The People, Respondent,v.Christopher Martinez, Appellant.BriefN.Y.January 16, 2014To 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. BRIEF FOR DEFENDANT -APPELLANT MARISA K. CABRERA Of Counsel Aprilll, 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 .. iii PRELIMINARY STATEMENT .. 1 QUESTIONS PRESENTED .. 2 STATUTES INVOLVED ... 3 SUMMARY OF ARGUMENT .. 4 STATEMENT OF FACTS .. 6 The People's Case. 6 The Incident. 6 The Scratch 61 Form .. 11 Motion for Trial Order Dismissal .. 12 The Defense Case .... 12 Verdict and Sentencing .. 13 Appellate Division's Decision. 14 ARGUMENT ... 16 POINT I THE TRIAL COURT'S REFUSAL TO ISSUE AN ADVERSE INFERENCE INSTRUCTION FOR LOST ROSARIO MATERIAL REQUIRES REVERSAL WHERE THE COURT BASED ITS RULING SOLELY ON THE OFFICER'S LACK OF BAD FAITH AND WHERE MR. MARTINEZ SUFFERED PREJUDICE. . . . . . . . . . . . . 16 A. The trial court committed reversible error when it relied solely upon the officer's bad faith to deny Mr. Martinez's request for an adverse inference charge. . . . . . . . . . . . . . . . . 17 B. The court committed reversible error when it failed to issue an adverse inference instruction despite Mr. Martinez's sufficient showing of prejudice from the lost Rosario material in this single-witness identification case.. . . . . . 23 i POINT II THE PROSECUTION FAILED TO PROVE MR. MARTINEZ'S GUILT BEYOND A REASONABLE DOUBT AS A MATTER OF LAW WHERE THE ONLY EVIDENCE TYING MR. MARTINEZ TO THE INCIDENT WAS THE COMPLAINING WITNESS' INCREDIBLE TESTIMONY THAT HE WAS ABLE TO RECOGNIZE THE BRIEF BACKWARDS MOVEMENT OF THE MASKED AND SILENT PERPETRATOR DUE TO HIS OCCUPATION AS A "REPAIRMAN.".. 29 CONCLUSION ......... . 39 ii TABLE OF AUTHORITIES Cases Dorothy D. V. New York City Probation Dept., 49 N.Y.2d 212 (1980) ........................................................ 34 Jackson v. Virginia, 443 u.s. 307 (1979) ...................... 30 People v. Bale, 10 N. Y .2d 515 (1961) .......................... 15 People v. Banch, 80 N. Y.2d 610 (1992) ................. 18, 19' 20 People v. Brown, 80 N. Y.2d 729 (1993) ......................... 32 People v. Carter,63 N. Y .2d 530 (1984) ..................... 13, 37 People v. Concepcion, 17 N.Y.3d 192 (2011) ............. 4, 21, 22 People v. Danielson, 9 N.Y. 3d 342 (2007) ...................... 15 People v. Fratello, 92 N.Y.2d 565 (1998) ...................... 32 People v. Handy, 2013 N.Y. Slip Op. 02103 (Mar. 28, 2013) ................................................. 24, 25, 28 ~~~~~~H~a~u~p~t, 71 N.Y.2d 929 (1988) ..................... passim People v. People v. ~~~~~~H~i~n~t~o~n, 252 A.D.2d 428 (1998), ..................... 16 People v. ~~=.:._y_.:......!H"-'u"-'r'-"'d , 1 6 0 A . D . 2 d 19 9 ( 1 9 9 0 ) , . . . . . . . . . . . . . . . . . . . . . . . 1 6 People v. ~~~~~~J~o~s~e~p=h, 86 N.Y.2d 565 (1995) .................... passim People v. ~~~~~~K~e~l~l~y, 62 N.Y.2d 516 (1984) ............. 18, 19, 20, 21 People v. LaFontaine, 92 N.Y.2d 470 (1998) ............. 4, 21, 22 People v. Martinez, 95 A.D. 3d 677 (1st Dep't 2012) ..... 1, 15, 16 People v. Martinez, 100 A.D. 3d 537 (1st Dep't 2012) ............ 2 People v. Martinez, N.E.2d (2013) ........................ 2 People v. Martinez, 71 N. Y .2d 937 (1988) .................. passim People v. Poole, 48 N.Y.2d 144 (1979) ......................... 18 iii Peoplev. Rayam, 94 N.Y.2d557 (2000) ......................... 15 People v. Reed, 64 N.Y.2d 1144 (1985) ..................... 30, 38 People v. Rosario, 9 N.Y.2d 286 (1961) ........................ 18 People v. Sandoval, 34 N.Y.2d 371 (1974) .................. 30, 35 People v. Wallace, 76 N.Y.2d 953 (1990) ................... passim People v. Washington, 86 N. Y .2d 189 (1995) .................... 18 People v. Way, 59 N.Y.2d 361 (1983) ........................... 34 People v. Young, 79 N.Y.2d 365 (1992) ......................... 18 State v. Henderson, 208 N.J. 208 (2011) ................... 35, 36 Statutes C.P.L. § 240.45 ............................................... 18 C.P.L. § 240.75 ........................................... passim C.P.L. § 330.30 ............................................ 2, 13 C.P.L. § 470.15 ......................................... 3, 21-22 C.P.L. § 470.35 ............................................ 3, 21 N.Y. Const., art. 1 § 6 ........•.............................. 30 P.L. § 110 ..................................................... 1 P.L. § 160.05 .................................................. 1 U.S. Const. Amend. XIV ••...........•.•.....•........•..•...•.. 30 iv 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 By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted on December 11, 2012, this appeal is taken from an order of the Appellate Division, First Department, People v. Christopher Martinez, 95 A.D.3d 677 (1st Dep't 2012) . 1 That order, entered May 22, 2012, affirmed with opinion a judgment of the Supreme Court, Bronx County. Such judgment, rendered March 10, 2011, convicted appellant, Christopher Martinez, after a jury trial, of attempted robbery in the third degree (P.L. §§ 110, 160.05), and sentenced him to an indeterminate term of imprisonment of one to three years (Cirigliano, J., at trial and sentence). The issues herein were preserved for appellate review by the trial court's decision not to issue an adverse inference charge 1 The Order Appendix at A.2. preceded by "A." Granting Leave to Appeal is reprinted in the Citations to the Appendix are in parentheses 1 per defense counsel's request (A. 287, 301) and by defense counsel's motions to dismiss and his written motion pursuant to C.P.L. § 330.30 arguing that the prosecutor's evidence was legally insufficient as a matter of law to establish the identity of Mr. Martinez as one of the perpetrators beyond a reasonable doubt (A. 284-86, 300-01, 427-30). Mr. Martinez's motion to assign Roberts. Dean as counsel on appeal is pending before this Court. No motion for a stay of execution of sentence has been made and Mr. Martinez has completed serving his sentence. Co- defendant Selbin Martinez was convicted, at a joint trial, of attempted robbery in the second degree and was sentenced to four and a half years in prison. Selbin Martinez appealed his conviction and on November 20, 2012, the Appellate Division, First Department affirmed his conviction. People v. Martinez, 100 A.D.3d 537 (1st Dep't 2012). Selbin Martinez was also granted leave by a judge of this Court. People v. Martinez, N.E.2d (2013) . QUESTIONS PRESENTED 1. Whether the trial court's refusal to issue an adverse inference instruction for lost Rosario material requires reversal where the court based its ruling solely on the officer's lack of bad faith and where Mr. Martinez suffered prejudice. 