The People, Respondent,v.Christopher Martinez, Appellant.

Brief

N.Y.January 16, 2014

To be argued by MARISA K. CABRERA (Time Request: 15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHRISTOPHER MARTINEZ, Defendant-Appellant. REPL Y BRIEF FOR DEFENDANT-APPELLANT MARISA K. CABRERA Of Counsel June 11, 2013 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT . . 1 ARGUMENT 1 POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO ISSUE AN ADVERSE INFERENCE CHARGE WHERE MR. MARTINEZ SUFFERED PREJUDICE (replying to Respondent's Point Two). . . . . . . . . . . . . . . . . .. . 1 A. Mr. Martinez suffered sufficient prejudice to warrant an adverse inference instruction. 1 B. Denials of adverse inference charge requests are not subject to harmless error analysis. 7 POINT II CONCLUSION MR. MARTINEZ'S IDENTITY AS THE GUNMAN WAS NOT PROVEN BEYOND A REASONABLE DOUBT WHERE THE SOLE IDENTIFYING WITNESS WAS INCREDIBLE AND BASED HIS BELATED IDENTIFICATION ON THE PURPORTEDLY AWKWARD BACKWARDS MOVEMENT OF THE GUNMAN (replying to Respondent's Point One) . . . . 14 17 i TABLE OF AUTHORITIES Cases Chapman v. California, 386 U.S. 18 (1967) ..................... 9 Fahy v. Connecticut, 375 U.S. 85 (1963) ...................... 11 People v. Allen, 13 N. Y. 3d 251 (2009) · ....................... 15 People v. Anderson, 222 A.D.2d 442 (2d Dep't 1995) . ........ 5, 7 People v. Banch, 80 N. Y. 2d 610 (1992) · ..................... 3, 5 People v. Bradley, 250 A. D. 2d 502 (1st Dep't 1998) . .......... 16 People v. Concepcion, 17 N.Y.3d 192 (2011) . ................... 1 People v. Crimmins, 36 N. Y. 2d 230 (1975) . ............. 9, 10, 11 People v. Dunn, 185 A. D. 2d 54 (1st Dep't 1993) . .............. 12 People v. Handy, 20 N.Y.3d 663 (2013) · ..................... 7, 8 People v. Hurd, 160 A. D. 2d 199 ( 1st Dep't 1990) . ............. 16 People v. Joseph, 86 N. Y.2d 565 (1995) . .................. passim People v. Lafontaine, 92 N.Y.2d 470 (1998) .................... 1 People v. Lee 221 A.D.2d 473 (2d Dep't 1995) ................. 14 People v. Lyons, 197 A.D.2d 708 (2d Dep't 1993) .............. 14 People v. Martinez, 71 N.Y.2d 937 (1988) ................... 3, 9 People v. Monette, 70 A.D.3d 1186 (3d Dep't 2010) ............ 14 People v. Ranghelle, 69 N.Y.2d 56 (1986) ...................... 8 People v. Thomas, 2013 WL 2393253 (June 4, 2013) ......... passim People v. Wallace, 76 N.Y.2d 953 (1990) ................. 3, 5, 7 People v. White, 232 A.D.2d 436 (2d Dep't 1996) ............... 6 ii Statutes C.P.L. § 240.75 .......................................... passim C.P.L. § 470.15(1) ............................................ 1 iii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CHRISTOPHER MARTINEZ, Defendant-Appellant. ----------------------------------------x PRELIMINARY STATEMENT This brief is submitted in reply to Respondent's Brief ("RBU) filed on May 28, 2013. ARGUMENT POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO ISSUE AN ADVERSE INFERENCE CHARGE WHERE MR. MARTINEZ SUFFERED PREJUDICE (replying to Respondent's Point Two). ~ Mr. Martinez suffered sufficient prejudice to warrant an adverse inference instruction. As a preliminary matter, implicitly conceding that the lower court's denial of the adverse inference charge due to lack of bad fai th was error, respondent nonetheless contends that C. P. L. § 470.15 (1) does not bar this Court from reaching the issue of prej udice in this case. Specifically, respondent argues that People v. Lafontaine, 92 N.Y.2d 470 (1998), and People v. Concepcion, 17 N.Y.3d 192 (2011), "have no application where an 1 appellate court affirms a judgment on the basis of the harmlessness of the purported error." RB at 32. The Appellate Division here, however, did not "affirm[] [] judgment on the basis of the harmlessness of the purported error." RB at 32. The only question before the Appellate Division was whether the trial court erred in denying the adverse inference charge, and the First Department's ruling squarely addressed that question in terms of "bad faith": "[t]he court properly exercised its discretion in declining to deliver an adverse inference charge" because "[t]here was no evidence of bad faith on the part of the People or prej udice to defendant." (A. 5). Accordingly, Mr. Martinez's Lafontaine argument stands: because the trial court determined only that