The People, Respondent,v.Andrew Blake, Appellant.BriefN.Y.September 11, 2014APL-2013-00185 To be argued by VINCENT RIVELLESE (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANDREW BLAKE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEYS Of Counsel JANUARY 17, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 QUESTION PRESENTED ................................................................................................ 6 THE EVIDENCE AT TRIAL ............................................................................................ 7 The People’s Case ....................................................................................................... 7 Defendant’s Case ...................................................................................................... 15 POINT DEFENDANT’S TRIAL ATTORNEY PROVIDED MEANINGFUL REPRESENTATION AND CANNOT BE DEEMED INEFFECTIVE FOR NOT REQUESTING AN ADVERSE INFERENCE INSTRUCTION THAT MAY NOT HAVE COMPORTED WITH COUNSEL’S STRATEGY, ESPECIALLY WHERE DEFENDANT ALLEGES NO OTHER SHORTCOMINGS OF COUNSEL AND DID NOT MAKE A POST-JUDGMENT MOTION ATTACKING COUNSEL’S EFFECTIVENESS. ................................. 16 CONCLUSION ................................................................................................................... 36 -ii- TABLE OF AUTHORITIES FEDERAL CASES Carter v. Kentucky, 450 U.S. 288 (1981)................................................................................ 31 Strickland v. Washington, 466 U.S. 668 (1984) ................................................................ 23-24 STATE CASES People v. Alberto, 256 A.D.2d 217 (1st Dep’t 1998) ............................................................. 30 People v. Baldi, 54 N.Y.2d 137 (1981) .................................................................................. 23 People v. Benevento, 91 N.Y.2d 708 (1998) ....................................................................... 23-25 People v. Blake, 105 A.D.3d 431 (1st Dep’t 2013) ................................................................. 5 People v. Caban, 5 N.Y.3d 143 (2005) .................................................................................. 25 People v. Carncross, 14 N.Y.3d 319 (2010) ............................................................................ 25 People v. Cruz, 165 A.D.2d 205 (1st Dep’t 1991) ................................................................ 31 People v. Flores, 84 N.Y.2d 184 (1994) ................................................................................. 30 People v. Handy, 20 N.Y.3d 663 (2013) .................................................................... 20, 25, 27 People v. Hobot, 84 N.Y.2d 1021 (1995) ......................................................................... 24, 30 People v. Koberstein, 66 N.Y.2d 989 (1985) ........................................................................... 26 People v. Rivera, 71 N.Y.2d 705 (1988) ........................................................................... 24, 26 People v. Smith, 11 A.D.3d 202 (1st Dep’t 2004) ................................................................. 25 People v. Turner, 5 N.Y.3d 476 (2005) ............................................................................ 25, 30 -iii- FEDERAL STATUTES U.S. Const., Amend. VI ....................................................................................................... 23 STATE STATUTES Criminal Procedure Law § 300.10 ...................................................................................... 26 Criminal Procedure Law Article 440 ............................................................... 24, 26, 30, 35 N.Y. Const., Art. I, § 6 ......................................................................................................... 23 Penal Law § 35.15 ................................................................................................................. 34 Penal Law § 110.00 ................................................................................................................. 1 Penal Law § 120.05 ................................................................................................................. 1 Penal Law § 120.10 ................................................................................................................. 1 Penal Law § 120.25 ................................................................................................................. 1 Penal Law § 200.03 ................................................................................................................. 1 Penal Law § 265.03 ................................................................................................................. 1 OTHER AUTHORITIES CJI2d(NY) Adverse Inference – Destroyed Evidence (http://www.nycourts.gov/judges/cji/1-General/CJI2d.Adverse-Inference- Destroyed-Evidence.pdf) ............................................................................. 20-21, 25-27 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANDREW BLAKE, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Victoria A. Graffeo, Judge of the Court of Appeals, defendant Andrew Blake appeals from an order of the Appellate Division, First Department, dated April 2, 2013. By that order, a unanimous Appellate Division panel affirmed an April 6, 2009 judgment of the Supreme Court, New York County (Michael J. Obus, J.), convicting defendant, after a jury trial, of three counts of Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25[1]), two counts of Assault in the First Degree (Penal Law § 120.10[1]), one count of Assault in the Second Degree (Penal Law § 120.05[1]), one count of Reckless Endangerment in the First Degree (Penal Law § 120.25), two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], 265.03[3]), and one count of Bribery in the Second Degree (Penal Law § 200.03). Pursuant to that judgment, -2- the court sentenced defendant to concurrent determinate state prison terms of 25 years on the attempted murder and first degree assault counts, 7 years on the second degree assault count, and 15 years on the weapon possession counts, those terms to be followed by 5 years of post-release supervision, and to concurrent indeterminate terms of 2 to 7 years on the reckless endangerment count and 3 to 9 years on the bribery count. Defendant remains incarcerated. Defendant’s conviction arises from his coldblooded shooting of two unarmed antagonists and an innocent bystander, followed by his attempt to bribe the police officers who arrested him for that conduct. Late in the evening on December 31, 2006, a group of defendant’s friends including Jamel jumped Charles Robinson while Robinson was walking alone near the Grant Houses, a public housing development at Broadway and La Salle Street in Upper Manhattan. Shortly after midnight, as throngs of New Year’s revelers celebrated outside the Grant Houses, Charles and his brother Rory Robinson returned with their friends Paul Melvin and Jermaine Jenkins in search of a more even fight with ’s crowd. But when Rory Robinson took off his jacket and set upon defendant and codefendant Wonder Williams with his bare hands, Williams passed defendant a gun and Robinson backed off. Defendant and Williams then began beating Jermaine Jenkins. Rory and Melvin advanced once more to help Jenkins and Charles Robinson was coming their way as