The People, Respondent,v.Luis Ortiz, Appellant.BriefN.Y.November 18, 2015To be argued by: ANANT KUMAR, ESQ. (Counsel requests 15 minutes) APL-2015-00004 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LUIS ORTIZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant JOSEPH M. NURSEY, ESQ. Supervising Attorney By: ANANT KUMAR, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 akumar@appellatedefender.org July 10, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 POINT I RESPONDENT’S CLAIM THAT THE FIRST JURY ACQUITTED MR. ORTIZ OF FIRST-DEGREE BURGLARY BECAUSE IT FOUND A RAZOR BLADE DID NOT CONSTITUTE A DANGEROUS INSTRUMENT HAS NO SUPPORT IN THE RECORD, AND ITS COMPLAINT THAT THE RAZOR BLADE CANNOT BE PRACTICABLY EXCLUDED HAS NO SUPPORT IN CASE LAW . . . . 3 A. The first jury determined that Mr. Ortiz did not possess a razor blade, and respondent’s speculation as to an alternative basis for the verdict is unrealistic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. If it was possible to exclude evidence of a gun from the testimony in O’Toole, it is similarly possible to exclude evidence of the razor blade here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 POINT II RESPONDENT FAILS TO RECOGNIZE THAT THE UNIQUE CIRCUMSTANCES OF ARRAIGNMENTS, AND THE COMPELLING AFFIRMATIVE EVIDENCE THAT DEFENSE COUNSEL MADE AN HONEST MISTAKE, DISTINGUISH THIS CASE FROM PRIOR CASE LAW ON JUDICIAL ADMISSIONS; THAT DEFENSE COUNSEL’S ATTEMPTS TO MITIGATE THE HARM CAUSED BY THE ARRAIGNMENT STATEMENT COULD NOT CURE THE ADVOCATE- WITNESS PROBLEM; AND THAT NUMEROUS OBJECTIONS AND A MISTRIAL MOTION PRESERVED MR. ORTIZ’S PROSECUTORIAL MISCONDUCT CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ii A. Respondent’s argument ignores the realities of arraignments, both in general and in this particular case . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. The advocate-witness rule was violated as a result of the prosecution’s belated effort to use the arraignment statement, regardless of the favorability of defense counsel’s stipulation . . . . . . . . . . . . . . . . . . 16 C. Respondent’s preservation argument against Mr. Ortiz’s prosecutorial misconduct claim is utterly unsupported by the record . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iii TABLE OF AUTHORITIES CASES People v. Acevedo, 69 N.Y.2d 478 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 7, 9 People v. Aguilera, 82 N.Y.2d 23 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Baldi, 54 N.Y.2d 137 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Berroa, 99 N.Y.2d 134 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Brown, 98 N.Y.2d 226 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13, 15 People v. Burgos-Santos, 98 N.Y.2d 226 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Goodman, 69 N.Y.2d 32 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9 People v. Lo Cicero, 14 N.Y.2d 374 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Newman, 216 A.D.2d 151 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . . . . . 18 People v. Ortiz, 69 A.D.3d 490 (1st Dep’t 2010) . . . . . . . . . . . . . . . . . . . . . . 12, 15 People v. O’Toole, 22 N.Y.3d 335 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Paperno, 54 N.Y.2d 294 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18 People v. Rivera, 58 A.D.2d 147 (1st Dep’t 1977) . . . . . . . . . . . . . . . . . . . . . 11-12 aff’d, 45 N.Y.2d 989 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iv STATUTES AND CONSTITUTIONAL PROVISIONS N.Y. Crim. Proc. Law § 470.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.Y. Crim. Proc. Law § 470.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N.Y. Crim. Proc. Law § 470.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1 INTRODUCTION Luis Ortiz’s case presents two errors that both implicate important questions of law and policy: affirming his conviction will diminish the viability of collateral estoppel in the criminal context and trammel the ability of arraignment attorneys to advocate on behalf of their clients. Respondent stresses that collateral estoppel must be applied with “realism and rationality,” Resp. Br. at 20, 22, but it fails to recognize that such an approach militates in Mr. Ortiz’s favor. A realistic, practical reading of the record of Mr. Ortiz’s first trial demonstrates that the jury determined he did not possess a razor, and thus evidence of the razor was inadmissable at his retrial. Respondent’s strained reading of the record and contrived explanation for how the first jury could have arrived at its verdict is divorced from “realism and rationality.” Respondent inexplicably relies on People v. O’Toole, 22 N.Y.3d 335 (2013), to argue that collateral estoppel should not be