The People, Respondent,v.Anthony V. Pavone, Appellant.BriefN.Y.November 18, 2015 To be argued by: Nicholas J. Evanovich, III (10 minutes) APL 2014-00251 Clinton County Indictment No. 32-I-2010 State of New York Court of Appeals THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, – against – ANTHONY V. PAVONE, Defendant-Appellant. BRIEF FOR RESPONDENT NICHOLAS J. EVANOVICH, III ASSISTANT DISTRICT ATTORNEY, CLINTON COUNTY Attorney for Respondent 137 Margaret Street - Suite 201 Plattsburgh, NY 12901 (518) 565-4770 Date of Completion: February 26, 2015 RULE 500.13(a) RELATED LITIGATION STATEMENT As of February 26, 2015, there are no criminal prosecutions against Anthony V. Pavone pending in Clinton County; there were no codefendants in the underlying criminal matter (Clinton County Indictment No. 32-I-2010), and the Clinton County District Attorney’s Office is not aware of any other litigation related to the matter before this Court. TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................................................ iii PRELIMINARY STATEMENT ....................................................................... 1 STATEMENT OF THE CASE Introduction .................................................................................................... 2 The Evidence at Trial Concerning the Lead-Up to the Fatal Shootings, Defendant’s Flight Thereafter, and His Apprehension .......................................................... 4 Patty Howard and Defendant ......................................................................... 4 January 29, 2010 Two Days Before the Killings ................................................................. 5 January 30, 2010 – Patty’s Birthday The Day Before the Killings .................................................................... 6 January 31, 2010 Early Morning Hours’ Preamble to the Murders ..................................... 9 The Murders ........................................................................................... 11 The Aftermath .............................................................................................. 15 Extreme Emotional Disturbance - The Experts’ Trial Testimony .......................................................................... 18 Trial Conclusion and Sentence ........................................................................ 24 Defendant’s Appeal to the Appellate Division ................................................ 28 POINT I. The Majority of Defendant’s Complaints are Unpreserved. Defendant’s Only Objection Was Properly Decided by the Trial Court. Ultimately any Error is Harmless by Overwhelming Guilt ............................................................... 30 Introductory Overview........................................................................... 30 A. The Complaints Raised for the first time on Defendant’s Appeal are not “Mode of Proceedings” errors For Which Preservation is not Requried ............................................... 31 B. The Only Preserved Issue, the General Objection Made During Cross Examination of defendant, was Properly Overruled and Therefore Reversal is Unwarranted ....................................................................................... 37 C. Any Error is Harmless in Light of Such Overwhelming Evidence of Guilt .......................................................... 40 POINT II. The Defendant Received the Meaningful Assistance of Counsel .................................................................................. 55 Overview ................................................................................................ 55 Standard of Review ................................................................................ 56 The Record Shows the Testimony from the Investigators Provided Fruitful Ground for the Defense, Which Presents a Strategic Decision not to Object. Even in the Absence of a Strategic Decision, Reversal is Unwarranted ........................................................................ 57 The Record Does Not Establish any Ineffectiveness as to how Defense Counsel Handled the Expert Witness .......................... 60 CONCLUSION ................................................................................................ 67 TABLE OF AUTHORITIES COURT OF APPEALS CASES: Cancemi v. People, 18 NY 128 (1858) .................................................................................36 People v. Alvarez, 20 NY3d 75 (2012) .................................................................................34 People v. Autry, 75 NY2d 836 (1990) ..................................................................................36 People v. Baker, 14 NY3d 266 (2010) ..................................................................................60 People v. Baldi, 54 NY2d 137 (1981).............................................................................56, 65 People v. Basora, 75 NY2d 992 (1990) ................................................................................40 People v. Becoats, 17 NY3d 643 (2011) ...............................................................................35 People v. Benevento, 91 NY2d 708 (1998) ..........................................................................56 People v. Biggs, 1 NY3d 225 (2003) ..............................................................................35, 36 People v. Boston, 75 NY2d 585 (1990) ................................................................................35 People v. Bowen, 50 NY2d 915 (1980) ................................................................................39 People v. Casassa, 49 NY2d 668 (1980) .........................................................................43, 46 People v. Cass, 18 NY3d 553 (2012) ..............................................................................42, 59 People v. Conyers, 49 NY2d 174 (1980) ..............................................................................39 People v. Creech, 60 NY2d 895 (1983) ................................................................................36 People v. Crimmins, 36 NY2d 230 (1975) ...........................................................................40 People v. Davis, 61 NY2d 202 (1984) ............................................................................39, 40 People v. De Renzzio, 19 NY2d 45 (1966) ..........................................................................33 People v. Diaz, 15 NY3d 40 (2010) ................................................................................41, 42 People v. DiRaffaele, 55 NY2d 234 (1982) ..........................................................................34 People v. Dodt, 61 NY2d 408 (1984) ...................................................................................36 People v. Douglas, 4 NY3d 777 (2005) ................................................................................40 People v. Ellis, 81 NY2d 854 (1993) ....................................................................................56 People v. Evans, 16 NY3d 571 (2011) .................................................................................64 People v. Firola, 11 NY2d 157 (1962) ..................................................................................33 People v. Flores, 84 NY2d 184 (1994) ...........................................................................64, 65 People v. Gajadhar, 9 NY3d 438 (2007)...............................................................................36 People v. Gonzalez, 22 NY3d 539 (2014) ............................................................................42 People v. Gray, 86 NY2d 100 (1965) ...................................................................................36 People v. Guay, 18 NY3d 16 (2011) ....................................................................................56 People v. Hamlin, 71 NY2d 750 (1988) .........................................................................34, 40 People v. Harris, 95 NY2d 316 (2000) .................................................................................41 People v. Hawkins, 11 NY3d 484 (2008) .............................................................................36 People v. Henry, 95 NY2d 563 (2000) .................................................................................65 People v. Hobot, 84 NY2d 1021 (1995) .........................................................................56, 64 People v. Howard, 12 NY2d 65 (1962) ................................................................................33 People v. Kelly, 5 NY3d 116 (2005) ....................................................................................35 People v. Knowles, 88 NY2d 763 (1996) .............................................................................31 People v. Maher, 89 NY2d 456 (1997) .................................................................................41 People v. Martin, 50 NY2d 1031(1980) ...............................................................................34 People v. McKenzie, 19 NY3d 463 (2012) .....................................................................42, 43 People v. McLean, 15 NY3d 117 (2010) ..............................................................................33 People v. McLucas, 15 NY2d 167 (1965) ............................................................................33 People v. Michael, 48 NY2d 1 (1979) ..................................................................................35 People v. Moye, 66 NY2d 887 (1985) ..................................................................................45 People v. Naryan, 54 NY2d 106 (1981) ...............................................................................34 People v. O’Rama, 78 NY2d 270 (1991) ..............................................................................35 People v. Patterson, 53 NY2d 829 (1981) ............................................................................34 People v. Pinchback, 82 NY2d 857 (1993) ...........................................................................58 People v. Porco, 17 NY3d 877 (2011) ..................................................................................40 People v. Reid, 19 NY3d 382 (2012) ....................................................................................40 People v. Rivera, 71 NY2d 705 (1988).................................................................................56 People v. Rivera, 73 NY2d 941 (1989).................................................................................34 People v. Robinson, 36 NY2d 224 (1975) ............................................................................31 People v. Roche, 98 NY2d 70 (2002) .............................................................................42, 48 People v. Rothschild, 35 NY2d 355 (1974) ..........................................................................39 People v. Satterfield, 66 NY2d 796 (1985) ...........................................................................56 People v. Savage, 50 NY2d 673 (1980) ................................................................................39 People v. Stephens, 84 NY2d 990 (1994) .............................................................................34 People v. Taylor, 1 NY3d 174 (2003).............................................................................60, 65 People v. Toliver, 89 NY2d 843 (1996) ...............................................................................35 People v. Turner, 5 NY3d 476 (2005) ............................................................................59, 64 People v. Tonge, 93 NY2d 838 (1999) .................................................................................59 People v. Umali, 10 NY3d 417 (2008) .................................................................................34 People v. Voliton, 84 NY2d 192 (1994) ...............................................................................34 People v. Walker, 64 NY2d 741 (1984) .........................................................................42, 46 People v. White, 79 NY2d 900 (1992) ...........................................................................42, 45 People v. Williams, 8 NY3d 854 (2007)...............................................................................60 People v. Wilson, 14 NY3d 895 (2010) ................................................................................35 People v. Zanghi, 79 NY2d 815 (1991) ................................................................................35 APPELLATE DIVISION CASES: People v. Andrews, 237 AD2d 110 (1st Dep't 1997) ............................................................39 People v. Checo, 194 AD2d 410 (1st Dep’t. 1993) ........................................................44, 45 People v. Croom, 13 AD3d 253 (1st Dep’t. 2004) ...............................................................46 People v. Echavarria, 53 AD3d 859 (3d Dep’t. 2008) ..........................................................58 People v. Feris, 144 AD2d 691 (2d Dep’t. 1988) .................................................................44 People v. Liebman, 179 AD2d 245 (1st Dep’t. 1992) ....................................................46, 47 People v. Mercer, 112 AD2d 790 (4th Dep't 1985) ..............................................................39 People v. Pavone, 117 AD3d 1329 (3d Dep't 2014) .............................................1, 28, 29, 40 People v. Roldan, 222 AD2d 132 (1st Dep’t. 1996) .......................................................47, 48 FEDERAL CASES: Linnen v. Poole, 766 F.Supp.2d 427 (WDNY 2011) ...........................................................42 Strickland