lack-of-bad faith warranted denial of the adverse inference charge, this Court's authority is limited to deciding that issue. See People v. Thomas, 2013 WL 2393253 (June 4, 2013) (noting that Lafontaine may preclude the Appellate Division's affirmance of a missing witness charge denial on a ground other than what was decided below). As to that, for the reasons stated in Mr. Martinez's original brief, the court committed error when it relied on the officer's lack of bad faith to deny the adverse inference charge. In any event, the denial of the adverse inference charge was error even if this Court were to consider the alternate ground of "prejudice." Initially, while respondent spends considerable time 2 discussing the applicability of C.P.L. § 240.75 (RB at 22-23, 31- 33), respondent does not dispute that C.P.L. § 240.75 is not applicable in evaluating prejudice at the trial level upon a defendant's requests for an adverse inference charge. Rather, the appropriate standard is, as Mr. Martinez maintains, that he suffered sufficient prejudice from the loss of Rosario material that "would have been helpful" to his misidentification defense and attacking the credibility of the sole identifying witness. People v. Wallace, 76 N.Y.2d 953, 955 (1990). Respondent's assertion that Mr. Martinez was required to "explain what could have been in the 'scratch 61' . that would be different from the finished version he apparently possessed or how he was otherwise prejudiced" (RB at 21) stands in direct contravention to this Court's prior decisions. In People v. Banch, 80 N.Y.2d 610, 616 (1992), and People v. Joseph, 86 N.Y.2d 565,571 (1995), this Court held that to adequately determine the level of prej udice a party has suffered, "the trial court must try to determine the content of the missing material." (Emphasis added) . Similarly, this Court's previous cases conclude that a defendant's request for a sanction is sufficient without a specific showing on the record. See, e.g., Joseph, 86 N.Y.2d at 568 (reviewing a Rosario violation claim where "defense counsel asked the court to give the jury an adverse-inference charge regarding the destruction of the arrest envelopes."); People v. Martinez, 71 N.Y.2d 937 3 (1988) ("[D]efense counsel moved to preclude" the witness' testimony "on the ground that the [scratch 61] of [the witness'] statement to the investigating police had not been served upon him."). Mr. Martinez was only required to request a sanction to remedy the prejudice he suffered. He did not need to "explain what could have been in the 'scratch 61.'" (RB at 21) in order to secure the modest remedy he requested. Although a different context, this Court's recent decision in People v. Thomas, 2013 WL 2393253 (June 4, 2013) is instructive. In finding that the trial court committed error in denying defendant's request for a missing witness charge, the Court examined the defense at trial and the role the missing witness' testimony could have played in buttressing the defense. See id. This Court held that to receive a missing witness charge, "counsel had no obligation to make an offer of proof as a predicate" for the charge since "the witness [wa]s in the control of the party that failed to call him. 11 rd. (emphasis added). As such, "[a] party making such an argument, like one requesting such an instruction, 'can hardly know what [the] witness knows or what the witness would say if called.' 11 Id. ( internal citations omitted). Like the defendant in Thomas, Mr. Martinez did not have access to the responding officer's scratch 61 notes, which would have included notes of the initial conversation with the sole identifying witness. Although respondent repeatedly claims that 4 Mr. Martinez was not entitled to the charge because he failed to show "how he was otherwise prejudiced," (RB at 21), Mr. Martinez had "no obligation to make an offer of proof as a predicate." Thomas, 2013 WL 2393253. Rather, because the lost scratch 61 notes were "in the control of the party that failed" to preserve the documents, Mr. Martinez could "hardly know" the contents of the lost Rosario materials. Thomas, 2013 WL 2393253. Consistent with Banch, Joseph, and now Thomas, it was sufficient for Mr. Martinez to request the adverse inference charge. No further showing was required since it was the prosecution that had violated its statutory duty to