The People, Respondent,v.Akiva Daniel Abraham, Appellant.BriefN.Y.October 15, 2013To Be Argued By: Jonathan S. Fishbein Time Requested: 10 Minutes COURT OF APPEALS STATE OF NEW YORK ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- AKIVA DANIEL ABRAHAM, Appellant. ___________________________________________________ REPLY BRIEF FOR APPELLANT Jonathan S. Fishbein Assigned Counsel for Appellant 35 Fairway Avenue Delmar, New York 12054 Tel: (518) 439-1480 Fax: (518) 439-1488 Reply Brief Completed: April 25, 2013 TABLE OF CONTENTS Table of Cases and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv ARGUMENT: Point I.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 VIEWED IN A LIGHT MOST FAVORABLE TO THE PROSECUTION, THE TRIAL EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR INSURANCE FRAUD Point II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 THE TRIAL COURT IMPROPERLY SUBMITTED THE INSURANCE FRAUD CHARGE TO THE JURY, AND ERRED BY DENYING APPELLANT’S REQUEST TO AMEND THE VERDICT SHEET Point III.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 PROSECUTORIAL MISCONDUCT A. The Prosecution’s Multiple References to a “Bogus”, “Fraud”, “Myth”, or “Fake” Mortgage were Outside the Four Corners of the Evidence. . . . . . . . . . . . . . . . . . . . . . 25 B. The Prosecution’s False or Misleading Statements Do Not Constitute Fair Comment or Reasonable Inference as They Are Not Based on the Facts or Testimony Deduced at Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1. The Prosecution Knew Or Should Have Known, That Their Statements That Appellant “Couldn’t Get The Insurance Without The Mortgage” Were False. . . . . . . 32 -i- 2. The Prosecution Knew, or Should Have Known, That Their Statements and Inferences Regarding a Telephone Call Appellant Made to His Insurance Agent Were False. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 3. The Tiki Torches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 i. Mea Culpa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ii. The Prosecution’s Inferences Regarding The Presence of Tiki Torches Were Misleading and Improper. . . . . . . . . . . . . . . . . . . 41 4. The Prosecution Knew, Or Should Have Known, That Their Statement that “No One Else Had Access To The Premises” Was False. . . . . . . . . . . . . . . . . . . . 44 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 SUPPLEMENTAL APPENDIX (filed separately) People v Chase, 8 Misc3d 1016A; 2005 NY Slip Op 51125U (Wash Cnty Ct), dated May 19, 2005.. . . . . . . . . . . . . . . . . . . . . SA1 Excerpts of Respondent’s Brief, dated February 10, 2012. . . . . . . . . . SA9 Transcript of Police Interview #1 with Appellant (Prosecution Exh #44), dated April 30, 2009. . . . . . . . . . . . . . . SA12 Transcript of Police Interview #2 with Appellant (Prosecution Exh #45), dated May 15, 2009. . . . . . . . . . . . . . . SA57 Excerpts of Mistrial Transcripts Darrin Domonic - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA117 Darrin Domonic - Cross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA118 Yvette Belardo - Direct.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA119 -ii- Baynes - Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA121 Excerpts of Trial Transcripts Baynes - Opening. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA122 Joseph Bisognano - Recross. . . . . . . . . . . . . . . . . . . . . . . . . . SA124 Darrin Domonic - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA126 Darrin Domonic - Cross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA127 Thomas Moore - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA129 Amber Gibson - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA130 Michael Sbuttoni - Cross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA133 Richard DiGiulio - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA138 Richard DiGiulio - Cross. . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA139 Michael Cerone - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA143 Florence Vandeusen - Direct. . . . . . . . . . . . . . . . . . . . . . . . . . SA145 ADA Baynes - Closing Argument. . . . . . . . . . . . . . . . . . . . . . . SA146 Rounds - Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA152 Affirmation of Service by Mail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA153 -iii- TABLE OF CASES AND AUTHORITIES Cases State Authorities People v Abraham, 94 AD3d 1332 (3d Dept 2012). . . . . . . . . . . . . . . . . . 32 People v Alicea, 37 NY2d 601 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 People v Ashwal, 39 NY2d 105 (1976). . . . . . . . . . . . . . . . . . . . . 17, 30, 34 People v Calabria, 94 NY2d 519 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . 49 People v Chase, 299 AD2d 597 (3rd Dept 2002). . . . . . . . . . . . . . . . 17-18 People v Chase, 8 Misc3d 1016A; 2005 NY Slip Op 51125U (Wash Cnty Ct, May 19, 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v Danielson, 9 NY3d 342 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Fisher, 18 NY3d 964 (2012). . . . . . . . . . . . . . . . . . . . . . . . . 17, 30 People v Fitzgerald, 156 NY 253 (1898). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v Michael, 210 AD2d 874 (4th Dept 1994). . . . . . . . . . . . . . . 21-22 People v Norman, 85 NY2d 609 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Pagan, 87 AD3d 1181 (3d Dept 2011). . . . . . . . . . . . . . . . . 22-24 People v Williams, 84 NY2d 925 (1994). . . . . . . . . . . . . . . . . . . . . . 1, 3, 48 Statutes Criminal Procedure Law § 300.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 48 -iv- Penal Law § 176.05 [1]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 NY Rules of Professional Conduct Rule 3.3(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 47 Treatises Black’s Law Dictionary 778 [6th ed 1990]. . . . . . . . . . . . . . . . . . . . 8, 31-32 Black’s Law Dictionary 1014 [6th ed 1990]. . . . . . . . . . . . . . . . . . . . . . . . 11 -v- ARGUMENT POINT I VIEWED IN A LIGHT MOST FAVORABLE TO THE PROSECUTION, THE TRIAL EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR INSURANCE FRAUD At trial, the Prosecution failed to meet the “moral certainty” standard, which required that “[t]he evidence of facts and circumstances must be such as to exclude, to a moral certainty, every hypothesis but that of guilt of the offense imputed” (People v Fitzgerald, 156 NY 253, 258 [1898]). However, the Prosecution is correct that the standard for reviewing the legal sufficiency of trial evidence on appeal is less stringent, requiring the reviewing court to “determine whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People” (People v Williams, 84 NY2d 925, 926 [1994] [emphasis added]). Nevertheless, the Prosecution has not met even this lower standard. Under this standard, the reviewing court is required to “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its PAGE -1- burden of proof” (People v Danielson, 9 NY3d 342, 349 [2007] [emphasis added]). Moreover, when evaluating the legal sufficiency of evidence on appeal, the proper inquiry includes “whether the facts and the inferences that flow there from support a finding for the People on every element of the charged crime” (People v Norman, 85 NY2d 609, 620 [1995] [emphasis added]). The Prosecution failed to meet the legal sufficiency standard with respect to the elements of knowledge, intent to defraud, and concealment required for the commission of a fraudulent insurance act. The Prosecution did not establish that Appellant knew that the fire was caused by arson, and absent this knowledge it is impossible for Appellant to have intended to defraud the insurance agency, or to have concealed the origin of the fire from the insurance agency. Logically, one cannot conceal what one does not know. At trial, the Prosecution’s sole theory on the insurance fraud count was that Appellant knew of the arson because he committed the arson. Appellant was not charged with conspiracy or accessorial liability, and the jury was never instructed on these theories. The jury rejected the Prosecution’s theory that Appellant knew of the arson because he committed the arson, when it acquitted Appellant on the arson charge. PAGE -2- Now, the Prosecution claims that although the evidence failed to prove its sole theory that Appellant knew of the arson because he committed it, the evidence must have been sufficient to establish some