The People, Respondent,v.Raul Johnson, Appellant.BriefN.Y.November 17, 2014To Be Argued By: LOIS CAPPELLETTI Sr. Assistant Public Defender Requested Time: I 0 Minutes COURT OF APPEALS STATE OF NEW YOH.K THE PEOPLE OF THE ST ATE OF NEW YORK, Respondent, -against- RAUL JOHNSON, Appellant. REPLY BRIEF FOR APPELLANT JAMES D. LICATA Rockland County Public Defender Attorney for Appellant BY: LOIS CAPPELLETTI Sr. Assistant Public Defender Of Counsel 11 New Hempstead Road New City, New York 10956 Tel: (845) 638-5660 Fax: (845) 638:5667 Brief Completed: January 28, 2014 TABLE OF CONTENTS TABLE OF AUTHORJTIES INTRODUCTION POINT I: APPELLANT'S RJGHT TO COUNSEL INDELIBLY ATTACHED AT THE PROFFER MEETING WHICH WAS DIRECTLY RELATED TO THE ATTEMPTED MURDER THAT WAS THE SUBJECT OF THE PAGE 1 - 11 1 PROFFER SESSION, AND THE INTERROGATION 4 POINT II: APPELLANT'S STATEMENT SHOULD HAVE BEEN BARRED BECAUSE IT WAS GIVEN IN THE COURSE OF THE COOPERATION AGREEMENT 17 POINT III: APPELLANT'S ROSARJO CLAIMS WERE PRESERVED AND THE MATERJAL WAS ROSARJO FOR THE PURPOSES OF THE SUPPRESSION HEARING AND THE TRJAL COURT'S ERROR WAS NOT HARMLESS 22 CONCLUSION 25 TABLE OF AUTHORITIES Federal Cases Edwards v. Arizona, 451U.S.477, 482 (1981) ................................. 12 Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ................................ 12, 13 State v. Bortner, 150 N.H. 504 .................................................... .18 State v. Seeright, 978 F.2d 842 ................................................... .18 United States v. Aleman, 286 F.3d 86 (2nd Cir. 2002) ......................... .17 United States v. Castelbuono, 643 F. Supp. 965 ................................. 18 UnitedStatesv. Doe, 671 F. Supp. 205 (E.D.N.Y. 1987) .................. 12, 14 United States v. Gerant, 775 F. Supp. 182 ....................................... 18 United States v. Okeayainneh, 2012 U.S. District Ct. D Minnesota .......... .18 United States v. Pelletier, 898 F.2d 297 (2nd Cir. 1990) ........................ 17 United Statesv. Pollock, 91F.3d331. ............................................ 18 United States v. Veals, 360 Fed. Appx. 679, 684 (71h Cir. 2010) ............. 12 State Cases People v. Bench, SQ N.Y.2d 610 (1992) ........................................... 23 People v. Bing, 76 N.Y.2d 331 (1990) ............................................. 5 People v. Cohen, 90 N.Y.2d 632 (1997) .......................................... .4 People v. Cortez, N.Y.3d, N.Y. Slip Op. No. 225 ............................... 13 I People v. DeBoue, 299 A.D.2d 749 {2nd Dept. 2002) .......................... 20 People v. Delayo, 52 A.D.3d 114 (3rd Dept. 2008) ............................. 20 People v. Jordan, 21A.D.3d496 (2nd Dept. 1996) .............................. 4 People v. Mezon, 80 N.Y.2d, 155, 160 ........................................... 23 People v. Morrero, 51N.Y.2d56 (1980) .......................................... 8 People v. Pacquette, 17 N.Y.3d 87 (2011) ................................... 10, 11 People v. Pugh, 258 A.D.2d 674 (1999) .......................................... 23 People v. Ramos, 40 N.Y.2d 610 (1976) .......................................... 9 People v. Rosario, 9 N.Y.2d 286 (1961) .............................. 3, 22, 23, 24 People v. Schaefer, 136 A.D.2d 661 (2nd Dept. 1988) ..................... .4, 20 People v. Sommerville, 249 A.D.2d 687 (3rd Dept. 1998) ..................... 13 People v. Steward, 88 N.Y.2d 496 ................................................. 4 People v. Stokes, 165 Misc.2d 934 ........................................ : ....... 20 People v. West, 81N.Y.2d370 (1993) ............................................. 8 Statutes C.P.L. 240.75 ......................................................................... 24 11 INTRODUCTION In his openmg brief, Raul Johnson asserted that the statement extracted from him by police detectives, who were meeting with him purportedly to "wire him up" as an informant, was taken from him in violation of his indelible right to counsel. Raul's right attached when attorney John Schwarz entered the proceedings and represented Raul at the proffer session. Appellant explained that because the prosecution and detectives were aware that attorney Schwarz was representing Raul on the subject of the proffer meeting --the stabbing-- the detectives violated Raul's right to counsel when they questioned him about the stabbing when he met with them to be wired. Appellant relied on the New York State Constitution's indelible right to counsel, not the "related matters" doctrine, nor the derivative right to counsel as Respondent erroneously addressed. Moreover, given that Respondent has conceded that Schwarz was representing Raul on