2 2. Whether the prosecution failed to prove Mr. Martinez's guilt beyond a reasonable doubt as a matter of law where the only evidence tying Mr. Martinez to the incident was the complaining witness' incredible testimony that he was able to recognize the brief backwards movement of the masked and silent perpetrator due to his occupation as a "repairman." STATUTES INVOLVED C.P.L. § 240.75 The failure of the prosecutor or any agent of the prosecutor to disclose statements that are required to be disclosed shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding . C.P.L. § 470.15(1) Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant. C.P.L. § 470.35(1) Upon appeal to the court of appeals from an order of intermediate appellate court affirming a judgment, sentence or order of a criminal court, the court of appeals may consider and determine not only questions of law which were raised or considered upon the appeal to the intermediate appellate court, but also any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal 3 court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court. SUMMARY OF ARGUMENT Mr. Martinez challenges the court's denial of his request for an adverse inference charge to remedy the prejudice he sustained from lost Rosario material. In direct contravention of People v. Haupt, 71 N.Y.2d 929 (1988), the trial court denied Mr. Martinez this minimal remedy, finding no bad faith. Citing to People v. Martinez, 71 N.Y.2d 937 (1988) and C.P.L. § 240.75, the Appellate Division then held that Mr. Martinez was not entitled to the charge because "[t]here was no evidence of bad faith" or "prejudice to defendant." That decision was contrary to Haupt as bad faith does not excuse a loss. Rather, it factors into the determination of the remedy. Moreover, C. P. L. § 240. 15 ( 1) jurisdictionally barred the Appellate Division from affirming on the basis of lack-of-prejudice as the trial court did not deny the instruction on this ground. See People v. LaFontaine, 92 N.Y.2d 470 (1998) and People v. Concepcion, 17 N.Y.3d 192 (2011). Nevertheless, it is evident that Mr. Martinez suffered sufficient prejudice under the controlling standard set forth in People v. Wallace, 76 N.Y.2d 953 (1990), People v. Martinez, 71 N.Y.2d 937 (1988) and People v. Joseph, 86 N.Y.2d 565 (1995), since 4 the lost Rosario material "would have been helpful,; or "might have provided useful additional support" to defense. To remedy this prejudice, the trial court abused its discretion in failing to issue a sanction, as a court "must impose an appropriate sanction" when a party is prejudiced by lost Rosario. Wallace, 7 6 N.Y. 2d at 955 (citing Martinez, 71 N.Y.2d at 940) (emphasis in original). The Appellate Division thus erred when it cited to C.P.L. § 240.75, which requires a heightened showing of prejudice, to deny the instruction as it is only applicable to cases where reversal is the remedy sought. Mr. Martinez also argues that the prosecution failed to prove his guilt beyond a reasonable doubt where the prosecution's case depended entirely on one witness: Armando Irizarry, Sr., who claimed he could identify Mr. Martinez as the gunman based on his backwards movement. Irizarry asserted that he was capable of making such an identification because he had a "particular expertise" in identifying people in this manner due to his work as a "repairman." Although Irizarry could not identify the masked gunman's face, physical features, or voice, he contended that he was "one hundred percent sure" that Mr. Martinez was the gunman because of this single unspecified backwards movement. Despite certainty of the backwards-movement identification at trial, Irizarry did not claim such certitude when first reporting the crime. When calling 911, he stated "I think I know who they 5 are." However, when the police responded, he provided only general descriptions ("two men dressed in of [sic] black") but never claimed he even thought he recognized them. Instead, Irizarry waited almost two hours after the initial 911 call and the arrest of co-defendant before identifying Mr. Martinez. In explaining the discrepancies at trial, Irizarry insisted that his memory had "improv [ed] over time." With the entirety of the prosecution's case resting on Irizarry, a person with a criminal history who admitted he "want [ed]" Mr. Martinez convicted presumably because he knew that Mr. Martinez's brother had been involved, Mr. Martinez, a first-felony offender, stands convicted based on uncorroborated backwards-movement identification. The People's Case The Incident STATEMENT OF FACTS his On the evening of July 17, 2009, Armando Irizarry, Sr. ["Irizarry"] and his son, Armando Irizarry, Jr., were going to take the elevator from the fourteenth floor of 535 , an 18 story housing project, to the ground floor to wait for their food delivery (A. 45-47, 158, 175). While waiting for the elevator on the fourteenth floor, Irizarry heard a sound emanating from the stairwell located next to the elevators and opened the stairwell door to investigate (A. 48, 86). On the landing of the thirteenth 6 floor, he saw two men dressed in all black wearing gloves, hoods, and masks (Id.) . 2 After seeing these men, Irizarry closed the stairwell door and returned to his son to continue waiting for the elevator (A. 48, 87). The two men from the stairwell approached Irizarry and his son, one armed with a bat and the other with a gun (A. 48). The gunman proceeded to walk behind Irizarry, while the man with the bat "went up to [Irizarry's] face" (A. 52) . Irizarry testified that he recognized that man as co-defendant Selbin Martinez, and walked "real close like two inches from him, and [] said, 'What's up, Silence?'" (A. 52-53, 162). In response, Selbin pushed Irizarry and demanded that he "[g] ive it up" (A. 52-53, 98). Irizarry, who had previous convictions for possessing crack and selling drugs, began swinging a sock containing a cue ball that he carried in his pocket as a weapon for protection, which he later admitted was a common weapon among "people in the drug trade." (A. 53-54' 82-84) . Selbin proceeded to swing back (A. 55). Next, Irizarry turned towards the gunman (A. 55) As he swung, the gunman made a backwards movement to avoid contact (A. 129, 131, 133) . 3 At no point during the incident did Irizarry or 2 At trial, Larry Krauser, Mr. Martinez's neighbor, testified that on the evening of July 17, 2009, he saw two unknown men wearing all black standing in front of the elevator on the thirteenth floor (A. 278-79). Irizarry's description of the gunman's backwards movement varied at trial. According to Irizarry, when he swung the cue ball- filled sock, the gunman "jumped" (A. 131), "r [a] n" (A. 133) and/or 7 his son see any part of the gunman's masked face or body, except for his eyes (A. 49, 125, 127, 129). Irizarry, however, ~wasn't looking at his eyes," rather he "was looking at the barrel of his gun" (A. 126, 130-31). Nor did Irizarry or his son hear the sound of the gunman's voice because he "never said one word" during the encounter (A. 128). After Irizarry swung the cue ball at the gunman, Irizarry grabbed his son and ran into the stairwell and closed the door, which Selbin "proceeded to try to push open" (A. 56, 167). Irizarry allowed the door to open approximately "ten, twelve inches" and then swung the cue ball so that it hit the gunman in the face (A. 56) Irizarry and his son then ran downstairs and called 911 from the ground floor (A. 64, 116, 169). At no point during the 911 call did Irizarry identify either perpetrator (People's Ex. 1 (tape of Irizarry's 911 call)).' Instead, Irizarry told the 911 operator, "I think I know who they are. Yeah they were wearing masks and a hat and glasses and everything but I think I know who they are." Id. Irizarry informed her that he would be returning to his apartment on the fourteenth floor to search for twenty dollars he had lost and to wait for the officers (A. 69; People's Ex. 1). "hopped" (A. 129) backwards. 