The People, Respondent,v.Andrew Blake, Appellant.

Brief

N.Y.September 11, 2014

To be argued by: RAHUL SHARMA (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANDREW BLAKE, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG Attorney for Defendant-Appellant ALEXANDRA KEELING Supervising Attorney By: RAHUL SHARMA Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel: (212) 402-4100 Fax: (212) 402-4199 rsharma@appellatedefender.org February 4, 2014 ii TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RESPONDENT FAILS TO RESPOND TO OUR ARGUMENT THAT CLEAR INSTRUCTIONS REGARDING THE DESTROYED VIDEO EVIDENCE WERE NECESSARY TO CORRECT THE PROSECUTOR’S STATEMENTS IN SUMMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 iii TABLE OF AUTHORITIES Cornell v. Kirkpatrick, 665 F.3d 369 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . 3 Cullen v. Pinholster, 131 S. Ct. 1388 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Wesley, 76 N.Y.2d 555 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 ARGUMENT RESPONDENT FAILS TO RESPOND TO OUR ARGUMENT THAT CLEAR INSTRUCTIONS REGARDING THE DESTROYED VIDEO EVIDENCE WERE NECESSARY TO CORRECT THE PROSECUTOR’S STATEMENTS IN SUMMATION. Judging from its brief, Respondent would like this Court to focus on anything other than the prosecutor’s statements in summation. Thus, Respondent only briefly mentions, in passing, the prosecutor’s incorrect statement that accepting Mr. Blake’s self-defense claim would constitute “‘speculation,’” which the judge would say “‘has absolutely no place in your jury deliberations.’” Resp. Br. 22 (quoting A. 1108). And Respondent never mentions that the prosecutor incorrectly told the jury to reject Mr. Blake’s self-defense claim because there was “absolutely no evidence whatsoever” supporting it. A. 1106. By contrast, to show that defense counsel provided “exemplary” representation, Respondent mentions twice that she “kept a paralegal in the courtroom to assist her.” Resp. Br. 19, 23, 29. Respondent’s attempt to divert the Court’s attention from the prosecutor’s summation is understandable: The statements the prosecutor made were wrong and unfair, and they make this case sui generis. As we acknowledge in the opening brief, in the typical case, the failure to request a permissive adverse inference charge regarding destroyed video evidence will not constitute ineffective assistance of counsel. App. Br. 23-24. This is not the typical case, however. 2 After the prosecutor’s summation, defense counsel should have asked the judge to instruct the jury that (1) speculation – at least about the content of the missing video footage – was permissible, and (2) the absence of objective proof could not be held against Mr. Blake in assessing his self-defense claim, since the State was responsible for that absence. Because defense counsel did not request instructions to correct what the prosecutor said, the jury’s consideration of Mr. Blake’s self- defense claim was tainted. Respondent argues that corrective instructions were unnecessary, since the trial judge allowed defense counsel to argue that the destroyed video would have shown Mr. Blake trying to escape the complainants before shooting at them. See Resp. Br. 27. Respondent is wrong: the trial judge’s permission of that argument did not excuse the prosecutor’s subsequent misstatement that the judge would instruct the jury not to speculate in the deliberations. A. 1108. First, the prosecution’s misstatement, unlike defense counsel’s argument, was couched as fact – something the judge would instruct the jury – which is obviously much stronger than the mere argument of a defendant’s advocate. Second, the prosecution’s misstatement came after defense counsel’s argument, increasing the possibility that it tainted the jury deliberations. Third, even assuming that the jury knew it could speculate about the content of the destroyed video footage, that does not address the other major misstatement in the State’s summation: that the jury 3 should reject Mr. Blake’s self-defense claim because there was no evidence to support it. Because the prosecutor’s statements in summation were not corrected, the jury likely deliberated under the impression that speculation about the content of the destroyed video footage was impermissible, and that the absence of objective evidence – for which the State was responsible – could be held against Mr. Blake in assessing his self-defense claim. For those reasons, even assuming, arguendo, that defense counsel’s failure to request corrective instructions was a strategy instead of an oversight, see Resp. Br. 17, it cannot be considered a “‘sound trial strategy.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1404 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)) (emphasis added); see also Cornell v. Kirkpatrick, 665 F.3d 369, 377 (2d Cir. 2011) (“[A defendant’s lawyer is ineffective if he made] omissions that cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude or laziness.”) (citation and internal quotation marks omitted). The prosecution’s case relied on the say-so of a group of intoxicated ex- felons who were either related to, or friends with, each other. See App. Br. 20. Based on their testimony, the prosecutor argued that Mr. Blake was merely at risk of “a beat down by some real angry men,” but that he could have simply “walked 1 Respondent’s Supplemental Appendix does not resolve these issues. It does not show the shooting, and therefore does not show the situation Mr. Blake was in when he began to shoot – a “‘critical focus’” in determining whether someone acted in self-defense. See App. Br. 22-23 (quoting People v. Wesley, 76 N.Y.2d 555, 559 (1990) (citation omitted)). Indeed, we can only see one of the complainants, Rory, confronting Mr. Blake and Wonder Williams in the immediate entrance area of the Grant Houses. See, e.g., SA. 53-61. We cannot see the other complainants; we cannot see when they joined Rory; we cannot see whether any of them gave Rory a razor; we cannot see whether they began chasing Mr. Blake and Mr. Williams down La Salle Street, the location of the shooting; and we cannot see whether Mr. Blake and Mr. Williams were able to retreat. 4 away.” A. 1106-08. The unpreserved video footage was the only evidence that could have shown whether the prosecutor was correct, or whether Mr. Blake was being chased by a group of men with razors when he began to shoot.1 Because the unpreserved footage was so critical, the jurors needed to understand their ability to speculate about the content of it – and their inability to hold the footage’s absence against Mr. Blake. For those reasons, Mr. Blake’s lawyer should have asked the judge to specifically correct the prosecutor’s gross misstatements of law. 5 CONCLUSION For the foregoing reasons and for those given in the opening brief, the Court should reverse Mr. Blake’s convictions for attempted murder, assault, and reckless endangerment, and order a new trial. Respectfully submitted, RICHARD M. GREENBERG Attorney for Defendant-Appellant ALEXANDRA KEELING Supervising Attorney ___________________________________ By: RAHUL SHARMA Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 rsharma@appellatedefender.org