v. Washington, 466 U.S. 668 (1984) .............................................................56, 57 Yarborough v. Gentry, 540 U.S. 1 (2003) ............................................................................65 CONSTITUTIONAL SOURCES: New York Const. Art. VI ......................................................................................................31 New York Const. Art. I, §6 ...................................................................................................56 U.S. Const. Amend. VI .........................................................................................................56 STATUTES AND RULES: PL §125.27[1][a][viii] and [b] ....................................................................................1, 17, 41 PL §265.03[1][b].....................................................................................................................1 CPL §450.70 ...................................................................................................................31, 32 CPL §450.80 .........................................................................................................................31 CPL §470.35 ...................................................................................................................31, 32 Rule 500.13(a).......................................................................................................................32 Rule 500.20(a)(4) ..................................................................................................................32 Rule 500.20(b)(4) ..................................................................................................................32 PRELIMINARY STATEMENT Defendant Anthony Pavone appeals from the Appellate Division, Third Department’s order of May 29, 2014, which affirmed (3-1) the judgment of the Clinton County Court (McGill, J.) rendered on August 17, 2011, under Clinton County Indictment number 32-I-2010. People v. Pavone, 117 AD3d 1329 (3d Dep’t. 2014). On that day, defendant was sentenced to two concurrent terms of life imprisonment without parole upon his convictions, following a trial by jury, of two counts of Murder in the First Degree (PL §125.27[1][a][viii] and [b]) and one count of Criminal Possession of a Weapon in the Second Degree (PL §265.03[1][b]). (A 2)1. Defendant’s application for leave to appeal to this Court was granted by an order dated September 24, 2014. 24 NY3d 963 (2014) (Pigott, J). Defendant is presently incarcerated at the Elmira Correctional Facility. 1 Numbers proceeded by “A” refer to Appellant’s Appendix. Those proceeded by “RA” refer to Respondent’s Appendix submitted with this brief. STATEMENT OF THE CASE Introduction In the early morning hours of January 31, 2010, defendant, Anthony Pavone, killed his former paramour, Patricia (Patty) Howard, and the man she had just started dating, Timothy (Tim) Carter, at Mr. Carter's apartment in Dannemora, New York. Defendant escaped immediate apprehension. Four nights later, Broome County authorities determined that defendant was holed up in a seedy motel outside Binghamton, New York, roughly 300 miles from the murder scene. His conversations with a trained hostage negotiator eventually culminated in his surrender, without incident, in the pre-dawn hours of February 5, 2010. By Indictment 32-I-2010 (filed on April 1, 2010), the Clinton County Grand Jury charged defendant with 2 counts of Murder in the First Degree, 2 counts of Murder in the Second Degree, and 1 count of Criminal Possession of a Weapon in the Second Degree. (A 3-7). The trial, initially scheduled to begin in December 2010, was postponed indefinitely after defendant retained, in late November, a new attorney, John Carney, Esq., who was given the opportunity to file his own pretrial motions. (A 8-9). Following a suppression hearing held on April 4, 2011, the Clinton County Court ruled, by order dated April 22, 2011, that the following statements by defendant were admissible: Statements to Detective Sergeant Ellis during the negotiation; Statements to Investigator Hyman that were spontaneous regarding the firearm, his surrender, and the safety of the officers involved; Statements to Investigators Levine, Dufour, and Weightman made spontaneously during transport back to Plattsburgh; Statements made to Investigator Dyer regarding suicidal thoughts about jumping out of an airplane. ‐ RA 102-1092 The court agreed, however, with defense counsel that the jury should not learn of his client's attempt to plead guilty at arraignment on the indictment. Id. While jury selection occurred between May 9 through 12, 2011, trial was then adjourned until the May 23, the date the first witness was called. Defendant, who testified at trial, did not claim that he had not killed Ms. Howard and Mr. Carter; rather, he sought to convince the jury that he acted under extreme emotional disturbance. Jonathan Weker, M.D., a Vermont psychiatrist, testified for defendant in support of this affirmative defense; the People's expert witness was Stuart Kirschner, Ph.D., a forensic psychologist and associate professor at John Jay College in New York City. The trial ended on June 8, 2011, with the jury returning a verdict convicting defendant of the top counts of first degree murder and the weapons possession charge. 2 Defendant has never challenged on appeal the court’s disposition of the suppression motion. The Evidence at Trial Concerning the Lead-Up to the Fatal Shootings, Defendant's Flight Thereafter, and His Apprehension Patty Howard and Defendant Defendant, a former Marine Corps sergeant, had been a NYS Corrections Officer for 26 years when an inmate assaulted him in 2006. (A 268-269). Although he had suffered from some fear and paranoia before then, defendant never returned to work for DOCCS after that violent incident. (A 270, 325-326). After this incident defendant was seen by at least three psychiatrists. (A 413). One of these psychiatrists, Dr. Kevin Gitlin, M.D., treated defendant from shortly after the assault right up until Friday, January 29, 2010, two days before the homicides.3 (A 271-272). Ms. Howard was once married to the brother of defendant's wife, Sharon. Defendant and Patty left their respective spouses and made their relationship public some 9 years before the murders and while defendant was still a Corrections Officer. (A 351). The two, however, never lived together, and defendant apparently remained on good terms with his ex-wife Sharon, for both she and their daughter testified for the defense and, inter alia, described his relationship with Patty as tumultuous and very “up and down”. (RA 45-47). Patty’s daughter testified that the relationship was over in her mother’s eyes by the beginning weeks of January 2010. (A 31-32). 3 While originally pursued by defendant’s first attorney, Bill Meconi, Esq., Dr. Kevin Gitlin was not called to testify during the trial. (RA 90). January 29, 2010 Two Days Before the Killings On Friday, January 29, 2010, defendant testified at trial, he was in “a good mood” and didn’t spend much time with his psychiatrist, who he was seeing every week. (A 328-329). Sometime thereafter he went to a rental supply company; the the rental supply employee described him as normal and appropriately dressed. (A 456-458). At 1:32 PM, defendant called Patty Howard for the first time that day and left a message. “Are you with [Tim Carter]? Are you with him right now?” He demanded that Patty call him back saying “Are you really going to call me back? Call me back immediately.” (CD; A 702).4 Just two minutes later defendant pleaded with and warned Patty. “Come on give me a call…You gotta call me back. Patty, you gotta call me”. (CD).5 Two hours later defendant called again while working outside on his rental property. Defendant acknowledged Patty moved on. “If you want to talk to me…I 4 Audio recordings were received into evidence at trial as People’s 6/6A (911 call from Patty Howard), People’s 152 (defendant’s messages left on Patty Howard’s cell phone), and People’s 154 (defendant’s messages left on Tim Carter’s answering machine). These recordings were played for the jury and utilized by Dr. Kirschner in making his ultimate opinion. With the consent of appellate counsel, the People are providing CDs of these recordings with their Brief to afford this Court the same opportunity. Transcripts of these recordings were received into evidence as People’s 212 and 213, and are reproduced in their entirety at A 699-708. 5 The following facts are in order by date and time as stored in each of the clearly identified files on the CD, which includes People’s 6/6A, 152, and 154. don’t know why you would but if you happen to want to talk to me, come over here”. Defendant went on to say he knew Patty and Tim were going out that night, which is why “[Patty] was in a big hurry.” (CD). Defendant left a fourth message at 6:23 PM, asking for a “simple courtesy": “Do me the courtesy of letting me know if you’re not picking your phone up…” (CD). January 30, 2010 – Patty’s Birthday The Day Before the Killings Saturday, January 30th was Patty’s 43rd birthday. Defendant started calling again in the morning at 9:54 AM. Defendant begged “please give me a call before you leave.” He teased her, “Please, you got to hear this.” (CD). Just under 10 minutes later, at 10:05 AM, defendant sounded depressed and upset that he only had “two chances to talk to [Patty] since this all started going down” and that those chances were hurried or too public. Defendant tried to bargain for “5 minutes. 5 minutes for each of our 9 years. That’s a total of 45 minutes. That’s all I’m asking for.” “Just please come over, 5 minutes for every one of our 9 years that’s all I’m asking. Just hear me out. I’ve got pictures of you here.” (CD). Defendant claimed at trial that he had performed oral sex on Patty later that same morning, although they did not have sex because he hadn’t slept or eaten in days and was filthy. (A 275-276, 347). According to Carla Stout, defendant had called her around 11:55 AM and left her a message to not call or come over because Patty was going to be stopping by. (A 243-244; 247). He appeared at the rental supply store then (at 12:15-12:30 PM) that he had visited the day before, and the same employee waited on him. He testified there was nothing notable about defendant’s appearance or odor, and his demeanor was ordinary. (A 456-458). Patty’s birthday continued with defendant on the outside of her life peering in. He spent much of the day tracking Patty. He went to Patty’s house, her daughter’s, and then thought about going to her sister’s too. Then assuming she was with Tim, defendant returned home, got Tim’s phone number from his Internet searches, and called but hung up when Tim’s answering machine picked up. (A 334-335). Calls to Patty continued again that evening at 8:18 PM. Defendant asked if he could stop by. Defendant was unsure if Patty would not pick up her phone. He said “I’ll swing by anyway…Please call me, I had a really bad day.” (CD). At 9:02 PM, defendant called and asked whether Patty ever got his messages. Defendant attempted to play on Patty’s sympathy. “I’m just asking you to give me a call I had a really bad day…really rough day…I gotta talk to yah.” The call changed abruptly and referenced Tim Carter, Patty’s new boyfriend. Defendant stated “I hope he didn’t take you out on your birthday.” At this late hour defendant also said he now knew who Tim was because someone called and told, but defendant didn’t know why they told him and he was not looking for this information. Defendant admitted at trial that he’d actually ferretted out Tim’s phone number and address using the Internet. (A 352). At 9:16 PM, defendant left a message asking if Patty had just called him. Defendant ended the called and begged. “Patty please give me a call, what’s going on?” (CD). The evening calls continued at 11:11 PM. Defendant said he wasn’t trying to ruin Patty’s night and that “I know you’re out with Tim.” Defendant added in the message that he had called Tim’s house to see if he was home and hung up when the machine picked up. Defendant would refer to this as a “weasel thing.” (A 335). The message continued that “you lied to me…but I don’t know why you lied you’re probably just trying to protect me but…Patty I love you. God I love you. We had such a shot and I f--ked it up. I f--ked it up. Please give me one try. If it doesn’t work, I’ll leave. We had so much together.” (CD). At 11:27 PM defendant insisted “Patty please call me.” The call turned into their past relationship and why Patty should not be in this new one: “I love you look at the history we had Patty, you don’t know this guy. You’re head over heels for him...Yah it’s a new relationship he’s gonna treat you great. I want to get back how it used to be…Please call me.” (CD). Defendant then turned his attention to Tim. At 11:44 defendant left a message on Tim’s answering machine that said “Tim Carter, Tony Pavone. Give me a call. I’d like to apologize for a weasel phone call I made earlier. It’s very unlike me. I’d actually like to talk.” (CD). Just before January 30th ended, defendant called Patty yet again at 11:50 PM. Defendant ominously stated “the person who told me today who this guy is told me where he lives and he told me quite a bit about him….” Defendant acknowledged the messages he had left just minutes before on Tim’s machine. Defendant is angered. “If you guys don’t have the courtesy to return my phone calls…I don’t know if your up at Chazy Lake (the location of Tim’s home) or not but I’ll drive up there and I will wait and I will talk to him.” Defendant said he’s not upset with Tim, but that “someone better give [him a call]. This is crazy, Patty I love you. If I don’t get a call I’m on