4 Upon request, a digital copy of the 911 call, People's Ex. 1, can be provided to the Court. 8 Police Officer Hairo Franco responded to a radio run of a robbery in 535 (A. 175, 185). Upon arrival, Franco proceeded to apartment 14-A, where Irizarry and his son were awaiting the officers (Id.). There, Irizarry described the perpetrators as •two males dressed in of [sic] black" (A. 177, 186- 87) . After confirming with the building's video surveillance personnel that the perpetrators were still in the building, Franco and his partner canvassed it to no avail (A. 177-78). Meanwhile, Irizarry and his son were taken to the 43~ precinct (A. 178) . There, approximately one hour after the police first responded, Irizarry first informed the police that he believed his neighbor, co-defendant Selbin Martinez, was one of the perpetrators (Id.) Based on Irizarry's claim, Franco went to apartment 13-G and arrested co-defendant in his mother's apartment, where he was found hiding in a closet with a bleeding cut on his forehead (A. 178-80, 191) . At the time of co-defendant's arrest, appellant Christopher Martinez, Selbin Martinez's brother, was also in the apartment (A. 197-98). He was not hiding (Id.). He was neither arrested nor questioned by any of the officers (Id.). Only after Franco arrested Selbin did Irizarry claim that he thought Mr. Martinez was the gunman - almost two hours after the 911 call (A. 183). At trial, about four months after the incident, 9 Irizarry claimed that he immediately recognized the gunman's allegedly "awkward" backwards movement as a movement characteristic of Mr. Martinez (A. 50, 55, 129, 132). According to Irizarry, Mr. Martinez made the same backwards motion "every time he [saw Irizarry's] dog" (A. 129). When asked why he waited almost two hours before identifying Mr. Martinez, he claimed he was "afraid" (A. 72). At trial, Irizarry alleged that he had a "particular expertise" in identifying people by their body movements because he is a "repairman" and "needs to be like that in [his] work" (A. 43, 85). Irizarry's son, also a repairman by trade, did not purport to have this same "expertise," nor did he identify Mr. Martinez as the gunman (A. 156-57). In addition, Irizarry claimed that he "practices" identifying people based on the way they walk and move, because he is "really bad with people and faces, so [he has] to rely on movements and physical characteristics to remember people" (A. 52, 85). Although Irizarry agreed that the events were not very clear in his mind on the day of the incident because he "went through a trauma" that "was very shocking to [him]," he still claimed that he knew "in [his] heart of hearts" and was "one hundred percent" certain of the identity of the perpetrators since his memory was "improving over time" (A. 74-75, 99-100, 135). No other witness identified Mr. Martinez. 10 Irizarry conceded that he had •practiced" his testimony with his son prior to testifying (A. 119) . He and his son •practiced each other" and •discussed differences in [their] memories of what happened that day" (A. 118) . Irizarry's justification was that they •just want this guy [Mr. Martinez] to be convicted" (A. 119). The Scratch 61 Form During the cross examination of Officer Franco, it was revealed that he completed a •scratch 61" form during the course of his investigation (A. 192) 5 ( Id.) counsel. Q: You didn't fill out any handwritten complaint report, any what is called a scratch 61 in this case, did you? A: I did, yes. Q: You did? A: Yes. Q: You turned over that document, with all the other paperwork to the District Attorney's Office, didn't you? A: The scratch 61, I put it in the bin where it gets filed. However, the scratch 61 was never provided to defense According to the prosecutor, the People never received the scratch 61 and it could not be located (A. 287) . 5 A scratch 61 is a handwritten informational report containing the responding officer's initial investigation and interview notes. See, e.g., People v. Martinez, 71 N.Y.2d 937 (1988) (describing an officer's scratch 61 notes as written notes containing the description of the perpetrator and initial information from the complainant). 11 Due to the People's failure to preserve the scratch 61, defense counsel requested an adverse inference instruction (A. 287, 301). The court, however, refused to issue the charge, stating, "I am not going to charge. There is a reason to be said [Franco] doesn't have it any more, and therefore, I'm not going to give you a favorable inference charge." (A. 301). Motion for Trial Order Dismissal Defense counsel moved to dismiss, arguing the legal insufficiency of the evidence to establish Mr. Martinez's identity as one of the perpetrators (A. 284-86) . More specifically, defense counsel argued that the evidence against Mr. Martinez was "even less persuasive" than his co-defendant as the sole basis for the identification was an allegedly awkward backwards movement (A. 285- 86). The court denied defense counsel's motion (A. 286). The Defense Case Defense counsel requested permission for his client to walk, hop, and run backwards so that the jury could see that he did not have an awkward backwards motion (A. 287-91). Mr. Martinez then walked, ran, jumped, and hopped both backwards and forwards before the jury (A. 293-95) . He had no physical disability that affected his actions (A. 295). 12 At the end of his case, defense counsel renewed his motion to dismiss on the same grounds as his previous motion (A. 300). The court reserved decision until after the verdict (A. 301). In a subsequent written affirmation, defense counsel supplemented his motion to dismiss and moved pursuant to C.P.L. § 330.30 to set aside the verdict (A. 427-30). Citing People v. Carter, 63 N.Y.2d 530 (1984), counsel argued that the conviction must be set aside as "legally insufficient or inadequate, as a matter of law, to prove guilt beyond a reasonable doubt" since "[t] he testimony in this case [was] not sufficient for a rational finder of fact to find that the identification of Christopher Martinez was reliable and accurate, beyond a reasonable doubt." (A. 428, 430). In a written decision and order, the court denied defense counsel's motions to dismiss and set aside the verdict (A. 431-36). Verdict and Sentencing The court submitted seven counts for the jury's consideration: attempted robbery in the first (two counts), second, and third degrees; attempted assault in the second degree; attempted grand larceny in the fourth degree; and criminal possession of weapon in the fourth degree (A. 378). The jury acquitted Mr. Martinez of attempted robbery in the first and second degrees and convicted him of attempted robbery in the third degree (A. 420-22). Co-defendant Selbin Martinez was also acquitted of attempted robbery in the 