preserve Rosario material. See Banch, 80 N.Y.2d at 620 (finding that the burden of explaining the loss of Rosario is on the prosecution, "who are thereby seeking to be excused from their obligation to disclose the material."). To justify the loss of the scratch 61 notes, respondent repeatedly asserts that the typed "final copy . was given to defendant" and, thus, "it is [] unclear how defendant would have benefited (sic) from the handwritten report as opposed to the typed report." RB at 24, 27. However, "the loss of 'scratch' notes cannot be excused on the ground that the final, typed report is the duplicative equivalent of the missing writings." People v. Anderson, 222 A.D.2d 442, 444 (2d Dep't 1995) (citing People v. Joseph, 86 N.Y.2d 565 (1995}); see People v. Wallace, 76 N.Y.2d 953 (1990) ("The undercover officer's claim that he incorporated the 5 description of defendant into his 'buy' report did not alleviate that prejudice. There is no way to know whether the description contained in the 'buy' report matched those contained in the lost notes."). Because the notes were lost, it is impossible to ascertain whether the information contained therein was identical to the information in the typed complaint. Therefore, regardless of whether Mr. Martinez had the typed complaint report, the scratch 61 notes were still independent material evidence that Mr. Martinez had the right to review, and which opportunity was lost due to respondent's negligence. Furthermore, respondent's complaint that Mr. Martinez fails to articulate "precisely" what he "claims he would have gained from the handwritten complaint report" (RB at 26) rings hollow when it is due to respondent's failure to preserve the material that has put Mr. Martinez in that position. This Court made that very point in People v. Joseph: Since it was the conduct of the police that resulted in the loss and made it impossible to know whether the information they contained was consistent with the People's position at trial, the People cannot now be heard to complain that the defendant's showing of prejudice is not sufficiently definite and clear. 86 N.Y.2d at 571; see also Thomas, 2013 WL 2393253. Here, where the defense was misidentification, the loss of any documents that may have referred to the sole identifying witness' description prejudiced Mr. Martinez. See, e.g., People v. White, 232 A.D.2d 6 436, 437 (2d Dep't 1996) ("A defendant is by definition prejudiced when identification is an issue in the case and the memo book 'would have been helpful to [him] in cross-examining officers.'"). Indeed, no "precise" showing of prejudice is necessary in cases where identification is an issue since no examination of the description can be completed without the lost document. Accordingly, since Mr. Martinez was sufficiently prejudiced by the lost scratch 61 notes, the conviction should be reversed and a new trial ordered. ~ Denials of adverse inference charge requests are not subject to harmless error analysis. Contrary to respondent's newly-minted argument, adverse inference charge requests are not subject to harmless error analysis. See, e.g., People v. Handy, 20 N.Y.3d 663 (2013); Joseph, 86 N.Y.2d at 572; People v. Wallace, 76 N.Y.2d 953 (1990); People v. Anderson, 222 A.D.2d 442 (2d Dep't 1995). Rather, the prejudice analysis, used in determining whether an adverse inference charge is warranted, satisfies harm for purposes of appellate review. Adopting respondent's argument would require a defendant to make an affirmative showing that he suffered prejudice - a burden that has never before been imposed on a party seeking an adverse inference charge. See People v. Handy, 20 N. Y . 3d 663 (2013); Joseph, 86 N.Y.2d at 571; cf. Thomas, 2013 WL 2393253. 7 Respondent mistakenly claims that since the 2001 enactment of C.P.L. § 240.75, adverse inference charge requests are subject to a harmless error analysis. RB at 23, 31-33. This Court, however, recently reversed a conviction and ordered a new trial for a trial court's refusal to issue an adverse inference charge for missing evidence without invoking a harmless error analysis. Handy, 20 N. Y. 3d at *4. Analogizing the missing evidence to lost Rosario materials, this Court determined that because the missing evidence prejudiced the defendant at trial, this was a sufficient showing to warrant reversal. Similarly, since Mr. Martinez suffered prejudice at trial for respondent's failure to preserve Rosario material, no additional showing of harm is required and a new trial should be ordered. While acknowledging that C.P.L. § 240.75 was enacted "to overturn the so-called 'Ranghelle Rule,'" (RB at 22), respondent fails to acknowledge what the legislature sought to correct by enacting § 240. 