he doesn’t. That he, he was going to see him later when he saw him. But, I went outside too and nobody was on the street” (T: 34). Defendant asked, “Nobody that Edward knows has that number?” and Martinez asked someone in the background, “Nobody that you know has that number?” A male voice responded, and Martinez reported to defendant, “No. Not that he knows of. That guy hasn’t shown up around here in ages. Who knows where the hell he is hiding?” After discussing whether another 19 “Macho” was the nickname of a friend of defendant’s (Castillo: A1453-54, A1483). -26- person might have the number, defendant said, “They . . . damn man, nobody got that motherfucker’s number man. I need to speak to that nigga, man” (T: 35). While defendant remained on the line, Martinez then called Rosa at defendant’s request, and the three of them spoke. Defendant told Rosa, “I, I called you for something important, yo. I, I need a number, you heard?” Rosa said she would try to get the number for defendant, but did not “have it in this phone.” Defendant said that he “need[ed] it right now,” and Rosa suggested that he try calling “Willy,” and told defendant to wait while she tried to find Willy’s number. Defendant said, “Damn, man, I need that fucking number, man” (T: 36-37). Rosa then reported back that she had erased Willy’s number, and defendant replied, “No? Well, alright then. You don’t, you never, didn’t you have Lenny’s number before though?” Rosa said, “I did, I did have Lenny’s number, but not in this phone, in another phone” (T: 37). Rosa then offered, “If I see him I can try and get it for you.” Defendant responded, “No, no, no, I don’t even need it no more. I don’t need it no more. I needed it for today, it was for today, so, but I don’t need it tomorrow or in the future” (T: 37). After Rosa had hung up, defendant said, “Damn, man, I need this fucking number, man. . . . Nobody got that motherfucking number, B. You hear me? . . . It’s not meant to be, you heard? Fuck it, it’s not meant to be. You hear me?” Martinez reminded defendant that Rosa had “said she would see . . . if she had it,” but defendant replied, “It’s that I need it today, Chela” (T: 38). -27- Defendant is identified by Carrasco at trial. Carrasco testified on June 23, 2009, and identified defendant as the man he saw shoot Julio Montes (Carrasco: A650). At the time of trial, defendant’s previously shoulder-length hair was cut short and he was about 30 to 40 pounds lighter than in June 2006 (Blanco: A284-87; Carrasco: A680; Reynoso: A854; Castillo: A1497; Torres: A1594-95). The Defense Case At about 1:30 a.m. on June 9, 2006, SHENY PEREZ went to J.J.’s Sports Bar, where she had been only four or five times before, to meet a friend (Perez: A1640, A1669, A1678-79). When Perez arrived at the bar, her friend was not there. She spotted defendant, whom she had known casually since 2001. Defendant invited Perez to join him at his table. Perez sat with defendant and his friends in the crowded bar until closing time (Perez: A1638, A1640, A1641-42, A1669-70, A1679, A1685, A1687, A1701). It was a “regular night,” and the bar closed in the usual manner at 4:00 a.m. “Everybody” walked out at the same time (Perez: A1665-71, A1674). Defendant and Perez left the bar together. She said that she was going home, and defendant suggested that they catch a cab, which he offered to pay for. As they crossed Broadway at 135th Street, Perez noticed a “big stampede” of people running from 136th Street towards J.J.’s, “yelling and screaming.” Perez and defendant got into a cab together and went to 108th Street and Columbus Avenue, where Perez lived. They then talked in front of the building for five or ten minutes before Perez -28- went inside. Perez did not remember what they talked about (Perez: A1643-44, A1672, A1674-78, A1680-81, A1692-93, A1695). She had seen defendant about 20 times between 2001 and 2006, but, other than the night of the shooting, the longest conversation they had ever had was a brief “how you doing” (Perez: A1686, A1787, A1801, A1805). Perez heard nothing about an incident on 136th Street and Broadway until over five months later, in late November 2006, when defendant’s attorney telephoned her (Perez: A1644-45, A1651-52, A1800). The attorney told Perez that defendant was charged with shooting someone and where the shooting occurred. Perez told the attorney “what happened,” and the attorney did not ask for details (Perez: A1651-61). Perez next spoke to defendant’s attorney over two years later, in June 2009, and she met him in person for the first time three days before testifying in July 2009. That was the first time Perez ever told anyone that she and defendant left J.J.’s together at four o’clock on the morning of June 9, 2006 (Perez: A1658, A1660-66). Perez initially testified that she had not visited defendant in jail (Perez: A1696). However, after she had completed her testimony and left the courtroom, a friend reminded her that she had once visited defendant at Rikers Island. Perez called defendant’s attorney the same afternoon, and returned to the witness stand to correct her testimony (Perez: A1774-75, A1796-98). She then testified that she visited defendant for an hour at Rikers Island sometime in early 2007, because she wanted to know how defendant’s family and his attorney had gotten her name and number -29- (Perez: A1775-78, A1780, A1785, A1790-95). Rikers Island records showed that the visit occurred on June 8, 2007, six days after a telephone call from defendant to Perez’s cell phone (People’s Exhibits 76 [inmate call list], 77 [visitors log]; Stipulation: A2326). In June 2006, CHARLENE “Chela” MARTINEZ, defendant’s sister, lived with her brother on West 135th Street. Her boyfriend, Edward Estrella, lived across the street (Martinez: A1948-51, A1962, A2010, A2027-28). Martinez spent the night of June 8-9, 2006 at Estrella’s apartment. Sometime around 4:00 a.m., she received a telephone call from defendant’s close friend Kenny Tello (Martinez: A1960, A1964, A2035-36, A2061-62). They spoke briefly, after which Estrella and Tello “started making all sorts of phone calls.” Martinez did not know where defendant was, and she was “worried” because “nobody could[] find” him. Martinez called defendant’s apartment a couple of times, and, at about 9:00 a.m., she spoke with defendant there (Martinez: A1965-68, A2063). Martinez did not speak to defendant again on June 9th or June 10th (Martinez: A1969, A1972, A2067). On the afternoon of June 10th, someone told Martinez that the police were looking for defendant (Martinez: A2067). That same day, Leomalis Torres told Martinez that defendant was “on his way to Florida” and that she was “going to go talk to” him there. Martinez asked Torres to tell defendant that Martinez had heard that the police were looking for him, and that he should “come back when [Martinez] had a lawyer” for him (Martinez: A1970-73, A2065, A2067, A2072-74). -30- Starting on June 15, 2006, Martinez met with three or four lawyers but did not have the money to retain any of them (Martinez: A1973-76, A2074-75). Martinez was in weekly telephone contact with her brother after June 23rd, and told him about her fruitless efforts to retain a lawyer (Martinez: A1978, A2076). On November 8, 2006, Martinez saw her brother in person for the first time since June (Martinez: A1976, A1980). They met on 151st Street, near the 30th Precinct, and Martinez told him again about her inability to retain a lawyer and advised him to turn himself in, which he did later that day (Martinez: A1979-82, A2080, A2104, A2120). In early 2008, Private Investigator DAVID BARRETT was retained by the attorney representing defendant (Barrett: A1839-40). On June 17, 2009, defendant’s attorney contacted Barrett and told him that he “expected to get the witness list and some information,” and that once he got that information, he would ask Barrett to “pursue that and try to interview some people” (Barrett: A1840-41). However, counsel never provided Barrett with the names of any witnesses (Barrett: A1841-42). Martinez visited defendant at Rikers Island approximately 47 times, and Estrella regularly visited him as well (Martinez: A2028-31). After the trial started, Martinez and defendant’s attorney spoke daily regarding efforts to contact people named in the People’s witness list. Martinez knew six or seven of the people on the list and she and Estrella spoke with several of them, including Reynoso and Karina Reyes. Martinez also contacted Sheny Perez to get her to call defendant’s attorney (Martinez: A1986-92, A2052-54, A2057-58, A2098-2100). -31- Martinez confirmed that the three Rikers Island telephone calls introduced by the People had taken place between her and defendant (Martinez: A1990-91). In the June 15th conversation, Martinez and defendant were talking about Lenny Carrasco. They wanted to “find out who he was” because defendant’s attorney “wanted to speak to him” (Martinez: A1994-97, A2005, A2089, A2107-08, A2118). Martinez knew that Carrasco was the “main witness” who would identify defendant as the shooter (Martinez: A2085). In the June 19th conversation, when Martinez said that “they’re going to bring . . . that stupid guy” on Monday, she was referring to Carrasco, who she knew was scheduled to testify on that day (Martinez: A2013, A2095-96, A2101). Dr. MARK TAFF, Chief Rockland County Medical Examiner, opined at trial that the consumption of alcohol can affect memory. However, Taff was unable to render an opinion as to how intoxicated Carrasco and Catedral were at the time of the incident or about their ability to “perceive events.” He agreed that Carrasco “could have been 100 percent accurate” in his testimony (Taff: A1727-28, A1738, A1753, A1758). The People’s Rebuttal Case MIGUEL BLANCO identified a photograph of Sheny Perez as a former “regular” at J.J.’s Sports Bar, who went there almost every Thursday night in 2006. Perez always came to the bar with a female friend, but Blanco saw her on most nights drinking, talking, hugging and dancing with defendant’s “crowd” (Blanco: A1873-78, -32- A1880-81, A1887-88, A1892-03, A1895). Perez was at J.J.’s on the night of June 8 to June 9, 2006, but Blanco did not recall whether he saw her with defendant (Blanco: A1880-83, A1897). On the early morning of June 9th, J.J.’s did not close at the usual time or in the usual manner. Rather, that morning, people were still “partying” to “fast music” when the manager “ran in” and had the deejay turn off the music, turn on the lights, and tell everyone to leave. Everyone at defendant’s table had left angrily a few minutes before this happened; Blanco did not see Perez with them (Blanco: A1883- 86, A1900-02, A1906-07). POINT DEFENDANT’S CONFRONTATION RIGHTS WERE NOT VIOLATED (Answering Defendant’s Brief). At trial, the People were permitted to elicit background testimony that, as a result of the police investigation, defendant was considered a suspect in the shooting of Montes at about 4:00 p.m. on June 9th. That was before the 7:00 p.m. interview with Detective Rivera, at which Lenny Carrasco first described the shooter, and before the 10:00 p.m. interview with Detective Caballero, during which Carrasco identified defendant as the shooter from his photograph. Defendant now contends that this background testimony violated his constitutional right to confront the witnesses against him, because it conveyed to the jury that some non-testifying -33- declarant had implicated defendant. This complaint is unpreserved. It is also meritless, because the limited testimony at issue did not convey that any non-testifying eyewitness had identified defendant. Moreover, even if it carried such an implication, it was still properly admitted to respond to defendant’s frame defense and to rebut defense-invited speculation that Lenny Carrasco, in an effort to protect the real shooter, had been the one who originally focused the police on defendant as a suspect. Thus, as the Appellate Division found, the evidence in question did not violate the Confrontation Clause because it was not offered for its truth, but rather for such “legitimate nonhearsay purposes” as explaining police actions and “correcting a misimpression created by defendant on cross-examination and preventing jury speculation.” People v. DeJesus, 105 A.D.3d at 476 (A4). Accordingly, defendant’s claim should be rejected. A. The defense put forward at trial centered on Lenny Carrasco’s credibility, and one of its main premises was that Carrasco was framing defendant as the shooter in order to protect someone else. Defendant’s intent to pursue such a defense was clear even before trial. As early as the pre-trial Wade hearing defendant cross-examined the People’s witness in the evident hope of discovering information that could be used to support such a frame defense. In that regard, Detective Caballero testified for the People at the Wade hearing. His direct testimony established that, at approximately 10:00 p.m. -34- on June 9, 2006, he showed Lenny Carrasco a photo array containing defendant’s picture. Caballero explained that defendant was already a “suspect” at the time the array was prepared. When Carrasco viewed the photo array, he identified defendant’s picture as that of the shooter (A17, A20).20 On cross-examination, defense counsel asked Caballero several questions exploring how the detective had come to include defendant’s photograph in the array shown to Carrasco. In particular, he asked whether a prior conversation with Carrasco had led Caballero to consider defendant a suspect; whether Carrasco had indicated before the photo array that he knew the shooter; how defendant had become a “person of interest”; and whether Caballero had obtained a description of the shooter before interviewing Carrasco. Objections to all of those questions, which were not relevant to the issues at the Wade hearing, were sustained (A38-39, A43, A45). After Justice Allen denied defendant’s suppression motion, the People made motions in limine. As is pertinent here, the People sought permission to introduce evidence at trial that a member of the victim’s family had called the police at about 4:15 p.m. on June 9, 2006, and told them she had received “anonymous information” that the shooter’s name was Joshua and that he lived in a particular apartment (A86- 20 Caballero’s hearing testimony also established that another witness, Yanik Boras, identified defendant in a photo array a few days later (A28-32). Boras did not testify at trial. -35- 87). The prosecutor argued that this testimony would not be offered for the truth of the matter asserted, but rather to explain “why the police focused in on this defendant and how they came to put his photo in a photo array” (A87). Defendant opposed the People’s motion, asserting that the proposed testimony was “not necessary” and “purely prejudicial.” Counsel said that it could be “glean[ed]” from the hearing testimony that Caballero was “already focused” on defendant because he had spoken with “at least one of these witnesses that morning, right at the scene” (A87). Counsel then proposed that, “if anybody raises, for instance me,” the issue of why defendant’s photograph was put in the array, Caballero could “easily testify” that he put defendant’s picture in a photo array because he had spoken to Carrasco “outside the bar within an hour of the incident,” and Carrasco had given him “information about who this person was” (A87-88) (emphasis added). Defense counsel made that proposal without offering any basis for believing that Caballero and Carrasco had had such a conversation. The prosecutor replied that it was her understanding that, prior to the anonymous call, defendant’s nicknames were known to the police but not his last name and address, and that it was the anonymous call that led the police to focus on defendant and show his picture to the witnesses (A88- 89). Justice Allen then suggested that the People’s “question need only be, based on your investigation, did you place the defendant’s photograph in an array” (A89). When the prosecutor pointed out that the People would not be allowed to introduce -36- evidence of the photo array in the first instance, the judge posed the following variation: “[B]ased on your investigation on that day, did you have a suspect in mind.” He then clarified, “But [the People] don’t need to bring out that there was [an] anonymous phone call” (A89). Defendant did not object to any aspect of this ruling. At trial, Lenny Carrasco testified on direct examination that he saw Montes arguing with an unknown man on the street and then saw defendant approach and shoot Montes. Carrasco identified defendant in court as the shooter, and testified to his lineup identification of defendant. During his cross-examination of Carrasco – and later of Aramis Catedral – defendant tried to lay the groundwork for an argument that Carrasco had framed defendant, by asking questions designed to suggest that Montes’s friend, Gotti, had been arguing with Montes and was the real shooter. In that regard, counsel made use of an excerpt from Carrasco’s grand jury testimony in which Carrasco had said that Montes was arguing with “some guy named Gotti” (Carrasco: A707-08, A710, A745).21 Counsel also asked Carrasco a series of questions regarding whether he had told Rivera and Caballero that the man with whom Montes was arguing was the man who shot Montes (Carrasco: A719-21, A738-39, A741-45). In addition, as he had intimated before trial that he might do, defendant brought out 21 As previously noted, as the trial unfolded, there was testimony regarding two men nicknamed “Gotti,” who looked nothing like each other. One of the two men was defendant’s friend and was, unlike Montes’s friend, in the club that night immediately before the shooting. Nothing in the grand jury testimony that defendant used to cross-examine Carrasco suggested that Carrasco had been referring to Montes’s friend rather than defendant’s friend in the grand jury. -37- that Carrasco identified the shooter from a photo array, which occurred at about 10:00 p.m. on June 9th (Carrasco: A741-44). Subsequently, Aramis Catedral mentioned on re-direct examination that someone named “Gotti” was part of his group of friends. The prosecutor then brought out that Catedral’s friend Gotti had been playing basketball with Catedral and Carrasco earlier on the evening before the shooting, but had not entered the club. Catedral also testified that he knew no one else with that nickname (Catedral: A1017- 20). On re-cross-examination, defense counsel immediately focused on the fact that Gotti – “the only Gotti [Catedral] kn[e]w” – had not been allowed in the club, and asked whether that meant that Gotti had “not been subjected to the pat down search” that everyone else had on entering the club (Catedral: A1020). During the subsequent testimony of Detective Rivera, the prosecutor asked – in accord with Justice Allen’s pre-trial ruling – whether there “c[a]me a time” on June 9th that Rivera began “looking for a specific suspect” in the case. Defendant uttered the single word, “Objection,” which was overruled, and Rivera responded in the affirmative. Then, over another