The People, Respondent,v.Franklin McPherson, Appellant.BriefN.Y.October 8, 2013To be argued by: JONATHAN I. EDELSTEIN Time Requested: 15 Minutes Second Dep't Case No. 2008-08975 Nassau County Indictment No. 186/08 NEW YORK STATE COURT OF APPEALS - - - - - - - - - - - - - - - - - - - - - - THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - FRANKLIN McPHERSON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT JONATHAN I. EDELSTEIN JASON RICHARDS, ESQ. EDELSTEIN & GROSSMAN NASSAU COUNTY DIST. ATTY. Attorney for Defendant-Appellant Attorney for Respondent 271 Madison Avenue, 20th Floor 262 Old Country Road New York, NY 10016 Mineola, NY 11501 (212) 871-0571 (516) 571-3800 ________________________________________________________________________________________ PRINTED ON RECYCLED PAPER -i- TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I DEFENDANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO DISMISS THE DEPRAVED INDIFFERENCE MURDER CHARGE ON FEINGOLD GROUNDS (U.S. CONST. AMEND. V, VI, XIV) . . . . . . . . . . . . . . . . . . 1 A. Where the Law is Changing, Counsel Has a Duty to Preserve Potentially Valid Claims . . . . . . . . . . . . . . . 2 B. A Motion to Dismiss the Depraved Indifference Murder Charge Would Have Been Meritorious . . . . . . . . . . 11 POINT II DEFENDANT’S TRIAL COUNSEL WAS OTHERWISE INEFFECTIVE (U.S. CONST. AMEND. V, VI, XIV) . . . . . . . . . . . . . . 22 A. Failure to Preserve Sufficiency Claim as to Weapon Possession Count . . . . . . . . . . . . . . . . . . . . . . . . . . 24 B. Questioning the Identity of the Victim . . . . . . . . . . . . . . . . . 28 POINT III THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER AND SECOND-DEGREE WEAPON POSSESSION WAS LEGALLY INSUFFICIENT (U.S. CONST. AMEND. V, XIV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 -ii- TABLE OF AUTHORITIES Cases: Alston v. Phillips, 703 F. Supp. 2d 150 (E.D.N.Y. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Gutierrez v. Smith, 692 F.3d 256 (2d Cir.), sup. in part on other grounds, 702 F.3d 103 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Hedrick v. True, 2004 WL 594989 (W.D. Va. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Lord v. Attorney General, 1991 WL 5174 (W.D.N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Napue v. Illinois, 360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Ayala, 142 AD.2d 147, 157 (2d Dept. 1988), aff’d, 75 N.Y.2d 422 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38 People v. Bailey, 19 A.D.3d 431 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Baker, 14 N.Y.3d 266 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,30 People v. Baker, 58 A.D.3d 1069 (3d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n -iii- People v. Borrell, 12 N.Y.3d 365 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3,3n,4n People v. Borrell, 8 A.D.3d 583 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Brown, 2011 WL 1366641 (Sup. Ct., Bronx Co. 2011) . . . . . . . . . . . . . . . . 7,14,18 People v. Cade, 215 A.D.2d 772 (2d Dept. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27n People v. Carter, 7 N.Y.3d 875 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Danielson, 9 N.Y.3d 342 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5 People v. Droz, 39 N.Y.2d 457 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Ennis, 11 N.Y.3d 403 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Feingold, 7 N.Y.3d 288 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4n,5,7,10, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13,16,17 People v. Feliciano, 17 N.Y.3d 14 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Ford, 66 N.Y.2d 428 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Gray, 86 N.Y.2d 10 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,36,38 -iv- People v. Hafeez, 100 N.Y.3d 253 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5 People v. Hawkins, 11 N.Y.3d 484 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38n People v. Johnson, 91 A.D.2d 327 (4th Dept. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Main, 179 A.D.2d 953 (3d Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,27n People v. Martinez, 20 N.Y.3d 971 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. McInnis, 179 A.D.2d 781 (2d Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Montanez, 41 N.Y.2d 53 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Prindle, 16 N.Y.3d 768 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12,13,15,16, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,18,18n,19n,42 People v. Register, 60 N.Y.2d 270 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,6 People v. Sanchez, 98 N.Y.2d 373 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7 People v. Suarez, 6 N.Y.3d 202 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,10,28 -v- People v. Valencia, 14 N.Y.3d 927 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,11,12,13,15,16, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,18,18n,19n,42 People v. Valencia, 58 A.D.3d 879 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10n People v. Whipple, 97 N.Y.2d 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Yagudayev, 91 A.D.3d 888 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Zaborski, 59 N.Y.2d 863 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Policano v. Herbert, 7 N.Y.3d 588 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Rosario v. Ercole, 617 F.3d 683 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24n Rosario v. Ercole, 601 F.3d 118 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Booker, 543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,39n United States v. Cotton, 535 U.S. 625 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 United States v. Cruz, 554 F.3d 840 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41n United States v. Gjurashaj, 706 F.2d 395 (2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,39,42 -vi- United States v. Glenn, 312 F.3d 58 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 United States v. Hawkins, 547 F.3d 66 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39n Statutes: N.Y. Const. art. VI, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 CPL § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 CPL § 470.