The People, Respondent,v.Anthony V. Pavone, Appellant.BriefN.Y.November 18, 2015STATEOF NEWYORK COURT-OF APPEALS PEOPLE OFTHE STATEOF NEW YORK, Plaintiff-Respondent vs ANTHONY v. PAVONE, Defendant-Appellant No. APL-2014-00251 APPELLANT'S REPLY BRIEF PAUL J. CONNOLLY Attorney for Appellant Office and P.O. Address 2 Wedge Road Delmar, NY 12054 PH: (518) 439-7633 FAX: (518) 691-1023 DATE COMPLETED: March 6,2015 APPELLANT'S REPLY BRIEF TABLE OF CONTENTS PAGE Table ofAuthorities .o to .o.. i Preliminary Statement .. 'I ,. to • .. • 1 Argument Point I to It It to .. • .. • • • .. .. .. .. 1 . THE PROSECUTOR'S ELICITATION OF EVIDENCE OF APPELLANT'S PRE-TRIAL EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT, HIS COMMENTS ON THAT SILENCE IN HIS SUMMATION, AND THE ABSENCE OF ANY LIMITING INSTRUCTION, DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT, TO A FAIRTRIAL, AND TO DUE PROCESS OF LAW, AND REQUIRE REVERSAL A.o The objected-to question was improper . .. .. ... .. .. .. . . .. .. .. . .. . ... .. .. .. . .. . .. .. .. .. .. . .. .. .. .. .. .. 1 B.o A new trial is the required remedy It ~............ 4 Point II .o .o .o.......................................... 11 APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE CONSTITUTION AND FEDERAL CONSTITUTION Conclusion It It It .. .. .. .. • .. .. .. .. 15 APPELLANT'S REPLY BRIEF APPENDIX PAGE Excerpts from Suppression Hearing ofAprild, 2011 to .. • • .. .. • .. • • .. • • • • • • • .. 1 Testimony of Jason Ellis .o .o .o.............. 1 Testimony of Leslie Hyman II • .. • .. .. • • • • • .. .. .. .. .. .. 3 APPELLANT'S REPLY BRIEF TABLE OF AUTHORITIES Cases PAGE People v Casassa, 49 NY2d 668 (1980), cert denied 449 U.S. 842 ",.", I H ••••• ,,' 5, 8, 9 People v Conyers, 52 NY2d 454 (1981) I •••••••••••••••••••••••••••••••••• I I • • 2,. 3 People v DeGeorge, 73 Ny2d 614 (1989) . "' ' I ••• •••••••••••••••• 2 People v Harris, 95 NY2d 316 (2000) ow ••• 9, 10 People v Massie, 2 NY3d 179 (2004) "' I ••••••••••••••• I • • • • • • 4 People v Padgett, 60 NY2d 142 (1983) I I I" I................. 6 Pe~ple v Patterson, 39 NY2d 288 (1976) affd 432 US 197 11 •••••••• 9 II.... 8, 9, 10 People v Reid, 19 NY3d 382 (2012) .. ,. I ••• II •••••••••••••••••••••• I •• 1.1 •••••••••• ,. I 4 Statutes PAGE Penal Law 125.25 " I.. I............. 9 PRELIMINARY STATEMENT Appellant submits this brief in reply to Respondent's Brief ("RB") on his appeal from an order of the Appellate Division, Third Department, entered May 29, 2014, which affirmed a judgment of the County Court of Clinton County, rendered August 7, 2011, convicting him of murder in the first degree (2 counts) and criminal possession of a weapon in the second degree. ARGUMENT POINT I THE PROSECUTOR'S ELICITATION OF EVIDENCE OF APPELLANT'S PRE-TRIAL EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT, HIS COMMENTS ON THAT SILENCE IN HIS SUMMATION, AND THE ABSENCE OF ANY LIMITING INSTRUCTION, DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT, TO A FAIR TRIAL, AND TO DUE .PROCESS OF LAW, AND REQUIRE REVERSAL A. The objected-to question was improper The question to which defense counsel objected was, "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?n (AI 320). The People urge that this question concerned Appellant's pre-Miranda silence rather than post-Miranda silence, which "is critical because pre..Miranda silence, for purposes of impeachment, is admissible in a broader array of circumstances." (RB39) (citations omitted). While the question was slightly ambiguous, it still must be held to concern post-Miranda silence. "Detective Sergeant Ellis," did not take Appellant into custody (A652-653; RBA2 1), but he was the first police contact Appellant had after the killings (A648-649). Accordingly, the J "'AU refersto the appendix to Appellant's principalBrief. 2 "RBA)' refers to the Reply Brief Appendix, i.e., the appendix to this brief. 1 prosecutor's reference to Ellis in the objected-to question was apparently an inadvertent misstatement. SWAT officers initially took Appellant into custody (A651-652), but State Police Investigator Hyman was apparently the first officer to give Appellant Miranda warnings. From testimony at the suppression hearing and trial, it appears that he took custody of Appellant a "briefperiod' after Appellant exited the motel room and placed him into a police vehicle which he entered also, and then promptly Mirandized him (RBA3-8; A652-653)~ In this regard, Hyman testified at the suppression hearing: QApproximately when, time frame of when you took custody of him did you advise him of his Miranda Warnings? A It was immediately after introducing myself when we were in the vehicle, I told him who I was, that his family was concerned about him, and I was going to advise him ofhis rights. I then read the rights to him as indicted on the video from a rights card and asked him ifhe understood them... (RBA7). . Appellant, then, was Mirandized promptly after being taken into custody. The question the prosecutor posed to Appellant