one-word “objection,” Rivera named defendant as that suspect (Rivera: A1073). The prosecutor asked what time Rivera began looking for defendant. Defendant again made a general objection, which was overruled, and Rivera responded, “4:00 p.m.” (Rivera: A1074). The prosecutor next elicited, without any objection, that it was “as a result of [Rivera’s] investigation that [Rivera] began looking for” defendant, and that Rivera had not yet spoken with Carrasco when he -38- did so (Rivera: A1074). When the prosecutor asked Rivera whether, at that point, Detective Caballero had yet spoken with Carrasco – a question that did not call for information within Rivera’s own direct knowledge – defendant made a general objection, and the court sustained the objection and struck Rivera’s negative answer. Defendant asked to approach the bench, and the judge denied his request (Rivera: A1074-75). Justice Allen also denied a defense request to approach after the People had asked whether Rivera obtained an address for defendant at approximately 4:00 p.m. on June 9th (Rivera: A1075). During a break in Rivera’s testimony shortly thereafter, defense counsel offered explanations for his unelaborated objections. In doing so, however, counsel made arguments that entirely overlooked the part of Justice Allen’s pre-trial ruling allowing the People to elicit brief testimony about the status of the police investigation before Rivera met with Carrasco. Specifically, defendant argued that the prosecutor had “just basically defied” the court’s pre-trial ruling barring the People from introducing testimony about the anonymous telephone call received by the victim’s family (A1085- 86). He complained that the prosecutor had elicited testimony showing that the police believed defendant was a suspect before speaking with Carrasco, and asserted that the “clear implication” of that testimony was that “some unknown anonymous caller” had identified defendant as the shooter before Carrasco did. Counsel moved to strike that portion of Detective Rivera’s testimony and to preclude the prosecutor from “sum[ming] up on that” (A1086). -39- The prosecutor responded to counsel’s mid-trial complaint by observing that she had not elicited any testimony about the anonymous caller and had not violated the court’s ruling (A1087). Defendant rejoined that the “implicit implication” of the testimony the prosecutor elicited was that Rivera had some “hearsay source of information” that led him to suspect defendant, and asserted that this was “completely violative of the right to confront, of the confrontation law” (A1087-89). However, counsel also opined that, if the prosecutor had “made the application prior to trial that certain things were necessary to bring out to complete the narrative,” then “maybe if [the judge] had made a ruling, that would have been allowed” (A1089-90). At that point Justice Allen – who had, of course, made exactly that sort of ruling prior to trial – stated that he had “looked at [his] notes,” and did not believe that the prosecutor had violated his in limine ruling (A1090). On his cross-examination of Rivera, defense counsel proceeded to elicit the very type of testimony that he had successfully fought pre-trial to preclude the People from bringing out: that someone other than Carrasco had actually identified defendant as the shooter. In that regard, counsel first asked Rivera to confirm general information regarding the investigation that the People had brought out, asking Rivera whether he had “in some way, shape or form, identified [defendant] as a person of interest in the case.” Rivera responded, “He was identified, yes” (Rivera: A1155). Counsel then asked more pointedly whether Rivera had spoken to “the person who identified him” and whether Rivera had “memorialize[d] that interview” (Rivera: -40- A1155-56). He also asked Rivera when he had spoken with “this individual,” and Rivera said that he had spoken to that person before speaking with Carrasco (Rivera: A1155-56). The People’s next witness was Detective Caballero, who testified regarding the police investigation. Without objection, the prosecutor made the same inquiry that she had already made of Rivera and that the court had ruled pre-trial was permissible. Thus, she asked whether there “came a time” during the afternoon of June 9th that “the investigation was focused on a specific person.” And, when Caballero answered in the affirmative, the prosecutor elicited that that specific person was defendant (Caballero: A1242). Caballero then testified without objection that he “receive[d] the name Joshue DeJesus” in connection with the shooting at about 4:00 p.m. and that he learned defendant’s address at the same time (Caballero: A1241-42). Similarly without objection, he testified that neither he nor anyone else that he knew of spoke with Carrasco between Bonilla’s early-morning conversation and Rivera’s interview in the evening (Caballero: A1238).22 During the People’s rebuttal case, defense counsel elicited from Blanco on cross-examination that an acquaintance of Montes – whose name Blanco did not 22 On re-direct examination, when the prosecutor asked another question in the same vein – whether Caballero had a suspect before Rivera spoke with Carrasco – defendant objected that the question was “beyond the scope” and “asked and answered.” Justice Allen overruled that objection, allowing Caballero to respond in the affirmative (Caballero: A1370). -41- know but whose description generally matched that of Montes’s friend, “Gotti” (see Castillo: A1458-59) – was not allowed to enter J.J.’s (Blanco: A1894-95). On re-direct examination, Blanco explained that he had seen that man in front of the bar at about ten o’clock on the night of the shooting. The man did not try to enter the bar and Blanco did not see him again that night (Blanco: A1908-09). Prior to summations on July 9, 2009, almost a month after Justice Allen’s pre- trial ruling and ten days after Rivera and Caballero had completed their testimony, defendant moved for a mistrial, complaining of “all of the testimony about innuendos and rumors in the neighborhood and how [Detective Rivera] had reliable sources of information, . . . why the defendant became the subject of the investigation” (A2130). He asserted that the prosecutor had specifically pointed out that defendant had become a suspect “long before Lenny Carrasco made a photo I.D. of the defendant,” thereby “clearly indicating . . . that some source, some unknown anonymous source” had named defendant as the shooter (A2130-31). Referring to Crawford v. Washington, 541 U.S. 36 (2004), counsel asserted that this was a confrontation clause violation because it was “basically unsworn testimony from these witnesses” (A2131).23 23 Justice Allen reserved decision on the mistrial motion (A2137), then denied it without elaboration on the day of sentencing (A2336). -42- In his summation, defense counsel cobbled together snippets of testimony from various witnesses to suggest that Carrasco had falsely identified defendant as the shooter rather than identify Montes’s friend, “Gotti.” Counsel reminded the jury at length that Carrasco had testified under oath in the grand jury that “[Montes] is arguing with Gotti” (A2163-65), and that Carrasco had told Caballero that “the guy [Montes] was arguing with shot him” (A2161-62). Counsel then recalled the testimony regarding two men nicknamed Gotti – Montes’s Hispanic friend and defendant’s friend – and asserted: The fact of the matter is the more relevant Gotti in this case is Hispanic pony tailed Gotti who hangs out in front of the bar who is not allowed there, who is a trouble maker, who did not go through the security check and did not get patted down, who happens to be in the center of the conflict at the door that June goes out to investigate (A2171-72). Counsel continued his theme that Gotti was the real culprit by suggesting that it was Gotti whom Carrasco and Montes’s other friends were afraid of implicating. In that regard, he argued that defendant was “in jail for the past two years and eight months, and Gotti is still out there,” then asked: Who is Lenny afraid of? Why do all of Lenny’s people[,] [w]hy do all of June’s good friend[]s suddenly fall off the face of the planet? -43- (A2179-80).24 In the same vein, defense counsel suggested that the shooting had nothing to do with the incident in the club, but instead grew out of a conflict within Montes’s “crew,” a group that included Montes’s friend Gotti, and Carrasco (see A2180-85, A2215, A2217). Counsel hypothesized that “all these people that were involved in that dynamic at the front door on the night in question” did not testify because they “don’t want to be a snitch to somebody in their own crew and if they are afraid of somebody, they are afraid of somebody who is still out there in the street amongst them” (A2195). According to the defense, “[Montes] walked out of the bar, he had a conflict with Gotti, he walked up the street, he went around the corner” (A2214). Counsel asserted that “[i]t had nothing to do with [defendant’s] crew” (A2214), and added, “that’s why [Montes’s] crowd doesn’t want to get involved, because it’s one of their own, and that’s why Lenny Carrasco, quote/unquote, doesn’t want to be a snitch” (A2215). He also argued that Carrasco was “lying and distancing himself from somebody who he described, at least inferentially, as the person who shot June in this case” (A2201).25 24 The transcript identifies the prosecutor as the speaker at this point. However, a review of the surrounding record makes clear that the speaker was defense counsel. 