The People, Respondent,v.Luis Ortiz, Appellant.BriefN.Y.November 18, 2015APL-2015-00004 To be argued by: CATHERINE M. RENO (15 minutes requested) Supreme Court, Bronx County, Indictment Number 3044/2006 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- LUIS ORTIZ, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE ROBERT T. JOHNSON JOSEPH N. FERDENZI District Attorney STANLEY R. KAPLAN Bronx County CATHERINE M. RENO Attorney for Respondent-Appellee Assistant District Attorneys Bronx, New York 10451 Of Counsel (718) 838-7119 (718) 590-6523 (facsimile) Dated: June 18, 2015 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT 2 QUESTIONS PRESENTED 3 THE FACTS 3 The Arraignment 3 The Indictment 4 The First Trial (2007) 4 The First Direct Appeal (2009) 5 The Retrial (2010) 6 The People’s Case 6 The Defense 12 The Verdict 15 The CPL § 330.30 Motion 15 The Second Direct Appeal (2014) 16 ARGUMENT 19 POINT ONE THE TRIAL COURT AND THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT REQUIRE PRECLUSION OF TESTIMONY REGARDING THE RAZOR BLADE BECAUSE DEFENDANT DID NOT SHOW THAT THE JURY AT HIS FIRST TRIAL NECESSARILY DECIDED THIS FACTUAL ISSUE IN HIS FAVOR AND, IN ANY EVENT, THE TESTIMONY AS TO THE RAZOR BLADE WAS ESSENTIAL TO THE COMPLAINANTS’ NARRATIVE AND ESTABLISHING AN ELEMENT OF THE CRIME ON TRIAL 19 POINT TWO DEFENDANT FAILED TO PRESERVE HIS CHALLENGES TO THE PROSECUTOR’S SUMMATION. IN ANY EVENT, THE TRIAL COURT PROPERLY ADMITTED THE ARRAGINMENT STATEMENT MADE BY DEFENSE COUNSEL AS IMPEACHMENT EVIDENCE, AND THE PROSECUTOR DID NOT IMPROPERLY COMMENT ON THE EVIDENCE AT TRIAL 41 A. Defense Counsel’s Statement at Arraignments Constituted an Informal Judicial Admission and Was Properly Admitted as Impeachment Evidence 41 B. The Trial Court Properly Denied Defendant’s Mistrial Motion. 58 C. The Prosecutor Did Not Improperly Comment on the Evidence at Trial 67 CONCLUSION 74 TABLE OF AUTHORITIES CASES PAGE Ando v. Woodberry, 8 N.Y.2d 165 (1960)............................................... 20 Ashe v. Swenson, 397 U.S. 436 (1970) ................................................... 22 Crawford v. Washington, 541 U.S. 36 (2004) ........................................ 63 Enright v. Siedlecki, 59 N.Y.2d 195 (1983) ............................................ 58 Foley & Co. v. Vanderbilt, 523 F.2d 1357 (2nd Cir. 1975) .................... 60 In re Francisco C., 238 A.D.2d 224 (1st Dept. 1997) ............................ 30 Oregon v. Hass, 420 U.S. 714 (1975) ..................................................... 50 People v. Acevedo, 69 N.Y.2d 478 (1987) .............................................. passim People v. Aguilera, 82 N.Y.2d 23 (1993) ............................................... 20 People v. Arnold, 96 N.Y.2d 358 (2001) ................................................ 28 People v. Ashwal, 39 N.Y.2d 105 (1976) ................................................ 69, 70 People v. Baker, 14 N.Y.3d 266 (2010) .................................................. 72 People v. Baldi, 54 N.Y.2d 137 (1981) ................................................... 61, 62, 64 People v. Berkowitz, 50 N.Y.2d 333 (1980) ........................................... 21 People v. Berroa, 99 N.Y.2d 134 (2002) ................................................ passim People v. Betts, 70 N.Y.2d 289 (1987) ................................................... 49 i People v. Boyd, 58 N.Y.2d 995 (1983) ................................................... 47 People v. Brown, 48 N.Y.2d 388 (1979) ................................................. 26 People v. Brown, 98 N.Y.2d 226 (2002) ................................................. passim People v. Cassas, 84 N.Y.2d 718 (1995) ................................................ 47 People v. Chislum, 244 A.D.2d 944 (4th Dept. 1997) ............................ 73 People v. Coleman, 56 N.Y.2d 269 (1982) ............................................. 49 People v. Comer, 73 N.Y.2d 955 (1989) ................................................ 68 People v. Crimmins, 36 N.Y.2d 230 (1975) ............................................ 55, 58 People v. D’Alessandro, 184 A.D.2d 114 (1st Dept. 1992) .................... 73 People v. Fleming, 70 N.Y.2d 947 (1988) .............................................. 68 People v. Fwilo, 47 A.D.2d 727 (1st Dept. 1975) ................................... 66 People v. Gaines, 74 N.Y.2d 358 (1989) ................................................ 29 People v. Galloway, 54 N.Y.2d 396 (1981) ............................................ 69, 70 People v. Gentile, 96 A.D.2d 950 (2d Dept. 1983) ................................. 61, 62 People v. Goodman, 69 N.Y.2d 32 (1986) .............................................. 17, 22, 23 People v. Gray, 86 N.Y.2d 10 (1995) ..................................................... 67 People v. Halm, 81 N.Y.2d 819 (1993) .................................................. 70 People v. Harris, 271 A.D.2d 258 (1st Dept. 2000) ............................... 39, 62 ii People v. Hernandez, 62 A.D.3d 401 (1st Dept. 2009) .......................... 65 People v. Iannelli, 69 N.Y.2d 684 (1986) ............................................... 42 People v. Johnson, 57 N.Y.2d 969 (1982) .............................................. 55 People v. Johnston, 228 N.Y. 332 (1920) ............................................... 49 People v. Kallamni, 14 A.D.3d 316 (1st Dept. 2005) ............................. 18 People v. Kello, 96 N.Y.2d 740 (2001) .................................................. 55 People v. Kulis, 18 N.Y.2d 318 (1966) ................................................... 50 People v. Lewis, 69 N.Y.2d 321 (1987) .................................................. 20 People v. McPherson, 56 N.Y.2d 696 (1982) ......................................... 47 People v. Medina, 53 N.Y.2d 951 (1981) ............................................... 68, 69 People v. Michael, 48 N.Y.2d 1 (1979) .................................................. 59 People v. Morgan, 66 N.Y.2d 255 (1985) .............................................. 70 People v. Moye, 11 A.D.3d 212 (1st Dept. 2004) ................................... 18, 63 People v. Narayan, 54 N.Y.2d 106 (1981) ............................................. 67, 68 People v. Newman, 216 A.D.2d 151 (1st Dept. 1995) ............................ 61, 62 People v. O’Toole, 22 N.Y.3d 335 (2013) .............................................. passim People v. Ortiz, 114 A.D.3d 430 (2014) ................................................. passim People v. Ortiz, 54 N.Y.2d 288 (1981) ................................................... 59 iii People v. Ortiz, 69 A.D.3d 490 (1st Dept. 2010) .................................... 6 People v. Overlee, 236 A.D.2d 133 (1st Dept. 1997) ............................. 72 People v. Paperno, 54 N.Y.2d 295 (1981) .............................................. 59 People v. Plevy, 52 N.Y.2d 58 (1980) .................................................... 21 People v. Rathbun, 21 Wend 509 (Sup Ct of Judicature 1839) .............. 46 People v. Ricco, 56 N.Y.2d 320 (1982) .................................................. 50 People v. Rivera, 45 N.Y.2d 989 (1978) ................................................. 43 People v. Rivera, 58 A.D.2d 147 (1st Dept. 1977) ................................. 43, 50, 71 People v. Romero, 7 N.Y.3d 911 (2006) ................................................. 19, 67, 68 People v. Samuels, 121 A.D.2d 751 (2d Dept. 1986) ............................. 73 People v. Sloan, 30 A.D.3d 1067 (4th Dept. 2006) ................................ 39 People v. Sullivan, 300 A.D.2d 689 (3d Dept. 2002) ............................. 30 People v. Tardbania, 72 N.Y.2d 852 (1988) .......................................... 68 People v. Tice, 131 N.Y. 651 (1892) ...................................................... 49 People v. Walker, 83 N.Y.2d 455 (1994) ................................................ 48, 49 People v. Washington, 283 A.D.2d 661 (2d Dept. 2001) ....................... 39, 63 People v. Webster, 139 N.Y. 73 (1893) .................................................. 49 iv S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 (1987) ............................................................................................... 60, 65 U.S. v. Anderson, 450 F.3d 294 (7th Cir. 2006) ...................................... 73 Walder v. U.S., 347 U.S. 62 (1954) ........................................................ 50, 71 Williams v. Brooklyn El. R.R. Co., 81 Sickels 96 (1891) ........................ 69 STATUTES PAGE CPL § 250.20........................................................................................... 60 CPL § 330.30........................................................................................... 15 CPLR 4111............................................................................................... 21 Penal Law § 10.00.................................................................................... 25 Penal Law § 120.14.................................................................................. 4 Penal Law § 140.20.................................................................................. 4 Penal Law § 140.25.................................................................................. 2, 4 Penal Law § 140.30.................................................................................. 25 Penal Law § 140.30.................................................................................. 2, 4 Penal Law § 155.25.................................................................................. 4 Penal Law § 155.30.................................................................................. 4 Penal Law § 160.05.................................................................................. 4 Penal Law § 160.10.................................................................................. 39 v Penal Law § 160.15.................................................................................. 4, 25 Penal Law § 265.01.................................................................................. 4, 30 Penal Law § 265.01.................................................................................. 4, 30 MISCELLANEOUS PAGE brief for appellant in People v. O’Toole, 22 N.Y.3d 335 (2013), available at https://www.nycourts.gov/ctapps/courtpass/Public_Browse.aspx .......... 33, 34 Code of Professional Responsibility 5-102.............................................. 59 Code of Professional Responsibility EC 5–9........................................... 65 Dictionary, OED Online. June 2015. Oxford University Press, available at http://www.oed.com/view/Entry/158861?redirectedFrom=readily&...... 27 Disciplinary Rules 5-101(B) ................................................................... 59 Edith L. Fisch, Fisch on New York Evidence (2d ed. 1977).................. 42, 48 Jerome Prince, Richardson on Evidence (Farrell 11th ed. 1995)............. 43, 49 Transcript of Oral Argument, People v. O’Toole, 22 N.Y.3d 335 (2013) (No. 233-18) ................................................................................ 33 vi COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- APL-2015-0004 LUIS ORTIZ, Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT The People submit this brief in response to Luis Ortiz’ appeal, taken by permission of the Honorable Robert S. Smith, dated December 22, 2014 (A. 4),1 from an order of the Appellate Division, First Department, entered February 4, 2014, modifying the judgment, to the extent of vacating the sentence and remanding for resentencing,2 and otherwise affirming defendant’s conviction, after a jury trial, of burglary in the second degree (Penal Law § 140.25). See People v. Ortiz, 114 A.D.3d 430 (2014). Defendant is currently incarcerated pursuant to this judgment. 1 Numbers preceded by “A” refer to the pages of the Appendix for Defendant-Appellant; Numbers preceded by “SA” refer to the pages of the Supplemental Appendix for Respondent- Appellee. 2 Defendant has not been resentenced as of the date this brief was completed. 2 QUESTIONS PRESENTED 1. Whether the trial court correctly found that the People were not collaterally estopped from introducing testimony regarding defendant’s use or threatened use of a razor blade during the burglary, where that testimony was essential to the complainants’ narrative and to prove an essential element of the crime. 2. Whether the trial court properly allowed the introduction, for impeachment purposes, of defense counsel’s statement at arraignment and thereafter allowed the prosecutor to use the arraignment statement to raise doubts about defendant’s credibility in his summation. THE FACTS The Arraignment On July 21, 2006, defendant was arraigned on the felony complaint, which alleged, inter alia, that defendant placed a razor blade to the complainant’s neck, pushed her inside the apartment, and stated, in sum and substance, “Give me the jewelry or I’ll slice her neck. And give me the money” (criminal complaint at 2; SA. 2). At defendant’s arraignment, the prosecutor stated that a razor blade that defendant had used had been recovered and defendant was held at the location until the police arrived, at which time all three complainants identified him. Defense counsel asked the prosecutor for “clarification on the statement that Mr. Ortiz was held by the complaining witness,” and the prosecutor explained that a struggled had ensued inside of the apartment when the complainants intervened after they 3 had observed defendant struggling with complainant Nunez and held defendant down until the police arrived. In response, defense counsel stated to the court, Your Honor, my understanding of the events from 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. (Arraignment Minutes at 3; T. 450; A. 450; SA. 5; A. 460). The Indictment By indictment number 3044 of 2006, filed on August 14, 2006, the Bronx County Grand Jury accused defendant of Burglary in the First Degree (Penal Law § 140.30[3]), Burglary in the Second Degree (Penal Law §§ 140.25[1][c] and [2]), Burglary in the Third Degree (Penal Law § 140.20), Robbery in the First Degree (Penal Law § 160.15[3]), Robbery in the Third Degree (Penal Law § 160.05), Grand Larceny in the Fourth Degree (Penal Law § 155.30[5]), Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]), Petit Larceny (Penal Law § 155.25), and Menacing in the Second Degree (Penal Law § 120.14[1]). The First Trial (2007) Similar facts were adduced at both trials: defendant unlawfully entered the apartment building where Colpo Manual Valenzuela and Jose Henrique Colon lived, placed a razor blade to Pura Nunez’s neck, and commanded that they give 4 him their money and jewelry or he would cut her, and forcefully grabbed a chain from Valenzuela’s neck. On the other hand, defendant claimed that he and his girlfriend were in the building looking to rent a room when defendant slapped Valenzuela after Valenzuela flirted with his girlfriend and insulted him, the two began fighting and ended up inside the apartment, where Valenzuela brandished a knife from the bedside table.3 The police found the knife under the bed on which defendant was being restrained, recovered the razor on the doorjamb between the hallway and Valenzuela’s bedroom, and found a broken chain on the bed (Nunez: PT.7. Valenzuela: PT. 321-322; Miranda PT. 191, 195-96, 198, 214-15, 234-36; Ortiz PT. 430-37; A. 608, 780-81, SA. 23-32). The jury convicted defendant of second-degree burglary, and acquitted him of first-degree robbery and first-degree burglary. The court sentenced defendant, as a mandatory persistent felony offender, to an indeterminate prison term of twenty years to life (PT. 490-91; A. 1059-60). The First Direct Appeal (2009) In the direct appeal of the prior judgment of conviction, defendant claimed that: (a) the prosecutor violated the Sandoval ruling; (b) the prosecutor engaged in prosecutorial misconduct; (c) the court’s improperly charged the jury on burglary; and (d) the New York mandatory persistent felony offender statute was 3 Defense counsel’s statement at the arraignment was not referenced at the first trial. 