concerned his exercise of his right to remain silent "when [he] was taken into custody 011 February 5" (A320). Therefore, the question concerned the post- Miranda period. This is so, though it also arguably concerned the pre-Miranda period. Even if the question only concerned the pre-Miranda period, however, it still violated at least New York's common law rules of evidence. See People v DeGeorge, 73 NY2d 614, 616- 620 (1989); People v Conyers, 52 NY2d 454, 457 (1981). The People suggest that Appellant's silence when jn police custody was used against him only for impeachment (RB39). Since 110 limiting instruction was given as to that evidence, however, it was received, not only to impeach his testimony, but as direct evidence to refute the EED defense. 2 The People also maintain that the questioning ofAppellant about his silence was unobjectionable because it "sought to ascertain more precisely how much [Appellant] remembered about the homicides and when he remembered those details, both issues that [Appellant] made relevant by his own trial testimony." (RB39) For several reasons, this argument must be rejected. First, this proffered rationale would usually, if not always, justify receipt of evidence of a defendant's failure to go to the police and confess his crime where he asserts the EED defense. Were this rationale accepted, therefore, the prosecution would usually be able to question the defendantabout his failure to go to the police after the killing and confess his crime where he asserts the EED~def~nse. The defendant's fundamental right to remain silent would thus be vitiated. The probative value of the evidence gained "by this vitiation, however, would be minimal. As explained in People v Conyers, 52 NY2d 454, 458-459, supra, for several reasons, even an innocent person who has not received Miranda warnings may choose not to talk to the police, including: an awareness that he is not obligated to speak, and that what he says may be used against him; the belief that efforts to exonerate himself would be futile; and his mistrust of law enforcement personnel. To sacrifice a right so significant for "evidence so insignificant would be a grave mistake, Moreover, as explained at AB332-33, a defendant's assertion of the EED defense does not justify or excuse the prosecution's use ofhis post-Miranda silence about the charged crimes. Nor should the prosecution be able to use pre-Miranda silence against a defendant who asserts the EED defense, given the multiple reasons, cited above, why even an innocent person would choose not to talk to the police. Indeed, one who ultimately asserts the EED defense could be especially reluctant to tell the police his version of the charged crime, for that defense assumes 3 "AB~" refers to Appellant's principal Brief. 3 that the defendant killed the victim intentionally and without justification, so that the defendant's version will necessarilybe self-incriminating. Further, though the People suggest that Appellant opened the door to the subject ofwhen he recalled the events of the killings (RB39), that subject was only raised by Appellant in answering the prosecutor's improper question as to why he did not confess when taken into custody (A320-32 1). Accordingly, Appellant opened no door to the subject of his failure to confess to the police; rather, the district attorney himself tried to open it by his improper questioning. ComparePeople v Reid, 19 NY3d 382, 387-389 (2012)(defense counsel opened door to otherwise inadmissible evidence by his questioning ofwitnesses); People v Massie, 2 NY3d 179, 181-185 (2004)(defense counsel opened door to evidence of a suppressed line-up identificationby arguing that a suggestive in-court identificationwas precededby a suggestive photo identification while not mentioning the intervening line-up identification, which was not shown to be suggestive). Thus, the People's present argument that Appellant opened the door to evidence ofhis failure to confesshis crimes to the police is baseless. B. A new trial is the required remedy We tum now to the question of whether, as the Appellate Division majority concluded, the evidence against the EED defense was overwhelming, and the error therefore harmless. The People argue that, in referencing evidence that it deemed "entirely inconsistent" with the EED defense, the Appellate Division "was not saying that the evidence ... must automatically defeat the defense." (RB41) The plain meaning of"entirely inconsistent," however, is "completely inconsistent" or "utterly irreconcilable." Accordingly, if, in the. eyes of the Appellate Division majority, undisputed aspects ofAppellant's conduct were "entirely inconsistent" with the defense, it would follow that, as a matter of law, the evidence could not establish the defense. 