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,37,38 PL § 15.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PL § 125.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 L.2007, c.345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19n Other Authorities: Michael Heise, Federal Criminal Appeals: A Brief Empirical Perspective, 93 Marquette L. Rev. 825 (Dec. 2009) . . . . . . . . . . . . . . . . . . . . . . . 39,39n Bentley Kassal, Update: Did the Appellate Odds Change in 2009, NYSBA J. 38, 39 (Oct. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 -1- PRELIMINARY STATEMENT Defendant-appellant Franklin McPherson respectfully submits this Reply Brief in response to the brief for respondent People of the State of New York dated January 24, 2013 (“Res. Brf.”) and in further support of his appeal from an order of the Appellate Division, Second Department dated November 1, 2011, which in pertinent part, affirmed his convictions of depraved indifference murder and criminal possession of a weapon in the second degree. POINT I DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO DISMISS THE DEPRAVED INDIFFERENCE MURDER CHARGE ON FEINGOLD GROUNDS (U.S. CONST. AMEND. V, VI, XIV) Defendant first contends, as he did in the main brief, that his trial counsel was ineffective for failing to move to dismiss the depraved indifference murder count on the basis that the People failed to prove that defendant had a depraved mental state pursuant to People v. Feingold, 7 N.Y.3d 288 (2006) and its progeny. The People argue that a defense attorney has no duty to make arguments on behalf of his client in an area where the law is in a state of flux, and that in any event, there was sufficient proof of depraved indifference. For the reasons stated below, this Court should reject -2- both of the People’s contentions. A. Where the Law is Changing, Counsel Has a Duty to Preserve Potentially Valid Claims. As set forth in the main brief, the tripartite structure that this Court set forth in the cases of People v. Ennis, 11 N.Y.3d 403, 415 (2008), People v. Carter, 7 N.Y.3d 875, 876-77 (2006); and People v. Turner, 5 N.Y.3d 476, 481 (2005) – i.e., between claims that are clearly without merit, those that “may have merit” but are not compelling, and those that are clear-cut and dispositive – was developed in cases where the claims that defense counsel failed to raise were governed by settled law. Where the law is in a state of rapid change, as the law of depraved indifference was at the time of defendant McPherson’s trial, there is simply no way for an attorney to determine what claims might be regarded as “clear-cut” by the time the case is appealed. As such, where the law is in flux, the duty of defense counsel must necessarily extend further, to include a requirement that all colorable claims that fall within the scope of the changing legal doctrine must be preserved. The People argue that such a doctrine would “conflict[] with this Court’s own jurisprudence” and would in fact “turn[] that jurisprudence on its head.” See Res. Brf. at 34. However, the case that the People rely upon for that proposition – People v. Borrell, 12 N.Y.3d 365, 369 (2009) (“Borrell II”) – does not come close to supporting 1 Defendant also notes that Borrell involved a claim of ineffective assistance of appellate counsel, in which the appellate attorney was called upon to weigh which issues to raise in the limited briefing space available to him. In contrast, there are no limits on trial counsel’s ability to raise issues by way of a trial motion to dismiss, and no requirement that he choose between potential grounds for dismissal. In any event, given that the argument made by Mr. McPherson’s counsel in his trial motion to -3- their bold claim. The defendant in Borrell was tried and convicted in 1998, and affirmed on direct appeal in 2004. See People v. Borrell, 8 A.D.3d 583 (2d Dept. 2004) (“Borrell I”). Subsequently, Borrell filed a motion for writ of error coram nobis, arguing that his appellate counsel should have argued that it was impermissible to impose consecutive sentences. This Court noted inter alia that, while case law subsequent to Borrell’s direct appeal might cast doubt on whether the sentence was permissible, such an issue was of “uncertain efficacy on the appeal.” See Borrell II, 12 N.Y.3d at 369. Thus, Borrell did not involve a case in which the law was changing at the time of counsel’s performance. There was no way that Borrell’s appellate counsel could know, at the time he litigated the appeal in 2004, that a decision three years later might cast doubt on the legitimacy of the sentence. The Borrell case is neither controlling nor even instructive as to the duties of counsel under the circumstances at bar in the instant case – i.e., where counsel is on notice, via decisions prior to trial, that the law is already undergoing a massive sea change.1 