5 unconstitutional. On January 21, 2010, the Appellate Division, First Department reversed defendant’s conviction, based on cumulative prosecutorial errors, and remanded the case for a new trial. People v. Ortiz, 69 A.D.3d 490 (1st Dept. 2010). The Retrial (2010) The People’s Case On July 20, 2006, Colpo Manual Valenzuela and his girlfriend, Pura Nunez, returned to Valenzuela’s apartment building, located at in County after Valenzuela’s doctor’s appointment. The lobby of the apartment building was well-lit and the locks on the two doors that were supposed to secure the lobby were broken, meaning that a key was not needed to enter the building (Nunez: T. 234-36; Valenzuela: T. 156-57, 159, 186-88; A. 211-12, 214, 241-43, 277-79).2 They entered the lobby and walked towards the door to apartment , where Valenzuela lived. They did not see or hear anyone in the lobby or hear the front doors to the building open or close. Badly needing to use the bathroom, Valenzuela hurried to unlock and open the door and Nunez followed closely behind him. As soon as Valenzuela unlocked the door, defendant suddenly came up behind Nunez 2 Numerals preceded by “PT.” refer to the minutes of the first trial; those preceded by “T.” refer to the minutes of the retrial. Valenzuela and Nunez’ testimony was taken via a Spanish interpreter (T. 90,155, 221; A. 153, 210, 264). 6 and grabbed her. At first, Nunez thought it was a joke or someone fooling around because she got along well with most people in the building and had many friends there—but then defendant put a sharp object against the right side of her neck, and stated, in sum and substance, “Give me the money and the jewelry or I will cut her neck,” while making a slitting motion with his finger to the right portion of his neck. As soon as she felt the sharp poke, which hurt, she became scared and thought defendant was going to kill her (Nunez: T. 235-36, 238-39, 245, 271; Valenzuela: T. 157-63, 189; A. 212-18, 244, 278-79, 281-82, 288, 314) Defendant pushed Nunez, and, in turn, Valenzuela, through the doorway and into the hallway of apartment , and Nunez felt something sharp like a needle on the right side of her neck (Nunez: T. 239; Valenzuela: T. 190; A. 245, 282). Valenzuela told defendant that he would comply; he stealthily placed the keys in his right pocket and reached into his pocket with his right hand, positioned the keys inside of his fist, and then suddenly and forcefully struck defendant in the head above his left ear (Nunez: T. 235, 238, 242-43; Valenzuela: 157-59, 164-65, 228; A. 212-14, 219-20, 271, 278, 281, 285-86). The blow caused defendant to drop the razor blade he had been holding against Nunez’ neck (Nunez: T. 243; Valenzuela: T. 161, 165; A. 216, 220, 286). Defendant and Valenzuela then began fist fighting (Nunez: T. 243-44; Valenzuela: T. 166, 227; A. 221, 270, 286-87). Screaming “thief, a thief” and in a panic, 7 Nunez ran to get Valenzuela’s nephew, Jose Henrique Colon, who was asleep in his bedroom. Colon lived with Valenzuela and worked nights as a cab driver, so he slept during the day (Colon: T. 91-93; Nunez: T. 238-40, 243-47; Valenzuela: T. 159-66; A. 154-56, 214-21, 281-83, 286-90). As Valenzuela and defendant struggled and were “hitting each other,” defendant grabbed Valenzuela’s gold chain, yanked it downward, and broke the clasp, causing the medallion to fall off. Nunez, was screaming “a thief, a thief,” in a “very desperate, very panicked” voice and pounding on Colon’s locked bedroom door and trying to open it. Colon awoke in a panic, thinking that the apartment was on fire, put on a robe and immediately opened his bedroom door. He saw Valenzuela struggling with defendant near the door to Valenzuela’s bedroom, and ran to help. Colon grabbed defendant from behind, held him a bear hug position. Valenzuela looked very nervous and panicked, and Colon asked Valenzuela why they were fighting. Valenzuela replied that defendant had stolen his chain and asked Colon to “hold him tight, I want to give him two good punches.” Colon told Nunez, who was standing behind Manuel, to call 911, but Nunez responded “I can’t. I can’t.” Nunez was holding the phone, trying to dial 911, but she “didn’t know how to dial the number,”— she was crying and screaming; after defendant released her, Nunez felt very nervous and disturbed, and all she wanted to do was 8 cry (Colon: T. 92-93, 96-98, 112; Nunez: T. 235, 243-44, 246-49; Valenzuela: T. 167-71; A. 155-56, 159-61, 167, 222-26, 278, 286-87, 289-92). Defendant tried to break lose, but Colon thought that he could not let him go because the kitchen was behind him and defendant could grab anything to defend himself. Defendant tried to escape from Colon, and he and Colon both fell to the door to Valenzuela’s bedroom; Colon got up first, picked up defendant, and threw him on Valenzuela’s bed, such that defendant was lying across the foot of the bed, and held him by his neck. Defendant tried to grab Colon’s throat and was kicking his legs, and Valenzuela came into the bedroom and held defendant by his legs (Colon: T. 99, 109-12; Nunez: T. 296-97; Valenzuela: T. 167-68; A. 162, 164-67, 222-23, 339-40). While Valenzuela and Colon struggled with defendant in Valenzuela’s bedroom, Nunez was eventually able to call 911. While she was on the phone with the 911 operator, Nunez grabbed a knife that she had used to cut meat from the kitchen. She did so because Valenzuela was an “older man,” “not a strong man,” and defendant was “beating him up,” and if she saw that Valenzuela was losing, she would have given him the knife. She told the 911 operator that there was a thief in the apartment, and that Valenzuela was holding him at bay with a knife, although she was the person who was actually in possession of the knife. Nunez was nervous, and admitted that “[t]here are some things I said in 911 and later on 9 said, ‘what?’ I didn’t even know how to dial 911” and also that it was very frustrating, “I didn’t even know what I was saying” and “I had a knife in my hand. I said that meaning to say something else. . . . I had a knife. I don’t know why the hell I said that. I was nervous. Neither Colon nor Valenzuela had the knife, or any other weapons, during the encounter. During the 911 call, Nunez said “Manuel, no, Manuel, no” because Valenzuela was hitting defendant with anger and hitting him in the face, and Nunez did not want Valenzuela to get into bigger problems, she only wanted him to grab defendant (Colon: T. 114; Nunez: T. 252-57, 276, 304-05; Valenzuela: T. 174; A. 169, 229, 295-300, 319, 347-48). After Nunez saw that Valenzuela and Colon were able to restrain defendant, and shortly before the police arrived, she threw the kitchen knife under the bed — she did not want any other tragedies to happen that day. The complainants had not seen defendant before, nor did they give him permission to enter or remain inside of the apartment (Colon: T. 112-14, 124-25; Nunez: T. 255-57; Valenzuela: T. 167-75, 181, 206-07; A. 167-69, 179-80, 222-30, 236, 299-300). At approximately 1 p.m., Police Officers Perie Miranda and Joseph Castro and Sergeant Robert Hanratty, working on a Burglary Apprehension Team, received a radio transmission relaying a burglary in progress at , Apartment . The perpetrator was described as male Hispanic, twenty to thirty years-old, wearing a t-shirt, jean shorts, and sneakers, and was being held by 10 two victims. The police arrived at the location within four to five minutes, and they did not observe anyone standing in the lobby (Miranda: T. 5-10; A. 68-73). The door to apartment was ajar, so Officer Miranda knocked on the door before he and Sergeant Hanratty went inside. They were met by a “frantic” and “hysterical” Nunez, who was yelling, “ladron,” meaning “thief” in Spanish. Officer Miranda speaks and understands Spanish. Nunez directed the officers to the bedroom, where, after seeing the police, Colon stated “he’s the guy, he’s the guy,” and the officers observed Valenzuela and Colon restraining defendant, who matched the given description; both Colon and Valenzuela yelled “ladron.” Officer Miranda placed defendant under arrest and into handcuffs, and Sergeant Hanratty escorted defendant out of the room. Officer Miranda saw a yellow chain with a broken clasp on the bed underneath defendant, and Nunez gave him the medallion, which had been hanging from Valenzuela’s chain. After interviewing Nunez, Colon, and Valenzuela, Officer Miranda took a picture of the medallion and chain and returned them to Valenzuela. Nunez told Officer Miranda that defendant had a knife to her neck, using the word “knife” in Spanish, but when he located the kitchen knife under the bed, he learned that this was not the knife defendant had used. Seconds later, he found the razor blade on the doorjamb between the hallway and Valenzuela’s bedroom; Valenzuela’s bedroom was approximately five feet from the front door to apartment . The photograph and 11 the razor were vouchered (Miranda: T. 12-27, 42-43, 47, 51, 53; A. 75-90, 105-06, 110, 114, 116). The Defense Defendant, Luis Ortiz,3 testified that he and his girlfriend, Jacqueline Martinez,4 had taken the train from Bushwick, Brooklyn to 174th Street in the Bronx, looking for a room for him to rent within an apartment. Although defendant was not looking for any signs that buildings had vacancies or rooms for rent, he had inquired in various apartment buildings in the area, and ultimately entered (Ortiz: T. 317, 320-23, 374-75; A. 352, 355-56, 397-98). Defendant rang the bell to apartment , and someone buzzed Martinez and him into the lobby. Once inside, they saw a man, later identified as Valenzuela, open his apartment door and stand in the foyer. They assumed that Valenzuela had electronically opened the lobby door for them. Martinez asked Valenzuela if they 3 Defendant admitted that he had been convicted of a felony in 1986, a robbery in 1990, and a robbery in 1996 (Ortiz: T. 318-20, 352; A. 353-55, 375). Defendant admitted to using a fake name – Luis Rodriguez – when he was arrested for robbery in 1990—because he thought that giving a fake name might get him out of trouble (Ortiz: T. 319-20, 347; A. 354-55, 370). Defendant acknowledged that he had testified under oath and a prior proceeding that he had never used that fake name again, but admitted that, when he was under oath and pleading guilty to robbery, he told the court that his full name was Luis Rodriguez (Ortiz: T. 347-53; A. 370-76). 4 Martinez did not testify at either trial. 12 could talk to the superintendent about vacancies. In response, Valenzuela flirted with Martinez, and repeatedly insulted defendant (Ortiz: T. 323-27; A. 358-62). Valenzuela continued to flirt with Martinez and to direct degrading comments toward defendant in Spanish. Defendant then started a physical altercation with Valenzuela, which ended up with the two of them fighting inside Valenzuela’s apartment. Eventually, someone, who defendant later learned was Colon, Valenzuela’s nephew, got involved and managed to pin defendant down (Ortiz: T. 326-32, 386-93, 396-98; A. 361-67, 409-416, 419-21). While Colon restrained defendant, Valenzuela allegedly came into the bedroom and retrieved a knife from a night table. Colon and Valenzuela were telling a lady in the kitchen, who defendant later learned was Nunez, to get the phone. Valenzuela approached defendant, and tried to “stick” him with the knife. Defendant was still being held down on the bed when the police arrived. (Ortiz: T. 330-34, 390-93, 396-97 399-405; A. 365-69, 413-16, 419-20, 422-28). After defendant’s arrest, he met with a representative from the New York Criminal Justice Agency. He was aware that the point of speaking with that person was to give the Judge at arraignments an indication of whether he should be released on bail. Although defendant lived in Brooklyn, he told the representative that he lived in the Bronx with his parents at for one year even though he did not live with them and this was not their address. Defendant told the 13 representative that he was unemployed and had been for a month, even though he was working at a church at the time. Defendant was born in 1966 and denied that he told the representative and Officer Miranda that he was born in 1968 (Ortiz: T. 368-74, 384-86; A. 391-97, 407-09).5 Defense counsel’s statement at arraignments was admitted in evidence by stipulation that stated: It is [] 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, [defense counsel], “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. And 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 [defense counsel] 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. 5 In their rebuttal case, the People introduced the Criminal Justice Agency (C.J.A.) Report created by the C.J.A. interview of defendant on the day of his arrest through Colleen Grant, an Operations Manager at the New York City C.J.A. (Grant: T. 488, 492-93; SA. 47, 51- 52). Grant confirmed that the report stated that defendant’s date of birth was , his current address was , where he lived with a parent for one year, and did not list an alternate address, that he was unemployed for one month, did not indicate a job or position, employer, place of employment, length of employment, or other sources of financial support (Grant: T.488; SA. 47). Grant explained that all of the information on the report comes from the defendant, that the information is recorded simultaneously, and that each C.J.A. employee is trained and required to explain to the defendant who they are, the nature of their job, and that telling the truth is essential (Grant: T. 490-93; SA. 49-52). 14 [Defense counsel] would further state that Mr. Ortiz stated to her on July 21, 2006, that the complaining witness, had a kitchen knife. (T. 486-87; A. 432-33). 