The People, Respondent,v.Brian Degraffenreid, Appellant.BriefN.Y.March 21, 2017OFFICE OF THE DISTRICT ATTORNEY, Bronx County DARCEL D. CLARK Dis/riel Attorney The Honorable Judges Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 198 East 161st Street Bronx, New York 10451 Re: People v. Brian Degraffenreid APL-2016-000123 Your Honors: (718) 838-6693 Fax (718) 590-6523 November 3, 2016 The People seek affirmance of a decision by the Appellate Division, First Department, that upheld defendant's conviction of Manslaughter in the First Degree. Peoole v. Degraffenreid. 138 A.D.3d 456 (1st Dept. 2016). The Appellate Division found that defendant's failure to raise any challenge to the court's charge regarding causation of death was unpreserved and declined to review it in the interests of justice. ld. at 457.~ The Appellate Division also affirmed the trial cow1's denial of defendant's ineffective assistance of counsel claim, finding that defendant's intent to inflict serious physical injury was established by evidence that defendant parlicipatt:d in lhe assault after the codefendant, Elmer Castillo, struck the victim with the tire iron, thereby rendering any further 1 The Appellate Division expounded on iis holding regarding the court's charge in the companion case, Peuplt: v. Cal)tillu, 140 A.D.3d 481 (1st Dept. 2016). court held that under the circumstances, any alleged error by counsel was not so egregious and prejudicial as to compromise defendant's right to a fair trial. Id. at 457-58. The Facts On May 7, 2009, Jose Santos, who had recently had foot surgery and was walking with a cane, arrived at the entrance of JIIIMonroe A venue with the victim, Jonathan Jiminez, and another friend, "Edwin." Jonathan Jimenez's nickname was "Menor," meaning "short guy" in Spanish since, at about five feet tall and approximately 115 pounds, he was quite small (Santos: T. T. 120-21). At the entrance of the building, Mr. Santos saw defendant (known as "Black"), codefendant Elmer Castillo (known as "Elmo") and codefendant Joshua Colon (known as "Pito") (T. 122-25, 141, 151).2 Mr. Santos had seen defendant and Colon together on a daily basis for approximately one year and knew them to be drug dealers who sold drugs in front of the building and other areas in the neighborhood (Santos: T. 126-27, 141-42). He had also seen Castillo with defendant a "couple of times" before (Santos: T. 127). As Mr. Santos passed defendant at the building entrance, defendant said, "I don't know why you don't say excuse me," pointed his finger in Mr. Santos' face, and struck his outstretched arm (Santos: T. 128-131). Mr. Santos and defendant bickered for a short time, and defendant then punched Mr. Santos in the face (Santos: T. 131). In response, Mr. Santos struck defendant in the shoulder and neck with his cane. Defendant repeatedly hit Mr. Santos, and Castillo punched Mr. Santos once (Santos: T. 133-35). Jonathan Jimenez did not participate in the fight; he stood with his back against the wall and his palms up (Santos: T. 134, 158). The fight ended quickly. Defendant and his friends went outside while Mr. Santos, Mr. Jimenez and Edwin went inside the building to 2 Numbers preceded by "T" refer to pages of the trial transcript. 2 Mr. Santos' apartment (Santos: T. 136, 141, 159)_3 Defendant, Castillo and Colon waited outside Mr. Santos' building for more than ten hours (Santos: T. 170). During that time, Edwin returned to his house and Mr. Jimenez left and returned to the building about three times (Santos: T. 148). Sometime after midnight on May 8, 2009, Mr. Jimenez and his friend, Jose Gonzalez (known as "Mercy") were walking to a nearby bodega (Echevarria: T. 344; Gonzalez: T. 565). Mr. Gonzalez saw defendant walking toward them from behind (Gonzalez: T. 566). Ramon Echavarria, who knew both defendant and Mr. Jimenez, was standing between - and 1854 Monroe Avenue when he saw defendant tap Mr. Jimenez on the shoulder without saying anything and, when Mr. Jimenez turned around, defendant hit him (Echavarria: T. 326, 342, 344).4 Defendant then grabbed Mr. Jimenez and held him while Castillo came up from behind and hit him repeatedly over the head with "something made of iron, like a pipe" (Echavarria: T. 326-27; Gonzalez: T. 569-70). Mr. Jimenez was in the middle of the two men as they continually hit him (Gonzalez: T. 570). Colon then arrived, asked defendant "Is this the guy? Is this him?" and kicked Mr. Jimenez twice in the face (Gonzalez: T. 573). Colon then threw Mr. Jimenez into the open basement stairway where the building's garbage was kept, onto the garbage, then threw a bag of