13 first degree, but was convicted of attempted robbery in the second degree (A. 417-20) . Mr. Martinez, whose sole criminal history consisted of a disorderly conduct violation, was sentenced as a first felony offender to a term of one to three years (A. 147). Appellate Division's Decision On appeal to the Appellate Division, First Department, Mr. Martinez, relying upon People v. Martinez, 71 N. Y .2d 937 (1988), People v. Wallace, 76 N.Y.2d 953 (1990), and People v. Joseph, 86 N.Y.2d 565 (1995), argued that the trial court improperly denied Mr. Martinez's request for an adverse inference charge after the prosecution disclosed that it had lost the Rosario material. Mr. Martinez argued that he made a sufficient showing of prejudice under the controlling cases to warrant the minimal sanction he requested and, contrary to the prosecution's contentions, C.P.L. § 240.75 a statute concerned with requests for more drastic sanctions - had no bearing on the determination of prejudice here. The First Department affirmed, endorsing the lower court's finding of no bad faith and also finding no "prejudice to defendant": The court properly exercised its discretion in declining to deliver an adverse inference charge relating to the loss of the original handwritten version of a police report. There was no evidence of bad faith on the part of the People or prejudice to defendant (see People v. Martinez, 71 N.Y.2d 937, 940 [1988); see also CPL 240.75). 14 People v. Martinez, 95 A.D.3d 677 (1st Dep't 2012) reprinted at A. 3. In response to Mr. Martinez's challenge to the legal sufficiency of the evidence, where the only evidence implicating him was a single witness identification based on an unspecified backwards movement, the court also affirmed; specifically citing Mr. Martinez's allegedly "distinctive body movement": The verdict was based on legally sufficient evidence and was not against the weight of the evidence(see People v. Danielson, 9 N.Y.3d 342, 348-349 [2007]). There is no basis for disturbing the jury's assessment of the matters cited by defendant that allegedly affected the victim's credibility. We also note that the fact the jury convicted defendant and the codefendant of different degrees of attempted robbery does not warrant a different conclusion regarding the weight of the evidence (see People v. Rayam, 94 N.Y.2d 557 [2000]). The victim identified defendant as one of the two men who robbed him, even though defendant wore a mask and did not speak during the robbery. Defendant and the victim lived in the same building and the victim saw defendant almost daily. The victim was able to identify defendant by a distinctive body movement, which the victim had seen defendant make many times. A distinctive gait or body movement may be a valid means of identification (see People v. Bale, 10 N.Y.2d 515 [1961]). Furthermore, the trial court granted defendant permission to demonstrate his gait or body movements, and the jury had an opportunity to make its own judgment regarding their distinctiveness. In addition, there was ample evidence that the other robber was the jointly tried 15 codefendant. The codefendant is defendant's brother, who also lived in the building. This evidence tended to connect defendant with the crime circumstantially and thus corroborate the victim's identification (see e.g. People v. Hinton, 252 A.D.2d 428 [1998], lv denied 92 N.Y.2d 1033 [1998]; People v. Hurd, 160 A.D.2d 199, 200 [1990], lv denied 76 N.Y.2d 789 [1990]). Furthermore, the victim testified that in the course of defending himself, he struck the codefendant in the head. When the codefendant was arrested later that day, he has a "fresh cut" on his head. People v. Martinez, 95 A.D.3d 677 (1st Dep't 2012) reprinted at A. 3. ARGUMENT POINT I THE TRIAL COURT'S REFUSAL TO ISSUE AN ADVERSE INFERENCE INSTRUCTION FOR LOST ROSARIO MATERIAL REQUIRES REVERSAL WHERE THE COURT BASED ITS RULING SOLELY ON THE OFFICER'S LACK OF BAD FAITH AND WHERE MR. MARTINEZ SUFFERED PREJUDICE. The complainant, Armando Irizarry, Sr., claimed at trial to have recognized Mr. Martinez immediately, yet he waited nearly two hours before identifying Mr. Martinez to the police. Under these circumstances, and where Irizarry was the sole identifying witness, Irizarry's initial statements were vitally important to the defense as an area for potential impeachment. But as the prosecution ultimately admitted, the responding officer's initial notes were lost. 16 The loss of these notes significantly impeded Mr. Martinez's ability to conduct a full cross-examination of the officer and the complainant. Yet, despite the loss and its prejudicial impact, the court refused to issue even the most modest of sanctions - an adverse inference charge. Instead, the trial court cited to Mr. Martinez's failure to demonstrate the officer's bad faith in losing the notes. Since the trial court was required to issue a sanction to remedy the prejudice, its refusal was an abuse of discretion requiring reversal. See People v. Martinez, 71 N.Y.2d 937, 940 (1988) (holding that an adverse inference instruction was the proper remedy for a lost scratch 61). & The trial court committed reversible error when it relied solely upon the officer's bad faith to deny Mr. Martinez's request for an adverse inference charge. The trial court's decision to deny counsel's request for an adverse inference charge because Mr. Martinez could not demonstrate bad faith was error. Bad faith is not relevant to determining whether a remedy for lost Rosario is warranted, but rather to the severity of the sanction. In determining the propriety of the adverse inference charge, the court should instead have conducted a prejudice analysis. As the court improperly relied on lack of bad faith and as the court conducted !!Q prejudice analysis (a failure that barred the Appellate Division from doing so and bars 17 this Court now), the judgment of conviction must be vacated and a new trial ordered. Pursuant to the plain language of C.P.L. § 240.45, the prosecution must provide the "written" or the "recorded" statements of a witness testifying at trial that "relate[] to the subject matter of the witness's testimony." See also People v. Rosario, 9 N. Y .2d 286, 289 (1961) The purpose of the Rosario rule is "to afford the defendant a fair opportunity to cross-examine the People's witnesses at trial." People v. Poole, 48 N:Y.2d 144, 149 (1979); see also People v. Young, 79 N.Y.2d 365, 3790 (1992). As "the ends of criminal justice are best served by full disclosure of relevant facts," the prosecutor must exercise due care in gathering, identifying, and producing documents. People v. Banch, 80 N.Y.2d 610, 621 (1992). The People's Rosario obligation extends to material that is "in the actual possession of a law enforcement agency." People v. Washington, 86 N.Y.2d 189, 192 (1995). The People have not only a duty to produce, but a concomitant duty to preserve Rosario material until a disclosure request is made. Martinez, 71 N.Y.2d at 940; People v. Kelly, 62 N.Y.2d 516, 520 (1984). Thus, "it is no answer to a demand to produce that the material has been lost or destroyed." Martinez, 71 N.Y.2d at 940. Rather, where