The People, Respondent,v.Joshue DeJesus, Appellant.BriefN.Y.February 17, 2015To be argued by ABIGAIL EVERETT (Time Request: 15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSHUE DEJESUS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT (APL-2014-00084) ABIGAIL EVERETT Of Counsel June 30, 2014 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 7 4 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT JURISDICTIONAL STATEMENT QUESTION PRESENTED SUMMARY OF ARGUMENT STATEMENT OF FACTS Pre-Trial Evidentiary Ruling The Trial The People's Case The Shooting The Police Investigation The Prosecution Brings Out That Appellant Was A "Specific Suspect" Before Being Identified By Carrasco . . . . Appellant's Stay in Florida, Voluntary Surrender and Lineup Identification Appellant's Phone Calls From Jail to His Sister The Defense Case Rebuttal Case Defense Motion for a Mistrial Prosecutor's Summation . Deliberations and Verdict The Sentence Appellate Division Proceedings i iii 1 2 3 3 7 7 8 8 8 17 19 26 29 32 36 36 38 39 40 40 ARGUMENT POINT EVIDENCE THAT THE POLICE HAD IDENTIFIED APPELLANT AS A "SPECIFIC SUSPECT" HOURS BEFORE HE WAS IDENTIFIED BY PROSECUTION WITNESS CARRASCO WAS INADMISSIBLE, EVEN AS "BACKGROUND" EVIDENCE, BECAUSE IT CLEARLY SIGNALED THAT A NON-TESTIFYING DECLARANT HAD IMPLICATED APPELLANT, IN VIOLATION OF HIS RIGHT TO CONFRONT THIS ACCUSER, AND WAS PARTICULARLY PREJUDICIAL IN THIS ONE- WITNESS IDENTIFICATION CASE. U.S. CONST. AMENDS. VI, 42 XIV; N.Y. CONST. ART. I, § 6. 42 CONCLUSION 55 ii TABLE OF AUTHORITIES Federal Cases California v. Green, 399 U.S. 149 (1970) Chapman v. California, 386 U.S. 18 (1967) Crawford v. Washington, 541 U.S. 36 (2004) Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011) Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) Mendez v. Graham, 2012 WL 6594456 (E.D.N.Y. 2012) 43 51 passim 5, 43, 49, 51 5, 44 passim Michigan v. Bryant, 562 U.S. ----, 131 S.Ct. 1143 (2011) 43 Moore v. Ercole, 2012 WL 407084 (E.D.N.Y. 2012) ........... 49 Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011) Ohio v. Roberts, 448 U.S. 56 (1980) Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) 44 42 5, 44 Strickland v. Washington, 466 U.S. 668 (1984) ............. 41 Tennessee v. Street, 471 U.S. 409 (1985) United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) State Cases People v. Benevento, 91 N.Y.2d 708 (1998) 5, 40, 47 41 41 People v. =-=~-=-=--=-_,_=D~u=h=-s, 16 N.Y.3d 405 (2011) ...................... 43 People v. ~~~"--'-"-~M"""-=o=r~r-=i=-s, 21 N.Y.3d 588 (2013) .................... 51 People v. ~----...~~~-M~o=s~e~s, 63 N.Y.2d 299 (1984) ..................... 53 People v. =-==.i;o-=-=--=-_,_=R=e=i=-=d, 19 N.Y.3d 382 (2012) ...................... 48 People v. ~~~"--'-"--R==e ..... y-=e'-=s I 162 A. D. 2d 3 57 (1st Dept. 1990) 53 iii People v. Reynoso, 2 N.Y.3d 820 (2004) 47 People v. Rivera, 96 N.Y.2d 749 (2001) 40 People v. Tosca, 98 N.Y.2d 660 (2002) 40 Federal Statutes 28 u.s.c. § 2254 (d) (1) 50 U. S . Const . Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 4 2 U.S. Const. Amend. XIV 3, 42 State Statutes C.P.L. § 460.20 2 N . Y . Const . Art . I , § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 , 4 2 Other Authorities Aslett, Jeffrey, Crawford's Curious Dictum: Why Testimonial Nonhearsay Implicates the Confrontation Clause, 82 Tul. L. Rev. 297 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Fisher, Jeffrey L., The Truth about the 'Not for Truth' Exception to Crawford, 32-FEB Champion 18 (Jan/Feb 2008) 48 iv COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSHUE DEJESUS, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, granted April 2, 2014, 1 appeal is taken from an order of the Appellate Division, First Department. That order, entered April 9, 2013, affirmed with opinion a judgment of the Supreme Court, New York County, dated September 16, 2009, convicting appellant, after jury trial, of the crime of murder in the second degree (P.L. § 125.25), and sentencing him to an indeterminate term of 20 years to life imprisonment (Allen, J., at trial and sentence) On May 1, 2014, this Court assigned Robert S. Dean as counsel on appeal. No motion for a stay of execution of sentence pending appeal was made and appellant is currently serving his sentence. There were no co-defendants. 1Numbers preceded by "A" refer to the Appendix. The Order Granting Leave to Appeal is set forth in the Appendix (A. 2). JURISDICTIONAL STATEMENT This Court has jurisdiction pursuant to C.P.L. § 460.20. Appellant's Confrontation Clause claim was preserved by counsel's objection and motion to strike testimony that "was designed specifically to show that" appellant was a suspect "before Lenny Carrasco was ever interviewed" and that "the clear implication" was that an unnamed person had implicated appellant (A. 1086) . Counsel continued: "The People do not have the right to introduce hearsay anonymous accusations, absolutely not. It's completely violative of the right to confront, of the confrontation law, and it's clear law" (A. 1089). After the People rested, defense counsel moved for a mistrial: That's a confrontation clause violation Judge. This is basically unsworn testimony from these witnesses and it violates my client's Fifth, Sixth, due process rights confrontation, Crawford v. Washington, Judge, all of that is, in essence, testimonial, it's hearsay, it's unconfronted because it's unsworn, a whole slue [sic] of reasons why that should not have been allowed and why it's highly prejudicial (A. 2130-32; see also A. 2132-33). 2 QUESTION PRESENTED Whether extensive evidence that the police had identified appellant as a "specific suspect" before prosecution witness Carrasco named or identified him was inadmissible, even as "background" evidence, because it clearly signaled that a non- testifying declarant had implicated appellant, in violation of his right to confront this accuser, and was particularly prejudicial in this one-witness identification case. U.S. Const. Amends. VI, XIV; N.Y. Const. Art. I, § 6. SUMMARY OF ARGUMENT Appellant was charged with one count of second-degree murder. The one witness who identified appellant at trial had been smoking marijuana and drinking, had a limited opportunity to view the hooded shooter's face and made significant prior inconsistent statements, including telling the police that he had not seen the shooting. Asked if he had been "lying" when he gave inconsistent testimony to the grand jury, the witness said, "I am not sure. Probably." And, when the prosecutor inquired about this admission, the witness further admitted, "I don't really quite remember that well." However, Carrasco's substantial weakness as the sole alleged eyewitness did not really matter because, according to the prosecutor, when Carrasco identified appellant, he was just "confirming what the police already knew which is that [appellant] whose name and address they had as . . of 3 four o'clock that afternoon had killed [the decedent]" (A. 2241) . The only problem is that appellant was never given any opportunity to confront whatever evidence had already convinced the police of appellant's guilt. Yet, the jury had reason to believe there were other eyewitnesses who may have provided information to the police. As the prosecutor argued on summation, appellant committed the crime "right in his own neighborhood in front of plenty of people who knew him and could identify him" (A. 2223). Pre-trial, the court precluded the prosecution from eliciting evidence that the family of the decedent had told the police that they had received an anonymous phone call naming appellant as the shooter. Faced with this ruling, the prosecutor, instead, pointedly brought out, repeatedly, that appellant was a "specific suspect" before Carrasco identified him: "And at this point that you had a specific suspect that you were looking for in connection with the shooting death of [the decedent], had you spoken to Lenny Carrasco?" (A. 1086) . Again, the clear inference from this line of inquiry was that out-of- court statements had been made inculpating appellant. Because appellant had no opportunity to confront these out-of-court statements, his constitutional confrontation rights were violated. Crawford v. Washington, 541 U.S. 36 (2004). 