The People, Respondent,v.Joshue DeJesus, Appellant.

Brief

N.Y.February 17, 2015

To be argued by ABIGAIL EVERETT (15 Minutes) APL-2014-00084 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSHUE DEJESUS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 Phone: (212) 577-2523, Ext. 508 Fax: (212) 577-2535 aeverett@cfal.org ABIGAIL EVERETT Of Counsel November 3, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2 POINT I APPELLANT PRESERVED HIS CONFRONTATION-CLAUSE OBJECTION TO SPECIFIC POLICE TESTIMONY THAT APPELLANT BECAME A SUSPECT AT 4:00 PM ON JUNE 9, 2006, BEFORE THE SOLE IDENTIFYING WITNESS, CARRASCO, HAD IMPLICATED APPELLANT, THEREBY REVEALING THAT THE POLICE HAD AN ADDITIONAL SOURCE OF INCULPATORY INFORMATION THAT WAS NOT SUBJECT TO CROSS EXAMINATION (ANSWERING POINT I OF RESPONDENT’S “COUNTER STATEMENT OF QUESTIONS PRESENTED”).. . . . . . . . . . . . . 2 POINT II APPELLANT’S CHALLENGE TO CARRASCO’S CREDIBILITY DID NOT CREATE A NARRATIVE GAP THAT PERMITTED THE PROSECUTION TO INTRODUCE OUT-OF-COURT INFORMATION THAT TURNED POLICE ATTENTION “SPECIFICALLY” TO APPELLANT BEFORE CARRASCO MADE HIS IDENTIFICATION (ANSWERING POINT II OF RESPONDENT’S “COUNTER STATEMENT OF QUESTIONS PRESENTED”).. . . . . . . . . . . . . 7 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 10 i TABLE OF AUTHORITIES Federal Cases Crawford v. Washington, 541 U.S. 36 (2004)............ 9, 10 Tennessee v. Street, 471 U.S. 409 (1985).................. 8 State Cases People v. Arce, 42 N.Y.2d 179 (1977)...................... 5 People v. Cantave, 21 N.Y.3d 374 (2013)................... 5 People v. Caserta, 19 N.Y.2d 18 (1966).................... 9 People v. Hardy, 4 N.Y.3d 192 (2005)..................... 10 People v. McClean,69 N.Y.2d 426 (1987).................... 9 People v. Rivera, 96 N.Y.2d 749........................ 7, 8 People v. Santiago, 52 N.Y.2d 865 (1981).................. 5 People v. Trowbridge, 305 N.Y. 471 (1953)................. 9 State Statutes C.P.L. § 260.30........................................... 5 C.P.L. § 470.05(2)........................................ 4 ii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JOSHUE DEJESUS, : Defendant-Appellant. : ----------------------------------------------x PRELIMINARY STATEMENT Appellant submits this brief in reply to Respondent’s Brief [hereinafter “RB”], received by appellant on October 10, 2014. More particularly, appellant replies to respondent’s arguments that the confrontation clause error was not preserved for this Court’s review (Respondent’s “Counter Statement of Questions Presented,” Point I) and that appellant’s defense opened the door to the use of this otherwise-impermissible evidence (Respondent’s “Counter Statement of Questions Presented,” Point II). 1 REPLY ARGUMENT POINT I APPELLANT PRESERVED HIS CONFRONTATION-CLAUSE OBJECTION TO SPECIFIC POLICE TESTIMONY THAT APPELLANT BECAME A SUSPECT AT 4:00 PM ON JUNE 9, 2006, BEFORE THE SOLE IDENTIFYING WITNESS, CARRASCO, HAD IMPLICATED APPELLANT, THEREBY REVEALING THAT THE POLICE HAD AN ADDITIONAL SOURCE OF INCULPATORY INFORMATION THAT WAS NOT SUBJECT TO CROSS EXAMINATION (ANSWERING POINT I OF RESPONDENT’S “COUNTER STATEMENT OF QUESTIONS PRESENTED”). In his opening brief [hereinafter “AB”], appellant argued that he preserved his constitutional “confrontation” objection to testimony that was “designed to show specifically” that appellant was a suspect “before Lenny Carrasco” made his identification and that the “clear implication” of the objectionable testimony was that an earlier, unnamed source inculpated appellant (AB 2, 22, 54; see A1086). This objection was made during Detective Rivera’s direct examination and counsel also asked the court to strike the inadmissible evidence (A1086, A1088-89). Respondent maintains, however, that the confrontation challenge was untimely (RB 46). Respondent focuses on the court’s pre-trial ruling that the prosecutor could ask, “Based on your investigation that day, did you have a suspect in mind?” (RB 46; see A89). This was the court’s ruling after counsel objected, on hearsay grounds, to the proposed testimony that the victim’s family called the precinct at 4:15 2 PM on June 9, 2006, to report an anonymous tip that “the shooter’s name is Joshue and lives at [specific address omitted], with his grandparents” (A86-87). Counsel did not except to the court’s ruling. However, the prosecutor did not limit herself to asking, as stipulated by the pre-trial ruling, whether the police had a suspect in mind, “based on your investigation that day.” As defense counsel protested, the actual questions were more pointed and, by their clear implication, violated the judge’s pre-trial ruling (A1086). Counsel’s explanation of this argument was precise: This testimony that she just elicited from this detective was designed specifically to show that they believe [sic] Mr. Joshue DeJesus was the suspect in the case and she made it explicitly clear that was true before Lenny Carrasco was ever interviewed. The clear implication Judge is some unknown anonymous caller said Joshue DeJesus must have been the suspect. That was the purpose of the specific questions to say, “what exact time did you speak to Lenny Carrasco? Was it before 4:00 PM?” (A1086). Counsel argued that the prosecutor’s questions, as posed, violated appellant’s confrontation rights (A1089). Respondent dismisses the significance of the testimony. To Respondent, this line of inquiry suggests little more than that the police may have overheard neighborhood “scuttlebutt” (RB 53). Respondent misjudges the calculated effect of the trial assistant’s examination. The prosecutor repeatedly 3 referred to the specificity of the information. The unnamed source was significant enough that Joshue DeJesus became not just a suspect but a “specific suspect” (A1073). At 4:00 PM, the police started looking “specifically for a person by the name of Joshue DeJesus” (A1074). “[A]t the point that [they] had a specific suspect,” they had no yet spoken to Lenny Carrasco (A 1074). Then, they went to a “specific address” (A1076). Stressing the specificity of the information is inconsistent with Respondent’s current argument that “for all the jury knew,” this was just “scuttlebutt.” (RB 53). This is the same argument that appellant now asks this Court to resolve. Counsel’s timely articulation of the confrontation rationale in his motion to strike the detective’s testimony (A1089) presents the constitutional claim as a question of law for this Court’s review. C.P.L. § 470.05(2). Moreover, even if the Court were to find that counsel could have raised the same confrontation objection at the time of the court’s more limited, in limine ruling, the essence of New York’s preservation requirement is that the party must protest the court’s ruling either at the time of said ruling or “at any subsequent time when the court had an opportunity of effectively changing the same.” C.P.L. § 470.05(2). 4 When defense counsel raised the confrontation objection, he asked the court to strike the detective’s testimony. This Court has recognized that trial court instructions to disregard improper testimony are generally effective. See People v. Santiago, 52 N.Y.2d 865, 866 (1981); People v. Arce, 42 N.Y.2d 179, 187 (1977) (“However, though all trials must be fair, very few are perfect and many imperfections may be cured or alleviated by a wise and timely curative course on the part of the court. It may be less fact than fiction to suppose that an instruction to erase a prejudicial matter from a mind that has once perceived it, no matter how conscientiously carried out, can be fully accomplished. But it would also be a mistake to assume that, in the give and take of a trial of considerable length, it will not eliminate the prejudice sufficiently to assure a fair trial in many circumstances.”). See also People v. Cantave, 21 N.Y.3d 374, 378 (2013) (After both sides had rested, but before summations, defense counsel asked the court to reconsider the Sandoval ruling. The late request was not untimely because the trial court still had the discretion under C.P.L. § 260.30 to permit the defense to re- open and present the defendant’s testimony). Here, the court could have stricken the improper testimony, as counsel requested, before the detective had even completed his direct examination. Later, before summations, 5 counsel asked for a mistrial – again raising the confrontation-clause objection. The Appellate Division, First Department reached the merits of the “Confrontation Clause” claim (A3) – and, thereby, implicitly rejected Respondent’s argument that the issue was unpreserved for appellate review. Under these circumstances, appellant has fully preserved his constitutional objection to the detective’s highly- prejudicial revelation that other, unexamined, evidence had pointed the police to Joshue DeJesus even before Carrasco’s belated assertion that he recognized appellant as the shooter. As argued in the main brief, this evidence was prejudicial where the sole identifying witness had been drinking and made several material, inconsistent statements – including an initial account that made it impossible for him to have seent he actual shooting. 