25 Seeking to explain why Carrasco had told the police anything at all, counsel argued that, because Carrasco had called 911, he “couldn’t hide” from the police, “unlike these other witnesses who we have not heard from.” Defense counsel described Carrasco as being “hounded into being here” by the police, who “found him and they pressured him. . . just like he said they did into coming in here and testifying” (A2158-60). -44- Prior to summations, Justice Allen noted that both sides had had the chance to review the language of his proposed charge, and asked whether they had any “specific objections or comments or requests” (A2125). Defendant requested no limiting instructions with respect to the testimony that defendant was a suspect by about 4:00 p.m. After the court’s charge, defendant stated that he had “no objection or any further request to charge” (A2308). B. Defendant now contends that his constitutional right to confront the witnesses against him was violated by the trial court’s admission of police testimony that defendant was a suspect in the shooting investigation as of about 4:00 p.m., before Carrasco identified defendant as the shooter. According to defendant, that testimony “unequivocally conveyed to the jury that the police had an unnamed source” who had identified defendant as the shooter, and defendant did not have “the opportunity to confront the reliability of this out-of-court information” (Defendant’s Brief at 45). Initially, however, defendant’s present claim is unpreserved for appellate review. To preserve a claim for appellate review as a matter of law, including claims of a constitutional nature, a defendant must register a timely, specific objection that alerts the trial court to the same issue sought to be raised on appeal. See CPL 470.05(2); People v. Kello, 96 N.Y.2d 740, 744 (2001); People v. Gray, 86 N.Y.2d 10, 20 (1995). This requirement is no mere technicality. Its purpose is to ensure that the trial court understands the exact nature of the complaint so that it may take the -45- appropriate steps to remedy an error. See People v. Goode, 87 N.Y.2d 1045, 1047 (1996) (purpose of “adhering to strict rules of preservation” is to “provide the court with an opportunity to remedy the problem and thereby avert reversible error”) (internal quotations omitted); People v. Gray, 86 N.Y.2d at 20; People v. Martin, 50 N.Y.2d 1029, 1031 (1980). In this manner, it advances “both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant.” People v. Hawkins, 11 N.Y.3d 484, 492 (2008). Moreover, without a preserved question of law, this Court has no jurisdiction to consider a defendant’s claim. N.Y. Const., Art. VI, § 3; see People v. Belge, 41 N.Y.2d 60, 62 (1976). Here, defendant failed to alert the trial court contemporaneously to the claim he now wishes to raise. In that regard, before trial, the People moved to be allowed to introduce evidence that would explain why defendant’s photograph was placed in the array shown to Carrasco: namely, that the police were told, at 4:15 p.m. on the day of the murder, that an anonymous telephone caller had provided defendant’s first name and address and identified him as the shooter (A86-87). Defendant opposed the People’s motion, and Justice Allen denied it. At the same time, however, the judge ruled that the People would be allowed to ask the police, “[B]ased on your investigation on that day, did you have a suspect in mind” (A89). And, given the context of the court’s ruling, the court clearly intended that the People would be -46- allowed to elicit that defendant had become a suspect as of 4:15 p.m., before Carrasco’s identification.26 Defendant made no objection to that ruling. Having failed to protest the pre-trial ruling at the time it was made, defendant’s three unelaborated objections during Rivera’s trial testimony that he “began looking for” defendant as a suspect at about 4:00 p.m. were too late to preserve any challenge to that testimony (Rivera: A1073-74).27 Moreover, even when defendant first articulated the basis of those objections during a subsequent break in Rivera’s testimony, he still failed to give the trial court any reason to believe that he was raising his current claim that the testimony the court had permitted violated the Confrontation Clause. In that regard, defendant first complained that the elicited testimony implied that an “anonymous caller” had identified defendant as the shooter, and thus the prosecutor had “basically defied” the court’s pre-trial ruling precluding such testimony (A1086). And, although counsel went on to assert that the People did not “have the right to introduce hearsay anonymous accusations,” which was “completely violative of the right to confront” (A1089), he did not contend that the testimony the People actually elicited was inherently inadmissible under the Confrontation Clause; rather, he 26 Indeed, after the prosecutor had elicited this testimony at trial, the court indicated that it was in accord with its pre-trial ruling (see A1090). 27 And, defendant raised no objection at all when the prosecutor elicited that Rivera began looking for defendant “as a result of [his] investigation” or that he had a specific suspect in mind before he had spoken with Carrasco (Rivera: A1074). -47- specifically averred that such testimony might have been allowed if the prosecutor had “made the application prior to trial that certain things were necessary to bring out to complete the narrative” (A1089-90). In other words, when defendant finally objected to the testimony, he complained that the People had violated the court’s pre-trial ruling excluding the anonymous telephone call, while explicitly acknowledging that such testimony might properly have been admitted if the People had sought a pre-trial ruling allowing it. Of course, the prosecutor had, in fact, made just such an application prior to trial, and the judge had, in fact, ruled – without any objection from defendant – that the People could elicit that defendant became a “suspect” during the afternoon of June 9th as a result of the police investigation. Under these circumstances, defendant’s mid-trial objection to the testimony came too late to preserve any issue of law regarding that testimony, and certainly did not alert Justice Allen to a claim that the violated defendant’s rights under the Confrontation Clause even though it accorded with the court’s pre-trial ruling. And, of course, defendant neither requested a limiting instruction regarding that testimony nor objected to the absence of such an instruction from the court’s charge. In short, defendant failed to preserve for appellate review his current complaint about Rivera and Caballero’s testimony regarding the status of the investigation. CPL 470.05(2); see, e.g., People v. Clarke, 81 N.Y.2d 777, 778 (1993); People v. Boyd, 58 N.Y.2d 1016, 1018 (1983); People v. Love, 57 N.Y.2d 1023, 1025 (1982); People v. Qualls, 55 N.Y.2d 733 (1981). -48- Nor did defendant’s subsequent mistrial motion preserve his specific complaint regarding the prosecutor’s questioning. First, in that motion, defendant once again failed to acknowledge the court’s unobjected-to pre-trial ruling allowing the pertinent testimony, and thus again failed to make a coherent claim that its actual ruling had been violated. More importantly, even to the extent that defendant finally articulated a Confrontation Clause complaint, the motion was completely untimely, since it was made over ten days after the completion of the testimony at issue and almost a month after the court’s pre-trial ruling permitting it, and therefore deprived the trial court of the opportunity to correct any error at the time it occurred. See, e.g., People v. Rosen, 267 A.D.2d 28 (1st Dept. 1999), aff’d, 96 N.Y.2d 329 (2001). Accordingly, since defendant’s appellate claim was not properly raised before the trial court, it is unpreserved and beyond this Court’s power of review. C. If nevertheless considered on the merits, defendant’s complaint still fails. The testimony elicited by the People here was limited in scope and not testimonial in nature; moreover, as the Appellate Division recognized, it was not admitted or used for the truth of the proposition that defendant was the shooter. Instead, it was properly admitted to explain police actions and to rebut jury speculation, which the defense invited, that Carrasco had framed defendant. Accordingly, its admission did not offend the Confrontation Clause. -49- Of course, the confrontation clauses of the United States and New York constitutions require that a defendant be allowed to confront witnesses against him. U.S. Const. Amend. VI, XIV; N.Y. Const., Art. I, § 6; Crawford v. Washington, 541 U.S. at 36; People v. Eastman, 85 N.Y.2d 265, 274 (1995). In Crawford, the United States Supreme Court explained that the Confrontation Clause bars the admission of “testimonial” out-of-court statements where the declarant does not testify at trial. The Court generally defined a testimonial statement as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 541 U.S. at 51. In subsequent cases, the Court explained that whether an out-of-court statement was testimonial turned on whether the “primary purpose” of the statement was to establish facts potentially relevant to criminal prosecution. Davis v. Washington, 547 U.S. 813, 828 (2006); see Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 2714, fn. 6 (2011); Michigan v. Bryant, __ U.S. __, 131 S.Ct. 1143, 1155 (2011) (the Confrontation Clause does not apply “when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony”). Thus, not