applied because the “razor blade was essential” to the prosecution’s case. Resp. Br. 32. But O’Toole is at odds with respondent’s position; while the Court recognized that in some cases collateral estoppel might render a witness’s testimony incoherent, the Court simultaneously held that it was possible to excise a gun from a forcible robbery case—an evidentiary fact that was at least as crucial as the purported razor here. 2 Respondent’s arguments for the admissibility of defense counsel’s arraignment statements are equally misguided. It argues that exclusion would “endorse a testifying defendant’s right to lie to the arraignment court,” Resp. Br. 51, while ignoring ample evidence demonstrating that defense counsel simply made a mistake in relaying what Mr. Ortiz told her. Respondent also ignores the countervailing—and dire—policy concerns of using arraignment statements as damaging evidence. Arraignments are harried affairs; if minor mistakes by counsel in oral bail applications can come back to devastate a client at trial, as it did here, there will no longer be a place for defense advocacy at arraignments. None of respondent’s arguments successfully grapple with the fact that trial counsel’s personal credibility was pulled into the case—the core of the advocate- witness prohibition—which made admission of the arraignment statement especially damaging. The error was exacerbated by the prosecutor’s misconduct on summation, in which he misrepresented the evidence to make it appear that defense counsel endorsed the impeaching effect of the arraignment statement. Contrary to respondent’s contentions, this claim of prosecutorial misconduct was fully preserved by numerous objections and a mistrial motion. 3 REPLY ARGUMENT POINT I RESPONDENT’S CLAIM THAT THE FIRST JURY ACQUITTED MR. ORTIZ OF FIRST-DEGREE BURGLARY BECAUSE IT FOUND A RAZOR BLADE DID NOT CONSTITUTE A DANGEROUS INSTRUMENT HAS NO SUPPORT IN THE RECORD, AND ITS COMPLAINT THAT THE RAZOR BLADE CANNOT BE PRACTICABLY EXCLUDED HAS NO SUPPORT IN CASE LAW. A. The first jury determined that Mr. Ortiz did not possess a razor blade, and respondent’s speculation as to an alternative basis for the verdict is unrealistic. “As in every human situation, it is possible to conjure up alternative hypotheses.” People v. Acevedo, 69 N.Y.2d 478, 488 (1987). Here, respondent conjures up one that is particularly far-fetched: that the first jury could have possibly concluded that Mr. Ortiz possessed and used the razor as described by the complainants, but that it was not a dangerous instrument. See Resp. Br. 24-25, 29. Respondent’s argument merely gives lip-service to this Court’s mandate that, in a collateral estoppel analysis, the record must given a “practical, rational reading.” O’Toole, 22 N.Y.3d at 338 (quoting Acevedo, 69 N.Y.2d at 487); see also People v. Goodman, 69 N.Y.2d 32, 40 (1986) (“The rule is not to be applied with a hypertechnical approach . . . .”). 1 Citations to the record will be in the format of “A.” followed by page number, when the cited document is in appellant’s appendix, and in the format “SA.” followed by page number, when the cited document is in respondent’s supplemental appendix. 2 Respondent attempts to bolster its argument by distorting defense counsel’s summation in the first trial. See Resp. 28-29. The quote that respondent uses, when viewed in context, was clearly meant to convey that Mr. Ortiz never possessed the razor—not that Mr. Ortiz used a razor but it was not dangerous. See A. 1006 (“[T[he 911 call . . . [Ms. Nunez] said that because it was true. Mr. Ortiz has no weapon, over and over.” (emphasis added)); A. 1007 (“Miraculously Pura Nunez gets out of it without a scratch. . . . Those things never happened.” (emphasis added)). 4 As Goodman stresses, collateral estoppel should be applied “with realism and rationality by examining all parts of the record of the prior proceeding,” 69 N.Y.2d at 40, and this holistic view of Mr. Ortiz’s first trial shows that respondent’s claim is meritless. Absolutely no one disputed that the razor, according to the complainants’ version of events, was a dangerous instrument; rather, Mr. Ortiz’s entire defense at the first trial was that this was a fist fight, he was unwillingly pulled into the apartment, and that a razor was not at all involved. See A. 873, 890-98, 904 (Mr. Ortiz’s testimony).1 Everything in the defense summation was geared towards challenging Mr. Ortiz’s possession of the razor that was found in the complainants’ apartment, not its classification as a dangerous instrument. See A. 982-83, 1006-09.2 The court’s final instructions in the first trial assumed the razor was a dangerous instrument. See A. 1049 (“[T]he People are required to prove . . . the defendant used or threatened the immediate use of a 3 Thus, Acevedo forecloses respondent’s argument that “a jury is not bound by the way the case is tried.” Resp. Br. 29. Acevedo recognized that for purposes of collateral estoppel, the parties’ contentions inform the jury’s verdict. This is part and parcel of the “practical, rational” approach that is necessary to effect “the underlying purposes of the collateral estoppel doctrine.” 