75. The "Ranghelle Rule" had provided that a complete failure to deliver Rosario material was per se error requiring reversal and a new trial without any showing of prejudice. See People v. Ranghelle, 69 N.Y.2d 56, 63 (1986). It was not enacted to address circumstances where lost material prompts a request for a charge. Accordingly, C.P.L. § 240.75 is limited to cases where reversal is sought at the trial level as a remedy for undisclosed Rosario material. Section 240.75 is not 8 intended to impact cases involving requests for the far more modest remedy of an adverse inference charge. Finally, it is important to recognize the practical impact of respondent's proposed interpretation of C.P.L. § 240.75. Respondent's proposal would eliminate the sliding scale this Court has always utilized when evaluating Rosario claims; namely, the severity of the sanction correlates to the prejudice suffered. See, e.g., Martinez, 71 N.Y.2d at 940 (finding that although defendant suffered sufficient prejudice to warrant an adverse inference instruction, the level of prej udice did not warrant preclusion of the witness' testimony). Indeed, respondent suggests that defendants, such as Mr. Martinez, who seek only the most minimal of remedies for lost Rosario materials should be held to the same standard as defendants who seek the most severe of remedies, such as reversal or preclusion of witness testimony. Should this Court nonetheless conclude that a harmless error- type standard is appropriate on appellate review, then, indeed, the "reasonable possibility" language of C.P.L. § 240.75 should be the standard. Applying respondent's rationale that "C.P.L. § 240.75 is essentially a codification of a harmless error standard" (RB at 32) as set forth under People v. Crimmins, 36 N.Y.2d 230 (1975), it only follows that the two-prong constitutional Crimmins analysis must be utilized since that standard tracks the language of C.P.L. 9 § 240.75. Compare C.P.L. § 240.75 with Chapman v. California, 386 u.s. 18, 23-24 (1967) and Crimmins, 36 N.Y.2d at 237. In that regard, although not mentioned by respondent, it is well-settled that under constitutional harmless error analysis, the Court must first decide "the quantum and nature of the proof of the defendant's guilt if the error in question were to be wholly excised," and if that proof is "overwhelming." People v. Crimmins, 36 N.Y.2d at 240-41. "[U]nless the proof of the defendant's guilt, wi thout reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error," and reversal must ensue. Id. at 241 (emphasis added). Accordingly, even assuming C.P.L. § 240.75 applied on appeal, the court's refusal to give an adverse inference charge cannot possibly be dismissed as harmless. Examining the totality of the prosecution's case, the evidence was far from overwhelming. See Appellant's Original Brief at Point II. This was a one-witness identification case in which the sole identifying witness, Armando Irizarry, claimed that by using his purported "expertise" of identifying people by their body movements, a skill he developed through his work as a "repairman," he was able to identify the perpetrator by his backwards movement. Mr. Irizarry could provide no description of the movement except that it was "awkward." In fact, Mr. Irizarry could not even consistently describe the movement as either a backwards run, jump or hop. 10 In addition to this implausible basis for his identification of Mr. Martinez, Mr. Irizarry also had significant credibility issues. For example, despite claiming immediate knowledge of Mr. Martinez's identity as the gunman, Mr. Irizarry, a convicted felon, claimed to be too "afraid" to immediately identify him upon the officer's arrival. Yet, a mere hour later, he fearlessly identified Mr. Martinez's brother, co-defendant Selbin Martinez, still without naming Mr. Martinez and providing no explanation for the omission. Wi th these weaknesses in the sole identifying witness' testimony, the evidence in this