The People, Respondent,v.Ariel Myers, Appellant.

Brief

N.Y.Dec 5, 2013

November 4, 2013 Office of the Clerk Attn: Andrew W. Klein, Chief Clerk New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Ariel Myers APL-2013-00164 Dear Mr. Klein; Enclosed please find the following documents in connection with the above matter for filing with the Court: 1. The People’s original letter brief for the above-referenced matter; 2. Two (2) copies of the People’s letter brief for the above-referenced matter; and 3. An affirmation of service of one (1) copy of same upon defendant’s appellate counsel. Please do not hesitate to contact me at 270-4040 with any questions or concerns. Thank you for your attention to this matter. Sincerely, RICHARD J. McNALLY, JR. Rensselaer County District Attorney By: _____________________ Roman Griffith Assistant District Attorney cc: Eugene Grimmick, Esq. 52 Second Street Troy, NY 12180 OFFICE OF THE DISTRICT ATTORNEY COUNTY OF RENSSELAER RENSSELAER COUNTY COURTHOUSE TROY, NEW YORK 12180RICHARD J. MCNALLY, Jr. DISTRICT ATTORNEY 2 November 4, 2013 Office of the Clerk Attn: Andrew W. Klein, Chief Clerk New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Ariel Myers APL-2013-00164 Dear Sir/Madam: The People submit this letter brief pursuant to the Court’s directive under rule 500.11 of the Court’s Rules of Practice. The People do not oppose summary treatment of this case pursuant to that directive. Defendant, Ariel Myers, appeals from an order of the Appellate Division, Third Department (Lahtinen, J.), dated February 5, 2013, affirming the judgment of the County Court of Rensselaer County (Ceresia, J.), rendered September 13, 2010, upon a verdict convicting defendant of the crimes of Assault in the First Degree (Penal Law § 120.10[1]), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[1][b]). (AA 386-88).1 On September 13, 2009, Robert Guynup suffered serious physical injury as the result of a gunshot wound to the head as he photographed a large fight outside his home, just opposite the Griswold Heights housing development in the City of Troy, Rensselaer County, New York. A .25 1 Cites with the “AA” prefix refer to pages in the appendix to appellant’s brief. Cites with the “RA” prefix refer to pages in the appendix to respondent’s brief. OFFICE OF THE DISTRICT ATTORNEY COUNTY OF RENSSELAER RENSSELAER COUNTY COURTHOUSE TROY, NEW YORK 12180RICHARD J. MCNALLY, Jr. DISTRICT ATTORNEY 3 caliber shell casing was recovered by the Troy Police Department at the scene, and a .25 caliber projectile was recovered from Mr. Guynup’s head. (AA 672, RA 12-13). The Troy Police Department developed Defendant as a suspect as soon as the next day, based on its initial investigation. (RA 28). At trial, defense counsel put identity of the perpetrator of the charged offenses into dispute through cross-examination of the People’s witnesses. The People sought to introduce evidence of an uncharged crime pursuant to the identity exception established by this Court’s decision in People v. Molineux, 168 NY 264 [1901]. Defendant here only contests the trial court’s decision to allow Robert Cruz to testify at trial pursuant to the identity exception to Molineux. Specifically, Robert Cruz testified that roughly two and a half months prior to the assault, he observed the Defendant brandishing a .25 caliber handgun at nearly the same location under similar circumstances (AA 247-48). The relevant portions of the People’s response brief are attached hereto for each of reference (Exhibit A). It is the People’s position that such evidence is sufficiently unique to be probative of identity. See People v. Beam, 57 N.Y.2d 241, 252 [1982]. In allowing the People to introduce evidence of Defendant’s uncharged crime of brandishing the same or a similar weapon as that used in the commission of the charged offenses, the trial court ruled in accordance with longstanding and well-settled case law; indeed, numerous decisions of the various appellate divisions have held that such evidence may be introduced by the People to prove identity. See People v. Chamberlain, 96 A.D.2d 959, 960 [3d Dept. 1983]; People v. Sullivan, 103 A.D.2d 1035, 1035 [4th Dept. 1984]; People v. Widger, 126 A.D.2d 962 [4th Dept. 1987]; People v. Bogoniewski, 206 A.D.2d 844 [4th Dept. 1994]; People v. Sheriff, 234 A.D.2d 894 [4th Dept. 1996]; People v. Jackson, 237 A.D.2d 620 [2d Dept. 1997]; People v. Brown, 266 A.D.2d 863 [4th Dept. 1999]; People v. Leconte, 287 A.D.2d 521 [2d Dept. 2001]; People v. Rivera, 281 A.D.2d 702 [3d Dept. 2001]; People v. Portee, 56 A.D.3d 947 [3d Dept. 2008]. Perhaps most notable in this line of cases is that the evidence presented need not demonstrate that the defendant possessed the exact same weapon as that used in the commission of the charged offense, which would have been impossible in this case because the weapon was never recovered. For purposes of the identity exception to the Molineux rule, these cases have 4 ruled that it is enough that the evidence shows that defendant possessed a weapon “resembling” or “similar to” the one used in the commission of the offense charged. Even though the trial testimony indicated that various makes/models of a .25 caliber gun may exist, defendant does not contest that a .25 caliber gun caused the serious physical injury suffered by the victim. Identifying the exact