Rosario material is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss. 18 Kelly, 62 N.Y.2d at 520. Indeed, the burden of explaining the loss of Rosario is on the People, "who are thereby seeking to be excused from their obligation to disclose the material." Banch, 80 N.Y.2d at 620. If the prosecution fails to disclose Rosario material, a defendant may request a variety of sanctions to remedy the prejudice. See Martinez, 71 N.Y.2d at 940. The severity of the imposed sanction corresponds to the amount of prejudice a defendant endured due to the loss. See id. For example, to receive the minimal sanction of an adverse inference charge for lost Rosario material, a defendant need only suffer a minimal amount of prejudice. See People v. Joseph, 86 N.Y.2d 565, 571 (1995) (holding that an adverse inference charge was warranted where the defendant's case theory demonstrated that the destroyed Rosario "might have provided useful additional support for the defense position."); People v. Wallace, 7 6 N.Y. 2d 953, 955 (1990) (finding that a defendant suffered sufficient prejudice to warrant an adverse inference instruction if the lost Rosario "would have been helpful to [him] in cross-examining the officers."); Martinez, 71 N.Y.2d at 940 (concluding that even though the lost Rosario presented a "remote" risk of prejudice to defendant, an adverse inference charge was still appropriate) . If, however, a defendant requests reversal, modification, or vacatur of the conviction as a remedy, a defendant must suffer a 19 correspondingly higher amount of prejudice - that "there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial." C.P.L. § 240.75. Since some showing of prejudice is essential, "'the trial court must try to determine the content of the missing material.'" Joseph, 8 6 N.Y.2d at 571 (citing Banch, 80 N.Y.2d at 616). Although the type of sanction imposed is within the court's discretion, where the defendant has been prejudiced, the court "must impose an appropriate sanction" and failure to do so constitutes an abuse of discretion. See Wallace, 76 N. Y .2d at 955 (citing Martinez, 71 N.Y.2d at 940) (emphasis in original). In fashioning an appropriate sanction for the People's failure to preserve evidence, courts should consider the proof available at trial, the significance of the missing evidence, and whether the loss was intentional or inadvertent. See People v. Haupt, 71 N.Y.2d 929, 931 (1988). Lost evidence due to inadvertence, however, "does not excuse the loss" since the "the overriding concern must be to eliminate any prejudice to the defendant." Id.; Kelly, 62 N.Y.2d at 520. In this case, the trial court refused to issue the adverse inference instruction because the officer had "a reason" for not possessing the scratch 61 notes anymore. In excusing the loss because Franco had provided a "reason," the court relied on the absence of bad faith to deny counsel's request. However, once the 20 court determined that the lost materials required disclosure under Rosario, the court was required to "eliminate any prejudice to the defendant." Martinez, 71 N.Y.2d at 940; Kelly, 62 N.Y.2d at 520. Lack of bad faith could be considered in determining the severity of the sanction, but could not justify the complete denial of one. Haupt, 71 N.Y.2d at 931; Kelly, 62 N.Y.2d at 520. Rather than considering the prejudice to Mr. Martinez, however, the trial court incorrectly relied on the officer's lack of bad faith as the only factor in denying the request. Therefore, Mr. Martinez's judgment of conviction must be reversed and a new trial ordered. Since the trial court did not determine whether Mr. Martinez made a sufficient showing of prejudice as the basis for its denial, the issue was not decided adversely to Mr. Martinez. See C.P.L. § 470.15. As such, the Appellate Division erred, in violation of Lafontaine and C.P.L. § 470.15, in resting its affirmance on the alternate ground that Mr. Martinez made an insufficient showing of prejudice to warrant an adverse inference charge. See People v. Lafontaine, 92 N.Y.2d 470 (1998). Similarly, this Court does not have the jurisdiction to decide the issue of prejudice in this case. See C.P.L. §§ 470.15(1), 470.35(1); People v. Concepcion, 17 N.Y.3d 192 (2011); Lafontaine, 92 N.Y.2d at 470. Pursuant to C.P.L. §§ 470.15(1) and 470.35(1), this Court may only "consider and determine any question of law or issue of fact involving error or defect in the criminal court 21 proceedings which may have adversely affected the appellant. " See Concepcion, 17 N.Y.3d at 195. This includes any questions of law that were never decided by the trial court. See Lafontaine, 92 N.Y.2d at 474 (•This Court has construed C.P.L. § 470.15(1) as a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon by the trial court." (emphasis added) (internal citations omitted)). Here, the trial court did not consider the prejudice to Mr. Martinez when it denied the adverse inference instruction (A. 301). Instead, its denial was based only on the fact that the officer provided •a reason" for the loss of the Rosario material (Id.). Therefore, the only issue properly before this Court is whether the trial judge erred when it denied Mr. Martinez's adverse inference request because the officer inadvertently lost the Rosario material. Although the Appellate Division reached the merits of the claim of prejudice, its review was in error and exceeded the bounds of that court's statutorily prescribed authority. Addressing the only issue decided by the trial court, whether an excuse for losing Rosario material is a sufficient basis to deny an adverse inference charge, it is evident that the conviction must be vacated and a new trial ordered. 22 B. The court committed reversible error when it failed to issue an adverse inference instruction despite Mr. Martinez's sufficient showing of prejudice from the lost Rosario material in this single-witness identification case. Reversal is required even if this Court had the jurisdiction to determine whether Mr. Martinez made a sufficient showing of prejudice, as the lost Rosario material, memorializing the sole identifying witness' initial statements to the police, would unquestionably have been helpful to the jury in determining the credibility of the witness. See Joseph, 86 N.Y.2d at 571; Wallace, 76 N.Y.2d at 955); Martinez, 71 N.Y.2d at 940. In People v. Martinez, this Court squarely held that an adverse inference instruction was the proper remedy for the inadvertent destruction of a scratch 61. 