the stabbing case when Schwarz engaged in plea negotiations with Assistant District Attorney Richard Moran after Raul made the inculpatory statement, because there was no intervening action during which Schwarz entered the proceedings, the only logical conclusion that can be drawn from Respondent's concession is that Schwarz entered the 1 proceedings when he represented Raul at the proffer session. Respondent agrees with Appellant that contract law governs the terms of the cooperation agreement. Respondent asserts that it would tum contract law on its head for Appellant to rely on the agreement to bar the prosecution from using the statement that was extracted from him in the course of his cooperation because Appellant purportedly breached the agreement by failing to tell the truth at the original proffer session. Respondent ignored the case law, cited in Appellant's brief, and relied upon the hearing court, which ruled that when the prosecution is aware of a misrepresentation by a suspect, but continues to utilize him as a cooperator, a subsequent truthful statement cannot be used against him. As such, in addition to the statement being barred because it was elicited in violation of Appellant's right to counsel, it should have been barred because it was given in the course of his cooperation pursuant to the cooperation agreement. See People v. Schaefer, 136 A.D.2d 661 (2nd Dept. 1988) (noting that where the prosecution promises to keep a cooperation agreement in effect after acknowledging misrepresentation by the suspect, the misrepresentation does not void the agreement). Finally, Appellant asserts that the failure of the prosecution to provide 2 essential Rosario material pnor to the suppress10n hearing prejudiced Appellant and should have led to a mistrial. Respondent erroneously asserts that trial counsel's agreement that the court should reserve on the. motion until after the trial was concluded prevented the court from issuing a ruling during the trial when an effective remedy could have been fashioned. However, because the only possible remedy for the violation would have been a mistrial, counsel's suggestion that the court reserve decision did not in any way prevent the court from effecting a proper remedy by waiting for the jury to render a verdict before ruling. 3 POINT I APPELLANT'S RIGHT TO COUNSEL INDELIBLY ATTACHED AT THE PROFFER MEETING WHICH WAS DIRECTLY RELATED TO THE ATTEMPTED MURDER THAT WAS THE SUBJECT OF THE PROFFER SESSION, AND THE INTERROGATION Respondent marshals several arguments in opposition to Appellant's contention that the detectives' interrogation of Raul Johnson violated Raul's indelible right to counsel as guaranteed by the New York State Constitution. Respondent's arguments are either non-responsive to the arguments raised by Appellant in his brief, are not supported by case law, or rely on inapplicable case law. Respondent first provides an analysis as to why the right to counsel did not attach pursuant to the "related matters" doctrine as set out by People v. Cohen, 90 N.Y.2d 632 (1997). But since Appellant never cited to Cohen, nor relied on the "related matters" doctrine, Respondent's argument on this issue is irrelevant and should be ignored by this Court. Similarly, Respondent cites two cases that stand for the proposition that New York no longer recognizes that there is a derivative right to counsel. 1 Again, since Appellant never argued that the basis of the right to counsel was the I People v. Steward, 88 N.Y.2d 496, People v. Jordan, 21 A.D. 3d 496 (2nd Dept. 1996) cited by Respondent on page 24 of his brief. 4 derivative right to counsel rejected by this Court in People v. Bing, 76 N.Y. 2d 331 (1990), this Court need not reach this issue either. Respondent presents two arguments that address the issues raised in Appellant's brief: Respondent asserts that counsel never entered the proceedings until after the statement was extracted from Raul, and that counsel's interactions with the prosecutor, that occurred after the statement was made, cannot support Appellant's contention that counsel entered the proceedings prior to the extraction of the statement. Relatedly, Respondent argued that even if this Court were to find that the right to counsel attached at the proffer session, Raul's agreement to meet with detectives to be wired while he was at the proffer session with attorney John Schwarz, acted as a waiver of Raul's right to counsel. None of these arguments withstand scrutiny. First, attorney Schwarz engaged in activities normally associated with the representation of a client prior to the time Raul made the statement: he telephoned the prosecutor to discuss the case, he attended the proffer session, and, after the proffer