The People, Respondent,v.Malik Howard, Appellant.

Brief

N.Y.October 10, 2013

To be argued by: REBEKAH J. PAZMIÑO, ESQ. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MALIK HOWARD, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant EUNICE C. LEE, ESQ. Supervising Attorney By: REBEKAH J. PAZMIÑO, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 April 10, 2013 - i - TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I BECAUSE IT IS UNDISPUTED THAT A B.B. GUN CANNOT SATISFY THE DISPLAY OF A FIREARM ELEMENT, AND DEFENSE COUNSEL NEITHER MOVED TO DISMISS THE FIRST DEGREE ROBBERY CHARGE ON LEGAL INSUFFICIENCY GROUNDS, NOR TOOK STEPS TO PREVENT AN IMPROPER VERDICT BASED PARTIALLY OR ENTIRELY ON THIS LEGALLY INADEQUATE THEORY, COUNSEL WAS INEFFECTIVE (Replying to Resp. Br. at 21-43). . . . . . . . . . . . . . . . . . . . . 1 A. Because Co-Defendant Stanley’s Alleged Display of an Unknown Object Was Insufficient Proof of the Display of a Firearm Element, and it is Undisputed that Mr. Howard’s Alleged Display of a B.B. Gun Was Inadequate Proof of This Element, as a Matter of Law, Defense Counsel Was Obligated to Move to Dismiss the First Degree Robbery Charge on Legal Insufficiency Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Contrary to Respondent’s Claims, There is Little, If Any, Support for the Conclusion That Mr. Stanley’s Alleged Display of an Unknown Object was Adequate Proof of the Display Element. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Respondent is Unable to Refute That Defense Counsel’s Failure to Move to Dismiss the First Degree Robbery Charge on Legal Insufficiency Grounds Was So Egregious and Prejudicial That It Deprived Malik Howard of a Fair Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 - ii - B. Respondent is Unable to Reconcile the Strong Possibility of an Improper Verdict Here; Because Defense Counsel Failed to Alert the Court to the Fact that Its Final Instructions Would Likely Result in Either a Split Verdict or a Verdict Based on a Legally Inadequate Theory, Counsel Was Ineffective. . . . . . . . . . . . . 13 POINT II RESPONDENT HAS PROVIDED NO JUSTIFICATION FOR WHY USING SUCH AN UNDULY SUGGESTIVE IDENTIFICATION PROCEDURE WAS NECESSARY HERE, GIVEN THE EXTREME ATTENUATION OF BOTH THE SPATIAL AND TEMPORAL FACTORS AND THE LACK OF AN UNBROKEN CHAIN OF EVENTS; BECAUSE THE SHOW-UP WAS IMPROPER AND INHERENTLY UNRELIABLE, THIS COURT SHOULD SUPPRESS IT (Replying to Resp. Br. at 43-47). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 - iii - TABLE OF AUTHORITIES CASES Griffin v. United States, 502 U.S. 46 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 People v. Baskerville, 60 N.Y.2d 374 (1983) . . . . . . . . . . . . . . . . . . . . . . . 3-4, 6, 7 People v. Beacoats, 17 N.Y.3d 643 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 15-16, 17 People v. Benevento, 91 N.Y.2d 708 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Brisco, 99 N.Y.2d 596 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24, 25 People v. Brunner, 16 N.Y.3d 820 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12-13 People v. Duuvon, 77 N.Y.2d 541 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Gatling, 38 A.D.3d 239 (1st Dep’t 2007) . . . . . . . . . . . . . . . . . . . . 22-23 People v. Gilford, 16 N.Y.3d 864 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Greene, 39 A.D.3d 268 (1st Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Groves, 282 A.D.2d 278 (1st Dep’t 2001) . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Howard, 92 A.D.3d 176 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . 7, 13, 25 People v. Hudson, 71 A.D.3d 1046 (3d Dep’t 2010) . . . . . . . . . . . . . . . . . . . . . . 22 People v. Johnson, 81 N.Y.2d 828 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24 People v. Lopez, 73 N.Y.2d 222 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-7 People v. Martinez, 83 N.Y.2d 26 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18 - iv - People v. McGee, --- N.Y.3d ----, 2013 WL 1149163 (Mar. 21, 2013) . . . . . . 9, 13 People v. Nesbitt, -- N.Y.3d ----, 2013 WL 1195696 (Mar. 26, 2013) . . . . . . . . . 10 People v. Simmons, 186 A.D.2d 95 (1st Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . . 7 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 People v. Vasquez, 20 N.Y.3d 461 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Washington, 229 A.D.2d 601 (2d Dep’t 1996) . . . . . . . . . . . . . . . . . . . . 7 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . 10-11 - 1 - ARGUMENT POINT I BECAUSE IT IS UNDISPUTED THAT A B.B. GUN CANNOT SATISFY THE DISPLAY OF A FIREARM ELEMENT, AND DEFENSE COUNSEL NEITHER MOVED TO DISMISS THE FIRST DEGREE ROBBERY CHARGE ON LEGAL INSUFFICIENCY GROUNDS, NOR TOOK STEPS TO PREVENT AN IMPROPER VERDICT BASED PARTIALLY OR ENTIRELY ON THIS LEGALLY INADEQUATE THEORY, COUNSEL WAS INEFFECTIVE (Replying to Resp. Br. at 21-43). Here, the prosecution’s evidence was that what Malik Howard allegedly displayed during the robbery was a B.B. gun. Respondent does not, and indeed cannot, dispute that displaying only a B.B. gun fails to satisfy the display of a firearm element under subsection four of the first degree robbery statute. Instead, Respondent advances the untenable position that an alternative theory of the display – the unknown object allegedly held to the complainant’s back by co-defendant Hilbert Stanley – provided adequate proof of the display element. There is a significant lack of support for Respondent’s position in both the record and caselaw, given the complainant’s lack of perception of this object as a firearm or other weapon. Consequently, defense counsel was obligated to move to dismiss the first-degree robbery charge on legal insufficiency grounds related to Mr. Howard’s alleged display of a B.B. gun. - 2 - Even if, however, Respondent is correct and Mr. Stanley’s display of an unspecified object was sufficient proof of this element, the possibility of an improper verdict remains significant. Because, according to Respondent’s position, the jury was presented with two alternative display theories – one of which was a legally inadequate theory – and never instructed that it had to choose only one, there can be no assurance that the verdict was unanimous with respect to a particular display theory, or that the verdict was not, at least in part, premised on the legally improper B.B. gun theory. Counsel was thus ineffective even if this Court agrees that the display of an unknown object to the complainant’s back was sufficient proof of the display element. Because defense counsel neither moved to dismiss the first degree robbery charge, nor alerted the court to the fact that its final instructions, as given, would likely result in an improper verdict, this Court should reverse Mr. Howard’s conviction and remand the case for a new trial with competent, effective counsel. A. Because Co-Defendant Stanley’s Alleged Display of an Unknown Object Was Insufficient Proof of the Display of a Firearm Element, and it is Undisputed that Mr. Howard’s Alleged Display of a B.B. Gun Was Inadequate Proof of This Element, as a Matter of Law, Defense Counsel Was Obligated to Move to Dismiss the First Degree Robbery Charge on Legal Insufficiency Grounds. Respondent claims that a motion to dismiss the first degree robbery count would have been unsuccessful because the alleged display of an unknown object by - 3 - Mr. Stanley was adequate proof to support the display of a firearm element. See Resp. Br. at 30-31. This argument fails for several reasons – most notably, the lack of perception by the complainant, Domingo Lopez, that the object held to his back was a gun, or even a weapon, as required by this Court’s precedent. See People v. Lopez, 73 N.Y.2d 214, 222 (1989); People v. Baskerville, 60 N.Y.2d 374, 381 (1983). Because there was inadequate proof of this alternative display theory, a motion to dismiss the top count of the indictment on legal insufficiency grounds related to the B.B. gun display would likely have been successful. By failing to move to dismiss the most serious charge against his client on similar grounds advanced by counsel to challenge other counts, and at a time when the argument could have been made outside of the jury’s presence, thereby avoiding any potential conflicts in strategy, defense counsel was ineffective. 1. Contrary to Respondent’s Claims, There is Little, If Any, Support for the Conclusion That Mr. Stanley’s Alleged Display of an Unknown Object was Adequate Proof of the Display Element. Respondent ignores the principle established by this Court over two decades ago that minimum proof of the display element requires a “reasonabl[e]” perception by the victim that he or she is being threatened by a gun. Lopez, 73 N.Y.2d at 222 (emphasis added). As this Court has explained, “reasonable perception” means that “it must appear to the victim by sight, touch or sound that he is threatened by a - 4 - firearm.” Baskerville, 60 N.Y.2d at 381. Here, there was clearly no perception by Mr. Lopez that what Mr. Stanley allegedly held to his back was a gun, or any other weapon. Mr. Lopez testified only that he felt “something else” “touching” his back. A. 393-94 (T. 205-06). He did not objectively describe how this object felt with any particularity, nor did he describe the touch as a forceful one. In fact, Mr. Lopez did not even say that he felt a “hard” object. Perhaps most indicative of the lack of support for Respondent’s position is Mr. Lopez’s inability to provide any specific testimony as to what he believed this object could be. Instead, Mr. Lopez explicitly acknowledged: “I don’t know. I cannot say if it was a gun or something else.” A. 393-94 (T. 205-06). This is a far cry from a victim’s testimony that he believed the unseen object with which he was threatened was actually a weapon. See Lopez, 73 N.Y.2d at 222 (finding sufficient evidence of display element where victim heard defendant “announce a ‘stickup’ and saw him place his hand in his vest ‘as if he had a gun’”); Baskerville, 60 N.Y.2d at 381 (where “towel wrapped around the robber’s arm concealed a black object that appeared to one of the persons threatened to be a gun, and . . . the robber raised his arm toward a person and threatened to kill the person his arm was