The People, Respondent,v.Andrew Blake, Appellant.BriefN.Y.September 11, 2014To 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. 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 September 13, 2013 ii TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Incident: The Complainants Allege that Mr. Blake Shot at Them Without Justification, While Mr. Blake Says that He Acted in Self-Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. The Police Accidentally Destroy Footage of Where the Incident Occurred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. The Police Arrest and Unsuccessfully “Try[] to Get a Confession Out of” Mr. Blake. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D. At Mr. Blake’s Trial, both the Prosecution and Defense Argue that the Absence of Objective Evidence Harms the Other Side’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 E. The Appellate Division Affirms Mr. Blake’s Convictions. . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 THERE WAS NO BASIS FOR TRIAL COUNSEL’S FAILURE TO REQUEST A PERMISSIVE ADVERSE INFERENCE CHARGE ABOUT DESTROYED FOOTAGE, AND THE OMISSION OF THE CHARGE TAINTED THE JURY’S CONSIDERATION OF ANDREW BLAKE’S SELF-DEFENSE CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 iii TABLE OF AUTHORITIES Cases Carter v. Kentucky, 450 U.S. 288 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Blake, 105 A.D.3d 431 (2013) . . . . . . . . . . . . . . . . 13, 14, 18, 19, 21-23 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Handy, 20 N.Y.3d 663 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Pons, 68 N.Y.2d 264 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Wesley, 76 N.Y.2d 555 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16, 20 Statutes N.Y. Penal Law § 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 120.05(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 120.10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 120.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 125.25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 200.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 265.03(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 265.03(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : against, : Ind. No. 58-2007 : ANDREW BLAKE, : : Defendant-Appellant : --------------------------------------------------------------------X PRELIMINARY STATEMENT This is an appeal of a judgment of conviction rendered on April 6, 2009, in Supreme Court, New York County (Obus, J.). After a jury trial, Andrew Blake was convicted of attempted murder in the second degree (three counts), N.Y. Penal Law §§ 110/125.25(1), assault in the first degree (two counts), id. § 120.10(1), assault in the second degree, id. § 120.05(1), reckless endangerment in the first degree, id. § 120.25, criminal possession of a weapon in the second degree (two counts), id. §§ 265.03(1)(b), 265.03(3), and bribery in the second degree, id. § 200.03. Mr. Blake was sentenced to an aggregate term of 25 years in prison and five years of post-release supervision. No stay of execution has been sought. The Appellate Division, First Department, affirmed Mr. Blake’s convictions on April 2, 2013. The Honorable Victoria A. Graffeo granted leave to appeal on July 3, 2013. 2 QUESTION PRESENTED Did trial counsel’s failure to request an adverse inference charge regarding destroyed video footage constitute ineffective assistance, where (1) the footage could have served as objective evidence that Andrew Blake acted in self-defense; (2) the prosecutor told the jury to reject his self-defense claim because there was no objective evidence of it; and (3) the prosecutor told the jury that “speculation” was impermissible? 3 INTRODUCTION The police accidentally destroyed their own surveillance footage of the location of the shooting in this case. As a result, Andrew Blake’s trial was essentially one person’s word against another’s: The complainants, who initiated the confrontation and had serious credibility issues, alleged that Mr. Blake shot at them without justification, while Mr. Blake said that they were chasing him with razors and he acted in self-defense. Mr. Blake was denied the benefit of video evidence that could have exonerated him, or at least cast doubt on the claim that he acted without justification. His lawyer argued that if the police had not destroyed the evidence, the jury would have seen the complainants chasing Mr. Blake with razors before he fired. The prosecution, however, urged the jury to reject Mr. Blake’s self- defense claim, noting that there was “absolutely no evidence whatsoever” that Mr. Blake was at risk of anything more than a “beat down by some real angry men.” According to the prosecutor, to believe that Mr. Blake was in mortal danger - that the complainants had razors, and that he had been unable to retreat - would be “speculation[,] which has absolutely no place in your jury deliberations.” In short, the prosecutor told the jury to reject Mr. Blake’s