case was far from overwhelming. Nevertheless, even if the overwhelming, this Court must evidence were still reverse. deemed Under as a constitutional harmless error analysis, if there is overwhelming evidence, the court must also ask what causal connection there is between the errors and the verdict. Crimmins 36 N.Y.2d at 240. Under this standard, "however overwhelming may be the quantum and nature of other proof," the non-disclosure of the Rosario materials is not harmless if there is a "reasonable possibility that the non- disclosure materially contributed to the result of the trial." Id. at 241 (quoting Fahy v. Connecticut, 375 U.S. 85, 86 (1963)); C.P.L. § 240.75. Here, there is a reasonable possibility the non-disclosure of the lost scratch 61 notes materially contributed to the verdict. 11 Identification was the central issue; therefore, every document relating to the officer's initial investigation and discussions with the complainant was significant. Contrary to respondent's assertions, providing the defense with the typed complaint report was not sufficient, either legally or as a practical matter, since Mr. Martinez was never given the opportunity to examine any inconsistencies between the scratch 61, the typed complaint, and Mr. Irizarry's testimony at trial. Indeed, any inconsistency, no matter how trivial, would be important in this case since Mr. Irizarry's credibility was a primary concern. Without these notes to assist in attacking Mr. Irizarry's credibility and his identification, it is reasonably possible that their non-disclosure "materially contributed to the result of the trial." C. P. L. § 240.75. * * * * * Finally, respondent's contention that this issue is "unpreserved" is erroneous. RB at 21-22. The proper timing for an adverse inference charge is upon discovery of the unavailability of a witness's statement and prior to the final jury charge. See Joseph, 86 N.Y.2d at 568 (reviewing a Rosario violation claim where "aefense counsel asked the court to give the jury an adverse- inference charge regarding the destruction of the arrest envelopes."); People v. Dunn, 185 A.D.2d 54, 57 (1st Dep't 1993) (finding that defense counsel's request for a sanction for 12 destroyed scratch notes was considered timely and preserved for appellate review when made prior to the jury charge). Since defense counsel twice requested an adverse inference charge to remedy the lost scratch 61 notes, the issue was fully preserved for appellate review (A. 287, 301). In sum, the trial court committed reversible error in failing to issue an adverse inference instruction on the basis of the officer's lack of bad faith. Al though this Court's review is limited to this issue pursuant to Lafontaine and Concepcion, Mr. Martinez should still prevail since he suffered sufficient prejudice to warrant the instruction. Because denials of adverse inference charges are not subject to a harmless error analysis, this Court should reverse the conviction and order a new trial. Nevertheless, even if this Court deems C.P.L. § 240.75 to be applicable in this case, Mr. Martinez is still entitled to reversal because the error was harmful: the prosecution's evidence was not overwhelming and there is a "reasonable possibility" the non- disclosure of the Rosario material materially contributed to the result of the trial. As such, Mr. Martinez's conviction should be reversed and a new trial ordered. 13 POINT II MR. MARTINEZ'S IDENTITY AS THE GUNMAN WAS NOT PROVEN BEYOND A REASONABLE DOUBT WHERE THE SOLE IDENTIFYING WITNESS WAS INCREDIBLE AND BASED HIS BELATED IDENTIFICATION ON THE PURPORTEDLY AWKWARD BACKWARDS MOVEMENT OF THE GUNMAN (replying to Respondent's Point One). Mr. Martinez relies mostly on his original brief as to Point II. It is worth noting, however, that despite arguing that "the legal authority" holds that a witness has the "ability to identify defendant based solely upon familiarity with their body movements," respondent glaringly fails to cite to even one "legal authority" that supports this proposition. RB at 11 (emphasis added) . Although respondent claims that a body movement identification is reliable, the only cases cited in its brief are those that rely on other distinguishing and more recognizable features to aid in the identification. RB at 11. For example, in People v. Lee, the victim identified the defendant based on his height, weight and voice. 