4 To implicate the defendant's confrontation right, the statement need not have accused the defendant explicitly but may contain an accusation that is only implicit. Mason v. Scully, 16 F.3d 38, 42-43 (2d Cir. 1994). "The essence of a violation of the Confrontation Clause is the presentation of an accusation against the defendant without presenting the accuser." Ryan v. Miller, 303 F.3d 231, 251 (2d Cir. 2002). The need to confront may be even more acute when it is not even clear who made the out-of-court information accusation. The jury has very little context to assess reliability. Nor was appellant's right to confront any less because the prosecution claimed to be introducing the evidence as "background" to show the jury "how [the police] came to focus on this defendant" (A. 87) . As it turned out, the jurors were urged to consider the out-of-court information for its truth - not only because there was no limiting instruction - but also because the prosecutor told the jurors that the police already knew appellant was the shooter befor~ they ever spoke to Carrasco. The police knew that appellant was guilty based on information appellant was not allowed to confront. Evidence purportedly offered as background violates the defendant's confrontation right, if, in fact, the jurors are urged to consider the evidence for its truth. Jones v. Basinger, 635 F.3d 5 1030 (7th Cir. 2011), cited in Mendez v. Graham, 2012 WL 6594456 (E.D.N.Y. 2012) Tennessee v. Street, 471 U.S. 409 (1985), cited in Crawford, 541 U.S. at 59, n. 9, does not hold to the contrary. The Supreme Court's Crawford holding so firmly protects confrontation rights that its reference to Street, in dictum, cannot be read to undercut the very principle being announced. Rather, Street stands only for the narrow proposition that criminal defendants can waive their confrontation rights by opening the door to out-of-court statements. In Street, the defendant accused the police of fabricating his confession by incorporating information from the co-defendant's statement. For this reason, the defense opened the door to admission of the co- defendant' s statement, which did not contain all the information found in Street's confession. Here, the Appellate Division erred in finding that appellant had opened the door to the challenged testimony. While appellant vigorously challenged Carrasco's credibility and reliability as a witness, that defense strategy did not open the door to permitting the prosecutor to elicit out-of-court information to bolster the damaged credibility of their sole eyewitness without affording appellant his constitutional right to confront this information. 6 As appellant fully preserved his confrontation challenge in the trial court, the judgment of conviction must be reversed and a new trial ordered. STATEMENT OF FACTS Pre-Trial Evidentiary Ruling At the end of the pre-trial Wade hearing, the prosecutor asked for permission to introduce evidence, at trial, that the decedent's family had called the police twelve hours after the shooting to report an anonymous phone call, stating, in substance, that the shooter's name was "Joshua" and that he lived with his grandparents at a specific address on West 135th Street (A. 86-87) . The prosecutor argued that this information was relevant to show "why the police focused on this defendant and how they came to put his photo in a photo array, how they came to show it to witnesses, . that the defendant was a suspect from the day the actual homicide took place. So it's not being offered for the truth of the matter but just to show the jury that this was an individual that was focused in on by the police and how they came to focus in on this defendant" (A. 87) . In opposition, defense counsel argued that the "unsworn allegation of an anonymous witness" was "double hearsay" (A. 88). Counsel also objected that it was unnecessary: "The People don't have to use that phone call to explain why the investigation went in the direction that it did. Again, it's 7 purely prejudicial and there's no probative reason to allow it in" (A. 87) . The court ruled that the prosecutor could ask, "based on your investigation on that day, did you have a suspect in mind," without mentioning the anonymous phone call (A. 88). The Trial The jury trial began on June 11, 2009, before Justice Bruce Allen (A. 92). The People's Case The Shooting On June 8, 2006, the 20-year-old decedent lived on West 135th Street between Broadway and Amsterdam Avenue, in Manhattan (Racquel Jachero: A. 170-71). Lennon Carrasco, who lived nearby, was his best friend (Carrasco: A. 625, 683). The two men were the same age; they had known each other all their lives and spent time together every day during the summer of 2006 (Carrasco: A. 625,634-35). At trial, Carrasco testified that he liked to "drink and party" (Carrasco: A. 630). He would drink "almost everyday" or "Wednesday through Saturday night" and he drank "heavily" (Carrasco: A. 631). He was also smoking marijuana "heavily" at that time - at least every day (Carrasco: A. 632-33). On June 8, 2006, starting at about 11:00 P.M., Carrasco played basketball with friends, including Artemis Catedral, in 8 a park on West 136th Street and Amsterdam Avenue (Carrasco: A. 636-37; Catedral: A. 974). According to Carrasco, the men drank rum and smoked marijuana as they played (Carrasco: A. 638). They were playing for shots; "you miss, you take a drink" (Carrasco: A. 638) Catedral, Carrasco and the decedent were all close friends but the decedent did not play in this game (Catedral: A. 971-72). He came later, at about 1:00 A.M., to ask them to join him at a local bar, J. J. 's, on the East side of Broadway, between West 135~ and West 136~ Streets (Carrasco: A. 640-41; Catedral: A. 975). Miguel Blanco, who also lived in the neighborhood, was working at the bar that night (Blanco: A. 283, 289-90). The bar was very crowded; it was dollar-beer night (Carrasco: A. 642; Blanco: A. 300). It was Blanca's job to greet people and keep an eye out for any trouble (Blanco: A. 290, 296, 299-300). All male patrons were patted down when they entered J.J.'s and the women were screened for weapons with a metal detector (Blanco: A. 362). That night, it was not Blanca's responsibility to do pat-downs; that function was being performed by another employee named Wilkins (Blanco: A. 379). Carrasco remembered being patted down that night when he entered the bar (Carrasco: A. 754) . Appellant, Joshue DeJesus, also came into the bar that night; he was a Thursday night "regular" (Blanco: A. 301-02). 9 Appellant lived on West 135th Street between Broadway and Riverside (Blanco: A. 281). In the evenings, appellant often was outside with others in front of his building (Blanco: A. 277, 283). According to the decedent's step sister, the decedent knew appellant from the neighborhood (Taniery Castillo: A. 14 72) . Appellant was a "big" man with long hair that he typically wore in a shoulder-length ponytail (Blanco: A. 284-85; Castillo: A. 1497). Appellant, who was known as "Sway," was in the bar with his usual group, including Robert Reynoso, Kenny Tello and others (Blanco: A. 301-03, 340; Reynoso: A. 826, 833-35). Reynoso was a close friend of appellant, who lived in Pennsylvania but visited frequently (Reynoso: A. 826-27, 849- 50). That night, appellant was wearing a white T-shirt (Blanco: A. 342) . Blanco acknowledged that there was another man there who facially resembled appellant (Blanco: A. 376-77). Also with appellant that night was someone named "Gotti," a black man who had once dated the decedent's sister (Reynoso: A. 835, 841-42; Castillo: A. 1450, 1454-56, 1490-91). Castillo testified that Gotti's first name was Michael. In his late 20's, Gotti was short and heavy with hazel eyes (Castillo: A. 1450- 54) . Later, a second group of regulars came into the bar; they were known to Blanco as the "White-T's," which they often wore, (Blanco: A. 305-09, 341-42). Blanco testified that he would 10 often see the White-T's "gathered up in the trains causing trouble" (Blanco: A. 306). Because Blanco had heard rumors that the White T's and appellant's "crew" had argued during the day, he asked if "everything was good" (Blanco: A. 305-06). "Everybody said no, it's good, there's no problem" (Blanco: A. 305). Blanco did not think that the decedent was part of the White-T "clique," but, that night, he did see him in the bar "with some of the White T's" (Blanco: A. 306, 341). Catedral testified that the decedent was friendly with "the whole group," but he was not a member (Catedral: A. 980-82). At the bar, Carrasco continued drinking beer and Hennessey (Carrasco: A. 644) . He was "feeling right" - but "not drunk that I couldn't speak or talk or walk. I was good" (Carrasco: A. 644). Carrasco testified that he had less than he would "normally drink" (Carrasco: A. 645) . But Blanco, who had nothing to drink (Blanco: A. 299), testified that Carrasco appeared more intoxicated than usual (Blanco: A. 346) . 2 Blanco would see Carrasco in J.J.'s about once a week and he agreed that Carrasco was "in rare form" that night - not as quiet as usual (Blanco: A. 346) . Carrasco got on a chair to dance, and when Blanco told him to get down, he gave Blanco a hug, which was unusual (Blanco: A. 312-15, 345-46, 364). Carrasco, however, denied that 2Blanco also described Carrasco as "semi-drunk" (Blanco: A. 313) 11 he jumped on a chair or hugged Blanco (Carrasco: A. 697-98). As for Catedral, he described himself as "intoxicated," but "not that I couldn't stand" (Catedral: A. 978). There were no problems until people started to leave. Appellant and his friends were still seated, "minding their own business," as the White T's got up (Blanco: A. 311). Blanco overheard plans to go to a deli on the corner of West 138~ Street and Broadway (Blanco: A. 322, 333-34) . 3 The decedent was about 10 feet away from the White T's, and they were all filing out "normal [ly] , " when a man, near the door, turned back and threw some ice that hit the wall near appellant's group (Blanco: A. 311, 315-17 I 321-23, 327 I 356, 373-75, 378). To Blanco, appellant's friends looked surprised, and then, angry (Blanco: A. 323-24, 333). However, Blanco acknowledged that he did not specifically notice appellant's reaction (Blanco: A. 325, 352). Within minutes, appellant and his friends also left the bar (Blanco: A. 330-31). Catedral did not corroborate the ice-throwing incident. 4 He recounted some disturbance near the front door involving the security guard and someone who was not being allowed entrance, 3 Blanco also testified that 10 - 15 minutes elapsed between when everyone left the bar and when he was told to close the bar early that night (Blanco: A. 321). 4Reynoso also did not remember anyone throwing any ice (Reynoso: A. 842-43). 