theory of knowledge because the jury convicted Appellant of insurance fraud. The Prosecution still has failed to show that Appellant knew of the arson and simply argues that there was legally sufficient evidence because the jury found Appellant guilty. However, the standard for reviewing legal sufficiency on appeal is “whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People” (People v Williams, 84 NY2d 925, 926 [1994]) and not whether a jury found a defendant guilty. Even when viewed in a light most favorable to the Prosecution, the evidence does not establish the element of knowledge. When the Prosecution puts forth only one “theory of knowledge” at trial and its evidence attempts to prove only that theory, a rational person could not conclude that the evidence fails to prove the theory put forth, but somehow proves a completely different theory of guilt. The Prosecution’s new theory, raised for the first time on appeal, was PAGE -3- that Appellant knew of the arson because he was involved in the arson (A771 [emphasis added]; Resp Brf at 20). The Prosecution claims that Appellant’s knowledge was imputed by his involvement, as shown by Appellant’s: undeniable financial motive, his purchase of Tiki torch fuel and Duralogs [sic] shortly before the fire, expert testimony that an ignitable liquid consistent with Tiki torch fuel was found at the origin of the fire, his suspicious and evolving answers to police questioning, and evidence that no one else had access to the premises (Resp Brf at 22). Initially, it must be noted that this last claim is completely false. The Prosecution’s own witnesses provided and corroborated undisputed testimony that at least one and as many as three other people, Darrin Dominic and the Sutliffs, all had a key and, thus, full access to Saratoga Winners. At the Mistrial, the Prosecution called Darrin Dominic, a man who was involved with the renovations of Saratoga Winners when the Sutliffs owned the property (SA117). On cross-examination, Dominic testified that both he and the Sutliffs had keys to Saratoga Winners (SA118). At the Trial, the Prosecution again called Dominic who testified on direct examination that he had a key to Saratoga Winners (SA126). Further, References to Exhibits beginning with A are to the Appellant’s Appendix; RA to1 Respondent’s Appendix; and SA to Appellant’s Reply Appendix. PAGE -4- Investigator Cerone, the lead investigator on this case, also testified on cross-examination at trial that, when he interviewed Dominic, Inv. Cerone was told that Dominic had a key to Saratoga Winners and that the Sutliffs “used to keep a key under the mat, but he wasn’t sure if that was still there” (SA144). Thus, the Prosecution’s statement that “no one else had access to the premises” is false and does not “compel[] the conclusion that [Appellant] knew his building had been destroyed by arson” (Resp Brf at 22). Next, the Prosecution’s argument that Appellant’s “suspicious and evolving answers to police questioning” demonstrates his involvement in the arson is baseless (Resp Brf at 22). Even in a light most favorable to the Prosecution, a review of the Prosecution’s transcripts of their video recordings of Appellant’s two police interviews does not support this claim (see, Transcripts of Police Interview #1 [Prosecution Exh #44], dated April 30, 2009, SA12; Interview #2 [Prosecution Exh #45], dated May 15, 2009, SA57). Nothing in these interviews indicates that Appellant had any knowledge of the fire until the police told him that his building had burned down. Regarding Appellant’s “undeniable financial motive,” the only PAGE -5- evidence that Appellant was experiencing “financial difficulties” was (1) the highly misleading statement that Appellant’s company 1st Call, LLC had only one employee, (2) another highly misleading statement that Parel Road only had $22.90 in its bank account, and (3) a single statement taken out of context that the fire “could be big for us” (Resp Brf at 8-9, 20-21). First, the Prosecution misled the Third Department and this Court by stating that Amber Gibson was “the sole employee of defendant’s company, 1st Call, LLC” (Resp Brf at 9; SA10). This is shocking because the Trial Prosecutor called not one but three (3) of Appellant’s employees as witnesses: Amber Gibson, Thomas Moore, and Florence Vandeusen (SA131-32, SA129-30, SA145). While Amber Gibson testified that she was employed by 1st Call, LLC, there exists no evidence that she was the only employee of 1st Call, LLC (SA131-32). Amber Gibson testified that she worked for both 1st Call Staffing and 1st Call, LLC and that Appellant owned both companies: Q. Ma'am where did you work in the early or the first five months of 2009? A. For First Call Staffing. * * * Q. So who did you work for? A. Akiva Abraham. * * * Q. Was there another First Call? PAGE -6- A. First Call LLC. Q. What kind of company was that? A. That was a short sale business. Q. And who was the president or owner of that company? A. Akiva Abraham. *** Q. Where was your office located? A. In Clifton Park. Q. How many other people worked in the office as opposed to the visiting nurses? A. Just Akiva and I at the office. (Direct Testimony of Amber Gibson, SA131-32). Although Gibson testified that only she and Appellant worked in the 1st Call, LLC office, she was asked “How many other people worked in the office as opposed to the visiting nurses?” (id. at SA132) and not how many people worked for 1st Call, LLC. Another Prosecution witness, Thomas Moore, testified similarly: Q. Before that where were you employed? A. First Call Staffing Network. Q. What is First Call Staffing Network? A. It is a nursing agency. You go to different nursing homes. * * * Q. And who owns or who owned First Call Staffing? A. Dan Abraham. * * * Q. In a typical day how would you get to and from work? A. By boss would pick me up early in the PAGE -7- morning and bring me home in the evening. Q. Who is that? A. Dan Abraham. (Direct Testimony of Thomas Moore, SA129-30). Likewise, Florence Vandeusen also testified for the Prosecution: Q. Do you know Dan Abraham? A. I do. * * * Q. How do you know him? A. He used to be my boss. Q. Where was that? A. First Call Staffing. (Direct Testimony of Florence Vandeusen, SA145). To support their claim that Appellant was having financial difficulties, the Prosecution attempted to infer that because “Amber Gibson was the sole employee of Defendant’s company 1st Call LLC” (Resp Brf at 9), Appellant was in financial difficulties. An inference is “[a] logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts” (Black’s Law Dictionary 778 [6th ed 1990]). Notably, it was never established, at trial or otherwise, that Amber Gibson was the sole employee of 1st Call, LLC. It is illogical and unreasonable to conclude that Appellant was in financial difficulties based on a fact that was PAGE -8- never established. Although Amber Gibson testified that she and Appellant were the only people who worked in the 1st Call, LLC office located in Clifton Park, this does not establish that she was the only employee of 1st Call, LLC (SA132). Viewed in a light most favorable to the Prosecution, this only shows that Amber Gibson and Appellant were the only two people who worked in that particular office. Further, the testimony of the Prosecution’s own witnesses was that Appellant owned at least three (3) companies, 1st Call, LLC, 1st Call Staffing, and Parel Road, and had at least three employees, Amber Gibson, Thomas Moore, and Florence Vandeusen. Viewed in a light most favorable to the Prosecution, the fact that Appellant owned at least three companies, had the ability to pay at least three employees’ salaries plus the visiting nurses (SA132), could not and does not support the inference that Appellant was in financial difficulty. Nor does it supply a financial motive for the arson. Second, evidence of a single bank checking account held by Parel Road, which the Prosecution claims had only $22.90 with which to fund Appellant’s mortgage, does not demonstrate that Appellant was in financial difficulty or knew of the arson. The Prosecution argues that the evidence of PAGE -9- the mortgage and Parel Road was introduced to show Appellant’s financial motive because Parel Road’s NBT Bank checking account had an ending balance of only $22.90 on its statement dated April 30, 2009, the date of the fire (A58). However, the Prosecution failed to look into any other accounts