The People, Respondent,v.Brian Degraffenreid, Appellant.BriefN.Y.March 21, 2017CENTER FOR APPELLATE LITIGATION l20 WALL STREET-28."' FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535 /fr·r"OJii'IHl'-IN-01/liiGJ.i RORI'.IlTS. DFA\J A.f.ffSTANTA"I"fOH..Nlil'-1!\1-CI JARC;J.i MAHI< \V./".i'.N<.l JEJ\'iOR SVI'I:iiWJJJNC A"i"fORNEl'.i" AlliGA:J. EVERI\1. CLAUDIA S. Tl\L'l'l' BAJ.BARA ZOLO'l' M.-1N/ICI!W; AITORNf?Y D:W!D.J. Kl.i:'.M J'UI'lilU·'!JiN<.; ATIVIW!il' ~IARIS,\ ;(, CABRERA AJJI.I"'ANI"MA,\!AC:IN(; ArtOI!N/·:1' KA"fH/dUNE SKOL" ICK VIA EXPRESS MAIL Judges of the Court of i\ppeaJs Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Your Honors: August 17, 2016 BARBARA ZOLOT SENIOR Sl/ I'HHVISJNG A TTO/I;VEY bzolot@cfal.org (212) 577-2523 extension 509 Re: People v. Brian D egraffenreid (SSIY!) APL-2016-000123 Pursuant to this Court's letter dated June 22, 2016, appellant Brian Degraffenreid submits the following written comments and arguments pursuant to Rule 500.11. Appellant further requests that this Court place the appeal on regular course briefillg, as the novel and significant issues it presents would benefit from full briefing, as well as the opportunity for reply and oral argument. The first issue concerns defense counsel's admitted failure to investigate fully the complete contents of the video footage he relied upon in formulating and arguing appellant's lack-of-intent defense. The uninvestigated portion, which the jury 1 requested to see in slow motion shortly before convicting appellant, eviscerated the defense and resulted in a wholesale loss of defense credibility. Appellant argues in Point I that counsel's failure to investigate, as well as his inexplicable failure to object to the court's erroneous causation charge, deprived him of the effective assistance of counsel under the state and federal constitutions. Appellant argues in Point II that the court's erroneous causation charge independently requires reversal, because it deprived him of his due process right to a fair trial and prejudiced him. As the charge expressly relieved the prosecution of its burden of proof on a material element, the issue is fully reviewable as a matter of law. STATE1v1ENT OF FACTS The Trial Defense Counsel's Opening Statement Defense counsel predicted that the jury would learn that, following a dispute involving the victim's friend earlier in the day, appellant "went over to (the victim] and punched him," and that "some time after that, another person came and hit him with a pipe or a tire iron" (T.1 0-11 ).1 He continued, "[T]he People will not be able to prove that [appellant] was part of a team, that [appellant] adopted the intent of the person that struck the deceased with the pipe" (T.11). He was not guilty of murder or manslaughter (T.11). The Afternoon Altercation At about 3:00p.m. on May 7, 2009,Jose Santos and appellant had a brief altercation after Santos did not say excuse me to appellant, who was blocking Santos' doorway at **48 Monroe Avenue in the Bronx. Appellant threw a punch and Santos struck appellant twice with his cane (T.128-29, 131-33). About an hour later, 1 Parenthetical references preceded by "T." refer to pages of trial transcript beginning with the date November 28, 2011. 2 appellant, co-defendant Elmer Castillo, and a third man, Joshua Colon ("Pito"), returned, and remained near Santos' building (T.141-42, 144-46). Jonathan Jiminez, who was not involved in the earlier fight, went back and forth uneventfully about three times while Santos stayed inside (T.147-48, 170-71). People's Exh. 82 was video surveillance footage that depicted the fight and the three men standing outside Santos' building (T.148-57, 161-66). Santos testified that the video showed Colon putting something in a car tire (T.167), which the prosecutor argued in summation was the pipe Castillo later used to hit Mr. Jiminez (T.865). The Later Attack At around 11:40 p.m. that night, Mr. Jiminez, who had left Santos' apartment (T.184), was walking with Jose Gonzalez to a bodega (T. 566-65). According to Gonzalez and eyewitness Ramon Echavarria, when Mr. Jiminez and Gonzalez were between **48 and **54 Monroe, appellant, Castillo, and Colon approached them (T.352-53; T.566). Both Echavarria and Gonzalez testified that appellant punched or hit Mr. Jiminez (T.354; T.S69), and Castillo struck Mr. Jiminez over the head with a pipe (T.342-43, 354; T.S70). Colon threw Mr. Jiminez into a basement alleyway (T.356, 371; T. 573). Echavarria testified, «Black [appellant] punched him the face, knocked him out and kicked him a few times. Then the other one - he was already knocked out. Other one came, hit him with whatever it was right in his head and then Pito came, grabbed by the hoodie and threw him in the basement" (T.342). Gonzalez did not help his friend and ran away (T.344). 2 People's Exhs. 3, 8, and 12 are portions of videotape footage obtained from surveillance cameras installed inside and outside **48 Monroe Avenue for security purposes (A.75). The time stamp on all three videos was one bout and 25 minutes behind the actual time of the events depicted (A.588). The District Attorney's office advised appellate counsel that People's Exh. 8 was partially corrupted after trial and is incomplete. People's Exh. 3 jumps seconds and at points shows people walking at an enhanced speed and backwards because of the way the detectives copied it onto a DVD (A.542-43). People's Exh. 3 is enclosed herewith. 