6 The Verdict The jury found defendant guilty of burglary in the second degree (T. 610-13; SA. 55-58). The CPL § 330.30 Motion On October 8, 2010, defendant filed a motion to set aside the verdict pursuant to CPL § 330.30(1), asserting that the court erred in: (1) not precluding testimony as to defendant’s use or threatened use of a dangerous weapon because the 2007 verdict constituted a final judgment as to this issue, and (2) not allowing defense counsel to withdraw and not granting a mistrial because defense counsel was forced to become a witness in the case (CPL § 330.30 Motion at 1; SA. 66). The People opposed the motion, arguing that the jury did not reach a final judgment on defendant’s use or threatened use of the razor, and withdrawal of 6 This was preceded by the court’s denial of defense counsel’s request that she be allowed to withdraw as counsel or, in the alternative, that a mistrial be granted because defendant had a right to confront counsel about her arraignment statements and because the introduction of defense counsel’s statements made her a witness against her client, in violation of the advocate- witness rule (T. 413-14; 430, 442-46, 466-70; A. 452-56, 476-80; SA. 42-45). Defense counsel chose to enter the stipulation even though the court, in an attempt to accommodate defense counsel’s desire to inform the jury that she had been mistaken, offered to appoint the 18-b attorney who, along with current counsel, had represented defendant at his first trial, to examine counsel regarding the arraignment statement (T. 470-76, 480; January 26, 2011 Decision at 9; A. 480-86, 490; SA. 99). 15 counsel and a mistrial were not appropriate because the stipulation placed defendant in a more favorable position than if defense counsel had testified, and defense counsel’s credibility was not called into question (Affirmation in Opposition at 5, 7, 9; SA. 85, 87, 89). The court denied the motion, concluding that there were numerous reasons why the jury could have acquitted defendant on the two charges, and courts should not speculate into jury’s mental processes, and in any event, the razor was relevant. The court also found that counsel was never placed in the position of an unsworn witness nor having to argue her credibility. Since counsel had not witnessed the crime, her testimony would have been offered only on the issue of defendant’s credibility, which was not a material issue, and moreover, defendant experienced no prejudice (January 26, 2011 Decision at 4-5, 9-10; SA. 84-85, 89-90). The Second Direct Appeal (2014) On February 4, 2014, a unanimous panel of the Appellate Division, First Department, affirmed defendant’s judgment of conviction, except to the extent that it vacated defendant’s sentence and remanded for resentencing. Ortiz, 114 A.D.3d at 430-31.7 7 After the second trial, the trial court imposed a longer sentence than the one defendant received after his first trial. Because there was no record articulation of some event justifying the more severe sentence, a new sentencing proceeding was required. Id. at 431-32. 16 The First Department found that the trial court properly determined that collateral estoppel did not require preclusion of the evidence of defendant’s possession, use, or threatened use of a razor blade, reasoning that defendant failed to meet his heavy burden to establish that the first jury necessarily decided these particular factual issues in his favor, and concluding that, based on a “practical, rational reading” of the first trial record (id. at 430, citing People v. Acevedo, 69 N.Y.2d 478, 487 [1987]), including the evidence presented and the issues raised, a “rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” (Ortiz, 114 A.D.3d at 430, citing People v. Goodman, 69 N.Y.2d 32, 40 [1986]). Further, the First Department explained that it was apparent in this case that “the Acevedo rule [could not] practicably be followed if a necessary witness [were] to give truthful testimony” (Ortiz, 114 A.D.3d at 430, citing People v. O’Toole, 22 N.Y.3d 335, 339 [2013]), because the case turned on the credibility issue of whether the incident was an altercation or a home invasion, and, as such, the presence of the razor blade was essential to completing the complaining witnesses’ narrative and establishing the criminal intent element of burglary, and defendant was properly precluded from “tak[ing] unfair advantage of the dilemma that Acevedo creates for the People” (id.). 17 Moreover, the court found that none of the issues relating to the statement made by defendant’s attorney at arraignment warranted reversal. Ortiz, 114 A.D.3d at 430-31. At the arraignment, defendant’s attorney stated that defendant was the sole source of the information, and she was “clearly” acting as defendant’s authorized agent — “notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident” — when provided the information for defendant’s benefit. Id., citing People v. Moye, 11 A.D.3d 212 (1st Dept. 2004), lv denied 4 N.Y.3d 766 (2005) and People v. Kallamni, 14 A.D.3d 316 (1st Dept. 2005), lv denied 4 N.Y.3d 854 (2005). Therefore, the trial court properly admitted the arraignment statement to impeach defendant after he testified to a different version of the events. Ortiz, 114 A.D.3d at 431, citing People v. Brown, 98 N.Y.2d 226, 232-33 (2002). The First Department determined that the trial court properly exercised its discretion in denying defendant’s request for a mistrial, a drastic remedy, because the court, with the participation of the parties, took sufficient steps to prevent defendant from being prejudiced, and to the extent that the advocate-witness rule was implicated, it only involved the ethical rule against testifying for one’s client, and the stipulation was sufficient to protect defendant’s interests regarding the impeachment issue and to avoid an advocate-witness problem, unlike in People v. Berroa, 99 N.Y.2d 134 (2002). Ortiz, 114 A.D.3d at 431. It also found that 18 defendant failed to preserve his constitutional claims regarding the admission of the arraignment statement and the related issues, including his claim that he was deprived of his right to conflict-free counsel, declined to review them in the interest of justice, and, in the alternative, rejected them on the merits. Id. The court also found that, by failing to make timely and specific objections, defendant failed to preserve his challenges to the prosecutor’s summation, declined to review them in the interest of justice, and, in the alternative, rejected them on the merits. Id., citing People v. Romero, 7 N.Y.3d 911, 912 (2006). ARGUMENT POINT ONE THE TRIAL COURT AND THE APPELLATE DIVISION CORRECTLY DETERMINED THAT THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT REQUIRE PRECLUSION OF TESTIMONY REGARDING THE RAZOR BLADE BECAUSE DEFENDANT DID NOT SHOW THAT THE JURY AT HIS FIRST TRIAL NECESSARILY DECIDED THIS FACTUAL ISSUE IN HIS FAVOR AND, IN ANY EVENT, THE TESTIMONY AS TO THE RAZOR BLADE WAS ESSENTIAL TO THE COMPLAINANTS’ NARRATIVE AND ESTABLISHING AN ELEMENT OF THE CRIME ON TRIAL. Defendant claims that the prosecution was collaterally estopped from presenting evidence at his second trial that he used a razor because, by acquitting him of Burglary in the First Degree at his first trial, the jury necessarily found that 19 he had not used a dangerous weapon, and thereby had already determined that issue (defendant’s brief at 25). This claim is meritless. The court’s role is to “read the record with realism and rationality” (Acevedo, 69 N.Y.2d at 488), and doing so in this case reveals that the first jury did not “necessarily” decide this issue in defendant’s favor. Moreover, the People’s witnesses could not testify completely and truthfully about why this was a burglary unless they could inform the jury about defendant’s use of a razor blade. As such, the lower courts correctly determined that collateral estoppel did not require exclusion of the use or threatened use of the razor blade here. The primary purpose of a criminal jury trial is truth-seeking. To further this goal, generally “all relevant evidence is admissible unless its admission violates some exclusionary rule.” People v. Lewis, 69 N.Y.2d 321, 325 (1987), citing Ando v. Woodberry, 8 N.Y.2d 165, 167 (1960). “Evidence is relevant if it has any ‘tendency in reason to prove any material fact’” Lewis, 69 N.Y.2d at 325. An exception to this broad rule is the doctrine of collateral estoppel. Collateral estoppel prevents a party from relitigating an issue decided against it in a prior proceeding. This common law doctrine, rooted in civil litigation, is grounded in “a desire to conserve the time and resources of the court and the parties, and to avoid possible inconsistent determinations.” People v. Aguilera, 82 N.Y.2d 23 (1993). In achieving this result, civil law “accepts the occasional enthronement of 20 erroneous findings of fact as a necessary cost.” People v. Berkowitz, 50 N.Y.2d 333, 345 (1980). This doctrine is especially understandable in the context of civil litigation, where juries often make specific factual findings in the form of special verdicts or general verdicts accompanied by answers to interrogatories (see CPLR 4111), allowing for precise determinations of the facts they determine, whereas juries in criminal cases only render general verdicts. The policy considerations governing the application of collateral estoppel in criminal cases are much different than those governing its application in civil cases. Unlike their civil counterparts, criminal defendants are protected against burdensome and repetitious prosecution by double jeopardy, and collateral estoppel is “somewhat less needed in the criminal law”; this is especially true under New York law, which “contains extraordinarily broad proscriptions against multiple prosecutions of the same defendant for the same crime or for different crimes based on the same transaction.” Berkowitz, 50 N.Y.2d at 345-46 (citations omitted). See also People v. Plevy, 52 N.Y.2d 58, 64 (1980) ( the doctrine “is less relevant in criminal cases where the pre-eminent concern is to reach a correct result and where other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation”). Moreover, the fundamental goal of a criminal proceeding is to correctly determine guilt and innocence, “not the swift resolution of some private dispute between the prosecutor and the accused” (Berkowitz, 50 21 N.Y.2d at 345). As such, collateral estoppel has “always been a flexible doctrine which is not to be applied blindly and mechanically,” especially in matters outside of civil litigation. Id. “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment.” Goodman, 69 N.Y.2d at 40. In order to benefit from this doctrine, a defendant must demonstrate that “the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution.” Acevedo, 69 N.Y.2d at 487. This burden is “a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions.” Id. This holds especially true in the context of a mixed verdict, where a jury finds a defendant guilty on some charges, but not others, arising from the same conduct. Goodman, 69 N.Y.2d at 40. If a defendant can only demonstrate that the verdict is ambiguous regarding this matter, he cannot meet his burden. Id. In determining whether a jury’s verdict necessarily decided a factual issue raised in a second prosecution, the Court has explained, that the rule must not be applied with a “hypertechnical approach,” but instead by examining all parts of the record with “realism and rationality” and determining “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration.” Id. citing Ashe v. Swenson, 397 U.S. 436, 443-45 22 (1970). The record includes “pleadings, evidence, charge and other relevant matter,” such as the parties’ arguments and the jury’s questions while deliberating. Acevdeo, 69 N.Y.2d at 487-88, 490. Collateral estoppel should only apply if an examination of the entire verdict demonstrates that a specific factual finding was necessarily made in defendant’s favor. Goodman, 69 N.Y.2d at 39-41. In Acevedo, the Court held that “collateral estoppel, in principle, can bar relitigation of evidentiary, as well as ultimate, facts.” Acevedo, 69 N.Y.2d at 487.8 Acevedo was accused of committing two different robberies on the same night. After he was acquitted at the first trial, the complainant from that trial essentially repeated his testimony at the second trial; on appeal, the Court concluded that the People were estopped from introducing this testimony because the first jury had necessarily concluded that the complainant’s testimony was incredible. Id. at 484. Acevedo has no resemblance to the instant case. Here, the first jury found defendant guilty of second-degree burglary, meaning that it necessarily credited some, if not all, of the complainants’ testimony. Further, the facts that Acevedo’s first jury necessarily decided in his favor when it acquitted him arose from a separate incident; here, the retrial was on the same incident and the facts could not 8 Ultimate facts are those which are essential to conviction in the second trial, whereas an evidentiary fact is not the sine qua non of his conviction at the second trial. Id. at 486. Here, defendant’s use or threatened use of a razor blade does not constitute an ultimate fact because second-degree burglary, the only crime charged in this case, does not contain a “use or threatened use of force” element; instead, it is an evidentiary fact that was used to prove the “ultimate fact,” the element of intent. 23 be separated. Moreover, in Acevedo, the second trial subjected Acevedo to a whole new set of charges and essentially made the severed trials meaningless. In O’Toole, the Court applied the Acevedo rule in a criminal case for the first time in 26 years. O’Toole, 22 N.Y.3d at 339. There, the jury at the defendant’s first trial found him guilty of second-degree robbery but acquitted him of first- degree robbery, and, after a reversal and retrial, the defendant was convicted of second-degree robbery. Id. at 337. The Court affirmed the Appellate Division’s conclusion that the court at the defendant’s second trial erred in allowing the People to introduce evidence that the defendant’s accomplice pointed what appeared to be a firearm at the complainant during the incident, reasoning that the first jury “could not logically have” reached its verdict without finding that the People failed to prove beyond a reasonable doubt that the robbery involved the display of a firearm. Id. at 337-38. Here, defendant cannot demonstrate that the first jury, through its verdict of acquittal of first-degree burglary and conviction of second-degree burglary, necessarily determined that defendant did not use or threaten to use a razor blade because there were other rational bases on which the first jury could have based its verdict.9 On the contrary, it “could not logically have” both determined that 9 Defendant does not appear to be arguing that acquittal of first-degree robbery is germane since the only mention of this fact in his argument is in a footnote (defendant’s brief at 24 (footnote continued on the following page) defendant did not use or threaten the use of the razor blade and also convicted him of second-degree burglary. The first jury likely found defendant guilty of second-degree burglary, but not of first-degree burglary, because it concluded that the razor blade did not constitute a “dangerous instrument.” This is a rational and realistic possibility given the definition of “dangerous instrument” the court provided and the evidence available to the jury. In charging the jury on Burglary in the First Degree (Penal Law § 140.30[3]), the court referenced the definition of a dangerous instrument that it had delivered for first-degree robbery, which it defined by more or less combining the definition of “dangerous instrument” in Penal Law § 10.00(13) and “serious physical injury” in Penal Law § 10.00(10): A dangerous instrument means any instrument, article or substance which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury. That is, serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ. The court added, “Under that definition, the death or other serious physical injury need not in fact be caused” (PT. 439-40; A._). 