self-defense claim because of the absence of proof and impermissibility of speculation - even though, by destroying crucial video footage, the State created that absence and made 4 speculation necessary. Despite the prosecutor’s remarks, Mr. Blake’s lawyer did not ask for a permissive adverse inference charge about the missing footage. There was no possible sound strategy behind this omission. The charge was necessary to inform the jury that “speculation” - at least about the content of the missing footage - was permissible, and that, if anything, the absence of objective evidence should be held against the State, not Mr. Blake. The failure to so instruct the jury tainted its consideration of Mr. Blake’s self-defense claim. The Appellate Division’s finding to the contrary - that there was “no reasonable possibility” of prejudice to Mr. Blake - relied upon at least two incorrect rationales: (1) the existence of “another videotape” that “directly refuted defendant’s self-defense claim,” and (2) Mr. Blake’s actions after the incident - leaving New York, initially denying that he shot anyone, attempting to erase the fingerprints on the gun he used, and allegedly bribing the police to destroy video evidence - which, according to the court, were “inconsistent with that of a person who had acted in self-defense.” The first rationale is simply wrong; the preserved videotape in this case did not show the incident, much less refute Mr. Blake’s self-defense claim. As for Mr. Blake’s actions, while inexcusable, they were evidence only of his fear that he would get in trouble for possessing a gun, and have no relation to his self-defense claim. 1 The Appendix is cited as “A.” The Grant Houses are run by the New York City Housing Authority. 2 For the sake of clarity, because two of the main prosecution witnesses are brothers with the last name “Robinson,” we refer to each by his first name. 5 STATEMENT OF FACTS A. The Incident: The Complainants Allege that Mr. Blake Shot at Them Without Justification, While Mr. Blake Says that He Acted in Self-Defense. On December 31, 2006, Mr. Blake was visiting New York City from Delaware, for a New Year’s party at the Grant Houses, located at Broadway and La Salle Street, where family members of Mr. Blake’s friend Jamel Lunnon lived. See A. 35.1 Around 10 p.m., a few hours before the shooting in this case, Mr. Lunnon and one of the complainants, Charles Robinson, had a “light little scuffle” outside the Grant Houses. A. 56. Mr. Lunnon punched Charles because, according to Lunnon’s relative, Charles raped her. See A. 395-96.2 Some of Mr. Lunnon’s friends were present during the “scuffle,” but Mr. Blake was not. A. 730. Charles - who has convictions for, among other things, felony gun possession, and who has also been accused of domestic violence, see A. 47-52 - denied the accusation of rape at Mr. Blake’s trial, saying that Mr. Lunnon’s relative was a “slut” and an “easy girl,” and that their relationship had been “consensual for a little while.” A. 60, 75. After the altercation, Charles went to see his brother, Rory, who also lived nearby and was also a convicted felon. See A. 52, 392-95. According to Rory, 6 Charles had no physical injuries, but his feelings appeared to be hurt. A. 429. Rory decided to go ask Mr. Lunnon and his friends what happened, and, if the answer “wasn’t satisfactory,” to beat someone up. A. 401. Rory met Mr. Lunnon outside the Grant Houses and they talked in front of a number of other people, including Mr. Blake and his friend, Wonder Williams. A. 403; see also A. 407-08. There was no physical altercation, but Rory did not consider the situation settled, saying that “[w]here I come from ain’t nothing settled.” A. 404. Charles and Rory Robinson went back to Rory’s apartment, where they got drunk with another ex-felon complainant, Paul Melvin. See A. 67-68 (Charles Robinson: “I couldn’t give you the amount of cups or how much was in my system. . . . While we was there we under the influence of alcohol, we were drinking together.”); see also A. 281-82 (Melvin’s criminal record). After midnight, Charles, Rory, and Paul Melvin, who had consumed both liquor and marijuana, left Rory’s apartment. A. 313, 406. Outside the Grant Houses, they joined up with Mr. Melvin’s cousin, Jermaine Jenkins, described by Rory Robinson as an “associate” of his. A. 70, 241-42. Rory then noticed Mr. Blake and Mr. Williams exit the Grant Houses and walk toward La Salle Street. A. 406-07. Rory recognized them from his earlier conversation with Mr. Lunnon. A. 408. Mr. Melvin and Mr. Jenkins broke away from Rory and Charles to “confront” Blake and Williams. A. 253, 288. At Mr. Blake’s trial, the 7 complainants claimed that none of them were carrying weapons. E.g., A. 253, 309. Rory said that he took off his jacket to “get ready for whatever . . . was going down.” A. 422. He then “walked up as close as” possible to Mr. Blake and Mr. Williams, and asked which of them hit Charles. A. 407. Blake and Williams were confused: Neither of them had hit Charles; Jamel Lunnon had, and Mr. Blake was not even present when that happened. A. 395-96, 730. Rory said: “They both was looking at me like they didn’t know what was going on, so I punched one of them in they face.” A. 408. According to Rory, Mr. Blake and Mr. Williams both fell from his punch, because they “were so close to each other.” A. 409. Rory testified that the men got up and Williams passed a gun to Mr. Blake, who placed it in his waistband. A. 410-11. He said that Mr. Blake and Mr. Williams then walked down La Salle Street, away from Rory and his cohort, but turned around and started walking back. Id. Rory said that the two men looked like “they [didn’t] know what’s going on,” possibly because of “the commotion, [and] them not being from around here.” A. 410. Jermaine Jenkins testified that he started to approach Mr. Williams and Mr. Blake, but slipped and fell. A. 261- 62. Rory said that when Mr. Blake saw that “me and my friend Paul Melvin wasn’t trying to back off,” he pulled out a gun and eventually began shooting. 8 A. 412-13. Rory said that Mr. Blake actually held the gun for a “minute or two”; he could not recall whether Mr. Blake fired during that time or afterward. A. 413. Jermaine Jenkins said that after the shooting, Mr. Blake and Wonder Williams hit him with the gun. A. 262. Mr. Blake told police detectives, after his arrest a few days later, that he had not been the aggressor and had acted in self-defense. He said that when he and Wonder Williams walked out of the Grant Houses that night, a number of men - Rory Robinson and his crew - were “waiting on” them with razors, and Mr. Blake “was scared.” A. 730, 868-69, 1082. Mr. Blake said that those men eventually started “coming at me,” and he did “what he had to do” because, otherwise, “[t]hose mother fuckers were going to kill me.” A. 730, 841, 1082. After the shooting, Paul Melvin, Charles Robinson, and Carl Jones, a bystander, were treated at nearby hospitals for gunshot wounds. See A. 541, 544, 553-54, 956-57. Mr. Melvin had wounds on his left buttocks and hand, Mr. Robinson had a chest wound, and Mr. Jones had a wound on his right leg. Id. (Mr. Jones and his wife, who was also outside when the incident occurred, were not able to testify about the circumstances that led to the shooting. See generally A. 322-60.) 9 B. The Police Accidentally Destroy Footage of Where the Incident Occurred. On January 1, 2007, the police investigated the incident, searching the Grant Houses for witnesses, collecting ballistics evidence, recording “the plate numbers of the cars on the block,” and “canvass[ing] for any video.” A. 661, 663-64. The NYPD has 105 cameras monitoring the Grant Houses. A. 509. According to an officer in the video surveillance unit, after “something major like a shooting, . . . [footage] would be immediately pulled out” and the police “would look at other cameras in the vicinity” to see if they captured anything. A. 509, 525. The assigned detective “will call [the video surveillance unit] and say, we just need to have the footage covering [a] certain location from this time to this time.” A. 529. That is not what happened in this case. Neither the lead nor the assistant detective inquired whether any of the 105 cameras might have recorded the incident. A. 769-70, 888-89. As a result, the police failed to preserve footage from Camera 23, which covered La Salle Street, the location of the incident. A. 151, 888. In fact, the lead detective only became aware that a camera covered La Salle Street a “couple of days” before his testimony at Mr. Blake’s trial, after being “informed by the District Attorney’s Office.” A. 888-89. A video surveillance unit officer said that, about one week before his own testimony, he received instructions to look for Camera 23’s footage from the night of the incident. A. 516-17, 530. By that point, he was unable to find the footage, due to 10 the “great distance of time,” during which it had been recorded over. A. 499, 516- 17. C. The Police Arrest and Unsuccessfully “Try[] to Get a Confession Out of” Mr. Blake. A few days after the incident, Mr. Blake was arrested in Delaware, outside of an apartment containing the gun that was allegedly used in the incident. See A. 731. Mr. Blake told the police that, when they circled the apartment, he worried they were the men from the incident “coming back after him.” A. 875. He also reportedly told the police that the gun, which the police found in the toilet tank, would not have his fingerprints because it had been in water. A. 715, 731. According to police detectives, Mr. Blake was interrogated for four hours while handcuffed to a chair. A. 732, 867. He first denied shooting anyone, but later said that, although he did fire shots, it was in self-defense. A. 730. The police told Mr. Blake that they “had video of the incident”; Mr. Blake “kept requesting to see the video,” but they “told him he couldn’t see it.” A. 735. One detective even brought a box of videotapes