3 Gonzalez gave a largely false statement to a detective three hours later because, he testified, he was "terrorized" and did not want to get involved (T.574-75, 590-94), but he told the police "exactly everything that happened" on May 12 after Mr. Jiminez died, because Mr. Jiminez could no longer speak for himself (T.575, 623-24). Nonetheless, although Gonzalez testified at trial that appellant held and pummeled Mr. Jiminez while Castillo continued to hit him with the pipe on the head (T.570, 628-29), he did not mention that in his truthful and complete May 12 statement (T.636). Echavarria did not describe appellant restraining Mr. Jiminez during the encounter, or engaging in any assaultive conduct besides the initial single punch and few kicks that preceded the blow to the head (T.354, 370, 372). The hospital on admission did not note any injuries to Mr. Jiminez's trunk or extremities (People's Exh. 24 [autopsy report], Supplemental Case Information - last page of report)/ nor did Mr. Jiminez sustain any fractures to his ribs, pelvis, or vertebrae (id. at p.4). According to defense expert Dr. Ronald Paynter, the medical records in a "number of places" indicated "that there were no other injuries other than head injury" (T.792). People's Exh. 3 spanned the nighttime incident. It shows appellant, Castillo, and Colon, as well as Mr. Jiminez coming down the street with Gonzalez (T. 352-53; People's Exh. 3 at 22:58:39), and a metal object in Castillo's hand (T.353-54; People's Exh. 3 at 22:59:14). At 22:59:14-15, Mr. Jiminez and Gonzalez are off-camera; appellant has his arms out wide, with nothing in his hands (People's Exh. 3). Castillo, having crossed over from across the street, is several steps behind appellant, with the object in his right hand (People's Exh. 3). The punch and the blow to the head take place outside camera range. Directed to that portion by counsel on cross-examination, Gonzalez identified 3 The autopsy report is enclosed herewith. 4 himself and Mr. Jiminez corning down the street at the time stamp 22:58:43, and appellant at that point "corning by himself." Then "the next guy was coming from between the cars" (T.621). At the time stamp 22:59:15, Gonzalez saw a person "behind Black [appellant]," but Gonzalez could not then recognize him as the person who hit Mr. Jiminez with the pipe, insisting that that person had worn a red sweatshirt (T.626-28), which the videotape did not show Castillo wearing. On redirect, he acknowledged that the person behind appellant had "something in their hand" (f.638). Mr. Jiminez's Death in the Hospital Five Days Later Mr. Jiminez was hospitalized. On admission, hospital personnel identified and examined his head injury, but "[n]o injuries were recorded for trunk or extremities" (People's Exh. 24, Supplemental Case Information). Mr. Jiminez w1derwent surgery to relieve pressure on his brain (f.697, 777, 790). His condition improved over the next three days (T.688, 777, 781). It was downgraded from critical and Mr. Jiminez asked to go home (T.781, 784). About three days into his stay, Mr. Jiminez fell out of bed (T.688, 778). Early on the morning of May 11, Mr. Jiminez complained of a headache (T.699). He began vomiting and developed a high fever and an irregular heartbeat (f.699, 776-77, 811-12 ). Mr. Jiminez's rapid heart rate went untreated for hours, and he died on May 12,2009 at 6:15a.m. (f.699, 809). Conflicting Evidence About Cause of Death Deputy Chief Medical Examiner for Bronx County and prosecution witness James Gill, who performed the autopsy, stated that Mr. Jiminez had a cut above his right ear, a healing black eye, scrapes on the left side of his face, and a small scrape on his torso (T.661, 666, 668-69, 683-84). Dr. Gill also found a one-inch depressed skull fracture and evidence of bleeding on the surface of the brain, consistent with a single blow from a tire iron. (f.670-71, 677-78, 703). The black eye was consistent 5 with a punch (T.684). Dr. Gill agreed that Mr. Jiminez was improving before his death, and that people sometimes survive similar injuries (T.688, 694, 697 -98). He testified that the cause of death was blunt trauma to the head, and that he could be certain only of a single blow to the head (T.681, 703). No matter what else happened in the hospital, the underlying cause of death would, to Gill, remain the blunt head injury because "but for that ... injury, he wouldn't have been in the hospital" (T.689-90, 694). Testifying for the defense, Dr. Ronald Paynter, an expert in emergency medicine, stated that Mr. Jiminez's death was not caused by the head injury, from which he was recovered, but from an inadequately treated infection (T.775-80, 782). He noted that the autopsy revealed froth in the lungs consistent with pneumonia (T.794-95), and that Mr. Jiminez's cerebrospinal or brain fluids provided no indication that the infection came from his head injury (T.779, 793-94). The fall from the bed, causing contact with the dirty floor or reinjury, could have caused infection (T.778, 782). Hospital treatment ((modalities"- the insertion of a ventilator tube and catheters- could also have caused the infection (T.778-79). The hospital did not do a CAT scan, as they should have, after Mr. Jiminez's fall, nor did the doctors take cultures, perform a chest X-ray, or administer more powerful antibiotics, after Mr. Jiminez developed an infection (f.776, 778-79, 794). The response to Mr. Jiminez's rapid heart rate was also "slow," and caretakers did not properly treat his fever, failing to give him additional medication or a cooling blanket (T.780, 783, 800- 01). The Police Investigation Detective Arnold Santiago found the pipe in the area, a slim metal bar, curved at the end and with a black plastic handle (T.S8-59, 71). The pipe contained Mr. Jiminez's DNA but not appellant's (T.424-28, 430, 433). Appellant and Castillo were 6 arrested (T.526, 530), and identified by Gonzalez in lineups (T.576). Bronx County Ind. No. 2201/09 charged appellant, Castillo, and Joshua Colon with intentional murder, first-degree manslaughter, first-degree gang assault, and second-degree gang assault. Colon pleaded guilty before trial. The Charge Conference Defense counsel asked for the lesser included offense of second-degree manslaughter, but withdrew the request "after discussing with [appellant]" (T.741- 42). With the prosecution's consent, the court granted Castillo's request for manslaughter in