well, but then defendant opened fire on them and they all -3- fled. Melvin was shot through his hand into his leg, Charles was shot in the back through his chest, and bystander Carl Jones was shot in the leg. Melvin’s hand was mangled for life, Robinson nearly died but was saved by surgery, and Jones made a full recovery. After the shooting, defendant fled to Wilmington, Delaware. A week later, on January 8, 2007, a team of Delaware and New York City police officers cornered defendant in his apartment in Wilmington. Defendant leaped out a second story window and fled, but officers gave chase and caught him a block away. Shortly thereafter, the police executed a search warrant in defendant’s apartment, and from inside a toilet tank they seized the gun that defendant had used in the Manhattan shooting. At the Wilmington Police precinct, defendant initially denied committing the shooting altogether, but the police showed him some photographs taken from a video placing him at the crime scene. Defendant then changed his story and claimed to have acted in self defense. Toward the end of the interview, defendant offered the two New York City detectives who were questioning him $10,000 each to destroy any video footage inculpating him in the shooting. By Indictment Number 58/2007, filed January 26, 2007, a New York County Grand Jury charged defendant with three counts of attempted second degree murder, three counts of first degree assault with a deadly weapon, three counts of first degree assault with depraved indifference, two counts of second degree weapon possession, -4- one count of first degree reckless endangerment and one count of second degree bribery. After suppression proceedings not at issue on appeal, defendant proceeded to a jury trial before the Honorable Michael J. Obus, and on March 5, 2009, the jury convicted defendant as set forth above. On April 6, 2009, Justice Obus sentenced defendant to a net prison term of 25 years to be followed by 5 years of post-release supervision.1 Defendant appealed to the Appellate Division, First Department, alleging that the trial court should have instructed the jury that it could draw an inference unfavorable to the People based on the inadvertent destruction of a video recording that may or may not have recorded footage relevant to the case. Defendant also alleged that his trial attorney was ineffective for not requesting such an instruction. The Appellate Division rejected defendant’s claim that the trial court should have delivered the instruction on the ground that it was unpreserved because his trial attorney did not request such an instruction. As an alternative holding, the court found that the absence of the instruction was harmless because there was “no 1 Codefendant Williams was charged jointly with the counts related to the shooting, and he was returned on the indictment in April 2007. While in jail awaiting trial, Williams tried to hire an assassin to kill the victims, and he was charged with conspiracy by Indictment Number 1832/2008. On October 5, 2009, Williams pleaded guilty to second degree conspiracy, first degree assault and second degree criminal possession of a weapon, and on December 21, 2009, Justice Obus sentenced Williams to an indeterminate term of 8 to 25 years on the conspiracy count and to concurrent determinate terms of 5 years on the other counts. On April 5, 2012, the Appellate Division affirmed Williams’s convictions (94 A.D.3d 452), and on June 21, 2012, leave to appeal to this Court was denied (19 N.Y.3d 969). -5- reasonable possibility that an adverse inference charge would have resulted in a different verdict.” With respect to ineffective assistance, the Appellate Division held that “the present unexpanded record is insufficient to determine whether counsel’s failure to request an adverse inference charge fell below an objective standard of reasonableness.” In particular, the court noted that defendant’s attorney “may have had strategic reasons for that course of action, including a concern that the language of such an instruction might undermine her summation argument.” People v. Blake, 105 A.D.3d 431 (1st Dep’t 2013). On appeal to this Court, defendant abandons his unpreserved claim that the court should have delivered an instruction informing the jury that it was permitted to draw an adverse inference from the absence of video footage that had been inadvertently destroyed. He renews the claim that his trial attorney was ineffective for failing to ask for such an instruction. On that basis, defendant seeks reversal and a new trial on the attempted murder, assault and reckless endangerment counts, and on the count charging criminal possession of a weapon with unlawful intent.2 2 Defendant does not seek reversal of the bribery count or of the weapon count predicated on possession of a loaded firearm outside the home or place of business. -6- QUESTION PRESENTED Defendant asserts that his trial attorney was ineffective solely because she did not request an adverse inference instruction pertaining to a missing video recording. Defendant did not make a post-judgment motion that would have permitted development of a record relating to his trial attorney’s strategy, at least one viable strategy existed for not requesting the instruction, and there was no significant probability that the delivery of such an instruction would have made a difference to the verdict. Should defendant’s trial attorney be deemed ineffective? The Appellate Division answered this question in the negative. -7- THE EVIDENCE AT TRIAL3 The People’s Case In December 2006, brothers CHARLES ROBINSON and RORY ROBINSON had been lifelong friends with cousins PAUL MELVIN and JERMAINE JENKINS. They had all grown up in the Grant Houses, a public housing project in Upper Manhattan bounded by Broadway on the west side, Amsterdam Avenue on the east, La Salle Street on the south and West 125th Street on the north, and they all still lived in the neighborhood4 (A. 45-51, 54, 103-114, 247-249, 277-278, 280-282, 310, 314-320, 391-395, 441-443). As pertinent here, the Grant Houses included apartment buildings with the addresses Broadway and La Salle Street; these two buildings sit parallel to each other and diagonally to LaSalle Street. Thus, one entrance to Broadway faces southwest toward the corner of Broadway and La Salle Street; the other side of Broadway opens northeast to a courtyard, playground and parking lot separating Broadway from La Salle Street; and across that space, an entrance to La Salle faces southwest toward Broadway and La Salle Street. Throughout the 3 Parenthetical page references preceded by “A” are to Appellant’s Appendix, and those preceded by “SA” are to Respondent’s Supplemental Appendix. 