my way to Chazy Lake.” (CD). January 31, 2010 Early Morning Hours’ Preamble to the Murders Minutes later (12:02 AM), defendant left yet another message on Tim Carter’s answering machine: “Tim, Tony Pavone. If you’re any type of a man you will return my phone calls. Let me tell you something, I’m not blaming any of this on you, this is my fault. Ok? If you can’t return my phone calls and at least talk to me I don’t know what kind of person you are. I will eventually talk to you, Ok? And like I said, right now I will look for you. I will find you. I will go sit in front of your house in Chazy Lake if I gotta ... But you gotta understand, I love her. Please return my call.” (CD). Just after he hung up at 12:03 AM defendant called and left Patty another message. He brought up the message he had just left on Tim’s machine. He told Patty he didn’t threaten Tim but “One of you – you’re together – one of you has got to call me.” Defendant felt “this is wrong. Ok I love you.” Again defendant referenced driving up to find them both at Tim’s house at Chazy Lake. As if it was defendant’s choice to make he told Patty “I just gotta talk to [Tim]. I need another chance with you – I really do. And then if it doesn’t work out, [Tim] can have you because it would have been my fault again.” The message ended portentously “God I hope you’re not up at his house.” (CD). Then at 12:27 defendant started his call with “I’m still pretty calm right now but I’m getting really… anxious because you’re not returning my calls. It’s just gonna make it worse. Please return my phone call, honey. I’m still ok right now. I just, I gotta hear your voice. I don’t know if you went to the casino, I don’t know if you went on a weekend getaway with this guy, I don’t know if you’re up to his house…” Defendant believed Patty and Tim were together. He referred to a phone call he made to Tim that was restricted, meaning he blocked it from showing up on Tim’s caller ID, and that they were “probably laughing at him.” (CD). The last message defendant left on Patty’s phone before the murders was at 12:48 AM. It starts with Pavone laughing and joking about how long it took him to type and send a text to her, before he tells Patty that he had worked all day and had not slept the night before. He continued: “I’ve been driving around looking for you…I don’t know if you’re spending the weekend with [Tim]. I don’t know if you’ve gone to the casino. I don’t care where you are but please call me. Patty I’m not going to get any sleep until you call me just give me a courteous call please. It’s your birthday for crying out loud, come on, give me a break. I’m not going to go away, I’m really starting to get frustrated tonight. Come on man, we’ve got enough history together, you don’t have to treat me like this, please. Come on man, give me a call Pat.” (CD). The last message defendant left on Tim Carter’s answering machine was at 1:36 AM is more unemotional in its tenor than the words alone may suggest. “I know you’re getting these messages, I’m still looking for my girlfriend. I started out fairly calm, right now, I’m starting to get a little frustrated. I know she’s telling you not to call me. But, she’s also watching how you’re handling the situation.” (CD). January 31, 2010 The Murders About 2 hours later (approximately 3:30 AM), defendant arrived at the address he'd dredged up for Tim Carter. When asked at trial if he wanted Patty dead or if he wanted something else defendant responded, “No. I don’t f--king know. I don’t know.” (A 287). He needed Patty, not caring if he got her back, but “needed her now.” (A 297). He was carrying his .357 magnum revolver but he claimed at trial that “half of me knew it was there and half of me knew it wasn’t there.” (A 287). Defendant understood the situation he was walking into. Tim may want to fight him and he was prepared for that. Tim needed to know how he felt about Patty, and this “wasn’t just like if he had just picked somebody up in a bar and was having a one night stand.” (A 351-352). Tim lived in one of the 3 apartments at this address. Nicole Light rented the apartment directly next to Tim. (A 65). The apartment to the back, away from the road, was rented to Wendell Davenport. Defendant knocked on Mr. Davenport’s door and pretended to be a tenant himself, saying his heat was out. Davenport told him where Tim Carter lived and then went back to bed. (A 56-61). Moments later defendant knocked Nicole Light’s door. Defendant asked if Tim was home and Light explained Tim lived next door. (A 66-71). Defendant went to Tim’s apartment and knocked until someone answered. That someone was Patty. According to defendant Patty apologized to him and told defendant to go home. Defendant agreed and walked to his truck and started to drive away. But after driving no more than 200 feet down the road, he returned because he had to be near Patty, and just couldn’t leave. He didn’t know how long Patty had been seeing Tim and felt she should have told him. (A 350-351). The events culminated by 3:50 AM on January 31st, 2010, when Patty was on the phone with 911 and reporting that defendant was “giving [Patty] an issue and won’t leave.” (CD). When asked if defendant had been violent Patty does not say no and instead says “well [defendant] has been knocking on the door now for the last 20 minutes or so.” Patty told the 911 operator that she asked defendant to leave and he wouldn’t. She confirmed he was not intoxicated. At this point Patty and defendant spoke and Patty can be heard on the 911 call saying “What Tony? What are you doing here? You’re not getting a hug.” (CD). Patty told the 911 operator she wanted defendant to leave the property. She further confirmed that Tim Carter, her current boyfriend, was also there. While testifying, defendant said he purportedly told Patty “I [don’t] care if [you’re] sleeping with the guy, that I just [want], [just] let me sleep inside the door.” (A 297). While not remembering Patty’s words verbatim, he remembered “it was something what’s the matter with you. You don’t get it. What do I have to do, what do I have to do, f—k him right in front of you.” Defendant “needed her. I didn’t give a f--k. I didn’t care. I threw myself at the door.” (A 302-303). Defendant didn’t feel anger or jealousy. Instead at first he said he felt “distraught.” (A 302). Then later that there “were spots where there was nothing. There were no emotions.” (A 372). During re-direct defendant said “I didn’t feel anything…there was [sic] no feelings, and there should have been feelings at some point…I knew, I knew I should have had to be with somebody. It wasn’t her fault. It wasn’t her fault why she had to be with somebody. She had to be with somebody.” (A 374-375). As to defendant’s recollection of the shootings at this point, “everything was so slow. I can remember some of it is burnt in my mind.” (A 304). However, these periods were few and far between as he struggled to recall the killings. He thought Tim had just fired a gun at him. That when he approached Tim, Tim “grabbed my arm, didn’t grab my arm. He hit me but he didn’t hit me.” (A 307, 360). At times defendant stated the gun went off accidently and that he did not remember shooting Tim. (A 354). Ms. Light heard the earlier knocking on the door that was not hers. She then heard screaming and gun shots. (A 72-74). Mr. Davenport heard the shots and Tim’s voice. (A 60). Floyd Guerin lived near the apartments and was friends with Tim Carter. He heard 6 “pops” that sounded like gun shots. Guerin observed defendant leave Tim’s residence with a pistol in his hand and called 911. Defendant took off with police arriving shortly thereafter. (A 82-86). The New York State Forensic Investigation Unit and the State Police Lab were able to recreate the shootings. Through the testimony of Senior Investigators Allan Wright (A 103-135) and John Egan (RA 31-32), as well Sergeant James Campbell (A 203-216) and Forensic Scientists Cheryl Strevell (RA 33) and Mallory Gage (A 199-202)), evidence showed that defendant had fired two initial shots through Tim’s door. He reached through the window, unlocked the door, and walked in. (A 107-109). He fired two more directly at Patty Howard. Dr. Michael Ladwig, who conducted the autopsies, testified that Patty was killed by a bullet traveling downward through her head indicating defendant stood over her as she was bent over or kneeling as he killed her. (A 137-152). Defendant left a visible footprint on her back. (RA 99; People’s 30). A fifth shot traveled towards Tim striking his shoulder and pinning him down in his own bedroom. This injury to Tim was not fatal. However, defendant walked over to Tim and fired his sixth and final shot. Defendant had to walk past Patty, the kitchen, and the living room when he approached Tim. With Tim on the ground, prone and with his arm trying to block his face, defendant’s last shot went through Tim’s shoulder, through his neck and out his forehead, stopped only by the bedroom floor. (A 611A-621). Defendant wiped his hands on a towel by the stove and emptied the casings on the coffee table. He reloaded his revolver at some point. (A 160). The Aftermath Floyd Guerin was the last person to see defendant on January 31, moments before the State Police arrived. Defendant was found to be at the Del Motel in the town of Kirkwood (Broome County), New York, on February 4. A search of defendant’s motel room after his surrender yielded the .357 magnum revolver used in the murders. (RA 28-29; People’s 128). A host of other survival supplies were also inside the room. These included a ski mask, emergency blankets, hot hand warmers, raisins, a pocket knife, chap stick, a bright LED light, and antiseptic. (A 154-161; RA 100-101). Defendant would later state that he had removed the battery from his cell phone after the shootings because he didn’t want anyone calling him (A 314) and that he had made a Will while on the lam, knowing that something bad had happened. (A 311; 662; RA 30). His apprehension was recalled by many members of law enforcement including Broome County Sheriff’s Department Detective Sergeant Jason Ellis, and New York State Police Senior Investigators Leslie Hyman and Kevin Leavine, and Investigator Scott Weightman. In the early morning hours of February 5th, 2010 Detective Sergeant Jason Ellis conducted a negotiation to have defendant turn himself over without violence. First contact was made at approximately 1:30 in the morning. They spoke for about 2 ½ to 3 hours. (A 647-655). Defendant gave a phony name, “James Trombley” when he checked into the hotel. (A 649). Ellis’ negotiation with defendant was recorded and entered into evidence. (People’s 205; A 653). The specifics of the crime were not gotten into. Conversations revolved around the safety of defendant and law enforcement, finding commonalities between them, and defendant’s family (A 654-660). Senior Investigator Leslie Hyman helped transport defendant from the Del Motel to the State Police station in Binghamton, NY. (A 670). He read defendant his Miranda warnings for the first time. (A 671). Understanding he could not question defendant about the crimes, Hyman asked defendant about the location of the gun for safety reasons. (A 674). Defendant indicated that no officers were in danger of being harmed. Id. Back at the police station, defendant was not questioned about the crimes, but was asked pedigree information as well as if he was hungry or thirsty. (A 675). There were no spontaneous statements about the criminal case nor did defendant make any involving “extreme emotional distress [or freaking out].” (A 676). Senior Investigator Leavine had originally traveled from Plattsburgh to Binghamton to transport defendant by car. (A 167). That changed when Homeland security stated that two members of the state police could fly back with defendant. Id. When he and Investigator Dufour went to transport defendant to the Broome County airport, he was again read his Miranda rights. (A 168). Not in response to any questioning, defendant “mumbled at one point [he] should have shot himself in the head when he had the chance.” (A 169). He made no other comments, specifically no comments that he “snapped or [lost] it.” Leavine described him as sad but calm. Id. Investigator Weightman was assigned as one of the investigators who would fly back with defendant. His conversation with the defendant was very limited. They did not discuss the crimes, but described defendant’s demeanor as indirectly referencing them. Defendant broke down and cried a few times. At the beginning of the trip, Weightman mentioned to defendant he had heard he used to sky dive and defendant indicated he wished he could jump out of the plane right now. He continued that he had his chance and he blew it. Defendant did not make any statements about having “snapped or lost it”. (A 171-173). Extreme Emotional Disturbance - The Experts' Trial Testimony The first time anyone mentioned or spoke about extreme emotional disturbance to defendant was when, defendant testified, his daughter “sent [him] information on extreme emotional disturbance and other defenses.” (A 319). There was some discussion with his treating psychiatrist, Dr. Gitlin in August (A 319), but the defense ended up calling Jonathan Weker, M.D. in support of his defense and the People called Stuart Kirschner, Ph.D. in rebuttal. Dr. Jonathan Weker Dr. Weker, who testified for the defense, had his background in forensic psychiatry.6 While his overall testimonial experience was “in the order of a hundred” times, he had only testified one other time ever regarding EED. (A 443- 444). Dr. Weker had interviewed defendant on May 3, prior to jury selection, and 6 Defendant’s brief mistakenly states Dr. Weker testified on June 1, but correctly states his testimony was three days after defendant’s testimony. Dr. Weker testified on June 3. (RA 110- 111). again on May 21, prior to opening statements.7 He did not believe defendant was faking what he was saying. (A 423-424). He diagnosed defendant as having suffered for years with PTSD and depression. (A 432). As to defendant’s emotions he believed defendant was principally anguished, coupled with being sad, desperate, fearful, and vindictive. (A 429). He based his finding that defendant suffered from an EED as he was physically and psychologically debilitated. Defendant was emotionally stuck with Patty and his life was over if he left that evening. (A 432a). As to the reasonable explanation under these circumstances required for such a finding he looked to (1) whether the reasoning or rationale present in defendant’s mind had a basis in reality; and (2) the circumstantial magnitude defendant felt. (A 432b). Patty and defendant’s relationship was very emotional, up and down, erratic and dysfunctional. (RA 45). It had periods of tremendous closeness. Other times were problematic, undesirable and defendant himself didn’t wish to be a part of it. (RA 45-46). Patty’s family found defendant to be too controlling. (RA 48). Ultimately he found that defendant had lost rational control and was acting under an EED over a significant portion of the phone calls he made and as to the killings themselves. (RA 430; A 439). 