25, n. 11), and, of course, robbery has entirely different elements than burglary. Compare Penal Law § 160.15(3) with Penal Law § 140.30(3). 25 Jurors are entitled and expected to bring their common sense and experience to deliberations, “Jurors, of course, do not live in capsules. It is not expected that their selection as jurors should cripple their cognitive functions. On the contrary, the leavening accomplished by the application of a lay jury’s collective intelligence and experience to the tasks of sifting evidence and reaching a verdict is justly regarded as a hallmark of our judicial system.” People v. Brown, 48 N.Y.2d 388, 393 (1979). Single-edge razor blades are common household objects that are inexpensive and widely available. One would be hard-pressed to find a home without one; beyond shaving, their uses vary from enumerable household tasks (e.g. paint preparation/removal, sticker or decal removal, scraping, grouting, opening boxes), to hobbies and crafts. As such, it would be difficult to imagine that none of the twelve jurors had any personal experience with this type of tool. The particular razor blade that defendant was accused of using was in evidence and available for the jurors to examine (PT. 26-30; A. 627-31). The razor blade is a standard single-edge razor blade, approximately 1.5 inches long, .75 inches wide, and .009 inches thick. It does not have the shiny appearance of a brand-new razor blade, and the blade is, as can be inferred from the evidence discussed below, dull. 26 According to the jury instructions, a dangerous instrument must be “readily capable of causing death or other serious physical injury” (PT. 439-40; A._). That means not just ordinary physical injury, such as a laceration or pain, but instead death or protracted disfigurement, impairment of health, or loss of function of a bodily organ. In addition, the legislature specifically included the word “readily,” rather than just requiring it be “capable” of inflicting such injury. The Oxford English Dictionary defines readily, in relevant part, “2a. Quickly, without delay. Also: without difficulty, easily. 2b. As may easily happen; probably, naturally. 3. In a state of readiness; so as to be fully prepared or complete.” Dictionary, OED Online. June 2015. Oxford University Press, available at http://www.oed.com/view/Entry/158861?redirectedFrom=readily&. Thus, rather than merely being able to inflict this injury, the object has to be able to do so quickly, easily, and naturally “under the circumstances which it is used” — meaning not that it would be possible to inflict protracted disfigurement if the victim were incapacitated, after a period of forty-five minutes, or if the blade were sharpened. Here, that would mean that defendant could have used the razor blade to kill Nunez, or cut deeply enough to inflict long-term (if not permanent) severe injuries, while her husband was standing right next to her, his nephew was in the next room, and they were only steps away from an open lobby in a building where Valenzuela and Nunez were close with most of the residents. Given this definition 27 of “dangerous instrument,” it is quite possible, and in fact probable, that the jury concluded that the razor blade did not fit this definition. This is especially true considering that the definition included the phrase “under the circumstances in which it is used.” Nunez’ testimony casts serious doubt on the possibility that the jurors found that razor blade satisfied this definition. Nunez testified that she could feel the sharp edge of the razor blade as defendant pressed it against her neck, such that she thought he was going to kill her, and yet it did not leave a mark on her neck (Nunez: PT. 11-13, 62, 67, 109; A.612-14, 663, 668, 697). Similarly, even though defendant was holding the razor blade against Nunez’ neck when Valenzuela hit defendant, it did not cut or leave any marks on her neck (Nunez: PT. 67; A. 668). A reasonable person would expect that a razor blade “readily capable of causing death” would inflict a severe laceration — or at the very least break the skin — when the man pressing it against someone’s neck suffers an unexpected blow to the head. Cf. People v. Arnold, 96 N.Y.2d 358, 366 (2001) (“We do not require jurors to check their life experiences at the courtroom door, nor could we.”). Defense counsel highlighted this during summation, reminding the jury that Nunez did not sustain any injures, “She had supposedly this razor blade to her neck. It wasn’t in the general area of Pura Nunez. She claims she felt the sharp edge against her skin. She felt the sharp edge pressing into her skin when Manuel Valenzuela punched him in the head, but this 28 blade didn’t scratch her, it didn’t scrape her, it didn’t cut her. Miraculously Pura Nunez gets out of it without a scratch” (PT. 398; A. 1007). Thus, it makes sense that the jury found defendant not guilty of the charge that required a “dangerous instrument,” but found him guilty of the charge the court had explained was the same except that it did not require proof of the use or threatened use of a dangerous weapon (PT. 444; A. 1053). It is axiomatic that a jury is not bound by the way the case is tried. As such, defendant’s claim that simply because neither party argued to the jury that the razor blade did not meet the court’s definition of dangerous instrument, the jury could not have reached this conclusion (defendant’s brief at 26-27) is unsupported and meritless. Further evidence that this was the basis for the first jury’s verdict, and that it could not have “necessarily” decided that defendant did not use or threaten to use a razor blade, is that it could not have convicted defendant of second-degree burglary without crediting complainants’ testimony about the razor. Defendant’s possession of a razor blade with the intent to use it unlawfully against another was the only evidence presented of his intent to commit a crime inside of the apartment, an element of second-degree burglary.10 Defendant claimed that he entered the 10 Although in his summation, the prosecutor suggested that defendant could have had the intent to trespass (PT. 407; A. 1016), this is not sufficient to support finding of guilt for burglary. People v. Gaines, 74 N.Y.2d 358, 362 (1989). 29 (footnote continued on the following page) apartment building to look for rooms to rent and was pulled into when a verbal altercation outside of turned physical (Ortiz: PT. 413, 430-34; A. 872, 890-94). In her summation, defense counsel explained that nobody commits robbery or burglary by slapping their victims (PT. 385; A. 994). She emphasized the importance of defendant’s possession of the razor blade to the People’s case, asserting that they would argue that defendant “was arrested in the house, there’s a razor blade recovered, the necklace was recovered, what more did they need to do?” (PT. 376; A. 985). Instead, she asserted that because defendant never had the razor blade, he was not guilty, “He didn’t have it in his hand. He did not go to that house to commit a robbery. He did not go there to commit a burglary. This razor blade doesn’t have his fingerprints on it. He never had it. He is not guilty” (PT. 374; A. 983) (see also PT. 379, 400; A. 988, 1009 [because defendant did not have the razor blade he was “not guilty of any of these crimes” and he “never tried to commit a burglary” or committed robbery]). Thus, possession of the razor and intent to use it constituted the criminal intent element of burglary — an element the first jury found to have been proven beyond a reasonable doubt — and based on the evidence presented, there could not have been another basis for the jury’s Additionally, possessing a razor without the intent to use it unlawfully against another is not a crime. Penal Law § 265.01(2); In re Francisco C., 238 A.D.2d 224, 226 (1st Dept. 1997); People v. Sullivan, 300 A.D.2d 689, 691 (3d Dept. 2002). 30 finding of guilt of second-degree burglary. The razor blade was also vital in establishing defendant’s unlawful entry into ; defendant was able to force his way into the apartment without resistance because he put the razor blade to Nunez’ neck as he pushed her and Nunez thought he was trying to kill her, “someone that walks into a house in the way that he got in is someone that has a weapon. I had already felt the knife in my, in my neck” (Nunez: PT. 55-56, 108-09; Valenzuela PT. 312, 336; A. 656-57, 696-97, 771, 795). In any event, the Court has cautioned that “collateral estoppel should be applied sparingly in criminal cases” due to the likelihood that application of the Acevedo doctrine will cause practical problems. O’Toole, 22 N.Y.3d at 339. Thus, even in cases where a defendant carries this heavy burden and establishes that his first jury “necessarily” decided a fact in his favor, its application is not always appropriate. In fact, O’Toole was the first criminal case in 26 years in which the Court held the doctrine applicable. Id. In doing so, however, the Court explained that if it became apparent in any case (including O’Toole’s retrial) “that the Acevedo rule cannot practicably be followed if a necessary witness is to give truthful testimony, then collateral estoppel should not be applied.” Id. In addition, the Court emphasized that a defendant should not enjoy a windfall, “Nor should defense counsel be allowed to take unfair advantage of the dilemma that Acevedo creates for the People.” Id. 31 This case represents a significant distinction from O’Toole, and provides an opportunity for the Court to draw the boundaries of Acevedo’s application. While Acevedo serves an important function — preventing a defendant from being unfairly subjected to relitigation of a factual issue once it has been necessarily decided in his favor (Acevedo, 69 N.Y.2d at 486) — this function must not be permitted to eclipse the People’s ability to clearly present the facts of a case to the jury. This case exemplifies how application of the Acevedo rule in some instances can be not just impractical, but calamitous to a jury’s comprehension of the facts and render the case impossible to prove. As the Appellate Division concluded, it is apparent that the Acevedo rule cannot be applied here because this case turned on the credibility issue of whether the incident was an altercation or a home invasion, and, thus, the presence of the razor blade was essential to completing the complaining witnesses’ narrative and establishing the criminal intent element of burglary. Ortiz, 114 A.D.3d at 430. The razor blade was also necessary to demonstrate that the entry was accomplished by force, and, thus was knowingly unlawful. Therefore, defendant was properly precluded from taking unfair advantage of the dilemma this would have created for the People. Ortiz, 114 A.D.3d at 430. Thus, even assuming, arguendo, that the first jury necessarily decided that defendant did not use or threaten to use a razor blade, the Acevedo rule should not be applied in this case. 32 In addition, the complainant in O’Toole could give coherent, believable testimony without mentioning the accomplice’s possession of a firearm. At O’Toole’s first trial, complainant Horsey testified that the defendant’s accomplice, a “large black man,” entered Horsey’s barber shop, approached Horsey, who was holding his 18-month-old son, handed Horsey a phone, which Horsey put to his ear and heard the defendant’s voice commanding him to “put [his] son down [and] give my man the jewels.” Horsey turned to face the accomplice and saw that he was pointing a firearm at Horsey’s stomach. The accomplice followed Horsey outside of the barber shop, where Horsey encountered defendant, and while they were having a conversation (and the accomplice stood next to Horsey and appeared to be aiming the gun toward him), Horsey’s son ran out of the shop, and Horsey gave the defendant a gold chain. Id. at 337; id. at 342 (Pigott, J., dissenting); Transcript of Oral Argument at 9, O’Toole, 22 N.Y.3d 335 (2013) (No. 233-18), brief for appellant in People v. O’Toole, 22 N.Y.3d 335 (2013), available at https://www.nycourts.gov/ctapps/courtpass/Public_Browse.aspx. The Court explained that practical problems caused by precluding evidence of the firearm could be avoided by the People telling Horsey not to volunteer any information about the firearm and not asking him any questions that might call for testimony about it. O’Toole, 22 N.Y.3d at 339. The accomplice’s large physical size and proximity to Horsey and his young child, as well as his act of following 33 Horsey outside the store, could reasonably have placed Horsey in fear of his own or his son’s physical safety. That the defendant was waiting for him outside of the store furthered this, and when his child ran out of the shop while Horsey was involved in the conversation with the defendant (and the accomplice was standing to Horsey’s right), the obvious conclusion would be that Horsey acquiesced to the defendant’s demand in order to protect his son (which matches Horsey’s testimony at the first trial [brief for appellant in O’Toole, supra, at 16]). In contrast, the People’s case does not make sense if the razor blade is artificially excluded from the testimony. While at once acknowledging that the razor blade played a central role at trial (defendant’s brief at 13-14), defendant contends that the complaining witnesses “can easily leave the razor out of their narrative” (defendant’s brief at 28-29). This argument is unpersuasive and ignores reality. The razor blade and the use or threatened use thereof is essential to completing the narrative in the instant case. Significantly, telling the story without the razor blade or its threatened use would not just be an omission, as in O’Toole, but would require affirmative changes of fact. The complainants testified that defendant threatened to cut Nunez’ neck if he was not given the money and jewelry while he simultaneously made a slitting motion with his hand over Nunez’ neck (Nunez: T. 241; Valenzuela: T. 162; A. 284, 217). Instead of testifying 34 truthfully, they would have to materially change defendant’s words, removing the threat of physical violence and leaving only the command to hand over the desired objects— a completely different scenario. Similarly, Nunez testified that when she felt someone come up behind her and put a hand on her neck, she thought it was a prank and was not scared (Nunez: T. 235, 271; A. 278, 314). It was not until she felt the painful, sharp poke—the razor blade being pressed against her neck—that she knew she was wrong, became scared, and thought that defendant was going to kill her (Nunez: T. 235, 271; A. 278, 314). She remained so flustered even after she escaped defendant’s grasp that she was not able to remember how to dial 911(Nunez: T. 235, 243-44, 246; A. 278, 286-87, 289). Instead of truthfully testifying, she would have to somehow explain that something she had thought was a practical joke changed into a terrifying life-or-death situation in a split second for no apparent reason—or alternatively she would have to say that from the moment she felt the hand on her neck, she became hysterical and scared for her life, which was not true. Related, defendant was able to enter the apartment because he put the razor blade to Nunez’ neck and pushed her inside (Nunez: T. 239, 273; A. 282, 316); without evidence of the razor blade, Nunez would have to explain why she put up no resistance to a man she had never seen before pushing his way into the apartment. 