session, when it was agreed that his client would wear a wire and cooperate on the stabbing case, counsel provided his 5 client's contact information and specifically requested asked the prosecutor that he be contacted after his client was fitted with the wire. Respondent admits that Schwarz engaged in these activities. See Respondent's Brief page 24. Respondent then concedes that Schwarz's post-statement actions in negotiating with the prosecutor on both the burglary and the stabbing case demonstrate that Schwarz represented Raul on the stabbing case at that time. See Respondent's Brief page 24, ("Defendant is reduced to arguing that counsel's post-confession activity, including negotiating a disposition on the two cases -where anyone would concede he represented defendant- bootstrap his "representation" - to the period up until and including the confession") (emphasis added). Given Respondent's concession that attorney Schwarz's negotiations with the prosecutor on July 21, 2008 and August 23, 2008, demonstrate that he was representing Raul on the stabbing case, Respondent necessarily concedes that counsel entered the proceedings at the proffer session. That is because there was no intervening event that occurred between the proffer session on October 12, 2007 and the negotiations that occurred in April, July and September of 2008 -- there was no court appearance at which a judge formally appointed Schwarz to represent Raul on the stabbing; Schwarz did 6 not file an amended notice of appearance to cover the stabbing case -- that would give rise to the entry of counsel. The only logical conclusion that can be drawn is that counsel entered the proceedings when he represented Raul at the proffer session, and that the representation continued when Schwarz telephoned Assistant District Attorney Richard Moran and provided him with his client's cell phone number so that Raul could be contacted to be fitted with the wire to continue his cooperation on the Shoprite stabbing case. The prosecutor's actions after the statement was made further demonstrate that the right to counsel on the stabbing incident had attached prior to the statement: the prosecutor called Attorney Schwarz to inform him that his client had implicated himself in the stabbing, that his client was still not formally charged with any crime relating to the stabbing and that the police officers still wanted to have Raul wear a wire. This analysis is in line with this Court's case law setting out the way an attorney enters a proceeding, holding that communicating to the police that the suspect is represented, arranging to have a suspect turn himself in to police authorities, and an in-court statement that counsel represents the. suspect on a pending case under investigation are all ways in which the indelible right to counsel attaches. Attorney Schwarz's actions here, in 7 attending the proffer sess10n as Raul's attorney and then continuing to communicate with the prosecutor about the case that was the subject of the proffer is more than sufficient to enter the proceedings in that matter. Thus, in People v. West, 81 N.Y.2d 370 (1993), this Court held that actual representation in a matter gives rise to New York's indelible right to counsel, even if the attorney's entry into the proceedings occurred years before the interrogation. A suspect whose right has indelibly attached has no obligation to keep the police informed as to the status of the attorney- client relationship. Here, Schwarz's actual representation at the proffer session, the telephone calls to the prosecutor prior to the meeting at which Raul was to be wired to obtain information on the stabbing, resulted in counsels entering the proceedings. In People v. Morrero, 51 N.Y.2d 56 (1980), counsel's arrangement for his client to surrender to the police in connection with a homicide investigation resulted in counsel's entering the proceedings barring statements later obtained from the defendant despite the fact that counsel's actual representation was solely for the purpose of the surrender. "Once an attorney appeared on defendant's behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to 8 justify police questioning of the defendant without the attorney being present. We have indicated that ifthe police are uncertain as to the scope of the attorneys representation, the defendant should not be questioned." Id. at 58. Here, the detectives were aware that Attorney Schwarz entered the proceedings on Raul's behalf at the proffer meeting, Detective McGrath was actually at the meeting. Even if they were unsure, they were prohibited from questioning Raul. In People v. Ramos, 40 N.Y.2d 610 (1976), counsel's in-court statement while representing the defendant