7 Defendant references Dr. Weker’s second interview, on May 21 as only after “trial had been in progress more than one week.” This is confusing. Jury selection ended by May 12 and the entire trial was adjourned until May 23, when the trial court gave its preliminary instructions, openings were given, and the first witness was called. To make this finding he had spoken to defendant for over 11 hours as well as reviewed New York’s Penal law, case law, and articles on the topic, one of which was authored by the People’s expert. (RA 44). His chief location of practice, Vermont, does not have the EED defense. (A 444). He had not reviewed defendant’s testimony from earlier that week. (A 450). While he had read the transcripts of defendant’s phone calls and Patty’s 911 call, he did not listen to them. (A 455). Dr. Stuart Kirschner Dr. Stuart Kirschner’s background included forensic psychology. He was “lead author on a major publication of [EED] in a law review psychology journal, hybrid journal. It’s really the only article that exists even to date which addresses the [EED] standard as it appears here in New York State as well as probably about a dozen other states at this point.” (RA 57-58). This article was accepted as a reliable resource in the field of psychology as it relates to [EED].8 He had conducted thousands of psychological examinations in criminal prosecutions. He has been involved in the examination of approximately 50 cases regarding [EED] and 25 involved actual expert trial testimony. (RA 49-62). Dr. Kirschner’s evaluation of the defendant was very different. (A 464- 478). Defendant was cooperative and engaging but it was extreme difficult to get 8 This was the article Dr. Weker utilized when he reviewed New York's EED. straight answers. Their interview took 6.5 hours mostly because defendant felt he “had to explain things”. Defendant was histrionic and dramatic. Furthermore he would go from a tremendous amount of emotional intensity and then demanded that they go back in time to tell things that weren’t being asked. Defendant was in essence controlling the interview and when Dr. Kirschner tried to intervene, defendant would object and insist on explaining things further. There was relevancy to defendant’s actions during the interview since it was characteristic of an individual with extreme control issues. Dr. Kirschner reviewed other sources to make his ultimate finding. (RA 49-62). Dr. Kirschner listened to the recordings from defendant leading up to the day of the murder and the 911 call from Patty Howard just moments before the killings. The recordings of defendant’s voice on Patty’s voice mail and Tim’s answering machine were similarly critical and compelling in evaluating defendant’s emotions. On those recordings defendant was confrontational and even challenged Tim’s manhood. The messages were calculated. The tone was very important. (A 485- 486). Defendant tried tactics to control Patty. He would sound broken up and pleaded for help. Other times he asked for just common courtesy. He talked about Patty’s birthday, saying “how can you do this to me on your birthday” which the Doctor called ironic because it was Patty’s birthday – not defendant’s. At one point he sounded menacing and threatening saying he was going to come up there, that he didn’t care what Patty said or did, that he would go up and find her. He tried emotional blackmail saying he was anxious and if he didn’t get a call back right then defendant didn’t know what would happen. There was another message where defendant had laughed and sounded happy. Another touched on curiosity as in Patty just had to call him back and he would tell her what just happened. (CD). This all led back to the control, power, and manipulation defendant employed. While all this showed some of defendant’s emotion, it further displayed thoughts, plans, and manipulations that played on Patty’s emotions. (A 485-486). The Will defendant wrote after the murder was also important since it showed rational thinking close in time to the incident. To Dr. Kirschner, defendant characterized his relationship with Patty as turbulent. They were together for 9 years but would break up for a month or two and then get back together throughout that time period. Dr. Kirschner also reviewed the trial testimony of defendant which was significant for his final opinion. For EED a defendant must be subjectively experiencing an extreme emotion during the murder. At trial, as with both experts, Dr. Kirschner described how defendant could not give straight answers. Defendant struggled to answer questions about “what he was feeling.” What defendant did want to do was control the testimony and he wanted to explain things on his own terms. (A 464-478). The information from witnesses closest in time to the murder was critical. Defendant spoke with Nicole Light in a calm, courteous, and rational manner. Defendant knew he was in a desolate area and didn’t want to scare people. He knocked lightly and tried not to intrude on their lives at 3 AM. This is in stark contrast to Dr. Weker’s finding that defendant was suffering from an EED at this time and time’s prior. Defendant was not ranting, raving, or ignoring his surroundings. He was concerned and knew exactly where he was and what he was doing. Defendant’s conduct with Wendell Davenport led to a similar conclusion. (A 481a-487). Defendant had also left Tim’s residence, drove away a short distance, and then returned. Defendant was unsatisfied with the resolution that had just occurred and chose to return. Even if he was in an emotional state, this was his opportunity to cool off. In sum defendant created his own stressful situation where he went out there looking for Patty, and even if he hoped he would not find her he was fairly certain he would. Defendant’s actions of searching the Internet for phone numbers, addresses, and information about who Tim was, was more consistent with what stalkers do as opposed to what people who are emotionally disturbed do. (A 487-499). As to New York’s EED law, it requires that the person loses the ability to reason rationally – the quintessential “would this have occurred at the arm of a police officer.” There was no indication that if a police offer was next to defendant that defendant would still have engaged in his conduct. EED is not simply feeling any amount of emotion. That’s not enough. (A 492-493). Dr. Kirschner agreed that defendant suffered from major depression. He was not convinced defendant had Post Traumatic Stress Disorder [PTSD]. Regardless, those were unrelated as neither played any role in his behavior at the time of the murders. Further the model ‘heat of passion’ was not this case. The defendant did not happen upon his girlfriend with another man. Defendant sought out his ex-girlfriend who he knew was with someone else. He had every opportunity not to go where he went. Defendant had just had an appointment with his psychiatrist, Dr. Gitlin, on January 29, and instead of ironing out any feelings there, he met with him for only 10 minutes. In no uncertain terms he then proceeded to stalk and ultimately kill Patty and Tim. (A 496-499). For a final finding, “In my opinion [defendant] did not act under extreme emotional disturbance at [the time of the crimes].” Defendant had not lost his ability to reason rationally nor was defendant so overcome by emotions that his ability to think rationally was disturbed by extreme emotion.” (A 496-499). Trial Conclusion and Sentence Summations occurred on June 7, 2011, and the court’s jury charge, deliberations, and verdict ensued on June 8, 2011. In his final statement to the jury, Mr. Carney addressed head on that defendant would never have said he felt “no emotions” if he was pretending. It was ‘conceded’ that defendant killed Patty and Tim but it was up to the jury to deliberate about whether this was murder or manslaughter. (RA 64). He described defendant on the night of the crimes as fueled by his use of Hydrocodone and mixed feelings of “fear, anguish, being distraught, love, hate, [and] anger”. (RA 65). Defendant was also dealing with medical problems, his rental property, and pains and depression. The only thing he had left was his nine year relationship with Patty, and whether it was good or bad, it was all he had, and now it was gone. (RA 66). Mr. Carney explained defendant’s post-criminal actions, not as evidence of guilt, but as someone who had not attempted to hide his crimes. (RA 68). He called Dr. Kirschner’s testimony “clever” but not to be believed. (RA 69). While the instructions for EED are difficult Mr. Carney explained why defendant’s actions had been reasonable based on his own mindset, even if killing someone is never reasonable. (RA 71). He described defendant on the messages as someone who was physically and mentally drained. (RA 73). In anticipation of the People’s summation he said even if defendant was controlling and acted like a stalker, that didn’t disprove EED. (RA 73). Furthermore planned and intended actions also did not automatically disprove EED. (RA 74). Finally he pleaded with the jury to listen and apply the law no matter how they felt about what defendant did. (RA 75). The prosecutor brought up the tumultuous relationship Patty and defendant had over nine years and that this case was really about Patty having separated and the defendant not letting her go. (RA 76-77). Each of the messages defendant had left on Patty’s and Tim’s respective answering machines were played. The prosecutor argued that they discredited Dr. Weker’s testimony that defendant suffered from an extreme emotional disturbance throughout the time period captured by those messages. (A 556-557). Also the prosecutor referenced the forensic evidence about the bullet trajectories and what positions Patty and Tim must have been in when they were killed. (RA 78). Specifically, that Patty must have been kneeling or bent over and that Tim was on the ground already from the first non-fatal wound. (RA 79). While defendant may not have done much to cover his crime, the prosecutor argued, he did take great steps to avoid being caught. He fled the area, used a fake name, and paid in cash. (A 561). That defendant could have reported his actions to the police and explained his disturbance, but instead he collected the clothes he was wearing, reloaded his revolver and drove away. (A 561).9 Defendant removed the battery from his cell phone so he also couldn’t be tracked. (RA 80). 9 This summation statement is first of two defendant claims on appeal as improper. Turning to the law and the indictment, the prosecutor explained the top counts and their own burden of proof. He turned to the defense and explained how defendant needed to be in constant control, even during the direct and cross examination. (A 562). Defendant’s emotional reaction only became relevant after his daughter sent him information on EED and not from anything he said when he was taken into custody. (A 562).10 He compared the experts, arguing that Dr. Weker had only testified one other time in an EED case and predominantly practiced out of state whereas Dr. Kirschner had been published on New York’s EED laws and had testified in court in 25 cases. Defendant’s inability to give straight answers about what he felt was inconsistent with his defense. (RA 81). In fact, defendant had placed himself in that situation by having found Tim’s address online and haven driven there with a loaded gun. Defendant at one point had driven away, some 200 yards, but chose to return. (RA 82). The prosecutor ended by asking for a just verdict. (RA 83). The jury found defendant guilty of the top counts and when doing so signified they did so only after having considered the affirmative defense as they were instructed to do. (A 566-568). Defendant was sentenced to life imprisonment. (A 2). 