The People, Respondent,v.Luis Ortiz, Appellant.

Brief

N.Y.November 18, 2015

To be argued by: JORDAN CERRUTI (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LUIS ORTIZ, Defendant-Appellant. APL-2015-00004 BRIEF FOR DEFENDANT-APPELLANT LUIS ORTIZ RICHARD M. GREENBERG, ESQ. JOSEPH M. NURSEY, ESQ. JNursey@appellatedefender.org Attorneys for Defendant-Appellant Luis Ortiz OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 by: JORDAN CERRUTI, Esq. Of Counsel: Jordan Cerruti Jones Day 222 E. 41 st Street New York, New York 10017 (917) 797-5089 February 18, 2015 i i TABLE OF CONTENTS PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ..................................................................................... 2 INTRODUCTION .................................................................................................... 3 STATEMENT OF FACTS ....................................................................................... 9 A. Evidence Admitted to Show Luis Ortiz Used a “Dangerous Instrument ............................................................................................. 9 B. Mistaken Statement Made by Defense Counsel at Arraignment ....... 15 ARGUMENT .......................................................................................................... 25 POINT ONE ............................................................................................................ 25 THE DOCTRINE OF COLLATERAL ESTOPPEL BARRED THE INTRODUCTION OF EVIDENCE OF THE USE OR THREATENED USE OF A “DANGEROUS INSTRUMENT” ....... 25 POINT TWO ........................................................................................................... 29 THE MISTAKEN STATEMENT MADE BY DEFENSE COUNSEL AT ARRAIGNMENT SHOULD NOT HAVE BEEN SUBMITTED INTO EVIDENCE: DEFENSE COUNSEL INFORMED THE COURT THE STATEMENT WAS INCORRECT; ITS SUBMISSION FORCED DEFENSE COUNSEL TO BECOME A FACT WITNESS IN VIOLATION OF THE ADVOCATE-WITNESS RULE; AND THE PROSECUTOR MATERIALLY MISREPRESENTED DEFENSE COUNSEL’S TESTIMONY TO THE JURY ................. 29 ii A. The Trial Court Erred in Allowing The Mis-Statement Defense Counsel Made at Arraignment into Evidence at Trial ....................... 30 B. The Trial Court Should Have Granted Defense Counsel’s Motion for a Mistrial Once It Became Necessary For Defense Counsel To Become a Fact Witness At Trial ..................................... 33 C. The Prosecutor In Summation Materially Misrepresented Defense Counsel’s Stipulation Testimony To Appear As If She Verified His Impeachment ................................................................. 36 D. All Aspects Of This Issue Are Properly Preserved For This Court’s Review ................................................................................... 38 CONCLUSION ....................................................................................................... 41 ii TABLE OF AUTHORITIES Page CASES Ellis v. Broome County, 183 A.D.2d 861 (3d Dept. 1984) .................................................................. 33, 36 People v. Acevedo, 69 N.Y.2d 478 (1987) ......................................................................................... 28 People v. Ashwal, 39 N.Y.2d 105 (1976) ......................................................................................... 37 People v. Berroa, 99 N.Y.2d 134 (2002) ............................................................................. 33, 34, 38 People v. Calabria, 94 N.Y.2d 519 (2000) ................................................................................... 37, 38 People v. Cassas, 84 N.Y.2d 718 (1995) ......................................................................................... 31 People v. Goodman, 69 N.Y.2d 32 (1986) ........................................................................................... 27 People v. Hernandez, 62 A.D.3d 401 (1st Dept. 2009) ......................................................................... 35 People v. Kallamni, 14 A.D.3d 316 (1st Dept. 2005) ......................................................................... 31 People v. O'Toole, 22 N.Y.3d 335 (2013) ............................................................................. 26, 28, 29 People v. Ortiz, 114 A.D.3d 430 (1st Dept. 2014) ............................................................. 1, 34, 38 -iii- People v. Ortiz, 69 A.D.3d 490 (1st Dept. 2010) ........................................................................... 9 People v. Townsley, 20 N.Y.3d 294 (2012) ......................................................................................... 33 S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 (1987) ......................................................................................... 33 Williams v. Brooklyn El. R.R., 126 N.Y. 96 (1891) ............................................................................................. 37 STATUTES N.Y. Penal Law § 140.25 (1) (c) .............................................................................. 10 N.Y. Penal Law § 140.25 (2) ......................................................................... 1, 10, 25 N.Y. Penal Law § 140.30 ......................................................................................... 10 N.Y. Penal Law § 140.30 (3) ................................................................................... 25 N.Y. Penal Law § 160.15 (3) ................................................................................... 11 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Bronx County IND. NO. 3044/06 LUIS ORTIZ, Defendant-Appellant. PRELIMINARY STATEMENT This is an appeal from a judgment of conviction rendered on January 24, 2011, by the Supreme Court, Bronx Count (Justice Webber). Luis Ortiz was convicted of one count of burglary in the second degree, pursuant to N.Y. Penal Law § 140.25 (2). The Trial Court imposed a sentence of imprisonment of twenty- three years to life. No stay of execution has been sought. Mr. Ortiz is currently serving his sentence. The Appellate Division, First Department, affirmed Mr. Ortiz’s conviction on February 4, 2014. People v. Ortiz, 114 A.D.3d 430 (1st Dept. 2014). The Honorable Robert S. Smith granted leave to appeal to the Court of Appeals on December 22, 2014. -2- QUESTIONS PRESENTED 1. Whether the Trial Court erred in not precluding evidence of the “use of a dangerous instrument,” which was barred by the doctrine of collateral estoppel? 2. Whether the Trial Court erred in allowing defense counsel’s mistaken statement made at arraignment into evidence as a prior party admission, whether the Trial Court erred in denying the defense motion for a mistrial when the prosecution’s introduction of this arraignment statement necessarily made defense counsel a witness, and whether the prosecutor’s misrepresentation during summation of defense counsel’s stipulated testimony deprived Luis Ortiz of a fair trial? -3- INTRODUCTION Luis Ortiz was tried twice for events surrounding an altercation with Colpo Manuel Valenzuela, Valenzuela’s girlfriend Pura Nunez, and his nephew Jose Henrique Colon in their Bronx apartment building. At his first trial, Mr. Ortiz was acquitted of burglary in the first degree and robbery in the first degree, and convicted of burglary in the second degree. The Appellate Division reversed the conviction because of prosecutorial misconduct. At the second trial, Mr. Ortiz again was convicted of burglary in the second degree. The trial was about two very different versions of events. Mr. Ortiz explained that he was looking for an apartment to rent and ended up getting into a fist fight with Mr. Valenzuela after Mr. Valenzuela harassed Mr. Ortiz’s girlfriend. The complaining witnesses alleged an armed break-in with a razor. The case turned on the credibility of each side’s witnesses and whether the jury believed the prosecution’s version of events, and rejected the defense version, beyond a reasonable doubt. Luis Ortiz’s Testimony Luis Ortiz testified in his own defense and explained that on July 20, 2006, accompanied by his girlfriend, Jacqueline Martinez, he was looking for a room to -4- rent in the Bronx neighborhood where his sisters lived. A. 355-58, T. 320-23. 