12 possibly an "underage kid" (Catedral: A. 984) . The decedent noticed the commotion and asked Catedral if it had anything to do "with us," meaning the friends: Catedral, Carrasco, Kelvin and a different person named "Gotti" (Catedral: A. 985, 1017). Catedral told him, "no" (Catedral: A. 985). On re-direct, Catedral testified that this other Gotti, who had been playing basketball with them earlier in the day, was not in the bar with them because he was underage and not allowed in (Catedral: A. 1018-19). Catedral's friend Gotti, who was also the decedent's friend, was a skinny Hispanic, about 5'7", with long hair that could be pulled back to a pony tail at the neck line (Castillo: A. 1457-59, 1475, 1492) Catedral did not know anyone else named "Gotti" (Catedral: A. 1020). At trial, the sole eyewitness to the shooting that followed was Carrasco. 5 According to Carrasco, when he left the bar, at about 3:45 A.M., somebody named "[Sisco] told [him] don't go towards that way. Something is going to happen" (Carrasco: A. 645-46). Carrasco looked in that direction and saw the decedent arguing with someone, on the corner of West 136~ Street and Broadway (Carrasco: A. 647, 656). At trial, he testified that he did not know the person arguing with the decedent (Carrasco: 5Reynoso testified that he did not see the shooting. After leaving the bar, he saw a crowd and heard screaming and "fighting words." He did not see appellant or anyone else he knew and went home (Reynoso: A. 844-48) 13 A. 646-47, 663). However, at the grand jury, Carrasco identified this man as "Gotti" (Carrasco: A. 707-08, 745). He did not indicate which Gotti. On redirect, Carrasco testified that he did not even know Gotti (Carrasco: A. 776). Asked if he had been "lying" when he testified that he saw the decedent arguing with Gotti, Carrasco answered "I am not sure. Probably" (Carrasco: A. 7 7 6) . The prosecutor followed up: "What do you mean?" and Carrasco answered, "I don't really quite remember that well" (Carrasco: A. 777). Carrasco testified that as he got closer to see what was going on, the decedent moved away from the corner, more towards Amsterdam Avenue (Carrasco: A. 647-48, 653). Carrasco noticed a man ahead of him, walking in the same direction, with his back to Carrasco (Carrasco: A. 648-50). The man wore a hoody that covered his head (Carrasco: A. 649). At trial, Carrasco testified that he was not sure of the hoody's color though he previously told Detective Rivera that the hoody was "gray" (Carrasco: A. 676; Rivera: A. 1083). Carrasco stopped at the corner of West 13 5th Street but the man continued right "up to the crowd" (Carrasco: A. 648-49). The decedent was about 8 to 10 feet away from Carrasco, on West 135th Street, in the direction of Amsterdam Avenue (Carrasco: A. 712). The man in the hoody pulled something from his waistband, got to an arm's length from 14 the decedent, stretched out his arm and fired one shot at the decedent's chest (Carrasco: A. 656, 658). Carrasco did not see any weapon in the decedent's hands (Carrasco: A. 656). The decedent took a couple of steps toward Carrasco and said, "Yo, El, they just shot me" (Carrasco: A. 657, 660). Pointing towards the shooter, the decedent said, "I know where you live and I know where you're from" (Carrasco: A. 660, 669). The shooter walked back to the corner and turned right on Broadway, heading back down towards J.J.'s bar (Carrasco: A. 669) . Carrasco testified that when the shooter turned around and walked past him he recognized him as appellant (Carrasco: A. 650, 661). Over the prior two years, Carrasco had seen appellant 18-20 times on West 135th Street (Carrasco: A. 650). Carrasco testified that he knew that appellant's nickname was "Sway" (Carrasco: A. 651-52) . However, on cross examination, Carrasco was confronted with grand jury testimony where he said that he knew appellant as "Jose" or "Joshue," but not "by any other nicknames" (Carrasco: A. 705) As for Catedral, he testified that he left the bar about 12-14 minutes after "everybody" else went out ( Catedral: A. 985) . He started to walk toward "like a little crowd little commotion" (Catedral: A. 986). He heard a shot. There were maybe 30-35 people and everyone started to scatter (Catedral: A. 986- 87). He noticed three people in particular: two men, wearing 15 hoodies, running down the block toward Amsterdam Avenue, and a third man, wearing a black hoody, jeans and black boots (Catedral: A. 994-95). This person "turn[ed] around, face[d] [Catedral and] r[a]n past [him]," back in the direction of the bar but Catedral did not see his face (Catedral: A. 994-95, 1005, 1018). The man appeared to be 5'9" and weighing 190-195 pounds (Catedral: A. 995, 1005). Catedral testified that he did not know appellant (Catedral: A. 1018) . He made no in-court identification. Catedral ran toward the corner of West 136~ Street and Broadway (Catedral: A. 987). After turning onto West 135th Street, he saw the decedent on the ground (Catedral: A. 989). The decedent was cursing and Carrasco, Sisco and Kelvin where kneeling next to him, "trying to calm him down" (Catedral: A. 989-91) . Carrasco called 9116 but hung up because the operator was asking too many questions (Carrasco: A. 670-71). He, Catedral and Sisco put the decedent into Sisco's van, and Sisco and Carrasco drove with him to the Columbia Presbyterian Hospital (Carrasco: A. 671-74, 692-93; Catedral: A. 990, 992, 996) . 6 The 911 call was introduced as People's Exhibit 38 (A. 670) . 16 The Police Investigation Carrasco and others stayed at the hospital until the decedent died, 7 at 5:45 A.M. (Carrasco: A. 676). At the hospital, a police officer interviewed some of the people who brought the decedent to the hospital but Carrasco did not speak to the officer (Carrasco: A. 692-94). He testified that he did not want to get involved and that he was "frightened" (Carrasco: A. 761- 62) . 8 Detective Curtis Bonilla got a listing of all phone numbers of people who had called 911 about the shooting and he phoned Carrasco at about 4:53 A.M., on June 9, 2006 (Bonilla: A. 1031- 32, 1037, 1039, 1044; Carrasco: A. 719-21). Carrasco told Bonilla that he had not seen anything because he had been standing in front of a Crown Chicken restaurant on Broadway when he heard a "pop." He went running to the corner and saw the 7The decedent died of a single gunshot wound to the center of the abdomen (Doctor Elizabeth Bundock: A. 796, 801-819). From the presence of soot and powder residue in the abdomen wall, the medical examiner concluded that it had been a "contact wound" (Bundock: A. 813-14, 816-17). Erin Reith, a criminalist and expert in gunshot residue analysis, analyzed the decedent's T- shirt and determined that the shot had been fired at a "relatively close range" - no more than 15 to 18 inches (Reith: A. 495, 517-19). She did not see the "usual" evidence that would confirm that it was a "contact" wound since the hole in the clothing did not display the "characteristic ripping and tearing" (Reith: A. 524). However, she also did not rule out that it had been a contact shot (Reith: A. 524, 600). 8Detective Rivera testified, on direct, that Carrasco was "nervous" and "very reluctant" during interviews (Rivera: A. 1149) . 17 decedent lying on the sidewalk (Carrasco: A. 719-21, 738-39). The Crown Chicken was on the west side of Broadway between West 135th and West 136th Streets, about 100 feet from the crime scene. The scene of the shooting, which was around the corner on West 136th Street, would not have been visible from that location (Police Officer Erich Obojkovits: A. 474-75; Carrasco: A. 717). Carrasco provided no descriptions at this time (Bonilla: A. 1044) . At trial, Carrasco testified that he again withheld information because he did not want to get involved (Carrasco: A. 763). At about 7:45 A.M., Detectives Rodrigo Caballero and Antonio Rivera were assigned to the investigation (Rivera: A. 1057-58, 1152-53; Caballero: A. 1231-33, 1236). At 8:00 A.M., Rivera went to the crime scene, canvassed for witnesses and looked for evidence (Rivera: A. 1065) . He worked on the investigation all day (Rivera: A. 1073). Rivera testified that he first interviewed Carrasco at 7:00 P.M., on June 9th (Rivera: A. 1154). At that interview, Carrasco provided the following description of the shooter: a light-skin Hispanic man, with long, coarse hair, "past the neckline," wearing a gray hoody and blue jeans (Rivera: A. 1083-84). Carrasco told Rivera that he saw this man in a "dispute" with the decedent (Carrasco: A. 730, 739-40; Rivera: A. 1162). However, Carrasco continued to maintain to Rivera that he had 18 been standing in front of the Crown Chicken at the time of the shooting (Rivera: A. 1218). Nevertheless, he said that he recognized the shooter from the neighborhood and could make an identification (Carrasco: A. 766, 787, 789; Rivera: A. 1162). Later that night, Caballero put together a photo array9 to show Carrasco (Caballero: A. 1239). Carrasco made a photo identification at about 10:00 P.M. (Carrasco: A. 741-43, 769). Caballero testified that Carrasco appeared uscared" at the time (Caballero: A. 1245) . During that conversation, Carrasco told Caballero that uthe person who shot [the decedent] was the guy [the decedent] was arguing with" (Carrasco: A. 744-45; Caballero: A. 1285-86, 1390). The Prosecution Brings Out That Appellant Was A "Specific Suspect" Before Being Identified By Carrasco The prosecutor asked the following series of questions, that pinned down that the detective got information identifying appellant a suspect before he spoke to Carrasco: Q. Did there come a time during that day on June 9th of 2006 that you were looking for a specific suspect relating to the shooting death of [the decedent]? MR. WALSH: Objection. THE COURT: Overruled. A. Yes, ma'am. 9Evidence of the photo identification was first elicited by defense counsel. 