4 This court, however, has recognized that, even where some evidence in the record is arguably inconsistent with a defendant acting under an EED, such as seemingly rational conduct before the killing, bringing a weapon to the site of the killing, and even planning the killing, the fact-finder could nevertheless reasonably find an EED established by a preponderance of the evidence. See People v Casassa, 49 NY2d 668, 676 (1980), cert denied 449 U.S. 842, and discussion at AB35-37. Therefore, even if some of Appellant's conduct was arguably inconsistent with the EED defense, a strong counter-argument may be made that that conduct was not inconsistent with the defense. Accordingly, that conduct does not support the conclusion that the evidence against the defense was "overwhelming" - especially in light of the ample evidence, discussed at AB37-41, demonstrating that Appellant was in the throes of overpowering emotion at the time of the killings. Indeed, if the Appellate Division's reasoning were applied to the facts in People v Casassa, supra, the evidence against the conclusion that the defendant there was .actingunder an EED would be deemed "overwhelming," and the trial court's acceptance of that element of the defense would be deemed erroneous. Yet, this court expressly found in Casassa that, in this part of its findings, the trial court "properly applied" "[t]he distinction between the past [i.e., heat of passion] and present law ofmitigation...." Id. at 676. Appellant has argued at length that the Appellate Division's conclusion that the trial court properly submitted the EED affirmative defense to the jury is inconsistent with its conclusion that the evidence against that defense was overwhelming. (AB45) In urging that those two positions of the Appellate Division are consistent, the People assert, "[I]t is entirely possible that an EED charge may be required when it is still overwhelmingly unsupported,' but proffer no authority that so holds. The People's argument is not persuasive. If a reasonable person, viewing 5 the evidence in a light most favorable to the defense, could have found the BEDdefense supported by a preponderance of the evidence (which is the test for submission of the EED defense charge, see People v Padgett, 60 NY2d 142, 144-145 (1983)), then the evidence against that defense was not overwhelming, Here, the jury, so viewing the evidence, certainly could have found the EED defense thus established. For example, the jury could reasonably have rejected the testimony ofprosecution psychologist Kirschner - perhaps because he was a "hired gun" who testified for the prosecution 90 percent of the time and only infrequently found the BED defense to be established (A458-461)~ or just because they found him incredible based upon his demeanor- and accepted that ofdefense psychiatrist Weker and Appellant, and thus have found both elements of the defense established by a preponderance of the evidence, Indeed, the jury could reasonably have made these findings on a completely unbiased considerationof the evidence. The People urge that Appellant's claim at trial that the gun went off accidentally, and that Carter had a gun or hit him, undermines his claim to have acted under an BED. (RB45) Even the prosecution expert, Kirschner, however, admitted that Appellant was not faking an BED (A5l 0- 511). Thus, those fleeting claims by Appellant at trial, which he also contradictedand admitted were not possible (A307; 360), were most likely the product of the confused mental state and poor recollection to be expected of one who experienced an EED. Indeed, the defense expert, Weker, observed that it is common to have difficulty recalling traumatic experiences, and for those suffering from PTSD - which Appellant was (A453-454) - to be unable to recall germane aspects of events (A421-422). Contrary to the People's suggestion (RB48-49), the record does 110t establish that Appellant was aware of the nature or extent of Howard's relationship with Carter. Rather, while 6 he strongly suspected they had some romantic relationship, he did not know that they were physically intimate until he saw Howard, wearing only a robe, in Carter's residence, where she made the crude, taunting, and provocative remark to him about having sexual relations with Carter right in front ofhim (A274; 294; A301-302; 349; 519). The People urge that Appellant "admitted on cross he wesfully aware violence was possible if he went to Tim'8 home. (A35 1)." (RB 52) (emphasis in original). This assertion is misleading; Appellant did not use the language "fully aware." The pertinent testimony is this: [District Attorney]: It's your testimony that when you went up to Tim Carter's house on January 31, 2010, you had no intention ofcausing physical harm to either one of them? A No, I can't say no physical harm ifTim ... Q Do you recall... A If Tim had come out after me. Q What's that? A IfTim had come out and wanted to fist fight me or something, I can't guarantee I wouldn't have fought with him, but I didn't go up there specifically. Tim wasn't at fault. As far as I knew, Tim didn't even know about me. I didn't even know ifPatty told Tim about me (A351-3S2). Thus, Appellant was really making the unexceptionable remark that, ifCarter