garbage at him (Gonzalez: T. 573; Echavarria: T. 344). Mr. Gonzalez ran away (Gonzalez: T. 573; Echavarria: T. 344). Mr. Echavarria heard Mr. Jimenez "whining" and "crying" so he went to "see what's going on" He saw Mr. Jimenez "bleeding everywhere" from his head. He was confused and "wouldn't make sense" so he called 911 (Echavarria: T. 342-43, 345). He and a friend helped Mr. Jimenez up 3 Video footage, beginning at 1:20 p.m., showed defendant walking in and out of the entryway, then Mr. Santos; Mr. Jimenez and Edwin enter the building. Mr. Santos and Edwin emerge, fighting with defendant, Castillo and Colon. Mr. Jimenez does not participate. Mr. Santos, Edwin and Mr. Jimenez then go inside the building. Video footage also shows defendant, Castillo and Colon walk around the outside the building and enter and exit the lobby (T. 151-165; People's Exhibit 8). 4 According to Mr. Gonzalez, Mr. Jimenez told defendant "you don't have a problem with me," then defendant began hitting him (Gonzalez: T. 567, 569). 3 and sat him in front of - Monroe Avenue. Defendant, Castillo and Colon returned and began "talking trash, to Mr. Jimenez. Mr. Echavarria told them, "I called 911, you all need to go, (Echavarria: T. 346, 348).5 Police Officer Victor Cedeno arrived and attempted to speak to Mr. Jimenez but had difficulty obtaining information. Mr. Jimenez appeared "really badly hurt." The ambulance arrived a few minutes later (Cedeno: T. 491, 470). Mr. Jimenez was taken to Saint Barnabas Hospital (Cedeno: 461-62). Detective Arnalda Santiago responded to the scene and observed blood on the wall in the basement area of the building. He viewed surveillance footage which showed two men walking toward -Monroe A venue, one of whom had a tire iron in his hand. Detective Santiago recovered a tire iron in a grassy area· next to the building (Santiago: T. 57-59, 62, 74-75). Mr. Jimenez's DNA was found on the head of the tire iron (Currie: T. 430-31).6 Mr. Jimenez never regained consciousness and died on May 12, 2009 (Juana Gonzalez: T. 91). The cause of death was found to be blunt impact to his skull (Dr. Gill: T. 681). Dr. Ronald Paynter testified for the defense and hypothesized that Mr. Jimenez had "recovered, from the head wound when he got an infection, developed an "extremely rapid heart rate,, and died (Paynter: T. 780). He admitted that it was possible to die from the type of head 5 Video footage, beginning at 22:58, showed Defendant and Castillo walk up behind Mr. Jimenez and Mr. Gonzalez. Castillo is holding a long metal object in his right hand. Defendant punched Mr. Jimenez, and then they all move out of the camera shot. Colon walks down the street toward the attack and out of the frame. Defendant, Castillo and Colon are then seen walking back the way they came. Castillo is still holding the metal object. Defendant and Castillo return, without the metal object, then run away again. Four minutes later, defendant and Castillo return again and walk away as the police arrive. Mr. Jimenez emerges from the alley (People's Exhibit 3 and 12; Echavarria: T. 352-365). 6 Neither Castillo's nor Colon's DNA was found on the tire iron. Attempts to match defendant's DNA with a mixed sample taken from swabs of the tire iron were inconclusive (Currie: r. 430-43 I, 433, 436-439). 4 wound that Mr. Jimenez suffered and that the fever could have been caused by the head injury and not by an infection, although he felt that was "unlikely" (Paynter: T. 785-86, 795-96). The jury found defendant not guilty of Murder in the Second Degree and guilty of Manslaughter in the First Degree (T. 1024-25, 1027-29).7 At sentencing, the trial court noted that, while defendant did not wield the fatal tire iron, he was "a person that Mr. Castillo looked up to," "the older person, the person who was leading the others," and that the video footage of Castillo holding the tire iron while walking down the sidewalk with defendant showed that defendant was "in all respects [] responsible for causing the death" of Mr. Jimenez. The court imposed a determinate term of eighteen years imprisorunent with five years of post-release supervision (S. 24, 30-31). Lega l Analysis I. Defendant's Objection to the Court's Causation Charge is Unpreserved and Meritless. (Responding to Defendant's Submission Point II) Defendant claims that the court's charge misstated the law on causation by conflating the CJI "cause of injury" charge with the "cause of death" charge, thereby instructing the jury that the causation for homicide would be satisfied by showing that defendant's conduct was the direct cause of Mr. Jimenez's injury (Defendant's Submission at 22). During the charge conference, the trial court informed the parties that it would give the charge of causation as being applicable to all counts and showed both parties the written text of the jury instructions. All parties consented (T. 894-96). After the instructions were given, the court again asked if there were any objections. Both parties answered in the negative (T. 947-48). Therefore, any challenge to these instructions is beyond the jurisdiction of this Court. CPL § 470.05(2); People v. Stephens, 84 N.Y.2d 990, 992 (1994) 7 The jury also found Castillo not guilty of second-degree murder and guilty of first-degree manslaughter. 