71 N.Y.2d at 940. In Martinez, the prosecution was unaware of the missing scratch 61 until trial. Id. Although "the possibility that defendant was prejudiced by (the scratch 61's) destruction was remote," the Court still found that an adverse inference charge was the appropriate remedy. Id. Citing to Martinez, this Court in People v. Wallace, 76 N.Y.2d 953 (1990), held that the trial court abused its discretion in failing to issue a sanction where the defendant was prejudiced by lost Rosario material. In Wallace, this Court concluded that a trial court "must" issue an adverse inference charge where the officer's written description of the perpetrator "would have been helpful to defendant in cross-examining the officers, given the 23 importance of the identification issue in the case." Id. at 955 (emphasis in original) . Subsequently, in People v. Joseph, 86 N.Y.2d 565 (1995), this Court expanded upon the Martinez and Wallace decisions and further explained the requisite degree of prejudice for an adverse inference instruction. In Joseph, this Court held that an adverse inference instruction was warranted where the missing Rosario material "might have provided useful additional support for the defense position." Id. at 571 (emphasis added). Recognizing the obstacles presented by lost Rosario material, this Court noted that "a precise replication of a missing document cannot be achieved." Id. Therefore, "since it was the conduct of the police that resulted in the loss . and made it impossible to know whether the information [the Rosario materials] 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." Id. Recently, in People v. Handy, 2013 N.Y. Slip Op. 02103 (Mar. 28, 2013), this Court reaffirmed the minimal prejudice standard to warrant an adverse inference instruction in the analogous circumstance of lost evidence. Citing to cases involving Rosario violations (People v. Haupt, 71 N.Y.2d 929 (1988)) and using the same language and standard set forth in People v. Wallace, 76 N.Y.2d 953 (1990), this Court held that an adverse inference charge 24 was warranted where the destroyed video "would be helpful to a jury" in determining the credibility of the witnesses. Id. at *6. Just as in Joseph, this Court recognized that the loss of evidence by State agents "created the need to speculate about its contents," and issued an adverse inference charge to "mitigate [] the harm done to defendant by the loss of evidence." Id. at *5. This Court's previous and controlling decisions in Martinez, Wallace, Joseph, and Handy mandate reversal in this case. Defense counsel requested the appropriate remedy of an adverse inference instruction for this Rosario violation, a proportionate remedy to combat the prejudicial impact on Mr. Martinez. See Handy, 2013 N.Y. Slip Op. 02103 at *5; Martinez, 71 N.Y.2d at 940. The circumstances of this case require an adverse inference charge to remedy the prejudice to Mr. Martinez, as the lost Rosario material, at a mini~um, "might have provided useful additional support for the defense position." Joseph, 86 N.Y. 2d at 571. It certainly "would have been helpful" in cross-examination and, ultimately, to the jury in determining the reliability of the identification. Handy, 2013 N.Y. Slip Op. 02103 at *5; Wallace, 76 N.Y.2d at 955. The scratch 61 would have contained a summary of Franco's factual findings during the course of his investigation, including statements potentially useful to impeaching Irizarry's credibility and his identification of the perpetrator, the core issue of the case. There could have been additional statements in the scratch 25 61 memorializing Irizarry and his son's original, contemporaneous recollection of events as compared to their admittedly rehearsed testimony for trial, which would have been an important tool for the jury in making reliability and credibility determinations. It also would have supported Mr. Martinez's position that Irizarry's testimony was incredible and that his version of events changed from the time of the initial investigation to the time of trial. Thus, Irizarry's initial conversations with the police were extremely relevant to the defense's attempts to discredit his trial account and backwards-movement identification. Failure to provide Mr. Martinez with the scratch 61 denied him a fair opportunity to cross-examine these witnesses at trial. The loss of the scratch 61 under these circumstances was prejudicial to Mr. Martinez and, therefore, required, at the very least, an adverse inference charge. Because this case turned on the credibility of the sole identifying witness, any error that may have impacted his credibility was of crucial significance. Thus, the prejudice Mr. Martinez suffered from his lack of access to the Rosario material entitled him to an adverse inference charge, and the trial judge's refusal was an abuse of discretion mandating reversal. Wallace, 76 N.Y.2d at 955. In affirming the trial court's denial of an adverse inference charge, the Appellate Division cited to C.P.L. § 240.75, which states that a defendant must show "a reasonable possibility that 26 the non-disclosure [of Rosario documents] materially contributed to the result of the trial" in order to "set aside a conviction, or reverse, modify or vacate a judgment of conviction." Criminal Procedure Law§ 240.75, however, is not applicable here as it only applies where a party is seeking reversal at trial due to Rosario violations. See Peter Preiser, Practice Commentaries, 240.75 (explaining that the purpose of the amended C.P.L. § § 240.75 provision "is to overturn the so-called 'Ranghelle Rule,' which had decreed that the failure of the People to turn over a witness's pre trial statement in possession of the People was a per se ground for overturning defendant's conviction, irrespective of the degree of prejudice to the defense."). In this case, because an adverse inference charge was the remedy sought in the lower court and not vacatur or setting aside the verdict, C.P.L. § 240.75 is not applicable. Indeed, it would be unjust to hold Mr. Martinez to a higher burden of establishing a "reasonable possibility" when he seeks such a minimal remedy "since it was the conduct of the police that resulted in the loss . and made it impossible to know whether the information [the Rosario materials] contained was consistent with the People's position at trial." Joseph, 86 N.Y.2d at 571. The "would have been helpful" standard set forth in Wallace, and consistently applied by this Court in cases thereafter, is appropriate in this case. Wallace, 76 N.Y.2d at 955; see also 27 Handy, 2013 N.Y. Slip Op. 02103 at *5; Joseph, 86 N.Y.2d at 571; accord Martinez, 71 N.Y.2d at 940. Defendants are limited in the amount of prejudice they can demonstrate as it is the State agents who lose Rosario material before the defense has an opportunity to review it. The "reasonable possibility" standard set forth in C.P.L. 240.75 would impose an unfair burden on defendants who are seeking the most minimal of sanctions. * * * * This issue was fully preserved for this Court's review through defense counsel's repeated requests for an adverse inference instruction to the jury and the court's denial of his requests (A. 287, 301). The trial judge made a clear ruling when, in response to defense counsel's application, he stated, "I am not going to charge. There is a reason to be said [Franco] doesn't have it any more, and therefore, I'm not going to give you a favorable inference charge" (A. 301). In sum, the trial court erred when it denied the adverse inference charge merely because the loss of Rosario material was not in bad faith, as bad faith is not a basis to deny a remedy for a Rosario violation. See Haupt, 71 N.Y.2d at 931. Even putting aside the LaFontaine and Concepcion bar to this Court's review of prejudice, Mr. Martinez is entitled to