10 This is the second statement now-complained of. Defendant's Appeal to the Appellate Division The Third Department affirmed the judgment of conviction (3-1) in its entirety on May 29, 2014. People v. Pavone, 117 AD3d 1329 (3d Dep’t. 2014). While acknowledging the post-Miranda silence violations, the court saw this issue as largely unpreserved for review. Id. at 1330. The court declined to exercise its interest of justice authority in that regard or to find defense counsel deficient in failing to preserve them. Id. Regardless, the court said, “the admission of the challenged testimony was…harmless in light of the overwhelming evidence establishing both defendant’s guilt beyond a reasonable doubt and his corresponding failure to prove his affirmative defense of [EED] by a preponderance of the evidence.” Id. at 1331. In then reviewing the evidence, the court recognized the defense “does not negate intent…but rather, ‘allows a defendant charged [with murder] to demonstrate the existence of mitigating factors which indicate that, although…not free from responsibility for [the] crime, [defendant] ought to be punished less severly.’” Id. (citing People v. Cass, 18 NY3d 553, 561 [2012]; People v. Harris, 95 NY2d 316, 318-319 [2000]; People v. Casassa, 49 NY2d 668, 679-681 [1980]). A defendant’s actions need not be spontaneous, the court recognized, but if their actions exhibit a high-degree of self-control, planning and/or deliberation, and post-crime conduct showing a full command of faculties and consciousness of guilt, then these actions are not indicative of EED. Id. at 1332. Then going through a thorough examination of the evidence at trial, the court was led to the ultimate conclusion that defendant “systematically hunted down and then executed Howard and Carter, and the foregoing proof – consisting of defendant’s own words and admitted actions leading up to, during and following the shootings – evidences a level of calculation, planning, calm deliberation, and consciousness of guilt that is both entirely inconsistent with his claimed extreme emotional disturbance defense and completely undeserving of any leniency or mercy.” Id. at 1336. This overwhelming evidence of guilt left the court to conclude there was “no reasonable possibility that the jury’s verdict would have been different but for the admission of the challenged testimony.” Id. In her dissent, Justice Garry largely concurred with the majority’s decision, and disagreed only with their conclusion of overwhelming guilt. Id. at 1337. She did not write of any concern over the majority’s characterization of the evidence it stated was inconsistent with the defense. Id. Instead, she turned to Dr. Weker’s testimony and his conclusions, and then found that the conflicting expert opinions were enough for her to find that the evidence was not overwhelming. Id. ARGUMENT POINT I. THE MAJORITY OF DEFENDANT’S COMPLAINTS ARE UNPRESERVED. DEFENDANT’S ONLY OBJECTION WAS PROPERLY DECIDED BY THE TRIAL COURT. ULTIMATELY ANY ERROR IS HARMLESS BY OVERWHELMING GUILT. (Answering Appellant's Points I and II) Introductory Overview Defendant asserts that some questions posed by the People during their case in chief, one question during cross examination, and then two comments on summation constitutes reversible error – either through his right to remain silent (Appellant’s brief, Points I and II) or right to counsel (Appellant’s brief, Point III), both conferred by the State and Federal Constitutions. However, only the weakest claim, the question asked of defendant during cross examination, has been preserved for this Court’s review. The remaining questions were never objected to and therefore are not preserved. As discussed at this Point, the unpreserved errors are not ‘mode of proceedings’ errors and therefore are not reviewable (Point I, A). Next, the general objection that was made during defendant’s cross examination referred to statements made that were postarrest, but pre-Miranda. It was properly overruled. (Point I, B). Finally, even if this Court finds some error in this testimony, such error would be harmless. (Point I, C). A. The complaints raised for the first time on defendant's appeal are not "mode of proceedings" errors for which preservation is not required. Section 3(a) of New York's Constitution Article VI [COURT OF APPEALS; JURISDICTION] declares: The jurisdiction of the court of appeals shall be limited to the review of questions of law except where the judgment is of death, or where the appellate division, on reversing or modifying a final or inter- locutory judgment in an action or a final or interlocutory order in a special proceeding, finds new facts and a final judgment or a final order pursuant thereto is entered; but the right to appeal shall not depend upon the amount involved. Thus, "except in the instance of appeal taken directly to the Court of Appeals pursuant to CPL 450.70 and 450.80, applicable to capital cases, the jurisdiction of the Court of Appeals is limited to considering questions of law." People v Robinson, 36 NY2d 224, 228 (1975); see also, People v Knowles, 88 NY2d 763, fn* at 768 ("Our law is clear that, in a criminal case, arguments that were not raised or considered in the court of first instance are not questions of law within our constitutional review powers [citations omitted]"). Consonant with this constitutional prescription, CPL § 470.35 [DETERMINATION BY COURT OF APPEALS OF APPEALS FROM ORDERS OF INTER- MEDIATE APPELLATE COURTS; SCOPE OF REVIEW] generally authorizes the Court to "consider and determine" questions of law "involving [an] alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court." CPL § 470.35(a).11 "For purposes of appeal," subdivision 2 of CPL 470.05 [DETERMINATION OF APPEALS; GENERAL CRITERIA] instructs that a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an oppor- tunity of effectively changing the same. * * * The Court's own Rules reflect these precepts. When seeking leave, would-be appellants in criminal cases are expected to pay "particular ...attention to reviewability and preservation of error, identifying and reproducing the particular portions of the record where the questions sought to be reviewed are raised and preserved." Rule 500.20(a)(4) those moving for leave to appeal in civil cases are similarly directed to "identify the particular portions of the record where the questions sought to be reviewed are raised and preserved." Rule 500.22(b)(4) And Rule 500.13(a) requires all appellants' briefs to "include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised, with citations to the pages of the record or appendix where such questions have been preserved for the Court's review." 11 Certain other questions of law not germane to this matter, such as the legality of the corrective action ordered by the intermediate appellate court, may also be entertained. CPL § 470.35(b) - (c). In this case, defendant acknowledges -- in the answer to #2 of his Questions Presented and in Point II of his Appellant's Brief -- that only one of the grievances raised in Point I of his brief (the challenge to one aspect of the People's cross- examination of him) was preserved by timely objection. (A 320-321). Citing to People v McLucas, 15 NY2d 167 (1965), he urges the Court to take up all the claims advanced in Point I on the ground that "'no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right.' [McLucas, 15 NY2d] at 172." (Appellant's Brief, p. 47). But McLucas was, as the Court observed the following year, an outlier even then: McLucas is contrary to "the then recently decided case of People v Firola, (11 NY2d 157 [1962]) which held explicitly preservation is necessary to preserve for appellate review an issue of constitutional law. This had been consistently held in many New York cases and its principle was reaffirmed in the later case of People v. Howard (12 NY2d 65 [1962]." People v De Renzzio, 19 NY2d 45, 50 (1966) (holding, "in any event," that McLucas ought not to be applied where there was no opposition to the admission of De Renzzio's post-indictment statement, and the statement in question on appeal "was employed in strategical utilization by [his] counsel at trial by defense counsel at trial"). Much more recently, the unanimous Court declared that "[t]he sweeping statement in McLucas is no longer good law." People v McClean, 15 NY3d 117, 120 (2010). This is borne out by numerous decisions from the Court. E.g. People v Martin, 50 NY2d 1029, 1031 (1980) -- refusing to entertain defendant's Payton violation claim because it was not raised in the trial court People v Patterson, 53 NY2d 829 (1981) - unpreserved contention that statements should be suppressed by the Court "because they were taken in violation of [the Fourth Amendment's prohibition of unreasonable seizure] has not been preserved for our review" People v Naryan, 54 NY2d 106, 112 (1981) -- reversing Appellate Division's determination that trial court's curtailment of communication between defendant and his attorney at trial was a Sixth Amendment claim that need not have been preserved for appellate review People v DiRaffaele, 55 NY2d 234, 243-43 (1982) -- constitutional challenge to Penal Law § 190.42 not available to defendant who did not include the claim in his pretrial motion People v Hamlin, 71 NY2d 750, 761-62 (1988) -- defendant did not preserve for Court of Appeals' review his claim that the trial court's refusal to give a requested charge violated the State Constitution People v Rivera, 73 NYd 941, 942 (1989) -- declining to consider whether defendant had been denied a fair trial by remarks in prosecutor's summation to which objection had not been made People v Voliton, 83 NY2d 192 (1994) -- claim that defendant was unlawfully seized, and therefore, he could not be convicted of Resisting Arrest, was not put before the trial court and, consequently, was not considered by the Court People v Stephens, 84 NY2d 990 (1994) -- defendant's gender-based Batson argument was not presented to the trial court; consequently, the Court would not consider it People v Umali, 10 NY3d 417 (2008), cert. denied, 556 US 1110 (2009) -- constructive denial of counsel at trial must be preserved in order to secure Court of Appeals' consideration of the Sixth Amendment claim People v Alvarez, 20 NY3d 75, 81 (2012) -- regarding co-appellant George's contention that the trial court's closure of the courtroom for part of his trial was reversible error: "We have consistently required that errors of constitutional dimension -- including the right to a public trial -- must be preserved" There is a "very narrow" category of claims denominated as falling within the embrace of "mode of proceedings error", which may be considered by the Court even if not preserved. People v Kelly, 5 NY3d 116, 119-20 (2005). But mode of proceedings error classification is now understood to be "reserved for the most fundamental flaws" (People v Becoats, 17 NY3d 643, 651[2011], cert. denied, 132 S Ct 1970 [2012]), such as when a trial judge is absent during part of the trial or otherwise abdicates fundamental responsibilities (People v Toliver, 89 NY2d 843 [1996]; People v O'Rama, 78 NY2d 270 [1991]) or where the trial court's jurisdiction is called into question by the unpreserved claim. E.g., People v Boston, 75 NY2d 585, 589, n. 2 (failure to adhere to procedures mandated by CPL Article 195 for waivers of indictment is mode of proceedings error); People v Zanghi, 79 NY2d 815 (acceptance of plea of guilty to superior court information charging a higher offense than in the preceding felony complaint "implicates jurisdiction and need not be preserved); People v Michael, 48 NY2d 1 (1979) (classic, constitutional Double Jeopardy claim "implicates the very power of the State to prosecute a particular defendant"); People v Wilson, 14 NY3d 895 (2010) (subject matter jurisdiction challenge need not be preserved). But other issues that could very well be denominated as "fundamental" are beyond consideration by this Court as mode of proceedings error. For example, a statutory Double Jeopardy claim is not exempt from the preservation requirement. People v Biggs, 1 NY3d 225 (2003). Deficiencies in the legal sufficiency of proof "affect the substance, but not the mode of proceeding, of the trial." People v Hawkins, 11 NY3d 484, fn. 2 at 49 (2008); see also, People v Gray, 86 NY2d 100, 120-21 (1965). Even a jury charge which failed to include an instruction on the presumption of innocence is not a mode of proceedings error. People v Creech, 60 NY2d 895 (1983).12 Lastly, it has long been understood that the mode of proceedings is not a right personal to the defendant. See Cancemi v. People, 18 NY 128, 137-38 (1858); People v. Gajadhar, 9 NY3d 438, 449 (Ciparick, J., dissenting from majority’s holding that Gajadhar could waive his right to a trial by 12 jurors). Further, the preservation requirement also applies to the People. See, e.g., People v. Dodt, 61 NY2d 408, 416 (1984). All parties to criminal appeals – defendants and prosecutors alike – would doubtlessly welcome having the ability to raise arguments for the first time on appeal whenever constitutional rights may be at issue. But such a holding would fly in the face of the State Constitution, our Criminal Procedure Law, and the collective systemic interests in preservation. 12 In this vein, the People note that defendant's reliance on People v Autry, 75 NY2d 836 (1990), is misplaced. As the Autry Court pointed out, "the exception to the preservation requirement may be invoked only where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified [citations omitted]." 