in a drug case that he had advised his client not to make any statements to the detectives taking him into custody on a murder case, constituted counsel entering the proceedings and subsequent statements extracted from defendant were suppressed. This Court held, "If, in fact, the prosecution was in doubt as to whether an attorney had entered the proceeding, the burden should rest squarely on it to insure that the defendant's right to be represented by counsel be protected. The ambiguity of the lawyer's statement or the manner in which the defendant's attorney went about representing his client cannotbe seized by the prosecution as a license to play fast and loose with this precious right. A defendant's right to counsel cannot be made to depend on whether in the 9 sole judgment of the prosecution there has been sufficient activity and conduct of a proper character so as to compel a conclusion that the lawyer has entered the proceedings. Nor can we agree with the prosecutor that the defendant has an affirmative burden to point out to the prosecution that an attorney has entered the proceedings on his behalf. To hold otherwise would violate our prior holdings and seriously undermine this constitutionally guaranteed right." Id. at 618. Here, the prosecutor was aware that Schwarz had entered the proceeding: Assistant District Attorney Moran had communicated with Schwarz before, during and after the proffer session about the stabbing case, showing by these actions, that Schwarz was representing Raul on the stabbing case. The only case with a contrary result is People v. Pacquette, 17 N.Y.3d 87 (2011), a case that is easily distinguished from the case at bar. In Pacquette, this Court held that that a statement made by assigned counsel to detectives in court in Manhattan, where he was assigned to represent defendant on a drug case, that he represented defendant and that he should not be questioned on a pending case in Brooklyn, did not constitute entering the proceedings because the detectives overheard the attorney tell defendant that he would not cross the bridge into Brooklyn to represent him on the 10 homicide case in that county. The attorney, who was assigned by County Law 18B was not on the panel in Kings County, the county in which the homicide case arose. Pacquette has no applicability here, where attorney Schwarz represented Raul up until the point at which a different assigned counsel was appointed to represent him and where Schwarz testified at the suppression hearing that it was his understanding that he "would be representing him on those charges or I would be helping him to avoid those charges." (A000433) As noted above, the People concede that Schwarz's telephone conversations with the prosecutor, after the stabbing had been made, show that Schwarz was representing Raul on the stabbing at that time. See Respondent's Brief page 24. That representation was simply a continuation of the representation that commenced when Schwarz represented Raul at the proffer session. Respondent's argument, that the fact that both Raul and counsel agreed that Raul would meet with the detectives without counsel present for the purpose of being fitted for the wire was a valid waiver of the right to counsel, after the right to counsel attached is, essentially, an argument that a suspect may implicitly waive the right to counsel. The federal cases relied on by Respondent to support this assertion are not applicable since in each of 11 the cases both the attorney and the client agreed that the client would meet with prosecutors to provide information and in each case defendants voided the agreement by refusing to cooperate. See United States v. Doe, 671 F. Supp. 205 (E.D.N.Y. 1987) counsel and client agreed to a debriefing in which counsel would not be present; (Additionally Doe was no longer willing to cooperate with the government thereby voiding the agreement.); United States v. Veals, 360 Fed. Appx. 679, 684 (7th Cir.2010) ("Veals attended the debriefing session voluntarily, with full knowledge of his lawyer"; additionally, Veals actually breached the cooperation agreement by refusing to testify before the Grand Jury) Here, there was no agreement that Raul would be questioned at the time he was fitted for a wire, nor that he would provide information at that meeting. The sole purpose of the meeting was to place a wire on Raul to obtain information. Under both New York and Federal Law, a waiver of the fundamental constitutional right to counsel must be knowing, intelligent, and voluntary. The United Stated Supreme Court has held that, "waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege." Edwards v. Arizona, 451U.S.477, 482 (1981); see also Johnson v. Zerbst, 304 U.S. 