35 Further, Valenzuela, an older man not in good health (Nunez: T. 245; Valenzuela: T. 156-57; A._), testified that he decided to punch defendant, who was younger and stronger than him (Ortiz: T. 387; A. 410), when he saw that defendant had a razor blade to the neck of the woman he loved because defendant would have cut her neck (Valenzuela: T. 194; A. 249). Instead of testifying truthfully, he would have to manufacture another reason for immediately resorting to striking defendant, rather than trying to reason with defendant—who again, Valenzuela would have to say, was unarmed and was holding his wife with only one hand— or calling for help from his nephew, brother, or his brother’s children who all lived in apartment , or to others in the building where he had lived for many years (Valenzuela: T. 182-83; A. 237-38). Beyond not being truthful, these changes, along with the obvious questions they elicit, completely change the tone and weaken the believability of the complainants’ story. The story borders on ridiculous: in the middle of the afternoon in the open, well-lit lobby of an apartment building where Nunez and Valenzuela had a close relationship with most of the residents, while they were standing in front of the door to Valenzuela’s apartment where his adult nephew was resting, an unarmed man put one hand on Nunez’ neck and said “Give me the money and the jewelry.” Nunez, without experiencing any physical pain, was so terrified that she did not attempt to struggle or get away—and even after 36 Valenzuela punched defendant and she escaped defendant’s one-handed grasp, she remained too flustered and hysterical to remember how to dial 911, even minutes later after defendant had been subdued by Colon and Valenzuela. Not to mention, any reasonable person would not be able to help but wonder why someone would try to forcibly steal from someone in broad daylight using nothing more than his bare hands—or hand, as the testimony would have to be in this case. Defense counsel highlighted the absurdity of the unarmed burglar scenario in her summation at the first trial: “No one ever committed a robbery or a burglary by slapping someone” (PT. 385; A. 994). Moreover, why would Nunez still have been in such deep fear of the unarmed defendant, even after Colon and Valenzuela had subdued him, that she grabbed a knife? This action is easily explained by the fact that seconds earlier, this man had pressed a razor blade against her neck and threatened to cut her; without these facts, her actions seem at best a bizarre overreaction, and, at worst, suggest that defendant was actually the victim and give credence to his version of the events. The chasms created by removing these facts eviscerate the complainants’ credibility. Defendant cites Nunez’ frantic 911 call as an example of how the complaining witnesses could and “already have” told their story without mentioning the razor blade (defendant’s brief at 28-29). This is simply not a realistic alternative. Nunez did not tell the 911 operator that defendant had a 37 weapon because, as she stated in her testimony, he did not have a weapon at that time (see Nunez: T. 306; A. 349 [“That had already happened. I was with the police telling them what was going on at that moment. I was not telling them what had already happened. I was exclusively telling them everything that was going on at that moment. I never said to them that he put that thing there. None of that. I was just telling them they’re holding him. I was telling him everything that was going on.”]). A reading of the transcript shows that the four times the 911 operator asked about a weapon, she was speaking in the present tense, i.e. asking whether, at the present time, anyone had a weapon, and Nunez’ answers were accordingly based in the present moment (911 Transcript at 1-4; SA. 7-10); for example when the operator asked if defendant had a weapon, she described what was going on at that moment: “No, no, it doesn’t look like it! They have not giving [sic] him the opportunity, but he’s struggling a lot and I’m scared” (id. at 3-4; SA. 9-10). Moreover, when the operator asked if they had caught defendant inside the apartment, Nunez blurted, “Yes! No!, we were entering and he pushed the door and he came in with us and he told my husband-all the jewelry and all the money- no Manuel, no (noise)!” (id. at 3; SA. 9). As evidenced by the fact that Nunez made no mention that defendant had made any physical contact with her whatsoever, this was no more than a frantic reply to the operator’s question of where they had first encountered defendant, not a recounting of the entire story. 38 Moreover, Nunez was mid-thought when she became distracted by something happening in the room and yelled for Valenzuela to stop. Defendant’s proffered solution further demonstrates that this is one of the cases wherein “the Acevedo rule cannot practicably be followed if a necessary witness is to give truthful testimony” (O’Toole, 22 N.Y.3d at 339). What’s more, in O’Toole, the People could still prove each element of second-degree robbery beyond a reasonable doubt without evidence of the firearm; a conviction for second-degree robbery could be obtained by establishing merely that the defendant was “aided by another person actually present” (Penal Law § 160.10[1]), thereby rendering unnecessary any testimony that the accomplice pointed what appeared to be a pistol. Under Penal Law § 160.10(1), the other person actually present need do no more than stand nearby, acting as a lookout or as an additional source of aid to the robber. See, e.g., People v. Harris, 271 A.D.2d 258, 259 (1st Dept. 2000), lv denied 95 N.Y.2d 854 (2000); People v. Sloan, 30 A.D.3d 1067, 1068 (4th Dept. 2006), lv denied 7 N.Y.3d 817 (2006); People v. Washington, 283 A.D.2d 661, 661-62 (2d Dept. 2001). Although the People asserted that the firearm was the only evidence of force presented to the jury, they acknowledged that the accomplice’s large physical presence and proximity to Horsey and his young child while demanding he hand over jewelry would instill an amount of intimidation (Transcript of Oral Argument at 7-9, 39 O’Toole, 22 N.Y.3d 335 [2013] [No. 233-18]). Here, as discussed, supra at 29-30, without evidence of the razor blade, the People could not make out the charge of second-degree burglary because it was the only evidence of defendant’s intent to commit a crime inside the premises. Both the Appellate Division and the trial court recognized that the razor blade was “essential” to establishing the criminal intent element of burglary (Ortiz, 114 A.D.3d at 430; January 26, 2011 Decision as 5-6; SA. 95-96). The razor blade was also necessary to establishing the element of unlawful entry into the apartment (see, supra at 31). Application of the Acevedo rule in this case will unduly elevate the believability of defendant’s version of events, that while looking for a room to rent, he lost his temper after Valenzuela flirted with his girlfriend and insulted him, and the encounter escalated into a physical fight. Given that without mention of the razor blade or its threatened use, the complainants’ fragmentary, nonsensical, and contorted story already strains credulity, it would be difficult for defense counsel to conduct any cross-examination or argument without being seen as “tak[][ing] unfair advantage of the dilemma that Acevedo creates for the People” (O’Toole, 22 N.Y.3d at 339). Not to mention, the complainants could not answer even basic questions on cross-examination without further damaging their credibility. Moreover, defendant was not subject to any additional charges, and the use or threatened use of a dangerous instrument is not an element of second-degree 40 burglary.11 This, in addition to the windfall defendant will receive because there was no other evidence of intent to commit a crime, shows that application of the Acevedo rule would constitute a miscarriage of justice if be applied in this case. POINT TWO DEFENDANT FAILED TO PRESERVE HIS CHALLENGES TO THE PROSECUTOR’S SUMMATION. IN ANY EVENT, THE TRIAL COURT PROPERLY ADMITTED THE ARRAGINMENT STATEMENT MADE BY DEFENSE COUNSEL AS IMPEACHMENT EVIDENCE, AND THE PROSECUTOR DID NOT IMPROPERLY COMMENT ON THE EVIDENCE AT TRIAL. A. Defense Counsel’s Statement at Arraignments Constituted an Informal Judicial Admission and Was Properly Admitted as Impeachment Evidence. As a preliminary matter, defendant’s constitutional claim that the admission of the arraignment statement violated his right to a fair trial (defendant’s brief at 29-30) is not preserved. Below, defendant only objected to the admission of this statement based on counsel’s allegation that she had misstated what defendant had told her and that defendant had a Sixth Amendment right to confront her regarding the statements (T. 338, 430, 442; A. 436, 452; SA. 45). These protests were inadequate to alert the trial court of defendant’s present claim at the admission of 11 The charge of Criminal Possession of a Weapon was never submitted to the jury, and none of the charges that the first jury considered contained a “possession” element (PT. 292-93; 427-49; SA. 39-40; A. 1036-58). 41 this statement deprived him of a fair trial. People v. Iannelli, 69 N.Y.2d 684, 685 (1986). Defendant asserts that the trial court improperly admitted his attorney’s arraignment statement into evidence, claiming that it did not reflect what defendant had told her and constituted a “simple mix-up about a factual issue” (defendant’s brief at 31-32). He further contends that defense counsel’s notes from arraignments confirmed this, and, as such, the statement could not be reliably attributed to defendant and it should not have been admitted as impeachment evidence (defendant’s brief at 31). Instead, the prosecutor properly used the arraignment statement to impeach defendant after he testified to a different version of events, and this statement was admissible as an informal judicial admission. In any event, the arraignment statement was inconsequential and there is no significant probability that the jury would have acquitted if the arraignment statement had not been introduced. “An ‘informal judicial admission is a declaration made by a party in the course of any judicial proceeding (whether in the same or another case) inconsistent with the position [the party] now assumes.’” People v. Brown, 98 N.Y.2d 226, 232 n 2 (2002), citing Edith L. Fisch, Fisch on New York Evidence § 803 at 475 (2d ed. 1977). A statement made by defense counsel, acting as the defendant’s authorized agent in formal court proceedings held in the defendant’s 42 presence, where the defendant is the source of the information, can be used on cross-examination for impeachment purposes when the defendant testifies inconsistently with the admission. Brown, 98 N.Y.2d at 231-33. In People v. Rivera, 58 A.D.2d 147 (1st Dept. 1977), aff’d, 45 N.Y.2d 989 (1978), the Court affirmed the First Department’s finding that the trial court had properly allowed the People to impeach the defendant with information contained in his attorney’s affidavit that was inconsistent with the defendant’s trial testimony. In the affidavit, Rivera’s attorney stated that Rivera had informed him of certain facts. When Rivera testified inconsistently with those facts, the affidavit became an informal judicial admission by Rivera because his attorney had acted as his agent in making and filing the affidavit. See Rivera, 58 A.D.2d at 148; Rivera, 45 N.Y.2d at 991; see also Jerome Prince, Richardson on Evidence §§ 6-411, 6-412, 8-219 et seq. (Farrell 11th ed. 1995). Similarly in Brown, at a Sandoval hearing, Brown’s attorney, seeking an in limine ruling, explained that Brown was “the only source of testimony in his own defense” and that he expected defendant to testify that he was present at the scene of the crime in order to buy drugs, not sell them. Brown, 98 N.Y.2d at 230. At trial, after Brown testified that he was present for completely innocent purposes, the prosecution sought to use his attorney’s statements to impeach him. Id. Finding that Brown was the only source of the information and that counsel had 43 been acting as Brown’s authorized agent in making the statements, the court allowed the prosecutor to impeach Brown with the statement. Id. The Appellate Division affirmed, explaining that defendant specifically authorized counsel’s statements and, even if he did not, that the statements were binding upon him because the attorney made them as defendant’s authorized agent at the hearing. Brown, 98 N.Y.2d at 230-31. This Court agreed that the facts fell within Rivera and the trial court had properly allowed the People to use the statement on cross- examination for impeachment purposes. Id. at 233. The same result should occur here. The trial court explained that “it’s clear that the statements elicited by [the prosecutor] during the cross-examination of Mr. Ortiz were proper” because an attorney’s statement in arraignments relaying information supplied by the defendant for the purpose of obtaining favorable rulings on matters such as bail, clearly falls within Brown, and, here, defense counsel “specifically stated that she was making these statements based upon what she was told by her client” (T. 454-55; A. 464-65). The Appellate Division affirmed the trial court’s factual finding that defendant was the source of the information the defense counsel provided to the arraignment court — “notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident.” Ortiz, 114 A.D.3d at 431. 