had challenged him to a fist fight, he might have taken him up on the challenge. This does not mean that he anticipated or expected violence, but merely that he thought it possible - as it would be in virtually any situation. Also, the People make much of the fact that Appellant brought his handgun to the scene, suggesting that this means that he planned violence there (RB52). The trial evidence, however, showed that he was bringing his gun with him in this period even to such places as his psychiatrist and his bank, for fear of being attacked by a tenant he had evicted (A278-283; 292; 7 327-328). Accordingly, that he brought his handgun to the scene does not prove that he planned to use it there. Asserting that the homicides were not carried out in an especially brutal way, and that Appellant left the scene briefly before returning and ultimately committing them, the People urge that these circumstances are inconsistent with Appellant acting under an EED (RB52-53). This argument is infirm for at least two reasons. First, the first premise, that the homicides were not carried out in a highly brutal way, is mistaken; indeed, they were terribly brutal. As to the second premise, the law is clear that "[a]n action influenced by an extreme emotional disturbance is not one that is necessarily ... spontaneously undertaken," People v Patterson~ 39 NY2d 288 303 (1976) afr~ 432 US 197, and that the presence ofa "cooling off period" is not necessarily inconsistent with acting under an BED. People v Casassa 49 NY2d 668, 676, supra (citations and internal quotation marks omitted); see also discussion at AB36-37. In any case, here, there was ample evidence, summarized at AB38-41, that the killings were not planned, but the products of sudden and uncontrollable emotions, Evidence supporting the contrary view, while not non-existent, was hardly "overwhelming." The People also urge that the evidence against the second element of the EED defense was overwhelming (RB45-48) - though the Appellate Division appeared to base its conclusion that the evidence against the defense was overwhelming primarily on analysis of the evidence pertaining to the first element, namely, the existence of an extreme emotional disturbance. See 1 AB34 n l l. It must be emphasized here that the second element is that the emotional disturbance - not the killing itself - was a "reasonable" or "understandable" response to the circumstances perceived by the defendant, deserving of a measure ofmercy or mitigation, even if his , 8 perceptions were irrational." See People v Harris, 95 NY2d 316, 320 (2000); People v Casassa, 49 NY2d 668.,678-80, supra; Penal Law 125.25(1)(a). A jury's finding that this second element is established amounts virtually to its exercise of a mercy-dispensing function. See Casassa at 679. By its very nature, the question ofwhether a defendant's extreme emotional disturbance was understandable under all the circumstances, warranting a measure of mercy, will usually be a factual one properly entrusted to the jury. Rarely, if ever, is it appropriate for an appellate court, which has neither seen nor heard the defendant's live testimony, to rule as a matter of law that the evidence against this element is overwhelming. See generally People v Patterson, 39 NY2d 288, 301, supra. In arguing that the evidence against the second element was overwhelming, the People urge that Appellant's response was not "reasonable" (RB45-46), which, again, in this context means understandable and deserving of a measure ofmercy. See Casassa at 679. To support their position, the People cite the evidence that he "sought out his victims," "worked to control Patty with manipulative messages over days," "challenged Tim's manhood," and "demanded another chance with Patty." (RB45) Here, it seems the People may misapprehend what must be "reasonable" to satisfy the second element of the defense - specifically, it is the defendant's emotional disturbance, not his conduct. See People v Harris, 95 NY2d 316, 320, supra; Pellal Law 125.25(1)(a). Contrary to the People's position, the conduct of Appellant they cite does not inarguably, or even arguably, establish that his extreme emotional disturbance was not reasonable or understandable. Indeed, the evidence supporting this second element of the defense was strong. Appellant's situation included the following: he had lost his career due to a vicious assault by a prison inmate; he had become socially isolated; he was paranoid; he was diagnosed with PTSD 4 Obviously, a non-justifiable homicide can never be reasonable or understandable. 