5 (constitutional claims must be preserved); People v. Whalen, 59 N.Y.2d 273,280 (1983); People v. Thomas, 50 N.Y.2d 467 (1980). This alleged error did not fall within the "very narrow exception" discussed in Thomas, 50 N. Y .2d at 4 71-72 ("A claim that the comt erred by expressly shifting the burden of proof to the defendant or relieving the People of their obligation to prove the defendant's guilt beyond a reasonabJe doubt presents a more basic defect, and is potentially more prejudicial, than a contention that a portion of the charge may be interpreted as havipg this effect. Thus when a court's specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided"). According to defendant, when the trial court used the term "such injury» or "injury, to refer back to the terms "physical injury," "serious physical injury" and death, it permitted the jury to convict defendant of manslaughter without first finding that he actually caused Mr. Jimenez's death, but rather by finding that defendant caused only injury to Mr. Jimenez (Defendant's Submission at 22). Unlike in People v. Patterson, 39 N.Y.2d 288 (1976), this purported error does not go to the essential validity of the proceedings. Here, the burden of proof was properly stated. Defendant claims only that "a portion of the charge could ... be interpreted as having a contrary effect" to the burden of proof charge. Thomas, 50 N. Y .2d at 4 72; see also People v. Castlllo, 140 A.D.3d 481,482 (1st Dept. 2016). Thus, defendant's claim is unpreserved. Even if defendant could establish an exception to the preservation requirement, he cannot prevail. In reviewing the adequacy of a jury instruction, "[t]he test is always whether the jury, hearing the whole charge, would gather trom its language the correct rules which should be applied in arriving at decision." People v. Ladd, 89 N.Y.2d 893, 895 (1996) (internal quotations and 6 citations omitted). Thus, jury instmctions cannot be viewed in isolation, but must be viewed as a whole. See People v. ColeJnao, 70 N.Y.2d 817, 819 (1987). Here, reading the instructions in their entirety, the court's wording clearly indicates that the phrase "such injury" and "injury" relate back to death, serious physical injury and physical injury.8 The court refers to all three categories: death, serious physical injury and injury, twice during its charge, further clarifying its reference to all three (T. 924-25). Thus, the charge, viewed as a whole, properly conveyed the law regarding whether the assault was a sufficiently direct cause ofthe victim's death. ln any event, even if the phrase "such injury," viewed in isolation, were to cause confusion, the instructions, viewed as a whole, were clear. See, e.g., People v. Echavarria, 21 N.Y.3d 1, 21 (2013) (trial court did not give erroneous jury instruction on agency defense during drug prosecution by providing first five agency factors listed in pattern criminal jwy instructions rather than all six factors; jury was capable of gathering from language of instruction the correct rules to be applied in arriving at decision); People v. Umali, 10 N. Y .3d 417, 426-27 (2008) (Submission of erroneous jury instruction on justification defense, which improperly shifted the prosecution's burden of proving beyond a reasonable doubt that defendant did not subjectively believe deadly force was necessary, was harmless, in prosecution for manslaughter; single instruction was isolated component of jury instructions and, viewed as a whole, other instructions informed jury that prosecution had burden to prove its case beyond reasonable doubt). Defendant's claim that the court should have given causation definitions as to death, serious physical injury and physical injury separately would have drawn out an already lengthy jury instruction without any benefit to the jury. The fact that none of the parties raised any objection illustrates that the court's instruction was easy to follow. 