all statements by a non-testifying declarant constitute “testimony” barred by the Confrontation Clause. Moreover, the Confrontation Clause does not bar the use of statements admitted for purposes other than to prove their truth. Crawford v. Washington, 541 U.S. at 60 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 [1985]); People v. Reynoso, 2 N.Y.3d 820, 821 (2004); United States v. Matera, 489 F.3d 115, 122 (2d Cir. 2007); United States v. Stewart, 433 F.3d 273, 291 (2d Cir. -50- 2006) (“Crawford expressly confirmed that the categorical exclusion of out-of-court statements that were not subject to contemporaneous cross-examination does not extend to evidence offered for purposes other than to establish the truth of the matter asserted”). And, of course, a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. People v. Reid, 19 N.Y.3d 382, 387-88 (2012); see Tennessee v. Street, 471 U.S. at 415. Applying these principles, this Court has held, after Crawford, that the Confrontation Clause was not implicated by the admission of a statement made to a detective by a non-testifying co-defendant, because the statement was admitted to show the detective’s state of mind and not to establish the truth of the matter asserted. People v. Reynoso, 2 N.Y.3d at 821. More generally, the Court has approved the introduction of out-of-court statements for non-hearsay purposes, particularly when those statements are relevant to rebut defense contentions or avoid jury speculation. See People v. Rivera, 96 N.Y.2d 749, 751 (2001) (by announcing his intention to elicit that the police had initially handcuffed both defendant and victim in assault case, defendant “created a material gap in the narrative that the People were entitled to explain” by introducing testimony that police spoke to two bystanders before releasing victim and arresting defendant); see also People v. Tosca, 98 N.Y.2d 660, 661 (2002) (statement of non-testifying cab driver to police regarding recent -51- encounter with armed defendant properly admitted to provide background information as to how and why police pursued and confronted defendant).28 Applying these same principles, this Court should affirm, for two independent reasons, the decision of the Appellate Division, First Department, that the police testimony about when defendant became a suspect was properly admitted. First, the testimony at issue did not recount an out-of-court testimonial statement. Second, as the Appellate Division found, the very limited and general testimony allowed by the trial judge and elicited by the People was admissible for “legitimate nonhearsay purposes.” People v. DeJesus, 105 A.D.3d at 476 (A4). Initially, as the Appellate Division aptly noted, the People did not “actually introduce any testimonial statements by nontestifying declarants,” but instead only “brief, limited testimony that defendant was already a suspect at the time the People’s main witness was interviewed.” Id.. Indeed, the People elicited no “statement” at all, and the jury was not told, either explicitly or implicitly, that another witness had said that defendant was the shooter. Instead, Justice Allen authorized, and the People confined themselves to, the much more general and anodyne testimony that the police came to focus on defendant as a suspect on the afternoon of June 9th as a result of 28 Although it was not argued as a Confrontation Clause case, this Court has also recently held that a recording of a 911 call reporting a gunpoint robbery committed by a man matching the defendant’s description was properly admitted to provide background information explaining police actions in aggressively stopping the defendant. People v. Morris, 21 N.Y.3d 588, 597 (2013). -52- their investigation. For all the jury knew – given that the People were careful not to reveal that anyone other than Carrasco had named or identified defendant – what led the police to consider defendant a suspect was nothing more than what Rivera described on cross-examination as neighborhood “scuttlebutt” (Rivera: A1204).29 Notably, it was defendant on cross-examination – and not the People – who elicited that there was, in fact, another “person who identified” defendant (Rivera: A1155-56). And, even after defendant had elicited that fact, the People did not pursue the opportunity to explore the circumstances of that identification, instead continuing to confine themselves to the non-specific formulation approved by Justice Allen. Moreover, the testimony of the People’s witnesses consistently indicated that, although defendant was a suspect by the afternoon of June 9th, the police did not feel they had a basis to act against defendant until Carrasco had identified him that evening (see Rivera: A1203-04; Caballero: A1240, A1286), thereby undercutting any suggestion that defendant had actually been identified by another witness earlier that day. Under the circumstances, the testimony about defendant’s status as a suspect simply did not convey a testimonial statement from a non-testifying declarant. 29 Indeed, as the jury in this case surely would have appreciated, someone could become a suspect based on mere fragments of information, including, for example, that he had been near the scene of the crime and failed to return home afterwards. -53- Therefore, regardless of the purpose for which it was admitted, it did not constitute a violation of the Confrontation Clause.30 In any event, even if it could be considered testimonial, the evidence at issue did not violate the Confrontation Clause because it was not admitted to prove the truth of any matter asserted. Crawford v. Washington, 541 U.S. at 60 n.9; People v. Reynoso, 2 N.Y.3d at 821. According to defendant, the testimony that the police regarded defendant as a suspect before speaking with Carrasco would have conveyed to the jury that someone other than Carrasco had identified defendant as the shooter, and the jury would have considered that identification for its “truth,” i.e., as evidence that defendant was the shooter. But, as the Appellate Division recognized, that 30 To be sure, as defendant asserts (Defendant’s Brief at 43-44), the Confrontation Clause may be violated by evidence that inferentially, rather than explicitly, conveys the content of an out-of-court statement. In that regard, “[t]he relevant question is whether the way the prosecutor solicited the testimony made the source and content of the conversation clear.” Ryan v. Miller, 303 F.3d 231, 250 (2d Cir. 2002). Here, for the reasons discussed in the text, the testimony elicited by the prosecutor did no such thing. Further, none of the cases defendant cites indicates that non-specific testimony that a police investigation focused on the defendant as a suspect is the equivalent of an out-of-court testimonial statement. Rather, in each of those cases, police witnesses testified that they spoke to specific out-of- court declarants, and pointedly implied the contents of what those out-of-court declarants said. See Ryan v. Miller, 303 F.3d at 240-44 (lengthy testimony from two detectives that co- defendant’s statement led police to read defendant Miranda warnings in connection with murder charge); Mason v. Scully, 16 F.3d 38, 40, 44 (2d Cir. 1994) (testimony that detective had a conversation with co-defendant after co-defendant’s arrest, and that after that conversation he was “looking for” the defendant); Ocampo v. Vail, 649 F.3d 1098, 1102-05 (9th Cir. 2011) (extensive testimony that police had spoken with non-testifying declarant, who had “verified” and “corroborate[d]” what testifying witnesses said), cert. denied, 133 S.Ct. 62 (2012); Mendez v. Graham, 2012 WL 6594456 (E.D.N.Y. 2012) (testimony detailing specific descriptions of perpetrators that detective obtained after speaking to “witnesses and victims”). -54- testimony served a sound purpose at trial wholly apart from the truth of whether defendant was the shooter: namely, to rebut defendant’s frame defense and, in particular, a defense suggestion that Carrasco had been the one who focused the police on defendant in the first place. As the Appellate Division recognized, testimony that the police investigation led them to focus on defendant as a suspect explained how the police came to put defendant’s photograph in the photo array viewed by Carrasco. People v. DeJesus, 105 A.D.3d at 476 (A3-4). Conveying that knowledge to the jury was particularly important here, because one of the prominent elements of defendant’s trial strategy was to convince the jury that Carrasco had framed defendant. And, even before the trial began, defense counsel had given a clear indication that the defense might suggest to the jury that the photograph was shown to Carrasco because Carrasco himself had given the police defendant’s name, as part of his frame attempt. Indeed, the People had every reason to anticipate even before the trial began that the defense would try to convince the jury that Carrasco had intentionally framed defendant. After all, as the prosecutor was aware, Lenny Carrasco knew defendant from the neighborhood by face and nickname. Thus, the defense would be hard- pressed to convince the jury that Carrasco had simply been mistaken when he identified defendant as the shooter. Defense counsel’s actions at the pre-trial Wade hearing confirmed that the defense was pursuing a frame theory, since counsel clearly tried to develop evidence -55- that Carrasco had been the one to focus police attention on defendant from the start. Thus, he asked Caballero questions geared toward discovering