make/model of the gun used in each particular instance, however, is not what is required for such evidence to be admissible. Defendant’s argument, quite simply, instead reduces down to distaste for Robert Cruz. Such distaste, however great, is not a basis for summary preclusion of such evidence. The jury was spared no detail concerning Robert Cruz’s admittedly extensive criminal history. The jury was also well-informed of the fact that Robert Cruz hoped to obtain favorable treatment for his testimony at trial. These facts go to Mr. Cruz’s credibility – a matter left for the jury to decide. See People v. Portee, 56 A.D.3d 947 [3d Dept. 2008]; People v. Brown, 46 A.D.3d 949 [3d Dept. 2007]. Additionally, it is worth noting that the information regarding the use of a .25 caliber handgun during the offense was something Robert Cruz offered to the detectives investigating the case (RA 42). In other words, Mr. Cruz’s information regarding the Defendant matched with what the police already knew – that is, that a .25 caliber handgun was used to inflict the injury sustained by Robert Guynup. Furthermore, several witnesses identified the Defendant at the scene, one of whom specifically identified Defendant as the shooter. Based on the foregoing, the court’s balancing test was entirely proper and sufficient. Without a doubt, defendant suffered prejudice as a result of the introduction of evidence tending to prove his guilt. However, for purposes of Molineux, a witness’s observation of defendant brandishing the same or a similar weapon, at nearly the identical location and under nearly identical circumstances is highly probative of identity. The People submit, given the weight of precedent, that it is “unusual,” it is “distinctive,” and it is “unique” for an individual to possess the same or similar handgun during two very similar incidents occurring close in time to each other. The trial judge’s decision to allow such evidence is grounded in precedent, and the court provided the proper limiting instructions immediately after the jury heard the testimony. Additionally, the jury heard the evidence in context, fully aware of defendant’s criminal history and alleged self-interest. Simply 5 put, the jury members were given the opportunity to attach whatever weight it saw fit to give Mr. Cruz’s testimony. Regards, RICHARD J. MCNALLY, JR. Rensselaer County District Attorney By: Roman Griffith Assistant District Attorney cc: Eugene Grimmick, Esq. 52 Second Street Troy, New York 12180 6 EXHIBIT A 7 ARGUMENT I. THE TRIAL COURT’S MOLINEUX RULING PROPERLY ALLOWED TESTIMONY THAT THE DEFENDANT POSSESSED THE SAME OR A SIMILAR WEAPON JUST WEEKS PRIOR TO THE CRIME Defendant first argues that reversal is compelled because County Court’s rulings regarding the admissibility of certain of defendant’s prior bad acts lacked sufficient detail and were erroneous [Appellant’s Brief at 26 – 32]. During its case-in-chief, the People proffered the testimony of Robert Cruz, who testified that he had witnessed the defendant brandish a .25 caliber weapon—the type of weapon used to shoot Robert Guynup—just weeks before Robert Guynup was shot, and did so under similar circumstances and at the same location (AA 248).* The People submit that the introduction of this evidence was admissible as a matter of law in that its introduction complies with the rule of Molineux that evidence of prior uncharged bad acts or crimes may not be admitted to show a defendant’s propensity to commit the charged crime, People v. Molineux, 168 NY 264, 293 (1901), but may be used to establish the identity of the defendant, and that its probative value outweighed its prejudicial effect. Numerous decisions of the appellate courts have held that a defendant’s possession of the same or a similar weapon before or after the charged crime may be used by the People to prove identity. People v. Chamberlain, 96 A.D.2d 959, 960 (3d Dept. 1983) (holding that “[s]ince the prosecution established that .357 caliber bullets were used in the shooting, testimony that defendant possessed a .357 magnum weapon two weeks before the crime, and attempted to dispose of a handgun immediately thereafter, * See statement of Robert Cruz, October 9, 2009, which is part of the Record on Appeal, page 95. 8 was relevant and properly admitted into evidence.”); People v. Sullivan, 103 A.D.2d 1035, 1035 (4th Dept. 1984) (holding admission of evidence that defendant was arrested with a similar shotgun used in the crime was “relevant for the jury to consider as to whether modus operandi could establish the identity exception of the Molineux rule.”); People v. Widger, 126 A.D.2d 962 (4th Dept. 1987); People v. Bogoniewski, 206 A.D.2d 844 (4th Dept. 1994); People v. Jackson, 237 A.D.2d 620 (2d Dept. 1997) (holding the trial court properly admitted into evidence testimony that five days after the crime, the defendant possessed a weapon resembling the weapon used in the crime) (emphasis added); People v. Sheriff, 234 A.D.2d 894 (4th Dept. 1996); People v. Brown, 266 A.D.2d 863 (4th Dept. 1999); People v. Leconte, 287 A.D.2d 521 (2d Dept. 2001); People v. Rivera, 281 A.D.2d 702 (3d Dept. 2001) (holding that “evidence of defendant's prior and subsequent possession of a firearm resembling the one used in the present crimes was admissible for the purpose of identifying defendant as the perpetrator.”) (emphasis