69 N.Y.2d at 487. 5 dangerous instrument, in this case the razor blade.”). Under these circumstances, respondent’s argument that the jury’s verdict should be understood as a determination that the razor was not a dangerous instrument is patently unrealistic. See Acevedo, 69 N.Y.2d at 482-83, 487-88 (inspecting the parties’ summation and court’s instructions to determine import of jury’s verdict).3 Respondent devotes nearly four pages of its brief, 25-29, to its contrived explanation for why the razor was not a dangerous instrument. The laboriousness of its explanation—which is devoid of specific case citations—underscores how difficult it is to actually maintain the dangerous-instrument argument. Moreover, respondent’s argument is predicated on the proposition that “single-edge razor blades are common household objects,” Resp. Br. 26, but, of course, plenty of household objects can also be dangerous instruments—for example, a hammer or a baseball bat. Respondent claims that the first jury could not have logically convicted Mr. Ortiz of second-degree burglary without the razor blade, Resp. Br. 24-25, but there are at least two explanations for the jury’s verdict acquitting Mr. Ortiz of first- 4 Respondent attempts to downplay the importance of Mr. Ortiz’s acquittal on first- degree robbery, see Resp. Br. 24 n.9, but that acquittal represents a second finding by the jury that a razor blade was not part of the crime. 6 degree burglary and convicting him of second-degree burglary that are far more logical and realistic than respondent’s hypothesis of a non-dangerous razor. First, the jury at the first trial could have determined that there was no razor (thus acquitting of first-degree burglary because there was no dangerous instrument) while finding that Mr. Ortiz pushed his way into the apartment to continue fighting with complainant Valenzuela (thus convicting of second-degree burglary predicated on entry into a dwelling with the intent to commit assault). In another example, the jury could have mostly credited the testimony of the complainants en route to a finding that Mr. Ortiz did force his way into the apartment with the intent to rob them, just without possessing or using a razor blade. In short, it is simply not true that the razor blade was “the only evidence of [an] intent to commit a crime inside of the apartment,” as respondent contends. Resp. Br. 29. As a practical matter, it is indisputable that the razor was a dangerous instrument, and that the first jury’s verdict can only be explained as a finding that no razor blade was involved.4 Put another way, the jury “could not logically have” found that a razor was used and yet acquit Mr. Ortiz of first-degree burglary. 7 O’Toole, 22 N.Y.3d at 338. Therefore, collateral estoppel was applicable to preclude all evidence concerning the razor in the second trial. B. If it was possible to exclude evidence of a gun from the testimony in O’Toole, it is similarly possible to exclude evidence of the razor blade here. Respondent’s mistakenly relies on O’Toole in an attempt to establish that application of collateral estoppel here would “cause practical problems.” Resp. Br. 31. Such reliance is misplaced, because O’Toole demonstrates the opposite proposition; after all, this Court found that it was possible for the prosecution in O’Toole to put on its case without the evidence precluded by collateral estoppel. See 22 N.Y.3d at 339 (“[T]he application of Acevedo can cause practical problems . . . But here, the problems Acevedo presents could have been—and could still be, at a retrial—handled without unreasonable difficulty.”). The Court found preclusion was possible even though it required omission of a gun—the obvious, dramatic focal point of the prosecution’s forcible robbery case. See id. at 337. As the dissent in O’Toole emphasized, the gun was “important to the People because those were the facts the victim told police, and, they argued, they should not be required to put on a case pretending the facts were any different.” Id. at 340 (Pigott, J., dissenting). The Acevedo “dilemma” was far more pressing in O’Toole than in this case, and if collateral estoppel could be practicably applied in that case, so can it be applied here. 8 Indeed, complainant Nunez’s account to 911 conclusively demonstrates that the story can be told without the razor, and