or assets held by Parel Road, and also failed to disclose that over eleven thousand dollars ($11,000) was moving into and out of Parel Road’s NBT Bank checking account in the month immediately before and immediately after the fire (A58-59). At Trial, Ian Townsend, an NBT Bank employee, testified on cross-examination that the bank records offered into evidence by the Prosecution were not a complete accounting of Parel Road’s assets: Q. Just a couple of quick questions. You were asked questions about People's 88 for identification against these records. Whatever is in the records do you agree that this relates solely to Parel Road's bank account with your bank. Correct? A. Yes. Q. You don't know what other assets Parel Road as a corporation, a registered corporation has. Correct? A. Correct. Q. Property. For example, if Parel Road had an interest in other properties it wouldn't be reflected in the account. Correct? A. Correct. (Ian Townsend - Cross, A151; For a full discussion, see App Brf at 43-44). PAGE -10- The fact that appellate review requires that the evidence is to be viewed in a light most favorable to the Prosecution does not permit the Prosecution 1) to draw inferences that are misleading or 2) to ignore evidence that is contrary to or does not support the Prosecution’s case. Of even greater significance is the fact that the Prosecution knew that Appellant’s employees Gibson, Moore, and Vandeusen worked for, and were paid by, Appellant’s company, 1st Call Staffing, and that Appellant also owned 1st Call, LLC (the short sale company where Gibson was also employed) (SA131-32, SA129-30, SA145). Thus, despite knowing that, in addition to Parel Road, Appellant owned at least these two (2) other businesses, the Prosecution either failed to investigate or ignored the bank accounts and other assets of Parel Road as well as Appellant’s Staffing and Short Sale companies and then falsely argued, based on a single checking account, that Appellant was in financial difficulty. Third, the Prosecution cannot infer motive from Appellant’s statement to an employee that the fire “could be big for us” (Resp Brf at 16-17). Motive is defined as “the impulse . . . that induces criminal action” (Black’s Law Dictionary 1014 [6th ed 1990]). Here, this statement was made after, not before, the fire occurred. Viewed in a light most favorable to the PAGE -11- Prosecution, this statement shows that Appellant knew that he could potentially profit financially from the fire, but it does not show that he had knowledge that the fire was caused by arson. Nor can the Prosecution infer knowledge from this statement as no process of logic and reason exists by which the Prosecution can start with a statement after-the-fact that the fire could be a financial benefit and end imputing to the speaker prior knowledge that the fire was arson. The Prosecution also ignored key pieces of evidence regarding the Tiki torch fuel and Duraflame logs. Again, viewing the evidence in a light most favorable to the Prosecution does not mean ignoring the evidence that is not favorable to the Prosecution. According to the Prosecution, Appellant purchased Tiki torch fuel before the fire, and after the fire the police found some empty fuel containers, and concluded that since there were no torches displayed on his property he must have used the fuel in the fire. However, this inference totally ignores the fact that Appellant had a five gallon blue kerosene container on the front porch of his house, which the Police failed to seize, even though it fell clearly into the category of items to be seized from the property (A27 [search warrant stated that the evidence to be seized included “[a]ny and all containers containing Tiki PAGE -12- Torch Fuel or products consistent with lamp oil / torch fuels, paint thinners, dry cleaning solvents, and some brands of charcoal starter fluid”]). At trial, Investigator Sbuttoni testified on direct examination that the things he was searching for included “flammable fluids” (A154). Investigator DiGiulio testified on cross-examination that he told Inv. Sbuttoni and another detective, prior to the search, that they were looking for “flammable liquids” (SA140). Inv. DiGiulio clarified that although “[l]iquid accelerants were not listed in” the search warrant, he did tell his detectives to look for such items: Q Did you tell Sbuttoni and Crudo that anything that they see that might be an accelerant, if you see it note where it is and let me know when I come back? A Sounds about right. Yes. Q That's what you told Sbuttoni and Crudo? A Yeah. (SA141-42). This testimony clearly establishes that the police were searching Appellant’s home for any type of accelerant or flammable liquid and thus there is no explanation for why they did not seize the blue five gallon kerosene container and other items that fall into this category. At trial, Inv. Sbuttoni identified the blue kerosene container on Appellant’s front porch when he was shown photographs of it on cross-examination PAGE -13- (SA133-36). A close up photograph revealed that this container actually said the word kerosene in “big letters on the side” and that it also had “a big sticker on the front that says kerosene on it” (SA136). Even so, Inv. Sbuttoni testified that he did not collect it and that he was not sure if he had pointed it out (SA136). Additionally, Inv. DiGiulio also identified the blue kerosene container but testified that he did not take it into evidence (SA138). Inv. DiGiulio further testified that he did not collect the blue kerosene container from Appellant’s front porch because “[i]t wasn’t of particular importance” (SA139-40). Apparently, the police seized only empty fuel containers and none of the containers that contained Tiki torch or other fuels that qualify as accelerants or flammable liquids. In addition to the blue kerosene container, the police also failed to seize a red gasoline can. At trial, Inv. Sbuttoni, on cross-examination, identified a “big multi-gallon container of gasoline” that was pictured “in the middle of [Appellant’s] driveway” (SA137). Again, as with the blue kerosene container, Inv. Sbuttoni did not collect this gas can (id.). Further, on direct examination Inv. DiGiulio also identified this “red plastic container marked gasoline” and testified that he did not take it into evidence (SA138). On cross-examination, Inv. DiGiulio testified that he did not collect the red PAGE -14- gasoline container, nor did he collect Tiki torch bottles that were found in the garage or any of the “blue ceramic lamps with the wicks in them” (SA139). Appellant should not suffer from the police failure to adequately execute the search warrant and seize the blue five gallon kerosene container or other items that qualify as accelerants or flammable liquids. Indeed, it is clear from Inv. Sbuttoni’s testimony that the police failed to investigate whether anything was inside either the blue kerosene container or the red gas can: Q *** Detective, the red object pictured sitting there in the middle of the driveway is a big multi-gallon container of gasoline. Correct? A It is a gasoline container. I don't know if there is anything in it, but there is a -- Q Thank you for volunteering that. A Anytime. Q I'm sure. Just like the blue container. You don't know what was in it. Correct? A Correct. (SA137). By the time the search warrant was issued, Appellant was already the prime and only suspect. Had the police seized the five gallon kerosene container, the Prosecution’s theory that Appellant used the Tiki torch fuel to commit the arson would have been proved meritless. An almost full blue five gallon kerosene container sitting on Appellant’s front PAGE -15- porch did not fit the Prosecution’s theory that the Tiki torch fuel Appellant purchased at Home Depot was used in the fire, and thus this inconvenient evidence was not seized, nor did the Police determine the contents of the blue five gallon kerosene container (SA137). Further, the Trial and Appellate Prosecutors repeatedly mentioned that Appellant purchased Duraflame logs and that the police seized empty boxes of these logs (SA122-23, SA146-51; A199; SA11, A77-78; Resp Brf at 9, 20-22). The mere mention of the Duraflame logs by the Prosecution is misleading and prejudicial as the Prosecution failed to present any evidence at trial connecting the Duraflame logs with the arson. No evidence was presented that any residual chemical