pointed at,” adequate proof of display element existed). - 5 - Mr. Lopez’s brief mention of the unknown object held to his back was also made in direct contrast to his repeated and unequivocal discussion of the object allegedly held to his face by Mr. Howard, which he specifically perceived to be a gun. See A. 393, 394, 412, 431, 432, 480, 491, 495 (T. 205, 206, 224, 243, 244, 292, 303, 307). Given Mr. Lopez’s lack of any description about the object he felt, or any articulated belief in his testimony that this object was a firearm or other weapon, the record clearly fails to support Respondent’s position. While Respondent correctly notes that the surrounding circumstances are relevant in determining whether there is adequate proof that the victim perceived the unseen object as a weapon, see Resp. Br. at 29, this Court has made clear that, at minimum, the prosecution “must show that the defendant consciously displayed something that could reasonably be perceived as a firearm . . . and that the victim actually perceived the display.” Lopez, 73 N.Y.2d at 220 (citation omitted and emphasis added). Respondent’s assertion that because Mr. Lopez believed that the object allegedly held to his face by Mr. Howard was a real gun, he “could have” also perceived the unknown object held to his back as a real firearm, Resp. Br. at 29-30, 1 That Respondent goes so far as to claim that the surrounding circumstances support a conclusion of reasonable perception of the unknown object to his back as a firearm, because Mr. Lopez “would not have stood th[ere] helplessly unless he thought he was flanked by weapons,” Resp. Br. at 29, shows how untenable its position is. It simply cannot be inferred that Mr. Lopez allowed himself to be robbed only because he thought he was surrounded by armed men. Rather, he would have been compelled to comply with the robbers’ demands when threatened by a single weapon – namely, the object held to his face that he actually perceived as a gun. - 6 - is thus unavailing, given the testimony actually provided. The fact remains that Mr. Lopez never perceived the object held to his back as a gun or other weapon.1 Respondent also contends that Mr. Lopez’s inability to describe or specify what the object held to his back was is irrelevant. Id. at 30. This argument is likewise unavailing given this Court’s specific mandate that the prosecution provide proof of actual perception of the object as a firearm or other weapon by the victim. See Lopez, 73 N.Y.2d at 220; Baskerville, 60 N.Y.2d at 381. The lack of specificity in Mr. Lopez’s testimony about the object held to his back therefore cannot be ignored. Lastly, Respondent offers no support for its assertion that this Court must rely on “the factual finding[] made by the Appellate Division . . . that Mr. Lopez could have ‘reasonably perceived’ the touch to his back to be a weapon.” Resp. Br. at 27. There is no indication in this Court’s decisions in Lopez or Baskerville that the question of whether the evidence supports the conclusion that there was a “reasonable perception” is factual in nature, as opposed to legal. Even if, however, this was a factual conclusion, for the reasons discussed above, the majority’s conclusion is not supported by the record and should therefore be rejected. 2 Specifically, in those cases, the unseen object was either described with details indicating that it was reasonable to perceive the object as a firearm, or the victim explicitly testified to a belief that it was a gun or other weapon. See People v. Groves, 282 A.D.2d 278, 278 (1st Dep’t 2001) (object pressed to complainant’s back “felt like a gun”); People v. Washington, 229 A.D.2d 601, 602 (2d Dep’t 1996) (defendant “put his hand in the pocket of his jacket and pressed a hard object to [complainant’s] side,” which made complainant think the object was “‘probably a gun or a knife’”); People v. Simmons, 186 A.D.2d 95, 96-97 (1st Dep’t 1992) (three times defendant “simulated possession of a gun by placing his hand in a paper bag, and on one occasion simply thrust his hand forward in his pants as if armed,” such that, in each instance, complainants actually perceived the presence of a weapon). - 7 - It should also be noted that Respondent has failed to address the fact that the cases cited by the Appellate Division majority in support of its position that Mr. Stanley’s alleged display constituted sufficient proof of this required element, see People v. Howard, 92 A.D.3d 176, 180 (1st Dep’t 2012), contain additional facts not present here, see Opening Br. at 27-282 – as do this Court’s prior decisions on the matter. See Lopez, 73 N.Y.2d at 222; Baskerville, 60 N.Y.2d at 381. Respondent’s inability to reconcile the lack of caselaw support for its position that this alternate display theory was proven by adequate evidence is further indication that this position is untenable. In sum, because Mr. Lopez’s testimony does not show, beyond a reasonable doubt, that he reasonably perceived the object held to his back as a weapon, there is little, if any, support for Respondent’s claim that there was sufficient proof of this alternate display to support the display