9 and major depression; he was trying desperately to resolve a plumbing problem for days that had left several ofhis tenants without water, causing him to lose sleep and work for hours in the cold outdoors; he had reason to believe, though he was initially not certain, that his girlfriend of some 9 years, for whom he had left his wife of about 20 years, had left him for another man; he was ill a state ofhigh tension and nervous agitation over his girlfriend; when he went to the residence of her new friend, he observed her clad only ill a bathrobe; when he pleaded with her to be allowed to stay, she taunted him with a crude remark about having sexual relations with her friend "right in front" ofhim. Surely, it would not be at all unreasonable for a jury to find that, giventhese peculiar circumstances, Appellant's emotional disturbance was humanly understandable, and thus deserved mercy. See People v Harris, 95 NY2d 316,320-321, supra. To be emphasized is that the issue here is not whether the jury was bound to reach that conclusion, but only whether the evidence· contradicting it was Qverwhelmillg. It was not. This is especially so, given that, as noted above, the determination is largely a matter of sentiment or feeling intended to be made by the trier of fact, which has had the opportunity to see and hear the defendant's testimony. See generally People v Patterson, 39 NY2d 288, 301, supra. Finally, in considering the Appellate Division's conclusion that the evidence against the EED defense was overwhelming, it must be recalled that Appellant presented a duly qualified psychiatrist whose expert opinion was that he was acting under an EED for which there was a reasonable explanation or excuse. Of course, the jury was entitled to reject this view in favor of the contrary view of the prosecution's expert. The very fact that the defense presented this expert opinion, however, further contradicts the Appellate Division majority's view that the evidence against the defense was overwhelming. 10 POINT II APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE CONSTITUTION AND FEDERAL CONSTITUTION The People appear to urge that defense counsel may have had a strategic reason for not objecting to the prosecutor's elicitationof evidence of Appellant's pretrial silence, namely, that defense counsel wanted to present to the jury evidence of 110W distraughtAppellantwas at the time ofhis arrest, perhaps thereby supporting the inference that he was also emotionally disturbed at the time of the homicides, some five days earlier. (RB57-59) Initially to be noted is that any such inferencewould be weak at best, given the passage of time since the killings, and given the likelihood that Appellant's distress when taken into custody was due to the 'fact ofhis apprehension and the prospect ofpunishment. Accordingly, the value to Appellant of evidence of his mental state when taken into custody was minimal. In any case, to present to the jury such evidence, it was not necessary, nor even helpful, to also present evidencethat, after the homicides, Appellant did not disclose his EED defense to the police or otherwise discuss his emotions at the time of the homicides. Accordingly, the People's argument is baseless. Plainly, there was no possible strategicreason for defense counsel to fail to object to all but one instance in which the prosecutor elicited evidence of Appellant's failure to tell the authorities before trial about his mental state at the time of the homicides. The People urge that defense counsel may not have objected to the prosecutor's improper remarks on summation regarding Appellant's pre-trial silence to avoid calling undue attention to them. (RBS9-60) Had the prosecutor only once drawn the jury's attention to Appellant's pre-trial silence, the claim that defense counsel had a strategic reason fornot objectingwould make more sense. But where, as here, the prosecutortwice urges the jury to draw all improper and 11 prejudicial inference against the defendant (A561-563), defense counsel needs to object and request a curative instruction, for it is unlikelythat the jury will overlook the pro.secutor's repeated remarks. Moreover, defense counsel was himself at fault for being in the position ofhaving to either object to the prosecutor's improper summation arguments or to acquiesce to them. He should have objected to the prosecutor's elicitation ofevidence ofAppellant's exercise ofhis pre-trial right to silence. Once that evidence was elicited, he should have moved to strike it. Finally, once that evidence was received and not stricken, he should have requested the court, before summations, to forbid the prosecutor from commentingon it to the jury. This was a series ofblunders, not a "strategy." Also to be considered in deciding whether counsel provided effective assistance is that he did not request an instruction to the jury that Appellant had no obligation to go to the police after the homicides to explain his EED defense or to explain the defense when taken into police custody, and to admonish the jury to draw no inference from his failure to so disclose the defense. This would at least have done something to prevent the jury from inferring from the evidence of that failure that Appellant concocted the EED defense. The argument that defense counsel could have feared that such an instruction would only call more attention to the evidence of Appellant'spre-trial silence is unavailing, TIle prosecutor