8 Notably, the cOurt' s language closely mirrors the Criminal Jury Instructions (CJI), wherein the instructions for "cause of death," "cause of serious physical injury," and "cause of physical injury" are effectively identical. See Cfl2d [NY]§§ 125, 120. 7 Even assuming that the court ened, such enor was harmless because the causation defense was disproved by overwhelming evidence at trial. See People v. Peuy, 7 N.Y.3d 277, 285 (2006) (where "the People disproved [a) justification defense," an omission in the jury instructions regarding that defense was harmless error). Indeed, Dr. Paynter was unable to cast any doubt on the overwhelming evidence that the attack was what killed defendant; he testified that "the head injury obviously in why [Mr. Jimenez] was in the hospital" and was unable to say with certainty whether Mr. Jimenez had developed an infection and what the source of such an infection may have been (Paynter: T. 776-77; 779, 785-86, 795-96). "The jury properly rejected the suggestion of the defense's expert that the victim had so recovered by his third day in the hospital that this death on the fourth day was caused not by his injuries but by a possible infection of unknown origin or a fall from his bed, since that testimony was unconvincing, if not speculative, particularly in view ofthe expert's acknowledgment that the injury was life-threatening and required emergency surgery." People v. Castillo, 140 A.D.3d 4.81, 482 (1st Dept. 2016). See People v. Ladd, 89 N.Y.2d 893, 895 (1996) (trial court's erroneous use of instruction, in prosecution for negligent homicide, which alleged that defendant drove her vehicle on wrong side of road after consuming alcohol "and/or" operating without sufficient rest "and/or" without due regard to weather conditions was harmless error). Notably, defendant was aware that his causation defense was weak because be did not rely heavily on it in his summation, but rather touched on it briefly ("we also have an issue, which I haven't even thought about arguing because I'm focused on intent" [T. 856]). II. Defendant Received Meaningful Representation and Effective Assistance of Counsel. (Responding to Defendant's Submission Point I) As noted above, the court's charge properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim's death. Therefore, counsel was not ineffective for failing to raise this meritless objection. 8 Defendant further claims that counsel's failure to view the video surveillance footage in slow motion compromised his right to a fair trial. In support of this claim, when litigating his motion pursuant to CPL § 440.10, defendant obtained an affirmation from trial counsel in which counsel asserted that because he had not played the surveillance footage in slow motion before or during trial, he had not seen that Castillo was holding the tire iron when Castillo and defendant were walking side by side eleven minutes before the assault (Affirmation of Edward R. Dudley, dated November 2013, attached as Exhibit D to defendant's CPL § 440.10 motion [hereinafter "Dudley Affirmation"]). 9 At trial, counsel skillfully employed the one defense that could have secured an acquittal- that defendant, having never held or recruited the use of the tire iron, lacked the requisite mens rea to kill or seriously injure Mr. Jimenez. It was a wise, strategic move for counsel to focus his attention on whether, at the fatal moment, defendant shared Castillo's intent to cause serious physical injury.10 The critical question was whether defendant knowingly aided Castillo as he used the tire iron against Mr. Jimenez. For this defense, whether defendant saw the tire iron in Castillo's hand eleven minutes earlier is irrelevant. "[T]he fact that .. · .. [defendant] may not have known in advance that his codefendant would use the tire iron to seriously injure the victim is of no moment in the case" since the evidence that defendant held onto Mr. Jimenez after Castillo began hitting him with the tire iron was "sufficient to support a conclusion that defendant shared the requisite intent with his codefendant to commit the crime." Degraffenreid, 138 A.D.3d at 456-57. 9 While defendant claims that counsel failed to "fully review" the videotape, counsel asserts that he viewed the videotape in full. He simply did not view the videotape in slow motion (see Dudley Affirmation). 10 Both d~fendant and Castillo moved out of the frame after defendant's initial punch and the extent of defendant's involvement was proven through the testimony of the two eyewitnesses. Counsel attempted to discredit both eyewitnesses. 