of a firearm element. - 8 - 2. Respondent is Unable to Refute That Defense Counsel’s Failure to Move to Dismiss the First Degree Robbery Charge on Legal Insufficiency Grounds Was So Egregious and Prejudicial That It Deprived Malik Howard of a Fair Trial. Given the lack of support for Respondent’s assertion that the display of a firearm element could have been proven beyond a reasonable doubt by Mr. Stanley’s alleged display, there is a strong possibility that a motion to dismiss the first degree robbery charge would have resulted in dismissal of that count because, as no one disputes, it is well-settled that B.B. guns – like air pistols and air guns – do not qualify as firearms and thus cannot satisfy the display element. Indeed, Respondent conceded as much before the Appellate Division. See A. 684-85 (Resp. AD Br. at 40- 41) (“the recovered BB gun was not a firearm, and thus, could not support a conviction for [first degree robbery]”); see also A. 689-90 (Resp. AD Br. at 45-46). Consequently, had counsel moved to dismiss this count on legal insufficiency grounds, it is likely the motion would have been successful. Because this motion concerned the most serious charge against Mr. Howard, counsel’s error was so “egregious and prejudicial” that it deprived Mr. Howard of a fair trial. See People v. Caban, 5 N.Y.3d 143, 152 (2005) (for error to constitute ineffectiveness, it must be “sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial”); see also People v. Vasquez, 20 N.Y.3d 461, 2013 WL 597902, at *4 (2013) (citing Caban for same). - 9 - While Respondent claims that such a motion would not have been “clear-cut” or “dispositive” because Mr. Stanley’s alleged display served as adequate, alternative proof of the display element, see generally Resp. Br. at 30-32, this claim is unavailing. As previously discussed, the testimony concerning this other display did not prove, beyond a reasonable doubt, that Mr. Lopez reasonably perceived the object held to his back as a weapon. See supra, Point I-A(1). Moreover, it is well-settled that displaying a B.B. cannot serve as a basis for a first degree robbery conviction under subsection four of the statute. A review of cases where this Court has found that there was not a straightforward basis for the motion in question or it would not have been successful because of negative precedent supports the conclusion that a motion to dismiss here was both “clear-cut” and “dispositive” due to the undisputed fact that displaying only a B.B. gun is inadequate proof of the display element, as a matter of law. Cf. People v. McGee, --- N.Y.3d ----, 2013 WL 1149163, at *__ (Mar. 21, 2013) (counsel not ineffective either for failing to request lesser included offense or pursue legal insufficiency argument that was “of dubious efficacy” based on precedent that existed at time of trial); People v. Brunner, 16 N.Y.3d 820, 821 (2011) (counsel not ineffective for failing to raise C.P.L. § 30.30 motion that was not clear- cut in light of negative precedent and debate over “applicability of various exclusions”). - 10 - Even if the success of a legal insufficiency challenge to the top count of the indictment was not a definite guarantee, as Respondent asserts, see Resp. Br. at 32, defense counsel’s failure to make such a motion was nevertheless ineffective under the circumstances of this case because there was significant support in the record for doing so. See People v. Turner, 5 N.Y.3d 476, 480-81 (2005) (appellate counsel deemed ineffective for failing to challenge trial attorney’s ineffectiveness on the ground that trial counsel neglected to raise a “clear-cut” and “dispositive” statute of limitations defense; even if unconvinced that such an argument was a “clear winner[,] no reasonable defense lawyer could have found it so weak as to be not worth raising”). See also People v. Nesbitt, -- N.Y.3d ----, 2013 WL 1195696, at *__ (Mar. 26, 2013) (counsel’s error in “overlooking” defense to first degree assault was ineffective, where “record afford[ed] a good-faith basis” for argument that victim’s injuries were insufficient proof of required element of “serious” physical injury). Contrary to Respondent’s assertion, defense counsel could not have been aware of the fact that a B.B. gun “was legally insufficient to establish the display of a firearm [element] under the law,” and deliberately chosen not to challenge it. See Resp. Br. at 32. While, as Respondent aptly notes, id. at 22, the Supreme Court has made clear that “strategic choices made after thorough investigation of law and facts . . . are virtually unchallengeable,” Strickland v. Washington, 466 U.S. 668, 690 - 11 - (1984) (emphasis added), the record makes clear that counsel lacked an awareness of the strong statutory and caselaw support for a dismissal motion in this case. If, as Respondent contends, see Resp. Br. at 32, counsel knew that displaying a B.B. gun could not support a conviction for first degree robbery, then it makes no sense that he would fail to move to dismiss it on insufficiency grounds. Not only was there a clear-cut basis for the motion but, if successful (as it was likely to be), it would have