75 NY2d at 839. No such charge was delivered here. B. The only preserved issue, the general objection made during cross examination of defendant, was properly overruled and therefore reversal is unwarranted The context in which this question was asked is essential to understanding and analyzing this point. Defendant had just testified about having only certain moments of the murder being “burnt into his mind.” (A 317). Shortly after, defendant acknowledged that his daughter sent him information about EED and other defenses. (A 319). Therefore, the door was wide open for the People to narrow what moments of the killings defendant remembered and when he remembered them, since by his own admissions there was a reasonable possibility that he had lied during some testimony to better fit his defense. Q: I’ll move on. Shortly after you were arrested and you were being held in the Clinton County Jail, you had a couple people come over and interview you, correct, to determine whether you were fit to stand trial? A: Oh, yes. Q: You were at that time explaining to them what had occurred in the days leading up to January 31st and then the events of January 31st? A: I don’t think they asked. Depends on what person you’re talking about. Q: All right, and when you were taken into custody on February 5, 2010, did you tell Sergeant, Detective Sergeant Ellis what had happened up in Clinton County on January 31, 2010? Mr. Carney: Objection. The Court: Overruled. A: I couldn’t. Q: Why? A: Because I didn’t remember it all. Q: Okay, let me ask you this, Mr. Pavone, when did you start remembering the events that occurred in the preceding days of January 31st and on January 31st in the early morning hours? A: It started right from the second it happened I started remembering things. I knew there was something bad. I told Ellis that I knew there was something had happened, but I was accepting it, at some point I knew something had happened, but I didn’t, I couldn’t, at times I could tell myself something horrible happened, and at times I would block it out, nothing bad, I remember thinking at one point that I’m in my truck and I’m thinking that they’re both in a hospital injured talking to each other in the same room, they were alive and everything, it was a matter of months, everything just slowly, and I didn’t know what was coming back to me that was accurate, what was I remembering properly and what was I remembering purposefully to defend myself, to defend, to keep myself alive. What was I remembering, your mind fools you. Even when you’re healthy, your mind fools you. - (A 320-321). Defendant’s reference to the objection made during the prosecutor's cross- examination of him is therefore mistaken. The objected-to question did not refer to any post-Miranda silence as defendant alleges. (Appellant’s brief, p. 29). The question referenced defendant’s discussions with Detective Sergeant Ellis, the Broome County Sheriff’s negotiator. Defendant had not yet been Mirandized. (RA 25-26). This is critical because pre-Miranda silence, for purposes of impeachment, is admissible in a broader array of circumstances. See People v.Davis, 61 NY2d 202 (1984); see also People v. Andrews, 237 AD2d 110 (1st Dep’t. 1997); People v. Mercer, 112 AD2d 790 (4th Dep’t. 1985). Defendant was not Mirandized until he ultimately surrendered to the authorities. (RA 26). Looking at the exchange in its totality, the objected question was properly overruled. This line of questioning sought to ascertain more precisely how much defendant remembered about the homicides and when he remembered those details, both issues that defendant made relevant by his own trial testimony. This was further vital, relevant, and appropriate information in light of his EED defense. Eliciting the fact of defendant’s postarrest, pre-Miranda silence during cross-examination, on these facts, conforms to this Court’s Conyers , Davis, and Reid decisions. It was not during the People’s case-in-chief. Contrast, People v. Conyers, 49 NY2d 174, 177 (1980). During cross-examination situations exist where silence may be used against a defendant. People v. Davis, 61 NY2d 202 (1984); see also People v. Rothschild, 35 NY2d 355 (1974); People v. Savage, 50 NY2d 673, 676 (1980); People v. Bowen, 50 NY2d 915 (1980). Finally such statements are also admissible if “a defendant opens the door by presenting conflicting testimony…[w]hether a defendant opened the door to particular, otherwise inadmissible evidence presented to the jury must be decided on a case- by-case basis.” People v. Reid, 19 NY3d 382, 388 (2012). Because the only preserved objection was properly overruled, this Court should affirm the decision of the Appellate Division in all respects. C. Any error is harmless in light of such overwhelming evidence of guilt It has long been recognized that even Constitutional errors do not necessarily require reversal. Such errors are “considered harmless when, in the light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict.” People v. Porco, 17 NY3d 877 (2011) (citing People v. Douglas, 4 NY3d 777, 779 [2005]; People v. Crimmins, 36 NY2d 230, 240-241 [1975]). People v. Basora, 75 NY2d 992 (1990). “In making that determination, the court considers two discrete factors: (1) the quantum and nature of the evidence against defendant if the error is excised and (2) the causal effect the error may nevertheless have had on the jury.” People v. Hamlin, 71 NY2d 750 (1988). Since the brief snippets of now challenged testimony and the prosecutor’s reference to those in summation do not appear to have played a role in the jury’s assessment and the vast body of remaining proof unquestionably supports the Third Department’s factual finding that “defendant systematically hunted down and then executed Howard and Carter” [Pavone, 117 AD3d 1329 at 1337], this Court too should consider any errors harmless. Extreme Emotional Disturbance [EED] is an affirmative defense that a defendant must prove by a preponderance of evidence. People v. Diaz, 15 NY3d 40 (2010); People v. Maher, 89 NY2d 456, 463 (1997); Penal Law §125.27(2)(a). As a defense EED requires both subjective and objective elements. People v. Harris, 95 NY2d 316, 319 (2000). Subjectively the fact-finder looks at the defendant’s own state of mind at the time of the crime and whether defendant was actually influenced by an EED. Objectively, there must also be a reasonable explanation or excuse for that emotional disturbance based on the events as the defendant perceived them to be. Harris, 95 NY2d at 319, supra. Essentially that the defendant did in fact suffer from an EED and that, “he/she should be ‘punished less severely’ because the intentional homicide resulted from ‘an understandable human response deserving of mercy’”. See People v. Cass, 18 NY3d 553, 561 n.4 (2012) (emphasis added). Defendant’s chief concern on this appeal is that the appellate division phrased defendant’s actions as “entirely inconsistent” with EED. (Appellant’s brief p. 42). This misconstrues the holding, as the appellate court was not saying that the evidence it was referencing must automatically defeat the defense. Instead, it was that these patterns are the types of proof that are truly inconsistent, even if not necessarily fatal, with the defense. Defendant’s high degree of self-control and post-crime conduct is inconsistent with EED. Such “calculated behavior both during and after [a] homicide does not tend to support [EED].” People v. Diaz, 15 NY3d 40, 48 (2010). This type of presence of mind and behavior prior to and immediately after the crime is “not indicative of EED.” People v. Roche, 98 NY2d 70, 77 (2002). And evidence of a premeditated intent, “thereby [tends] to rebut the loss of control” as required for the EED defense. See Cass, 18 NY3d 553, 563. Also, the description of what Pavone felt is "not equivalent to the loss of self-control generally associated with [EED].” People v. Walker, 64 NY2d 741, 743 (1984). And an explanation “that he experienced ‘emotion’ and ‘jealousy’ at the mere sight of his former wife in the company of another man, did not provide a ‘reasonable explanation or excuse’ for defendant’s asserted mental state.” Linnen v. Poole, 766 F.Supp.2d 427, 463 (WDNY 2011); (citing People v. White, 79 NY2d 900, 903 [1992]). Defendant takes no issue with the EED instruction as given to the jury during trial. Instead, defendant contends that the trial court’s decision to give the EED charge at all compels the conclusion that the proof against the defense was not overwhelming. (Appellant’s brief p. 45). This argument is misplaced. This Court requires submission of the charge broadly, even when defendant has proffered no evidence at all. See People v. Gonzalez, 22 NY3d 539 (2014); People v. McKenzie, 19 NY3d 463 (2012). “A defendant is entitled [the charge] where the evidence, viewed in the light most favorable to defendant it is sufficient for the jury ‘to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied’”. Id. at 545. (emphasis added) (internal citations omitted). However, when analyzing whether there was overwhelming evidence of guilt, the defendant does not gain the benefit of all favorable inferences. Therefore it is entirely possible that an EED charge may be required when it is still overwhelmingly unsupported. When applying the foregoing standards, it becomes evident that defendant’s defense is unsupported on these facts and instead that he committed murder. Should this Court believe any error was committed, it should still find that defendant’s guilt is so overwhelming there is no reasonable possibility that any inadmissible evidence tainted the jury verdict. The EED Defense Turning to the evidence as it relates to the defined elements of the defense, defendant was not subjectively suffering from an extreme emotional disturbance as that term is defined by the law, and even if he was, his reaction was not reasonable. Should this Court find overwhelming evidence on either or both prongs it should affirm the conviction. See People v. Casassa, 49 NY2d 668, 680 (1980) (Upholding a conviction where a defendant was found to have been suffering under an EED, but failed the reasonableness prong). Appellant references the subjective emotions of “confusion,” feeling “lost,” “mentally and physically fried” (Appellant’s Brief, pg. 38/39). Defendant characterized this as “hurt and distraught” and that he “freaked out”. (Id. at 32). Dr. Weker called it “anguish”. (A 429). Nothing about defendant’s then calculated actions would lead any jury to believe these emotions rose to a level of a subjective “extreme emotional disturbance” and thereby a loss of self-control. People v. Feris, 144 AD2d 691 (2d Dep’t. 1988) is instructive. In Feris, “defendant’s ‘normal’ appearance during a conversation with two witnesses immediately prior to the incident and his ability to skillfully drive his car backward to negotiate a U-turn while in reverse in an effort to flee the scene is inconsistent with the loss of self-control associated with this defense.” Similar facts exist here. Defendant was polite and ordinary to two witnesses prior to the homicides. He was able to drive away, return to his home at some point, buy survival supplies, and continue to avoid detection for over four days. This is inconsistent with his claim that he was subjectively suffering from an extreme emotional disturbance. Furthermore, defendant’s lost profession as a corrections officer, years prior, and current plumbing problem at his rental properties are similarly unpersuasive as they are not special or unusual circumstances as defendant would lead this Court to believe. See People v. Checo, 194 AD2d 410 (1st Dep’t. 1993) (defendant was estranged from his former wife, was experiencing business difficulties, and was emotional at the mere sight of his former wife in the company of another man). Furthermore, defendant’s explanations of the killings necessarily “impact[s] upon the sufficiency of the evidence offered to demonstrate he acted under the influence of [EED].” People v. White, 79 NY2d 900, 903 (1992) (defendant's claim of innocence does not foreclose a charge to the jury on EED, but does bear on the sufficiency of the defense). Defendant claimed at times the gun went off “accidently”. (A 354). He made reference to Tim having a gun or hitting him, which he then admitted was not possible. (A 307; 360). Forensics showed that both Patty and Tim were killed while prone and defendant left a foot print on Patty’s back. (A 151-152; A 611a, 616-618; RA 99). Even if defendant had subjectively suffered an extreme emotional disturbance, his response must be found reasonable. People v. Moye, 66 NY2d 887, 890 (1985). Defendant here sought out his victims. He worked to control Patty with manipulative messages over days.13 He challenged Tim’s manhood and said he was not going to just go away. He demanded another chance with Patty. When defendant drove to Chazy Lake he knew it was Tim’s residence, knew Tim may want to fight him, and he brought with him his loaded .357 magnum firearm. 