this Court should reject respondent’s attempts to explain away the call. See Resp. Br. 37-38. First, Nunez’s self-serving testimony for why she did not mention the razor to the 911 operator should carry little weight, and, in any event, the explanation has little bearing on the feasibility of excluding the razor. Second, respondent’s speculation that Nunez’s answers were “not a recounting of the entire story,” Resp. Br. 38, is undermined by the record of the call itself: Nunez is directly responsive to the operator’s questions, including giving a narrative of how Mr. Ortiz ended up in the apartment. See SA 9. Nowhere in her narrative description to the 911 operator, or in her responses to the 911 operator’s questions, did Nunez mention a razor, which was a dramatic addition to her testimony at trial. The simplest explanation for the absence of the razor in the 911 call—and, indeed, what the first jury necessarily concluded—was that the complainants were lying at trial about Mr. Ortiz ever possessing it. Clearly, then, there is a way for the complainants here “to give truthful testimony” without the razor. O’Toole, 22 N.Y.3d at 339. Contrary to respondent’s complaints, Resp. Br. 40-41, it would not be unfair to apply collateral estoppel here: there is still evidence the prosecution can use to make its case for second-degree burglary. See supra at 5-6. The real unfairness lies 9 in admitting evidence of the razor, because “where the People have had a full and fair opportunity to contest issues, but have failed, it [is] inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place.” Acevedo, 69 N.Y.2d at 478; accord Goodman, 69 N.Y.2d at 37-38 (quoting People v. Lo Cicero, 14 N.Y.2d 374, 380 (1964)); see also People v. Aguilera, 82 N.Y.2d 23, 30 (1993) (“Historically, courts have tended to favor defendants in the application of collateral estoppel because of concerns for due process, double jeopardy, the right to a jury trial, fundamental fairness and preventing undue harassment.”). *** Respondent attempts to frame this case as “an opportunity to draw the boundaries of Acevedo’s application,” Resp. Br. 32, when in reality, its arguments would push criminal collateral estoppel out of existence. Collateral estoppel is an important doctrine that serves important purposes, and saying it should be applied “sparingly,” O’Toole, 22 N.Y.3d at 339, is not tantamount to saying it should not exist at all. Respondent’s arguments must be rejected if collateral estoppel—and the Court’s precedent supporting it—is to remain viable in the criminal context. 10 POINT II RESPONDENT FAILS TO RECOGNIZE THAT THE UNIQUE CIRCUMSTANCES OF ARRAIGNMENTS, AND THE COMPELLING AFFIRMATIVE EVIDENCE THAT DEFENSE COUNSEL MADE AN HONEST MISTAKE, DISTINGUISH THIS CASE FROM PRIOR CASE LAW ON JUDICIAL ADMISSIONS; THAT DEFENSE COUNSEL’S ATTEMPTS TO MITIGATE THE HARM CAUSED BY THE ARRAIGNMENT STATEMENT COULD NOT CURE THE ADVOCATE-WITNESS PROBLEM; AND THAT NUMEROUS OBJECTIONS AND A MISTRIAL MOTION PRESERVED MR. ORTIZ’S PROSECUTORIAL MISCONDUCT CLAIM. The cases that respondent cites for its judicial-admission argument deal with situations that are qualitatively different from arraignments. However wise it may be to hold defendants responsible for statements their attorneys make in full- fledged hearings, or well-considered affirmations, such reasoning cannot be practically applied to the arraignment context, where counsel has extremely limited time to gather information from a client—while representing numerous clients at one session—before making an extemporaneous presentation. Moreover, respondent’s argument that the advocate-witness rule was not violated here because counsel was able to enter into a favorable stipulation does not engage with the core concern of that rule: an advocate’s credibility as a fact witness should not become part of the case. 5 A careful reading of Rivera reveals it to be inapposite. The opinion states: “There (continued...) 11 Finally, respondent distorts the record in an attempt to argue that Mr. Ortiz has not preserved his claim that the prosecutor misrepresented the stipulation evidence in his summation. The record shows that defense counsel objected five times to the prosecutor’s repeated misrepresentations, and then moved for a mistrial on this basis. Nothing more needed to be, or could have been, done to preserve the issue for this Court’s review. A. Respondent’s argument ignores the realities of arraignments, both in general and in this particular case. Respondent speciously argues that case law supported admission of defense counsel’s mistaken arraignment statement by pointing to cases that involved (1) a sworn written affidavit prepared by an attorney (People v. Rivera, 58 A.D.2d 147 (1st Dep’t 1977), aff’d, 