dismiss – that the victim was not identified – was frivolous, it was clearly unreasonable for him to pass over the much stronger Feingold claim in favor of that one. Moreover, in Borrell, this Court noted that “the argument not made depends upon an analysis of a complex, continuous transaction and the overlapping elements of the nine counts on which defendant was ultimately convicted.” Borrell II, 12 N.Y.3d at 369. Here, in contrast, the foregone argument related to only one count, did not require analysis of overlapping facts, and was entirely straightforward: all counsel would have had to argue was that the People had not shown, prima facie, that defendant acted without caring whether others lived or died. -4- For the same reason, People v. Danielson, 9 N.Y.3d 342 (2007) does not support the People’s claim. In Danielson, this Court simultaneously decided the appeals of Khalil Danielson and Alexander Pasley, who had been convicted of depraved indifference murder. Danielson was tried in 2001, when the rule of People v. Register, 60 N.Y.2d 270 (1983), was in full force, and there was no logical basis on which his counsel could anticipate that the law would change in the future. This Court explicitly stated that his counsel was not ineffective for failing to make a trial motion to dismiss because, “[u]nder the law at the time of [his] trial, circumstantial evidence of intent would still have supported a depraved indifference murder verdict.” Id. at 350 (emphasis added). To be sure, Pasley, the other defendant, was tried in 2004, after this Court’s decision in People v. Hafeez, 100 N.Y.3d 253 (2003), and his attorney was thus on notice that the law was changing. But this Court did not excuse his counsel’s failure 2 People v. Baker, 58 A.D.3d 1069, 1072 (3d Dept. 2009), also cited by the People, involved a repugnant verdict claim rather than a sufficiency claim, which was not directly affected by the change in this Court’s depraved indifference murder jurisprudence. -5- to move to dismiss on that ground: instead, this Court found that such a motion would not have been meritorious because there was evidence that Pasley indiscriminately swung a box cutter at a group of people without intent to kill. See Danielson, 9 N.Y.3d at 350. At no point did this Court hold that the changing state of the law at the time of Pasley’s trial would have mitigated his counsel’s failure to make a TOD motion if meritorious grounds did exist for such a motion.2 Thus, the People’s contention that counsel is not required to anticipate changes in the law, see Res. Brf. at 35, is correct but irrelevant. At the time of Mr. McPherson’s trial, defense counsel was not in a position of having to anticipate changes in the law. Nor would his arguments have involved merely calling for a change in settled law by making a novel argument with no grounding in this Court’s prior jurisprudence, as was the case in People v. Feliciano, 17 N.Y.3d 14, 28 (2011). Instead, defendant McPherson’s counsel was on notice that the law was already changing and that the changes were sweeping in scope. Counsel had the benefit not only of Hafeez but of the entire line of cases leading up to Feingold, and thus knew that the law of depraved indifference was not merely in a process of incremental -6- change but was in a state of fundamental change. The difference between “anticipating” a change in the law and responding to a change that is already in progress is elucidated by Gutierrez v. Smith, 692 F.3d 256 (2d Cir.), superseded in part on other grounds, 702 F.3d 103 (2d Cir. 2012). The Gutierrez court noted that, for a defendant who was tried in 2001 at a time when “the Register interpretation was firmly ingrained in New York,” any suggestion that Register might be weakened or overruled was “then... a totally unforeseeable development in the law.” Id. at 264. Thus, his counsel could not be faulted for failing to make such an argument. Id. In contrast, by 2002, the case of People v. Sanchez, 98 N.Y.2d 373 (2002) “had produced three separate dissents, providing a legal basis to counsel for a sufficiency challenge.” See Gutierrez, 692 F.3d at 264. Moreover, by late 2003, “ in addition to Sanchez, at least two New York appellate courts... had reversed depraved indifference murder convictions on grounds that subsequently came to reflect New York law on depraved indifference murder.” Id. (citations omitted). Thus, counsel in the 2002 and 2003 trials “were on notice that the law was no longer static and that counsel could reasonably have argued that the evidence presented by the state in their cases was legally insufficient to support a conviction for depraved indifference murder.” Id. (emphasis added); see also Policano v. Herbert, 7 N.Y.3d 588, 595 (2006) (noting that -7- the law of depraved indifference “remained static” until Sanchez was decided). If attorneys in 2002 and 2003 were on notice that “the law was no longer static,” that is certainly true in a 2008 trial when Feingold had been decided and the Valencia case was on appeal. Plainly, defendant’s counsel – who actually knew of Feingold, because he discussed it during colloquies with the court – was on notice of far more sweeping changes than were the case in 2003, and was on notice that yet more changes could be in the offing due to the issues that were then sub judice before the appellate courts. Making a Feingold motion would not have required counsel to “anticipate” a change in the law, merely to respond to a change that was already in progress and to ensure that this case would be covered by any continued change that