13 Even after his examination and the summations defendant displayed this controlling tendency. (RA 41-42; 84). (CD). Both Patty and Tim were hit with initial shots that were not themselves the killing blows and after defendant took further action to kill them, he fled. Those actions, even if we are to believe defendant suffered a subjective disturbance, in reaction to his tortured relationship “was the result of [his own] malevolence rather than an understandable human response deserving of mercy.” People v. Casassa, 49 NY2d at 680-681 supra. Feelings of “anger or embarrassment or both” after a victim “insults and rejects” even while coupled with “thoughts of her being with another man” do not constitute a reasonable explanation or excuse. See People v. Croom, 13 AD3d 253 (1st Dep’t. 2004) (citing People v. Walker, 64 NY2d 741 [1984]). Comparing two other cases where appellate courts modified murder convictions to manslaughter, based on EED, is instructive. Their shocking fact patterns do not resemble the facts of this case. In People v. Liebman, 179 AD2d 245 (1st Dep’t. 1992), police arrived and found the victim stabbed repeatedly and bleeding heavily. Id. at 246. Defendant was covered in blood and unconscious on the bed. Id. at 247. Prescription bottles were open and found in the kitchen where all the windows were shut and the gas jets were turned on. Defendant’s own doctor testified that up to two years prior to the murder defendant was paranoid and had dreams where the victim would chase him. When asked if he hated his wife, defendant would tell his Doctor, “Joanie hates more.” Defendant was hyperactive and dyslexic as a child, never held jobs, and complained of being “all nervous” and “afraid of a nervous breakdown.” He complained that everyone was avoiding him and he had nightmares where he would wake up screaming. He picked at his hands, visibly trembled, and exhibited panic paranoia. Id. at 248. The hand-picking worsened to the point that they were “all bloody” and the doctor referred to his condition as “smoldering schizophrenia.” The doctor had the defendant on a plethora of medications. Just months prior defendant’s wife withdrew his $28,000 inheritance and placed it within her exclusive control. On the night of the murder she reportedly told him he should take enough medication to kill himself and as defendant was stabbing her he was screaming “You hate me.” Id. at 251. He stabbed her 51 times before overdosing on medication to the point of a multi-day coma. In People v. Roldan, 222 AD2d 132 (1st Dep’t. 1996), again a non-jury verdict was reduced from murder to manslaughter based on EED. There, defendant was a security guard who was familiar with violent gang activities in the area. He responded in a state of fear by a panicking co-worker. His partner was unable to summon additional help and was screaming that someone had just been killed. Id. at 140. Defendant rushed to the scene and his fear grew. He was outnumbered (3 against him) and recognized the young men as troublemakers at the mall. The 3 men were standing over an apparently dead man in a pool of blood and defendant believed they had just killed him. As the men approached defendant mistakenly believed the man who appeared dead was his partner. This all happened within seconds and defendant acted on his fear without deliberation.14 Id. These rare cases show defendants in vastly different situations than Pavone. The emotional disturbances underlying the murders were clearly defined in both scenarios – anger/paranoia in Liebman and fear in Roldan. In Liebman, defendant was a schizophrenic, believed his wife was out to get him, and she had just taken his inheritance and told him to kill himself. This led him to stab her 51 times and overdose into a coma. This particular type of brutality is relevant. Roche, 98 NY2d 70, 77. In Roldan, defendant was in horrible fear, had only moments to react, and was thrust into a scene he perceived as his partner lying dead in a pool of blood. These defendant’s did not, as Pavone did, act in such a methodical manner before and after the murders. As opposed to the facts above, the facts and circumstances of this case overwhelmingly support murder. Overwhelming Evidence of Murder It is apparent from the audio recordings that defendant rationally and methodically stalked Howard and Carter prior to murdering them. Defendant was 14 Roldan had also argued for a justification defense. This was rejected. The court, however, ultimately then reduced the conviction based on EED as described. clearly aware of Patty and Tim’s relationship. (A 274). This knowledge level of substantial certainty negates defendant’s claims of surprise or shock upon his arrival. A full week before the killings defendant had talked to his psychiatrist Dr. Gitlin about Tim. Then two days prior defendant left Patty a message saying “Are you with [Tim Carter]? Are you with him right now”?15 The message further revealed that he believed Patty and Tim were going to go out together that night16. The next day January 30th 2010 was Patty’s birthday, and defendant used that to try and manipulate her to contact him. By the evening hours the defendant was obsessively fixated on perceived details of Patty and Tim’s relationship that he was excluded from. Defendant left a message that said “I hope [Tim] didn’t take you out on your birthday.”17 In this same phone message defendant mentioned that someone gave him information about who Tim was. In reality defendant had prowled online to find who Tim Carter was and found his phone number and home address. The evidence showed defendant obsession developed further as he stated “I know you’re out with Tim.”18 Just prior to this call defendant had called Tim’s home number and hung up when no one answered his call. Defendant crafted details of their relationship in his own mind: “[Y]ou don’t know this guy. You’re 15 1:32 PM, 1/29/10 (CD) 16 3:33 PM, 1/29/10 (CD) 17 9:02 PM, 1/30/10 (CD) 18 11:11 PM, 1/30/10 (CD) head over heels for him…Yah it’s a new relationship he’s gonna treat you great.”19 While still not hearing from Patty defendant turned his attention to Tim and left a message on his machine.20 Defendant threatened Patty that without a returned call he would “drive [to Tim’s home] and I will wait and I will talk to him.”21 The message left on Tim Carter’s answering machine late in the evening shows a logical, lucid, and controlling defendant. “Tim, Tony Pavone. If you’re any type of a man you will return my phone calls. Let me tell you something, I’m not blaming any of this on you, this is my fault. Ok? If you can’t return my phone calls and at least talk to me I don’t know what kind of person you are. I will eventually talk to you, Ok? I might get there right now. I will look for you. I will find you. I will go sit in front of your house in Chazy Lake if I gotta. Somebody told me who your name was [sic] today. Like I said, I’m not blaming this on you. I’m ain’t [sic] looking to take anything out on you, yet. Ok, this is my fault. I treated her badly, I didn’t take care of her. But you gotta understand I love her.”22 Simply put this message shows Defendant was angry and confrontational toward Tim Carter just hours prior. He challenged Tim’s manhood and threatened him with “I’m ain’t [sic] looking to take anything out on you, yet.” (emphasis added). Immediately after this message defendant left another on Patty’s phone 19 11:27 PM, 1/30/10 (CD) 20 11:44 PM, 1/30/10 (CD) 21 11:50 PM, 1/30/10 (CD) 22 12:02 AM, 1/31/10 (CD) saying “One of you – you’re together – one of you has got to call me.” And that “this is wrong. Ok I love you.”23 Defendant continued to fixate: “I don’t know if you went to the casino, I don’t know if you went on a weekend getaway with this guy, I don’t know if you’re up to his house…”24 In the last message left for Patty defendant said “I’m not going to go away, I’m really starting to get frustrated tonight.”25 But this is not the last time we heard from defendant during the time in question. The true last remarks were left on Tim’s answering machine: “I know you’re getting these messages, I’m still looking for my girlfriend. I started out fairly calm, right now, I’m starting to get a little frustrated. I know she’s telling you not to call me. But, she’s also watching how you’re handling the situation.”26 The intonation and tone defendant uses claiming Patty as he did on this late message displays manipulation and control. Just hours before the murder, the defendant is calm, calculated, and ominously threatening. Defendant claims on appeal that Patty’s comments about sleeping with Tim when he is at the door are especially important (Appellant’s brief, pg. 40). However, Dr. Weker believed that defendant was suffering from an EED well before this time, including the phone calls the evening of January 30, into the 31st. 23 12:03 AM, 1/31/10 (CD) 24 12:27 AM, 1/31/10 (CD) 25 12:48 AM, 1/31/10 (CD) 26 1:36 AM, 1/31/10 (CD) “[I]t would be hard for me to pinpoint when he crossed the threshold, but he was significantly over the threshold for a significant portion of that that time.” (A 1484). While the older “heat of passion” defense has been replaced by EED, it is important to discern these facts from the ‘classic case’ of both defenses, where a person walks in and is surprised to find their lover in the arms of another. This case has nothing to do with shock or surprise. Defendant placed himself at this location knowing Patty was in a new relationship. (CD,11:27 PM). Importantly he admitted on cross he was fully aware violence was possible if he went to Tim’s home. (A 351). After all defendant was going to the home of his ex-girlfriend’s new boyfriend. Not only does it show rational thinking to realize violence was possible by going to Tim’s home, defendant acted on this when he brought his loaded .357 magnum with him to this altercation. Defendant also took time to cool off after speaking with Patty. He left and drove some 200 yards away, before returning to reengage the situation. The nature of the murders themselves further supports that he was not suffering from an EED. The murders were not of an especially brutal nature, and in fact were carefully carried out. Defendant, armed with a revolver carrying only 6 bullets, took two shots to enter the residence, and then two into Patty and two into Tim. The killing blows occurred when both were prone. Defendant stepped on and left a foot print on Patty’s back. (RA 99). It took intentional and considered acts to ration his ammo and utilize it in this way. This is inconsistent with an extreme emotional disturbance. The fact that defendant did not hide evidence after the murders was a simple impossibility. Between all the messages and the 911 call from Patty, defendant was clearly the perpetrator. Defendant would never have thought that by cleaning blood or taking the bullet casings, with police on the way, he would have escaped prosecution. Instead, knowing full well what he had done defendant knew any attempt to cover up the crime would be futile. Defendant then chose the only option available to him – he ran away. He not only ran, but evaded police for over 4 days. He removed his cell phone battery which helped him avoid being tracked. He also reloaded his revolver, packed a host of survival supplies, and used a fake name with the hotel he was staying at. The court charged the jury that leaving the scene may demonstrate a consciousness of guilt. (RA 86-87). No issue on appeal is raised with this instruction. In sum, defendant’s claim is refuted by overwhelming evidence, including but not limited to: the phone messages and stalking behavior; placing himself in this situation and being aware of it, bringing the loaded revolver to it; the calm and deliberate manner he approached the neighbors; his opportunity to cool off but returning; the systematic nature of the killings; the flight therefrom; the survival strategy developed immediately afterwards; and the hiding of his identity. Despite the lengthy trial, on the strength of this evidence it took the jury less than 3 ½ hours to convict. (RA 88-89).27 27 Deliberations began June 8, 2011 at 11:00 AM. The verdict was given at 2:23 PM that same day. POINT II. THE DEFENDANT RECEIVED THE MEANINGFUL ASSISTANCE OF COUNSEL Overview The trial, initially scheduled to begin in December 2010, was adjourned indefinitely in late November 2010 after defendant retained John Carney, Esq., who was given the opportunity to file his own pretrial motions. (A 8-9). Mr. Carney filed an omnibus motion on December 5, 2010, which among many things, noticed as to the affirmative defense. (A 185-187). A suppression hearing was ordered and conducted on April 4, 2011. Mr. Carney was successful in suppressing his client's attempt to plead guilty at arraignment on the indictment. (RA 107-109). After the hearing had concluded, Mr. Carney explained the depth of his work on obtaining a proper expert witness for the case. (RA 1-6). He said he had contacted 50 psychiatrists up to that point and received a response from half. (RA 1). Within two weeks thereafter he had located and decided on Dr. Jonathan Weker. While ultimately unsuccessful, he advocated for Dr. Weker’s appointment by the court in lieu of the defense having to retain him. (A 680-682). By motion dated April 26, he requested an adjournment of the trial from May 3 to May 23 for Dr. Weker to be available to testify. (RA 94-97). The court decided that motion on April 27, providing the defense expert with a favorable trial schedule. Mr. Carney was given a 7-day window with which to produce the expert testimony. (RA 98). As explained in greater detail below, the facts that Mr. Carney did not make certain objections during the course of the lengthy trial and did not supply the audio recordings or defendant’s testimony to Dr. Weker should not give rise to reversal on the ground that his representation of defendant was constitutionally deficient. Standard of Review The right to effective assistance of counsel is guaranteed both by the U.S. and State Constitutions. U.S. Const. amend. VI; N.Y. Const. Art. I, § 6. They are similar though distinctive standards and defendant raises both in his brief. Strickland v. Washington, 466 US 668 (1984); People v. Rivera, 71 NY2d 705 (1988). Defendant does not claim he was deprived of his right to counsel at a critical stage or through some conflict of interest. Rather, his claim is one of ‘actual ineffectiveness’ or that his counsel had performed inadequately. Under New York law, a defendant is considered to have been afforded effective assistance of counsel if he or she was provided with “meaningful representation.” E.g., People v. Benevento, 91 NY2d 708, 712 (1998); People v. Ellis, 81 NY2d 854, 856 (1993). The federal standard requires a two prong showing: [1] the attorney’s performance was outside the wide range of professionally competent assistance, and [2] that there is a reasonable probability that but for the attorney’s unprofessional errors, the result of the proceeding would be different. See Strickland supra., 466 US 668, 695. While slight differences between the two standards exist, both: Require that there is a real showing of true ineffectiveness and a requirement to avoid over-examination via “retrospective analysis”. People v. Guay, 18 NY3d 