1 At his sister’s advice, Mr. Ortiz was trying to locate the superintendents of apartment buildings on various blocks in her neighborhood to inquire about renting a room. A. 357-58, T. 322-23. Mr. Ortiz and Ms. Martinez arrived at the apartment building relevant to this case with the intention of inquiring whether there were any rooms to rent in the building. A. 358, T. 323. Mr. Ortiz rang a first floor bell, and someone buzzed them into the lobby of the building. Id. Once Mr. Ortiz and Ms. Martinez were inside, they saw Mr. Valenzuela open the door to his apartment, which was close to the lobby door. A. 359, T. 324. Mr. Ortiz assumed Mr. Valenzuela was the person who had let them in, and Ms. Martinez asked Mr. Valenzuela whether there were any rooms to rent in the building. Ms. Martinez spoke with Mr. Valenzuela in Spanish, and he began flirting with her, saying “fresh things.” A. 359-61, T. 324-26. Addressing Ms. Martinez, Mr. Valenzuela insulted Mr. Ortiz’s ethnicity, asking her multiple times “what’s a pretty girl like you doing with a white man looking for a room?”, mistakenly thinking Mr. Ortiz was not Hispanic and did not speak Spanish. A. 361, T. 326. 1 Citations from the trial transcripts are double cited with the page numbers from both the accompanying Appendix and the original transcripts. The Appendix is cited as “A.” The transcript of Luis Ortiz’s second trial, the trial at issue here, is cited as “T.” The transcript of Luis Ortiz’s first trial is cited as “1st trial T.” -5- Luis Ortiz took offense and the two men began a verbal altercation in Spanish. A. 362, T. 327. Eventually, Mr. Ortiz slapped Mr. Valenzuela. Id. From there, the fight escalated, with Mr. Valenzuela punching Mr. Ortiz and Mr. Ortiz deflecting the punch and fighting back. At this point Mr. Valenzuela pulled him into the apartment. A. 363, T. 328. Once in the apartment Mr. Valenzuela’s nephew Mr. Colon grabbed Mr. Ortiz from behind and all three men fell to the floor. A. 364-65, T. 329-30. The three men continued to struggle, stumbling into Mr. Valenzuela’s bedroom, where the nephew restrained Mr. Ortiz on the bed. A. 366-67, T. 331-332. Mr. Ortiz testified that Mr. Valenzuela grabbed a knife and “came at” him. Id. At this point Mr. Valenzuela’s girlfriend Ms. Nunez started screaming, “no, no” making him stop. Id. Mr. Ortiz testified that he never had a razor blade in his possession, A. 352, T. 317, never put a razor blade to Ms. Nunez’s neck, A. 368, T. 333, never tried to steal Mr. Valenzuela’s necklace, A. 369, T. 334, and never had an intent to commit any crime. A. 352, T. 317. The Complainants’ Testimony The prosecution presented testimony from the three complaining witnesses, Pura Nunez, her boyfriend Colpo Manuel Valenzuela, and his nephew Jose -6- Henrique Colon. Together, they gave a very different story of what happened with Luis Ortiz. In their account there was no Jacqueline Martinez, A. 304-5 & 171, T. 261-62 & 116, 2 and there was no verbal dispute in the hallway before the fight broke out –Mr. Ortiz simply materialized to rob them at razor point. A. 159 & A. 282, T. 159 & 239. There were multiple reasons not to believe the trial testimony of the prosecution witnesses. Most conspicuously, Ms. Nunez’s trial testimony differed starkly from the contemporaneous account she gave to a 911 operator. On the 911 call, the operator specifically asked Ms. Nunez whether Mr. Ortiz had a weapon, and she answered that Mr. Ortiz did not have a weapon. A. 348, T. 305. Indeed, at no point in the 911 call did Ms. Nunez mention a razor at all or report that Mr. Ortiz had just held a razor to her throat –a claim she dramatically made at trial. By contrast, Ms. Nunez testified at trial that Mr. Ortiz held “something sharp” to her neck, later indicating the razor blade that had been submitted into evidence. A. 282 & 284, T. 239 & 241. On the 911 call, she told the operator, “My husband has him [Mr. Ortiz] cornered with a kitchen knife until you get here.” A. 347, T. 304. At 2 Notably, at Luis Ortiz’s first trial in this case, the prosecution did not doubt Jacqueline Martinez’s existence. There, the prosecution introduced a mug shot of Ms. Martinez, taken at her arrest for an unrelated incident. The prosecution then cross examined Mr. Ortiz in a manner suggesting that he and Ms. Martinez committed crimes together. The prosecution argued that it was questioning Mr. Ortiz about his relationship with Ms. Martinez to set the foundation to seek a missing witness charge to the jury based upon the defense’s failure to call Ms. Martinez as a witness. See A. 933-35, 948, & 954, 1 st Trial T. at 472-74, 487, & 493. -7- trial, Ms. Nunez stated that her boyfriend Mr. Valenzuela never had the kitchen knife in his possession. A. 298, T. 255. Mr. Valenzuela and Ms. Nunez offered conflicting accounts of where Mr. Ortiz confronted them. Mr. Valenzuela testified that Mr. Ortiz made his razor attack and demand for money and jewelry in the hallway outside the apartment. A. 214, T. 159. Ms. Nunez testified that this occurred inside the apartment. A. 284, T. 241. At trial, Mr. Valenzuela and Ms. Nunez both testified that the outer doors to their building were broken and did not require a key to gain entry. A. 214 & 279, T. 159 & 236. However, during her 911 call, Ms. Nunez told the operator that the outer door was closed, but she opened it while on the phone to allow the police to enter the building. Introduction of Evidence of the Razor at the Second Trial The prosecution witnesses’ accounts of the fight with Luis Ortiz were riddled with inconsistencies, but agreed on one thing –Mr. Ortiz was an armed burglar. Mr. Valenzuela testified that Mr. Ortiz “put a blade” to Ms. Nunez’s neck, saying, “Give me the money and your jewelry.” A. 216, T. 161. Ms. Nunez similarly testified that “[Mr. Ortiz] was under me, like this, with that thing there [indicating the razor that had been submitted into evidence]” and said ‘the chain, -8- the money or I cut her neck.’” A. 284, T. 241. And, Mr. Colon testified that Mr. Valenzuela told Mr. Colon to hold Mr. Ortiz so Mr. Valenzuela could punch him because “he stole my chain.” A. 161, T. 98. The razor was the dramatic focus of their story at trial and of the prosecution’s case. The prosecution’s case depended upon the jury believing beyond a reasonable doubt the complaining witnesses’ story of an armed burglary and not believing Mr. Ortiz. The evidence the prosecution introduced at trial of Mr. Ortiz’s purported use of a razor was critical. The use of his attorney’s statement at arraignment concerning the razor to impeach Mr. Ortiz’s testimony was critical. The trial court erred in not precluding evidence of Mr. Ortiz’s purported use of a razor –an issue that had been necessarily decided by his