the second degree (T.746-47). Accordingly, second-degree manslaughter was submitted to the jury for Castillo, but not for appellant (T.935). Summations Defense counsel's closing argument Defense counsel stated that appellant was guilty of "some form of assault," but that the People could not prove beyond a reasonable doubt that "he had the intent, the mental culpability to cause the death of Mr. Jiminez or even to cause serious physical injury," and because he lacked that intent, "he was guilty of assault and not guilty of murder or manslaughter" (T.835). "[I]f he didn't intend to do it, it's not murder. If he didn't intend to cause serious physical injury, it's not manslaughter in the first degree" (T.837). To help the jury decide whether appellant, the "nonwielder of deadly force," had the same intent of the other people involved, defense counsel directed the jury to the video: I suggest to you that you should accept the video. It seems, and I don't think anybody has argued that it's not accurate. It doesn't show everything, but what it does show is accurate. T hat's what happened. Accept the video. (T.839-40). Defense counsel exhorted the jury to ask the court to play it back 7 repeatedly, if it needed to, or "to stop every five seconds." "That's okay," defense counsel said," "You don't have to just ask for it once and go zip, zip, zip and you need to see it again. You could ask for it three times, five times, make sure" (1'.840). The videotape was critical to determining the truth (1'.844). Defense counsel argued that the "sequential" event described by Echavarria "match[ed]. .. with the video and the scientific evidence" (1'.848). "Black comes first, one time, one punch" (1'.849). Describing People's Exh. 3, he argued, "Black is in front of the person that's corning. The next person that comes is four or five steps behind him, is the other guy . .. And he has the iron in his hand" (1'.849-50). Defense counsel played the portion of People's Exh. 3 from 22:58:44 through 22:59:13 to illustrate that Castillo is "with this thing in his hand about 3 or 4 steps behind Black" (T.850). Gonzalez's account that appellant held Mr. Jiminez for Castillo to hit him was not believable, defense counsel argued, because the physical evidence did not support three or four blows to the head, and Gonzalez kept insisting there was a guy with a red sweatshirt, which didn't ''mesh with the video" (T.852-53). Defense counsel concluded, "[D]oes the evidence prove beyond a reasonable doubt that Black knew that this guy was going to come and hit him with a pipe? No. It doesn't prove that beyond ... a reasonable doubt" (T.854). At the end of his summation, explaining that he hadn't argued it because he was "focused on intent," defense counsel noted that there was "also [an] issue of what was the cause of death" (1'.856). Mr. Jiminez was recovering from the head injury, then fell out of bed and picked up an infection that wasn't from the head and wasn't properly treated (T.857). 8 Prosecutor's closing argument Agreeing that the issue came down to intent, the prosecutor argued that appellant, Castillo, and Colon were "a team of three" from the afternoon on, when they waited for Santos outside his building (T.865). She implored the jury to "[s]low down" or "stop" the video, and directed them on People's Exhibit 3 to "[t]his team of three which is time stamped 22:47" (T.867). She argued that "11 minutes prior to Mr. Jiminez being attacked, it's the same team of three that attacks him .... They're still out there. They're still out in front of [**]48 Monroe" (T.868). She continued: And what I want you to pay attention to, again, is what is in the hands of Elmer Castillo eleven minutes before Jonathan is attacked. That tire 1ron. How now can Black claim that he didn't see this when Elmer Castillo is waving this tire iron around like a baton. W{e an enforcer? So that same intent to kill that was there at three, at four, at six, at eight, at ten is there for you 11 minutes before Jonathan is attacked. I'm going to show you this video again to watch how he waves it around so that the three of them clearly, as you can see from this video, Black can't deny. Again. you can watch the video. You see the three of them. What you see in the right hand of Elmer Castillo, like he's waving it around, like he's the enforcer, like he's the conductor here, and it clearly shows again ten minutes before Jonathan Jiminez is attacked, the team of three and there's without a doubt that Black knew about this weapon at this point. There can be no argument. (T.868)(emphasis added). She urged that Gonzalez's account that appellant restrained Mr. Jiminez while he and Castillo continued to hit him was the more credible account (T.876). 9 J uw Charge For appellant, the court charged murder in the second degree, manslaughter in the flrst degree, gang assault in the flrst and second degrees, assault in the second degree, and assault in the third degree. In charging the element of causation, the court, although stating it would give the "CJI Pattern Instruction" (T.894-95), then combined the CJI's distinct charges for "cause of death" and "cause of injury." The court thus instructed the jury that a person "cause[s] ... death," when that person's conduct is a "sufficiently direct cause of "injury": [E]ach of the counts that you will be asked to consider has an element that the defendants caused a particular result. A person causes physical injury or serious physical injw-y or death to another person when that person's conduct is a sufficiently direct cause of such injury to another. (T.924-25). The court used this verbal formulation- omitting "death" when identifying the causative conduct- at several points during the causation charge (see T.925).4 At other points, the court used only the "cause of injury" language (T.925- 26l; in particular, in addressing the role of "medical or surgical treatment" in the causation analysis, the court charged: If a person inflicts injury on another, a reasonably foreseeable consequen[ce] of that conduct is that the victim will need medical or surgical treatment. It is no defense to causing the victim's injury that the medical or 4 E.g., "A person's conduct is an actual contributory cause of physical injury or serious physical injury or death to another when that conduct forged a link in the chain of causes which actually brought about such injury" (T.925). 