4 All four were at that time in their late 20s and unemployed; Charles Robinson was under post-release supervision after serving state prison time for possessing a gun, Rory Robinson was on post-release supervision after serving state prison time for his second drug possession felony, and Melvin had completed state prison sentences for two drug possession felonies. Jenkins had no criminal record. -8- Grant Houses, a set of 98 fixed and 7 moving video cameras sent footage to the New York City Police Department’s (“NYPD’s”) Video Interactive Patrol Enhancement Response (“VIPER”) Unit (A. 445-476, 510). Shortly before midnight on December 31, 2006, Charles was walking to Rory’s apartment to celebrate New Year’s Eve. While passing by Broadway at the Grant Houses, Charles ran into a group of people including Jamel , whose family still lived in the Grant Houses.5 The Robinsons and Melvin knew Jamel from the Grant Houses and from school, and Charles had briefly dated Jamel’s , . Charles was unaware of any problem with the s, but after he greeted Jamel with a handshake, Jamel punched him in the head for no apparent reason. A “little light scuffle” ensued, but Charles was able to flee from Jamel’s crowd relatively unharmed (A. 52-62, 75-77, 81-86, 100, 285-286, 400-401). Charles proceeded to Rory’s apartment and told him what had happened, and the two agreed that Charles should challenge Jamel to a one-on-one fistfight. Accordingly, the Robinson brothers proceeded unarmed to Broadway and summoned Jamel. Jamel, his cousin Irving, defendant (A. 398, 418) and others came out from Broadway, but Jamel declined to fight. Rory and Irving smoothed 5 Jamel no longer lived at the Grant Houses. On December 30, he had been listed as an authorized driver of a Dodge Caravan rented in Wilmington, Delaware. On the rental agreement, Jamel reported an address on North Dupont Street, Wilmington, Delaware, and his destination as New York (A. 819-824). -9- things over for the moment, and the brothers left the Grant Houses without incident (A. 61-65, 80-81, 100-102, 396-397, 401-405, 429-433). Back at Rory’s place, Paul Melvin joined the Robinsons and they all drank a substantial amount of Hennessey liquor and rang in the New Year. But Charles’s anger was still festering, so the Robinson brothers and Melvin decided to go back and insist on a fight (A. 65-68, 86-87, 90, 284-287, 314, 397, 405-406, 428, 433-435). On the way back to the Grant Houses, Charles, Rory and Melvin bumped into Jermaine Jenkins, and Charles explained to Jenkins what had happened. Rory, Jenkins and Melvin proceeded toward Broadway; Rory walked toward the front of the building at the corner of Broadway and La Salle Streets, while Melvin and Jenkins cut through the courtyard between Broadway and La Salle Street to the back entrance of Broadway. Charles stopped outside La Salle Street to greet CARL JONES, whose wife, ARCOLA JOHNSON, was just leaving to buy some liquor at a store a block away (A. 65, 69-70, 87, 90-91, 267, 272, 276-279, 289-290, 330, 341, 343-345, 357-359, 397, 406, 434-435). When Rory got to the front of Broadway, he saw defendant and Wonder Williams, both of whom had been with Jamel during the earlier encounter. Rory took off his jacket in preparation for a fight, and he asked which of them had hit Charles. Unsatisfied with their failure to answer him, Rory tossed his jacket on a fence and punched Williams; Williams stumbled back into defendant, and both fell backwards (SA. 53-61 [People’s Exh. 12B, frames 53-61: still shots from video footage of Rory, -10- defendant and Williams]). At about that time, Jenkins and Melvin emerged from the front of Broadway, near where Rory had pushed Williams into defendant. Williams then passed to defendant what Rory, Melvin and Jenkins thought was a gun (SA. 62-71). Defendant put it into his waistband (A. 252-254, 288-291, 398, 407-411, 425, 436-440). Melvin and Jenkins approached defendant and Williams nonetheless, but then defendant drew his gun. Jenkins and Melvin turned to run, but Jenkins tripped and fell, and defendant and Williams set upon him and struck and kicked him repeatedly. Rory and Melvin saw the gun and thought of fleeing, yet they also felt that they had to help Jenkins. But when they advanced on defendant, he opened fire.6 The first shot slammed into Melvin’s left hand with such force that it knocked his hand into his leg and the bullet entered his leg. Melvin and Rory ran away and defendant kept shooting (A. 249-250, 253-257, 259, 262, 283, 290-302, 307-311, 321, 398-399, 405, 410-414).7 Meanwhile, Charles was closer to La Salle Street and did not see defendant. When he heard the first shot and Rory came running his way, he joined him in flight east on La Salle Street, away from Broadway. As they fled toward La Salle Street 6 In several frames from video surveillance footage, just before and shortly after the gun was passed, Rory can be seen with open palms outstretched, unarmed (SA. 63, 93, 107). 7 Melvin’s injuries, while not life threatening, required a hospital stay of 5 days. A number of bones in his left hand and wrist were pulverized beyond repair, leaving the hand permanently deformed and unable to close into a fist or support much weight. Melvin also experienced pain in his leg, and bullet fragments had to be removed from his leg 11 months after the shooting (A. 540-551, 937-954). -11- where Carl Jones was waiting for Arcola Johnson to return, defendant fired several more shots in their direction (A. 256-257, 319-320, 352-353, 355-357). Charles was shot in the back and soon fell and lost consciousness on the street (A. 65-66, 71-73, 91-95, 415-418).8 Jones, who was by La Salle Street but facing Broadway, was hit in the front of his leg near his knee (A. 327-335, 341).9 Police Officers RAMON HERNANDEZ and OLIVER CAMILLERI, who were patrolling the roof of La Salle Street, heard the shots “like cannon fire” from the direction of Broadway and saw muzzle flash that “lit up the sky.” They proceeded quickly to Broadway. Within moments, police investigators identified the victims and discovered four spent shell casings from a .44-caliber weapon lying within feet of each other and the curb on LaSalle Street, near the corner of the diagonally set Broadway. They secured the scene and summoned help for Charles, Melvin and Jones (A. 116-220). Officers recorded the license plates of vehicles parked nearby, one of which was the Spallco rental that Jamel had driven to New York from Delaware (A. 228-231; see supra, fn. 4). 8 The bullet had cut through Charles’s right lung and exited his chest near his right nipple, fracturing several ribs and missing his heart by two inches. Surgery saved his life, and he was released from the hospital 5 days later, but he needed a second surgery a month later to repair lung damage (A. 955-974). 9 Jones’s injuries were not life threatening, no bones were fractured, and he made a full recovery (A. 540-541, 552-556, 561-565). -12- Officers also quickly took steps to secure footage from the video cameras around the Grant Houses. Detective MARY PETTERSON went to the VIPER Unit and had Police Officer IBALLYS SUAREZ produce the security-coded videotape containing footage from all the fixed cameras recording the front, interior lobby and rear of Broadway (A. 130-135, 221-227; SA. 1-194 [People’s Exh. 12B: CD with still images from video footage]). Through an apparent oversight, however, the police failed to preserve the videotape containing footage from a moving camera (“Camera 23”), which did not stay fixed on any one area, but periodically scanned a playground, parking lot and some of the street near Broadway – but not the front entrance of Broadway (A. 514-515, 523-528). On January 2, the day after the shooting, Detective ANGEL MARTINEZ caught the case and Detective RALPH HANNA assisted in the investigation. Before long, they were looking for Andrew Blake of North Rodney Street in Wilmington, Delaware – defendant. The detectives contacted Wilmington Police Department Detective MICHAEL GIFFORD to orchestrate a visit to defendant’s home (A. 585- 586, 661-666, 