might occur by the time of the appeal. Surely, in a time of rapid change in the law, a defense attorney owes his client that much. See People v. Brown, 2011 WL 1366641, *7 (Sup. Ct., Bronx Co. 2011) (counsel’s failure to make TOD motion in November 2003 depraved indifference murder trial must be judged “in light of the movement of the law at that time”). The People’s alternative “parade of horribles” argument, see Res. Brf. at 36-38, is singularly unconvincing. The People contend that defendant’s proposed standard “imposes requirements on defense counsel that are virtually impossible to satisfy” because it would require trial counsel to “ceaselessly monitor” Federal and state 3 Likewise, the People’s argument that attorneys would have to become “professional legal analysts,” see Res. Brf. at 37, runs up against the fact that this is exactly what attorneys are. -8- criminal decisions and “predict what appellate courts are likely to do next.” Id. at 36- 37. In other words, the People are contending that it would be an intolerable burden to require criminal defense counsel to keep up with the law. It is this argument – not defendant’s – that turns this Court’s jurisprudence on its head, because as this Court has held, a defendant is entitled “to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense” and who is familiar with and able to employ principles of criminal law and procedure. People v. Droz, 39 N.Y.2d 457, 462 (1976); People v. Yagudayev, 91 A.D.3d 888, 892 (2d Dept. 2012) (citing Droz for the proposition that defense counsel was required to “properly research[] his theory of the case”). The People’s contention that other aspects of trial preparation would suffer because counsel would be required to expend time in “exhaustive legal research,” see Res. Brf. at 37, rings hollow in light of the fact that defense attorneys are already required to research pertinent issues as an integral part of their readiness for trial.3 In any event, the burden would hardly be as great as the People imagine it to be. Criminal attorneys would not have to “ceaselessly monitor” both Federal case law and -9- cases from the 50 states; instead, they would only have to keep up with New York law and the jurisprudence of the United States Supreme Court, which competent criminal lawyers do in any event. Moreover, they would not be required to know all areas where the law might be in flux; instead, they would only be charged with researching and familiarizing themselves with the issues pertinent to the case they are defending, and an obligation to preserve colorable claims would only arise if prior New York appellate decisions put counsel on notice that the law is already in a state of change. Finally, counsel would not be required to raise claims that are entirely novel or are not even hinted at by the case law existing at the time of trial; instead, he would only have to raise claims that are colorable based on the holdings and trends of those cases. Nor would “criminal trials be interrupted by lengthy legalistic soliloquies of merely theoretical import” as the People suggest, see Res. Brf. at 37, because any objections or motions that counsel is required to make would be grounded in recent case law and would be based on the trends and doctrines charted in that case law. The fact that the law is already changing, and that the process of change is ongoing, would ensure that the discussions are far more than “theoretical” in scope. Moreover, such colloquies would take place at times which are already reserved for legal argument – for instance, trial motions to dismiss – rather than causing constant interruptions in the presentation of evidence before the jury. Indeed, counsel would -10- not be required to articulate such objections with surgical precision, but only with sufficient clarity to bring the developing doctrines into play; thus, such colloquies need not be lengthy or time-consuming. See People v. Martinez, 20 N.Y.3d 971, 977-78 (2012) (Smith, J., concurring). Finally, the People’s parade of horribles can be answered with a single response: that a period when the law is changing is precisely when effective lawyering is needed the most. A defendant who is guilty under today’s prevailing jurisprudence may be not guilty under tomorrow’s, and the difference between vindication on appeal and remaining in prison despite insufficient evidence may hinge on counsel’s ability to recognize that the law is changing and to preserve his client’s rights. Thus, where recent authoritative decisions have cast the law into a state of flux – and where, as here, it is clear that the change is both sweeping and ongoing at the time of the defendant’s trial – counsel’s duty must extend not only to “clear-cut and completely dispositive” claims but to all colorable claims that are apparent from the direction of the case law at the time of counsel’s representation. In any event, as discussed below and in the main brief, a trial motion to dismiss the depraved indifference count on Feingold grounds would have been “clear-cut and completely dispositive” as to that charge, see Turner, 5 N.Y.3d at 481. Consequently, even if this Court were to find that ongoing changes in the law have no effect on 4 The relevant facts are described in the main brief and in the Appellate Division dissent at People v. Valencia, 58 A.D.3d 879, 881 (2d Dept. 2009) (Dillon, J., dissenting). -11- counsel’s duties – which it should not do, for the reasons stated above – it should find that, in this instance, counsel’s failure to make a proper TOD motion was ineffective. B. A Motion