whether it was information from Carrasco that had led the police in the first instance to consider defendant a suspect (see A38-39, A43, A45). As noted (see subsection A, supra), because those questions were outside the scope of the Wade hearing, the People’s objections were sustained and the questions were not answered. However, the questions themselves signaled that the defense might focus at trial on why defendant’s photograph was shown to Carrasco. The defense intentions in that regard became even clearer when the People moved pre-trial for permission to introduce trial testimony about a telephone call to police from the victim’s family, relaying information about defendant from an anonymous source. The People contended that such background information would explain how the police had come to focus on defendant as a suspect. In response to that motion, defense counsel proposed that, “if anybody raises, for instance me,” the issue of why defendant’s photograph was put in the photo array, Caballero could “easily testify” that he did so because Carrasco had given him “information about who this person was” (A87-88). Of course, as the prosecutor indicated (A82), any suggestion that Carrasco had instigated the police investigation of defendant was without basis. And, it would have given unwarranted force to the implication defendant wished the jury to draw, which was that Carrasco had identified defendant’s photograph not because he had seen -56- defendant shoot Montes, but because Carrasco was framing defendant in order to protect the true killer. Thus, even before the trial started, Justice Allen had a sound basis for anticipating the direction the defense would take, and for ruling that the People would be permitted to elicit testimony that, before Carrasco had identified him, defendant became a suspect as a result of the police investigation. That testimony was appropriately geared to avoiding false speculation by the jury that Lenny Carrasco was the one who pointed the police in defendant’s direction. Moreover, as noted, the judge scrupulously limited the testimony he would permit to the most general formulation possible, which did not suggest to the jury that a witness had identified defendant before Carrasco did. Rather than allowing the People to present evidence of the actual sequence of events, involving an anonymous telephone call to members of the victim’s family, the judge allowed the People to elicit only that defendant had become a suspect before Carrasco’s identification “based on [the police] investigation on that day” (A89). Even defendant appeared to recognize the correctness of the court’s ruling at the time it was made, since he made no objection to it. Notably, by the time the People actually elicited the limited background testimony from Rivera at trial, the justification for its admission had only been strengthened by defendant’s conduct of the case. Specifically, during his cross- examination of the People’s civilian witnesses prior to the challenged police testimony, defendant’s attorney diligently attempted to lay the groundwork for a -57- frame defense by asking questions that were designed to imply that Carrasco knew that the real shooter was a young man who was nicknamed “Gotti” and was an acquaintance of both Carrasco and Montes (see Carrasco: A707-08, A710, A719-21, A738-39, A741-45; Catedral: A1020).31 Coupled with counsel’s lengthy cross- examination regarding Carrasco’s initial denial that he had seen the shooting and the different accounts he gave police after that (see, e.g., Carrasco: A719-21, A726-31, A738-45), this was clearly designed to raise the implication that, at some point after his first conversation with the police, Carrasco had decided to accuse defendant in order to protect the supposed real killer, Gotti. And, as detailed above, defendant put forward that very frame theory in summation, arguing to the jury that it was the best explanation for Carrasco’s changing stories and his reluctance to testify – i.e., that Carrasco had framed defendant either because he desired to protect a member of his own group or because he was afraid of Gotti (see A2161-65, A2171-72, A2179-85, A2195, A2201, A2215, A2217).32 Put another way, without the trial court’s ruling, defendant could have exploited the absence of evidence regarding how defendant’s photograph came to be 31 The pertinent cross-examinations are detailed in subsection A, supra. 32 Notably, defendant does not appear to take issue on appeal with the notion that he tried to convince the jury that Carrasco was framing defendant to protect a friend or out of fear of Gotti. Rather, he merely asserts that he was not arguing that the police had framed him (Defendant’s Brief at 50), which is true but irrelevant to the admissibility of this testimony. -58- shown to Carrasco. As noted, defendant’s pre-trial actions gave notice that he intended to try to exploit that gap in the evidence by creating the misimpression that defendant’s photograph was in the photo array because Carrasco had caused the police to suspect defendant (see A87-88). And, defendant’s trial strategy bore out that that was indeed what he intended, and that the trial court was correct in permitting the People to present limited evidence to fill that gap. See People v. Rivera, 96 N.Y.2d at 750-51 (by announcing his intention to elicit that the police had initially handcuffed the victim as well as the defendant, the defendant created “a material gap in the narrative that the People were entitled to explain” with evidence that prevented jury speculation about why the police had released the victim but not the defendant). Notably, that ruling did not prevent defendant from raising his intended frame defense, it merely prevented him from explicitly making a misleading argument in support of that defense: namely, that Carrasco had orchestrated the placing of defendant’s photograph in the photo array. In short, as the Appellate Division found, the evidence was properly admitted for the “legitimate nonhearsay purposes” of “correcting a misimpression created by defendant” and “preventing jury speculation.” People v. DeJesus, 105 A.D.3d at 476 (A4). The People did not seek to admit that evidence for its “truth,” since its effectiveness for the People’s purposes did not require the jury to believe anything in particular regarding why the police had focused on defendant as a suspect, only that they had focused on defendant before Carrasco identified him. And, indeed, the -59- testimony approved by the court and elicited by the People was so general and limited that there is simply no reason that the jury would have presumed that it meant that defendant had been identified as the shooter by another, non-testifying witness.33 Thus, because the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted,” Crawford v. Washington, 541 U.S. at 60 n.9; see People v. Reynoso, 2 N.Y.3d at 821; Tennessee v. Street, 471 U.S. at 414, the admission of the evidence at issue here did not violate the Confrontation Clause. Defendant acknowledges that, in Crawford, the Supreme Court stated expressly and unqualifiedly, citing Tennessee v. Street, 471 U.S. at 414, that the Confrontation Clause does not bar the use of out-of-court statements admitted for purposes other than to prove their truth. Nonetheless, defendant suggests that the Supreme Court in Crawford did not mean what it said and that even out-of-court statements admitted for purposes other than to prove their truth are barred by the Confrontation Clause unless they are admitted in exactly the circumstances present in Street; i.e., only on rebuttal after the defendant has “opened the door” to it (Defendant’s Brief at 47-50). Of course, the Supreme Court did not limit its pronouncement in that way, but rather simply stated – as this Court subsequently held in People v. Reynoso, 2 N.Y.3d 33 Of course, defendant could have requested a limiting instruction with respect to that testimony, but he chose not to do so. Presumably, defense counsel recognized that there was no need for a limiting instruction because, as discussed, the testimony at issue did not report a statement that the jury could have taken for its truth. -60- at 821 – that the Confrontation Clause does not bar the use of testimonial out-of- court statements for nonhearsay purposes. This makes perfect sense, since, when testimonial statements are not admitted for their truth, it is not the veracity or accuracy of the statement that is at issue, and the defendant therefore has no need to cross-examine the maker of the statement. See Tennessee v. Street, 471 U.S. at 414. Thus, even if a defendant has not opened the door to an out-of-court statement, it is not barred by the Confrontation Clause if admitted for a purpose other than establishing its truth. In any event, here, the testimony at issue was admitted for a purpose other than establishing its truth and only after defendant had opened the door to it. To be sure, defendant also now asserts that the prosecutor used the evidence in her summation “for its truth, to argue that [defendant] was the shooter” (Defendant’s Brief at 45, 50). Defendant primarily bases this claim on the prosecutor’s unobjected- too summation remark that the “only purpose” of Caballero’s 10:00 p.m. meeting with Carrasco was to “do a photo array, to confirm . . . what the police already knew which is that the defendant Joshue DeJesus, whose name and address they had as – as of four o’clock that afternoon, the person that they wanted to confirm had killed Julio Montes” (A2241-42). First, it bears emphasis