849-852). On January 8, 2007, Detectives Martinez, Hanna and Gifford and some accompanying police officers arrived at defendant’s second-floor apartment in Wilmington. They knocked at his door repeatedly and announced their presence, but in response they heard only frenzied footsteps and a baby’s cries. While some patrol officers stayed at the door, Detective Hanna went outside to look into the windows, -13- and Martinez and Gifford left to apply for a search warrant. Defendant paced through the apartment and looked out different windows, screaming at the police. At one point, defendant pointed a gun out the window at Hanna, withdrew the gun, and implored Hanna to shoot him. Officers on the scene radioed for assistance, and the grandmother of the baby that was in the apartment with defendant arrived and screamed for defendant at least to hand the baby out the door as sirens of approaching police cars blared. Given the escalating situation, Martinez and Gifford were summoned back as well. Just as Martinez and Gifford were arriving, defendant leaped out a second floor window over Gifford’s head and fled. Officers gave chase and caught him about a block away (A. 662-677, 685-686, 714, 718, 788-790, 845-846, 852-858). With defendant in custody and the baby safe with his grandmother, the police obtained a warrant to search defendant’s apartment. In the bathroom, officers found submerged in the toilet tank a loaded .44 caliber Desert Eagle – which ballistics experts later determined was the gun that had shot the victims (A. 898-924, 976-999). Officers also seized from the living room a bullet proof vest, ammunition, a gun case, and defendant’s birth certificate (A. 714-716, 801-803, 844, 858-860). -14- In the Wilmington police precinct, Detectives Hanna and Martinez read defendant his rights and interviewed him for about four hours.10 Defendant admitted that he, Jamel and others had driven up to the Grant Houses from Delaware for New Year’s Eve, and that Jamel had been involved in a dispute “with some guys that had allegedly raped [Jamel’s] .” But defendant at first denied shooting anyone. He surmised to the detectives that there was no video depicting him shooting, and he suggested that the gun could not have fingerprints on it because it had been submerged in water. The detectives showed defendant some still images of himself that they had pulled from the videotape, however, and defendant admitted that he was indeed depicted in those images. He then claimed that the victims were “pulling out razors,” so he “had to do what he had to do.” Also during the interview, defendant said that he was “paranoid,” and he told the police that they were lucky he had not shot them through the door of his apartment when they were knocking (A. 719-736, 831-833, 860-876). Toward the end of the interview, defendant became exasperated, “pushed away from the table and said, fuck it, I’ll give you $20,000, I’ll give you $10,000 each to get rid of the evidence from New York” (A. 738, 876). Hanna and Martinez played 10 Neither of the New York detectives was aware that, in accordance with standard Delaware procedure, their interview of defendant was being recorded by a hidden camera. Because of a computer glitch, however, only 18 minutes of that recording was preserved and provided to the NYPD Detectives by the Wilmington Police Department (A. 622-623, 629- 630, 640-641, 646, 720, 863). -15- along, pretending to negotiate with defendant as to how they would collect the money in exchange for getting rid of the evidence pertaining to the New York shooting (A. 738-743, 876-881). On June 12, 2007, Charles, Rory, Melvin and Jenkins viewed a lineup in Delaware (A. 98, 264-265, 303, 311, 419-420). Eventually, authorities realized that they did not have video from Camera 23, which could possibly have captured some relevant action on videotape, and efforts were made to locate the tape containing that camera’s footage. However, by that time, the footage had been overwritten by later footage in the normal course of business (A. 461, 498-501, 516-517, 524, 528, 530- 531). Defendant’s Case Defendant called Detective PETTERSON, who had testified for the People, out of turn at the end of her testimony for the People. Counsel elicited that, during an interview, Charles Robinson had told Detective Petterson that had told Charles at the time he punched him that he believed Charles had “violated [ ’s] ” (A. 135-138). -16- POINT DEFENDANT’S TRIAL ATTORNEY PROVIDED MEANINGFUL REPRESENTATION AND CANNOT BE DEEMED INEFFECTIVE FOR NOT REQUESTING AN ADVERSE INFERENCE INSTRUCTION THAT MAY NOT HAVE COMPORTED WITH COUNSEL’S STRATEGY, ESPECIALLY WHERE DEFENDANT ALLEGES NO OTHER SHORTCOMINGS OF COUNSEL AND DID NOT MAKE A POST-JUDGMENT MOTION ATTACKING COUNSEL’S EFFECTIVENESS (Answering Defendant’s Brief). There was never any dispute that the police failed to preserve footage from Camera 23; the police witnesses admitted this mistake during the People’s direct case, and defendant’s attorney highlighted the mistake in cross-examination and summation. There is likewise no dispute that it would have been within the trial court’s discretion to deliver a permissive adverse inference instruction as a remedy for that mistake, had defendant asked for one. But he did not ask for that relief. The question of law before this Court, therefore, is not whether the evidence was prematurely destroyed, or whether an adverse inference instruction would have been an appropriate remedy for that destruction. Instead, the only question now at issue is whether defendant’s trial attorney must be found ineffective as a matter of law – without any inquiry whatsoever into her trial strategy – simply for declining to ask for the permissive adverse inference instruction. The answer is no. A defendant and his attorney must have sufficient freedom to chart their defense strategy to decide whether to request a permissive -17- adverse inference instruction. Thus, without the benefit of a post-judgment motion through which that strategy would have been explored, this Court lacks sufficient information to pass upon trial counsel’s effectiveness. For that reason alone, review of the claim is inappropriate here. Moreover, as the Appellate Division recognized, there was a readily apparent strategic reason why counsel might have foregone requesting the instruction. Finally, in light of the harmlessness of the absence of an adverse inference instruction in this case, defendant’s trial attorney could not have been ineffective for omitting to request it anyway. A. As defendant did not move to vacate the judgment, the only available information regarding his trial attorney’s effectiveness – and in particular her decision not to request an adverse inference instruction – is what can be gleaned from the trial record itself. We summarize below the pertinent portions of that record. Throughout jury selection, the court explained that the People bore the burden to prove guilt beyond a reasonable doubt, that defendant must be presumed innocent until proven guilty, and that it was the jury’s job to determine whether the People met their burden (SA. 195-198, 207-208). The court also noted that defendant had no burden to prove anything, and that the jury could not infer anything adverse to defendant if he chose not to testify (SA. 198, 205, 207). When it was defendant’s attorney’s turn to speak, she ascertained that