The People, Respondent,v.William Rodriguez, Appellant.BriefN.Y.June 5, 2018To be argued by ANITA ABOAGYE-AGYEMAN NEW YORK SUPREME COURT APPELLATE DIVISION — FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILLIAM RODRIGUEZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. Attorney for Defendant-Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5th Floor New York, N.Y. 10038 (212) 577-3517 aaboagye-agyeman@legal-aid.org ANITA ABOAGYE-AGYEMAN Of Counsel January 2017 TABLE OF CONTENTS iiTABLE OF AUTHORITIES ARGUMENT POINT I THIS COURT SHOULD ADDRESS APPELLANT WILLIAM RODRIGUEZ’S CONFRONTATION CLAUSE CLAIMS IN THE INTEREST OF JUSTICE (REPLYING TO POINT II OF RESPONDENT’S BRIEF, PP. 17-22) 1 POINT II APPELLANT WILLIAM RODRIGUEZ’S SENTENCE SHOULD BE REDUCED TO THE MINIMUM TERM OF 16 YEARS TO LIFE IN THE INTEREST OF JUSTICE (REPLYING TO POINT III OF RESPONDENT’S BRIEF, PP. 23-25) 4 .5CONCLUSION 1APRINTING SPECIFICATIONS STATEMENT i TABLE OF AUTHORITIES Cases Henry v. Scully. 918 F.Supp. 693 (S.D.N.Y. 1995) affd. 78 F.3d 51 (2nd Cir. 1996) .3 People v. John. 27 N.Y.3d 294 (2016). .2 People v. Kyser. 26 A.D.3d 839 (4th Dep’t 2006) 1 People v. Woods. 9 A.D.3d 293 (1st Dep’t 2004) 1 Statute C.P.L. §470.15(6)(a) 1 ii PRELIMINARY STATEMENT This reply brief is for the case on appeal under indictment number 9/2013.1 It is being submitted specifically to address the arguments respondent made in Points II and III of their brief. ARGUMENT THIS COURT SHOULD ADDRESS APPELLANT WILLIAM RODRIGUEZ’S CONFRONTATION CLAUSE CLAIMS IN THE INTEREST OF JUSTICE (REPLYING TO POINT II OF RESPONDENT’S BRIEF, PP. 17-22). While the People are correct that appellant did not raise this claim at trial, (Resp. Br. at 17-18), this Court is not precluded from considering it in the interest of justice. See C.P.L. § 470.15(6)(a). And the Court has previously exercised its interest of justice review power to address Confrontation Clause claims. In People v. Woods, 9 A.D.3d 293 (1st Dep’t 2004), the Court unanimously reversed a conviction that was based in part on the admission of a plea allocution by a non¬ testifying accomplice and considered the issue “as a matter of discretion [and] in the interest of justice.” Thus while the facts may be different, the law and reasoning still applies. See also People v. Kvser, 26 A.D.3d 839, 8 (4th Dep’t 2006) (reaching unpreserved confrontation clause issue in interest of justice). Appellant William Rodriguez also has an appeal that is pending before the Court this term under Ind. No. 5471/09. 1 Despite respondent’s contention, defense counsel’s decision not to object to the OCME witness’s testimony is exactly the kind of special circumstance that warrants this Court’s interest of justice review power. (Resp. Br. at 19). As respondent correctly notes, the only evidence tying Mr. Rodriguez to the burglary was his DNA found on the scene. While respondent would like to dismiss it as a foregone conclusion that the DNA showed that he committed the burglary, this is not necessarily the case. Indeed, the criminologist who testified did not dispute counsel’s assertions that it was possible that Mr. Rodriguez’s DNA could have been deposited on the wired cutters through other means, namely, secondary transfer. More importantly though, that criminologist was not the one who performed the actual testing. While the testifying criminologist can claim that the analyst did, this witness’s statements are not wholesale reliable since she was not present during the actual testing. Respondent’s reliance on People v. John, 27 N.Y.3d 294 (2016) is inapposite. Respondent cites John for the proposition that the People are not required to produce a testing analyst as a witness so long as the witness who testified “witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data.’ John, 27 N.Y.3d at 315.” Resp. Br. at 20. But this is a disingenuous application of John. As argued in appellant’s main brief, while the testifying witness, Melissa Huyck, 2 reviewed the file, there is no evidence that she witnessed or even supervised the generation of the DNA profile. Thus, while she could assume that the testing analyst followed protocol, she could not confirm that this was correct because she was not present. Indeed, on direct, when asked whether the OCME’s safeguards were utilized in this case, she responded, “I didn’t personally examine them, but I would assume that the analyst did that.” (T. 111). But assumptions do not constitutional standards meet, and the failure to have the testing analyst testify violated Mr. Rodriguez’s rights to a fair trial. Defense counsel’s failure to challenge the introduction of Huyck’s testimony and to ask that the testing analyst be the one called to testify was tantamount to the ineffective assistance of counsel. Contrary to respondent’s claim, counsel’s failure to object to the analyst’s testimony regarding the DNA testing does not defeat Mr. Rodriguez’s Confrontation Clause claims because there was no legitimate “strategy” for failing to object. See Resp. Br. at 19-20. And “[ejven assuming .... that the failure to object [to the admission of Huyck’s testiomony] was strategic, that is, that it represented a conscious decision on counsel’s part, whether or not the strategy taken was within the constitutional boundaries of reasonable competence must be examined.” Henry v. Scully, 918 F.Supp. 693, 715 (S.D.N.Y. 1995) (Report of Magistrate Judge Gershon), aff d. 78 F.3d 51 (2nd Cir. 1996). 3 As discussed in the main brief, the sole evidence tying Mr. Rodriguez to the crime was his DNA. As such, counsel had every reason to object to any testimony about the DNA testing that did not come directly from the testing analyst. And the failure to do cannot be excused as a legitimate trial strategy. POINT II APPELLANT WILLIAM RODRIGUEZ’S SENTENCE SHOULD BE REDUCED TO THE MINIMUM TERM OF 16 YEARS TO LIFE IN THE INTEREST OF JUSTICE. (REPLYING TO POINT III OF RESPONDENT’S BRIEF, PP. 23- 25). Respondent suggests that this Court should not exercise its interest of justice jurisdiction to reduce appellant’s sentence because defendant’s DNA on the wire cutters was “definitive proof that he had broken into the apartment” even though they concede no one was home when the incident occurred. Resp. Br. at 21-22. Nevertheless, respondent believes that the 20 years to life sentence is appropriate in this instance in part because of the “obvious traumatization of [the complainant’s] dog.” Resp. Br. at 22. While no one disputes the safety of complainant’s dog is important, that is certainly not reason enough to sentence Mr. Rodriguez to 20 years to life. Mr. Rodriguez’s medical condition, his age, and the circumstances of the crime, which are discussed in detail in his opening brief and will not be repeated here, present 4 compelling reasons why his sentence should be reduced.2 Contrary to respondent’s contention, Mr. Rodriguez is not asking the Court to overlook the seriousness of the crime of which he was convicted. Rather, he is simply asking the Court that given the mitigating circumstances presented by this case, as described in the opening brief, his prison sentence should be reduced. CONCLUSION For these reasons and those presented in William Rodriguez’s opening brief, Mr. Rodriguez asks this Court to reverse his conviction and dismiss the indictment. In the alternative, his sentence should be reduce in the interest of justice. Dated: New York, New York January 11, 2017 Respectfully Submitted SEYMOUR W. JAMES, JR., ESQ. ANITA ABOAGYE-AGYEMAN Of Counsel January 11, 2016 2 Under New York County Indictment Number 5471/2009, Mr. Rodriguez pled guilty to five counts of robbery in the first degree and related charges. He was sentenced to an aggregate indeterminate term of 25 years to life to run concurrently with his sentence in the instant case. His appeal of that conviction is calendared for the same term as this case. Should the Court reverse his conviction in the instant case, he should be permitted to withdraw his plea in that case pursuant to People v. Fuggazzatto. 62 N.Y.2d 862, 863 (1984). 5 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Microsoft Word 2013, Times New Roman font, with 14-point type and was calculated by Microsoft Word as containing 1298 words. 1A