disposed of the top count of the indictment, which carried a much lengthier prison term than a conviction for second degree robbery – the offense Mr. Howard was, at most, culpable of according to the prosecution’s own evidence. Furthermore, no reasonably competent attorney in defense counsel’s shoes would have failed to move to dismiss the most serious charge against his client, especially after challenging other charges relating to the B.B. gun on similar legal insufficiency grounds, as Respondent notes. See Resp. Br. at 32 (citing A. 503-05). Counsel’s decision to forego making this motion could thus not have been “the result of reasonable professional judgment,” Strickland, 466 U.S. at 690, because there was absolutely no strategic reason for failing to do so. See People v. Benevento, 91 N.Y.2d 708, 712 (1998). Respondent claims that defense counsel’s decision not to move to dismiss the first degree robbery count was strategic because it would necessarily have involved - 12 - presenting the affirmative defense to the jury, thus creating a conflict with the main defense of misidentification. See Resp. Br. at 31-32. Contrary to Respondent’s contentions, this is not, at its core, an argument that counsel should have pursued potentially incongruous trial strategies or that misidentification was not a reasonable defense to employ. Rather, the point is that counsel was ineffective for failing to raise the legal insufficiency argument at a time when other counts related to the B.B. gun were being challenged, outside of the jury’s presence. See A. 502-03 (T. 314- 15). Therefore, this was not a situation where counsel would have been forced to “present[] conflicting defenses” before the jury, as Respondent contends. See Resp. Br. at 31. Respondent’s attempts to confuse the issue now before this Court are thus unavailing. Simply put, Respondent is unable to refute that defense counsel’s error in failing to move to dismiss the first degree robbery charge was so “egregious and prejudicial” that it deprived Mr. Howard of a fair trial. See Caban, 5 N.Y.3d at 152. Not only did this concern the most serious offense against Mr. Howard, but making this motion also had the strong potential of alerting the court to the probability of an improper verdict if the jury was not properly instructed. See infra, Point I-B. Lastly, although this Court has repeatedly recognized that a single egregious error can amount to ineffective assistance, see Turner, 5 N.Y.3d at 481, 485; Caban, 3 See also McGee, 2013 WL 1149163, at *__ (recently reaffirming principle set forth in Turner and Caban that a single error may qualify as ineffective assistance “‘when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial’”) (citations omitted). - 13 - 5 N.Y.3d at 152,3 and Mr. Howard maintains that trial counsel made such an error here by failing to move to dismiss the first degree robbery count, in reality, counsel’s error was not singular. As the record shows, counsel utterly and inexplicably failed, at every critical stage, to challenge the most serious charge against his client and to ensure a valid and proper verdict. This Court should therefore find that counsel was ineffective and reverse Mr. Howard’s conviction accordingly. B. Respondent is Unable to Reconcile the Strong Possibility of an Improper Verdict Here; Because Defense Counsel Failed to Alert the Court to the Fact that Its Final Instructions Would Likely Result in Either a Split Verdict or a Verdict Based on a Legally Inadequate Theory, Counsel Was Ineffective. If, as Respondent maintains, the prosecution did not confine itself to one display theory, and the court, in charging the jury, did not either, see Resp. Br. at 27- 28, there can be no guarantee that the verdict was unanimous with respect to a particular one. The decision reached by the Appellate Division majority also fails to reconcile the significant potential for an improper, split verdict. See Howard, 92 A.D.3d at 179-81. Because, as Respondent does not dispute, the B.B. gun display theory was never removed from the jury’s consideration, the verdict could also have - 14 - been improper since it could have been based, either entirely or partially, on this legally inadequate theory. The inherent problem with the verdict here thus remains unresolved. Because defense counsel did nothing to prevent this, by either requesting the appropriate instructions or objecting to the court’s charge as given, counsel was ineffective. Respondent implicitly recognizes the problem that would exist if the jury had before it two theories for the display element. To circumvent the issue, Respondent claims that the B.B. gun display was a factually inadequate theory, as opposed to a legally inadequate one, because factually inadequate theories do not necessarily require reversal under this Court’s precedent. See generally Resp. Br. at 35-41. Respondent’s long-winded attempt to confuse what is, in reality, a straightforward issue, is wholly unconvincing for several reasons. First, Respondent is incorrect in its assertion that the alleged display of the B.B. gun was not a legally inadequate theory. See id. at 38-41. Supreme