first trial. The trial court further erred in allowing into evidence the mistaken statement that Luis Ortiz’s attorney made at arraignment concerning the razor and erred in allowing the trial to proceed once defense counsel was made a fact witness at trial. What is more, the prosecutor in his summation materially misrepresented to the jury defense counsel’s stipulated testimony about the arraignment statement. -9- STATEMENT OF FACTS At his first trial in this case, Mr. Ortiz was found not guilty of burglary in the first degree and robbery in the first degree, and convicted of burglary in the second degree. A. Evidence Admitted to Show Luis Ortiz Used a “Dangerous Instrument Luis Ortiz was tried twice for events surrounding the altercation on July 20, 2006 at an apartment building in the Bronx. At his first trial Mr. Ortiz was charged with burglary in the first degree, robbery in the first degree, and burglary in the second degree. The jury acquitted him of burglary in the first degree and robbery in the first degree, and found him guilty only of burglary in the second degree. The Appellate Division reversed the conviction. 3 At the second trial, Mr. Ortiz again was convicted of burglary in the second degree. In its charges to the jury at the first trial, the court explained that the only difference between burglary in the first degree and burglary in the second degree was that the more serious charge involved the use or threatened use of “a dangerous instrument”: As you can see the crime [of burglary in the second degree] is essentially the same as burglary in the first degree, except that for 3 People v. Ortiz, 69 A.D.3d 490 (1st Dept. 2010). -10- burglary in the second degree the People do not have to prove as one of the elements the use of or threatening the immediate use of a dangerous instrument. A. 1053, 1st trial T. 444. 4 In its charge to the jury at the first trial of the ‘dangerous instrument’ element of burglary in the first degree, the court made clear that the dangerous instrument in this case was the razor blade: …That in the course of the commission of the crime or the immediate flight therefrom, the defendant used or threatened the immediate use of a dangerous instrument, in this case a razor blade. A. 1049, 1st trial T. 440. Before the second trial –now only for burglary in the second degree– Luis Ortiz’s defense counsel made a collateral estoppel motion. She moved to preclude the prosecution from presenting evidence concerning the use or threatened use of a dangerous instrument, the razor blade, because the jury in the first trial had necessarily decided this issue of fact when it had acquitted defendant of burglary in the first degree. See A. 34, T. 17; Defense Motion in Limine, A. 16. 4 See, N.Y. Penal Law § 140.30 & N.Y. Penal Law § 140.25 (2). The indictment also charged him with Burglary in the Second Degree under § 140.25 (1) (c), but that charge was not submitted to the jury. -11- Initially, the court at the second trial applied the collateral estoppel doctrine and determined that the prosecution should be precluded from presenting such evidence at the second trial: Now, given the fact that the jury acquitted as to [burglary in the first degree and robbery in the first degree] 5 and given the fact that we must assume that the jury reached a rational verdict, that would mean that the jury found that the defendant did not threaten the immediate use or threatened immediate use of a dangerous instrument, that being a razor blade. They convicted on the Burglary in the Second Degree…however, that crime does not –none of the elements of that crime calls into question or requires the use of a razor blade. So it would appear that the jury found that the defendant did not use or threaten the immediate use of a dangerous instrument, that being a razor blade. … Again, it appears that the jury found that the defendant did not use or threaten the immediate use of a dangerous instrument and, therefore, the People would be collaterally estopped from introducing testimony as to the razor blade. A. 44-45, T. 27-28. The court affirmed numerous times that it must look to the first trial judge’s charges to the jury to determine what the jury’s verdict meant. “[W]e have to go by what the charge was. … The issue is how exactly it was charged to them.” A. 45 & 50, T. 29 & 33. But, the court additionally engaged in an analysis of relevancy. “The second issue, however, is one of relevance.” A. 45 & T. 28. The court reasoned that if it 5 The collateral estoppel argument was additionally strengthened by the fact that the jury at the first trial also acquitted on robbery in the first degree, which also contains the element “uses or threatens the immediate use of a dangerous instrument.” N.Y. Penal Law § 160.15 (3). -12- addressed relevancy first, it would not necessarily even have to decide the collateral estoppel issue: I’m not even sure that I have to deal with the issue of collateral estoppel because the fact remains that the use or the alleged use of this razor goes to the element of intent for the burglary in the second degree…. It all goes to Burglary in the Second Degree and all goes to the intent. So I’m not even sure that I really have to reach the issue of collateral estoppel. A. 60, T. 43. The court then speculated as to what the jury may have been thinking in reaching its verdict in the first trial: [Y]ou know, there’s no real clarity or no real finality in terms of exactly what the jurors were thinking when they acquitted on those two charges. They may have found that the razor or may believe the razor was not a dangerous instrument…. It may well be they didn’t find that the razor was in fact a dangerous instrument. They may have found that there was -withdrawn. The defendant was in possession of the razor but didn’t threaten use of the razor. So I mean, it’s really unclear. Bottom line is there’s no real finality or definitive answer or reason that I can find as to why the jury acquitted as to those two charges and convicted as to the Burglary in the Second Degree. A. 61, T. 44. The court concluded its analysis stating that relevance was the easier basis for admitting the evidence: But more importantly, obviously, under the law, the possession or the alleged possession of the razor would go to the Burglary in the Second Degree. -13- Id. In the end, the court denied defense counsel’s collateral estoppel motion: We can speculate, the cases state that we have to speculate, and there is, there are a myriad of fact patterns or factors the jury could have considered [] in acquitting…. Under these circumstances, it is not clear, there is no finality in terms of what they were thinking, what they based their verdict on. And to that end, also, the possession or alleged possession of the razor goes to the Burglary in the Second Degree. A. 62-63, T. 45-46. Once allowed in, the evidence of the razor played a prominent role in the second trial. As the court indicated, “it was clear from the testimony that [the razor] was definitely part of the narrative in terms of exactly what occurred or is alleged to have occurred.” A. 65, T. 310. The razor was the key piece of evidence supporting the prosecution’s theory of an armed home invasion. The prosecution made this clear when it summed up the case in the opening line of its summation as “a simple case with simple facts. This defendant while in the home of another man, put a razor blade up to the neck of a woman, threatened to slit her throat unless the man she was with gave up jewelry and money.” T. 17. On the other hand, Mr. Ortiz testified that he never had a razor at all, A. 352, T. 317, never put a razor to Ms. Nunez’s neck, A. 368, T. 333, never tried to steal Mr. Valenzuela’s jewelry, A. 369, T. 334, and never had an intent to commit any crime, A. 352, T. 317. -14- In cross examination, the prosecution hammered Luis Ortiz with questions insisting he had a razor blade despite his denial. A. 422, T. 399. 