prospective jurors would not “hold it against” defendant if he chose not to testify -18- (SA. 199-205, 209). She also secured the court’s promise that it would give the pool of prospective jurors an instruction that “no adverse inference is to be drawn from the fact that a defendant may not testify” (SA. 206). After the jury was sworn, the court delivered preliminary instructions, informing the jury, among other things, that “the burden of proof [beyond a reasonable doubt] always remains on the People” (A. 20), that “statements by the lawyers are not themselves evidence” (A. 21-22, 26-27), and that defendant had “no obligation … to offer any evidence” (A. 22). It was the jury’s responsibility “to find and to determine the facts” (A. 27), and to decide the case on the “evidence” (A. 20). After the prosecution made an opening statement outlining the evidence that the People expected to present, defendant’s attorney made an opening statement during which she reminded the jury, among other things, not to hold it against defendant if he did not testify (A. 41). With respect to the subject matter underlying defendant’s current claim, the People’s trial witnesses established that throughout the Grant Houses at the time that the shooting took place, a set of 98 fixed and 7 moving VHS videotape cameras recorded footage for the NYPD’s VIPER Unit (A. 448-471, 510). Immediately after the shooting, Detective Petterson went to the VIPER Unit and had Police Officer Suarez pull the videotape containing footage from all the fixed cameras recording the front, interior lobby and rear of Broadway at the time of the shooting (A. 130- 135, 221-227, 512-513, 525, 532; SA. 1-194). -19- Through an apparent oversight, however, the police failed to pull the videotape containing footage from Camera 23, a moving camera that was primarily a “view of the playground” and whose images were stored with those of other playgrounds covered by other moving cameras (A. 523). That camera periodically panned across the playground, parking lot and “some of” a sidewalk on La Salle Street, but not the front entrance of Broadway (A. 498-499, 514-515, 523-528). Later efforts to locate the tape containing that camera’s footage failed, because the footage had been overwritten by later footage in the normal course of business (A. 461, 498-501, 516- 517, 524, 528, 530-531). Throughout the trial, defendant’s attorney cross-examined the People’s witnesses extensively about the lost footage and the video recording generally (e.g., A. 158-159, 496-501, 524-534, 768-775, 887-889). Of course, counsel took other actions on defendant’s behalf as well, such as asking the court to approve an investigator to go to Delaware (A. 239), and keeping a paralegal in the courtroom to assist her (A. 306). She recognized victim Carl Jones from having seen him months before as a witness in another case (A. 334). She even made one police witness briefly her own, out of turn, in order to go beyond the scope of the direct examination (A. 135). Although defendant’s attorney frequently objected to evidence that she wished to exclude (e.g., A. 364-371, 487, 653-654), occasionally she strategically chose not to object even though she had grounds to do so. For example, counsel at one point explained that she did not object to the prosecutor asking leading questions of a -20- police witness on direct examination because she believed that the leading questions were protecting her client from damaging answers (A. 895). She also took care to have the court explain to defendant why she was not permitted to argue to the jury for suppression based on the search warrant (A. 597). And, counsel defused a potentially delicate ethical situation when she interviewed a “parade” of defendant’s acquaintances who came to her office during trial entreating her to “put them on the stand and present them as witnesses” (A. 704-705). Based on her assessment of the testimony she had seen already, as well as “other reasons” which she chose not to specify, she informed the court that she “cannot and will not put these witnesses on the stand” – and that defendant was in accord with that decision (A. 705). Toward the end of the trial, counsel requested that the court instruct the jury on justification, and she again requested the “no adverse inference” instruction regarding defendant not testifying (A. 704, 706, 1006-1007). Counsel did not ask the court also to deliver a permissive adverse inference instruction based on the police destruction of the video. Such an instruction would have informed the jurors that they were permitted, but not required, to infer that the missing videotape would have been favorable to the defense. See People v. Handy, 20 N.Y.3d 663, 669 (2013) (the jury “may draw an inference in defendant’s favor”) (emphasis in original); CJI2d(NY) Adverse Inference – Destroyed Evidence (jurors “may, but are not required to, infer that -21- the destroyed evidence would have been favorable to the defense”) (emphasis supplied).11 In summation, in addition to assailing generally the credibility of the People’s witnesses (A. 1048-1055), defendant’s attorney definitively declared that “missing evidence” constitutes “reasonable doubt” (A. 1061). With respect to the missing video footage in particular, counsel assertively stated: This footage is missing. Camera 23 is exactly where the incident occurred. What would you have seen on Camera 23, you would have seen the aggressors going after Blake. You would have seen a terrified Blake trying to get away. (A. 1063). The court overruled the prosecutor’s objection, and defense counsel continued: You would have seen Blake defending himself. Ladies and gentlemen, this is New York. This is the Manhattan DA's office. NYPD is probably the most powerful law enforcement agency in this country. Are you kidding me that the one video that would show what happened is not here? Are you kidding me? Are you going to convict this guy when the evidence is not here, the only evidence that would show anything is not here? Can you really send him to prison on that? (A. 1064). The prosecutor objected again, and while the court reminded the jury that punishment was not an issue for its consideration, it also overruled the objection and 11 The full text of the instruction recommended by the Committee on Criminal Jury Instructions is published at http://www.nycourts.gov/judges/cji/1-General/CJI2d.Adverse- Inference-Destroyed-Evidence.pdf (accessed Jan. 13, 2014). -22- told the jury that it would “permit the argument” (1049). Counsel stressed the point once again (A. 1065). In the Assistant District Attorney’s summation, she addressed the justification defense. The prosecutor noted that Rory Robinson tossed his jacket on a railing and approached defendant with open palms, holding no weapon in his hands (A. 1096- 1097, 1103; see SA. 63, 93, 107 [images of Rory Robinson]). She acknowledged that a fistfight was at hand, but stated that gunfire was not a permissible response to it (A. 1105-1106). When the prosecutor suggested that the shooting would not even have been a permissible response even if razors had been drawn, defendant’s attorney objected and the court explained, “I will charge the jury, but counsel can make their factual arguments” (A. 1107). The prosecutor continued that defendant had a duty to retreat before opening fire because, being outside, he could have run away (A. 1107- 1108). The