5 E.g., "A person's conduct is a sufficiently direct cause of such injury when the conduct is an actual contributory cause of such injury and when the injury was a reasonable foreseeable result of that conduct" (f.925). 10 surgical treatment contributed to such injury. Only if such injury is solely attributed, attributable to the medical or surgical treatment and not at all induced by the inflicted injury does the medical intervention constitute a defense. (T.926). Defense counsel lodged no objection to any portion of the court's charge (T. 94 7 -48). Deliberations and Verdict After deliberating for three days and asking for readback and re-instruction, including two requests for acting-in-concert, the jury specifically asked for "the portion of the video that is 'ten minutes' before the attack" (T.1 004-05). Starting at 2:00 p.m., People's Exh. 3 was played several times, including, at the foreperson's request, from the beginning in slow motion (T.1011, 1013-14). The foreperson asked for it to be played again, with "the beginning part, when they walk up, can the whole be drawn out slow if that is possible, the whole walking of them slow?" (T.1014). After that, it was then played again at normal speed (T.1015). Then the jury requested and viewed several times the portion of the video where Mr. Jiminez came down the street (T.1015-17). The jurors also requested readback of Gonzalez's testimony where he described the attack, and that was reread (T.1013, 11017 -18). In a note timed at 3:00 p.m., the jury reached a verdict acquitting appellant and Castillo of murder, but convicting them both of manslaughter in the first degree (T.1023-24). The jury did not reach the other counts, per the court's charge. Motion to Set Aside the Verdict Defense counsel flled a C.P.L. § 330.30 motion, complaining that the prosecutor played the "high speed disk" at a "slow rate of speed" during her summation, which showed "for the first time" that appellant "was walking with the 11 co-defendant Elmer Castillo prior to the assault and that Mr. Castillo was displaying the metal weapon" (Motion to Set Aside the Verdict, record on appeal, at ~6). Defense counsel stated that the jury requested "that the same part be played for them at a slow rate of speed just minutes before they reached a unanimous verdict" (id. at ~8), and that "showing the jury something for the first time during the People's summation" deprived appellant of due process and his right to confront the evidence against him. (id. at ~~10-11). Nor could defense counsel discuss this evidence in summation (id. at 111 ). The prosecutor in response refuted that she played People's Exh. 3 at a slower speed during her summation, noting technical difficulties (People's Answering Afflrmation, record on appeal, at p. 2). During deliberations it was shown to the jury three times, twice at a slow speed (id. at pp. 2-3). Showing the jury a slowed-down version occasioned no due process violation because the same technology was available to the defendant, who had People's Exh. 3 for months before trial began (id. at p. 3). The court denied the motion at sentencing (Sentencing Minutes, at 9). The court recalled that the People were not able to slow down the video during their summation, but even if they had, it would not have been improper because the videotape was in evidence (id. at 10). As for the jury's viewing in slow motion, the court held that the "[t]he jury had a right to ask to see the videotape in slow motion," and that it showed "more clearly than anyone had expected earlier," that "in the defendant's presence someone else was holding a tire iron or pipe at a time earlier than the actual assault," that was "part of the evidence in the case," and it was "not improper for the People to show it in slow motion or for the jury to request it in slow motion" (id. at 11). Sentencing The court acknowledged that appellant did not strike the blow that 12 resulted in Mr. Jiminez's death, but did not find that factor to warrant a lesser sentence than the 18 years it had imposed on Castillo (Sentencing Minutes, at 28-29). The court emphasized that the weapon was not produced unexpectedly but that, as the videotape showed, appellant knew that Castillo had it (id. at 29-30). The portion from ten minutes before "showed that whatever [appellant's] own intent was, what kind of force he was going to use, he knew that somebody else was waiting to assist him, had been waiting around for hours to assist him in [sic] a dangerous very lethal weapon" (id. at 30). The court imposed a determinate term of 18 years and five years of post- release supervision (id. at 31 ). Post-Conviction 440.10 Motion and Appellate Division 1\ppeal Appellant, by appellate counsel, moved for the judgment to be vacated on the grounds of ineffective assistance of counsel, based on defense counsel's failure to familiarize himself fully with the videotape evidence, resulting in a defense that fell apart when the full facts emerged (Motion to Set Aside the Judgment, record on appeal). Defense counsel provided a sworn affirmation admitting that he did not carefully review the videotape and was unaware of what the earlier portion showed (see Exhibit D to Motion, ~4). He would have requested the lesser included offense of manslaughter in the second degree had he been so aware (id. at ~5). The lower court denied appellant's motion (Decision, record on appeal). The court considered the motion "an attempt to characterize trial