signature from the Duraflame logs was found at the Saratoga Winners property. Simply put, the Prosecution could not, and did not even try to, establish any link between the Duraflame logs and the Saratoga Winners property. Even when viewed in a light most favorable to the Prosecution, given the lack of any evidence connecting the Duraflame logs to the arson site, the mere mention of the Duraflame logs misleads the jury away from the facts that were actually in evidence and prejudices the Appellant by “call[ing] upon the jury to draw conclusions which are not fairly inferable PAGE -16- from the evidence” (People v Fisher, 18 NY3d 964, 966 [2012][quoting Ashwal, 39 NY2d at 110]). Moreover, since the Prosecution failed to provide any evidence connecting the Duraflame logs to the fire, the fact that Appellant purchased the logs does not establish that Appellant knew of the fire. Given the lack of any factual or evidentiary connection between the logs and the fire (chemical or otherwise) there exists no basis in fact from which, using logic and reason, the Prosecution can infer that Appellant knew the fire was caused by arson because he bought the logs. Surprisingly, the Prosecution relies on People v Chase (299 AD2d 597 [3d Dept 2002]) to support their new theory on appeal that Appellant knew of the fire because he was involved in the fire. However, Chase is easily distinguishable. In Chase, the defendant’s conviction for insurance fraud was based on the fact that the jury found the defendant guilty of arson, in that the evidence at trial convinced the jury that Chase set the fire. The Third Department found that even though the defendant’s property loss notice “bore no obviously false information, there [was] other record evidence that defendant obtained payment by concealing what had occurred” (Chase, 299 AD2d at 599). Specifically, the “other record evidence” was that the jury had found the defendant guilty of the arson that PAGE -17- gave rise to the insurance claim. Here, no such “other record evidence” exists that Appellant committed a “fraudulent insurance act” (Penal Law § 176.05[1]). As in Chase, there was “no obviously false information” on Appellant’s property loss notice. However, contrary to Chase, because Appellant was acquitted of the arson, there exists no “other record evidence that [Appellant attempted to or did] obtain[] payment by concealing what had occurred” (Chase, 299 AD2d at 599). It is undisputed that Appellant called his insurance agency shortly after his first interview with the Police on the day of the fire, and an insurance agent subsequently filled out a Property Loss Notice. The Police never informed Appellant that the fire was caused by arson during this initial interview on April 30, 2009 (SA12-56). Thus, when Appellant called his insurance agent to report the fire, he had no knowledge of what caused the fire and he simply relayed the information he received from the Colonie Police — that his building had burned down. Likewise, the Police still had not informed Appellant that the fire was caused by arson prior to his conversation with the insurance adjustor. Accordingly, no evidence exists that Appellant concealed a material fact from the insurance agent because PAGE -18- no evidence exists that Appellant knew of the arson. Nevertheless, the final chapter in People v Chase is most instructive (People v Chase, 2005 NY Slip Op 51125U, attached at SA1). In 2005, Chase filed a CPL 440.10 motion on numerous grounds including new evidence ( id.). Specifically, that since the trial, the scientific understanding of how propane behaved had changed, completely discrediting the prosecution’s trial theory that defendant caused the fire by tampering with a propane tank (id.). The 440 court determined that the new evidence would have resulted in a different verdict. Accordingly, the 440 court vacated not only the arson conviction, but the insurance fraud conviction as well (id.). Based on the facts in Chase, without the arson conviction, the insurance fraud conviction could not stand (id.). Here, no evidence exists that Appellant caused the arson, but for the Prosecution’s unsupported claim that he was somehow involved in it. Accordingly, and in accordance with the 440 court in Chase, this Court should vacate Appellant’s conviction and sentence for second degree insurance fraud and dismiss the charges or order a new trial. PAGE -19- Point II THE TRIAL COURT IMPROPERLY SUBMITTED THE INSURANCE FRAUD CHARGE TO THE JURY, AND ERRED BY DENYING APPELLANT’S REQUEST TO AMEND THE VERDICT SHEET Despite the Prosecution’s claim that this issue was not raised in the Third Department (Resp Brf at 24), the issue was raised and fully argued in Appellant’s Third Department Brief and Reply (see, A70-71; A90-91). In order to be convicted of insurance fraud, the Prosecution must present some evidence that Appellant knew that his building was damaged by arson. Here, no such evidence exists because, under the Prosecution’s trial theory, Appellant knew of the arson because he committed it. Thus, if the jury acquitted Appellant of the arson charge, there existed no evidence of knowledge and thus the insurance fraud charge should not have gone to the jury. To be clear, nothing in the indictment suggests a non-arson theory of insurance fraud. Under the plain language of the indictment, the sole way Appellant was charged with having knowledge of the arson was based on the allegation that he committed it. Had the Prosecution wished to show an alternate theory of Appellant’s knowledge of the arson, Appellant undoubtedly would have been charged with accessorial liability or PAGE -20- conspiracy. The Prosecution’s case theory was explicit: Appellant committed arson to collect insurance proceeds (A117). Accordingly, under the Prosecution’s theory of the case, once a verdict of not guilty was returned on the arson charge, no insurance fraud could have occurred. Construing the plain meaning of the language within the four corners of the indictment, if there was no arson, there was no insurance fraud. The Prosecution correctly identifies the difference between the first and second counts of Appellant’s indictment – count one alleged Appellant’s commission of the arson and count two alleged Appellant’s knowledge of the arson. However, as discussed in Point I, supra, the Prosecution failed to present legally sufficient evidence, or any evidence, that Appellant knew that the cause of the fire was arson. The Prosecution’s argument, that Appellant knew of the arson because he was involved in it, is total conjecture, wrapped in conclusory statements. Appellant does not claim that it is impossible for a person to be acquitted of arson and convicted of insurance fraud, but rather that it was not possible based on the facts in this specific case. In People v Michael, the Fourth Department upheld the defendant’s conviction for insurance fraud even though she was acquitted of the arson because “[t]he proof at PAGE -21- trial was overwhelming that defendant was fully aware that the fire was intentionally set to collect on the insurance policy” (People v Michael, 210 AD2d 874, 874 [4th Dept 1994]). Here, as discussed above and in Appellant’s brief, no evidence exists that Appellant knew that the fire at his property was intentionally set (App Brief, at 14-25). At trial, the Prosecution relied on its sole theory that Appellant knew of the arson because he committed it. No proof was offered to show an alternative basis from which the Prosecution might be able to infer that Appellant knew of the arson, as none existed. As discussed in Point I, supra, the evidence that Appellant knew of the arson was legally insufficient. Likewise, in People v Pagan, the Third Department upheld the defendant’s conviction of insurance fraud even though she was acquitted of the arson (People v Pagan, 87 AD3d 1181 [3d Dept 2011]). In Pagan, evidence against the defendant consisted of the testimony of her accomplice, Hart, which “was sufficiently corroborated by other evidence that ‘tend[ed] to connect . . . defendant with the commission of’ the charged crimes” (id. at 1182 [citations omitted]). Regarding the corroborating evidence, the People presented evidence that defendant purchased a renters insurance policy despite her PAGE -22- precarious financial situation and, notably, increased her coverage shortly before the fire. Moreover, defendant admitted to her stepmother that she had