to Dismiss the Depraved Indifference Murder Charge Would Have Been Clearly Meritorious. The People next contend that there was, in fact, sufficient evidence of depraved indifference murder, and that a motion to dismiss would thus not have been meritorious. But their argument is directly contrary to both People v. Valencia, 14 N.Y.3d 927 (2010), and People v. Prindle, 16 N.Y.3d 768 (2011). The People contend that a valid inference of depraved indifference could be drawn from the combination of (a) the alleged shots fired at the Island Rock Club; (b) the “Wrong Way signs and other visual warnings” that defendant passed on the highway; (c) the blasting of an air-horn by a truck driver; (d) the fact that opposite- bound motorists swerved to avoid the defendant and their headlights shone directly into his field of vision; and (e) defendant’s failure to brake or otherwise attempt to avoid the fatal collision. See Res. Brf. at 40. But with the exception of the alleged shots, which will be discussed below, all of those circumstances were also present in Valencia.4 And in Prindle, the facts were even more egregious, in that a stone-cold -12- sober defendant, who knew perfectly well what he was doing, sped through busy traffic, passing red lights and driving in opposite-bound lanes, before driving the wrong way on an interstate highway at 65 miles per hour. See Prindle, 16 N.Y.3d at 772 (Pigott, J., dissenting). The defendants in both Valencia and Prindle passed warning signs, had to avoid opposite-bound traffic which was in their field of vision, and struck other vehicles without braking. See Valencia, 14 N.Y.3d at 928 (Graffeo, J., concurring); Prindle, 16 N.Y.3d at 772-73. Indeed, in Valencia, the defendant virtually confessed to a Feingold-like mental state, answering “I don’t know and I don’t care” when informed that he had injured other people. Valencia, 14 N.Y.3d at 928 (emphasis added). If Valencia and Prindle were not depravedly indifferent, then the defendant in this case – whose conduct was functionally identical to Valencia, and was if anything less depraved than in Prindle – cannot possibly be. The People contend that Valencia must be limited to its facts, because it arose from a bench trial in which the trier of fact made findings that were supposedly inconsistent with a depraved mental state. See Res. Brf. at 45-46. In making this argument, they liken Valencia to Feingold, in which this Court deferred to the trial judge’s finding that the defendant was not depraved but cautioned that other triers of fact might find depraved indifference on similar facts. See Feingold, 7 N.Y.3d at 296. -13- As explained in the main brief, however, the flaw in the People’s argument is that this Court in Valencia did not make any cautionary observations similar to those made by the Feingold court. In Feingold, this Court was at pains to state that its ruling was based on the trial judge’s findings of fact, not on the totality of the evidence at trial. In contrast, the Valencia per curiam opinion states that “[t]he trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference.” Valencia, 9 N.Y.3d at 927-28 (emphasis added). Thus, the Valencia holding did not hinge on deference to any findings of fact made at the bench trial; instead, it turned on what the evidence proved, and more importantly, what it did not prove even when viewed in the light most favorable to the People. The Valencia court did not state that another trier of fact might find depraved indifference under the circumstances at bar; instead, it held that no trier of fact, whether judge or jury, could reasonably do so. And even if the People’s arguments concerning Valencia were cogent – which they are not – the same objection does not apply to Prindle, which arose from a jury trial and in which no specific findings were made by the trier of fact. The People next attempt to draw two factual distinctions between Valencia and the instant case. The first and primary distinction drawn by the People is that defendant allegedly fired shots at the Island Rock Club prior to getting on the highway. -14- See Res. Brf. at 44. As explained in the main brief and in Point II, there is a paucity of evidence that he was the one who actually fired those shots. But even if this Court were to assume that he did so, this would not change the equation. First, firing shots – even in the presence of other people – does not in itself establish depraved indifference. “[T]he mere presence of third persons at the scene of a [shooting] does not convert [the defendant’s conduct] into depraved indifference. [to human life] unless others are actually endangered.” People v. Suarez, 6 N.Y.3d 202, 213 n.7 (2005) (emphasis in original); accord Brown, 2011 WL 1366641, *6. Here, there was no proof whatsoever that Mr. McPherson fired the shots in the direction of other people or put them in danger with the shooting – something that, had it happened, the people in the crowd would certainly have noted and testified to at trial. Indeed, Delroy McCalla stated explicitly that he “didn’t see [defendant] facing Island Rock” at the time the shots were fired, meaning that if defendant fired the shots, he must have fired them away from the people at the club. (A.278). Given the absence of evidence that defendant fired toward or into a crowd of people, the inescapable inference is that he was not so far gone into depravity as to not care whether others lived or died. Nor, even if a jury could logically infer that defendant had a depraved mental state at the Island Rock Club – which it could not – is there any evidence