added); People v. Portee, 56 A.D.3d 947 (3d Dept. 2008) (holding that “[e]vidence that [defendant] possessed a handgun similar to the one allegedly used in the charged crimes was likewise admissible to establish defendant’s identity.”) (emphasis added). Applying the reasoning of the many appellate decisions cited above, the trial court here properly admitted Robert Cruz’s testimony with respect to the defendant’s possession and brandishing of a .25 caliber weapon just weeks before Robert Guynup was shot with a similar—if not the same—weapon. According to most, if not all, witnesses in this case, a single shot was fired, and a single .25 caliber shell casing was recovered at the scene. The projectile recovered from the victim, too, was .25 caliber, and 9 defendant had been observed brandishing and pointing a .25 caliber handgun—the only type of weapon that could discharge a .25 caliber bullet—just weeks prior to the shooting. Also of significance in the line of cases above is that the prosecution need not show that the weapon possessed be the exact same weapon, but that it need only “resemble” or “be similar” to the weapon used in the charged offense for purposes of establishing identity, showing that defendant’s possession of a .25 caliber weapon prior to the shooting is distinctive and unique for purposes of the identity exception under Molineux. While the defendant takes issue with the brevity of the trial court’s ruling on the issue, given the line of cases above, one is left to wonder what more “detail” the defendant desired from the trial court. The trial court stated on the record that Robert Cruz would testify to his observations of the defendant wielding a .25 caliber gun in the same general area of the Griswold Heights apartment complex (AA 35). Without question, the testimony of Robert Cruz prejudiced the defendant, much as all evidence tending to prove one’s guilt is prejudicial. However, as the line of cases above show, evidence tending to show that a defendant possessed the same or a similar weapon as that used in the commission of a charged offense is highly probative with respect to the identity of the perpetrator, which the court noted upon the close of the People’s proof (RA 46). The trial court thus properly concluded that such evidence was “relevant and material to the People’s case and goes to the nonpropensity purpose of proving the element of identity.” (AA 36). Additionally, immediately after Mr. Cruz testified as to his observation of the defendant with a .25 caliber gun, the court instructed the jury with 10 respect to the limited purposes for which the proffered testimony could be considered. (AA 249-50). Further, Mr. Cruz’s extensive criminal history and apparent self-interest in testifying in exchange for possible leniency does “not render [his] testimony incredible as a matter of law but, rather, raises an issue of credibility for the factfinder to resolve.” Portee, 56 A.D. 3d at 949; See also People v. Brown, 46 A.D.3d 949, 951 (3d Dept. 2007) (holding that “[d]efendant's argument that the identification witnesses were unreliable—because each was either incarcerated, awaiting trial or had already been convicted and was seeking leniency and had motive and opportunity to collude concerning their testimony—while providing fertile ground for cross-examination did not impact the admissibility of their testimony.”); People v. Doherty, 37 A.D.3d 859, 860 (3d Dept. 2007) . Mr. Cruz is not the first self-interested criminal to testify against another in court. Here, the jury heard extensive testimony from Mr. Cruz himself as to the crimes he committed and his reasons for testifying (AA 239-46, AA 251-79), and “appropriate deference to the jury’s credibility determinations” must be given in that light. Portee, 56 AD3d at 950.* * Defendant also, without basis, faults the prosecution for not calling members of Robert Cruz’s family who are believed to have seen Ariel Myer’s with the .25 caliber gun earlier in 2009 [Appellant’s Brief, at 42]. Defendant would “presume” they are more credible than Robert Cruz, but offers nothing to support his presumption. 11 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, AFFIRMATION OF SERVICE -against- APL-2013-00164 ARIEL MYERS, Appellant. State of New York ) ss: County of Rensselaer ) ROMAN GRIFFITH, an attorney duly licensed to practice law in the State of New York, hereby swears under penalty of perjury to the truth of all matters contained herein: That I am over eighteen years of age; that I am an Assistant District Attorney to the Hon. Richard J. McNally, Jr., District Attorney of Rensselaer County, respondent in this action; and that on the 4th day of November, 2013, I personally served upon the below listed party one (1) copy of Respondent’s Letter Brief in the above appeal. I served said documents upon said party by hand delivery or by depositing them in a depository exclusively controlled and maintained by the United States Postal Service, directed to said party at said address, that being the address where, to the best of my knowledge, the documents can be most easily obtained. Eugene Grimmick, Esq. 52 Second Street Troy, NY 12180 Affirmed under penalty of perjury this 4th day of November, 2013: ___________________________ ROMAN GRIFFITH Assistant District Attorney Rensselaer County District Attorney’s Office