not told investigators "what really happened," then instructed her stepmother to forget those comments. Defendant also sought to be reimbursed for possessions that were incongruous with her limited resources or belonged to other people but had been inexplicably placed in her apartment, which was consistent with Hart's testimony that extraneous items were placed in the apartments in order to inflate the insurance claims. The foregoing provides the requisite "slim corroborative linkage to otherwise independently probative evidence from" Hart, thereby satisfying the corroboration requirement (id. [citations omitted]). Further, the defendant in Pagan was convicted of conspiracy and reckless endangerment as well (id. at 1181). Here, no evidence existed that Appellant had procured someone to start the fire. Appellant was not charged with accomplice liability or conspiracy, and he was acquitted of reckless endangerment. Had Appellant been involved in the arson like the defendant in Pagan, the jury would have likely found him guilty of at least reckless endangerment. Additionally, in Pagan, the plethora of evidence used solely to corroborate the accomplice testimony and uphold an insurance fraud conviction was far greater than the lack of evidence that Appellant knew of the arson. Here, there was no “independently probative evidence” that PAGE -23- Appellant knew the fire was caused by arson and thus his insurance fraud conviction cannot stand (Pagan, 87 AD3d at 1181). Finally, the Prosecution argues that Appellant failed to point to any language in CPL §300.40 that supports the claim that the Trial Court “had the authority and discretion . . . to instruct the jury to stop deliberations if the jury acquitted [Appellant] of the arson” (Resp Brf at 26). Appellant clearly states in his brief that under the statute “[t]he court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal” (CPL § 300.40 [emphasis added]; App. Brief at 27). As discussed in Point I, supra, it is and has always been Appellant’s position that the evidence of insurance fraud was legally insufficient. Thus, under CPL §300.40, the trial judge had the authority not to submit the insurance fraud charge to the jury due to the lack of legally sufficient evidence and erred by submitting this count. Accordingly, Appellant’s conviction should be reversed and the charges dismissed or a new trial ordered. PAGE -24- POINT III PROSECUTORIAL MISCONDUCT A. The Prosecution’s Multiple References to a “Bogus”,“Fraud”, “Myth”, or “Fake” Mortgage were Outside the Four Corners of the Evidence Contrary to the Prosecution’s argument, Trial Counsel’s objection “to the prosecutor’s mischaracterization of the mortgage as being bogus and a fraud” was not “unexplained” (Resp Brf, at 28). In fact, Trial Counsel did “seek to elaborate on his objection at the conclusion of summations” (Resp Brf at 28). On the issue of preservation, a reading of the Trial transcript where Trial Counsel renewed his request to amend the verdict sheet highlights Trial Counsel’s objection to the Trial Prosecutor’s comments on the mortgage in closing argument: MR. ROUNDS: *** The way that the general instruction reads right now, particularly when the overwhelming majority of Mr. Baynes's closing argument as well as the overwhelming majority of three hours of tapes concerns the mortgage. The mortgage over the defendant's objection, repeated objection was referred to by the prosecution as bogus. As bogus. As bogus. This was an insurance policy that was obtained on a bogus mortgage, which leaves the jury with the possibility in their minds, as the Court has instructed them, that they could find the defendant not guilty of arson but find him guilty of insurance fraud based on, again, repeated argument and interview with the police PAGE -25- over what has been over defendant's objection referred to as the bogus mortgage. That, of course, is a fatal variance from the prosecution's theory of the case as charged and indicted and as my client was put on notice for in the indictment. I think that one way to help alleviate that issue is to grant the defendant's request. Thank you, Judge. THE COURT: The Court denies the defendant's application. MR. ROUNDS: I appreciate the opportunity to state it on the record. Thank you. (A214-17 [emphasis added]). Further, the fact that the Trial Prosecutor referred to the mortgage as “bogus” and a “fiction” in opening argument does not “contradict” Appellant’s claim that because the Trial Prosecutor did not argue that the mortgage was bogus or a fraud until closing argument, Trial Counsel had no opportunity to rehabilitate Appellant (Resp Brf at 29). As discussed in Appellant’s Brief, the content of an opening argument is not evidence, but rather “is supposed to give the jury a road map of the trial and a picture of what the evidence is expected to show” (App Brief at 40). The Trial Prosecutor’s mere mention of a mortgage that was “bogus” or a “fiction” in his opening argument was not followed by any evidence or proof during the trial that the mortgage was in fact “bogus” or a “fiction.” The Trial Prosecutor failed to produce any evidence to support this claim, as none PAGE -26- existed. Because no evidence was offered to show that the mortgage was bogus, Trial Counsel had no reason to produce evidence to show that it was not bogus. Trial Counsel would have no reason to defend Appellant against a claim that was mentioned in the Trial Prosecutor’s opening argument but was not proved by even a scintilla of evidence, and was seemingly abandoned until the Trial Prosecutor’s closing argument. Appellant’s argument that Trial Counsel “had no reason to believe that he would have to address the status of the mortgage” prior to the Trial Prosecutor’s closing argument is far from disingenuous, as now claimed by the Prosecution (Resp Brf at 29-30 [quoting App Brief at 44]). The fact that the Prosecution presented a similar closing argument in the Mistrial is not controlling on this issue. In the Mistrial, as well as in the Trial, the Prosecution never offered a scintilla of evidence that the mortgage was fraudulent. Under the Prosecution’s assertion, Trial Counsel should have offered evidence to show that the mortgage was not fraudulent because the Mistrial suggested that the Trial Prosecutor might present this baseless claim in his closing argument. However, this is not how a trial is conducted. In a criminal trial, the prosecution presents its case in chief and attempts to prove, beyond a reasonable doubt, that the defendant is guilty PAGE -27- of a crime. After the prosecution rests, it is then the defense counsel’s turn to defend against any evidence of guilt offered in the prosecution’s case in chief. After the defense rests, closing arguments are conducted first by the defense counsel and then by the prosecution. Here, where no evidence of a fraudulent mortgage was offered in the Prosecution’s case-in-chief, it seems rather strange to expect that Trial Counsel would offer evidence that Appellant did not obtain a fraudulent mortgage. A defense attorney is simply not charged with the obligation to defend against a claim that was neither proved nor supported by any evidence, but that might be argued by a desperate prosecutor in his closing argument. Further, the Trial Prosecutor’s closing argument in the Mistrial was not nearly as severe as his closing argument in Trial. In the Mistrial, the Trial Prosecutor referred to the mortgage as a “farce” once (RA2), a “myth” four (4) times (RA2), “mythical” twice (RA2, SA121), and stated “you’ve got 475,000 fake dollars burning a hole in your fake pocket” (RA3-4). Of these eight (8) references, all but two occur on the same page (RA2). In contrast, in the Trial, the Trial Prosecutor referred to the mortgage as “bogus” four (4) times (A182-83, A186, A198), a “fraud’ four (4) times (A182, A190, A197), a “myth” three (3) times (A190, A193, A196), and “fake” once PAGE -28- (A194). These twelve (12) references are littered throughout the Trial Prosecutor’s closing argument, appearing on nine different pages. Thus, the Trial Prosecutor’s closing argument at Trial was clearly different and focused much more on the validity of the mortgage than his closing argument in the Mistrial. As fully discussed in Appellant’s Brief (App Brief at 42-44), evidence of a single checking account of Parel Road does not support an inference that Appellant “created a fraudulent mortgage