deliberately elicited this evidence to create such an inference, and, on his summation, twice called this evidence to the jury's attention and urged the jury to draw that inference. Accordingly, a charge forbidding the jury to draw that inference could only have helped Appellant. That defense counsel did not request such an instruction, therefore, suggests that 11e was not aware that the prosecutor's remarks were 12 improper and that the jury could n~~ properly draw an inference against the BED defense from Appellant's pre-trial silence concerning it. The People also appear to urge tllat the prosecutor's summation comments were innocuous because the court instructed the jury that what counsel said was not evidence. (RB60) This instruction, however, would have done nothing to prevent the jury from accepting the prosecutor's invitation to infer from Appellant's pre-trial failure to disclose to the authorities his mental state during the homicides that the EED defense was concocted. Accordingly, this instruction is irrelevant to the ineffective assistance of counsel argument. The People claimthat defense counsel purposely withheld the phone recordings (though not the transcripts thereof) from Weker, the defense psychiatrist, because they undermined the EED defense and he feared that ifWeker had them, he might change his opinion about the defense. (RB62) This argument is infirm for several reasons, First, the record belies it, Defense counsel himselfrepresented to the court an entirely different reason for not giving the recordings to Weker. He told the trial judge that he did not have Weker listen to Appellant's calls to Howard and Carter because he (defense counsel) received them from the prosecution only after Weker had already prepared his report, and he did not want to delay the trial by delaying Weker's testimony so he could listen to them (A533-534). If the People's argument were accepted, it would necessarily follow that defense counsel misled the court about why he did not have Weker listen to the recordings. Absent evidence to the contrary - and there is none - it should be presumed that defense counsel was honest with the court.5 Also, it is undisputed that, though the prosecution gave the recordings to Appellant's first attorney, Meconi, Appellant's second attorney, Carney, did not have them, and did not even ask 5 Defense counsel also made similar remarks to the jury in an attempt to attenuate the prejudice caused by his failure to provide Weker with the recordings (A683). 13 for them, until "until the middle of the trial" (A534) (quoting the district attorney). Counsel's failure to provide the recordings to Weker could not have been the result of any strategic decision based on the subtleties ofAppellant's voice on the recordings until counsel had heard them, which he could not have done until "until the middle of the trial" (A534), and even after Weker had prepared his report (A532-533). Simply put, defense counsel blundered in not obtaining and listening to the recordings of Appellant's calls to Howard and Carter long before trial. It was because he did riothave them that he did not provide them to Weker before Weker prepared his report, thereby leaving Weker exposed to devastating cross-examination. Again, counsel's blunders should not be confused with "strategy." The People urge this court to reject Appellant's position that defense counsel "was ill prepared to deal with these recordings...." (RB63) They point out that the record shows that by May 26 defense counsel himselfhad apparently listened to them. (RB63) Trial started May 9 with jury selection, which ended May 11, the jury was given preliminary instructions May 12, and testimony began May 23. Obviously, defense counsel should have listened to and actually been familiar with these recordings long before trial, and before Weker interviewedAppellant and prepared his report. Moreover, and especially important, is that because defense counsel, according to the district attorney himself, did 110t have the recordings "until the middle of the trial" (A534), he did not provide them to his defense expert for his use in preparing his report. Plainly, counsel did not deal appropriately with these recordings. The People point out that, as of May 26, defense counsel had apparently heard the recordings and that Weker did not testify until June 3, implying that counsel.had an opportunity to provide them to Weker before he testified. (RB63-64) In a colloquy with the court and 14 prosecutor, defense counsel claimed that he did not provide the recordings to Weker after receiving them because Weker had already written his report and he would have had to "go home" to listen to the recordings (A532-534). Whatever the merits of this odd claim, the only reason defense counsel found himself in this situation, with his expert having written his report without listening to the crucial recordings, is that counsel had not ensured that he himself had the recordings long, or even shortly, before trial. Again, therefore, Weker's ill-preparedness resulted, not from any strategy, but from counsel's ill-preparedness. CONCLUSION For the foregoing reasons, and those in Appellant's Brief, the Appellate Division order must be reversed, the judgment vacated, and a new trial conducted. DATE: March 6, 2015 PAUL . CONNOLLY, ESQ. Attorney for Appellant Office and P.O. Address '. 