that he still -15- possessed that mental state at the time of the crash. To the contrary, as discussed in the main brief, the witnesses who observed Mr. McPherson on the highway testified that he appeared focused on keeping his lane, which indicates that by that time, his intent was to get home safely. Obviously, such an intent is inconsistent with not caring whether the other motorists on the road live or die, because any crash that harms other motorists would also hurt or kill the defendant himself. Trying to get home safely is, indeed, the very antithesis of not caring whether others lived or died. The People also attempt to distinguish Valencia on the ground that defendant McPherson was “completely coherent and aware of his conduct immediately prior to getting into his car,” in contrast to Valencia which was “barren of any evidence concerning the defendant’s level of awareness when he began to drive.” See Res. Brf. at 44-45. This is not truly a distinction at all, given that – as the People implicitly concede – there was no evidence that Valencia was any less coherent or aware than Mr. McPherson. Certainly, Valencia was sufficiently aware to get into a car, start the engine and drive for several miles. Moreover, given Mr. McPherson’s highly intoxicated state – his blood alcohol content was measured at .19 some time after the crash, meaning that it was even higher while he was driving – it could certainly not be inferred that he was in full command of his faculties. Indeed, as discussed in the main brief, the People’s own expert witness, Dr. Closson, testified that Mr. McPherson’s -16- cognition and awareness would be severely impaired at that level of intoxication. Moreover, even if Valencia could be validly distinguished on this ground, which it cannot, the same could not be said of Prindle, in which the defendant was not drunk and was fleeing after being caught in the act of stealing two snowplows. See Prindle, 16 N.Y.3d at 769. Indeed, the People’s sole attempt to distinguish Prindle only underscores why the facts in this case cannot possibly make out depraved indifference murder. The People contend that “Prindle was attempting to avoid the police, suggesting that he was consumed with the intent to escape, to the exclusion of any other mens rea.” See Res. Brf. at 47. But this is an aggravating, not a mitigating, factor in Prindle’s conduct. If Prindle were so consumed with the desire to escape arrest that he drove 65 miles per hour in the opposite-bound lane of an interstate highway with full consciousness of what he was doing, then he obviously did not care whether others lived or died as a result of his flight. The People appear to be confused by the fact that depraved indifference to human life is a “negative” mens rea, i.e., one characterized by the absence of a mental state rather than its presence. Depraved indifference murder has two culpable mental states: recklessness and depraved indifference. See PL § 125.25(2); Feingold, 7 N.Y.3d at 293-94. Recklessness is a “positive” mental state, under which the -17- defendant must be aware of and consciously disregard of a known risk under circumstances that would be a gross deviation from a reasonable standard of care. See PL § 15.05(3). The “negative” part of the crime, depraved indifference, means that the defendant must disregard the risk while not caring if others lived or died as a result. Feingold, 7 N.Y.3d at 296. Depraved indifference can exist in company with other mental states, including the mental state of intent to escape, because such “positive” mental states do not exclude the “negative” that is depraved indifference. Thus, if someone is consumed with the intent to escape the police to the exclusion of all else – including the fate of others who might cross his path – then that is a fact which is more indicative of depraved indifference rather than less. Prindle’s conduct was more depraved than defendant McPherson’s. And as noted above, a majority of this Court found that even Prindle’s conduct was not enough, so Mr. McPherson’s must perforce be even less so. Finally, the People are incorrect in contending that, because Valencia and Prindle were decided after the defendant’s trial, they are “not relevant to this Court’s assessment of trial counsel’s performance.” See Res. Brf. at 43. This is wrong because both Valencia and Prindle were predicated upon Feingold, which was decided well before defendant’s trial. A Feingold motion during trial would have been sufficient to implicate the holdings of Valencia and Prindle on the defendant’s direct 5 Thus, the People’s citation of the trial judge’s remarks at sentencing, see Res. Brf. at 48, is immaterial, because these remarks were made before Valencia and Prindle were decided and are not determinative of whether defendant would be entitled to relief on appeal based on those cases. Indeed, it is incongruous to claim, as the People apparently do, that defendant did not suffer prejudice from his attorney’s failure to make a proper TOD motion because the trial court would have erred. 