16 (2011); Strickland, supra. See also Baldi, 54 NY2d 137, 146 (1981) (Our most critical concern in reviewing claims of ineffective counsel is to avoid confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis.) Provide for a very strong presumption that an attorney has provided his or her client with effective representation. Strickland, 466 US 668 at 689. People v. Satterfield, 66 NY2d 796, 799 (1985). Place the burden on defendant to prove ineffectiveness and the lack of strategic reasoning for decisions as opposed to simple losing tactics. Strickland, 466 US at 693; People v. Hobot, 84 NY2d 1021, 1022 (1995) (emphasis added). With these principles in mind, this Court should refuse to find reversal should be ordered. The record shows the testimony from the investigators provided fruitful ground for the defense, which presents a strategic decision not to object. Even in the absence of a strategic decision, reversal is unwarranted. As ineffective claims generally do not require preservation, defendants commonly review and criticize a trial attorney’s performance as a means of doing an “end run” around the preservation doctrine. In assessing the validity of a Sixth Amendment claim ground on trial counsel’s failure to object, the reviewing court assesses the unobjected-to evidence and whether there are possible strategic reasons for not objecting, even if an objection might have be sustained. See People v. Pinchback, 82 NY2d 857 (1993). The record must reveal, not that counsel was error-free, but provided meaningful representation. See People v. Echavarria, 53 AD3d 859 (3d Dep’t. 2008) (counsel was effective even though he failed to object to testimony of uncharged crimes and failed to request limiting instructions). Investigators Hyman, Leavine, and Weightman testified briefly about defendant’s silence and demeanor during his transport from Broome County back to Clinton County. This testimony covered a time period that is admittedly postarrest, post-Miranda and, if objected, would be admissible only if it was determined defendant opened the door to such testimony. (A 169; 172-173; 675- 676). While counsel did not object, the record shows that the answers to these questions contained fertile evidence for defendant’s case. All three testified that defendant referenced suicide and Investigator Weightman went further and described defendant as upset and that he broke down and cried up to 3 times. (A 172). Therefore it is entirely possible it was a strategic decision to not object to these questions and defense counsel could reasonably have anticipated this testimony given the Huntley hearing and decision. In his closing remarks Mr. Carney seized on the opportunity to point to the fruits of this testimony, no-less than six times during his summation. “He never said ‘I was suffering from extreme emotional disturbance’. That would be a little fishy.” (1788). “He was suicidal the whole time…” (1794). “I want to jump out of the plane…not knowing whether he wanted to kill himself or not.” (1795). “[H]e needs time to decide if he wants to kill himself or not.” (1796). [I]f you don’t believe he’s suicidal, how about all of the other time prior to any lawyer getting involved or any EED defense or whatever, the Del Motel. He is so crazy there. He is so suicidal. He wanted to jump out of the plane.” (1805). “…realizing oh, my God, what did I do, being remorseful and wanting to basically kill yourself.” (1813). We turn now to Mr. Carney’s lack of objections to the People’s summation to statements about (1) defendant’s failure to report the incident to police after it happened and (2) his lack of emotional statements when he was brought into custody.28 (A 562-563). The absence of objection to a prosecutor’s summation rarely constitute a failure “so egregious or so clear cut and completely dispositive as to render counsel’s assistance ineffective.” See People v. Tonge, 93 NY2d 838 (1999); see also Cass, 18 NY3d 553, 564 (2012) (citing People v. Turner, 5 NY3d 476 [2005]). In Tonge, the prosecutor stated at closing that the defendant’s “conduct fit the ‘typical behavior of a sex offender’”. Tonge, supra. Counsel had made a general objection to that comment, which did not properly preserve it, and then further “failed to object to other improper remarks by the prosecutor during 28 Defendant has never raised the issue of prosecutorial misconduct on appeal. summation.” Id. Counsel’s overall efforts, however, “reflect ‘a reasonable and legitimate strategy under the circumstances and evidence presented.’” Id. It remains a strategic decision in such cases to avoid alienating the jury and to prevent calling undue attention to it. People v. Taylor, 1 NY3d 174, 177 (2003). Also, the court instructed the jury both during preliminary instructions and in its closing directions that what the lawyers had said is not evidence and is not to be considered as such. Jurors are presumed to have followed the instructions they are given. (RA 27; 85); People v. Baker, 14 NY3d 266, 274 (2010). Based on the overall evidence, Mr. Carney provided meaningful representation and further had legitimate reasons to object at the specific complained-of points. This Court should find his assistance was meaningful and proper under both constitutional standards. The record does not establish any ineffectiveness as to how defense counsel handled the expert witness While defendant narrows in on a very particular decision Mr. Carney made with regards to the expert testimony, a review of the record shows he handled obtaining, producing, and the testimony of Dr. Weker effectively. This Court has before it a record that fully shows Mr. Carney was meticulous in this regard. This is important because counsel’s performance is judged by overall performance. People v. Williams, 8 NY3d 854, 855-856 (2007). “Judge, I contacted fifty psychiatrists, got a response from about half. In Plattsburgh there were very few that were forensic psychiatrists, and I believe that we do not need a psychologist but rather a psychiatrist who has some type of murder experience.” (RA 1-2). This is record proof that counsel had adapted a logical trial strategy. He was careful about the costs to retain a psychiatrist and their problematic locales. (RA 2-3). Further counsel had been researching and verifying their courtroom experience worrying “I would say a good ninety five percent of them have never testified in court.” “The only ones I could find were in Buffalo and New York City. I will still endeavor to find anyone within a two hundred mile radius that could travel.” (RA 3). This was not ‘puffery’ either as counsel mentioned specific names such as “Dr. Charles, Dr. Ueling, Dr. Brian Joseph”. (RA 3-4). Arguably, it is far more likely Mr. Carney only obtained final commitment from an expert within a few months of trial because the facts of the case do not support EED. Furthermore counsel confirmed by email on April 11, 2011 that Dr. Weker would be their expert. (RA 91). Counsel’s subsequent attempt to have Dr. Weker’s fees paid pursuant to Section 18b shows zealous advocacy for his client. That the court then denied the request on April 26, 2011 did not delay Dr. Weker’s examination of defendant. The examination was delayed because the search was exhaustive and proved extremely difficult, not because of any ineffectiveness. Mr. Carney took great strides to accommodate Dr. Weker’s schedule. The ultimate determination that EED was inapplicable here this is because the facts do not support the defense. See Point I, supra. Defense counsel was similarly not ineffective in handling the evidence that Dr. Weker reviewed. He had been conducting an exhaustive search for an expert witness that was proving fruitless. Upon finally securing an expert, it stands to reason that it could have been a legitimate strategic decision to not present the expert with the actual recordings or defendant’s trial testimony. While this ultimately created an opportunity on cross examination, it was far better than the alternative where defendant could have been left without an expert at trial. Certainly a few questions during cross examination is a better outcome than if Dr. Weker changed his opinion after having listened to the recordings and read defendant’s testimony. Defendant contends on appeal that Mr. Carney’s argument to the jury that it was his decision not to delay trial and to only use the transcripts (Appellant’s brief p. 62) belies the assertion that this was a strategic decision. Such a statement is unfounded. Certainly, Mr. Carney would never have told the jury that he avoided having his expert listen to the CDs in fear they would change his opinion. Instead, it is far more likely he attempted to shift the blame to himself, to mask this possibility, and deflect it from his expert witness, who’s credibility was to be judged by the jury. The claim that Mr. Carney was somehow ill-prepared to deal with these recordings is baffling. On May 26, the record shows Mr. Carney had listened to the phone recordings and read the transcripts. Upon their admission into evidence but prior to them being played, Mr. Carney stated:29 “Judge, I believe the audibility is fairly good. Now it’s a question of whether the jury needs the transcripts, and in this case since the defense probably would have played these, I feel that it would aid the jury so we don’t object…I don’t object to the tape being entered into evidence nor it being played” (A 220; RA 39-40). “I would ask that the message that’s irrelevant be redacted. It’s really not important. I mean it’s some type of message from a doctor. It’s not relevant, but it’s only a couple seconds long. It’s not a big deal…I withdraw that, Judge, rather than bother…It’s very brief. I’ll withdraw that. We’ll allow it.” (A 239) Mr. Carney clearly states that, regarding the messages left on Patty’s phone, that the “audibility is fairly good” and that the transcripts would further aid the jury. His comments regarding the minor recordings on Tim's answering machine shows intimate familiarity with that recording as well. At no time during the laying of their foundation or the request to admit them into evidence did Mr. Carney indicate anything other than an acquaintance with them. No other 29 Mr. Carney simply stated “no objection” to the admission and playing of People’s 6 on May 23. (A 47). These lengthier comments were in regards to People’s 152/212 (messages left on Patty’s phone) and People’s 154/213 (messages left on Tim’s answering machine). conclusion can be drawn than at least as of this date he had listened to them and given them due consideration. Even if this wasn’t a strategic decision but instead inadvertent, “such errors as overlooking a useful piece of evidence (Hobot), or failing to take maximum advantage of a Rosario violation (Flores), do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate.” People v. Turner, 5 NY3d 476, 480-481 (2005). Furthermore, the idea that an adjournment should have been sought is also unfounded. As shown above, Mr. Carney didn’t need one. And his expert wouldn’t have either, as the trial court had ruled back in April that defendant had all the way up to June 9 to produce their expert. (RA 98). Instead, Dr. Weker was called on June 3, 2011, a full 8 days after Mr. Carney had stated on the record that he knew the audibility of the recordings was good, and 7 more days before the last possible date to produce his expert. Even ignoring the proffered reasoning above, it remains defendant’s high burden on appeal to show that his representation was not meaningful. People v. Hobot, 84 NY2d 1021 (1995). When Dr. Weker, who had the pedigree Mr. Carney needed, came to a determination that defendant suffered from an EED, defense counsel acted objectively reasonably when he refrained from pushing the issue further. See People v. Evans, 16 NY3d 571 (2011). That type of strategic decision is substantiated by the record and shows zealous advocacy for his client in light of the heavy evidence of defendant’s guilt. Mr. Carney’s attempt to divert this evidence onto some sort of personal shortcomings, as opposed to that of his expert, while unsuccessful, was not ineffective. People v. Henry, 95 NY2d 563, 566 (2000). In conclusion, the Federal and State Constitutional standards were met here. This case rests firmly in the adage that “care should be taken ‘to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis.’” People v. Flores, 84 NY2d 184 (1994) (citing Baldi, 54 NY2d 137, 146). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 US 1, 6 (2003). Counsel’s performance reviewed in its totality, while unsuccessful, was not ineffective. Baldi, at 146. The decision not to object at these other times simply “reflect[s] ‘a reasonable and legitimate strategy under the circumstances and evidence presented.’” People v. Taylor, 1 NY3d 174 (2003) (internal citations omitted). Viewing counsel’s representation in total, Mr. Carney: made cogent pretrial requests; took great strides to obtain an expert and have him paid for; developed a clear trial strategy that included a lengthy opening statement and vigorous cross examination; objected many times throughout the case; and culminated it all in a thorough closing argument that implored the jury to put aside their emotions and to rule on the evidence before them. This Court should decline to find his performance rose to a level of actual ineffectiveness under any constitutional standard. CONCLUSION For the reasons stated more fully herein the defendant’s conviction should be affirmed in all respects and therefore his appeal denied. Dated: February 26, 2015 Plattsburgh, New York Respectfully submitted, NICHOLAS J. EVANOVICH Assistant District Attorney Clinton County Government Center 137 Margaret Street Plattsburgh, New York 12901 (518) 565-4770