12 458, 464 (1938) ("a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege"); People v. Cortez, N.Y.3d, N.Y. Slip Op. No. 225, decided January 21, 2014, Lippman, J., concurring. ("But waivers, particularly of fundamental constitutional entitlement, to be valid, must be demonstratively knowing, intelligent and voluntary there must be a record sufficient to overcome the presumption against them") (internal citations omitted) Here, the only facts Respondent can point to that supposedly demonstrate a waiver, are that Raul agreed to meet with the detectives to be fitted with a wire. Although Respondent cites to People v. Sommerville, 249 A.D.2d 687 (3rd Dept. 1998), in support of its argument that counsel and Appellant's agreement that Raul would meet with the detectives without counsel to be fitted with a wire was a waiver of the right to counsel, Sommerville does not support Respondent's assertion. That is because, in Sommerville, "defendant, in the presence of counsel, agreed to further interviews and a polygraph test in the absence of counsel unless a written statement was to be taken." Here, there was no explicit agreement that any interview or interrogation was to take place: the sole stated purpose of the meeting was to fit Raul with a wire. Further Schwarz testified, when he was called as a 13 witness for the prosecution, that he did not believe that his client would be questioned when he presented himself to the detectives to be wired. (A000441) (On cross-examination, in response to defense counsel's question, whether it was Schwartz's impression that the defendant was going to be interrogated, Schwarz responded, "I did not believe that my client was going to be interrogated by any law enforcement personnel when he was being wired up.") (A000441) Respondent suggests that the hearing court was free to disregard Schwarz's testimony at the hearing that he did not believe that his client would be questioned at the time he was wired. See Respondent's Brief pages 29-30. But since no countervailing evidence was elicited at the hearing, there was simply no basis for the hearing court to have disregarded that testimony. Although, the hearing court found that there was a "tacit" waiver of the right to counsel, relying on United States v. Doe, 671 F. Sup. 205 (E.D.N.Y 1987), its reasoning is incorrect, as Doe has no applicability to this case. The hearing court erred in relying on a federal case in which counsel and his client explicitly agreed to a debriefing session in the absence of counsel, facts that are starkly different from the facts in this case. Respondent has not cited to any case in which a tacit waiver of the right to 14 counsel has been recognized under New York's Constitutional right to counsel. Since Appellant's claim at the hearing was that it was the New York Constitutional indelible right to counsel that had attached, the hearing court's decision is erroneous as a matter of law, relying as it does, on the federal right to counsel, which is not an indelible right to counsel, and on facts that are so divergent from this case that the case is not relevant. Nor can the fact that it was counsel who provided his client's cellular phone number to the detectives be interpreted to mean that Raul waived his right to counsel. The right to counsel is the suspect's right, not the attorney's. And, as noted above, providing a means by which to contact his client for the purpose of having him fitted for a wire, cannot be deemed consent to interrogate his client. Respondent has not cited any cases to support this questionable assertion. In sum, Appellant's indelible right to counsel attached when his attorney entered the proceedings and represented him at the proffer meeting and continued his representation up until the point that a different attorney was appointed by the court. Because the prosecution and detectives were aware that attorney Schwarz was representing Raul on the subject of the proffer meeting --the stabbing-- the detectives violated Raul's right to 15 counsel when they questioned him about the stabbing when he met with them to be wired. The right relies on the New York State Constitution's indelible right to counsel, not the "related matters" doctrine, nor the derivative right to counsel as Respondent erroneously addressed. The hearing court's decision finding that there was a "tacit" waiver of Raul's right to counsel was erroneous as a matter of law. 16 POINT II APPELLANT'S STATEMENT SHOULD HA VE BEEN BARRED BECAUSE IT WAS GIVEN IN THE COURSE OF THE COOPERATION AGREEMENT Respondent is in agreement with Appellant that contract law governs the terms of a cooperation agreement. See Respondent's Brief page 33. However, Respondent is incorrect in asserting