6 POINT II APPELLANT’S CHALLENGE TO CARRASCO’S CREDIBILITY DID NOT CREATE A NARRATIVE GAP THAT PERMITTED THE PROSECUTION TO INTRODUCE OUT-OF-COURT INFORMATION THAT TURNED POLICE ATTENTION “SPECIFICALLY” TO APPELLANT BEFORE CARRASCO MADE HIS IDENTIFICATION (ANSWERING POINT iI OF RESPONDENT’S “COUNTER STATEMENT OF QUESTIONS PRESENTED”). In Respondent’s view, appellant’s challenge to Carrasco’s credibility creates what this Court, in People v. Rivera, 96 N.Y.2d 749. 750 (2001), called a “material gap in the narrative.” See RB 59. Relying on People v. Rivera, Respondent argues that a defendant’s confrontation right, “under certain circumstances,” 96 N.Y.2d at 750, gives way because the defendant himself has “invite[d]” admission of otherwise-inadmissible testimony. Id. This, however, is not one of those circumstances. In Rivera, the defendant brought out that the police came upon a fight between defendant and the complainant and put them both into handcuffs. The defense also brought out that the police then released only the complainant. Based on this defense, this Court held that the prosecution could introduce evidence that the police officers spoke to two bystanders, who were unavailable to be examined at trial, before releasing the complainant. Thus, in Rivera, the defendant himself directly alleged to the jury that the police had acted arbitrarily in 7 arresting only him. This Court’s Rivera ruling follows the classic example of opening the door, as articulated by the Supreme Court in Tennessee v. Street, 471 U.S. 409 (1985)(Defendant's rights under the Confrontation Clause were not violated by introduction of an accomplice's confession for the nonhearsay purpose of rebutting defendant's testimony that his own confession was coercively derived from the accomplice's statement). In an effort to draw close to Rivera, Respondent argues that the defense below sought to mislead the jury by suggesting that “Carrasco had orchestrated the placing of defendant’s photograph in the photo array” (RB59). The record does not support Respondent’s argument. The defense brought out Carrasco’s prior statements that he did not see the shooting and was standing in a position where he could not have seen the shooting. The defense also brought out Carrasco’s grand jury testimony that someone named “Gotti,” was arguing with the deceased and his prior statements that the shooter was the person who was arguing with the deceased. These challenges to Carrasco’s credibility – along with evidence of Carrasco’s drinking – are general impeachment inquiries and did not open the door to otherwise-inadmissible evidence. 8 In People v. Caserta, 19 N.Y.2d 18, 25 (1966), this Court held that the defense challenge to the police officer’s identification, even including a question about whether the officer was hoping for a promotion, did not open the door to evidence of the officer’s prior photo identification or the officer’s third-party testimony regarding his partner’s identification of the accused. See People v. Trowbridge, 305 N.Y. 471 (1953). This Court recognized: Few are the criminal actions in which an attempt is not made on cross-examination to impair the credibility of key witnesses for the prosecution. If, whenever that happens concerning an issue of identity, the witness and collateral witnesses are permitted to do what was done in this case, there will be little left of these well-established and reasonable rules. Accord People v. McClean,69 N.Y.2d 426, 428 (1987) (“Mere impeachment by proof of inconsistent statements does not constitute a charge that the witness' testimony is a fabrication.”) If the defense in this case is seen as opening the door to evidence that otherwise violated appellant’s constitutional right of confrontation, few will be the cases where the defendant’s right to confront his accusers is protected. Ironically, the weakest identification cases will be seen to invite out-of-court accusations that are permitted to bolster shaky identifications without the testing of reliability that 9 the Confrontation Clause is meant to protect. Crawford v. Washington, 541 U.S. 36 (2004); People v. Hardy, 4 N.Y.3d 192, 197 (2005). Indeed, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 69, quoted in Hardy, 4 N.Y.3d at 197. In this close case, evidence that the police “already knew” that appellant was a “specific suspect” (A 2241-42) violated appellant’s constitutional right to confront the source of that out-of-court information and requires a reversal. CONCLUSION FOR THE REASONS STATED IN APPELLANT’S OPENING BRIEF AND THOSE HEREIN, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED. Dated: New York, New York November 3, 2014 10 Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28 Floorth New York, NY 10005 (212) 577-2523 By ____________________ Abigail Everett Of Counsel 11