45 N.Y.2d 989 (1978)); and (2) representations at a Sandoval hearing, which are typically close to the start of trial (People v. Brown, 98 N.Y.2d 226 (2002)). See Resp. Br. 43-44. It blinks reality to say that the situations at issue in Rivera or Brown are anything like the situation here. In Rivera, the target admission came from an attorney’s written affirmation—that is, after the attorney has had as much time as desired to communicate with the client and then carefully set the facts into writing.5 5(...continued) 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 and then to testify before the jury that they are not true, without even being required to explain the contradiction.” Id. at 150 (emphases added). Again, there is no “solemn document” here. Moreover, the “contradiction” between defense counsel’s arraignment statement and Mr. Ortiz’s trial testimony has been amply explained as an honest mistake. 6 Respondent also attempts to analogize use of the arraignment statement to defense counsel’s use, at Mr. Ortiz’s first trial, of the District Attorney’s summary to impeach Officer Miranda. Resp. Br. 52. The Court should not be distracted by this red herring. It has no relevance here, as this was part of the first trial, which was reversed for extensive prosecutorial misconduct. People v. Ortiz, 69 A.D.3d 490, 490-91 (1st Dep’t 2010). 12 Meanwhile, in Brown, the admission came from a formal Sandoval hearing; again, the attorney has had an opportunity for extensive communication with the client during the entire pretrial period and has had time for focused preparation in anticipation of the hearing. The opinion in Brown even stresses this distinction: “The record of the Sandoval hearing establishes that former defense counsel spent several hours with defendant discussing his case, describing the People’s proof and preparing him in the event he decided to testify at trial.” 98 N.Y.2d at 229. In the arraignment context at issue here, the attorney has just been assigned to the case and has extremely limited time to review information and solicit the client’s input, before making an on-the-fly presentation to the court.6 It bears emphasis that the record in this case thoroughly establishes that defense counsel’s statement at arraignment was an honest mistake—not something 13 that was fairly or factually attributable to Mr. Ortiz. Defense counsel’s misstatement of “razor” instead of “knife” stands in stark contrast to the egregious contradiction in Brown: at the pretrial hearing in Brown, the attorney represented that the defendant would testify he was at the scene to buy rather than sell drugs, and then at trial, the defendant testified that his presence was completely innocent. 98 N.Y.2d at 229-30. It would have strained credulity in Brown to say that counsel made a mistake; here, mistake is not only plausible on the face of the statement, it is reinforced by defense counsel’s contemporaneous arraignment notes, which indicated that Mr. Ortiz told her that complainant Valenzuela wielded a knife—a version of events that was, in fact, consistent with complainant Nunez’s 911 call. See A. 437, 469-70; SA. 7. Given the ample showing that defense counsel simply made a mistake at arraignment, respondent’s policy arguments carry especially little weight here. Respondent fears that “prohibiting [this] kind of impeachment would endorse a testifying defendant’s right to lie to the arraignment court to gain a favorable bail ruling,” Resp. Br. 51, but that fear ignores the realities of this specific case: a minor mistake that is verified by an officer of the court (defense counsel) as well as documentary evidence (counsel’s notes). In this regard, respondent’s claim that admission of the arraignment statement furthered the “pursuit of truth,” Resp. Br. 7 An analogous policy concern was implicated in People v. Burgos-Santos, the companion case to Brown. In Burgos-Santos, this Court held that a defendant’s trial testimony could not be impeached with a withdrawn notice of alibi. The Court noted that allowing such impeachment would not only raise constitutional concerns, but would “undermine the truth-seeking function” by “allowing the use of what may well be misstatements occurring solely because the defendant was required to speak at an early moment.” 98 N.Y.2d at 235 (emphasis added). 