19 Q. And what was the name of the person you were looking for? MR. WALSH: Objection, Judge. THE COURT: Overruled. A. Joshue DeJesus. Q. Do you see Joshue DeJesus here in court today? A. Yes, ma'am. Q. Can you please point to him and identify him by a piece of clothing he's wearing. A. The beige shirt, dress shirt. Q. And I may have asked you this: What time on June 9th did you begin specifically looking for a person by the name of Joshue DeJesus? MR. WALSH: Objection, Judge. THE COURT: Overruled. You may answer. A. 4:00 P.M. Q. And without telling us specifically, was that as a result of your investigation that you began looking for the defendant, Joshue DeJesus? A. Yes, ma' am. Q. And at the point that you had a specific suspect that you were looking for in connection with the shooting death of [the decedent] , had you spoken to Lenny Carrasco? A. No, ma' am. Q. And at the point that you began looking or had the name Joshue DeJesus as a suspect 20 in this case, do you know if Detective Caballero had spoke to Lenny Carrasco? A. No, ma'am. MR. WALSH: Objection, Judge. THE COURT: I'll sustain that objection and strike the answer. MR. WALSH: Could we approach, Judge? THE COURT: No. Q. Now once you - once at around 4 o'clock in the afternoon on June 9th you had a suspect, Joshue DeJesus, please tell the jury on that day, at that time, what you started to do to look for the defendant? Q. And at approximately 4 o'clock in the afternoon on June 9~ of 2006, did you obtain an address for the defendant, Joshue DeJesus? A. Yes, ma'am. Q. And what address - MR. WALSH: Objection, Judge. Could we approach, Judge? THE COURT: No. Answer stands. Please continue (A. 1075) . The prosecutor established that Rivera met with Carrasco around 7:00 or 8:00 P.M. (A. 1081) and then followed up by asking, "And are you certain that it was after 4 o'clock in the afternoon on June 9th of 2006 that you had any communication with Lenny Carrasco?" (A. 1082). Rivera answered, "yes, ma'am" (A. 1082) . 21 When the court took a break in the direct examination, defense counsel came forward with an objection: During the direct examination of Detective Rivera, I had voiced several objections, and there was a point in time when I asked to approach and you denied my request to approach. Before the trial started, [the prosecutor] made a request, an application to the court to admit testimony about an anonymous phone caller who led the detectives to suspect Joshue DeJesus. In my opinion, that application, prosecutor] just application Judge, Judge, and you denied I believe that [the basically defied that implicitly. The 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 p.m. or was it after 4:00 a.m.?" That's the reason it was done, Judge, because what she's showing is somebody identified Mr. DeJesus as the shooter before Lenny Carrasco did. I am going to move to strike that portion of Detective Rivera's testimony that stands for that proposition, and I'm going to ask you to instruct [the prosecutor] that she cannot sum up on that at the end of the trial (A. 1086). 22 The prosecutor defended her examination: The detective is clear that he was looking the defendant, Joshue DeJesus, at 4:00 p.m. and had specific information, as I'm permitted to do that, he was looking for the defendant, had a name of a person that he was looking for, had an address, and I'm allowed to elicit what was done with that information as that was going on, the address and name and information, and I'm certainly entitled to bring out from the detective at what time it was that the detective, or any information that was obtained from Lenny Carrasco (A. 1087) . The prosecutor concluded, "I didn't violate your Honor's ruling at all, I did nothing to elicit the fact that it was an anonymous caller and in fact I instructed the witness not to state it, it was not an anonymous caller, so I certainly abided by your Honor's ruling (A. 1087-88). Defense counsel responded that "the implicit implication Judge was that he had a hearsay source That is the specific purpose for asking the question as it related to 'When did you get the information from Lenny Carrasco?' Look at it. It clearly stands for the proposition of somebody told me to look for Joshue DeJesus because he was the shooter before someone spoke to Lenny Carrasco" (A. 1088) . Counsel again asked that the testimony be stricken because it was "hearsay" (A. 1089) . Counsel continued, "The People do not have the right to introduce hearsay anonymous accusations, absolutely not. It's completely violative of the right to 23 confront, of the confrontation law, and it's clear law" (A. 1089) . Counsel did not believe that the court had permitted the prosecutor to bring out the contested testimony "to complete the narrative" (A. 1089) . 10 The Court held that the prosecutor had not violated the in limine ruling (A. 1090) . On re-direct, 11 the prosecutor further established that the police did not have a suspect after Bonilla's earlier interview "over the phone with Lenny Carrasco" (Rivera: A. 1198). She also asked whether Rivera and Bonilla were the only detectives to interview Carrasco (A. 1198) and reiterated that the police got appellant's name and address about 4:14 P.M. (Rivera: A. 1200-01; 1203). The prosecutor also brought out from Detective Caballero that the police had a suspect before getting appellant's name from Carrasco. After Detective Caballero recounted speaking with 1 °Counsel stated: "I don't know what [the prosecutor is] referring to when she says she has the right to do it. If she had made the application prior to trial that certain things were necessary to bring out to complete the narrative for whatever, then maybe if your Honor had made a ruling, that would have been allowed, but when the subject of an anonymous caller came up, you said absolutely not, and this is what was introduced, implicitly, at least" (A. 1089-90). 110n cross examination, defense counsel asked Rivera whether he had identified appellant as a "person of interest in the case" (Rivera: A. 1155). Rivera answered, "He was identified, yes" (Rivera: A. 1155). Defense counsel tried to impeach Rivera by asking whether Rivera had spoken to the person who identified appellant (Rivera: A. 1156) . 24 Detective Bonilla about his early-morning interview with Carrasco, the prosecutor asked Caballero, "And was there any information about the name Joshue DeJesus provided to Detective Bonilla at that point from Lenny Carrasco" (Caballero: A. 1235). Caballero testified, "no" (Caballero: A. 1235). The prosecutor took Caballero through a series of questions to bring out when Joshue DeJesus became a suspect: Q. I'm going to direct your attention to the afternoon of June 9th of 2006, okay? A. Yes. Q. Did there come a time, during the afternoon, that the investigation was focused on a specific person? A. Yes. Q. Who was that person? A. Joshue DeJesus. Q. And again, without telling us how you got that name, about what time in the afternoon of June 9~ of 2006 did you receive the name Joshue DeJesus in connection with the shooting death of [the decedent]? A. At approximately 4: 00 p.m. (Caballero: A. 1241-42) . 12 120n re-direct, the prosecutor again asked whether Caballero had a suspect before Rivera spoke with Carrasco. Defense counsel objected that the question "was beyond the scope" and had been "asked and answered." The court overruled the objections and allowed Caballero to answer "yes" (A. 1370) 25 During direct examination, the prosecutor asked both Rivera and Caballero the names of various people interviewed during the investigation (Rivera: A. 1103-1125; Caballero: A. 1253-1274). On cross of Caballero, defense counsel elicited that, whatever else they may have told police, certain named individuals (including many of the people the prosecutor had inquired about) had not provided any information about who had shot decedent (Caballero: A. 1336-1347) . On redirect, the prosecutor asked Caballero about his interview with a man named Manic Boras or Johnny Bora who had "provided] [the detective] firsthand knowledge of who shot [the decedent] on June 9th of 2006" (Caballero: A. 1371-72). Asked if Bora had been "cooperative" since, Caballero said he had not; the police had been unable to get Bora to testify (Caballero: A. 1296, 1372). On direct, Caballero testified that many of the people he interviewed had refused to cooperate and been "belligerent" (Caballero: A. 1296). According to Caballero, Blanco was the only potential witness in the case who had treated the detective "with respect" (Caballero: A. 1294-96). Appellant's Stay in Florida, Voluntary Surrender and Lineup Identification Robert Reynoso's wife, Erica Castro, grew up with appellant (Castro: A. 906-11). On the night of June 8, 2006, Castro was sleeping at her mother-in-law's home on West 135th Street 26 (Castro: A. 910). Sometime before 5:00 A.M., on June 9, 2006, Reynoso came home drunk, and said something had happened (Castro: A. 912-15; Reynoso: A. 848-49, 858). Shortly thereafter, Kenny Tello called and spoke with Reynoso. Tello was looking for appellant (Reynoso: A. 849, 855). Phone records introduced by the prosecution (People's Exhibit 69), showed several early-morning calls to and from the phone registered to Tello and his wife, Leomalis Torres, including calls to appellant's sister (Castro: A. 915-21; Reynoso: A. 849, 851, 845-55, 858-59; Torres: A. 1547, 1559-62). A day or two later, appellant called Reynoso who would not let him come over; he did not want to get involved. Reynoso testified that he told appellant to turn himself in "if you did something" (Reynoso: A. 859-63, 867, 870-71). Ten days later, the police came to the Reynoso/Castro house in Pennsylvania, looking for appellant. He was not there (Reynoso: A. 864, 867, 870; Castro: A. 922-26). The police also went to appellant's apartment in New York, and they spoke to members of his family and his friends (see, ~, Rivera: A. 1100-01, 1116, 1122-25). In July, the police got a lead that appellant was in Orlando, Florida, staying at a particular hotel, and that he was receiving money through Western Union (Rivera: A. 1125-31; Caballero: A. 1297-1301). 