9 To this end, counsel's summation focused not on the video surveillance footage of what happened eleven minutes before the crime, but rather on what happened in the seconds leading up to the fatal strike. Specifically, defense counsel played the footage of defendant and Castillo approaching Mr. Jimenez and observed that "the other guy with the metal comes from behind [defendant]," the implication being that defendant could not have seen the tire iron in Castillo's outstretched arm, swinging down for the fatal blows (T. 850-51, 854). Notably, counsel did not mention the surveillance footage of what occurred eleven minutes before the attack, much less rely on this footage. Indeed, counsel did not even argue that defendant was unaware that Castillo had a weapon, rather he argued that defendant did not know that Castillo would come from behind and use the tire iron to beat Mr. Jimenez. Thus, counsel did not "urge[ ] the jury to accept a scenario that the very evidence he relied upon rebutted" (see Defendant's Submission at 19). In fact, defendant concedes that "[t]he jury could well have accepted the reasonable proposition that, while [defendant] knew Castillo was armed, he did not know ... that Castillo would actually use the pipe, as opposed to just threaten its use" (Defendant's Submission at 18). Counsel's argument left the jury free to accept this rationale. Moreover, based on counsel' s advocacy, he obtained an acquittal of the top charge of second- degree murder. That fact is strong evidence that defendant received effective assistance. See People v. Hutchinson, 57 A.D.3d 1013 (3d Dept. 2008) (defendant failed to demonstrate that counsel failed to provide meaningful representation, particularly in view of defendant's acquittal on two of the top charges); People v. Barnes, 249 A.D.2d 239 (1st Dept. 1998) (noting "counsel's success in securing acquittals on several counts, including the most serious charge" in determining that defendant received effective assistance of counsel). · 10 Trial counsel's plea of ineptitude therefore comes after he provided competent and zealous representation under difficult circumstances, and should be viewed skeptically. Barclay v. Sptizer, 371 F.Supp.2d 273,283 (E.D.N.Y. 2005) ("Skepticism is particularly called for when an excellent attorney doing a highly credible job for the defense suddenly pleads ineptitude"); see also People v. Washington, 21 A.D.3d 648, 651 (3d Dept. 2006) (rejecting ineffective assistance of counsel claim "[n]otwithstanding trial counsel's self-critical affidavit submitted in support" where the claimed error in a difficult case was "considered in the context of the entire relevant circumstances"). The fact that counsel also moved for a mistrial on the basis of this footage before sentencing merely means that this is not counsel's first attempt to utilize this piece of evidence as a means to obtain a favorable verdict for his client. This appears to be a case where counsel is "more devoted to his client than to his professional reputation." Barclay, 371 F.Supp.2d at 277. 11 Because the surveillance footage had no bearing on counsel's defense strategy, his representation cannot be compared to the performance failures criticized in People v. Barnes, 106 A.D.3d 600 (1st Dept. 2013) and People v. Cyrus, 48 A.D.3d 150 (1st Dept. 2007). ln each of those cases, counsel sabotaged the defendants' chance at a fair trial by failing to investigate critical pieces of evidence and relying on that evidence to advance a defense that could never have been sustained in light of the trial evidence. Here, unlike Barnes and Cyrus, defendant's culpability did not tum on this video footage; nor did trial counsel' s purported error in failing to view the video in slow motion "gut" his defense that, at the time of the fight, defendant did not know Castillo was going to hit Mr. Jimenez with the tire iron and did not share his intent to cause serious physical injury. 11 So substantial was counsel's commitment to securing a favorable ruling for his client that his affirmation contains a misleading omission-while twice relating that he viewed this footage on his office computer (Dudley Affirmation at~ 2,3), counsel failed to mention that he and his client also spent a "number of hours" reviewing the footage together in the courtroom (S. 9-11 ). 11 **** The People reserve any argument made in our Appellate Division brief not appearing in this submission. See 22 NYCRR 500.11 (e). cc: Barb~a Zolot, Esq. Center for Appellate Litigation 120 Wall Street- 28th Floor New York, NY 10005 12 Respectfully submitted, Assistant District Attorney Appeals Bureau