an adverse inference charge. In light of the scant evidence presented against Mr. Martinez, it is evident that he suffered sufficient and significant 28 prejudice from the lost scratch 61 notes, which, at a minimum, •would have been helpful" in this single witness identification case. Wallace,76 N.Y.2d at 955. For these reasons, Mr. Martinez's judgment should be reversed and a new trial ordered. POINT II THE PROSECUTION FAILED TO PROVE MR. MARTINEZ'S GUILT BEYOND A REASONABLE DOUBT AS A MATTER OF LAW WHERE THE ONLY EVIDENCE TYING MR. MARTINEZ TO THE INCIDENT WAS THE COMPLAINING WITNESS' INCREDIBLE TESTIMONY THAT HE WAS ABLE TO RECOGNIZE THE BRIEF BACKWARDS MOVEMENT OF THE MASKED AND SILENT PERPETRATOR DUE TO HIS OCCUPATION AS A •REPAIRMAN." Mr. Martinez stands convicted of attempted robbery in the third degree based on the uncorroborated and implausible testimony of one man, Armando Irizarry, Sr. Irizarry could not describe the perpetrator's race, facial hair, hair color, facial features, or voice. Instead, Irizarry belatedly claimed to be certain of Mr. Martinez's identity as the perpetrator, based solely on the manner of the assailant's single backwards movement. Irizarry, however, could not even describe that movement as either a run, hop, or jump (A. 129, 131, 133). Nevertheless, at trial, Irizarry professed certainty of the gunman's identity based on this nondescript movement because he possessed a •particular expertise" ·in identifying people by their body movements due to his work as a "repairman" (A. 43, 85). In light of Irizarry's incredible testimony and unreliable identification, the prosecution failed to 29 establish Mr. Martinez's identity as the gunman beyond a reasonable doubt as a matter of law. U.S. Const. Amend. XIV; N.Y. Const., art. 1 § 6; Jackson v. Virginia, 443 U.S. 307 (1979); People v. Reed, 64 N.Y.2d 1144 (1985). The prosecution's case, in and of itself, revealed Irizarry to be an unreliable witness and his self-proclaimed ability to identify the gunman to be incredible. In light of his incredible and contradictory testimony, Irizarry demonstrated that he was the quintessential witness who was unworthy of belief because he was "willing[] or dispos[ed] to place the advancement of his individual self-interest ahead of principle or of the interests of society." People v. Sandoval, 34 N.Y.2d 371, 377 (1974). The identification itself was made under questionable circumstances. The gunman did not reveal any part of his face, other than his eyes, which Irizarry did not claim to recognize, and left no part of his body exposed for identification (Tr: 125, 127- 28). Nor did Irizarry have an opportunity to hear the gunman's voice as he "never said one word." (A. 128). Instead, Irizarry identified the gunman solely by his allegedly "awkward" backwards movement without providing any description of the movement itself (A. 50, 129). At trial, Irizarry was unable to consistently describe the movement as either running, jumping, or hopping and it was at various times described as all three (A. 129, 131, 133). If the gunman's movement was so awkward and distinct as to establish 30 Mr. Martinez's identification beyond a reasonable doubt, Irizarry should have had no difficulty in describing its distinct features. Furthermore, Irizarry himself cast doubt on the reliability of his own identification when he admitted that he "wasn't looking at [the gunman's] eyes," the only revealed part of his body, but instead was "looking at the barrel of his gun" (A. 126, 130-31). This concession coupled with Irizarry's admission that the "trauma" of the "shocking" attempted robbery reduced the accuracy of his account, again call into question the reliability of his own identification- the only evidence presented against Mr. Martinez. (A. 75). To explain his uncanny ability of identifying people solely on their body movements, Irizarry claimed that he has a "particular expertise" in this area due to his career as a repairman, which requires him to "see details in his work" (A. 85) . Despite his expertise in noticing the details of body movement, Irizarry admitted that he cannot identify the details of people's faces since he is "really bad with people and faces" (A. 52, 85). The People presented no other evidence or testimony that supported Irizarry's self-proclaimed expertise. Nor did Irizarry attempt to explain how his profession as a repairman has any correlation to analyzing the details of body movement, but not a person's face. Notably, Irizarry's son, who also works as a repairman, witnessed 31 the same events and testified to no such awkward or otherwise distinctive movement. Although Irizarry contended that his expertise allowed him to immediately identify Mr. Martinez as the gunman, his almost two hour delay in identifying Mr. Martinez demonstrates that he did not immediately know the gunman's identity as he claimed at trial. Irizarry contacted the police at 5:47 PM (A. 116). Once the police arrived at the scene, Irizarry spoke to Police Officer Franco and detailed the course of events (A. 72) . Although Irizarry said "I think I know who they are" in the 911 call, at no point during Franco's investigation did Irizarry indicate in any way that he thought he might know their identities. People's Ex. 1. Not until Irizarry arrived at the police station and spoke with detectives did he finally claim to know the identity of one of the perpetrators the man with the bat (A. 178). In fact, the evidence suggested that Irizarry was so unsure as to the gunman's identity that he did not tell the responding officers nor the detectives of the gunman's alleged identity until after co- defendant's arrest almost two hours later. This unexplained delay significantly reduces the credibility of Irizarry's identification since "there ha [d] been time to contrive and misrepresent" the identity of the perpetrators. People v. Fratello, 92 N.Y.2d 565, 574 (1998) (quoting People v. Brown, 80 N.Y. 2d 729 (1993)) . One would expect that in this 32 situation Irizarry would have informed the officers immediately upon their arrival of the identity of both perpetrators, especially if he knew their identities and where they lived. But here, Irizarry waited until after he arrived at the precinct - an hour after the incident - to identify only the perpetrator with the bat (A. 178). Not until after Selbin Martinez was arrested at 7:28PM, almost two hours after the initial 911 call, did Irizarry inform the officers of the identity of the gunman that he claimed to know immediately upon witnessing his backwards movement (A. 129, 183, 191) . To justify his almost two hour delay in identifying Mr. Martinez, Irizarry defended his actions by claiming he was "afraid" to inform the officers of the identity of the perpetrators (A. 72) . This contention, however, is belied by Irizarry's actions on that day. For example, Irizarry's decision to return to the site of the attempted robbery on the fourteenth floor to search for missing twenty dollars before the police arrived and while the perpetrators were still at liberty showed that he was not afraid (A. 69). Moreover, although Irizarry claimed to be too afraid to identify the perpetrators, this reason still could not explain why he identified only co-defendant first and named Mr. Martinez almost an hour later. If Irizarry's fear caused the initial delay, it had been clearly overcome once he was in the police precinct and naming one of the two perpetrators. 