2 Wedge Road Delmar, NY 12054 PH: (518) 439-7633 15 REPLY BRIEF APPENDIX PEOPLE V. ANTHONY V. PAVONE PAGE 11 Direct - Jason Ellis 1 verify that it's a recording that you listened to? 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A Yes, I did. Q When did you place ,your initials on it? A This morning when I got here. MR. WYLIE: Your Honor, at this time I move People's Exhibit 7 for the purposes of this hearing only into evidence. MR. CARNEY: I have no objection, your Honor. I've listened to it. THE COURT: Received. MR. WYLIE: Your Honor, it's my understanding that the court has already listened to that recording, and it wouldn't be my intent to play that recording. THE COURT: Does the' defense wish to have it played? MR. CARNEY: No, your Honor. I think we've all heard it. THE COURT: Very well. MR. WYLIE: At the conclusion of yqur telephone 20 communication with Tony, the defendant, what action, if any, 21 did you take? 22 A I was in an armored vehicle. When' he surrendered, I 23 got out of that and walked up to him and introdUced myself. 24 25 Q A Did he remain in your custody following that? No, he was turned over to other officers on the scene. PEOPLE V. ANTHONY V. PAVONE PAGE 12 End Direct - Jason Ellis 1 Start Cross - Jason Ellis 2 Q At any point in time during the negotiations, did you 3 advise the defendant of his Miranda warnings? 4 5 A Q No, I did not. Is there a 'reason why you didn1t advise him of his 6 Miranda warnings? 7 A I was there negotiating a barricaded subject, and I 8 wasn't interrogating about the case. 9 10 11 12 13 14 15 . 16 Q A Q A Your pUI:pOse was to get him to exit the room? Yes. With no ham to himself or to law enforcement? That's correct. MR. WYLIE: Thank you, your Honor. I have no further questions of the witness. THE COURT: Mr. Carney? MR. CARNEY: Detective, would it be fair to say 17 that he indicated that he intended to conmit suicide or at 18 least thought about comrncitting suicide several times during 19 the negotiations? 20 21 A Q Yes. Isn't it a fact he asked you to take a Will from his 22 truck and slip it under the door and try to legally prepare 23 that Will? 24 25 A Q Correct. He did so because he indicated he was considering . ~,{JII' Z PEOPLE·V. ANTHONY V. PAVONE PAG~: 18 Direct - Leslie T. Hyman 1 since 1996. In that capacity I assist our stations and other 2 agencies to coordinate the investigation of violent crimes 3 providing a variety of support services including forensic 4 telephone work, lead desk work, and the coordination of search 5 warrants in major case investigation. 6 Q Sir, did there come a point in time on February 5th of 7 2010 in the early morning hours where you were called out to a 8 scene at the Del Motel in Kirkwood? 9 10 A Q Yes, sir, there was. Could you please just identify to the court what your 11 response to that location entailed? 12 A I was contacted by my counte~t Senior Investigator 13 John Donohue from the Troop B major crimes unit and apprised 14 of a situation involving an alert that had been posted on an 15 Anthony Pavone. I was familiar with that alert. ·r was then 16 apprised that the vehicle he was operating and.was detailed in 17 that alert was located at the Del ~tel, and then I was 18 apprised of certain other aspects of the investigation that 19 required some specific assistance from me and members of my 20 unit particularly with respect to active investigation ongoing 21 here in Troop B. I then responded to the scene, determined 22 that a perimeter had been .established, that the Broane County 23 Sheriff's Department was the lead agency with respect to the 24 execution of any potential arrest warrant that was in place at 25 the t~e and then coordinated with Detective Sergeant Ellis PEOPLE V. ANTHONY V. PAVONE PAGE 19 Direct - Leslie T. Hyman 1 who was going to be the lead negotiator with respect to 2 getting h~ all the available information to conduct a 3 successful negotiation. 4 Q At the point in time where you became aware fran 5 members of Troop B, the violent crimes unit, did you learn 6 there was an actual arrest warrant that had been issued for 7 Anthony Pavone's arrest? 8 A At that time I was apprised it was in process ~ I 9 later learned one had been obtained. 10 11 12 Q A Q Was that prior to the negotiations occurring? Yes, sir. Did there come a point in time where you came into 13 contact with an individual that was held up in the Roan 20 of 14 the Del Motel? 