prosecutor predicted that the judge would instruct the jury that “speculation has absolutely no place” in their deliberations (A. 1108), and she argued that the only evidence of razors being drawn was defendant’s “self-serving statements” (A. 1108). With regard to the missing camera in particular, the prosecutor said “because we don’t have a camera that might have showed a portion, a slight portion of this incident, is not reasonable doubt” (A. 1112). After the parties’ summations, Justice Obus delivered standard final instructions during which he instructed the jurors that defendant was presumed innocent, that the People bore the burden of proof beyond a reasonable doubt, and -23- that defendant had no burden to prove anything (A. 1132, 1153-1155). In explaining reasonable doubt, the court cautioned that a “reasonable doubt” is not “mere possibility or whim or a doubt borne of a guess or speculation or surmise” (A. 1154). With regard to inferences, the court instructed the jurors that in considering the evidence of intent, which “is not something that one can see or feel,” it “must be inferred from all the circumstances” (A. 1164). As defendant had requested, the court instructed the jury “that the fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn” (A. 1154). The court also reminded the jurors that their factual findings had to be based on the evidence (A. 30), and that the “remarks of counsel” were “simply arguments advanced by the respective attorneys to assist you in arriving at your conclusions” (A. 1136). B. In light of the exemplary representation defendant received throughout his trial, any claim that his attorney should be deemed ineffective solely for the single, unremarkable omission of a request for a permissive adverse inference instruction must fail. Of course, a criminal defendant has the constitutional right to have the effective assistance of counsel at his trial. See U.S. Const. Amend. VI; N.Y. Const. Art. I, § 6; Strickland v. Washington, 466 U.S. 668 (1984); People v. Benevento, 91 N.Y.2d 708 (1998); People v. Baldi, 54 N.Y.2d 137 (1981). But defendants are not entitled to perfect or error-free representation, Benevento, 91 N.Y.2d at 712, and courts “must -24- indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. Accordingly, an attorney will not be deemed ineffective absent a “showing that counsel’s performance was deficient and that the deficiency in performance prejudiced defendant.” People v. Benevento, 91 N.Y.2d at 713 (citations omitted). Regarding the attorney’s performance, “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s failure.” People v. Rivera, 71 N.Y.2d 705, 709 (1988); see People v. Hobot, 84 N.Y.2d 1021, 1022 (1995) (“defendant bears the well- settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation”). This should be done by way of a Criminal Procedure Law Article 440 motion, to develop “a complete record” of counsel’s thinking and strategy rather than “resorting to supposition and conjecture” about it. Rivera, 71 N.Y.2d at 709. Only in a “rare case” will it be possible to resolve an ineffectiveness claim from the trial record alone. Id. As to prejudice, a defendant advancing an ineffectiveness claim based on the federal constitutional right to counsel bears the burden of showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Benevento, 91 N.Y.2d at 713 (quoting Strickland, 466 U.S. at 694). Under the corresponding state rubric, he must show that he has not received “meaningful representation” and has been deprived of a fair trial. -25- Id at 713-714. In either case, it will be “rare” for a single error alone to support a claim of ineffective assistance. People v. Turner, 5 N.Y.3d 476, 480 (2005); see also People v. Carncross, 14 N.Y.3d 319, 331 (2010) (“Only where the single error is sufficiently ‘egregious and prejudicial’ will counsel be deemed ineffective”) (citations omitted); People v. Caban, 5 N.Y.3d 143, 152 (2005) (same). Applying those principles here, it is plain that defendant has not carried his burden of showing either deficient performance by his trial attorney or prejudice to his case. He claims only a single purported error: that his attorney neglected to ask for a permissive adverse inference instruction based on the premature destruction of the footage from Camera 23. As noted, where evidence “reasonably likely to be material” is destroyed by the government and the defense requests an adverse inference instruction, “the jury should be told it may draw an inference in defendant’s favor.” Handy, 20 N.Y.3d at 669-670 (emphasis in original, internal quotations and citations omitted); see CJI2d(NY) Adverse Inference – Destroyed Evidence. An adverse inference instruction might therefore have been required had defendant requested one; at the very least, it almost certainly would have been within the court’s discretion to oblige such a request. However, a defendant may be entitled to an adverse inference instruction and simply not want it. See, e.g., People v. Smith, 11 A.D.3d 202, 203 (1st Dep’t 2004) (where a defendant’s mistrial motion was denied, the “defendant declined the court’s offer to deliver an adverse inference charge instead”). Similarly, defendants are entitled to an -26- instruction that a jury must take no adverse inference from their decision not to testify, but not all defendants request this instruction, and it is error to give the instruction absent a request for it. CPL § 300.10(2); People v. Koberstein, 66 N.Y.2d 989 (1985). Plainly, deciding which jury instructions to request is part of conducting a defense – and attorneys must be permitted to advocate for or against particular instructions in furtherance of their chosen trial strategies. This is why ineffective assistance of counsel claims should be brought by post-judgment motions pursuant to Article 440. Having failed to advance his claim in that manner, defendant has failed to rule out the possibility that his attorney had a strategic reason not to request the instruction. For this reason alone, defendant’s ineffectiveness claim should not be reviewed here. Rivera, 71 N.Y.2d at 709. Moreover, not only did defendant fail to rule out a strategic explanation for his attorney’s conduct, but a unanimous panel of appellate judges identified one possible strategy. To that end, the Appellate Division affirmatively stated that defendant’s trial counsel could have harbored a “concern that the language of such instruction might undermine her summation argument” (A. 4). It was perfectly plausible that defendant’s attorney harbored the stated concern – it could well have been her view that the balanced, permissive wording of the standard CJI adverse inference instruction would not juxtapose well with defense counsel’s more forceful insistence in summation that the tape unquestionably would have exonerated defendant. After all, defendant’s attorney did not merely ask the jurors to infer that the lost footage -27- might have been favorable to the defense, as the CJI instruction would have explained that the jurors “may, but are not required” to do. Instead, she practically testified for defendant, assuring the jurors that within the lost footage, the jury “would have seen the aggressors going after” defendant, “would have seen a terrified [defendant] trying to get away,” “would have seen [defendant] defending himself,” all on what she assured the jurors was “the one video that