6 The case turned on whether the jury believed the complainants’ story of an armed break-in and disbelieved Mr. Ortiz beyond a reasonable doubt. Whether or not a razor was used was the key contested issue in the case. The prosecution used defense counsel’s mistaken statement at arraignment concerning the razor (see below) as a major piece of evidence to impeach Mr. Ortiz. A. 382-84, T. 359-61. In its summation, the prosecution used the razor as a key indication that Luis Ortiz’s version of the events was a lie: “Now, ladies and gentlemen, the defendant didn’t have to get up there and testify, legally speaking. But think about this: He was arrested in a stranger’s home by the police and when they pulled him up off the bed there was a broken chain underneath him and then a few feet away from him, there was a razor blade on the ground.” A. 518, T. 534. Defense counsel was forced to respond to all this testimony concerning the razor, 6 “Q. The razor blade that you had put up to Pura Nunez’s neck fell in the hallway, didn’t it? MS. FONTIER: Objection. THE COURT: Sustained. Q. Did you see the Gillette that you had up to her neck fall in the hallway after Manuel punched you in the face? MS. FONTIER: Objection. THE COURT: Sustained.” -15- to make it a recurring issue in Mr. Ortiz’s defense –in Mr. Ortiz’s testimony, in cross examinations, in addressing the jury. 7 In deliberations, the jury focused on the razor, submitting notes to the court asking “to confirm the testimony of Officer Miranda with regards to where the razor was found [and] to confirm Counsel Fontier’s stipulation from yesterday [regarding her statement at arraignment concerning the razor].” A. 579, T. 606. B. Mistaken Statement Made by Defense Counsel at Arraignment On July 20, 2006, Luis Ortiz was arrested. The following day, he was arraigned. He was assigned Alice Fontier to represent him at the arraignment. Ms. Fontier spoke with Mr. Ortiz very briefly before the arraignment to formulate her arguments in support of an application for bail. At the arraignment, in making her argument in support of bail, Ms. Fontier said: Your Honor, my understanding of the events for Mr. Ortiz is vastly different [from the prosecution’s]. I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belongs to the people who lived there. 7 A. 352 & 368, T. 317 & 333 (defendant’s testimony); A. 348, T. 305 (cross of Pura Nunez); A. 510-11, T. 526-27 (summation: “Now, there’s very little other evidence in this case. You have to decide if the words of these witnesses are credible. Now, the prosecutor may stand up and say, but there’s the razor blade. The razor blade is in evidence. … Mr. Ortiz didn’t have the razor blade. He didn’t drop the razor blade. He didn’t put it to Pura Nunez’s neck. The reason a razor blade is found in the bedroom and not where it should have fallen is because these witnesses are not telling you the truth. He didn’t have it.”) -16- A. 432, T. 486 (the court reading aloud from arraignment minutes 8 ). At trial, the prosecution sought to introduce the transcript of counsel’s arraignment statement into evidence in order to impeach Luis Ortiz –to show counsel’s version of events stated at the arraignment (that the complaining witness came after him with a razor) was different from Mr. Ortiz’s version of events as stated in his trial testimony (that the complaining witness came after him with a knife). Defense counsel objected to her arraignment statement being admitted because she believed that she misspoke at the arraignment and because introducing it would thus force her to become a witness at trial to correct the impeachment. I would object to the use of these. … I have what is on the [arraignment minutes], but it doesn’t necessarily mean that that’s exactly what he told me. I may have misunderstood something that he said and put it on the record. A. 448, T. 338. She explained that the brief pre-arraignment interview and hectic nature of arraignments make mistakes likely: It’s arraignments. You arraign thirty people in a night. It doesn’t mean that I had an in-depth detailed discussion with Mr. Ortiz, took excellent notes and then repeated it on the record. It is extremely 8 The parties stipulated to the accuracy of the arraignment transcript. “It is the agreed by and between the parties that the below is an accurate transcription of the statements made by counsel at defendant’s arraignment on July 21, 2006.” A. 432, T. 486. -17- possible that I was mistaken when I had made these statements at arraignment. A. 437, T. 339. She later elaborated that when the prosecutor submitted the transcripts into evidence she was “surprised” that she had made that statement at arraignment and knew it was incorrect because it was a version of events that Mr. Ortiz had never told her. A. 474, T. 464. Defense counsel objected that the prosecution impeaching Mr. Ortiz with her mistaken arraignment statement would force her to become a witness: [E]ither they’re going to have to do a stipulation or put me on the stand as to what was said here. I mean they can’t just read this to him. This doesn’t directly impeach him if he says, no, I didn’t say that. … in order to complete the impeachment, [the prosecutor is] going to have to call me as a witness. … He’s making me a witness in this trial. A. 439-40, T. 341-42. The court allowed defense counsel’s statement at arraignment into evidence, noting “I don’t believe that it is necessary – it would be necessary for you to testify as to this.” A. 441, T. 343. The prosecution then impeached Luis Ortiz using defense counsel’s arraignment statement: -18- Q. Do you recall telling your attorney that the complaining witness, at that time, came after you with a razor blade? A. Never said that. Q. You never said that? A. Never. Q. And, your attorney did not say that in open Court? MS. FONTIER: Objection. THE COURT: Sustained. [] Q. But, you don’t recall your attorney having said that? MS. FONTIER: Objection. THE COURT: Overruled. Is that correct? THE WITNESS: No. THE COURT: No, you don’t recall? THE WITNESS: I do not recall. Q. And, that was the explanation given at arraignments by your attorney as to why there was a razor blade recovered; isn’t that right? MS. FONTIER: Objection. THE COURT: Sustained. Q. Isn’t that a fact, that those are the representations that you made to your attorney, and then she said that to the Judge at arraignments? MS. FONTIER: Objection. THE COURT: Sustained. -19- Q. You told your attorney that the razor blade belonged to the people that lived there; isn’t that right? A. I never told her that. Q. Never told her that? A. (Moves head from side to side.) Q. You never heard her say that in open court either; right? A. Nope. A. 382-84, T. 359-61. After that day in court finished defense counsel Fontier was able to consult the notes she had taken during her pre-arraignment interview with Mr. Ortiz. The notes confirmed that she had misspoken at arraignment –that Mr. Ortiz had told her in their pre-arraignment meeting that the complaining witness had