of $475,000 so he could use the value of the mortgage to help him purchase insurance on the property” (Resp Brf at 30-31). The Prosecution’s new claim to this Court that Appellant “use[d] the value of the mortgage to help him purchase insurance on the property” (Resp Brf, at 31[emphasis added]) is misleading because it is undisputed that a mortgage is not needed to obtain insurance (A110-11). The Prosecution claims that “the facts surrounding [Appellant’s] sham mortgage were in evidence and the People were free to comment on same and suggest inferences to the jury” (Resp Brf at 27). Appellant does not dispute that the Prosecution is entitled to fair comment on the facts in evidence and to suggest reasonable inferences to the jury. However, no PAGE -29- evidence was ever offered to show that the mortgage was a “sham.” Accordingly, the Trial Prosecutor’s references to the mortgage as bogus or a fraud in closing argument were outside the four corners of the evidence. This Court has instructed that “[a]bove all [a prosecutor] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant" (People v Fisher, 18 NY3d 964, 966 [citing People v Ashwal, 39 NY2d 105, 110 [1976] [citations and internal quotation marks omitted]). Here, the validity of the mortgage was not an issue because Appellant was not charged with mortgage fraud. The Prosecution’s statements that the mortgage was a fraud or bogus were “irrelevant and inflammatory conclusions” and led the jury away from the real issue of this case – whether Appellant committed a fraudulent insurance act, or, more specifically, whether Appellant had knowledge of the arson (id.). Regardless of the fact that the issue of the mortgage was outside the four corners of the evidence, and that the Trial Prosecutor presented no evidence that the mortgage was bogus, the Trial Prosecutor engaged in misconduct by making the mortgage the “center piece” of his closing PAGE -30- argument, as pointed out by Trial Counsel: [w]hat we did have in argument over defense counsel's repeated objection was repeated reference to the bogus mortgage and that the insurance policy was based on the bogus mortgage. In fact, Mr. Baynes called it in his closing argument the center piece of the case (SA152 [emphasis added]; See also, Prosecutor’s Closing Argument at A195 [“The mortgage, the insurance is based on that is the center piece of this arson for profit”). The Trial Prosecutor’s statement in closing argument that the mortgage was the “centerpiece” of the arson is nothing but an improper attempt to “lead the jury away from the issues” in Appellant’s case. B. The Prosecution’s False or Misleading Statements Do Not Constitute Fair Comment or Reasonable Inference as They Are Not Based on the Facts or Testimony Deduced at Trial. The Prosecution argues that “the prosecutor's statements during summation constituted fair comment on the evidence and merely suggested a reasonable inference which the prosecutor was requesting the jury to make” (Resp Brf at 34). A reasonable inference results from a “process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted” (Black’s Law Dictionary 778 [6th PAGE -31- ed. 1990]). Put another way, an inference is a “logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts” (id.). Similarly, to constitute “fair comment,” the statements in a prosecutor’s closing argument must have some basis the in the facts presented to the jury. Thus, while the prosecution is entitled to make reasonable inferences from the trial evidence and testimony, such inferences must be both reasonable and have some basis in fact, and cannot be based on the prosecution’s misstatements of the trial testimony or mere leaps of faith. 1. The Prosecution Knew Or Should Have Known, That Their Statements That Appellant “Couldn’t Get The Insurance Without The Mortgage” Were False. First and foremost, it must be pointed out that the Third Department’s finding of fact, regarding the connection between the mortgage and the insurance, is vastly different than the Prosecution’s repeatedly false statements on the subject. The Third Department found that “the value of [Appellant’s insurance policy] was based upon a $475,000 mortgage granted to . . . Parel Road, LLC” (People v Abraham, 94 AD3d 1332, 1333 [3d Dept 2012][emphasis added]). Appellant does not dispute that PAGE -32- Appellant’s insurance agency agreed to use the amount of $475,000 to value the insurance policy until the property could be inspected. However, it was never the Prosecution’s position at the Mistrial, the Trial, or to the Third Department that the value of the insurance policy was based on the amount of the mortgage. Instead, the Prosecution repeatedly and falsely stated, in a variety of ways, that Appellant had used a bogus mortgage to obtain insurance (A78-80, A96, A98-99, A117, A177, A179, A182, A188). As fully discussed in Appellant’s Brief (App Brf, at 49-52), the Trial Prosecutor made numerous false statements regarding the mortgage and the insurance. In his opening statement, the Trial Prosecutor claimed that Appellant “got that insurance based on a bogus mortgage” (A117). In his closing argument, the Trial Prosecutor alleged that “a subfact” of the fact that Appellant had insurance on the property was “[t]hat the reason he has the insurance, the basis of that insurance is a mortgage” (A177; see also A179 [“mortgage is the basis for his insurance”]).The Trial Prosecutor made similar false statements at other points in his closing argument as well (A182 [“the insurance policy come[s] from . . . [t]he mortgage”, and [“purpose of that fraud of that $475,000.000 [mortgage] is to be able to get . . . insurance”]). Of even greater significance was the Trial Prosecutor’s PAGE -33- claim that Appellant “couldn’t get the insurance without the mortgage” (A188). Having known from the Mistrial testimony of their own witness, Charles Shank, that all that was needed to obtain insurance was an insurable interest (i.e., a deed to a property) (A110-11), the Trial Prosecutor violated Rule 3.3(a)(1) by falsely stating that, inter alia, Appellant “couldn’t get the insurance without the mortgage” (A188). Additionally, the Trial Prosecutor’s statement that the mortgage was bogus, fake, a myth, or a fraud in the above statements and throughout his entire closing argument is improper argument and an attempt to entice the jury to convict Appellant of an uncharged crime – mortgage fraud (A182-83, A186, A190, A193-94, A196-98). This conduct was an improper attempt “to convey to the jury, by insinuation, suggestion or speculation, the impression that [Appellant was] guilty of other crimes not in issue at the trial” (Ashwal, 39 NY2d at 110). Further, Appellant’s brief also fully discussed false statements made by the Appellate Prosecutor regarding the mortgage and the insurance (App Brief at 52-55). First, the Appellate Prosecutor made false statements in his brief to the Third Department by claiming the following: (1) “[u]sing the mortgage, defendant purchased insurance on the building for the PAGE -34- amount of the loan” (A78); (2) “[t]his fake mortgage enabled defendant to obtain insurance;” (3) “he obtained insurance via a fraudulent mortgage;” (A79); and (4) “defendant created a fraudulent mortgage . . . so he could purchase insurance on the property”(A80). Additionally, the Appellate Prosecutor continued to make similar false statements to this Court in a letter dated June 15, 2012 where he again claimed that (1) “[t]his fake mortgage enabled defendant to obtain insurance,” (2) “[u]sing the mortgage, defendant purchased insurance on the building for the amount of the loan,” and (3) “defendant created a fraudulent mortgage . . . so he could purchase insurance on the property in that amount” (A96, A98-99). Until now, the Prosecution has never before argued that: “[t]he People did not contend that [Appellant] did not have an insurable interest in the property or that he could not have gotten any insurance on the property without the mortgage [or that] [t]he evidence shows that [Appellant] used the value of the mortgage to obtain an insurance policy in the amount of $475,000” (Resp Brf at 32 [emphasis in the original]). However, nothing in the statements made by either the Trial Prosecutor or the Appellate Prosecutor even insinuates that they were stating, as they now claim, that it was the value of the insurance that was based on the mortgage. Rather, the plain PAGE -35- meaning