into the interrogation room and said, “[L]ook at the case I have on you.” A. 884. The detective said that he was “basically showing Mr. Blake the box so he could just start getting more nervous. That’s basically it.” A. 885. Mr. Blake asked repeatedly to speak to his family, specifically his mother. A. 875. The interrogators denied the request, saying that 11 they “didn’t want his mother to disturb” what they were “trying to get from him.” A. 737. One detective elaborated: “There is no reason that he needed to talk to his mother. We’re trying to get a confession out of him.” A. 876. Toward the end of the four-hour interrogation, the detectives said that Mr. Blake attempted to bribe them to get rid of, in their words, “that stuff from New York, the video and the pictures.” A. 738. Although it was standard practice in Wilmington, Delaware, to record all interrogations, A. 622, none of the alleged bribery, and little of the rest of Mr. Blake’s interrogation, was recorded, due to problems with the police’s computer system. See A. 630. D. At Mr. Blake’s Trial, both the Prosecution and Defense Argue that the Absence of Objective Evidence Harms the Other Side’s Case. Mr. Blake was indicted on January 26, 2007. Because relevant footage from the night of the incident was missing, a central issue at trial was what it would have shown. Mr. Blake’s lawyer expressed amazement that the “one video that would show what happened is not here.” A. 1064. She told the jury that if the video had been preserved, it would have shown the complainants going after Mr. Blake, and Mr. Blake “trying to get away” before shooting. A. 1063. However, she did not ask the judge to give a permissive adverse inference instruction about the missing footage. 12 The prosecutor acknowledged that Mr. Blake was at least at risk of “a beat down by some real angry men.” A. 1106. She nevertheless argued that the jury should reject Mr. Blake’s self-defense claim because there was “absolutely no evidence whatsoever” that he “needed anything but fists” to defend himself. Id. About the missing footage, the prosecutor said: Nobody more than I would like to have Camera 23 in this court room. But, remember, it is not there; okay? I wish it was. I wish it was, but nothing is perfect. . . . [W]e don’t live in a perfect world and that camera was never gotten. I don’t know what happened. It is not clear what happened. T. 1110-11. Although “[n]obody more than” the prosecutor would have liked Camera 23’s footage, she also argued that the absence of the footage “shouldn’t matter anyway, because the defendant admits that he’s the shooter.” A. 1112. The prosecutor dismissed Mr. Blake’s self-defense claim, calling it “self- serving” and telling the jury that to believe it would be “utter sheer speculation.” A. 1108. The prosecutor continued: “And when the judge instructs you, he is going to instruct you that speculation has absolutely no place in your jury deliberations, okay?” Id. Even assuming that the complainants had razors, the prosecutor argued that Mr. Blake failed to exercise his duty to retreat before resorting to self-defense. A. 1107. Referencing an aerial photograph of the Grant Houses, the prosecutor said: 13 He had a million ways to go. He could have gone towards Broadway. He could have gone towards Amsterdam. He could have gone into any of the parking lots. . . . [H]e could have crossed the street and headed downtown. He had any which way to go. He could have walked away. He could have run away. T. 1107-08. Mr. Blake was convicted of attempted murder and various other offenses, and sentenced to an aggregate term of 25 years in prison. A. 1231, 1256. He is currently serving an 11-year sentence in Delaware for possessing the gun he allegedly used in this incident and related charges. A. 1246. Mr. Blake will not begin serving his 25-year New York sentence until October 2018, at the earliest. Id. E. The Appellate Division Affirms Mr. Blake’s Convictions. The Appellate Division, First Department, affirmed Mr. Blake’s convictions. People v. Blake, 105 A.D.3d 431, 431 (2013). The court agreed that an adverse inference charge would have been appropriate, but found that defense counsel’s failure to request the charge did not constitute ineffective assistance. Id. The court said that counsel “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.” Id. at 432. Because there may have been strategic reasons, the court held that “the present unexpanded record is insufficient 14 to determine whether counsel’s failure . . . fell below an objective standard of reasonableness.” Id. at 431-32. The court further held that, even assuming a lack of sound strategy behind counsel’s failure to request an adverse inference charge, there was “no reasonable possibility” that the jury would have come to a different verdict, given that: (1) the jury was “fully aware of the loss of the tape”; (2) the trial court “permitted defense counsel to assert in summation that the missing tape would have actually supported defendant’s claim of self defense”; (3) there was “overwhelming evidence that directly refuted defendant’s self-defense claim, including, among other things, another videotape”; and (4) there was “extensive evidence of conduct by defendant that was inconsistent with that of a person who had acted in self-defense, including interstate flight, an attempt to destroy evidence, a false initial statement to the police, and a bribe offer.” Id. at 431. 