come at him with a “knife,” not with a “razor” as Mr. Fontier had mistakenly said at arraignment. Ms. Fontier showed the notes to the court. A. 466, T. 456. The judge, reading the notes, confirmed that “your notes make reference to a knife.” A. 469, T. 459. Ms. Fontier pointed out, “It says specifically, ‘knife equals kitchen knife,’ because I asked him about what he meant by knife.” A. 470, T. 460. “The point is that I said it. I responded to the prosecutor [at arraignment]. I made a statement that was wrong. Mr. Ortiz never said that to me. It’s not in the notes. He didn’t say it. I know he didn’t say it and I stated something four years ago at an arraignment that is completely and totally wrong. And he has a right to have me -20- testify to that.” A. 473, T. 463. Defense counsel moved for a mistrial to avoid violating the advocate-witness rule and compromising her client’s right to effective counsel. A. 452, T. 442: I would essentially here have to take the stand, tell this jury that I have in the past made misrepresentations about fundamental aspects of this case on the record. And then I would have to moments later, do a closing argument in which I am asking this jury to find me credible and I don’t believe that is a possible or tenable position that Mr. Ortiz again, has the right to the effective assistance of counsel, asking me to make representations to this jury about my own credibility. It makes me fundamentally ineffective. A. 455, T. 445. The court denied the application for a mistrial. A. 490, T. 480. The court stated its intent to have Ms. Fontier examined by another attorney from her office and cross-examined by the prosecution, and she then would return to her role as advocate to deliver her closing statement to the jury. A. 442, T. 432. Ms. Fontier explained to the court the extent of testimony she would have to give as a witness. A. 468, T. 458. To avoid having to take the stand, A. 489, T. 479, Ms. Fontier limited her testimony to a stipulation setting forth the essentials concerning her misstatement. The stipulation actually had two parts, the first simply agreed to the accuracy of the arraignment transcript, while the second was Ms. Fontier’s testimony. The court read the stipulation to the jury: -21- It is the agreed by and between the parties that the below is an accurate transcription of the statements made by counsel at defendant’s arraignment on July 21, 2006, to wit, Miss Fontier, “Your Honor, my understanding of the events for Mr. Ortiz is vastly different. I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belongs to the people who lived there.” It is further agreed by and between the parties that if Miss Fontier were to testify, she would state that the above statement referencing the razor blade at arraignments was incorrect in that Mr. Ortiz did not make the statement as set forth in the transcript. Miss Fontier would further state that Mr. Ortiz stated to her on July 21, 2006, that the complaining witness, had a kitchen knife. It is so stipulated and signed by Miss Alison Fontier and Assistant District Attorney Diego Hernandez. A. 432-33, T. 486-87. In his summation, the prosecutor took advantage of this testimony being presented as a stipulation to mislead the jury and treat the stipulation as if it certified his impeachment of defendant rather than refuted it: What does [Mr. Ortiz’s] attorney say? It’s on the record. You can look at it. It’s stipulated by and between the parties that this is what the defendant said on July 21st, 2006, right after he was arrested the next day. A. 526, T. 542 (emphasis added). The prosecutor continued to phrase Ms. Fontier’s arraignment statements as if Mr. Ortiz himself had said them, drawing -22- five objections from defense counsel. 9 Three of the objections were overruled, and there were no curative instructions given for the two objections that were sustained. A. 527-28, T. 543-44. Defense counsel explained the “reason for the objection was it totally ignored the stipulation that he didn’t say that. [The prosecutor’s] argument sounded like again he was arguing that Mr. Ortiz said razor blade to me even though the stipulation is clear that that is not what he said.” A. 577, T. 565. The prosecutor stressed the importance of this impeachment evidence in his summation: The arraignment minutes. Ladies and gentlemen, you heard the stipulation that was entered into between the parties. This is very important. This is a very clear indication that the defendant had not thought out what story he was going to tell. A. 526, T. 542. The prosecution’s summation focused on the jury assessing the credibility of the witnesses, e.g. A. 518-19, T. 534-35, even specifically alluding to the jury 9 “He said [at arraignments] he was looking for the landlord.” [“Objection to ‘he said.’” “Sustained.”] … at which point, the complaining witness came after him with a razor blade.” [“Objection.” “Sustained.”] … “Complaining witness came after him with a razor blade.” [“Objection.” “Overruled.”] … “this is a representation that the defendant’s attorney made for him at arraignments.” [“Objection.” “Overruled.”] … “The information was provided to his attorney from him. There was no one else.” [“Objection.” “Overruled. This is argument again.”] T. 543-44 (emphasis added). -23- assessing the credibility of defense counsel. 10 A. 532, T. 548. The court specifically instructed the jury that it may assess the credibility of an “interested witness”: If a witness is interested in the outcome of the trial on one side or the other, you may consider such interest in determining how much credibility or how much weight you will give to his or her testimony. An interested witness is a witness…[whose] testimony in your judgment is biased, or likely to be biased towards the side he or she favors. A. 555, T. 580. At the conclusion of the prosecution’s summation, defense counsel more fully explained the reason for her objections and moved for a mistrial. “I wanted to for the record, just to clarify, I was objecting at the point when A.D.A. Hernandez was discussing the arraignment minutes and discussing that I stated razor blade. The reason for the objection was it totally ignored the stipulation that he didn’t say that. His argument sounded like again he was arguing that Mr. Ortiz said razor blade to me even though the stipulation is clear that that is not what he said. …. Your Honor, I just want the record to be clear. My understanding of stipulation was that Mr. Ortiz said to me and I made a mistake, and that is not what he argued. I just want the record to be clear, I'm again renewing my motion for a 10 “Because if you believe the defense attorney…” A. 532, T. 548. -24- mistrial with prejudice.” T. 564-6. To which the court responded: “The record is clear.” A. 578, T. 566. The jury convicted Mr. Ortiz of Burglary in the Second Degree, A. 583-85, T. 610-12, and Mr. Ortiz was sentenced, as a persistent violent felony offender, to twenty-three years to life. A. 586, T. 26. -25- ARGUMENT POINT ONE THE DOCTRINE OF COLLATERAL ESTOPPEL BARRED THE INTRODUCTION OF EVIDENCE OF THE USE OR THREATENED USE OF A “DANGEROUS INSTRUMENT” The factual issue of whether Luis Ortiz used or threatened the use of “a dangerous instrument” was necessarily resolved by the jury at his first trial. At the first trial, Mr. Ortiz was found not guilty of burglary in the first degree and convicted only of burglary in the second degree. 