that this was the sole reference in the prosecutor’s 63- page summation to the fact that defendant was a suspect prior to Carrasco’s identification. More importantly, when viewed in context, the remark did not urge the -61- jury to use that fact as direct evidence that defendant was the shooter. Rather, given that the jury had just heard a defense summation suggesting that Carrasco was protecting his friend, the real shooter, it could only have served as a reminder that Carrasco had not simply plucked defendant’s name out of thin air and given it to the police. Moreover, far from highlighting the disputed evidence as defendant now seems to suggest, the prosecutor made this brief remark in the course of an extended response (A2238-42) to defendant’s summation argument that the police had “hounded” Carrasco until he gave them what they wanted (see A1258-60). In that context, as she reviewed Carrasco’s various interactions with the police and his responses to them, the prosecutor’s observation that Caballero met with Carrasco solely to show him a photo array and confirm what the police already suspected simply made the point that the police were not improperly hounding Carrasco. There is no reason to believe that this single comment would have led the jurors to speculate that someone else had identified defendant as the shooter, much less rely on such a speculative notion in reaching their verdict. Had there been any real concern that the prosecutor was improperly seeking to use the testimony for its truth, defendant could have obviated that possibility by a timely objection and a request for a limiting instruction. Plainly, however, in light of the absence of any such objection, this isolated remark conveyed no such impression below. No doubt recognizing this, defendant attempts to shore up his argument by plucking two other comments from widely-separated parts of the prosecutor’s -62- summation, and arguing that the prosecutor used those remarks to convey that somebody other than Carrasco had identified defendant to the police as the shooter (Defendant’s Brief at 46). Notably, defendant’s vigilant trial attorney, who heard the prosecutor’s summation, did not object to either comment, evidently detecting nothing objectionable about them. Nor is this surprising, since the comments did not convey the meaning defendant now attributes to them. In the first comment, which was made in the course of outlining the case at the very beginning of her summation, the prosecutor described the “arrogance” of defendant, who committed the crime “right in his own neighborhood in front of plenty of people who knew him and could identify him,” yet still thought he could get away with it by fleeing New York and avoiding police for five months, calling a witness to testify falsely on his behalf, and trying to track down Carrasco and keep him from taking the stand (A2222-23). Of course, nothing about that remark conveyed to the jury – which knew from the testimony of eyewitnesses that the shooting occurred in front of a crowd of people – that any of those witnesses had ever identified defendant to the police. In the second comment, which the prosecutor made 57 pages later in her summation, she opined that defendant’s sister had taken the stand because she felt the need to explain the “devastating” Rikers Island telephone calls, which “show that the defendant is guilty and trying to track down witnesses to convince them not to come in here, not to give you the truth” (A2279). But, that comment was clearly directed at defendant’s undisputed and recorded efforts to locate Carrasco before he could -63- testify, and was unlikely to convey to the jury that some other witness had identified defendant but been frightened away from testifying. This Court should therefore reject the wholly unpreserved suggestion that the prosecutor improperly exploited the contested evidence in her summation.34 In short, the testimony elicited by the People that the police focused on defendant as a suspect based on their investigation, prior to Carrasco’s identification, was not an out-of-court testimonial statement and was elicited for a proper, non- hearsay purpose. Thus, defendant’s Confrontation Clause claim is baseless. 34 To the extent that defendant is trying to insinuate that these comments were improper even if they did not constitute a reference to the disputed testimony, any such claim is beyond this Court’s power of review because of defendant’s complete failure to object below. In similar fashion, defendant’s cause is not advanced by his reference in his brief to testimony, elicited on re-direct examination of Caballero, that a man named Yanic Boras had “provide[d]” the detective “firsthand knowledge” about who shot Montes and that Boras had since been uncooperative and could not be brought to testify at trial (Defendant’s Brief at 26). Defendant makes no appellate claim based on this testimony, but presumably wishes the Court to infer that, as he argued before the Appellate Division, the People were using this testimony to suggest that Boras had also identified defendant as the shooter. This claim was, as the Appellate Division found, People v. DeJesus, 105 A.D.3d at 477 (A4), unpreserved. Moreover, nothing about the fact that Boras provided “firsthand” information – which was elicited only on re-direct examination to clarify the misleading impression created by defendant on cross-examination (see Caballero: A1336-1347) that no one had provided police with “firsthand” information about the shooting – suggested that Boras had named anyone, let alone defendant, as the shooter. Indeed, Rivera had previously testified that, while Boras provided “details of the shooting,” he gave no description of the shooter (Rivera: A1106). -64- D. Finally, even if there had been any error in the court’s admission of the testimony about the status of the police investigation on the afternoon of June 9th, that error plainly would be harmless beyond a reasonable doubt. See People v. Jackson, 8 N.Y.3d 869, 870-871 (2007); People v. Crimmins, 36 N.Y.2d 230 (1975). Indeed, it is plain that even without the challenged testimony, the jury would have concluded that defendant murdered Julio Montes. To begin, there is no doubt – and defendant has never disputed, either at trial or on appeal – that the man who shot Julio Montes in the abdomen from inches away was guilty of intentional murder. Thus, the only issue at trial was whether defendant was that man, and the jury was presented with overwhelming evidence that he was. Of course, the jury heard Lenny Carrasco’s eyewitness account of the crime. Carrasco, who lived just down the street from defendant and knew him by face and nickname, watched from only 8 to 10 feet away as defendant walked up to Montes, pulled something from his waistband, and aimed it at Montes’s abdomen. Carrasco heard a sound, and saw defendant turn and walk away from Montes. Carrasco saw defendant’s face as defendant walked past him. At almost the same time, Montes – who lived only a block away from defendant – exclaimed that he had been shot and pointed accusingly after defendant, saying, “I know where you live” (Carrasco: A660, A669). Carrasco identified defendant as the shooter in a photographic array only -65- hours after the shooting, in a fairly-conducted lineup five months later, and again in the courtroom at trial. The jurors’ decision to credit Carrasco’s identifying testimony was entirely rational. On a well-lit street corner (see Obojkovits: A477; Carrasco: A661; Bonilla: A1036; Caballero: A1356-59), Carrasco had had a clear and unobstructed view of defendant’s face at close range when defendant walked towards him after the shooting. This gave Carrasco ample opportunity to recognize a man whom he had seen regularly – some 18 to 20 times in the preceding two years – standing outside defendant’s apartment building on 135th Street between Broadway and Riverside Drive, a block from Carrasco’s home. Although Carrasco did not know defendant’s full name, he was sufficiently familiar with him to know “from the street” that defendant went by the nickname “Sway,” which defendant’s friend Robert Reynoso confirmed was defendant’s nickname, and which obviously derived from the second syllable of defendant’s first name (Carrasco: A651-52; Reynoso: A826-27). In short, Carrasco was sufficiently familiar with defendant to make recognizing him that night a natural and easy task that could easily be done in seconds. And, even though Carrasco had unquestionably been drinking that night, there was no evidence that he was so intoxicated that he would have misidentified a man who was known to him. 35 35 Defendant notes that Aramis Catedral, who came on the scene after the shooting, “was not able to identify [defendant] at trial” (Defendant’s Brief at 52). But, Catedral had never seen defendant before that night (Catedral: A1018), and he was around the corner and -66- (Continued…) To be sure, as defendant points out (Defendant’s Brief at 52), Carrasco made some inconsistent statements to the police and grand jury. But Carrasco credibly explained that he was scared and reluctant to cooperate with the police, which accounted for both his initial denial that he had seen the shooting and the confused manner in which the details of his account may have been conveyed to the detectives that first day.36 Moreover, Carrasco simply had no reason to involve himself inextricably in the case by providing a description of defendant and identifying defendant’s photograph unless defendant was actually the man whom Carrasco saw shoot Montes. After all, had Carrasco truly seen nothing or not wanted to identify the person he did see, he needed only to continue insisting that he could not identify anyone. At the same time, Carrasco did have a powerful motive to identify the real killer, perhaps the only motive strong enough to overcome his fear and disinclination down the block when the shot was fired. Thus, while he noticed a man matching defendant’s description among the many who were fleeing the scene as he rushed towards it, he had no reason to focus on the man and did not see his face (Catedral: A994-95, A1005, A1018). 