counsel's overall performance at trial as 'ineffective' simply because a carefully and professionally crafted strategy did not succeed" (Decision, at p. 5). Appellant was granted leave to appeal to the Appellate Division, First Department. On his consolidated appeal from the judgment and the denial of the 440 motion, appellant again argued that counsel was ineffective for failing to carefully 13 review the videotape and then relying on it to support the defense. Appellant also incorporated co-defendant Castillo's argument that the court's causation charge improperly permitted the jury to find appellant guilty of manslaughter even if the jury found only that he caused injury to the victim. A majority of the Appellate Division affirmed. It rejected the causation argument as unpreserved and the charge "proper" when ''viewed a whole." People v. Degraffenreid, Appeal No. 16574-16574A, at 37- 38).6 As for the ineffectiveness claim, the court agreed that the video evidence "ha[d] bear[ing] on the defense," but held that it "d[id] not need to decide whether ... defense counsel should have viewed the video in slow motion," because the evidence that appellant participated in the assault after Castillo's attack "established" appellant's intent and made any issue about the tire iron "largely irrelevant." Id. at 39. Justice Tom dissented, for the reasons articulated in his dissent in Castillo's case (id. at 40; People v. Castillo, Appeal No. 16343, at 7-18). Justice Tom found that the court's single causation charge, by "lumping" '"death, physical injury or serious physical injury' together to the jury," and then selectively and inconsistently adding the word "death," could have led the jury "to find defendant guilty of manslaughter in the first degree by merely finding defendant caused the victim's physical injury or serious physical injury" (Castillo, at 15). Justice Tom found that the error was not harmless given the "battle of experts" as to whether the injury or the hospital's negligence caused the victim's death (id. at 16), and that the error presented a question of law under People v. Thomas, 50 N .Y.2d 467, 471-472 (1980) (id.). Justice Tom granted appellant permission to appeal to this Court.7 6 The Appellate Division decisions in appellant's and co-defendant Castillo's cases are enclosed herewith. 7 Based on conversations with Castillo's appellate counsel, Castillo's leave application to Justice Tom is pending. The Appellate Division remanded Castillo's case for a new sentencing proceeding pursuant to People v. Rudolph, 21 N.Y.3d 497 (2013) (Eeople v. Castillo, Appeal No. 14 ARGUMENT POINT I DEFENSE COUNSEL WAS INEFFECTIVE UNDER THE STATE AND FEDERAL CONSTITUTIONS. U.S. CONST., AMENDS. Vl, XIV; N.Y. CONST., ART. I,§ 6. In this technology-rich era of litigation, where surveillance tapes and other forms of electronic monitoring and recording often provide crucial evidence in criminal prosecutions, competent defense counsel must be conversant with the tools and language of technology and painstaking in their investigation of such potentially devastating evidence. In particular, where a defendant is charged with acting in concert, and a videotape records the conduct of the defendant and the co-defendant leading up to the incident or the incident itself, counsel's duty to investigate requires that counsel do more than casually view the videotape: counsel must scrupulously analyze the tape, frame-by-frame if possible, in order to ensure that the defense he or she formulates is not contradicted by the objective evidence that the prosecution will introduce. Defense counsel's failure to do so here spelled disaster for appellant, for after viewing a portion of the videotape footage that counsel had failed to review carefully and that conflicted with his representations, the jury swiftly reached a verdict convicting appellant of first-degree manslaughter. A. Ineffective Assistance of Counsel Under State and Federal Law To establish ineffective assistance of counsel under New York law, a defendant must prove that counsel's performance, viewed in its totality, did not amount to meaningful representation. ~People v. Benevento, 91 N.Y.2d 708,711-12 (1998). The analysis turns not on whether the defendant would have been acquitted but for counsel's error, but on whether the defendant was deprived of a fair trial. See 16343, at S-6). That proceeding has not yet been conducted. 15 Benevento, 91 N.Y.2d at 714. Under federal law, to vacate a conviction based on ineffective representation, a defendant must show that his attorney's performance was professionally unreasonable, and that there was a reasonable probability that, but for counsel's unprofessional conduct, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 689-92 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. B. Counsel's Failure to Investigate the Videotape Evidence "Essential to any representation, and to the attorney's consideration of the best course of action on behalf of the client, is the attorney's investigation of the law, the facts, and the issues that are relevant to the case." People v. Oliveras, 21 N.Y.3d 339, 346 (2013) (citing Stricldand). "An attorney's strategy is shaped in significant part by the results of the investigation stage of the representation," and a defendant is constitutionally "entitle[d] ... to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial." Id. (internal quotation marks and citation omitted); see also People v. Droz, 39 N.Y.2d 457, 462 (1976)("It is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense."). In Oliveras, this Court found counsel ineffective where, having chosen to focus on the defendant's mental abilities to undermine the voluntariness of his admissions, counsel then forewent "any investigation of the critical documents concerning defendant's mental condition, and instead, sought to present this defense through the testimony of defendant's mother," a biased witness. 