6 The People’s brief does not address whether intoxication is inconsistent with a depravedly indifferent mental state, and defendant will accordingly rely upon the arguments made in the main brief as to that issue. Additionally, defendant relies on the main brief with respect to the argument that characterizing drunk-driving accidents as depraved indifference murder is inconsistent with the legislative scheme. Defendant will only note here that the People are disingenuous in their quotation of the District -18- appeal. Thus, had counsel made a proper TOD motion, defendant would have been entitled to the benefit of these cases before the Second Department and would be able to invoke them directly, rather than via the duct of ineffective assistance, in his appeal to this Court. Since the purpose of a TOD motion is not only to secure dismissal at trial but also to preserve an issue on appeal, both Valencia and Prindle are directly relevant to his ineffective assistance claim. See Brown, 2011 WL 1366641, *8 (finding issue of fact as to ineffective assistance where “[e]ven if the trial court were to have failed to grant the objection, such appellate review of the legal sufficiency of that charge in Defendant's case likely would have resulted in a reversal of the conviction”).5 Therefore, Valencia and Prindle are controlling as to the sufficiency of the evidence in this case, and mandate a finding that Mr. McPherson did not act with depraved indifference.6 Had counsel properly objected, defendant’s sufficiency claim Attorneys’ Association submission in the bill jacket to Chapter 345 of the Laws of 2007. The People assert that, by characterizing the proposed law as “an appropriate charge for the most egregious circumstances short of depraved indifference,” the District Attorneys’ Association was affirming the continuing viability of depraved indifference murder charges for sufficiently egregious conduct. See Res. Brf. at 42. But the same submission by the District Attorneys’ Association also stated that “"[r]ecent court decisions have so limited the application of the depraved indifference statutes to vehicular crimes as to make them inapplicable” (emphasis added). Thus, the Association believed that appropriate penalties short of depraved indifference were needed in the circumstances where depraved indifference murder might formerly have been charged. Taken in context, that is all the excerpt quoted by the People means. And defendant reiterates that, since the Legislature has not seen fit to create a crime of “vehicular murder” even in the wake of Valencia and Prindle, this Court should be very chary of doing so. -19- would now be squarely before this Court and he would be entitled to relief thereon. This Court should find, based on this alone, that trial counsel failed to raise a clear-cut and completely dispositive issue and that he thereby provided ineffective assistance. But there is more, because in addition to failing to argue that defendant did not act with a depraved mental state, counsel also failed to argue that a grave risk of death was absent. As defendant stated in the main brief, and as the People did not refute, the odds of incurring a fatal accident while in a state of intoxication similar to Mr. McPherson’s are on the order of one in 100,000 or even less. While such a risk is no doubt substantial and unjustifiable in light of the catastrophic consequences if it eventuates, it is not grave; driving drunk, while reprehensible, is nowhere near as risky as firing into a crowd, dropping large rocks off an overpass, beating a helpless child -20- over a period of days, or other acts that this Court has characterized as evincing depraved indifference. The People’s response to this – as in the litigation below – is to argue that defendant did not merely drive drunk, but also made a deliberate choice to drive the wrong way on the Southern State Parkway for several miles. See Res. Brf. at 41, 48- 50. But absent from the People’s argument is any reason why any sane, non-suicidal human being would do such a thing. Indeed, the implausibility of the People’s argument is illustrated by their comparison of Mr. McPherson’s act to “when a person walks or drives in a particular direction.” See id. at 41. The People claim that if it can be inferred that a person who walks or drives in a certain direction intends to travel in that direction, then it must also be inferable that a person who drives against traffic for five miles on a highway intended to do so. Id. What the People fail to recognize is that walking or driving in a given direction is a natural and human act, whereas taking the suicidal risk of driving the wrong way on a high-speed, limited-access highway is not. Certainly, if someone walks from one city block to another, it can be inferred that he intended to get to the next block. But if the same person walks into traffic and is hit by a car, or if he walks off a cliff, then no similar inference of intent can be drawn. People do not naturally and logically intend to cause harm to themselves; thus, in the case of the pedestrian who is hit by -21- the car or who falls off the cliff, the natural inference is that he was not paying attention rather than that he intended to come to grief. The defendant’s conduct in the instant case is analogous to walking off a cliff, not to casually walking down the block. If the competing inferences are that Mr. McPherson deliberately drove the wrong way on a parkway at untold risk to his own life, or that he was simply too drunk to be aware of what he was doing or the risk that he was posing to himself and others, the overwhelming logical preference is for the latter, not the former. Indeed, even Nassau County District Attorney Kathleen Rice apparently does not believe what her employees are arguing in their brief to this Court, because, as discussed in the main brief, she has characterized the proliferation of “wrong-way” accidents as a traffic safety issue and requested that the New York State Department of Transportation provide better warnings. Given that each of the “wrong-way”’ accidents at issue