of the Prosecution’s statements was that Appellant had used a “bogus” mortgage to obtain insurance, and this statement is false. Based on the testimony of Prosecution witness Charles Shank, President of Shank and Falvey Insurance (A110-11 [an “insurable interest” such as a deed is the only requirement to insuring real property]), the Prosecution knew or should have known, as early as the Mistrial, that their statements that Appellant “couldn’t get the insurance without the mortgage” were false (Prosecution’s Closing Argument, A188). Furthermore, Appellant’s Third Department Brief and Reply Brief put the Prosecution on notice that these statements were false (A74, A86, A89, A91-94). The Prosecution’s current attempt to twist their prior statements and claim that they “did not contend that the defendant did not have an insurable interest or that he could not have gotten any insurance on the property without the mortgage” is specious (Resp Brf at 32). The Prosecution’s statements are clear and unambiguous, and conveyed the undeniably false message to the jury and the Appellate Court that Appellant “couldn’t get the insurance without the mortgage” (Prosecution’s Closing Argument, A188). PAGE -36- 2. The Prosecution Engaged in Misconduct by Making False Statements and Inferences Regarding a Telephone Call Appellant Made to His Insurance Agent During the Mistrial, the Trial Prosecutor elicited specific testimony as to the exact nature of the telephone call Appellant made to his insurance agent on April 29, 2009, the day he received his printed insurance policy in the mail and the day before the fire. Thus, by the time of the Trial, the Trial Prosecutor knew the very limited content of that phone call: Q Now, let me take you to Wednesday, April 29th. What happened that day? A He called, Mr. Abraham called saying that he received the policy and he had a few questions about the co-insurance on the policy. He wanted to know what that was. Q What is co-insurance? A Co-insurance, it's actually a penalty. If your building or home is not insured to value, depending on -- if it's not within the 80 percent co-insurance, then there will be a penalty if there's a loss on the property and that penalty is determined at the time of the loss. Q So tell us, then, tell the jury your conversation with Mr. Abraham with regard to that query. A He called, he asked what co-insurance was. I explained it and that was the end of the conversation (Yvette Belardo - Direct, SA119-20 [emphasis added]). Similarly, during the trial, the entire testimony about this conversation consisted of only the PAGE -37- following two questions and two answers: Q Let me take you to Wednesday April 29th. Could you tell the jury about any interactions you had with Mr. Abraham on that day? A Mr. Abraham called to say that he received his policy that I mailed to him and that he had a few questions, and asked what co-insurance was. Q What did you say? A That co-insurance is pretty much if the building is not insured or any property is not insured to a hundred percent value there could be a penalty. (Yvette Belardo - Direct Testimony, at A133). Thus, the actual testimony of Prosecution witness Belardo was that the Appellant called her, asked what co-insurance was, and that she “explained it and that was the end of the conversation” (SA119-20, A133). Based solely on the above testimony, the Trial Prosecutor told the jury in summation that: He calls the insurance company. The day before the fire. He calls them up. Just checking. Still got that insurance. Right? That's what he does on the 29 . * * * On the 29th he called the insuranceth company and he checks on his policy. He wanted to see how much money he would get in the case of recovery. (Trial Prosecutor’s Summation, A192). Belardo’s testimony was limited and specific. Nevertheless, the Prosecution argues that the above closing argument is either a reasonable inference or fair comment. It is neither. PAGE -38- Here, the Mistrial and Trial Prosecutor were the same. Thus, he knew of Belardo’s Mistrial testimony that Appellant “called, he asked what co-insurance was. I explained it and that was the end of the conversation.” (Yvette Belardo - Direct, SA119-20 [emphasis added]). At trial, the Prosecutor chose to ask Belardo only two questions about Appellant’s phone call (A133, see supra, p38) Based on Belardo’s testimony, as well as the Prosecutor’s knowledge of her Mistrial testimony, the Prosecution’s statements that Appellant called to make sure the policy was still active and to see how much he could collect were blatantly false. In addition, these statements were not reasonable inferences as no “process of logic and reason” could lead a trier of fact to such a conclusion without speculation about facts not in evidence. Similarly, the Prosecution’s statements do not constitute fair comment as they were far outside the four corners of Belardo’s testimony. 3. The Tiki Torches I. Mea Culpa Initially, Assigned Counsel apologizes for three proof reading errors in Appellant’s Brief dated January 11, 2013. Assigned Counsel incorrectly stated that the “fire occurred the weekend before Memorial Day” instead of PAGE -39- the “month” before Memorial Day. However, this error does not in any way alter Appellant’s argument that the Prosecution tried to mislead the jury into believing that Appellant did not have any legitimate use for the Tiki torch fuel (Resp Brf 37). The Tiki torches stored in Appellant’s gazebo, along with the kerosene lantern/candles on his property, belie this argument (A60-62). Assigned Counsel also apologizes for characterizing the Prosecution’s statements about the Tiki torches as “false” in the caption on page 58 and in a sentence on page 60 of Appellant’s Brief. While the Prosecution’s statements were misleading, they were not technically false. Other than these two statements, Appellant properly argued that the Prosecution’s references indicating the absence of Tiki torches were misleading, and that is the argument that was intended. The crux of Appellant’s argument is that the Prosecution’s statements regarding the Tiki torches were a “blatant misrepresentation of the facts,” and this is what the evidence shows (Cotton, AD2d 638). ii. The Prosecution’s Misleading Inferences Regarding the Presence of Tiki Torches Was Misleading and Improper The Prosecution argues that “Inv. Bisognano did not testify that PAGE -40- Defendant’s Exhibit N ‘fairly and accurately depict[ed]’ the Saratoga Winners Property on April 30, 2009", and that the photo marked for identification as Defendant’s Exhibit N was not admitted into evidence. Although the picture is not in evidence, Inv. Bisognano viewed the photo and then testified: Q Does it fairly and accurately depict it. Yes, or no? A I didn't take this photograph. Q I understand you didn't take the photograph, but you told the jury that that appears to be the same tiki torches that you saw laying behind Saratoga Winners on the morning of April 30th. A I think I told you I didn't realize that there were any tiki torches there. Q Does the photograph appear to show the melted television? A Yes. Q Does it appear to show the crutches? A Yes. Q Does it appear to show the same tiki torches that you saw on that morning? You have to answer yes or no. A Yes. (Re-Cross Examination of Bisognano, SA124-125 [emphasis added]). Thus, Inv. Bisognano admitted that the photo “appeared to show the same tiki torches that [he] saw on that morning,” and more importantly that he, in fact, saw Tiki torches on the Saratoga Winner site on that morning (id.). The fact that this Prosecution witness later stated, on re-direct, that he did PAGE -41- not remember seeing any Tiki torches (A129) either 1) indicates that the photo refreshed his recollection or 2) brings the witness’s credibility into question. Next, the Prosecution complains that Appellant’s statement that “[w]hether the Tiki torches were ‘deployed’ (A156) or ‘displayed’ (A77, A98) or not, is a distinction without a difference” (App Brief at 63), is “baseless” and was made in a “flippant and inaccurate fashion” (Resp Brf at 38). This observation was based on the fact that the Prosecution’s statements regarding the Tiki torches were misleading to the jury, the Third Department, and to this Court. The Prosecution stated that the Tiki torches were not displayed or deployed and yet omitted the fact that there were Tiki torches found at Saratoga