3 Mr. Blake does not challenge his convictions for bribery or criminal possession of a weapon, since a self-defense claim cannot apply to those offenses. People v. Pons, 68 N.Y.2d 264, 267 (1986). For those convictions, Mr. Blake was sentenced to an aggregate term of 15 years’ imprisonment. A. 1256. 15 ARGUMENT THERE WAS NO BASIS FOR TRIAL COUNSEL’S FAILURE TO REQUEST A PERMISSIVE ADVERSE INFERENCE CHARGE ABOUT THE DESTROYED FOOTAGE, AND THE OMISSION OF THE CHARGE TAINTED THE JURY’S CONSIDERATION OF ANDREW BLAKE’S SELF-DEFENSE CLAIM. Before the State’s summation, Andrew Blake’s lawyer should have requested a permissive adverse inference charge about the destroyed surveillance footage, as the charge could only have helped Mr. Blake. After the State’s summation, however, the charge was necessary to correct certain statements by the prosecutor, and the failure to request it constituted ineffective assistance. The prosecution used the State’s own destruction of evidence against Mr. Blake, telling the jury to reject his self-defense claim because there was no objective evidence of it. The prosecution also told the jury that speculation was impermissible, even though the destruction of footage made it necessary. A permissive adverse inference charge would have informed the jurors that speculation - at least about the content of the missing footage - was permissible, and that, if anything, the absence of objective evidence should be held against the State, not Mr. Blake. The failure to so instruct the jury tainted its consideration of Mr. Blake’s self-defense claim, and this Court should reverse.3 16 Even in “an otherwise competent performance,” a single error can serve as the basis for finding ineffective assistance of counsel if (1) the error caused counsel’s representation to fall below “an objective standard of reasonableness,” and (2) there is a “reasonable probability” that, but for the error, “the result of the proceeding would have been different.” People v. Turner, 5 N.Y.3d 476, 480 (2005) (citation omitted); Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). To meet the first prong of this test, a defendant must show that counsel’s alleged error was not part of any “sound trial strategy.” Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted). In analyzing the second prong, courts “must consider the totality of the evidence before” the jury, keeping in mind that a verdict “only weakly supported by the record is more likely to have been affected by [a lawyer’s] errors than one with overwhelming record support.” Id. at 695-96. “Reasonable probability” of a different result may be shown by less than a preponderance of the evidence. Henry v. Poole, 409 F.3d 48, 64 (2d Cir. 2005). Moreover, under New York’s jurisprudence, “even in the absence of a reasonable probability of a different outcome,” inadequate lawyering “will still warrant reversal whenever a defendant is deprived of a fair trial.” People v. Caban, 5 N.Y.3d 143, 156 (2005). As defense counsel said in summation, the police failed to preserve “the one video that would show what happened” in this case. A. 1064. Because of that, the 17 jury’s inquiry into whether Andrew Blake acted in self-defense relied on comparing his version of events with the complainants’: Mr. Blake said that the complainants had razors and were chasing him before he fired the gun that his friend handed to him; the complainants said that Mr. Blake fired without immediate provocation. The case became one person’s word against another’s. In summation - the last thing the jury heard before the judge’s instructions - the prosecutor told the jury that it should reject Mr. Blake’s self-defense claim because there was “absolutely no evidence whatsoever” supporting it. A. 1106. She also said that to believe Mr. Blake’s account would be “speculation,” which “has absolutely no place in your jury deliberations.” A. 1108. While the prosecutor admitted that Mr. Blake had been in danger of “a beat down by some real angry men,” she stated confidently, based on the complainants’ testimony, that he did not “need[] anything but fists” to defend himself. A. 1106, 1108. She further argued that, even if the complainants did have razors and chase Mr. Blake, he must have failed to exercise his duty to retreat before shooting, since he had “a million ways to go.” A. 1107. That claim was not based on footage of the location of the incident, which the police destroyed. A. 499, 516-07. Rather, it was based on a single photograph of the Grant Houses, from which the prosecutor gleaned that