that Appellant breached the agreement, when in fact, the prosecutor breached the agreement. A contract existed between the District Attorney's office and Raul. Due Process not only "requires that the government adhere to the terms of any plea bargain or immunity agreement it makes. United States v. Pelletier, 898 F.2d 297, 302 (2"ct Cir. 1990), but, also requires us to construe agreements strictly against the government in recognition of its superior bargaining power." United States v. Aleman, 286 F.3d, 90. A court must determine "what the parties reasonably understood the terms of the agreement to be and what they intended the remedies to be in the case of a breach." Id. Respondent contends that as long as the People· can show that defendant materially breached the proffer agreement, or that it did not apply, that the court properly ruled the evidence admissible. See Respondent's 17 Brief page 33. While Respondent's statement of the law is correct, the facts do not support Respondent's conclusion that there was a material breach, or that the agreement did not apply to the statement that was ultimately extracted from Raul. Rather, the record demonstrates that in A.D.A. Richard Moran's view, Raul did not materially breach the agreement, since he continued to utilize Raul as a cooperator even after Raul made the inculpatory statement. None of the cases cited by Respondent stand for the proposition that, after a breach of agreement by the defendant the government can continue to use the defendant as a cooperator, extract truthful inculpatory information from him, and use it against him. Instead, the cases stand for the proposition that a cooperator who provides false information will not get the benefit that was promised under the cooperation agreement and the government cannot continue to use him as a cooperator.2 Raul reasonable believed that the cooperation agreement was in effect when he gave his statement to the detectives. (A000457-000458) In fact 2 United States v. Gerant, 775 F. Supp. 182 (after testimony court found that defendant breached agreement); State v. Seeright, 978 F.2d 842 (agents believed defendant lied at proffer and indicted him as a result); United States v. Pollock, 91F.3d331 (breached both cooperation and plea agreement by falsifying testimony about arson); United States v. Castelbuono, 643 F. Supp. 965 (terms of agreement governed, defendant breached by withholding important documents and information); United States v. Okeayainneh, 2012 U.S. District Ct. D Minnesota, (there was no statement evidence); State v. Bortner, 150 N.H. 504 (lied at proffer and government refused downward departure as result) 18 Raul was told by the detectives that he had to continue to cooperate ifhe did not want to face time on the burglary charge. (A000458) He continued to rely on the agreement with the prosecutors and detectives throughout the course of the investigation, including truthfully admitting involvement in the crime. The agreement sets out that Raul was obligated to respond fully and truthfully to all questions and that violating the agreement rendered the agreement null and void. Notably, the detectives and the prosecutor continued to use Raul as a cooperator after they determined that he was not truthful when he said he was in jail on the date of the stabbing. As well, they continued to use Raul after his inculpatory statement. Respondent claims that the detectives' interpretation of the agreement has no legal effect; however his claim does not extend to the prosecutor. A.D.A. Moran clearly interpreted the agreement to be in effect since he allowed Raul to continue to cooperate in the investigation. A.D.A Moran even called Schwarz on April 29, 2008, told him his client admitted to the stabbing that he was not charged with any crime, and that the detectives "still wanted him to wear a wire." (A000026) Contrary to Respondent's assertion, Raul did not void the cooperation agreement. The prosecution did, by encouraging Raul to continue to cooperate with them throughout the 19 .. ,,: course of the investigation, . despite the fact they believed and than discovered that he was not being totally truthful with them. The prosecutor had the obligation to inform Raul that he could not cooperate any further if the prosecution's position was that false statements voided the agreement. However, neither the prosecutor nor the detectives did so. The detectives and the prosecutor permitted Raul to continue to cooperate with them thereby waiving their right to claim the agreement was void. Respondent ignored the case law relied on in Appellant's brief. In his brief Respondent did not address People v. Schaefer, 136 A.D.2d 661 (2nd Dept. 1988), where the court held