21 N.Y.3d at 347. This strategy, "born in the blind," was a "case of a lawyer's failure to pursue the 16 minimal investigation required under the circumstances." Id. at 348. Because the case turned on the defendant's inculpatory statements, defense counsel's ability to undermine their voluntariness "was crucial." Id. Defense counsel's failure to "fully develop" that strategy by failing to review available mental health records was not just a "failed trial strategy." Id. "Trial counsel did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action for his or her client .... there is simply no legitimate explanation for this purported strategy." Id. Counsel's failure to review crucial documents that "would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case" constituted denial of effective assistance and seriously compromised defendant's right to a fair trial. Id. Here, defense counsel's admitted failure to fully review the videotape that he relied on in formulating and presenting the defense - a defense that was then rebutted by a different portion of the very videotape he so aggressively relied upon- similarly amounted to ineffective representation and compromised appellant's right to a fair trial. The issue of intent was key to the defense, and it made sense for counsel to try to use the favorable fact that appellant did not himself strike the blow to structure a defense that mitigated his culpability. But the modified aU-or-nothing defense that defense counsel settled on, hinging on appellant's unawareness of the pipe, was based on his own incomplete investigation into the facts and could not hold up once the full facts emerged. His failure to properly investigate the full contents of the videotape doomed that defense once the jury so clearly saw the damaging portion in deliberations establishing that appellant full well knew that his cohort had armed himself. As in Olivera.s, "[t]rial counsel did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the 17 best course of action for his or her client." 21 N.Y.3d at 348. There can be no question that defense counsel's failure prejudiced appellant under both state and federal standards. Strickland prejudice is made out, as there is a reasonable probability that, but for counsel's unprofessional conduct, the result of the proceedings would have been different. 466 U.S. at 688-94. As counsel affirmed, had he been aware of what the videotape showed 11 minutes before, he would have requested the court to charge the lesser included offense of second-degree manslaughter, a decision that was his to make. See People v. Colville, 20 N.Y.3d 20, 32 (2012). Because of his incomplete investigation, counsel's decision to forego second-degree manslaughter was uninformed. It was, as in Oliveras, a strategy "born in the blind." Based on the evidence, there is, at the least, a reasonable probability that, given the option, the jury would have acquitted appellant of manslaughter in the first degree and convicted him of the lesser charge of manslaughter in the second degree, a class C non-violent felony. The jury could well have accepted the reasonable proposition that, while appellant knew Castillo was armed, he did not know b.m£ Castillo would use the pipe. See People v. May, 9 A.D.2d 508, 513-14 (1st Dep't 1960)Gudgment modified from murder to second-degree manslaughter under former Penal Law 1 052(3) where the evidence did not establish that the defendant knew beforehand that the codefendant was going to use his knife to kill the victim). Had defense counsel properly prepared himself to deal with all of the events depicted on the videotape, he could have persuasively argued that appellant did not know that Castillo would actually use the pipe, as opposed to just threaten its use, or that in using it, Castillo would choose to deliver a forceful blow to Mr. Jiminez's head. His arguments that appellant only came for a fight and without the intent to cause serious physical injury would have been of equal service, but would not have been fatally 18 contradicted by the objective evidence. Nor can there be any doubt that defense counsel's failure to fully investigate the case affected the fairness of the proceeding as a whole, violating state constitutional standards. A lawyer who essentially sabotages his client's case due to lack of investigation does not render meaningful representation and undermines the proceeding's fairness. See,~, People v. Barnes, 106 A.D.3d 600 (1st Dep't 2013)(flnding lack of meaningful representation where defense cow1sel cavalierly argued in summation that the evidence bags containing the drugs the defendant allegedly sold to the undercover did not resemble those recovered from the defendant, only to discover, along with the jurors, that, as the People had argued, the drugs matched; "This self-sabotage of counsel's defense strategy," the court stated, "albeit inadvertent was inherently unreasonable and prejudiced defendant's right to a fair trial under New York law"); People v. Cyrus, 48 A.D.3d 150 (1st Dep't 2007)(defense counsel's failure to investigate the contents of a store surveillance videotape resulted in defense counsel opening the door to damaging testimony about its contents; court states, "No reasonably competent attorney would have asked the officers about the videotape without having previously investigated its contents"). As in Barnes and Cyrus, defense counsel here "self-sabotaged" the defense, albeit inadvertently, by pressing the jury to credit a videotape that ultimately supported his client's guilt. Like counsel in Barnes, he urged the jury to accept a scenario that the very evidence he relied upon rebutted. He and the jury learned together that the videotape upon which he relied in fact contradicted his representations that appellant was unaware of the pipe Castillo was wielding behind him. And similar to counsel in Cyrus, he laid stress on a videotape to make his case, even