14 52, is untenable. Given defense counsel’s notes, and the nature and circumstances of the arraignment statement, there can be no real dispute that this was a mistake by counsel, not a lie by Mr. Ortiz. Under these circumstances, to have the statement used as possible impeachment hinders, rather than advances, the truth- seeking goal of the trial. This Court should look past respondent’s mischaracterization of the facts of the case to see the impeachment for what it is: a “gotcha” tactic that turns the trial into a game, not a search for truth. On the other side of the policy ledger—something respondent appears to ignore—is the risk that arraignments advocacy will cease to exist if defense lawyers have to worry that a tiny mistake, made in the midst of representing 30 or more clients in single session, a single errant word, could come back to destroy the defendant’s credibility.7 After all, at the time of arraignment there was no way for defense counsel to divine the importance of the distinction between “knife” and 8 In another example of respondent’s disregard for the realities of arraignments, it argues that Mr. Ortiz “could have corrected any misrepresentation or misstatement if one had been made.” Resp. Br. 45. Again, he had no way of knowing at the time that the distinction between razor and knife would be significant. In any event, it is not clear that Mr. Ortiz was even aware that he could interrupt his lawyer’s presentation to give input. And, realistically, had he spoken up, it is likely that the arraignment court would view him as acting out or being impertinent. Judge Smith recognized this practical dilemma, which led him to dissent in Brown: “That defendant remained quiet during the hearing does not demonstrate that he clearly and unambiguously assented to his former attorney’s statement. In a court proceeding, it is the attorney who is expected to speak on defendant’s behalf. The defendant is expected to remain silent and speak only when spoken to.” 98 N.Y.2d at 236-37 (Smith, J., dissenting). 15 “razor.”8 In sum, if this Court accepts respondent’s arguments, it will wreak havoc on urban criminal courts in New York. Respondent attempts to downplay the importance of the arraignment statement, Resp. Br. 48, 55-58, but this after-the-fact harmless error argument is belied by the trial prosecutor’s efforts to get the statement in at all costs, even in the face of the clear advocate-witness problem. See A. 434-41. It is clear that he thought it was an key piece of evidence, and he used it heavily in summation in asking the jury to fully discredit Mr. Ortiz, raising the specter that Mr. Ortiz was simply making up a story as proceedings unfolded. See A. 526-27. And respondent’s argument that the error was harmless because the jury at Mr. Ortiz’s first trial also found Mr. Ortiz guilty without such evidence is audacious: that verdict was the result of extensive prosecutorial misconduct, which prompted the First Department to reverse the conviction. Ortiz, 69 A.D.3d at 490. 9 Respondent raises a preservation argument with respect to non-existent “constitutional claims.” See Resp. Br. 41-42, 55. In saying that he was denied a fair trial, App. Br. 30, appellant was not trying to raise such a claim—denial of a fair trial can stem from statutory or decisional law, as well as constitutional law. Mr. Ortiz was simply invoking the language of Criminal Procedure Law §§ 470.15(4)(a), 470.20(1), 470.40(1). 16 Respondent apparently agrees that this case boiled down to a credibility contest between Mr. Ortiz and the complainants. Once the defense’s collateral estoppel motion was erroneously denied, the prosecution sought to use the arraignment minutes to unfairly impeach Mr. Ortiz on what had become a key issue. The prosecution wanted this impeachment to counteract the weakness of the complainants’ own testimony; after all, the 911 call, among other things, had revealed they were liars. See A. 494-507, 513-15 (defense counsel cataloguing reasons to doubt complainants’ credibility). Under these circumstances, it cannot be said that erroneous admission of this evidence was harmless.9 B. The advocate-witness rule was violated as a result of the prosecution’s belated effort to use the arraignment statement, regardless of the favorability of defense counsel’s stipulation. Respondent attempts to show the “advocate-witness rule was not violated in this case,” Resp. Br. 62, by arguing that the evidence here did not relate to a “material issue of fact” and that the evidence “was voluntary and served to help the defense case.” Resp. Br. 62-63. These arguments show that respondent is mistaken about the purpose and scope of the advocate-witness rule. 17 With respect to the first point, the advocate-witness rule is indeed tied to “material issues,” but it is not tied to “material” facts in the way respondent seems to have in mind—that is, direct information about the commission of the crime. See Resp. Br. 62. Indeed, People v. Paperno only speaks in terms of “material issues,” 54 N.Y.2d 294, passim (1981), and it gives as an example “the voluntariness of [a] confession,” id. at 302. In this case, the issue of Mr. Ortiz’s credibility was