Mr. Blake “could have gone towards Broadway,” or “towards 18 Amsterdam,” or “into any of the parking lots,” or across “the street and headed downtown,” or even simply “walked away.” A. 1107-08. The incorrectness of the prosecutor’s summation is readily apparent to any lawyer. If anything, the dearth of evidence should have been held against the State, not Mr. Blake, given that the police destroyed crucial surveillance footage. And “speculation” - at least about the content of the footage - was absolutely permissible, since it “was State agents who, by destroying the video, created the need to speculate about its contents.” People v. Handy, 20 N.Y.3d 663, 669 (2013). The jurors, however, did not know any of this, and deliberated under the impression that the absence of evidence could inure to the State’s benefit, and that speculation about anything - even the content of the destroyed footage - was impermissible. A permissive adverse inference charge was necessary to correct such critical misconceptions. In accordance with Handy, 20 N.Y.3d at 669, the Appellate Division acknowledged that a permissive adverse inference charge “would have been appropriate” in this case. Blake, 105 A.D.3d at 431. However, it held that the failure of trial counsel to request the charge did not constitute ineffective assistance, since the omission might have been strategic and was “harmless.” Id. at 431-32. The lower court’s analysis was wrong, and this Court should reverse. 19 The Appellate Division held that trial counsel’s failure to request an adverse inference instruction did not necessarily fall below an objective standard of reasonableness, since there “may have [been] strategic reasons” behind the failure, “including a concern that the language of such an instruction might undermine” the defense’s argument that the jury should draw an adverse inference. Blake, 105 A.D.3d at 432. The instruction’s language, however, could not possibly have “undermine[d]” the defense’s argument any more than the prosecutor did in summation, when she told the jurors that “speculation” had “no place in [their] deliberations,” and characterized Mr. Blake’s self-defense claim as incredible because of the lack of supporting evidence. A. 1106-08 (emphasis added). A permissive adverse inference charge would have informed the jurors that, contrary to what the prosecutor said, inferences did have some place in their deliberations, and that even the judge himself sanctioned them. Cf. Carter v. Kentucky, 450 U.S. 288, 302 n.20 (1981) (“[T]he 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.”) (citation and internal quotation marks omitted). Additionally, the charge would have made clear that the absence of video evidence could only negatively affect the jury’s consideration of the State’s case, not of Mr. Blake’s self-defense claim. An adverse inference charge was not merely “appropriate” in this case, as the 20 Appellate Division said, but essential to reverse any chilling effect on making inferences, and to ensure that the jury would not hold the absence of evidence against Mr. Blake. The failure to request the charge was obviously a critical oversight, and not the product of any “sound trial strategy.” Strickland, 466 U.S. at 689. The failure to answer the prosecutor’s statements with a permissive adverse inference charge tainted the jury’s consideration of Mr. Blake’s self-defense claim. As it was, the prosecution’s evidence that Mr. Blake shot without justification was weak, relying on the say-so of a group of intoxicated ex-felons who were either related to, or friends with, each other. See, e.g., A. 47-52, 67-68, 281-82, 313, 392-95, 406-09. Indeed, the only witnesses of the incident who did not have reason to give self-serving testimony - Carl Jones, a bystander, and his wife, Arcola Johnson - were not able to testify about the circumstances that led to the shooting. See generally A. 322-60. The prosecutor admitted that Mr. Blake was in danger of “a beat down by some real angry men.” A. 1106. With the appropriate charge about the missing surveillance footage, the jury might well have inferred that Mr. Blake was at risk of more than “a beat down,” and that he 4 The prosecutor’s claim that Mr. Blake had “a million ways to go” in retreat was based on a photograph of the Grant Houses. A. 1107-08 (referring to People’s Ex. 7). The idea that a photograph could show Mr. Blake’s ability to retreat is fanciful. Not only had four men confronted him, but one of them even said that Mr. Blake looked like he did not “know what was going on,” partly because of “the commotion, [and him] not being from around here.” A. 408, 410. Additionally, Mr. Blake did not know why he was being attacked (i.e., the “scuffle” that Charles Robinson had with Blake’s friend earlier in the evening, during which Blake was not present). See A. 395-96, 408, 730. In those circumstances, “not being from around here,” Mr. Blake probably had trouble figuring out how to “head[] downtown” or which “of the [nearby] parking lots” to retreat to - the courses of action that the prosecutor suggested. A. 1108. 