44 There is ample record support for the factual finding that the information in the statement was attributable to defendant, despite defendant’s belated claim that counsel mistakenly said “razor blade” instead of “knife” (defendant’s brief at 31). Defense counsel’s statement indicates that defendant told his attorney exactly what she represented to the arraignment court: Defense counsel prefaced her statement “Your Honor, my understanding of the events from Mr. Ortiz is vastly different” (Arraignment Minutes at 3; SA. 5). Defendant’s behavior at arraignments and trial testimony corroborate this fact. At trial, defendant confirmed that he had spoken to defense counsel before he was arraigned on the charges, had an opportunity to tell his side of the story and had wanted to give his point of view, and that it was to his benefit to tell his attorney what he thought had happened that day (Ortiz: T. 355- 56; A. 378-79). He also confirmed that, at the arraignment, defense counsel was “up there telling your side of the story” and “she was telling the Judge things based on what you had told her” and that “the only source of information she had was speaking to you about the incident that happened” (Ortiz: T. 358; A. 381). Defendant was standing beside defense counsel as she made this statement, and confirmed that he was awake and paying attention to what was going on in the courtroom during his arraignment (Ortiz: T. 359-60; A. 382-83). As such, he could have corrected any misrepresentation or misstatement if one had been made. Instead, defendant remained silent during the arraignment. He never expressed any 45 dissatisfaction with counsel to the trial court or asked the trial court to relieve her and appoint new counsel, based on this supposed misstatement about an “incredibly important” fact (defendant’s brief at 32-33) or otherwise; it was not until over four years later when defense counsel herself asked to be relieved on the basis that she believed that she would have to testify regarding the arraignment statement (T. 430; SA. 45). Cf. People v. Rathbun, 21 Wend 509, 543 (Sup Ct of Judicature 1839) (explaining that in criminal, as in civil cases, courts enforce agreements made by authorized agents, and “[a] prisoner on trial there who defends by counsel, and silently acquiesces in what they agree to, is bound the same as any other principal by the act of his agent.”). The record does not indicate, much less establish, that defense counsel’s arraignment statement was contrary to the information defendant gave her, and the court made no such finding. The purpose of the stipulation was to present both sides to the jury and allow them to decide which version they believed or whether it actually mattered. Contrary to defendant’s current claims on appeal, nothing in the record conclusively refutes the trial court’s determination that it was up to the jury to decide whether counsel misspoke or whether the statement came from what defendant had said. Inasmuch as the record supports the trial court’s decision and the Appellate Division did not disaffirm those findings, this Court cannot say that 46 the determination to admit the stipulation constituted an abuse of discretion and, hence, an error of law. See generally People v. Boyd, 58 N.Y.2d 995, 996 (1983); People v. McPherson, 56 N.Y.2d 696, 697 (1982). See also Brown, 98 N.Y.2d at 232. A claim that defense counsel, who stated that the defendant was the source of the information she was communicating to the court, inaccurately conveyed the information does not render the statement inadmissible; this concerns the weight to be afforded the evidence, not its admissibility, despite defendant’s instant assertion. Defendant’s reliance on People v. Cassas, 84 N.Y.2d 718 (1995), for the proposition that the statement at issue should not have been admitted is misplaced because that case involved an attorney’s out-of-court statement to police, where there was “nothing to suggest the attorney had authority to speak on behalf of his client,” being used as direct evidence of guilt in the People’s case in chief. Cassas, 84 N.Y.2d at 721-22. There was even testimony contradicting whether the statement had ever been made. Id. at 722. The Cassas Court also explained that “[s]ignificantly and key to the disposition of the instant case, the admissions would violate the attorney-client privilege because there is no evidentiary record support for a finding of waiver of the privilege by defendant.” Id. at 722-23. The statement at issue here does not suffer from any of these deficiencies. The attorney’s statement, which she conceded she had made (T. 338; A. 436), was 47 prefaced with her statement “Your Honor, my understanding of the events from Mr. Ortiz is vastly different” (Arraignment Minutes at 3; SA. 5), making clear that defendant was the source of the information. The statement here was made on the record in open court—thus waiving attorney-client privilege as to the statements (Brown, 98 N.Y.2d at 233), defense counsel was acting as defendant’s authorized agent and trying to obtain a favorable pretrial ruling, a lower bail amount. Significantly, the People only sought to admit the statement as impeachment evidence after defendant had given testimony that was inconsistent with the arraignment statement on a number of issues, not as direct evidence of guilt. Defendant loses sight of the difference between use in the People’s case in chief and admission for impeachment. The arraignment statement was not offered as direct evidence of defendant’s guilt or even for its truth, but instead merely to raise doubt about defendant’s credibility and believability. The probative worth of impeachment evidence may be challenged through explanation and rehabilitation, and “[o]nce all of the evidence is placed before the fact finder, the truth-seeking process itself can be trusted to sort out the relevant variables and arrive at the proper conclusion.” People v. Walker, 83 N.Y.2d 455, 461 (1994), citing Edith L. Fisch, Fisch on New York Evidence § 495 at 329 (2d ed. 1977). Here, through the stipulation, defendant was able to provide an explanation for the discrepancy — that he told his attorney that the complainant 48 had a kitchen knife, not a razor blade (T. 486; A. 432). The decision of how much probative weight to afford the arraignment statement was left to the jury. In fact, the record indicates that, during deliberations, the jury asked to confirm the stipulation and the court read it back to them (T. 602, 607; A. 580; SA. 55). Defendant is correct in asserting that this issue “has important policy implications for maintaining the integrity of evidence and the truth finding function of trials” (defendant’s brief at 32). The Court has recognized “the elementary premise that impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.” Walker, 83 N.Y.2d at 461, citing Edith L. Fisch, New York Evidence § 447 (2d ed.). A defendant who chooses to waive the privilege against self-incrimination and testify at trial has voluntarily chosen to be treated like any other witness. The testifying defendant, therefore, “is subject to the same cross- examination as any other witness and [has put] credibility in issue like any other witness.” People v. Betts, 70 N.Y.2d 289, 293 (1987) (citing People v. Tice, 131 N.Y. 651, 656-67 [1892], People v. Johnston, 228 N.Y. 332, 340 [1920], and People v. Webster, 139 N.Y. 73, 84 [1893]); see Jerome Prince, Richardson on Evidence § 6-411 et seq. (Farrell 11th ed. 1995). Additionally, keeping information about defendant’s honesty and veracity from the jury does not serve the purposes of the justice system. See, e.g. People v. Coleman, 56 N.Y.2d 269, 273 (1982). 49 The importance of impeachment evidence in the truth-seeking process is illustrated by the recognition by this Court and the U.S. Supreme Court that statements that are inadmissible in the People’s case in chief, such as those obtained in violation of a defendant’s constitutional rights, are admissible as impeachment evidence if a defendant testifies inconsistently with the earlier statement. See People v. Ricco, 56 N.Y.2d 320, 325-26 (1982), citing Oregon v. Hass, 420 U.S. 714, 722 (1975) (“‘[a] shield provided by [failure to respect the right to counsel] is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.’”); People v. Kulis, 18 N.Y.2d 318, 323 [1966], citing Walder v. U.S., 347 U.S. 62, 65 [1954] (“The prosecution cannot ‘use the fruits of such unlawful conduct to secure a conviction’ but ‘(i)t is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.’”). The same rationale supports allowing the prosecution to impeach a defendant with a representation his attorney made, stating he was the source, to gain a favorable pretrial ruling. See Rivera, 58 A.D.2d at 150 (“There is no social utility in making it easier for a party to play fast and loose with the truth and the courts; to say through his attorney in a solemn document that certain facts are true 50 and then to testify before the jury that they are not true, without even being required to explain the contradiction.”). If this Court bars this type of impeachment, it will be treating defendants who testify differently from all other witnesses. Prohibiting that type of impeachment would also endorse a testifying defendant’s right to lie to the arraignment court to gain a favorable bail determination with impunity. This Court should not accept that result. Defendant’s proposed rule, that a defense attorney’s claim that she misspoke about a factual issue precludes the use of the attorney’s prior statement to impeach defendant unless the court believes that counsel is “intentionally” and “blatantly” lying (defendant’s brief at 31-32), is untenable. Claiming that information comes directly from the defendant gives the statement gravitas, and defendant’s proposed rule discourages attorneys from being diligent to ensure the representations they make to the court in these circumstances are accurate, especially during an attempt to gain a beneficial ruling. Beyond this, the proposed rule unjustly interferes with the truth-finding process and gives an unwarranted boon to defendants. Even in a situation where at the time of the statement, defense counsel had made clear to the court that the information came from the defendant, defense counsel could prevent the use of the statement by making, years later, an unverifiable claim that she misspoke—even if she does not actually remember. 51 Allowing the arraignment statement to be used as impeachment evidence balances defendant and the People’s interests in pursuit of the truth. The People can question defendant’s credibility, but, at the same time, even where a defense attorney has stated that the information came from the defendant, the defendant can explain or rebut this evidence. Here, for instance, if defendant felt that counsel’s arraignment notes demonstrated that she had misspoken, he could have waived attorney-client privilege and used them as rebuttal evidence. If he is able to raise doubt about whether defense counsel accurately relayed the information defendant gave her, the factfinder will afford the impeachment evidence little or no weight. Moreover, defendant’s instant contention is ironic given his use of the same tactic in his first trial. There, defendant wanted to impeach Officer Miranda based on the District Attorney’s summary, written by an Assistant District Attorney in the process of drawing up the criminal complaint, based on information relayed by Officer Miranda. The DA’s summary stated that the razor blade was found “on the floor in the bedroom” (PT. 299; SA. 15), whereas at trial, Officer Miranda testified that he found the razor “on the floor between the bedroom door jam and the hallway floor” (Miranda PT. 235-36; SA. 31-32). Because defendant wanted to impeach the officer with this information, the parties stipulated to the statement in the DA summary, and the stipulation was entered into evidence (PT. 365-66; SA. 19-20). Defense counsel relied on the stipulation in her summation, explaining 52 that the DA summary was the only written documentation about the razor’s location, and if the razor blade had come out of defendant’s hand, it would have been found in the hallway (PT. 399-400; A. 1008-09). In addition, the arraignment statement was riddled with inconsistencies and direct contradictions to defendant’s trial testimony beyond the type of weapon the complainant supposedly wielded, and the People had a right to impeach defendant’s credibility with these inconsistencies. For example, at arraignments, defense counsel stated that defendant engaged in an argument with the landlord (Arraignment Minutes at 3; SA. 5), yet defendant’s trial testimony directly contradicted this and demonstrated that he knew that Valenzuela was not the landlord or superintendent. Defendant admitted that none of the buzzers were marked “superintendent,” but that he pressed the button for hoping that the person there could direct him to the superintendent (Ortiz: T. 324, 377; A. 359, 400), and when Valenzuela opened the door, defendant and his girlfriend asked him for assistance finding the superintendent (Ortiz: T. 325; A. 360). Defendant never testified that he met the landlord, much less engaged in an argument with him. Related, the arraignment statement was inconsistent with defendant’s trial testimony in that the former indicated that defendant was “at this apartment looking to possibly rent a room there,” whereas at trial, defendant did not say that 53 he wanted to rent a room in apartment , but instead that he had hoped that its resident could help him find the superintendent (Ortiz: T. 324, 377; A. 359, 400). Defendant’s trial testimony about how the physical fight between defendant and Valenzuela began flatly contradicted the arraignment statement. At trial, defendant testified that he initiated the physical contact with Valenzuela, slapping Valenzuela because he was insulting defendant and being “fresh” with defendant’s girlfriend (Ortiz: T. 327; A. 362). At arraignments, defense counsel portrayed the complainant as the aggressor, stating that “the complaining witness came after him with a razor blade” while defendant was arguing with the landlord (Arraignment Minutes at 3; SA. 5). Further, at trial, defendant testified that the complainant came after him with a weapon (a kitchen knife) well after the physical fight had begun—defendant slapped Valenzuela, Valenzuela swung at defendant, defendant caught Valenzuela’s swing and grabbed Valenzuela’s shirt with both hands, while Valenzuela continued swinging at defendant and pulled defendant inside the foyer of apartment , and the two were “exchanging fists” when Colon grabbed defendant from behind and the two crashed through the bedroom door and defendant fell onto the bed — and only then did Valenzuela come after defendant with a knife (Ortiz: T. 327-31; A. 362-66), not at the beginning of the fight. Even though he does not now, nor has he ever, claimed that counsel misstated any of these facts at his arraignment, defendant asks this Court to deprive 54 the People of this impeachment evidence—even though “[t]he case turned on the credibility of each side’s witnesses” (defendant’s brief at 38). In any event, assuming, arguendo, that the court erred in admitting the arraignment statement, such error was entirely harmless given its inconsequentiality and the overwhelming evidence that defendant committed the burglary (see, supra at 6-14). As the Appellate Division found, defendant failed to preserve any of his constitutional claims regarding the admission of the arraignment statement and the related issues (Ortiz, 114 A.D.3d at 431).12 Thus, the proper standard of harmless error analysis here is non-constitutional error. People v. Kello, 96 N.Y.2d 740, 743 (2001). Under that standard, trial errors will be deemed harmless if the evidence against the defendant was overwhelming and there was no significant probability that the jury would have acquitted him had the proscribed evidence not been introduced. Id.; People v. Johnson, 57 N.Y.2d 969, 970 (1982) (both quoting People v. Crimmins, 36 N.Y.2d 230, 240-42 [1975]). The jury in defendant’s first trial found him guilty of second-degree burglary despite the absence of the arraignment statement at the first trial. Given that the 12 The basis for counsel’s objection to the use of the arraignment statement was purely evidentiary: she stated that she, not defendant had made the statements, and, although she did not remember her conversation, she may have she may have misunderstood something defendant told her (T. 338-39; A. 436-37), not that this violated his right to a fair trial, as he now claims (defendant’s brief at 29-30). 