would show what happened” (A. 1063-1064). A balanced, permissive instruction would have taken the flavor of inevitability out of this argument, essentially reminding the jurors that they did not have to infer the substantive facts that defendant suggested were irrefutable. Handy, 20 N.Y.3d at 669- 670 (the permissive inference “neither establishes a legal presumption nor furnishes substantive proof”). Indeed, the fact that a potential strategy for the challenged conduct was so readily apparent to a panel of judges suggests that a reasonable attorney might also have pursued it. Furthermore, when the People objected to defendant’s detailed, self-serving assertions as to what the jury would have seen on the lost footage, the court overruled the objection and said that it would “permit the argument” (A. 1064). This ruling, while not an elaborate instruction, let the jury know that the defense argument about the missing footage was indeed permissible. Coupled with the court’s instruction that the jury could accept or reject attorney’s arguments about the facts (A. 1107), the jury would have concluded that they were entitled to find – if they were persuaded – that the missing footage might have shown what defendant’s attorney suggested. And -28- while this ruling was sparer than the pattern instruction, it gave the trial court’s imprimatur to the forceful defense argument in a way that the pattern charge – which states only that the jurors “may” make an inference generally favorable to the defense – would not. While defendant characterizes the failure to ask for the instruction as an “oversight” (DB: 20), the record as a whole suggests just the opposite – that defendant’s attorney was attentive to detail, thoughtful, strategic, and knowledgeable about jury instructions in particular. For example, counsel was clearly – and justifiably – concerned with ensuring that the jurors would not draw any adverse inferences about her client not testifying. She made sure that the court would instruct the jury that they were not to take such an adverse inference, and she may well have wished not to muddy the final instructions with a potentially inconsistent sounding explanation that they could draw an adverse inference about something else. Nor did the prosecutor’s summation give rise to any additional need for an adverse inference instruction, as defendant suggests (DB: 15, 17-18). As noted, the prosecutor told the jurors that the judge would instruct them not to speculate (A. 1108) – and the court did explain that a reasonable doubt would not be based on speculation alone (A. 1154). But the prosecutor never suggested that the absence of the destroyed footage could in any way “inure to the State’s benefit” (DB: 18); she simply explained that a person who was proved guilty by overwhelming evidence should not automatically be acquitted because a single piece of evidence that may or -29- may not have been relevant was lost (A. 1112). This was not inconsistent with what an adverse inference instruction would have conveyed, namely, that the jurors were permitted, but not required, to infer that the missing footage would have favored the defense. And, of course, the trial court had specifically said both that the defense argument was permissible and, during the prosecutor’s summation, that “counsel can make their factual arguments” (A. 1107). Along with the court’s admonition that the burden of proof was on the People and that defendant had no burden at all, there was no danger that the jury would have presumed guilt from the loss of the tape. Finally, throughout the trial, defendant’s attorney participated in other meaningful ways to advance the defense. As noted, she asked the court to approve an investigator to go to Delaware, kept a paralegal in the courtroom to assist her, recognized victim Carl Jones from having seen him months before in another court, and made a police witness briefly her own, in order to go beyond the scope of cross- examination. She chose to refrain from objecting to leading questions when she saw benefit to her client from permitting them. She even successfully deflected efforts by defendant’s acquaintances to offer perjured testimony on defendant’s behalf without damaging her relationship with defendant. All these indicators of attention to detail, competence and strategy show that counsel was not clueless to relevant trial issues, but instead was purposefully charting a course of defense as she was expected and entitled to do. -30- C. While the lack of an Article 440 motion should preclude review of defendant’s claim, and while the record actually suggests reasonable strategies for counsel’s performance, the omission of an adverse inference instruction here could not possibly have deprived defendant of a fair trial even if the omission were an oversight. A far more “egregious and prejudicial” error would be required to serve as the sole ground for an ineffectiveness claim. See, e.g., Turner, 5 N.Y.3d at 481. In Turner, counsel’s fatal error – omitting a winning statute of limitations defense that was “clear-cut and completely dispositive” of a manslaughter count – was sufficiently egregious to render counsel’s assistance ineffective. Id. But as this Court explained, such lesser errors as “overlooking a useful piece of evidence” (citing People v. Hobot, 84 N.Y.2d 1021 [1995]), or “failing to take maximum advantage” of missing Rosario material (citing People v. Flores, 84 N.Y.2d 184 [1994]), “do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate.” Turner, 5 N.Y.3d at 480-481. The failure to request a jury instruction about permissive inferences is certainly of this lesser variety. The jury, after all, was well aware of the significance of the missing evidence; there were dozens of pages of direct examination, cross- examination and summation argument about the missing video. See People v. Alberto, 256 A.D.2d 217 (1st Dep’t 1998) (“the fact that counsel did not request an adverse inference charge concerning the police’s failure to voucher certain evidence could not -31- have deprived defendant of a fair trial” where “[c]ounsel drew adverse attention to that failure by vigorous cross-examination of the People’s witnesses”); People v. Cruz, 165 A.D.2d 205, 208 (1st Dep’t 1991) (rejecting ineffectiveness claim for failure to request adverse inference charge where counsel “reminded the jury on summation that the People had thrown the bag away” and “[t]he jury was thus certainly aware of the significance of the missing bag. Any prejudice to defendant stemming from counsel’s failure to seek an adverse inference charge was at most minimal”). As the Appellate Division astutely recognized (A. 4), the presence or absence of an adverse inference instruction here would likewise have had minimal significance. In arguing that an adverse inference instruction had to be requested, defendant posits that the omission of an adverse inference instruction might have left the jury thinking that the absence of the video could be held against defendant (DB: 15, 24), or that it would be improper to make inferences about the missing evidence (DB: 15, 24). But defendant seeks support for his arguments from the proposition that “the influence of the trial judge on the jury is necessarily and properly of great weight. . . . [H]is lightest word or intimation is received with deference, and may prove controlling.” (DB: 19, quoting