urging the jury to accept it as accurate, without having fully investigated its contents. Defense counsel's efforts to undo the damage through his motion to set 19 aside the verdict confirm that he was taken by surprise by what the earlier portion of the videotape depicted, and that it was ignorance, not tactics that explained his selective use of the videotape The Appellate Division did not dispute that the videotape had bearing on the defense, but did not reach the issue of counsel's ineffectiveness. The court concluded that appellant's intent "was established" by evidence "that he participated in the assault after his codefendant actually struck the victim with the tire iron," rendering any issue concerning when appellant knew about the tire iron "largely irrelevant. The Appellate Division's finding, essentially that appellant suffered no prejudice, should not be adopted by this Court. The evidence that appellant participated in the assault after Castillo administered the blow to the head was sparse and conflicting. Gonzalez was the only witness to testify that appellant assisted Castillo by restraining Mr. Jiminez. Gonzalez, however, did not tell this to the police in his supposedly truthful statement five days later when he told the police "exactly everything that happened." His testimony was unreliable in any case. He was so scared during the assault that he ran away rather than try to help his friend. His terrified state of mind could well have interfered with his perceptions, as well as his later recollection of the events. Further, as Mr. Jiminez's good friend, he was an interested, and certainly less-than-impartial, witness. He might well have exaggerated appellant's involvement in order to ensure that the jury would hold him fully responsible. Echavarria, on the other hand, was a neutral observer of the incident, as it did not involve him and he was not frightened by it. He had no reason to lie or exaggerate and, as such, his testimony that appellant threw just a single punch was credible and reliable. Defense counsel in summation urged the jury to discredit Gonzalez and credit Echavarria; the prosecution argued the opposite. The medical records consistently mentioned only the blow to the head 20 and hospital personnel did not note any injuries to Mr. Jiminez's trunk or extremities when he was admitted. If the jury credited Gonzalez, a less-than-stellar witness, over Echavarria, defense counsel's ineffectiveness may well account for that choice. In Barnes, the Appellate Division recognized that, in focusing on the Ziploc bags, defense counsel eviscerated his entire strategy, even the part that reasonably attacked the \vitness's credibility and questioned the absence of any pre-recorded money tying the defendant to the sale. ''The jury could not be expected to acquit defendant on the theory that the People's case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial," the court observed. 106 A.D.3d at 606. Even if defense counsel's inevitable loss of credibility with the jury did not induce it to credit Gonzalez over Echavarria, his testimony could not, independently of the videotape, "establish" that appellant shared the intent to cause serious physical injury. It was the blow to the head that caused Mr. Jiminez to suffer a serious physical injury, and which the prosecution expert testified caused his death. There was no clear evidence concerning what specific injuries, if any, Mr. Jiminez suffered after he was struck on the head. The hospital did not even note additional injuries at intake. It was thus appellant's knowledge with respect to the pipe, before Castillo administered the blow, that provided the most probative proof of his intent, as both sides recognized in their mutually aggressive use of the surveillance footage. Given the centrality of the arguments made based on the videotape, the issue of appellant's knowledge of the pipe, which proper investigation of the footage would have revealed, can not be dismissed as "irrelevant." C. Counsel's Failure to Object to the Causation Charge By conflating the CJI "cause of injury" charge with the "cause of death" charge - two distinct charges addressing different factual situations - the court delivered 21 an erroneous and confusing charge that had the effect of diminishing the prosecution's burden of proof, exactly as Justice Tom recognized in his dissenting opinion below. Counsel's inexplicable failure to object to this charge, the deficiencies of which are clear on the face of the record and could not possibly benefit appellant, again deprived appellant of effective assistance of counsel and meaningful representation under the federal and state constitutions. Under Penal Law§ 125.00, homicide is defined as "conduct which causes the death of a person." "This means that the prosecutor must, at least, prove that the defendant's conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death." People v. Stewart, 40 N.Y.2d 692, 697 (1976). "[T]he defendant's actions must be a sufficiently direct cause of the ensuing death." Id. Here, by lumping together the separate CJI pattern instructions for "cause of death" and "cause of injury," the court instructed the jury that the causation required for homicide would be satisfied by showing that appellant's conduct was a sufficiently direct cause of Mr. Jiminez's injury. The trial court's instructions expressly stated that a person causes death if his conduct is a direct cause of another person's injury (A.954-55). This misstated the law, see Stewart,~' and diminished the prosecution's burden of proof by permitting the jury to convict appellant of manslaughter without first finding that he actually caused Mr. Jiminez's death. Also erroneous were the court's instructions in addressing the impact of "medical or surgical treatment," which did not use the term "death" at all (A.956). The court thus completely omitted the clearly established legal principle that