55 rest of the evidence presented at both trials was largely the same, it is apparent that the arraignment statement had no bearing on the verdict, and it would be illogical to assume that the arraignment statement was the linchpin or even a causal factor in the second jury’s guilty verdict. Between the two trials, twenty-four jurors had the benefit of assessing the complainants and defendant’s credibility after observing their demeanor and hearing them tell their stories and respond to cross- examination; their consistent verdicts indicate that none of them believed defendant’s story. Even defendant’s attorney at his first trial conceded, “Our client testified that he engaged in a defensive fight with the occupants of the building in the apartment. If the jury were to find and credit our client’s testimony completely, he could not be convicted of any of the charges contained within the indictment at all including the count of burglary in the second degree” (PT. 470; SA. 36). To escape conviction, defendant only had to convince the jury that the complainant wielded a weapon first. Given that all three complainants had admitted that Nunez possessed a knife during the incident, defendant did not even have to demonstrate that he never possessed the razor blade. As long as the complainant came at him with a weapon first, defendant’s use of the razor blade would have been in self-defense, and the complainants’ home invasion story would have been eviscerated. The stipulation did not impair his ability to argue that the 56 complainants were the first to brandish a weapon, and, in fact, this is precisely what defense counsel argued in her summation (T. 531; A. 515). Defendant was not convicted because of the stipulation — he was convicted because his story was not credible. Further indication of the stipulation’s insignificance is that defense counsel never mentioned the stipulation in her summation; the only allusion she made to it was her statement that defendant’s testimony was consistent with what he said at arraignments (T. 531; A. 515). In contrast, she directly addressed other impeachment material, such as that defendant had given a different address to the C.J.A. representative, and had prior convictions (T. 529; A._). Moreover, the arraignment statement was accompanied by an explanation for the inconsistency, i.e., that counsel had mistakenly said “razor blade” even though defendant had told her that the complaining witness had a “kitchen knife” (T. 486-87; A. 432-34), which minimized its impeachment value. Greater damage to defendant’s credibility had already been inflicted by his admissions that he had been convicted of a felony in 1986, a robbery in 1990, and a robbery in 1996, that he had used a fake name when he was arrested on a prior occasion, and then lied under oath about having used the fake name again, as well as the evidence that he had lied to the C.J.A. representative about his address, who he lived with, and his employment status, and also that he lied to Officer Miranda about his date of birth 57 (Ortiz: T. 318-20, 347-53, 352, 368-74, 384-86; A. 353-55, 368-76, 375, 391-97, 407-09) — not to mention the fact that defendant claimed that his then-girlfriend Martinez witnessed the alleged fight, yet she never spoke to police and did not testify at trial (T. 399-405; A. 422-28). There was no significant probability that the use of the arraignment statement affected the outcome of defendant’s trial (see Crimmins, 36 N.Y.2d at 242). B. The Trial Court Properly Denied Defendant’s Mistrial Motion. Defendant asserts that the court erred in denying his motion for a mistrial after defense counsel was purportedly forced to become a witness at trial based on the arraignment statements, in violation of advocate-witness rule (see defendant’s brief at 33).13 As the Appellate Division found, the trial court properly exercised its discretion denying this remedy. Ortiz, 114 A.D.3d at 431. Granting a mistrial is a drastic remedy, and if, in declaring a mistrial, a court “acts so abruptly as not to permit consideration of the alternatives or otherwise acts irrationally or irresponsibly, or solely for convenience of the court and jury, or other similar abuse of discretion,” retrial will be barred. Enright v. Siedlecki, 59 N.Y.2d 195, 200 (1983). Because a trial court “is in the best position to determine whether a mistrial is in fact necessary in a particular case, that court is entrusted 13 Defendant does not assert that the trial court erred in denying counsel’s motion to withdraw as counsel. 58 with discretion in this area, and deference is to be accorded” its decision to declare a mistrial. People v. Michael, 48 N.Y.2d 1, 9 (1979). As such, reviewing courts “will not interfere with this decision unless it amounts to an abuse of discretion.” People v. Ortiz, 54 N.Y.2d 288, 292 (1981). Here, the court recognized this and expressly found that “the drastic remedy of a mistrial was not necessary to protect the defendant’s rights” (January 26, 2011 Decision at 9; SA. 99). The court did not abuse its discretion in finding this remedy inappropriate where this testimony would have been offered on the issue of defendant’s credibility, which was a collateral, not material, issue, and given that counsel did not have necessary or material information regarding the commission of the crime, but instead wanted to testify to allow defendant to confront her regarding the alleged misstatement and was not placed in the position of having to argue her own credibility; moreover, there was no prejudice to defendant (id.). The advocate-witness rule requires withdrawal when it appears that counsel “will be called to testify regarding a disputed issue of fact,” and requires withdrawal “if it appears that he must testify on behalf of his own client, or if it appears that he will be called as a witness to testify for the adverse party, where his testimony may be prejudicial to the client he is representing.” People v. Paperno, 54 N.Y.2d 295, 299 (1981), citing Disciplinary Rules 5-101(B) and Code of Professional Responsibility 5-102. The Court has acknowledged that “the Code 59 provisions concerning matters of professional conduct ‘cannot be applied as if they were controlling statutory [authority] or decisional law’, and that not every violation of an ethical rule will constitute ineffective assistance of counsel” (Berroa, 99 N.Y.2d at140), citing S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443 [1987]); instead, when confronted with an area of uncertainty, “we must use our judicial process to make our own decision in the interests of justice to all concerned’” (S & S Hotel Ventures Ltd. Partnership, 69 N.Y.2d at 443 (1987), citing Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1360 [2nd Cir. 1975] [Gurfein, J., concurring]). In Berroa, the Court found that the defendant had been denied effective assistance of counsel. Berroa, 99 N.Y.2d at 142-43. There, the defendant’s attorney did not file alibi notice because the defendant and defense witnesses could not remember where the defendant had been on the day of the crime, and planned to rely on a misidentification theory. Id. at 136. At trial, two defense witnesses testified that they had been with the defendant in Philadelphia on the date in question and also that they had previously given this information to defense counsel. Id. at 136-37. The court did not exclude this testimony pursuant to CPL § 250.20(3), but it expressed concern that defense counsel would have to be called to testify because she was the only source who could impeach these key defense witnesses; defense counsel entered into a stipulation to attempt to cure this conflict. 60 Id. at 137. The stipulation, however, “exacerbated the conflict by eviscerating the credibility of her client’s witnesses and his defense.” Id. at 142. The Court found that, “[u]nder the unusual facts of this case” the stipulation transformed the defendant’s advocate into an adverse witness whose credibility was pitted against his other witnesses, and found that a new trial was required. Id. at 138, 142. See also People v. Gentile, 96 A.D.2d 950, 951-52 (2d Dept. 1983) (when one of the defense attorneys received the wallet which was the subject of the robbery indictment, they were placed in a position where, if they did not withdraw from representation, they would violate the advocate-witness rule because the prosecutor had the right to call them as witnesses to testify to a material issue). Conversely, in People v. Baldi, 54 N.Y.2d 137 (1981), this Court found that the defense attorney’s taking the stand was consistent with and strengthened the defense and allowed defense counsel to introduce evidence that helped his client, and his conduct was not unethical or ineffective even though he contradicted his client by recounting admissions the defendant had made, but at trial denied having made, to murders and assaults. Baldi, 54 N.Y.2d at 143-44, 148-49. See also People v. Newman, 216 A.D.2d 151, 151-52 (1st Dept. 1995), lv denied 87 N.Y.2d 849 (1995) (counsel was not ineffective for testifying after the People had questioned the defendant about an affirmation, and defense counsel explained that he had paraphrased and omitted some of the defendant’s statements, and explained 61 how it was consistent with what the defendant had told him and the defendant’s trial testimony, because counsel’s testimony was “in no way adverse” to the defendant’s interest). As in Baldi and Newman, the advocate-witness rule was not violated in this case. The stipulation stated that defense counsel would have testified that defendant told her that the complainant came after him with a kitchen knife, not a razor blade. This did not go to a material issue of fact, but instead related solely to defendant’s credibility, i.e., whether he told his attorney on a prior occasion a story that was different from the one which he testified to at trial.14 As discussed, supra at 53-54, there were myriad inconsistencies and flat contradictions between the arraignment statement and defendant’s trial testimony beyond the weapon allegedly wielded by the complainant. Defense counsel did not witness the incident and, unlike the attorney in Gentile, did not have material information regarding its commission; therefore, her disqualification was not needed and a mistrial was not required. 14 Even though this evidence was not offered for its truth and did not go to one of the elements of the crime, defendant contends that this was not “merely collateral evidence” and “went to the most crucial issue contested in the case” (defendant’s brief at 34). Assuming, arguendo, that this is not a collateral issue, adopting defendant’s position would be at odds with Harris v. New York, 401 U.S. 222 (1971), and its progeny, wherein the Court explained that it was not persuaded that there was “a difference in principle that warrants a [different] result” when a defendant is “impeached as to collateral matters included in his direct examination” versus being “impeached as to testimony bearing more directly on the crimes charged.” Harris, 401 U.S. at 225. 62 Further, defense counsel’s proffered testimony was voluntary and served to help the defense case rather than being necessary or compelled testimony against her client. In other words, the admission of the arraignment statement did not “force[] defense counsel to become a fact witness” (defendant’s brief at 29). The People had no intention of calling defense counsel to testify on the matter, but instead explained they would call the reporter who took the minutes at arraignment to introduce the arraignment statement (T. 411; SA. 41). Nor did the court compel defense counsel to testify (T. 480; A. 490). Defense counsel made clear that if her mistrial motion was not granted, she wanted the jury to hear her position that defendant had told her “kitchen knife” but she had mistakenly stated “razor blade”— “they have to hear an explanation for what I said, and why it is wrong” (T. 466; A. 476).15 Thus, after the court denied the mistrial motion, it offered defense counsel an avenue to relay her position to the jury, “in order for the defendant to elicit testimony concerning the statement alleged to have been made by him to [defense counsel] that the Court would allow [defense counsel] to testify for that limited purpose at of explaining or stating what 15 Despite defense counsel’s arguments to the contrary, the court correctly stated that defendant did not have a right to confront her about the statement because it was not offered for its truth, but instead only as impeachment evidence (T. 455; A. 465). See Crawford v. Washington, 541 U.S. 36, 59 (2004) (“The [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”); Moye, 11 A.D.3d at 212. Thus, her testimony was not “necessary” pursuant to the Sixth Amendment. 