Court jurisprudence s quoted by Respondent, id. at 36, provides several examples of a “theory of conviction” that runs “contrary to law,” and one of which is when a defendant’s action “fails to come within the statutory definition of the crime.” Griffin v. United States, 502 U.S. 46, 59 (1991). As the Supreme Court further explained, a “‘legal error’ means a mistake about the law, as opposed to a mistake concerning - 15 - the weight or the factual import of the evidence.” Id. This is precisely the situation presented here. Because Respondent does not dispute that, as a matter of law, the display of a B.B. gun cannot support a conviction for first degree robbery, by claiming that the court’s final jury instructions permitted the jury to consider two separate theories of display, see Resp. Br. at 38 (citation omitted), Respondent is implicitly conceding that the record supports the position “that the jurors were given the option of convicting based on [the] legally inadequate theory” of the B.B. gun display, contrary to its own assertions. See id. at 37-38. For Respondent to now claim that the display of a B.B. gun was something other than a legally inadequate theory is thus disingenuous, at best, and, at worst, an insult to this Court’s intelligence. Respondent further contends that the B.B. gun theory was not “truly” illegal, but rather “merely unsupported by the facts.” Resp. Br. at 37-38. This argument is unavailing in light of this Court’s decision in People v. Beacoats, 17 N.Y.3d 643 (2011), which, contrary to Respondent’s claim, supports Mr. Howard’s position. See Resp. Br. at 38-39. In Beacoats, the indictment charged two alternate theories as to the property stolen – a gun “and/or” sneakers – and the jury was not told that its decision had to be unanimous with respect to a particular one. 17 N.Y.3d at 653. Although the evidence factually supported the defendants’ intent to permanently - 16 - deprive the victim of only one of these items (the sneakers), this Court declined to conclude that the jury had made a factually unsupported decision (based on the alleged taking of the gun). Id. at 653-54. The theory relating to the alleged taking of the gun was factually, as opposed to legally, inadequate because the jury was tasked with determining the existence of certain facts – namely whether there was enough evidence that the defendants intended to and did, in fact, steal the gun. As this Court explained, a verdict does not need to be “set aside merely ‘because one of the possible bases of conviction [is] . . . unsupported by the record’. . . . [W]here jurors are given a choice between a factually supported and a factually unsupported theory, it is assumed that they have chosen the one with factual support . . . .” Id. at 654 (citation omitted). In contrast, here, there is no dispute over the facts related to the B.B. gun, which was admitted into evidence, verified to be only an imitation pistol, and then shown to Mr. Lopez, who testified that this appeared to be the object with which he was threatened to his face during the robbery. See A. 220-23, 412 (T. 32-35, 224). Thus, this case does not present a situation where the jury can be said to have made the wrong decision because there were too few facts in the record to support the conclusion that a B.B. gun was displayed during the robbery. Rather, the problem here is the strong probability that the verdict was improper because the jury was not - 17 - properly instructed on the law – in other words, it was never told that displaying a B.B. gun cannot, as a matter of law, support a conviction for first degree robbery. As this Court explained, it is an issue when a “flawed legal theory” is submitted to the jury,” because, “if jurors are given the option of convicting on legally inadequate grounds, ‘there is no reason to think that their own intelligence and expertise will save them from that error.’” Beacoats, 17 N.Y.3d at 654 (citation omitted and emphasis in original). Because, based on the court’s instructions here, jurors not could have known that a B.B. gun did not qualify as a firearm, and thus could not support the display element, as a matter of law, there was nothing to stop them from relying on this legally inadequate theory. Respondent further claims, based on People v. Martinez, 83 N.Y.2d 26 (1993), that, because the trial court in this case did not explicitly misstate the law before the jury, there could not have been an improper verdict. See Resp. Br. at 38. As Respondent correctly notes, the trial court in Martinez “affirmatively recited an erroneous legal presumption to the jury,” and, in this case, “the trial court did not charge the jury that they could rely on the B.B. gun alone to satisfy the display element.” Id. (citation omitted). Respondent, however, ignores the fact that, here, the court never removed the legally inadequate B.B. gun display theory from the jury’s consideration. Furthermore, just as in Martinez, there was “some evidence” to - 18 - support a verdict on the legally inadequate theory. 