improper medical treatment can break the chain of causation and serve as an intervening cause of death. See Stewart, 40 N.Y.2d at 697; People v. Bowie, 200 A.D.2d 511, 512 (1st Dep't 1994)(if improper treatment is the sole cause of death, then causation cannot be 22 shown). Defense counsel's failure to object to these erroneous instructions constituted ineffective assistance of counsel and deprived appellant of meaningful representation. Although this is not a single error case, the error meets even that demanding standard, as counsel's omission involves an issue that "is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and ... the decision to forgo the contention could not have been grounded in a legitimate trial strategy." See People v. Keschner, 25 N.Y.3d 704,723 (2015)(citations and internal quotation marks omitted). Here, as explained, the court's deviation from the distinct CJI charges is clear and amounted, as Justice Tom recognized, to reversible error. Nor, contrary to the Appellate Division majority, did the court's "charge as a whole" convey the correct standard. Unlike the cases relied upon by the Appellate Division majority, People v. Umali, 10 N.Y.3d 417 (2008), and People v. Ladd, 89 N.Y.2d 893 (1996), the court's erroneous statements were not isolated remarks, nor did other portions of the court's charge convey the correct standard for fmding the element of causation in a homicide. The only charges given with respect to causation were incorrect and muddled. The charges "misstated the applicable law'' and "tended, in the end to confuse ... the jury," and, as such, required competent counsel to object. See People v. Ellis, 81 N.Y.2d 854, 857 (1993). Finally, counsel's failure to object was not strategic, as counsel, although primarily focused on intent, specifically raised causation as another ground for finding reasonable doubt. Accordingly, counsel's inexplicable failure to object to this clearly erroneous charge requires reversal as well on the grounds of ineffective assistance of counsel. 23 POINT II THE COURT'S ERRONEOUS CAUSATION CHARGE REQUIRES REVERSAL. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I,§ 6. Due process requires that the prosecution bear the burden of proof beyond a reasonable doubt for every essential element of a crime. In re Winship, 397 U.S. 358, 361-62 (1970); Francis v. Franklin, 471 U.S. 307,313 (1985). A jury instruction that omits or materially misdescribes an essential element of an offense relieves the state of its obligation to prove facts constituting every element of the offense beyond a reasonable doubt, thereby violating the defendant's federal due process rights. Such instructions "subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases." See Carella v. California, 491 U.S. 263, 265 (1989); Smith v. Horn, 120 F.3d 400, 145 (3rd Cir. 1997). Here, as established in Point IC, ante, the court's causation charge materially misdescribed an essential element of manslaughter, that appellant had to cause the victim's death. The charge instructed the jury to convict appellant of homicide even if the People proved only that he caused injury to Mr. Jiminez - a fact defense counsel himself conceded. Charge-as-a whole analysis cannot rescue this erroneous charge, given the pervasiveness of the misstatements and the absence of any corrective charge, see ante. As Justice Tom explained in his dissent, the error was "prejudicially defective": "[W]hile the evidence that defendant participated in the assault was overwhelming, the evidence that those injuries caused the victim's death was not, and the jury was faced with a batde of experts and a question of fact as the ultimate cause of the victim's death. Consequently, the court's error essentially 'gutted' the defendant's 24 causation defense." Castillo, at 16. The charge was particularly harmful to appellant, who did not even strike the blow that caused the victim's head injury. Finally, the error is reviewable as a matter of law despite defense counsel's lack of objection. Errors going to "the essential validity of the proceedings conducted below" are exempt from normal preservation requirements. See People v. Patterson, 39 N.Y.2d 288 (1976)(reviewing the merits of the defendant's unpreserved challenge to the proof burden that was placed on him to prove that he was acting under extreme emotional disturbance). Errors that "expressly shift[] the burden of proof to the defendant or explicitly relieveD the People of their burden of proving every element of the crimes charged" will come within the exception, while charges that are simply capable of being interpreted as having that effect, will not. See People v. Thomas, 50 N.Y.2d 467, 472 (1980)(declining to review the defendant's unpreserved challenge to the lower court's instruction that a person is presumed to intend the natural and probable consequences of his act and is presumed to intend that which he actually does). Here, the charge expressly relieved the prosecution of its burden of proving cause of death as it directed the jury to find that essential element if it found that appellant caused only the victim's injury. The charge did not merely allow for that interpretation; rather, having lumped together two distinct charges, the court explicitly directed the jury to conduct that analysis and reach that conclusion if it found the necessary facts. Under the unique circumstances here, the charge presents the "more basic defect" of concern in Patterson, and comes well within the narrow exception to the preservation rule. Under the court's confusing charge, it remains unknown whether the jury actually found that appellant caused Mr. Jiminez's death, and his conviction, arrived at under the court's flawed charge on an element in contention, should not stand. 25 For the above reasons, appellant's conviction must be reversed. Respectfully submitted, Barbara Zolot cc: Nancy Killian, Esq. District Attorney Bronx County 26