Winners and at Appellant’s home (SA124-25, A60). Appellant’s argument is, and has always been, that the way the Prosecution discussed the presence of Tiki torches was misleading and not an accurate account of the facts in evidence, i.e., that Tiki torches were found at Saratoga Winners and in the gazebo at Appellant’s home (id.). The Prosecution’s claim that this argument is “baseless” and was made in a “flippant and inaccurate fashion” (Resp Brf at 38) is truly frustrating considering the prosecutorial misconduct that is present in this PAGE -42- case. If there exists anything in this case that has “contributed to an overall loss of civility and dignity in the practice of law and . . . should not be tolerated” (Resp Brf at 39), it is the pattern of misconduct the Prosecution has engaged in throughout Appellant’s trial and appeals. Finally, the Prosecution complains that Appellant raised the issue of the Appellate Prosecutor making a false statement to this Court when he stated that the Tiki torches at Appellant’s home were found in boxes. However, Prosecution witness Inv. DiGuilio testified that Tiki torches were inside the gazebo next to the pool, and Prosecution photographs (Defendant’s Exhibits Y and Z, at A60) show the Tiki torches scattered about the gazebo. First, the issue was raised here to alert the Court not of a fact de hors the Trial Record, but of a statement made in the course of the proceedings before this Court. Second, the false statement to this Court is relevant for the Court's consideration of sanction, should it find misconduct, and to show that the misconduct was not an isolated inadvertent incident involving a single assistant, but arguably part of the pattern of misconduct by the office in this case. PAGE -43- 4. The Prosecution Knew Or Should Have Known, That Their Statement that “No One Else Had Access To The Premises” Was False In an attempt to impute knowledge of the arson to Appellant, the Prosecution claimed that “no one else had access to the premises” (A78, Resp Brf at 22). Although this statement has been addressed and discussed earlier in the context of the legal sufficiency of the evidence (see Point I, supra), it must also be discussed in the context of false statements. The undisputed trial evidence clearly establishes Appellant was not the only person with access to the Saratoga Winners property. Indeed, at least as early as the mistrial the Prosecution knew, or should have known, that others had access to Saratoga Winners. Darrin Dominic, a prosecution witness, testified on cross-examination: Q *** By the way, you had a key to Saratoga Winners; correct? A Yes, I did. Q And the Sutliffs also had a key; correct? A Yes. (SA118). At trial, Dominic similarly testified on direct: Q. So what were you being paid when you were paid on this sort of caretaker role at Saratoga Winners? A. It was probably about $50.00 every two weeks maybe. Depending on how many times I stopped. PAGE -44- Q. What would you do when you stopped? A. Drive around the building. Just check on the windows. Then I would go inside and just check inside. Q. Did you have a key? A. Yes. I did. (SA126). Further, Dominic testified on cross-examination that other people, besides himself and the Sutliffs, were gaining access to Saratoga Winners by removing plywood from a window: Q. Mr. Baynes also asked you on direct examination about during the period between the stop work order and when demolition or renovations, whatever you want to call them, had stopped and April 30th of 2009 the day of the fire. Remember him asking you about that? A. Yes. Q. And he asked you what was going on with regard to your duties or activities at Saratoga Winners. You said nothing really. Just going around checking on things. Right? A. Yes. Q. Making sure the stuff was still boarded up? A. Yes. Q. Sir, during that time period people were going in and out of Saratoga Winners all the time. Correct? A. Yes. Q. You could tell that they were going in and out of Saratoga Winners all the time. Correct? A. Yes. Q. You were visiting that place at least on a weekly basis. Correct? A. Yes. Q. If not more? PAGE -45- A. Yes. Q. And every time you would go in you would find another piece of plywood knocked out. Right? A. Yup. Q. You would have to nail up another one. Correct? A. Correct. Q. People were coming in through plywood that was over windows. Correct? A. Yes. Q. Windows around the building. Correct? A. Yeah. It was basically all the same window. Q. Which window was it by the way? A. Northwest. Or northeast. Sorry. Northeast corner. Q. But there were other areas that you had to board up too. Correct? A. Not as often as that northeast corner (SA127-128). Thus, contrary to the Prosecution’s assertion that “no one else had access to the premises” (A78, Resp Brf at 22), Dominic testified that he had a key and complete access to the premises (SA118, SA126), that the Sutliffs had a key (SA118), and that “[p]eople were coming in through plywood that was over windows” (SA128). Further, Investigator Cerone’s testimony also confirms that Appellant was not the only one with access to Saratoga Winners. Inv. Cerone testified that Appellant thought he had the only key, and that Cerone interviewed Dominic who told him that he had a key and that the Sutliffs used to keep a key under the mat, but he wasn't sure if that was still there: PAGE -46- Q. Now do you recall when you were interviewing my client my client indicated that as far as he knew he had the only key to Saratoga Winners? A. Yes. Q. Now it actually turned out, did it not, Darrin Dominic had a key. Correct? A. Yes. * * * Q. You interviewed Darrin Dominic in this case? A. Yes. Q. He indicated not only that he had a key but also the Sutliffs had a key? A. I don't believe he indicated to us. I knew he had a key and said they used to keep a key under the mat, but he wasn't sure if that was still there. (SA143-44). Thus, the undisputed testimony clearly establishes that Appellant was not the only person with access to Saratoga Winners as the Prosecution now claims (Resp Brf 22). More importantly, the undisputed testimony also proves that the Prosecution made yet another false statement to this Court, in violation of Rule 3.3(a)(1). CONCLUSION The evidence offered against Appellant at trial was not legally sufficient to uphold Appellant’s insurance conviction. Even when viewed in a light most favorable to the Prosecution, no “valid line of reasoning and permissible inferences could lead a rational person to the conclusion” that PAGE -47- Appellant had knowledge of the arson based on the trial evidence (People v Williams, 84 NY2d 925, 926 [1994]). Because no inferences based on fact demonstrated Appellant’s knowledge of the arson, the Prosecution failed to prove that Appellant committed a fraudulent insurance act. Under CPL §300.40, “[t]he court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal” (CPL § 300.40, emphasis added). Given the trial evidence that Appellant committed a fraudulent insurance act was legally insufficient, the Trial Court improperly submitted the insurance fraud charge to the jury under CPL §300.40 and erred by denying Appellant’s request to amend the jury verdict sheet to direct the jurors to stop deliberations should they acquit Appellant of the arson. Further, the numerous references to facts not in evidence in the Trial Prosecutor’s closing argument and the multiple false and/or misleading statements made by the Prosecution demonstrated a pattern of prosecutorial misconduct that has infected Appellant’s Mistrial, Trial, and continues to infect the appeals process. PAGE -48- While each instance of prosecutorial misconduct, standing alone, might not necessarily justify reversal, here the cumulative effect of such conduct substantially prejudiced Appellant’s rights. Evenhanded justice and respect for the fundamentals of a fair trial mandate the presentation of legal evidence unimpaired by intemperate conduct aimed at sidetracking the jury from its ultimate responsibility--determining facts relevant to guilt or innocence (People v Calabria, 94 NY2d 519, 523 [2000], citing People v Alicea, 37 NY2d 601, 605 [1975]). Accordingly, Appellant’s conviction for insurance fraud should be vacated and the charges dismissed or a new trial ordered. Dated: April 25, 2013 Respectfully Submitted, JONATHAN S. FISHBEIN, ESQ. ASSIGNED COUNSEL FOR APPELLANT 35 FAIRWAY AVENUE DELMAR, NY, 12054 518-439-1480 PAGE -49-