27 Torres went to Orlando, and stayed with appellant at a hotel on South Orange Blossom Trail13 and asked him to return to New York, and turn himself in. She believed he was innocent. He said he was willing, but he wanted his family to retain an attorney for him first (Torres: A. 1578-89, 1597-98, 1601). Torres told the police about her meeting with appellant in Florida (Torres: A. 1593; Rivera: A. 1125-26). In November, 2006, appellant's sister called Detective Rivera and said her brother was in New York, and would voluntarily surrender. She told him where appellant was and Rivera picked him up (Rivera: A. 1143-46, 1192-93). Appellant had shorter hair and was a little thinner in November 2006, than he had been in June 2006 (see People's Exhibit 30 [photo of appellant as he looked in June; Castro: A. 680] and People's Exhibit 39 [lineup photo, with appellant in position number 3; Castro: A. 676-79]). He was also thinner at trial than in June 2006 (Blanco: A. 284-85; Castro: A. 680; Torres: A. 1595). On November 8, 2006, Carrasco identified appellant in a lineup (Carrasco: A. 677-78; Rivera: A. 1147-48). 13Appellant's cousin, Karina Reyes, worked at a supermarket on West 134th Street (Reyes: A. 1407-09). In June, 2006, Edward Estrella (the boyfriend of appellant's sister, Charlene (Reyes: A. 1415-16), wired $279.99 to a Michael Cruz at an address on South Orange Blossom Trail, in Orlando, FL. (Reyes: A. 1419- 24). Later that month, a Christian Cruz also wired money to Michael Cruz, in Orlando (Reyes: A. 1424-26). 28 Appellant's Phone Calls From Jail to His Sister During the trial, while he was incarcerated at Rikers' Island, appellant made a series of phone calls to his sister, Charlene Martinez, that were recorded (Captain Harold Erskine: A. 1529-34). An inmate handbook and posters in the phone areas warned that the conversations were subject to "monitoring and/or recording" (Erskine: A. 1526, 1529-36). The prosecution introduced recordings of three phone calls. 14 On June 15, 2009, appellant called his sister, whose nickname was "Chela" (Martinez: A. 2010), and asked her if she had given "the name of the guy" to Rosa Cruz, the mother of appellant's daughter (Rivera: A. 1142; Caballero: A. 1259; Martinez: see A. 2012; T: 1-2). The conversation continued: [MARTINEZ]: Of what guy? No. [APPELLANT]: Of, of, of the one who can the one who is doing to me. You know who. [MARTINEZ] : Oh, no no. Well, she saw him because she was on the list15 and he asked her and he asked her about a few people and 14The calls were mostly in Spanish and a recording was introduced as People's Exhibit 68 (A. 1929). The prosecution provided the jurors with transcripts including both the original Spanish and the English translation (A. 1927-30). Those transcripts, which were not introduced into evidence, have been added to the record by stipulation and are included in a separately-bound Addendum to Appellant's Brief. Page references to this Addendum are indicated by "T." 15Testifying for the defense, Martinez explained that she was talking about defense counsel reviewing the witness list (Martinez: A. 1991-95). 29 she said no, that she did not know anybody. That the only people she could recognize from the list were Ken, Leo and me and herself. [APPELLANT]: She didn't recognize Lene, um ? The name of the [unintelligible] (T: 1-2) . Appellant continued, "She knows him" because "the guy used to talk to her friend or was fucking ... with her friend" (T: 2). Carrasco was originally subpoenaed to testify for the prosecution on Monday, June 22, 2009 (Caballero: A. 1632). On Friday, June 19th, appellant again called his sister from Rikers. Appellant told her, "This next week that's coming up that one, that one, that one is going to determine, you know" (T: 17). He asked Martinez to come to Rikers "So we can talk. Because we have to talk and you know that I can't talk over the phone" (T: 18) . After briefly discussing appellant's daughter, (T: 19), Martinez said, " On Monday, supposedly, they're going to bring that, that stupid guy, but I won't be able to go man" (T: 20). Appellant asked, "Which stupid guy?" (T: 20). She answered, "Um, um, um, that . ! What's his name? (T: 20) and appellant responded, "Oh him? Yeah" (T: 20) . Appellant said, "That's why I need. . Damn, B! I [unintelligible] wanted to talk to Macho. 11 16 (T: 20). When Martinez told appellant that Macho could not go on Monday because of work, appellant 16Appellant had a friend with the nickname, (Castillo: A. 1453-54, 1483). 30 "Macho" said, "Damn, dude, and I needed that nigga to be there, B" (T: 21) . Appellant continued, "I need people to go up there, man, nigger B, nigger. So they can see this guy" (T: 20-21). On Sunday, June 21, 2009, appellant again called Martinez. Appellant told his sister: "Tell me you got good news," but Martinez asked, "About what?" (T: 24). Appellant said, "The two things that I told you to do for me" (T: 25). Martinez informed appellant that people did not have what he wanted (T: 25) . Appellant responded, "Damn, man, I needed that fucking number, man" (T: 25). After discussing some phone cards that Martinez had bought for him (T: 25-33), appellant said again, "Alright, yo, um, damn, I needed this guy's number, Chela [Martinez], man to speak with him II (T: 24). Appellant and Martinez discussed whether Rosa or other people could help them get the number (T: 34-5). Martinez continued, "That guy hasn't shown up around here in ages. Who knows where the hell he is hiding" (T: 35) . After discussing whether someone else might have the number, appellant commented, "Damn, man, nobody got that motherfucker's number man, I need to speak to that nigga, man" (T: 35). Martinez then telephoned Rosa so they could have a three- way conversation (T: 36). Appellant told Rosa,"I called you for something important, yo, I, r· need a number, you heard?" (T: 36). Appellant told her, that he needed it "right now" (T: 36). 31 Rosa told appellant that she did not have the number (T: 36) . Appellant commented, "Damn, man, I need that fucking number, man nobody has that damned number" (T: 37). Appellant asked Rosa, "Didn't you have Lenny's number before though" and she said, "I did have Lenny's number but not in this phone. . I can try and get it for you" (T: 37). Appellant gave up with Rosa: "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 for tomorrow, or in the future" (T: 37). After Rosa hung up, appellant told his sister, "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?" (T: 38). Later, appellant said, "Damn, Chela, yo, um I need you to get, get in contact with that nigga, man. Talk to that nigga, man" (T: 40). Martinez repeated that she had no way to get in touch with him (T: 40) . The Defense Case Sheny Perez, who had completed one year of college and was enrolled in school to become a medical assistant, had known appellant since 2001. They had met at a trade school. They were not friends, just acquaintances (Perez: A. 1638). On June 9, 2006, she went to J.J.'s to meet her friend Xiomete, who used to date one of appellant's friends (Perez: A. 1639). In the year 32 prior to June 9, 2006, Sheny Perez recalled being at J. J. 's three to five times (Perez: A. 1639, 1678). That night, she arrived around 1: 30 or 2: 00 A.M., and appellant invited her to sit with him and his friends (Perez: A. 1637-41, 1650-51, 1668-69, 1685-86). People were dancing and drinking, and the place was "packed" (Perez: A. 1642). Perez stayed until closing time. When the lights went up, she and appellant walked out together, along with lots of others (Perez: A. 1642-43, 1665-68, 1671, 1693, 1695). She told him that she was going home and he suggested they hail a taxi; she lived about 30 blocks away, downtown, so they crossed Broadway to go south. As they crossed, she saw a lot of people "yelling" "like a big stampede." She did not know what it was about. They took a cab to her apartment. They stood in front of her building and talked for five or ten minutes, and then she went inside alone (Perez: A. 1643-44, 1672-78, 1680-81). Because she soon got back together with a boyfriend, Perez never went back to J.J.'s (Perez: A. 1644). She did not hear about the shooting near the bar that night. She was first contacted by defense counsel around the end of November, 2006 (Perez: A. 1644-45). Perez had an open felony complaint for criminal mischief, as to which she asserted her Fifth Amendment rights (Perez: A. 1649-50, 1696). On cross, she was asked many questions about 33 whether she had gone to the authorities after learning that appellant had been charged with a shooting. She had not (Perez: A. 1652-62). Defense