15 16 17 A Yes, sir, there did. Q What did that consist of? A Mter Mr. Pavone exited the room, was taken into 18 custody by myself and a Deputy Andres from the Broome County 1-9 Sheriff's Department had coordinated his transport, we placed ·20 him in the Sheriff's Department vehicle that had an active 21 recording device. I had an active recording device, and we 22 transported him from the Del Motel back to the 'SP Binghamton 23 barracks ,a short distance away. 24 Q Where was the individual you've identified as Mr. 25 Pavone, is he in the courtroom today? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ·16 17 18 19 20 21 22 23 24 25 PEOPLE V. ANTHONY V. PAVONE PAGE 20 Direct - Leslie T. Hyman A He is, sir. Q And could you just identify him? A He's the gentleman sitting right there, bald head, beard at the defense table. Q And did there come a point in time, let me ask you this. How much time elapsed from when he exited the motel room to when you took custody of him? A It was a brief period, sir. I couldn't be totally accurate. I was not there when he was taken into custody. I arrived to the rear of the motel shortly thereafter. He was handcuffed at that time, and he was placed. in the back of the vehicle as I got in. Q Did you ride in that vehicle back to SP· Binghamton? A I did. Q And were you driving or were you a passenger? A I was a passenger. Q Where were you. seated, and where was the defendant seated? A I was in the front passenger seat, and the defendant was alone in the rear. Q You indicated that that vehicle, that Broome County Sheriff's Department vehicle that transported Mr. Pavone had an audio recording device activated? A It did, sir. Q You also had an auelio reco.rding device? PEOPLE V. ANTHONY V. PAVONE PAGE 21 Direct - Leslie T. Hyman 1 2 A Q I did, sir. I'm going to show you what's been marked as People's 3 Exhibit 8 and 9 respectively, if you could identify 8 first 4 and then identify 9 after? 5 A 8 is a copy that I've reviewed of my digital recording 6 from a digital recorder I had on my person during the course 7 of the transport. And 9 is the video recording from the on 8 board equipment in the vehicle in which we transported Mr. 9 Pavone. 10 Q Did you have an opportunity over the last yesterday or 11 today to review each of those recordings'? 12 13 A I did, sir. Q And are they thorough and accurate reflections of the 14 time period from when you came into your recording of People's 15 8 when you came into contact with the defendant on February 5, 16 2009? 17 18 19 20 A They are. Q Through the transport period? A They are, sir. Q And People's 9 would be the time frame when he was 21 placed in the vehicle? 22 23 24 25 A Yes. Q To SP Binghamton? A Correct. Q What's the distance from the Del Motel in Kirkwood to PEOPLE V. ANTHONY V. PAVONE PAGE 22 Direct - Leslie T. Hyman 1 SP Binghamton station?· 2 3 A Q It's less than five ~les, sir. Did there cane a point in time when you tenninated 4 your recording, turned your recording device off? 5 6 7 A Q A Yes, sir. When did that occur? It was in the vehicle. I tenninated it after .advising 8 Mr. Pavone of his rights. 9 Q That leads me into my next line of questioning for 10 you. Did there come a point in time where you advi.sed Mr. 11 Pavone of his Miranda warnings? 12 13 A Q Yes, sir, there did. Approximately when, time frame of when you took 14 custody of him did you advise him of his Miranda warnings? 15 'A It was after introducing myself when we were in the 16 vehicle, I told him who I was, that his family was concerned 17 about him, and I was going to advise' him of his rights. I 18 then read the rights to him as indicated on the video from a 19 rights card and asked him if he understoocl them. I received 20 an affinnative response from the rear. Then I asked him if he 21 wanted an attorney, and I could not hear a response. 22 Q When you say you could not hear a response, why was 23 that? 24 25 A Q The vehicle was noisy. IX> you know if he responded in any manner? PEOPLE V. ANTHONY V. PAVONE PAGE 23 Direct - Leslie T. Hyman 1 2 A Q I do not .. Did you follow that inquiry up with an additional 3 inquiry as to whether he wanted an attorney? 4 A I did. As we were bringing him into the station, I 5 asked him again if there's anybody he wanted to .speak to, .if 6 he understood his rights at that point. After bringing him 7 from the vehicle' into the interview roan, I asked him if he 8 wanted to call anybody. He said no, and I asked him if he 9 understood his rights. He said that he did. 10 Q At any point in time did you execute a written Miranda 11 warning waiver? 12 13 14 A I did not. Q Is there a reason why you did not do that? A At that point I was going to leave the case interview 15 to those who were responding from B Troop to conduct that as 16 well as incidents for any other matter that would have been 17 appropriate under the law at that time. 18 Q And you're familiar with case law, Senior 19 Investigator, that once an arrest warrant is issued and that 20 perso~ taken into custody, their right to counsel attaches, 21 correct? 22 23 A Q That's correct. During the time period that you were with Mr. Pavone, 24 did you make any inquiry of him regarding the crimes that are 25 alleged to have occurred in Clinton County?