11 The court at the first trial instructed the jury that the only difference between burglary in the first degree and burglary in the second degree was that the more serious charge involved the use or threatened use of “a dangerous instrument”: As you can see the crime [of burglary in the second degree] is essentially the same as burglary in the first degree, except that for burglary in the second degree the People do not have to prove as one of the elements the use of or threatening the immediate use of a dangerous instrument. A. 1053, 1st trial T. 444. 12 The court also instructed the jury that a razor blade was the dangerous instrument alleged to have been used in this case: 11 He was also acquitted of robbery in the first degree. 12 See, N.Y. Penal Law § 140.30 (3) & N.Y. Penal Law § 140.25 (2). -26- “… That in the course of the commission of the crime or the immediate flight therefrom, the defendant used or threatened the immediate use of a dangerous instrument, in this case a razor blade.” A. 1049, 1st trial T. 440. For the jury to then convict on burglary in the second degree, but acquit on burglary in the first degree, it had to have found that there was no use or threatened use of a dangerous instrument. This case is controlled by the Court’s recent decision in People v. O'Toole, 22 N.Y.3d 335 (2013). The facts in O’Toole were nearly identical to the facts in this case. In O’Toole the defendant had two trials. In the first, the defendant was charged with robbery in the first degree and robbery in the second degree. The only difference between the two charges was the alleged displaying of a gun. The jury acquitted of first degree robbery and convicted of second degree robbery. “It could not logically have done so without finding that the People had failed to prove beyond a reasonable doubt that the robbery involved the display of a firearm.” O’Toole, 22 N.Y.3d 335, 353 (2013). So, at the second trial “the People were collaterally stopped by the earlier verdict from presenting evidence of the gun.” Id. at 352. It would be misleading –in an attempt to distinguish this case from O’Toole– to speculate that the jury at Mr. Ortiz’s first trial could have found the razor was not “dangerous.” This was never an issue. It was neither raised nor contested by -27- either party. No one disputed that a razor was a dangerous instrument. Indeed, defense counsel simply presumed it in summation. “[Mr. Ortiz] is charged with committing a burglary using a dangerous instrument; and this [razor] is that dangerous instrument.” A. 982, 1st Trial T. 373. The court explicitly referred to a razor being a dangerous instrument in its charges to the jury regarding the ‘dangerous instrument’ element: “… That in the course of the commission of the crime or the immediate flight therefrom, the defendant used or threatened the immediate use of a dangerous instrument, in this case a razor blade.” A. 1049, 1st trial T. 440. “[T]he court must assume the jury reached a rational result… [and] appropriately applied the charged substantive and procedural rules of law to the determined events.” People v. Goodman, 69 N.Y.2d 32, 40-41 (1986). Likewise, it would be misleading to suggest –in an attempt to distinguish this case from O’Toole– that the first jury might have found that Mr. Ortiz possessed the razor, but did not use or threaten to use it. All testimony concerning the razor was that it was used to force entry to the apartment and put to Ms. Nunez’s neck. A. 608-10, 638, 662-63, 771-72 & 795, 1st trial T. 7-9, 37, 61-62, 312-313, & 336. 13 13 E.g.’s: A. 608, 1st trial T. 7: “He grabbed me by the neck. He put a Gillette to me and told Colpo, the jewelry, money, or I will cut you.” A. 663, 1st trial T. 62: “Q: What did you think he was going to do with the razor blade? A: Kill me.” A. 771, 1st trial T. 312: “Q: What happened when he put the blade up to Pura’s throat, the instrument? [] A: He, he pushed us like this, towards, in the apartment.” -28- “[C]ourts considering [collateral estoppel] claims must give a practical, rational reading to the record of the first trial. … [I]t is not the court’s role to search out conceivable hypotheses for a jury’s verdict.” People v. Acevedo, 69 N.Y.2d 478, 487, 488 (1987). The Court noted in O’Toole that “the application of [collateral estoppel to issues of evidentiary fact] can cause practical problems. … The likelihood that such problems will arise leads us to suggest that collateral estoppel should be applied sparingly in criminal cases.” O'Toole, 22 N.Y.3d at 339. But, sparingly does not mean never. Just as in O’Toole, the potential practical problems in Mr. Ortiz’s case can be “handled without unreasonable difficulty.” Id. In O’Toole the Court offered a solution that is also applicable here: “The People could refrain from asking [complaining witness] questions that call for testimony about the firearm, and could warn [witness] not to volunteer it.” Id. Just so at a retrial for Mr. Ortiz. The People could refrain from asking questions that call for testimony about a razor and could warn witnesses not to volunteer it. The complaining witnesses can easily leave the razor out of their narrative. They already have. The complaining witness Ms. Nunez already gave an account of the incident that did not involve a razor –in her 911 call. Ms. Nunez specifically told the 911 operator –as the events were happening– that Mr. Ortiz did not have a -29- weapon, and she did not once mention a razor in her 911 call. 14 At a new trial, the complaining witnesses can tell their story of an unlawful entry using physical force, with an intent to rob or assault, without having to add a razor –just as in O’Toole the story could be told without a gun (and what could be more dramatic to a prosecution’s narrative than a gun?). POINT TWO THE MISTAKEN STATEMENT MADE BY DEFENSE COUNSEL AT ARRAIGNMENT SHOULD NOT HAVE BEEN SUBMITTED INTO EVIDENCE: DEFENSE COUNSEL INFORMED THE COURT THE STATEMENT WAS INCORRECT; ITS SUBMISSION FORCED DEFENSE COUNSEL TO BECOME A FACT WITNESS IN VIOLATION OF THE ADVOCATE-WITNESS RULE; AND THE PROSECUTOR MATERIALLY MISREPRESENTED DEFENSE COUNSEL’S TESTIMONY TO THE JURY Three errors occurred at trial related to defense counsel’s statement at arraignment. The trial court should not have allowed the statement into evidence. The court should have granted defense counsel’s motion for a mistrial once it became apparent that defense counsel would have to become a fact witness. And, the prosecutor compounded the problem by materially misrepresenting defense counsel’s stipulated testimony to the jury. These 14 She also told the 911 operator that Mr. Valenzuela was holding Mr. Ortiz at knife point –in line with Mr. Ortiz’s trial testimony, as well as with the version that Mr. Ortiz actually told defense counsel before arraignment. Ms. Nunez and Mr. Valenzuela both denied this at trial. -30- three errors both independently and collectively prejudiced Mr. Ortiz’s right to a fair trial. A. The Trial Court Erred in Allowing The Mis-Statement Defense Counsel Made at Arraignment into Evidence at Trial Defense counsel’s self-acknowledged slip of the tongue at arraignment concerned what at the time would have seemed a small fact, but unfairly became critical impeachment evidence against Luis Ortiz at his trial. In the confusing, at times chaotic, scene that is arraignment in the Bronx County Criminal Court, defense counsel Alice Fontier, in the midst of simultaneously representing dozens of clients, had a few moments to talk with Mr. Ortiz before she made his application