that the defendant was entitled to enforcement of the cooperation agreement despite his misrepresentation as to the nature of certain evidence -- stains on his clothing in a murder case. Instead Respondent relies on New York cases that do not address this issue. In People v. Stokes, 165 Misc.2d 934, defendant claimed impossibility as a reason for him not to continue to cooperate according to his agreement. Howeyer, the agreement was specific that in the event of impossibility, the agreement would be void. That was not the issue here. The other cases, People v. DeBoue, 299 A.D.2d 749 (2nd Dept. 2002); People v. Delayo, 52 A.D.3d 114 (3rd Dept. 2008), were essentially sentence issues where there 20 were cooperation agreements based on plea bargains, again not the iSsue here. Contrary to Respondent's argument Raul's, statement should be suppressed, not only because it violated his indelible right to counsel but also because the prosecutor not Raul voided the cooperation agreement. 21 POINT III APPELLANT'S ROSARIO CLAIMS WERE PRESERVED AND THE MATERIAL WAS ROSARIO FOR THE PURPOSES OF THE SUPPRESSION HEARING AND THE TRIAL COURT'S ERROR WAS NOT HARMLESS Contrary to Respondent's argument, Appellant's suppression hearing Rosario claim was not waived because defense counsel suggested that the court reserve decision on the application until after the verdict. The Rosario material was related to Detective Romano's suppression hearing testimony; thus when, during the trial it came to light that material documents had not been disclosed to the defense at the suppression hearing, the only possible remedy would be a mistrial. Therefore, there was no effective remedy that the court could have fashioned that would have resolved the issue and allowed the trial to continue. Under these facts, it cannot be said that the issue was not properly preserved for appellate review, simply because defense counsel agreed that the court could reserve decision on the motion. See Respondent's Brief page 42. Nor was the error harmless. Respondent's contention that this issue is not preserved for review is not borne out by the record. Appellant's trial counsel preserved the issue in his arguments, in both an oral argument and a memo, during the trial, 22 counsel specifically requested reopening the hearing on several occasions. He then suggested that the court reserve decision on his application, allow the case to proceed and the jury to deliberate and if the jury acquitted Raul, the issue would be moot. If the jury found Raul guilty he would make application to reopen the hearing. The prosecution made no objection and Justice Kelly agreed to reserve his decision. Under these circumstances the issue is clearly preserved for this Court's review. The remedy for failure to timely supply Rosario material at a pretrial hearing is a new hearing, relief that is appropriate even after conviction. See People v. Bench, 80 N.Y.2d 610 (1992). In People v. Pugh, 258 A.D.2d 674 (1999), defense argued that defendant was deprived of the opportunity to cross-examine suppression hearing witness with Rosario material, the People asserted that the defendant's contention in this regard was unpreserved for Appellate review because the defendant did not move to reopen the suppression hearing when the report was later disclosed. "In view of the prior unequivocal ruling that the report did not constitute Rosario material for purposes of the suppression hearing, such a motion would have been futile (see People v. Mezon, 80 N.Y.2d, 155, 160). Where a defendant is deprived of the opportunity to cross-examine a suppression hearing witness 23 with Rosario material, the remedy is a new suppression hearing". Id. at 674. Section 240.75 also provides that the harmless error rule shall not affect or limit any right the defendant may have to a re-opened suppression hearing when Rosario material is belatedly disclosed before the close of evidence at trial. Here, there was a reasonable possibility that the notes would·· have affected the outcome of the suppression hearing clearly prejudicing Appellant. In light of the potential for prejudice arising from the late disclosure of the police witness'. memos, which constituted Rosario material, it was error for the court to impose no sanction at all. 24 CONCLUSION For all the reasons stated herein, Appellant, Raul Johnson, respectfully requests that the Court grant the relief requested and reverse the order of the Appellate Division. Dated: January 28, 2014 Respectfully Submitted, JAMES D. LI CAT A Rockland County Public Defender Attorney for Appellant d~ c~e/LJk_, BY: LOIS CAPPJfL ETTI Sr. Assistant Public Defender Of Counsel 11 New Hempstead Road New City, New York 10956 (845) 638-5660 25