obviously material. The trial was essentially a credibility contest between him and the complainants, where the jury had to decide whether to believe the complainants’ versions of events beyond a reasonable doubt. The stipulation evidence, derived from defense counsel’s proffered testimony, thus went to a crucial, disputed issue: whether or not Mr. Ortiz previously told a different story about what had happened. Meanwhile, respondent’s arguments about the favorability of the stipulation are irrelevant, because defense counsel’s factual credibility was still put on the line. Respondent identifies the correct guiding principle: “the advocate-witness rule requires withdrawal when it appears that counsel ‘will be called to testify regarding a disputed issue of fact . . . [and] it appears that he must testify on behalf of his own client, or if it appears that he will be called as witness to testify for the adverse party, where his testimony may be prejudicial to the client he is representing.’” 10 It should be noted that this formulation makes no reference to the materiality of the fact. As stated above, the material issue here is Mr. Ortiz’s credibility; the “disputed issue of fact” is whether Mr. Ortiz said “razor” or “knife” to his attorney at arraignments. 11 Respondent appears to be conflating conflict-of-interest and ineffective assistance of counsel principles with the advocate-witness principle. Thus, it relies heavily on People v. Baldi, 54 N.Y.2d 137 (1981), and People v. Newman, 216 A.D.2d 151 (1st Dep’t 1995), see Resp. Br. 61-62, even though Newman never mentions the advocate-witness principle and Baldi only touches on it in an ancillary footnote. See 54 N.Y.2d at 149 n.1. In the same vein, Paperno never addresses questions of ineffectiveness. Perhaps these various concepts overlap, but they are by no means the same. 18 Resp. Br. 59 (quoting Paperno, 54 N.Y.2d at 299-300) (emphasis added).10 See also People v. Berroa, 99 N.Y.2d 134, 140 (2002) (“An attorney also should not continue to serve as an advocate when it is obvious that the lawyer will be called as a witness on behalf of the client.”). These formulations explicitly provide for the situation where counsel testifies in favor of his client, because the prohibition is targeted towards keeping an advocate’s factual credibility out of the case regardless of whether it strengthens the defense.11 A proper understanding of the advocate-witness rule shows that once defense counsel announced to the court that she was a witness because of the circumstances surrounding the arraignment statement, there were only two acceptable options: have the prosecution forgo the evidence, or declare a mistrial. Of course, defense counsel could not have sat idly by—such a course would be allowing her client to be convicted based on evidence she knew was false (that is, 12 Similarly, the trial court’s proposal that another attorney be appointed for the limited purpose of examining defense counsel also misses the point: defense counsel’s factual credibility should not be made part of the case. Even if another attorney had represented Mr. Ortiz to present defense counsel’s testimony, as soon as defense counsel stepped out of the witness box and resumed her representation of Mr. Ortiz, she would return to the role of advocate, necessarily arguing to the jury the credibility of her own testimony. Thus, the trial court’s proposed solution also would not have cured the advocate-witness problem here. 13 Respondent’s argument that the stipulation was “sound trial strategy” or “advantageous,” Resp. Br. 64, ignores the fact that counsel and Mr. Ortiz were already placed in an unfair situation by the court’s ruling that the arraignment statement was admissible. That defense counsel tried to make the best of the ruling does nothing, of course, to change the unfairness of the ruling in the first instance. 19 he said razor, rather than knife), which would be both malpractice and ineffective assistance of counsel. And again, the course pursued here, a stipulation as to counsel’s testimony, does nothing to address the root problem—it still injects counsel’s factual credibility into the jury’s considerations, and whether the evidence came in through stipulation or live testimony does nothing to change that.12 Respondent is simply wrong as a logical matter when it declares that the stipulation allowed counsel to avoid “put[ting] her own credibility at issue,” Resp. Br. 64, and reference to the trial prosecutor’s summation shows just how wrong respondent is as a practical matter.13 A. 526-28; see also A. 577-78 (prosecutor emphasizing that he was attacking the veracity of defense counsel’s position that she made a mistake). 