for bail. After this rushed conversation, counsel argued in support of bail: I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belongs to the people who lived there. A. 432, T. 486 (the trial court reading aloud from arraignment minutes). In fact, as counsel repeatedly tried to tell the trial court, Mr. Ortiz had actually told her that the complaining witness had come after him with a knife, not a razor. This was consistent with his testimony at trial. In the time since -31- arraignment, the significance of the razor became manifest. The prosecution seized upon defense counsel’s mis-statement at arraignment and sought to use it to impeach Luis Ortiz –to purportedly show that Mr. Ortiz had changed his version of events to conform to the evidence that had been presented at trial. At times a statement made by a defendant’s counsel at arraignment can reliably be attributed to the defendant himself as a prior admission made by an authorized agent. See e.g. People v. Kallamni, 14 A.D.3d 316, 316 (1st Dept. 2005) (“[i]t is clear from the phrasing of the attorney’s statements and all the surrounding circumstances that defendant was the source of the information”). But, that is not the case here. Where there is substantial doubt that the statement of counsel can reliably be attributed to a defendant, it should not be admitted. See People v. Cassas, 84 N.Y.2d 718, 722 (1995) (finding evidence of attorney’s statement to police at precinct should not have been admitted as “[t]here was no evidence that the statement had been authorized by the defendant”). Here, defense counsel Ms. Fontier made a simple mix-up about a factual issue –saying “razor” when she meant to say “knife.” This was not a case where an attorney, for example, says at arraignment that the client has an alibi and then at trial claims self-defense –a fact about which she could not have been mistaken. Defense counsel as an officer of the court informed the court her misstatement was -32- not what Mr. Ortiz had said, showed the judge her contemporaneous pre- arraignment notes to confirm this, and then submitted a stipulation into evidence. Unless the trial court believed that defense counsel was intentionally, blatantly, repeatedly lying, it should not have allowed the prior statement into evidence. This issue has important policy implications for maintaining the integrity of evidence and the truth finding function of trials. To inflexibly hold attorneys to every minor mis-statement they make at arraignments is an unreasonable standard. Arraignments are a hurried, messy affair. As Ms. Fontier told the trial court: “It’s arraignments. You arraign thirty people in a night. It doesn’t mean that I had an in- depth detailed discussion with Mr. Ortiz, took excellent notes and then repeated it on the record. It is extremely possible [to be] mistaken when [making] statements at arraignment.” A. 437, T. 339. 15 The simple mix-up that Ms. Fontier made –after speaking with her new client for only a few minutes, in the midst of meeting with and defending dozens of others– was understandable. Thankfully, most of the time a small mix-up like this will not end up being important enough even to make it to 15 Even the prosecution thought the court must take account of the full context of an arraignment: “I think I made it very clear a couple of times now, an arraignment has a specific context to it. … You can’t look at it in a vacuum.” A. 472-73, T. 462-63. -33- trial. But, in this case confusing “razor” with “knife” became incredibly important at trial. 16 B. The Trial Court Should Have Granted Defense Counsel’s Motion for a Mistrial Once It Became Necessary For Defense Counsel To Become a Fact Witness At Trial Once the arraignment statement was permitted into evidence at trial, defense counsel was forced to become a witness in violation of the advocate-witness rule. “An attorney [] should not continue to serve as an advocate when it is obvious that the lawyer will be called as a witness on behalf of the client,” People v. Berroa, 99 N.Y.2d 134, 140 (2002), because this creates “the unseemly circumstance of placing an attorney in a position in which he must argue the credibility of his own testimony,” Ellis v. Broome County, 183 A.D.2d 861, 862 (3d Dept. 1984), because the testimony itself is “more easily impeachable for interest,” S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 444 (1987), and because it “may confuse the fact-finder and impair the fairness of the trial.” People v. Townsley, 20 N.Y.3d 294, 299 (2012). 16 Nor is this situation one that would be exploited as a disingenuous strategy. Defense attorneys are not going to adopt a “strategy” in which they lie to the court, reveal confidential information, risk being disqualified, and perjure themselves. -34- Ms. Fontier could not ignore that her arraignment statement was factually mistaken and leave the prosecution’s impeachment of Luis Ortiz before the jury uncorrected. This was not merely collateral impeachment evidence. It went to the most crucial issue contested in the case: whether to believe defendant and his testimony that he never had a razor or believe the complaining witnesses and their story of an armed home invasion. Even though Ms. Fontier’s testimony was in support of her client, just as in Berroa, “the stipulation was based on the assumed necessity of counsel's testimony rather than a legitimate trial strategy.” People v. Berroa, 99 N.Y.2d 134, 142 (2002). 17 The Appellate Division’s decision in this case incorrectly limits the scope of Berroa. Defense counsel’s stipulation here was not sufficient to “avoid an advocate-witness problem” or to “protect defendant’s interests regarding the impeachment issue” because Ms. Fontier’s credibility remained compromised. People v. Ortiz, 114 A.D.3d 430, 431 (1st Dept. 2014). Before the jury, “defense counsel's credibility was directly and necessarily pitted against” the credibility of other witnesses. Berroa at 142. As the People stated in their brief to the Appellate Division: “The prosecutor was free to argue on summation that defendant told counsel something different just before he was arraigned, despite the stipulation” – 17 And like Berroa, “defense counsel in this case was the only source of the information contained in the stipulation.” Berroa at 142. -35- i.e. to tell the jury not to believe defense counsel’s stipulation testimony. Resp. Br. 53. Defense counsel’s ability to represent Mr. Ortiz was compromised when the prosecution was able thus to “impugn her credibility before a trier of fact.” People v. Hernandez, 62 A.D.3d 401, 401 (1st Dept. 2009) (citing Berroa). One minute the jury hears her testimony that she incorrectly represented the facts to the arraignment judge, just minutes later she addresses the jury in summation asking them to trust her presentation of the facts, and minutes after that the prosecution addresses the jury asking them not to believe her testimony. What is more, the credibility of the testimony itself was undermined by the fact that it came from Mr. Ortiz’s trial attorney. In Ms. Fontier the jury saw a witness who had a personal interest in the outcome of the case and was ‘on defendant’s side’ –the very definition of an “interested witness” as the court defined it to the jury. 18 The “unseemly circumstance” in which defense counsel had to “argue the credibility of [her] own testimony” concerning the key issue of the case materially 18 The court specifically instructed the jury that it may assess the