21 did not have the luxury of simply “walk[ing] away” from the complainants, as the prosecutor said. A. 1107-08.4 The Appellate Division’s finding that there was “no reasonable possibility” that an appropriate charge would have resulted in a different verdict was absolutely wrong. In support of its finding, the court noted that the jury “was fully aware of the loss of” video footage, and that the trial court “permitted defense counsel to assert in summation that the missing tape would have” contradicted the complainants’ version of events. Blake, 105 A.D.3d at 431. While that is true, after defense counsel’s summation, the jury was told to reject Mr. Blake’s self- defense claim because there was “absolutely no evidence whatsoever” supporting it - even though the State had destroyed the one piece of evidence that could show what happened. A. 1106. The jury was also told - again, after defense counsel’s summation - that believing Mr. Blake had been in mortal danger would constitute “speculation,” which has “absolutely no place in your deliberations.” A. 1107. Thus, although the jury “was fully aware of the loss of the tape,” and had heard 22 defense counsel argue in favor of making an adverse inference, it then heard the prosecutor say that the absence of evidence weakened Mr. Blake’s self-defense claim, and that “speculation” in jury deliberations was improper. A permissive adverse inference charge would have served as a necessary corrective: It would have told the jury that, if anything, the absence of objective evidence should benefit Mr. Blake, not work to his detriment, and that speculation, at least about the content of the missing footage, was sanctioned by the court. The Appellate Division also noted that there was “overwhelming evidence that directly refuted defendant’s self-defense claim, including, among other things, another videotape.” Blake, 105 A.D.3d at 431. This statement is simply wrong. The other videotape that the lower court’s opinion referred to, People’s Exhibit 12-B, did not record the shooting. As even Respondent admits, none of the footage that was preserved in this case recorded the shooting. See A. 14 (Resp.’s Letter Opposing Leave to Appeal, p. 1). Because there is no footage of the shooting, there of course is no footage of the situation Mr. Blake was in when he began to shoot, a “critical focus” in determining whether someone acted in self- defense. People v. Wesley, 76 N.Y.2d 555, 559 (1990) (citation omitted). We cannot see, for example, whether the complainants were chasing Mr. Blake when he began to shoot, whether they had razors, or whether Mr. Blake actually had “a 23 million ways to go” in retreat, as the prosecutor claimed in summation. A. 1107- 08. The Appellate Division finally noted, in support of its finding that Mr. Blake suffered no prejudice, that “there was extensive evidence of conduct by [Mr. Blake] that was inconsistent with that of a person who had acted in self-defense, including interstate flight, an attempt to destroy evidence, a false initial statement to the police, and a bribe offer.” Blake, 105 A.D.3d at 431. All of Mr. Blake’s conduct after the incident - however wrong it may have been - was evidence only of his fear of imprisonment for illegally possessing a gun, not evidence that he fired without justification. (Of course, Mr. Blake’s conduct could simply be evidence of a fear of being arrested and put on trial.) Mr. Blake’s fears about the gun were quite understandable, given that he will serve 26 years in prison - 11 in Delaware and 15 in New York, see A. 1246, 1256 - for offenses relating to gun possession. Indeed, the “attempt to destroy evidence” that the lower court referred to was Mr. Blake’s attempt to erase fingerprints from the gun by placing it in water. See A. 715, 731. Mr. Blake’s post-incident conduct only evinced a desire to avoid trouble with the law; it certainly did not provide “extensive evidence” that he did not act in self-defense. Mr. Blake’s lawyer should have asked for a permissive adverse inference charge in this case. That is not to say that the failure to request the charge always 24 - or even often - constitutes ineffective assistance of counsel. But where (1) the State has failed to preserve evidence; (2) the unpreserved evidence is the only objective evidence of the main defense claim; (3) the prosecution tells the jury to reject that claim because there is no objective evidence of it; and (4) the prosecution tells the jury that “speculation” is impermissible, defense counsel must request a simple corrective charge before the jury starts to deliberate. Otherwise, as happened here, the jury will deliberate under two critical misconceptions: that the absence of evidence can be held against the defendant, and that inferences about the missing evidence are improper. 25 CONCLUSION For the foregoing reasons, 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