63 was told to her by the defendant, and the fact that that differed from what was stated by her in arraignments. . . .” (T. 480; A. 490). Entering into a stipulation was a sound trial strategy. As defense counsel admitted (and defendant now concedes [defendant’s brief at 34]), her purported testimony would be beneficial to defendant (T. 469; A. 479), not prejudicial. The court had already ruled that the statement was admissible, and defense counsel chose the most advantageous possible way to enter it into evidence—by attaching to the transcription an explanation for the discrepancy, i.e. that defense counsel had made a mistake, and, consequently, that her arraignment statement could not be attributable to defendant. Thus, the stipulation allowed defense counsel to corroborate defendant’s narrative, which had been weakened by questions about the arraignment statement on cross-examination, without defense counsel having to explain the reason for the discrepancy, put her own credibility at issue, or face cross-examination. Under the circumstances, there could have been no confusion on the part of the jury. Thus, unlike Berroa, here defense counsel was not “in jeopardy of giving compelled testimony against her client”; instead, like in Baldi, defense counsel’s testimony or stipulation was given “voluntarily” and in an attempt to further the defense. Berroa, 99 N.Y.2d at 142; Baldi, 54 N.Y.2d 148- 49. Thus, the trial was not unfair, nor was defense counsel’s ability to effectively present a defense compromised. 64 Defendant argues that counsel’s ability to represent him was compromised because the prosecution “impugn[ed] her credibility before a trier of fact” (defendant’s brief at 35, quoting People v. Hernandez, 62 A.D.3d 401 [1st Dept. 2009]), but this assertion is based on a misinterpretation of Hernandez and does not reflect the standard at issue. The Hernandez court was discussing a completely different issue, namely, how the defendant could not demonstrate that her attorney was unable to continue providing effective assistance where, inter alia, “counsel did not accuse his client of perjury or falsehood, impugn her [the defendant’s] credibility before a trier of fact.” Hernandez, 62 A.D.3d at 401. Further, although defendant portrays this scenario as only harmful to the party whose attorney is both an advocate and a witness, this could actually provide an unfair advantage to that party in that “opposing counsel may be handicapped in challenging the credibility of a lawyer-witness who also appears as an advocate in the case.” S & S Hotel Ventures, 69 N.Y.2d at 444, citing Code of Professional Responsibility EC 5–9. Moreover, far from “ask[ing] the jury not to believe her testimony” (defendant’s brief at 35), the prosecutor listed the myriad inconsistencies between defendant’s testimony and the arraignment statement, and then pointed out that defense counsel had the made the representation for defendant, while he was present and could have added or clarified the statement, and that defendant, not 65 anyone else, provided her with the information (T. 542-43; A. 526-27).16 Moreover, contrary to defendant’s claim, defense counsel did not argue the credibility of her own testimony; the only reference she made to the arraignment statement was that defendant’s testimony was “consistent with what he said at arraignments” (T. 531; A. 515).17 The prosecutor was entitled to respond to this assertion. Cf. People v. Fwilo, 47 A.D.2d 727 (1st Dept. 1975). Defendant’s undeveloped claim that defense counsel’s credibility was “directly and necessarily pitted against’ the credibility of other witnesses” (defendant’s brief at 34, citing Berroa, 99 N.Y.2d at 142) is illogical and meritless. The only issue her proffered testimony addressed was whether, at the arraignment, defendant told her that the complainant came after him with a kitchen knife or a razor blade. The only witness who had testified about counsel’s pre-arraignment interview was defendant, and defense counsel’s statement was consonant with 16 Defendant’s assertion that the prosecutor “specifically allud[][ed] to the jury assessing the credibility of defense counsel” in his statement that “Because if you believe the defense attorney. . .” (defendant’s brief at 22-23) is disingenuous. The full quotation demonstrates that he was merely responding to defense counsel’s argument that Nunez, Colon, and Valenzuela together concocted and testified to a false story and altered their testimony to support each other: “Because if you believe the defense attorney, there’s a word for what those three witnesses were involved, it’s a conspiracy” (T. 548; A.532). 17 Defendant’s “interested witness” claim falls flat. The court delivered similar “interested witness” charges in both trials—even though the arraignment statement was not part of the first trial (T. 579-81; PT. 432-35; A. 554-56, 1041-43). In fact, the charge in the second trial contained two paragraphs explaining why a defendant was an interested witness, whereas the first trial’s instruction only did so in one sentence (T. 580-81; PT. 435; A. 555-56, 1044). 66 defendant’s testimony that he had never told his attorney that the complaining witness had come after him with a razor blade (Ortiz: T. 359; A. 382). C. The Prosecutor Did Not Improperly Comment on the Evidence at Trial As a preliminary matter, as the Appellate Division found, defendant failed to preserve his challenges to the prosecutor’s summation. Ortiz, 114 A.D.3d at 431. Defendant’s primary claim is that the prosecutor’s initial discussion of what was said during arraignments and reference to the stipulated minutes constituted misconduct (defendant’s brief at 36; T. 542-43; A. 526-27). Defense counsel did not object to this comment, and, thus, defendant’s instant challenge is not preserved. Romero, 7 N.Y.3d at 912. To the extent that the prosecutor may have misspoken, the lack of objection prevented the preservation rule from working as it is supposed to — alerting the prosecutor to this alleged error at a moment when he could have easily corrected a misstatement or clarified his remark and avoided any possible prejudice. See generally People v. Gray, 86 N.Y.2d 10, 20-21 (1995); People v. Narayan, 54 N.Y.2d 106, 114 (1981). The context of his statement makes clear that the prosecutor intended to say that the stipulation reflected what defense counsel had said defendant told her at the pre-arraignment interview (see, infra, at 71-72). A contemporaneous objection would have allowed him to add two syllables: “It’s 67 stipulated by and between the parties that this is what [she said] the defendant said July 21st, 2006, right after he was arrested the next day.” Further, while defendant moved for a mistrial, defense counsel did not call the court’s attention to that specific comment (People v. Medina, 53 N.Y.2d 951, 952 [1981]; People v. Tardbania, 72 N.Y.2d 852, 853 [1988]), or request any form of curative instruction. Instead, after the summation, counsel stated, “I’m again renewing my motion for a mistrial with prejudice” (T. 566; A. 578), which she initially made regarding the admission of her arraignment statement, claiming that she would not be able to effectively advocate for defendant because she would have to defend her own credibility, and because the prosecutor “deliberately provoked a mistrial” (T. 445-46; A. 455-56) (compare Narayan, 54 N.Y.2d at 114).18 Thus, defendant’s instant claim regarding the prosecutor’s summation is unpreserved. See Romero, 7 N.Y.3d at 912. Defendant’s further claims are also unpreserved. The trial court overruled two of defendant’s unelaborated objections (T. 543-44; A. 527-28; see People v. Fleming, 70 N.Y.2d 947, 948 [1988]), and then gave a curative instruction, “This is argument, again, by [the prosecutor]” (T. 543-44; A. 527-28), and defendant neither objected to this curative instruction as inadequate (see Tardbania, 72 N.Y.2d at 853), nor requested additional instructions (see People v. Comer, 73 18 See supra, at Point II.B for further discussion of this issue. 68 N.Y.2d 955 [1989]), rendering his current claims unpreserved. In addition, the court sustained two of counsel’s objections to the prosecutor’s summation, and defense counsel failed to request curative instructions (Ortiz: T. 543; A. 527). See Medina, 53 N.Y.2d at 953. Nonetheless, even if there were no impediment to review, defendant should not prevail. Defendant now claims that the prosecutor misrepresented evidence and that the cumulative effect of these misrepresentations deprived defendant of a fair trial (defendant’s brief at 36-38). Since the prosecutor’s comments were within permissible bounds, defendant’s claim lacks merit. “It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide.” Williams v. Brooklyn El. R.R. Co., 81 Sickels 96, 102 (1891). This privilege has limits, however, and counsel must “stay within ‘the four corners of the evidence’ and avoid irrelevant comments which have no bearing on any legitimate issue in the case” and may not “call upon the jury to draw conclusions which are not fairly inferrable from the evidence.” People v. Ashwal, 39 N.Y.2d 105, 109-10 (1976). In determining whether the prosecutor engaged in misconduct, the question is whether, upon consideration of the entire record, defendant has been deprived of his right to a fair trial. People v. Galloway, 54 N.Y.2d 396, 398 (1981). When assessing a prosecutor’s summation, it must be recalled that he possesses “the 69 widest latitude by way of comment, denunciation or appeal in advocating his cause.” Ashwal, 39 N.Y.2d at 109 (citation omitted); Galloway, 54 N.Y.2d at 399. The prosecutor’s summation “must be evaluated in light of the defense summation.” People v. Halm, 81 N.Y.2d 819, 821 (1993); see also People v. Morgan, 66 N.Y.2d 255, 259 (1985). Defendant was not deprived of a fair trial by the challenged portions of the prosecutor’s summation. The prosecutor’s arguments that defendant had provided his attorney with the facts that she presented on his behalf at his arraignment stayed within “the four corners of the evidence,” only asked the jury to reach conclusions “fairly inferrable from the evidence,” and reasonably responded to defense counsel’s summation. As such, the Appellate Division correctly rejected defendant’s claims on the merits. Ortiz, 114 A.D.3d at 431. In creating the stipulation, the parties agreed only that if defense counsel testified, she would testify that her statement about a razor blade at arraignments had been incorrect and that defendant had told her that the complainant had a kitchen knife. Nothing more. This agreement was captured in the language of the stipulation itself, and despite defendant’s self-serving interpretation, the prosecutor never agreed that defendant had not told defense counsel that the complainants approached him with a razor blade. As the court explained to defense counsel, outside of the presence of the jury, “The stipulation is that your position is if you 70 had testified, your position is that he told you something else. And [the prosecutor] disputes that and states what the testimony in the record is” (T. 565; A. 577). The stipulation created no obligation for the People to concede what defense counsel claimed. Courts have found that public policy is not supported by allowing a defendant to offer one version of the facts and later testify to another without the possibility that the government will be able to challenge his credibility. See Rivera, 58 A.D.2d 147, citing Walder v. U.S., 347 U.S. 62, 65 (1954) (“[There] is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.”). The prosecutor was free to argue on summation that defendant told counsel something different just before he was arraigned, despite the stipulation. Defendant’s contention that the prosecutor “presented the stipulation to the jury as if [defense counsel] certified his impeachment of Mr. Ortiz rather than refuted it” (defendant’s brief at 36), is without merit. The court explained that the stipulation represented what defense counsel would have said if she testified, but the prosecutor could dispute this and pointed to testimony to refute it (T. 565; A. 577). Thus, aside from the sustained objections, the prosecutor’s comments about the arraignment statement and the stipulation were permissible. The prosecutor’s initial mention of the stipulation, in context, demonstrates that he did not misrepresent the stipulation; instead, this reference was limited to 71 the first portion of the stipulation, consisting of the transcription of the arraignment minutes and the parties’ agreement that the transcription was accurate. The prosecutor made clear that the statement was what “his attorney” said on the record, reminding the jury that they could look at the record. Further, the prosecutor prefaced the now-challenged statement by recounting defendant’s testimony about truthfully describing the events to his attorney before his arraignment and his presence at the proceeding (T. 542-43; A. 526-27). Tellingly, defendant raised no objection; the absence of contemporaneous objection is “perhaps the best indication of the absence of any real prejudice.” People v. Overlee, 236 A.D.2d 133, 142 (1st Dept. 1997). In any event, any possible prejudice that could have resulted from the prosecutor’s comments were dispelled by the court when, just before summations, it explained to the jury that the attorneys’ summations were only arguments and that “you are the final determinants of exactly what the facts are in this particular case” (T. 506; SA. 54). Since the jury is presumed to have followed these instructions, there was no risk of prejudice. See People v. Davis, 58 N.Y.2d 1102, 1104 (1983); see generally People v. Baker, 14 N.Y.3d 266, 274 (2010). This is especially true when one considers that, despite whatever the prosecutor’s subjective view regarding the importance of the stipulation was, whether defendant 72 had said the complainant came at him with a razor blade or a knife was, objectively, “a tempest in a teapot.” Defendant asserts that the cumulative effect of the alleged prosecutorial errors deprived him of a fair trial (defendant’s brief at 38). Defendant is wrong. Even if the prosecutor’s comments constituted misstatements, these comments were isolated, inconsequential, and do not justify reversal (see, e.g. People v. D’Alessandro, 184 A.D.2d 114, 119 [1st Dept. 1992]; People v. Samuels, 121 A.D.2d 751 [2d Dept. 1986]; People v. Chislum, 244 A.D.2d 944, 945 [4th Dept. 1997]), and there could be no harm because the stipulation was read into evidence, and the jury could, and did, ask for it to be repeated during deliberations (T. 602, 607; A. 580; SA. 55). See, e.g., U.S. v. Anderson, 450 F.3d 294, 300-01 (7th Cir. 2006) (prosecutor’s misstatements of stipulations were harmless because the defendants did not object at trial and the actual stipulations were read into evidence). 73