83 N.Y.2d at 36. Thus, the distinction Respondent now posits between active versus passive court action is meaningless. Moreover, by noting that the court never removed the B.B. gun display theory from the jury’s consideration, see Resp. Br. at 38, Respondent further underscores the lack of assurance of a proper verdict here. What was ultimately of concern in Martinez – that “there is no way of concluding, short of speculation, that the jury did not rely on” the legally insufficient theory, 83 N.Y.2d at 37 – thus remains a significant problem in this case. Defense counsel was therefore obligated to take steps to alleviate this problem by either requesting appropriate instructions or objecting to the court’s final charge as given. Lastly, Respondent asserts that, “[t]o the detriment of a misidentification strategy, an additional instruction regarding the weapon displayed would have drawn further emphasis to the threat of force against the victim,” “evidence which the defense sought to minimize.” Resp. Br. at 34. Respondent’s position is belied by its previous assertions that the main crux of the defense here was that Mr. Howard and Mr. Stanley were misidentified as the perpetrators, not that the robbery itself had not occurred. See id. at 24. Thus, an additional instruction on the display theory would not have affected the main defense pursued at trial. Respondent has seemingly - 19 - confused a jury instruction on the affirmative defense with an instruction that the verdict be unanimous with respect to the theory of display. These are two separate and distinct issues. In sum, because Respondent does not dispute that the B.B. gun theory of display was submitted to the jury and never removed from its consideration, Respondent cannot refute the strong possibility that the verdict was based on this legally inadequate theory, which would be improper. Even if there is some uncertainty as to whether the jury based its verdict on the B.B. gun display, if Respondent’s position is credited, the jury was still presented with two separate display theories, and never told its decision had to be unanimous with respect to one of them. Thus there is still a significant probability of an invalid verdict. The lack of any convincing attempt on Respondent’s part to reconcile this problem is highly significant and indicative of the wholly untenable nature of its position. Because the court’s instructions, as given, neither restricted the jury’s decision to a single display theory, nor prevented consideration of a legally adequate theory, defense counsel was obligated to bring this problem to the court’s attention by either requesting the appropriate instruction or objecting to the court’s charge as given. Given the lack of any strategic reason for allowing Mr. Howard’s basis for liability to be expanded to encompass two alleged displays – one of which was plainly - 20 - inadequate as a matter of law – counsel’s failure to take any steps to ensure a unanimous verdict rendered him ineffective. - 21 - POINT II RESPONDENT HAS PROVIDED NO JUSTIFICATION FOR WHY USING SUCH AN UNDULY SUGGESTIVE IDENTIFICATION PROCEDURE WAS NECESSARY HERE, GIVEN THE EXTREME ATTENUATION OF BOTH THE SPATIAL AND TEMPORAL FACTORS AND THE LACK OF AN UNBROKEN CHAIN OF EVENTS; BECAUSE THE SHOW-UP WAS IMPROPER AND INHERENTLY UNRELIABLE, THIS COURT SHOULD SUPPRESS IT (Replying to Resp. Br. at 43-47). There is no dispute that the show-up in Malik Howard’s case occurred five miles from the scene of the crime and approximately two hours after its commission. See Resp. Br. at 45. Despite the fact that never before has a court in this state upheld a show-up characterized by such lengthy attenuation of both the spatial and temporal factors as in this case, Respondent baselessly asserts that this extreme dual attenuation did not render the show-up here impermissible. See Resp. Br. at 45-46. While there are no “bright-line,” People v. Johnson, 81 N.Y.2d 828, 831 (1993), “per se or presumptive rules,” People v. Duuvon, 77 N.Y.2d 541, 545 (1991), when determining the propriety of a particular show-up, the utter lack of any spatial or temporal proximity between the crime and the show-up in this case cannot be ignored. Respondent’s claim that “it was not unreasonable to conduct the show-up approximately five miles” from the crime because the perpetrators fled in a car, Resp. Br. at 45, is unavailing. Although the use of a car to flee a crime scene may very well affect how the geographic proximity factor is viewed, it does not discount the - 22 - problem of dual attention – in other words, when there is also a lack of temporal proximity, as here. Even the case upon which Respondent relies for this point, see Resp. Br. at 46, is not marked by such lengthy attenuation in time as here. As the decision in that case makes clear, the show-up took place “within an hour of the commission of the crime,” People v. Hudson, 71 A.D.3d 1046, 1047 (3d Dep’t 2010) – not two hours after the crime, as it was here. The identification in Hudson was also the result of a continuous, ongoing investigation, see id., unlike in this case. Respondent’s attempt to discount the fact that the arresting officers here “had resumed patrol in between the time they initially responded to the radio run [about the robbery] and subsequently encountered defendants by chance,” see Resp. Br. at 46 (emphasis added) – well over an hour later – is likewise unavailing. While an unbroken chain of events may not be an absolute prerequisite for conducting a show- up, the fact that the circumstances of this case make clear that there was no continuous sequence of events leading to the stop of the car in which Mr. Howard was a passenger is significant. In addition, Respondent has failed to refute that, under the applicable totality of circumstances standard, the multitude of unduly suggestive tactics employed at the show-up here rendered it impermissibly unreliable. While “[i]nherent in any show-up is the likelihood that an identifying witness will realize that the police are displaying - 23 - a person they suspect of committing the crime, rather than a person selected at random,” People v. Gatling, 38 A.D.3d 239, 240 (1st Dep’t 2007), in this case there were simply too many suggestive factors to conclude that the resulting identification was sufficiently reliable. Here, Mr. Howard was handcuffed and positioned next to two officers who, unlike him, were not black men, as Mr. Lopez had described the perpetrators. A. 36, 47, 101 (H. 13, 24, 77). In addition, when Mr. Lopez arrived for the show-up, he saw Mr. Howard standing near a vehicle matching the description of the getaway car he had previously provided. A. 60, 74, 130-31 (H. 37, 51, 106-07). And perhaps most problematic, before the show-up took place, the police had already informed Mr. Lopez that they had someone with characteristics matching the description he had provided. A. 114 (H. 90). The aspects of this show-up thereby isolated Mr. Howard, creating a substantial likelihood of misidentification. This case is therefore unlike those cited by Respondent, where there were fewer suggestive factors than here. See Resp. Br. at 46-47 (citations omitted). Lastly, while the admissibility of a show-up is generally a mixed question of law and fact, when there is no support in the record for the lower court’s determination, the issue is reviewable by this Court. See People v. Brisco, 99 N.Y.2d 596, 597 (2003) (admissibility of a show-up is a mixed question of law and fact - 24 - beyond this Court’s review “if record evidence supports the determination below”) (emphasis added); see also People v. Gilford, 16 N.Y.3d 864, 868 (2011). The record in this case makes clear that the police had no reason to conduct a show-up, given that Mr. Lopez had already returned home and Mr. Howard and Mr. Stanley were already under arrest for other charges. See A. 94-95, 152-53 (H. 70-71, 127-28). This violates the principles set forth by this Court. See Johnson, 81 N.Y.2d at 830 (while noting that what constitutes an appropriate time lapse will vary by case, this Court made clear that “the emphasis must be upon the prompt and immediate nature of an identification after the crime has been committed, not . . . after the defendant has been arrested”) (emphasis added). Because the show-up here was also extremely attenuated from the crime, both spatially and temporally, it was not the result of an unbroken chain of events, and it was marked by so many unduly suggestive factors, there was no justification for conducting it under any of the enumerated reasons set forth by this Court. See id. (“Showup identifications are strongly disfavored but are permissible if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately.”) (citations and internal quotation marks omitted). Since there is a complete lack of support for the 4 Notably, in the two cases cited by the Appellate Division as support for its erroneous conclusion that the show-up here was not impermissibly attenuated from the crime, see Howard, 92 A.D.3d at 182, there was less attenuation than in this case. See Brisco, 99 N.Y.2d at 597 (show-up was within an hour of the crime and “in the context of a continuous, ongoing investigation”); People v. Greene, 39 A.D.3d 268, 269 (1st Dep’t 2007) (show-up took place about an hour after the crime and two miles away). The factual dissimilarity of the cases cited by the Appellate Division further highlights the lack of support for its ultimate conclusion. - 25 - conclusion reached by either the Appellate Division or the hearing court that the show-up in this case was proper, this Court has jurisdiction to review the matter.4 In conclusion, no convincing explanation has been offered by Respondent for why it was necessary to conduct a show-up here. Because the show-up in Mr. Howard’s case was blatantly unnecessary and inherently unreliable, this Court should suppress it, thereby strengthening the well-established principle set forth by the Court that there are limitations to the admissibility of such an inherently suggestive identification procedure. - 26 - CONCLUSION For the reasons stated above, this Court should grant the requested relief. Dated: New York, New York April 10, 2013 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant EUNICE C. LEE, ESQ. Supervising Attorney By: _____________________________ REBEKAH J. PAZMIÑO, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100