counsel had never suggested that she should. He asked her whether she would be willing to testify at trial, which she agreed to do (Perez: A. 1693-94). Perez initially testified that she had not visited appellant at Rikers but realized, after finishing her testimony, that this was wrong (Perez: A. 1696). Upon being re-called, Perez testified that she had visited appellant in early 2007, to find out how defense counsel had tracked her down; a female relative of appellant had left her messages, asking her to call defense counsel, and she did not want to be involved (Perez: A. 1775-77, 1779-82, 1785-86, 1799-1800). But, after speaking with appellant for about an hour, she decided to "do the right thing" and testify that she had been with him that night (Perez: A. 1789-95). Appellant's sister, Charlene Martinez, testified that Kenny Tello called her around 4:00 a.m. on June 9, 2006. She woke her boyfriend, and he and Kenny started making a lot of calls. She was worried and scared (Martinez: A. 1963-66, 2061-62). After learning that appellant was in Florida, Martinez asked Leomalis Torres to tell him, when she visited, that he should come back after she found a lawyer for him (Martinez: A. 1952-55, 1970-73, 2067, 2071-74). Martinez spoke with three or 34 four attorneys, starting on June 15, 2006, but she could not "get the money together" to retain counsel (Martinez: A. 1973- 76, 2061-64). In November 2006, Martinez called Detective Rivera to arrange appellant's surrender (Martinez: A. 2119-20). The defense attorney gave her Sheny Perez's name as a potential witness, back in November, 2006; he asked her to ask Perez to call him. Martinez left messages for Perez once or twice. She could not remember how she got the number (Martinez: A. 1983-85, 1989-90, 2056-58, 2116). During her testimony, Martinez read through the transcripts of the Rikers conversations (Martinez: A. 1994-2026; see also A. 2083-2104, 2106-2118). Martinez confirmed that she and her brother were talking about Lenny Carrasco during part of the conversation (Martinez: A. 1996, 2013 ["that stupid guy"] , 2086, 2089, 2096). They wanted to locate him so the defense attorney could speak to him (Martinez: A. 2090). Martinez also testified that later in the conversation, they were referring to a different Lenny, a friend of theirs, who knew everyone on the block, "to see if he knew anything about the other Lenny" (Martinez: A. 2021, 2024, 2090-91, 2101-02). The defense had an investigator, David Barrett, who testified that he was unable to interview individuals on the prosecution's witness list because he never had enough information to locate them (Barrett: A. 1837). On cross, the 35 prosecutor brought out that there are "reasons why personal information of witnesses isn't released" (Barrett: A. 1847) . And the investigator acknowledged the prosecutor's suggestion that witnesses can be "threatened," "harassed" and "can even be killed" (Barrett: 1847) . 17 Rebuttal Case Recalled as a rebuttal witness, Blanco described Perez as a Thursday-night "regular" (Blanco: A. 1873). She would come in with a female friend, and sometimes sit with appellant's "crowd." She would talk to people, and dance, and talk to other people - she was friendly (Blanco: A. 1873-78, 1887-90, 1917- 20) . Blanco confirmed that Perez was there June 9, 2006 (Blanco: A. 1880, 1886-87). Blanco had not seen Perez since around the date of the shooting (Blanco: A. 1887). Defense Motion for a Mistrial Before summations, counsel moved for a mistrial on two grounds. First, counsel invoked his "continuing objection that your Honor has indicated I can put on the record with respect to 17The defense also called Doctor Mark Taff, the Chief Rockland County Medical Examiner to discuss the ef feet of alcohol on memory (Taff: A. 1727). However, he could not give a scientific opinion about the effect of drinking that night on the observations of Carrasco or Catedral (Taff: A. 1743). The doctor also testified that the decedent had a blood alcohol level of .06 at the time of the autopsy (Taff: A. 1731). 36 the testimony of Detective Rivera, all the hearsay, Judge, all of the - all of the testimony about innuendos and rumors in the neighborhood and who he had reliable sources of information, why he didn't go to somebody's house, why the defendant became the subject of the investigation. [The prosecutor] as made a distinct point to point out when that happened, to illustrate to the jury that it was long before Lenny Carrasco made a photo I.D. of the defendant, clearly indicating, Judge, that some source, some unknown source had named Mr. DeJesus as the shooter" (A. 2130-31) . Counsel further protested: That's a confrontation clause violation Judge. This is basically unsworn testimony from these witnesses and it violates my client's Fifth, Sixth, due process rights confrontation, Crawford v. Washington, Judge, all of that is, in essence, testimonial, it's hearsay, it's unconfronted because it's unsworn, a whole slue [sic] of reasons why that should not have been allowed and why it's highly prejudicial (A. 2130-31; see also A. 2132-33). The second ground was an alleged theme of "witness intimidation" that was first telegraphed during the prosecutor's opening when she stated, "unfortunately, you won't be hearing from all of the witnesses that were out on the street that night that watched the defendant kill [the decedent] . For various reasons, they won't take the witness stand" (A. 2131-32; see opening: A. 161). The prosecutor thus became an unsworn 37 witness, in violation of appellant's right of confrontation and due process, and Crawford (A. 2133). According to counsel, the prosecutor " . create[d] the impression that everybody in the neighborhood knows he did it, even though only one witness came forward" (A. 2133; see also A. 2137-38). The prosecutor maintained that she had done nothing wrong. The court had already ruled in her favor on the first point. As to the second, "there were plenty of people out on the street" that night, and witnesses had testified that "people in this community do not want to come forward." She was allowed to preview this evidence and to elicit it (A. 2134-37) The court reserved decision (A. 2137-38) . 18 Prosecutor's Summation During her closing argument, the prosecutor highlighted the evidence counsel had complained about during the mistrial motion. She underscored that Detective Caballero had "told" the jurors that "the only purpose" for conducting a photo array with Carrasco was "to confirm which is that the defendant . what the police already knew ., whose name and address they had as . . of four o'clock that afternoon, . had killed [the decedent]" (A. 2241-42). 18 The motion was summarily denied at sentencing (A. 2335- 36) . 38 The prosecutor also argued that appellant's alleged efforts to find and intimidate eyewitnesses was not limited to Carrasco who had "good reason to be afraid" (A. 2241), who was "hiding" before trial "because he was afraid for his life" (A. 2267-68). She asked jurors to "[i]magine the arrogance of the defendant to think he could get away with it, because he didn't commit the crime in some dark alley but instead, right in his own neighborhood in front of plenty of people who knew him and could identify him" (A. 2222-23). The prosecutor stressed that appellant and his friends were trying to keep witnesses from testifying: "And he has tried to contact, to hunt down witnesses like Lenny Carrasco [objection overruled]" to keep them from testifying against him (A. 2223); appellant is "trying to track down witnesses to convince them not to come in here, not to give you the truth" (A. 2279); "he got people, friends of his to try to look for witnesses so they wouldn't provide incriminating testimony against him" (A. 2282). Deliberations and Verdict Over the course of deliberations, which continued into the following day, the jurors made several requests to review evidence before finding appellant guilty of second-degree murder (A. 2311-30). 39 The Sentence On September 15, 2009, the court sentenced appellant to an indeterminate term of 20 years to life imprisonment (A. 2346). Appellate Division Proceedings On April 9, 2013, the Appellate Division, First Department affirmed the judgment of conviction. In an opinion, the Appellate Division held: Evidence concerning the course of the police investigation of this homicide did not violate defendant's right of confrontation. Initially, we note that the prosecutor did not actually introduce any testimonial statements by nontestifying declarants. Instead, defendant complains that the jury could have misused certain police testimony as evidence that nontestifying persons incriminated him. 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. This evidence was not offered for its truth (see Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078 85 L.Ed.2d 425, 85 L.Ed.2d 425 [1985]), but 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-examination19 and preventing jury speculation (see People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002]; People v. Rivera, 96 19Respondent argued that the defense was trying to convince the jurors that Carrasco was intentionally framing appellant so the prosecutor needed to establish that it was not Carrasco who initially led the police to suspect appellant (Respondent's Brief, Appellate Division, at page 54). 