Carter v. Kentucky, 450 U.S. 288, 302 n.20 [1981]). Taking that as truth, though, the jury would simply have heeded Justice Obus’s explanation that the arguments of counsel were just that – arguments – as well as Justice Obus’s explicit ruling to “permit the argument” that defendant made during his summation. The trial court instructed the jury that the burden of proof sat on the -32- People, that defendant was presumed innocent until proven guilty, and that defendant had no burden to prove anything. Finally, the evidence so overwhelmingly established defendant’s guilt that any instruction about how to consider the loss of a videotape would have been insignificant. There is no doubt at all that defendant was the gunman who destroyed Paul Melvin’s hand, nearly killed Charles Robinson, and shot Carl Jones in the leg. Were there any reason to doubt that the witnesses who identified defendant in a lineup, in the video footage, and in court had accused the right man, such doubt was obliterated by the forensic evidence. Defendant, after all, was captured a week later in Delaware, still in possession of the weapon he used in the shooting. Understandably, then, any discussion of his guilt must begin with the undeniable proposition that he “did it.” Only defendant’s meager justification defense was at issue. But the evidence disproving justification, too, was utterly overwhelming. The only evidence even arguably suggesting that defendant was ever confronted with any deadly physical force came from defendant himself under circumstances virtually assuring that he was lying. Indeed, when the police interviewed him after his arrest, defendant initially denied having been the shooter. Only when the detectives led him to believe that they could prove he was the shooter did he change that story, and the only exculpatory thing he could say was that he had done it in self defense. Yet he did not yet know what was captured on video. So, he had to fabricate a weapon on his purported assailants that -33- might not be evidence on videotape. He selected razors, small blades easily concealed in a hand, and claimed in the most general terms that he had shot his victims to protect himself from being cut. That halfhearted, desperate invention bore no indicia of credibility at all, coming as it did from the most interested witness in the case on the heels of his outright denial that he was the shooter. It would not take much to disprove a justification defense resting on so tenuous a foundation, and the People’s evidence more than did the trick. To begin, the underlying dispute that led to the shooting did not even involve defendant; it was instead a beef between Jamel and Charles that had to that point involved only bare fists. Yet defendant, who had come up from Delaware armed with a handgun, injected himself into those fisticuffs and drew what no one disputed was the first and only firearm at the scene. The very genesis of the shooting, therefore, went a long way toward defeating the notion that it was justified. On top of that, the testimony of all the People’s witnesses painted a complete picture of the shooting that left no room for speculation that it could have been justified. As set forth in more detail supra, this was not a case of “one person’s word against another’s” (DB: 3, 17). To the contrary, Charles, Rory, Melvin and Jenkins all swore that they were unarmed and looking only for a fistfight, and corroboration of that testimony abounded. For one thing, Rory’s initial lunge at defendant, which prompted Wonder Williams to pass defendant the gun that was used moments later in the shooting, was captured on videotape. Rory can be seen depositing his jacket on a -34- rail and raising his empty hands at defendant and Williams. One need not remove his jacket to attack with weapons, and Rory’s barehanded approach to two men could not possibly have been construed as an imminent use of deadly force. Yet defendant responded to that non-deadly show of force by preparing to use the gun. The police and medical testimony about the shooting provided significant corroboration for the accounts related by the victims as well. Officers nearby described the loud shots and muzzle flash much as the civilian victims and witnesses did, and they arrived post-haste from just down the block. The victims were newly shot and likely too preoccupied with their pain to have taken the trouble to hide weapons, yet there was no testimony that any were found on or near them. Shell casings were found, however, just where they should have been if defendant had shot the victims as they claimed. And of course, Charles Robinson was shot in the back as he fled; this alone was fatal to any justification claim. In addition, defendant had a duty to retreat. See Penal Law § 35.15(2). There was no dispute that these shootings took place outside, and in that light, defendant could easily have run off in almost any direction rather than elevate a fistfight into a one-sided gunfight. Instead, after Rory’s initial unarmed attack, defendant received the gun and – as the video stills confirm (see SA. 60-194) – he remained on the scene, despite several opportunities to leave. Lastly, defendant’s flight to Delaware certainly indicated a guilty conscience, and his actions in Delaware when the police came for him still further established that -35- point. Most tellingly, he tried to hide the gun in the toilet tank – at the same time revealing that he knew what damning evidence it was and also setting up his later claim that the police would not be able to get his fingerprints from it because it was wet. Then, when talking to the police, defendant claimed that he was paranoid, expressed grave concern that the police might have videotape of the shooting, and offered the officers $20,000 to destroy the evidence he thought they had. All of this evidence showed defendant’s guilty knowledge, and in that way it corroborated the victims’ claims that they were not armed. In short, the evidence of defendant’s guilt was overwhelming. He shot at unarmed assailants, hitting one in the back as he ran away, and caused serious physical injury to two victims. He fled to another state with the assault weapon, and he tried to bribe the police who caught him. That shooting plainly was not justified, and against the backdrop of that overwhelming evidence of guilt, it could not have made a whit of difference whether the trial court delivered a permissive adverse inference instruction highlighting the missing video footage. This is particularly so where defendant nonetheless vigorously argued the significance of the missing video. * * * In sum, this Court should not review defendant’s ineffectiveness claim. Without the record that might be developed pursuant to an article 440 motion, defendant cannot show the lack of strategic reason for not seeking an adverse inference instruction. On this record, defendant’s attorney provided meaningful -36- representation. Indeed, the record actually suggests good reason for deliberately omitting such a request. Moreover, even absent any strategy, there was no reasonable possibility, let alone probability, that such an instruction would have made a difference to the verdict. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: VINCENT RIVELLESE Assistant District Attorney CHRISTOPHER P. MARINELLI VINCENT RIVELLESE Assistant District Attorneys Of Counsel January 17, 2014