221 A.D.2d 473 (2d Dep't 1995); see also People v. Monette, 70 A.D.3d 1186 (3d Dep't 2010) (identifying perpetrator based on his distinctive gait and voice); People v. Lyons, 197 A.D.2d 708 (2d Dep't 1993) (recognizing the defendant by his body and voice). Despite admitting that "Mr. Irizarry did not hear the gunman speak," (RB at 11), respondent does not explain how these cases provide any support for its proposition that a nondescript backwards movement is sufficient proof to establish the gunman's identity beyond a reasonable doubt. 14 Similarly, respondent's reliance on People v. Allen, 13 N.Y.3d 251 (2009) is misplaced. RB at 18. In Allen, the perpetrator "exposed the top portion of his face," asked the victim for money and screamed "it's time to go" to his accomplice. 13 N.Y.3d at 262 (emphasis added). Unlike in this case, there were two witnesses to the crime in Allen who were able to identify the defendant by the visible portions of his face, body shape, and voice. Id. at 262- 63. Moreover, unlike Mr. Irizarry, the witness in Allen immediately provided the officer with the name of the defendant at the time of the officer's initial investigation of the crime scene rather than waiting almost two hours. Allen, 13 N.Y.3d at 262. Respondent's failed attempts to liken this case with other cases that presented common methods of identification, specifically voice identification, only highlights the incredible and unreliable nature of this backwards movement identification without any additional corroborating evidence. Additionally, respondent attempts to misconstrue the basis of Mr. Irizarry's identification by stating that Mr. Irizarry "saw [the gunman's] eyes" to assist in the identification. RB at 11. However, when asked if there was "anything special about [the gunman's] eyes," Mr. Irizarry responded in the negative and admitted that he "wasn't looking at his eyes," because he "was looking at the barrel of his gun" (A. 126, 130-31). At no point 15 did Mr. Irizarry claim to rely on the gunman's eyes to assist in his identification. Finally, contrary to respondent's contention, Mr. Irizarry's correct identification of co-defendant as one of the perpetrators had no bearing on the reliability of Mr. Irizarry's identification of Mr. Martinez. RB at 17. Unlike co-defendant, Mr. Irizarry never heard Mr. Martinez's voice nor did he ever see his face, but, instead, could only rely on a body movement as the sole basis for identifying the gunman. Moreover, unlike co-defendant, who was discovered with a wound to his forehead, the gunman did not sustain any injuries from Mr. Irizarry's cue ball filled sock to assist in identifying him. Notably, respondent cites to numerous evidentiary cases to support identification of gunman. RB at 17 its contention that Mr. Irizarry's correct co-defendant implicates Mr. Martinez as the (citing People v. Bradley, 250 A.D.2d 502 (1st Dep't 1998) and People v. Hurd, 160 A.D.2d 199, 200 (lst Dep't 1990)). It is undisputed that the fact that the co-defendants were brothers was admissible into evidence because it was relevant. However, the court's determination of the admissibility of this fact cannot be compared to the prosecution's burden at trial. Thus, the fact that the defendants were brothers was insufficient, without more, to sustain respondent's burden of proving beyond a reasonable doubt that Mr. Martinez was the gunman. 16 Indeed, the likely reason why Mr. Irizarry only identified Mr. Martinez as the gunman was because he was co-defendant's brother, who he knew to be involved. Since Mr. Irizarry had little to no opportunity to view any identifiable features of the gunman, Mr. Irizarry relied on co-defendant's familial ties to extend his guilt to his brother despite the lack of evidence. Due to Mr. Irizarry's incredible testimony and the implausible basis of his identification, Mr. Martinez's identity as the gunman was not proven beyond a reasonable doubt. Accordingly, Mr. Martinez's judgment of conviction should be reversed and the indictment dismissed. CONCLUSION FOR THE REASONS SET FORTH IN POINT I AND IN THE ORIGINAL BRIEF, MR. MARTINEZ'S JUDGMENT OF CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. FOR THE REASONS STATED IN POINT II AND IN THE ORIGINAL BRIEF, THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation 17