33 The only reasonable conclusion as to why Irizarry delayed almost two hours before identifying Mr. Martinez was because he was unsure as to the gunman's identity until his suspicions of co- defendant were confirmed when co-defendant was discovered hiding in the closet from police and bleeding from his head. Here, there was no evidence that co-defendant could have committed this offense only with Mr. Martinez. Nevertheless, Irizarry extended co- defendant's guilt to Mr. Martinez due to their familial relationship without evidence linking Mr. Martinez to the actual offense. Contrary to the First Department's decision, this spurious connection could not establish Mr. Martinez's guilt beyond a reasonable doubt. See People v. Way, 59 N.Y.2d 361 (1983) ("Although there is proof that the perpetrator had an accomplice, critically absent is proof that defendant acted as that accomplice."); see also Dorothy D. V. New York City Probation Dept., 49 N. Y .2d 212 (1980) ("Guilt by association or consanguinity has no place in our jurisprudence."). To rectify the inconsistency between his failure to remember details the day of the offense and his certainty at trial, Irizarry claimed that his memory of the course of the events "improv[ed) over time" (A. 99-100). Common sense dictates that no person would have a memory that "improv[es] over time," especially if the person had difficulty remembering details the same day the event took place. In fact, evidence, as well as everyday experience, shows 34 that a lapse of time only decreases the accuracy and reliability of one's memory, particularly when the person suffered a trauma. State v. Henderson, 208 N.J. 208, 267 (2011) ("Memories fade with time. [M) emory decay 'is irreversible'; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability"). Irizarry's assertion that despite his difficulty remembering the "shocking" events immediately after their occurrence due to the "trauma" that ensued, that he still was "one hundred percent" certain of the identity of the silent and concealed perpetrator because of his manner of moving backwards flies in the face of everyday experience and is incredible. Furthermore, Irizarry's criminal history as a repeat drug offender demonstrates his willingness to put his own interests above those of society and his lack of respect for the law. Prior convictions are highly probative of a person's credibility and are important tools for the purposes of impeachment. See Sandoval, 34 N.Y. 2d at 377. Thus, Irizarry's criminal background as a drug seller and buyer is another important factor to consider since the entirety of the prosecution's case rested solely on his testimony. Finally, Irizarry's admission that he practiced his testimony with his son before presenting it to the court eliminated any remaining credibility and reliability of his testimony. Irizarry admitted that he and his son "discussed differences in [their) 35 memories of what happened that day" and that they "practiced each other" prior to giving their testimony because they "just want this guy convicted" (A. 119) As the only witness identifying Mr. Martinez as the perpetrator, Irizarry's practice sessions with his son inevitably impacted his own memory of the course of events and, thus, eviscerated any reliability and credibility of his testimony. See Henderson, 208 N.J. at 269-70 ("Co-witness feedback may cause a person to form a false memory of details that he or she never actually observed" particularly if the co-witness is a family member or friend) . His rehearsals with his son to iron out differences between their testimonies is just further evidence that Irizarry was solely concerned with convicting Mr. Martinez rather than providing an honest and accurate account of his observations. Without any evidence to corroborate Irizarry's testimony, the prosecution could not meet its burden of proving Mr. Martinez's guilt beyond a reasonable doubt. Even though there was additional evidence that incriminated the co-defendant, such as when he was discovered hiding from police in a closet with a cut on his head, this evidence still did not implicate Mr. Martinez. In fact, the circumstances surrounding the co-defendant's arrest were further evidence of Mr. Martinez's innocence; unlike the co-defendant, Mr. Martinez never hid nor ran away from the police when they entered the apartment. Despite the evidence against the co-defendant, the prosecution still had a separate burden of proof it was required to 36 meet in order to convict Mr. Martinez. However, relying on Irizarry, a person of moral incompetence who proffered incredulous testimony, surely could not meet this burden. * * * * This claim was fully preserved through defense counsel's motion to dismiss the counts in the indictment (A. 284-86). Defense counsel argued that the evidence against Mr. Martinez was "even less persuasive" than his co-defendant since the identification was based on an allegedly awkward backwards jump (A. 285-86). Moreover, defense counsel added that a voice identification could not even be made since the gunman did not say one word (A. 286) . Nor could the identification be made by relying on a physical trait because Irizarry was distracted by the presence of the gun rather than looking at the only exposed part of the gunman, his eyes (id.). In addition, at the end of defense's case, counsel renewed his motion to dismiss the counts and the court reserved judgment until the jury returned a verdict (A. 300-01) . After the verdict, defense counsel submitted a written affirmation in support of a motion to dismiss and a motion to set aside the verdict. In the affirmation, defense counsel, citing People v. Carter, 63 N.Y.2d 530 (1984), argued that the evidence against Mr. Martinez was legally insufficient "as a matter of law to prove guilt beyond a reasonable doubt" (A. 430). Specifically, counsel noted that 37 ~[t]he testimony in this case [was] not sufficient for a rational finder of fact to find that the identification of Christopher Martinez was reliable and accurate, beyond a reasonable doubt." (A. 428). The court subsequently denied defense counsel's motions to dismiss and set aside the verdict and found that the jury had legally sufficient evidence to determine that Mr. Martinez was properly identified as the gunman (A. 435-36). In sum, Mr. Martinez's guilt ~cannot be established beyond a reasonable doubt by the testimony of such a witness, who is, evidently, either from moral or mental defects, irresponsible." Reed, 64 N.Y.2d at 1147-48 (internal quotations omitted). Accordingly, the judgment of conviction should be reversed and the indictment dismissed. 38 CONCLUSION FOR THE REASONS SET FORTH IN POINT I, MR. MARTINEZ'S JUDGMENT OF CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. FOR THE REASONS STATED IN POINT II, MR. MARTINEZ'S JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation 39