credibility of an “interested witness”: “If a witness is interested in the outcome of the trial on one side or the other, you may consider such interest in determining how much credibility or how much weight you will give to his or her testimony. An interested witness is a witness…[whose] testimony in your judgment is biased, or likely to be biased towards the side he or she favors.” A. 555, T. 580. -36- compromised Mr. Ortiz’s defense. Ellis v. Broome County, 183 A.D.2d 861, 862 (3d Dept. 1984). C. The Prosecutor In Summation Materially Misrepresented Defense Counsel’s Stipulation Testimony To Appear As If She Verified His Impeachment Once the testimony of defense counsel was introduced by stipulation, the prosecutor then misrepresented the stipulation to the jury in his summation. He presented the stipulation to the jury as if Ms. Frontier certified his impeachment of Mr. Ortiz rather than refuted it –the full opposite of what it actually meant: What does [Mr. Ortiz’s] attorney say? It’s on the record. You can look at it. It’s stipulated by and between the parties that this is what the defendant said on July 21st, 2006 right after he was arrested the next day. A. 526, T. 542 (emphasis added). The prosecutor then reinforced this false impression repeatedly (drawing repeated objections from defense counsel). A. 526-27, T. 543-44. 19 The prosecution did not have to concede the credibility of the stipulated evidence, but it was not allowed to misrepresent the evidence. The prosecutor was free to argue 19 “He said [at arraignments] he was looking for the landlord.” [“Objection to ‘he said.’” “Sustained.”] … at which point, the complaining witness came after him with a razor blade.” [“Objection.” “Sustained.”] … “Complaining witness came after him with a razor blade.” [“Objection.” “Overruled.”] … “this is a representation that the defendant’s attorney made for him at arraignments.” [“Objection.” “Overruled.”] … “The information was provided to his attorney from him. There was no one else.” [“Objection.” “Overruled. This is argument again.”]. A. 526-27, T. 543-44 (emphasis added). -37- that Ms. Fontier was wrong or not telling the truth when she gave stipulated testimony that the facts she stated at arraignment were not actually what Mr. Ortiz had said to her. He was not allowed to tell the jury that regarding the statement Ms. Fontier made at arraignment, “It’s stipulated by and between the parties that this is what the defendant said.” A. 526, T. 542. That was the opposite of true. While a trial attorney is to be afforded “the widest latitude” “to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide,” Williams v. Brooklyn El. R.R., 126 N.Y. 96, 102, 103 (1891), “summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command.” People v. Ashwal, 39 N.Y.2d 105, 109 (1976). “Evenhanded justice and respect for the fundamentals of a fair trial mandate the presentation of legal evidence unimpaired by intemperate conduct aimed at sidetracking the jury from its ultimate responsibility—determining facts relevant to guilt or innocence.” People v. Calabria, 94 N.Y.2d 519, 523 (2000). The prosecution “may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence.” Ashwal, 39 N.Y.2d at 109-10. The prosecutor materially prejudiced Mr. Ortiz’s case by presenting the stipulation as if Ms. Fontier testified to the exact opposite of what she actually -38- testified –so it appeared she gave testimony against her client. 20 The case turned on the credibility of each side’s witnesses and the few pieces of evidence that might corroborate or undermine their stories. The prosecution’s misrepresentation undermined the credibility of Luis Ortiz’s only meaningful witnesses –Mr. Ortiz himself and defense counsel Fontier– and mischaracterized evidence which was key to explaining the most meaningful piece of physical evidence –the razor. The cumulative effect of the prosecutor’s repeated misrepresentation of evidence during summation deprived Luis Ortiz of a fair trial. Calabria, 94 N.Y.2d at 523. D. All Aspects Of This Issue Are Properly Preserved For This Court’s Review The Appellate Division is mistaken that Luis Ortiz’s challenge to the prosecutor’s summation was not preserved (the only part of the issues presented in this brief that the Appellate Division found to be unpreserved). People v. Ortiz, 114 A.D.3d 430, 431 (1st Dept. 2014). Defense counsel objected five times during the summation to the prosecutor’s misrepresentation of the stipulation (overruled three times; no curative instruction given the two times objections were sustained). A. 527-28, T. 543-44. And, once the summation concluded defense counsel more 20 Indeed, by making the testimony appear to go against her client –an “obvious” conflict of interest– the prosecution strengthened the violation of the advocate-witness rule. People v. Berroa, 99 N.Y.2d 134, 140-41 (2002) (“Interestingly, in Crespo the court stated, however, that ‘[i]f the stipulation [by defense counsel] is the equivalent of an attorney testifying against his client, it is, ipso facto, an actual conflict of interest’” (citing State v. Crespo, 718 A.2d 925, 939 (1998)). -39- fully explained the reason for her objections and moved for a mistrial. “I wanted to for the record, just to clarify, I was objecting at the point when A.D.A. Hernandez was discussing the arraignment minutes and discussing that I stated razor blade. The reason for the objection was it totally ignored the stipulation that he didn’t say that. His argument sounded like again he was arguing that Mr. Ortiz said razor blade to me even though the stipulation is clear that that is not what he said. …. Your Honor, I just want the record to be clear. My understanding of stipulation was that Mr. Ortiz said to me and I made a mistake, and that is not what he argued. I just want the record to be clear, I'm again renewing my motion for a mistrial with prejudice.” A. 576-78, T. 564-66. To which the court responded: “The record is clear.” A. 578, T. 566. The entire discussion leading up to this motion for a mistrial solely concerned the prosecutor’s misconduct during summation. A. 576-78, T. 564-66. Defense counsel’s use of the word “renewing” in her on-the-fly discussion with the court did not mean she was simply restating the mistrial motion she had made earlier in the trial based on her having to become a fact witness. To suggest that her motion here was simply a reiteration of the earlier motion –having just explained her reasons to the court– does not make sense and ignores the context in which it was made. -40- The problem began when the trial court allowed defense counsel’s mistaken arraignment statement into evidence. This error was compounded when the court allowed the trial to proceed even after defense counsel was made a fact witness. The prejudice was exacerbated when the prosecutor materially misrepresented defense counsel’s stipulated testimony to the jury. -41- CONCLUSION For the foregoing reasons, Mr. Ortiz’s conviction should be reversed and a new trial ordered at which evidence of a razor and of defense counsel’s misstatement at arraignment should be precluded. February 18, 2014 Respectfully submitted, RICHARD M. GREENBERG, ESQ. JOSEPH M. NURSEY, ESQ. JNursey@appellatedefender.org Attorneys for Defendant-Appellant Luis Ortiz OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 by: JORDAN CERRUTI, ESQ. JordanCerruti@gmail.com Of Counsel: Jordan Cerruti Jones Day 222 E. 41 st Street New York, New York 10017 (917) 797-5089