36 For example, defendant notes that there was evidence that Carrasco told police that the shooter was the man arguing with Montes (Defendant’s Brief at 52), whereas Carrasco clarified at trial that, when defendant walked up to Montes and shot him, Montes was arguing with another man. But, despite such inconsistencies in his account of the shooting, once Carrasco acknowledged to police that he saw the shooter, he never wavered from his description and identification of defendant as that man. And, Carrasco’s clarification at trial that the shooter was not the man who had initially been arguing with Montes did not warrant disbelief of his identification of defendant as the shooter. After all, if Carrasco had been intent on framing defendant, he would have had no reason to depart from his initial account that the shooter was arguing with Montes and that that man was defendant. -67- ______________________ (…Continued) to be known as a “snitch”: the desire to seek punishment for the man who had murdered his closest friend before his eyes. Thus, the inconsistencies in Carrasco’s early statements to the police, which were thoroughly aired before the jurors, provided no logical basis for them to doubt Carrasco’s identification of defendant.37 That is especially so because Carrasco’s testimony was substantiated by other powerful evidence. To begin, there was undisputed testimony from witnesses other than Carrasco that defendant and Montes had both been at a bar called J.J.’s until shortly before the shooting, and that the shooting occurred less than a block away from the bar. Moreover, the bouncer at J.J.’s recounted that, minutes before the shooting, a departing patron threw ice at defendant’s “crew” just as Montes was also leaving the bar. Defendant and his cohorts, apparently angered by the incident, rushed out into the street immediately afterwards (see Blanco: A316-17, A319-27, A330-31, A352-60, A370-72, A374-75, A378, A1901-02). Accordingly, there was 37 Defendant points out that Carrasco told the grand jury that Montes was arguing with someone named “Gotti” (Defendant’s Brief at 52). Carrasco never gave a specific reason why he said the name “Gotti” in the grand jury or why he backed off that testimony at trial. But, as noted, Carrasco was scared to be involved and may have wished to avoid naming anyone involved in the affair other than the actual killer. Significantly, if Montes was, in fact, arguing with someone named “Gotti,” that would not be inconsistent with Carrasco’s testimony that defendant was the shooter. The trial record contained evidence of two men nicknamed Gotti. One was defendant’s friend, a black man with short hair who had spent the evening before the shooting with defendant at J.J.’s bar. If defendant’s friend were the man who was arguing angrily with Montes immediately before the shooting, that fact hardly undermined Carrasco’s testimony that defendant approached and shot Montes in the midst of that argument. Rather, it simply suggested that both men had the same quarrel with the victim, whether arising from events in the club or elsewhere. -68- compelling proof, beyond Carrasco’s testimony, that defendant was in the vicinity of the shooting scene at about the time it occurred and that he and his “crew” had left J.J.’s angrily right after Montes had left.38 Carrasco’s identification of defendant as the shooter was further corroborated by evidence from which the jury could infer that defendant made concerted attempts to evade apprehension, starting immediately after the shooting. Specifically, there was evidence that defendant did not return home in the early morning hours following the shooting and that his close friends and family, including people like Reynoso and Tello who had been with him at J.J.’s that night, were calling each other and looking for defendant between four and six o’clock in the morning. As the jury would have appreciated, it was the shooter – and only the shooter – who had a compelling motive for disappearing immediately after the shooting, and avoiding his home, family and friends. The evidence further showed that defendant then fled to Florida, and stayed away from his home – missing the birth of his baby – for five months after the crime. And, although defendant did ultimately turn himself in, the evidence showed that the 38 Defendant contends that a significant “exculpatory inference” can be drawn from Blanco’s testimony that “all patrons who entered the bar that night were patted down for weapons” (Defendant’s Brief at 53). However, no witness testified that he actually saw defendant being patted down. In any event, defendant could have gotten the gun from someone else on the scene or, living nearby as he did, could have gone home or elsewhere to get the gun once he decided to shoot Montes. Indeed, the fact that Carrasco saw defendant walking alone towards the crowd that had already gathered around Montes is consistent with defendant having stopped somewhere on his way from J.J.’s to the scene of the shooting. -69- police were actively looking for him throughout this time, that their search extended to Florida, and that defendant – who was in regular telephone contact with his sister – had abundant reason to know that the hunt for him continued unabated. Under the circumstances, the fact that defendant finally decided to turn himself in and take his chances at trial hardly suggests that his original flight and concealment were not motivated by consciousness of his own guilt. In addition, defendant’s frantic and repeated jail-house efforts to locate Lenny Carrasco on the eve of Carrasco’s scheduled appearance at trial provided further evidence of defendant’s consciousness of guilt. The jury heard recordings of defendant’s conversations with his sister from jail, regarding the efforts she and other friends and family members were making to contact “Lenny.” The urgency defendant expressed about locating Carrasco before the scheduled day of his testimony, and the distress followed by resignation with which defendant greeted the news that it could not be done, allowed the jury to reasonably infer that defendant knew firsthand that Carrasco could identify him as the shooter. Finally, while the People’s case was overwhelming, the defense case did nothing to undermine it and actually provided further evidence of defendant’s consciousness of guilt. Sheny Perez was the principal defense witness, and her testimony was plainly fabricated at defendant’s behest. In brief, Perez testified that she and defendant – whom she claimed she scarcely knew – left J.J.’s together after it had closed on the night of the shooting and shared a cab to Perez’s home some 28 blocks away, for no -70- particular reason. If taken at face value, Perez’s testimony gave defendant an alibi. But, her account was implausible from the outset, since, if she were telling the truth, defendant would have known immediately that he had a witness who could establish his innocence, and would have brought her to the attention of the authorities at a time when her memory was still fresh, rather than fleeing town and making no effort to contact Perez in the ensuing five months. Perez’s credibility was further undermined when she first falsely told the jury that she had never visited defendant at Rikers Island, and then, after returning to the witness stand to correct her testimony, gave a patently false account of the timing and purpose of her visit that was belied by the visitation and telephone records introduced by the People. In short, the jury had every reason to conclude that Perez had concocted false exculpatory testimony at defendant’s instance. Particularly given the strength of the trial evidence, the Appellate Division correctly recognized that the testimony that the police focused on defendant as a suspect before Carrasco identified him was of “limited prejudicial effect.” People v. DeJesus, 105 A.D.3d at 477 (A5). The testimony on that subject was scant and would not have loomed large in the almost 2000 pages of testimony that the jury heard. Thus, there is no reason to believe that the jury’s verdict would have been any different had the challenged testimony been excluded, and accordingly no basis to disturb the jury’s verdict regardless of whether the testimony was properly admitted. See People v. Johnson, 57 N.Y.2d 969, 970-71 (1982) (bolstering error was harmless, -71- where identification of single eyewitness was “solidly credible” despite “some discrepancies”). * * * In sum, contrary to defendant’s unpreserved claims, evidence that he was a suspect in the case before Carrasco identified him did not constitute inadmissible hearsay and did not violate the Confrontation Clause, and the limited testimony to that effect provides no basis to disturb the jury’s verdict. -72- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: ALICE WISEMAN Assistant District Attorney ELEANOR J. OSTROW ALICE WISEMAN Assistant District Attorneys Of Counsel October 9, 2014 -73-