14 Respondent points to other minor inconsistencies that it claims supported admission of the arraignment statement. See Resp. Br. 53-55. These purported inconsistencies were also part of Mr. Ortiz’s testimony at the first trial, so, again, the prosecution was properly on notice. See A. 889-98. Moreover, the supposed inconsistencies that respondent is relying upon are either not inconsistencies at all, or else vanishingly small to the point of irrelevance. It is clear from the record that the focus of the impeachment was the use of “razor” instead of “knife.” See A. 382-84 (cross-examination of Mr. Ortiz); A. 436, 452, 471-74 (arguments on admission of the statement and mistrial application); A. 432-33 (stipulation read to jury). Indeed, in its brief to the Appellate Division, respondent never argued that the arraignment statement was admissible based on other inconsistencies—a strong indication that these supposed discrepancies are nonexistent or trivial. 20 Before respondent complains that “mistrial is a drastic remedy,” Resp. Br. 58, it should be remembered that this was a problem of the prosecution’s making. The prosecution was fully aware before trial of Mr. Ortiz’s projected testimony, given that he had already testified at the first trial. The prosecution easily could have given advance notice of its intention to use defense counsel’s arraignment statements.14 If it had done so before the retrial, rather than in the middle of the defense case toward the end of trial, this would have allowed for defense counsel’s timely withdrawal so as to avoid the advocate-witness problem—without a waste of judicial resources and the ensuing appellate litigation. C. Respondent’s preservation argument against Mr. Ortiz’s prosecutorial misconduct claim is utterly unsupported by the record. Respondent claims that the “instant claim regarding the prosecutor’s summation is unpreserved,” Resp. Br. 68, notwithstanding five objections by 21 defense counsel during the time the prosecutor was closing on the stipulation, as well as a mistrial motion immediately after the prosecutor finished his summation. See A. 527-28, 576-77. Again, it should be stressed that defense counsel clearly articulated the basis for her mistrial motion: Your Honor, if I may, I wanted to for the record, just to clarify, I was objecting at the point when A.D.A. Hernandez was discussing the arraignment minutes and discussing that I stated razor blade. The reason for the objection was it totally ignored the stipulation that he didn’t say that. His argument sounded like again he was arguing that Mr. Ortiz said razor blade to me even though the stipulation is clear that that is not what he said. . . . Your Honor I just want the record to be clear. My understanding of the stipulation was that Mr. Ortiz said to me and I made a mistake, and that is not what he argued. I just want the record to be clear, I’m again renewing my motion for a mistrial with prejudice. A. 576-78. Respondent seizes on the last sentence of the quote to argue that defense counsel was simply restating her earlier mistrial motion. See Resp. Br. 68. But this argument is untenable when the above quote is viewed in full context, as it follows a full page of argument on whether the prosecutor misrepresented the stipulation. See A. 576-78. Indeed, the court accepted and ruled on defense counsel’s motion as if it was a new motion for a mistrial. A. 578 (“The record is clear. If you are renewing your application or making another motion for a mistrial, that’s denied.” (emphasis added)). 22 When respondent argues that “the prosecutor was free to argue on summation that defendant told counsel something different just before he was arraigned, despite the stipulation,” Resp. Br. 71, it fails to realize that such an attack on the veracity of the stipulation—and, in turn, on defense counsel’s factual credibility—is still problematic. If one accepts respondent’s claim that the prosecutor did not misrepresent the stipulation, but was instead arguing against it, it follows that the prosecutor was asking the jury to reject defense counsel’s stipulated testimony as untrue. Asking the jury to focus on, and reject, counsel’s factual credibility goes to the essence of the advocate-witness problem discussed above. Therefore, the prosecutor’s summation was inappropriate, regardless of how respondent chooses to characterize it. 23 CONCLUSION For the foregoing reasons, and those stated in his opening brief to this Court, Mr. Ortiz’s conviction should be reversed and a new trial granted. Dated: New York, New York July 8, 2015 Respectfully Submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant JOSEPH M. NURSEY, ESQ. Supervising Attorney By: /s/ Anant Kumar ANANT KUMAR Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 akumar@appellatedefender.org