40 (A. 3-4). N.Y.2d 749, 725 N.Y.S.2d 264, 748 N.E.2d 1060 [2001]; see also United States v. Reyes, 18 F.3d 65, 70-71 [1994]). The probative value of this evidence for its nonhearsay purposes outweighed any prejudicial effect. The Appellate Division reached the merits of this claim though respondent argued that the issue was "unpreserved. 1120 The Appellate Division did hold, however, that appellant failed to preserve his claim that "the court should have instructed the jury regarding the limited use of the evidence that was not received for its truth" (A. 4). And, the Appellate Division declined to reach the limiting instruction issue in the interest of justice (A. 4) 21 Alternately, the Appellate Division held that "the absence of an instruction was harmless under all the circumstances of the case, including the limited prejudicial effect of the challenged evidence" (A. 5) . 20Respondent's Brief, Appellate Division, at page 48. 21The Court also declined to consider whether trial counsel rendered ineffective assistance by not requesting a limiting instruction because this claim was raised for the first time in the Reply brief to the Appellate Division (A ) . Alternately, the Appellate Division held tha~ "regardless of whether counsel should have requested the instruction, defendant has not established that the absence of the instruction resulted in prejudice under the state or federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-14 [1998]; see also Strickland v. Washington, 466 U.S. 668 . [1984]) (A. 5). 41 As for appellant's additional claim that the prosecutor unfairly insinuated that defendant intimidated witnesses or potential witnesses," 22 the Appellate Di vision held that the defendant's mistrial motion was insufficient to preserve that claim. Alternately, the Appellate Division held that the challenged comments did not deprive appellant of a fair trial: "The evidence challenged by defendant was relevant to issues raised at trial. Furthermore, defendant's recorded conversations permitted a reasonable inference that he was involved in witness intimidation" (A. 5) . 23 ARGUMENT POINT EVIDENCE THAT THE POLICE APPELLANT AS A "SPECIFIC BEFORE HE WAS IDENTIFIED HAD IDENTIFIED SUSPECT" HOURS BY PROSECUTION WITNESS CARRASCO WAS INADMISSIBLE, EVEN AS "BACKGROUND" EVIDENCE, BECAUSE IT CLEARLY SIGNALED THAT A NON-TESTIFYING DECLARANT HAD IMPLICATED APPELLANT, IN VIOLATION OF HIS RIGHT TO CONFRONT THIS ACCUSER, AND WAS PARTICULARLY PREJUDICIAL IN THIS ONE-WITNESS IDENTIFICATION CASE. U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART. I, § 6. In Crawford v. Washington, the Supreme Court firmly held - overruling Ohio v. Roberts, 448 U.S. 56 (1980) that the Framers' understanding of the United States Constitution 22Appellant does not raise that claim in this Court. 23 The Appellate Di vision also rejected appellant's pro se claims as being either "without merit" or unpreserved (A. 5-6) . 42 requires that "[t]estimonial statements of witnesses absent from trial [be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross- examine." Crawford v. Washington, 541 U.S. 36, 59 (2004). The Supreme Court characterized a defendant's Confrontation Clause right as a "bedrock procedural guarantee." 541 U.S. at 42. "In the American legal system, the role of cross-examination has paramount importance to a criminal trial's core truth-seeking function." Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011), citing California v. Green, 399 U.S. 149, 158 (1970) (calling cross-examination "the greatest legal engine ever invented for the discovery of truth.") For statements to the police to be non-testimonial they must be made "under circumstances objectively indicating that the primary purpose of the interrogation is to . . meet an ongoing emergency and [they] are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." People v. Duhs, 16 N.Y.3d 405, 409 (2011), quoting Michigan v. Bryant, 562 U.S. 1143, 179 (2011). 131 S. Ct. When an out-of-court statement is testimonial, the prosecution cannot avoid the confrontation bar by eliciting the 43 prejudicial evidence indirectly, by inference. "[To] implicate the defendant's confrontation right, [a] statement need not have accused the defendant explicitly, but may contain an accusation that is only implicit." Mendez v. Graham, 2012 WL 6594456, *15 (E.D.N.Y. 2012), quoting Ryan v. Miller, 303 F.3d 231, 248 (2d Cir. 2002) See also Ocampo v. Vail, 649 F.3d 1098, 1109 (9th Cir. 2011) (". out-of-court statements admitted at trial are 'statements' for the purpose of the Confrontation Clause both pre- and post-Crawford if, fairly read, they convey to the jury the substance of an out-of-court, testimonial statement of a witness who does not testify at trial"); Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) ("The fact that the content of Rivera's statement to Fuhr was not revealed in detail was immaterial, for the plain implication that the prosecutor sought to elicit, and emphasized in his summation, was that the conversation with Rivera led the police to focus on Mason.") Here, the prosecutor originally asked to introduce the decedent's family's report of an anonymous call naming appellant as the shooter and providing his address. This double hearsay was testimonial, under the Crawford standard, because, at this stage of the police investigation, twelve hours after the shooting, the primary purpose of the family's communication to the police was to help establish appellant's identity as the shooter. As such, admission of this hearsay would have violated 44 appellant's constitutional right to confront his anonymous accuser. The trial court precluded an explicit reference to the anonymous informant's tip. No less improper was the repeated testimony by both Rivera and Caballero that at 4:00 P.M., on June 9th, before either of them spoke to Carrasco, they began "specifically looking for [appellant] , " as a suspect. This pointed testimony unequivocally conveyed to the jury that the police had an unnamed source without giving appellant an opportunity to confront the reliability of this out-of-court information. As defense counsel argued in his motion to strike the testimony, this evidence violated the Confrontation Clause because "It clearly stands for the proposition of somebody told [the detective] to look for Joshue DeJesus because he was the shooter before someone spoke to Lenny Carrasco" (A. 1089). Indeed, this contested evidence was the basis for the prosecutor's argument on summation that "the only purpose" for conducting the photo array with Carrasco was "to confirm what the police already knew which is that the defendant . whose name and address they had as . . of four o'clock that afternoon, had killed [the decedent]" (A. 2241-42). Thus, in this case, the prosecutor used the out-of-court hearsay, for its truth, to argue that appellant was the shooter. This is 45 particularly true since there was no limiting instruction provided to the jurors. As defense counsel protested, the prosecutor's actual use of the evidence far exceeded the trial court's initial ruling that she could ask, "based on your investigation on that day, did you have a suspect in mind" (A. 88). Rather, the prosecutor emphasized that the police had a specific, reliable source of incriminating information, in addition to what they learned from Lenny Carrasco. This evidence permitted the prosecutor to imply on summation that there were additional eyewitnesses who were not cooperating with the prosecution. As the prosecutor stressed, appellant committed the crime "in front of plenty of people who knew him and could identify him" (A. 2222) but the defendant's family and friends were "trying to track down witnesses to convince them not to come in here, not to give you the truth" (A. 2279). Clearly, the jurors were meant to conclude that one of those absent neighbors provided the information that led the police to conclude, well before Carrasco made his identification, that appellant was the crime's perpetrator. Nor was this evidence admissible to provide the background of the police investigation, as the prosecutor argued when she originally proffered the anonymous tip evidence. In Crawford, the Supreme Court briefly stated, in dictum, that the Confrontation Clause "does not bar the use of testimonial 46 statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59 n. 9, citing Tennessee v. Street, 471 U.S. 409, 414 (1985). Review of Tennessee v. Street shows the case hardly stands for the proposition that the Crawford Court recognized that there is no confrontation implication for so-called background evidence. The evidence challenged in Street arose in a different procedural context than the usual background evidence case. The defendant alleged that police officers had coerced his confession and fed him the statement's details of the crime from the co-defendant's confession. "Street is best read to stand for the proposition that when a defendant refers to otherwise inadmissible out-of-court statements, he waives his Confrontation Clause rights and 'opens the door' for the state to introduce the out-of-court statements for rebuttal purposes. " 24 Stephen Aslett, Crawford's Curious Dictum: Why Testimonial Nonhearsay Implicates the Confrontation Clause, 82 24This Court's decision in People v. Reynoso, 2 N.Y.3d 820 (2004) is not to the contrary. First, it seems to be on fours with Tennessee v. Street because the defense in Reynoso was that the confession was "the detective's account of the robbery, not the defendant's." See People v. Reynoso, 309 A. D. 3d 769, 770 (2d Dept. 2003). In any event, this Court affirmed on review of submissions pursuant to section 500.4 of the rules of the Court of Appeals, citing Crawford, even though appellant's submission in this Court did not raise the Crawford claim, see People v. Reynoso, 2002 WL 34511643 (N. Y.) (Appellate Brief), and the Appellate Division briefs that were submitted to this Court were written before Crawford was decided. 47 Tul. L. Rev. 297, 325 (2007). Citing Street, this Court has held that, "The admission of testimony that violated the Confrontation Clause may be proper if the defendant opened the door to its admission." People v. Reid, 19 N.Y.3d 382 (2012). Thus, "[c] ontrary to Crawford's curious dictum, Street should not be read as a case that broadly holds that all nonhearsay is exempt from the Confrontation Clause." Aslett, 82 Tul. L. Rev., at 325. This Court should examine closely whether the Supreme Court in this footnote meant to sanction the many widespread "not for the truth" hearsay exceptions that flourished in the years before Crawford. Taking the core Crawford principle to heart, commonly-invoked exceptions such as "background evidence," in practice, too-often undermine defendants' fundamental right of confrontation. In Mendez v. Graham, 2012 WL 6594456, at *17 (E.D.N.Y. Dec. 18, 2012), the District Court reported that "since Crawford, several Courts of Appeals and courts in [the Eastern District of New York] have had opportunity to examine the background exception in habeas cases." See also Jeffrey L. Fisher, The Truth about the 'Not for Truth' Exception to Crawford, 32-FEB Champion 18 (Jan/Feb 2008) (Mr. Fisher is a Stanford Law School associate professor who was counsel for petitioners in Crawford v. Washington). 48 For example, in Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011), cited in Mendez v. Graham, the Circuit Court noted that "[s]uch statements offered to show 'background' or 'the course of the investigation' can easily violate a core constitutional right, are easily misused, and are usually no more than minimally relevant.'" at *17. Similarly, in Moore v. Ercole, 2012 WL 407084, at *8 (E.D.N.Y. 2012), also cited in Mendez v. Graham, the Court "recognize[d] that in some cases the misuse of such testimony could transgress the Confrontation Clause." Such evidence, though not offered for its truth, can veer into confrontation problems. No confrontation error, however, occurred in Moore v. Ercole, because "[t]he prosecutor never emphasized or relied on this testimony for the impermissible inference that individuals had indeed implicated [the defendant] " These cases make clear that Crawford demands a more searching inquiry into potential confrontation implications than previously accepted by courts. In Mendez, the District Court found no Confrontation Clause error. The court's constitutional analysis, however, is instructive to this case. While the purported non-hearsay reason, in Mendez, for offering the evidence, i.e., "why the detectives focused on Mendez and Reid was not especially helpful in clarifying non-controversial issues in the case," it also was not particularly prejudicial. 49 In the context of habeas corpus review, the District Court reasoned: "Given the weak evidence of prejudice in this case, this court cannot conclude that the state court's determination that petitioner's Confrontation Clause claim was without merit was 'contrary to, or involved an unreasonable application of, clearly established federal law.' 28 U.S.C. § 2254(d) (1) ." The same cannot be said in the instant case. prosecutor relied heavily identification though on the proposition that vigorously challenged Here, the Carrasco's on cross examination - was mere "confirmation" of what the police already knew, based on unnamed sources of information. In these circumstances, the so-called background evidence was enormously prejudicial and violated appellant's confrontation rights. While the Appellate Division here reasoned that appellant had opened the door to the challenged testimony, the record does not support that conclusion. In stark contrast to Street, appellant was not arguing that the police had framed him - permitting the prosecutor to counter that the police had clean hands. The defense did challenge both the veracity and the reliability of Lenny Carrasco as a witness - focusing on his intoxication and his many prior inconsistent statements. Nonetheless, the "course of investigation" rationale should not allow the admission of testimonial hearsay "whenever a defendant attempts to challenge the strength of the evidence or the 50 veracity of the prosecution's witnesses against him." Basinger, 635 F.3d at 1044. This Court's recent decision in People v. Morris, 21 N.Y.3d 588 (2013) is inapposite. In Morris, the Court held that uncharged crimes evidence may be relevant to complete the narrative of the events charged in the indictment and to prevent the jury from speculating that police actions were wrongful. While, in Morris, the evidence of uncharged crimes came in through a recorded 911 call reporting that a man had "just placed a gun in his face," see Respondent's Brief, 2012 WL 9591812 (N.Y.), at 1, this Court did not discuss whether the 911 call presented a Confrontation Clause problem. Review of appellant's brief to this Court reveals that appellant did not challenge the evidence on confrontation grounds. Indeed, it is unlikely that there was a Confrontation Clause problem because the 911 call's report of a just-completed armed robbery suggested an on-going emergency. Duhs, 16 N.Y.3d at 409. Thus, Morris does not hold that no confrontation error exists when a 911 call comes in to complete the narrative of the police conduct. Nor was the admission of this testimony harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967) (Constitutional error must be harmless beyond a reasonable doubt.) The prosecution case was weak. At the time of the 51 shooting, Lenny Carrasco had been smoking marijuana and was intoxicated. He also had a limited opportunity to view the hooded shooter whose face was not visible before the shooting. Instead, the shooter's face, to the extent that it was not covered by a hood, was only visible when the man turned around and briefly walked past Carrasco. In contrast, Catedral had the same limited opportunity to see the shooter and was not able to identify appellant at trial. Most significantly, Carrasco made a series of inconsistent statements regarding his observations. He told the police that he had not seen the shooting and could make no identification. Even when he later stated that he could make an identification, he continued to claim that he had been standing in front of the Crown Chicken restaurant - a vantage point that did not permit him to observe the shooting. Carrasco testified that the decedent was arguing with another man, whom Carrasco did not recognize, when appellant approached. However, Carrasco testified in the grand jury that the decedent was arguing with someone named "Got ti." Asked to account for this discrepancy, Carrasco admitted that he was "probably" lying or, maybe, he just did not "remember that well." Beyond that, Carrasco twice admitted telling the police that it was the shooter who was arguing with the decedent. 52 Though he testified that he had seen appellant several times before the shooting and knew his nickname, Sway, Carrasco initially provided the police only with a description and told the grand jury that he did not know any nickname for appellant - other than Joshue or Jose. The balance of the prosecution case was no stronger. Appellant's alleged flight to Florida, while "admissible as circumstantial evidence of consciousness of guilt," was a probatively weak species of evidence (See, People v. Moses, 63 N.Y.2d 299, 308 (1984)). Also of weak probative value was evidence that appellant was trying to locate Carrasco with the implication urged by the prosecution that appellant sought to prevent him from testifying. See People v. Reyes, 162 A.D.2d 357 (1st Dept . 19 9 0) . Carrasco's questionable reliability and the weak evidence of consciousness of guilt, did not convincingly counter the exculpatory inference to be drawn from the fact that all patrons who entered the bar that night were patted down for weapons. Appellant spent the entire evening in the bar. It seemed unlikely, therefore, that appellant was armed when he rushed out of the bar, supposedly angry at having ice thrown at him - particularly since the shooting happened very soon after everyone left. Blanco testified that only 10-15 minutes elapsed 53 between when people left and when he was told, in the aftermath of the shooting, to close the bar early. In the face of this equivocal evidence of guilt, evidence that appellant was a "specific suspect" before Lenny Carrasco finally inculpated him and, in the words of the prosecutor, "confirm [ed]" what "the police already knew" (A. 2241-42), violated appellant's constitutional right to confront the reliability of this damning information that the police found so credible. Appellant's claim is fully preserved. Defense counsel argued during the prosecution's direct examination of Rivera, that the evidence raised a "implicit implication" that the detective had a "hearsay source" which was "completely violative of the right to confront" (A. 1088-89) . Defense counsel moved to strike the offending evidence. Later, defense counsel moved for a mistrial again invoking the Confrontation Clause and, specifically, Crawford v. Washington (A. 2130-31). 54 June 30, 2014 CONCLUSION FOR THE REASONS SET FORTH ABOVE, THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant 55