took place under circumstances similar to those of the instant case – i.e., drunk drivers who entered the opposite-bound lane of a highway and proceeded in the wrong direction for several miles – then this Court cannot accept the People’s argument without concluding that all those drivers deliberately chose to engage in suicidal conduct. Since such a conclusion is clearly untenable in the absence of proof that the -22- motorist in question was suicidally minded, this Court must accept that defendant McPherson did not knowingly incur the risk of driving the wrong way on a public highway. Instead, the “grave risk” element must be adjudged according to the gravity of the risk that he did know of and disregard – the risk of driving drunk. And since drunk driving in and of itself poses a substantial, but not a grave, risk of death to others, this element of the offense was missing and defense counsel was ineffective for not drawing the trial court’s attention to that fact. Defendant’s conviction must accordingly be reversed and a new trial ordered. POINT II DEFENDANT’S TRIAL COUNSEL WAS OTHERWISE INEFFECTIVE (U.S. CONST. AMEND. V, VI, XIV) Second, defendant submits that his trial counsel was ineffective in numerous other respects, including, critically, failing to preserve a sufficiency claim as to the count of possession of a weapon in the second degree and questioning the identity of the victim in a way that inflamed the jury’s passions without hope of negating any element of the offense with which the defendant was charged. At the outset, the People’s citation of a laundry list of things that defendant’s counsel supposedly did competently, including the delivery of opening and closing statements, cross-examination of witnesses, and advocacy at sentencing, see Res. Brf. 7 Moreover, where a defendant raises both Federal and State ineffective assistance claims, it is strongly recommended that the reviewing court conduct a -23- at 67-68, is unavailing. Effective assistance does not involve an “averaging out” of counsel’s performance, such that he is excused for making prejudicial errors if he performed well in other areas. Indeed, a sufficiently prejudicial error constitutes ineffective assistance even if it is the only mistake that counsel made in the entire case. This was made clear by Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010), which stated in no uncertain terms that "look[ing] past a prejudicial error as long as counsel conducted himself in a way that bespoke of general competency… would produce an absurd result inconsistent with New York constitutional jurisprudence and the mandates of Strickland." Likewise, in Henry v. Poole, 409 F.3d 48, 72 (2d Cir. 2005), the Second Circuit found that “reliance on ‘counsel’s competency in all other respects’” to excuse prejudicial error “failed to apply the Strickland standard.” Indeed, this Court has recognized that the New York constitutional standard, as well as the Federal one, inherently considers whether trial counsel engaged in “an inexplicably prejudicial course.” People v. Zaborski, 59 N.Y.2d 863, 865 (1963). Thus, at least under the Federal standard and more properly under the New York State standard as well, the People cannot overcome a showing of ineffectiveness by pointing to other, unrelated things that counsel did at other points in the trial.7 This separate legal analysis under each standard. See Rosario v. Ercole, 617 F.3d 683, 685, 687-88 (2d Cir. 2010). -24- Court’s focus is not on the allegedly “diligent and persuasive” conduct of defendant’s attorney at sentencing or during his opening statement, but instead whether his errors had prejudicial impact on the case in light of the evidence at trial. And for the reasons stated below and in the main brief, they did. A. Failure to Preserve Sufficiency Claim as to Weapon Possession Count. First, contrary to the People’s argument, a specific and detailed trial motion to dismiss the weapon possession count, on the ground that there was insufficient proof that defendant possessed the weapon when loaded, would have been meritorious, and there was no plausible strategic reason for counsel to forgo making such a motion. The People rely, as they did at trial, on the testimony of Delroy McCalla, arguing that he heard shots "moments before defendant drove away" and that he saw defendant leaning over the trunk of the car and then "looking up and down" while sitting in the passenger seat. See Res. Brf. at 54. If the People are going to hang their hat on McCalla's testimony, however, they must also acknowledge his repeated statements that defendant took nothing from the trunk (A.269) and that he saw defendant's hands throughout this period and that there was nothing in them. (A.270- -25- 71, 274, 280-81). If, as the prosecution is trying to imply, Mr. McPherson was getting ammunition from the trunk and then loading the weapon in the passenger seat, then McCalla certainly would have seen the gun in his hands during that time. Given this, and given that there were many other things in the trunk that defendant could have been getting, the circumstantial inferences to be drawn from McCalla's testimony do not logically exclude all hypotheses besides guilt. The prosecution also errs in discounting the presence of another person, defendant's girlfriend Crystal Greene, who was also angry and was equally capable of firing the shots. In contrast to defendant, who McCalla described as "a little bit" angry (A.264, 280), Greene had argued with both defendant and McCalla, had been manhandled by McCalla in such a way that bystanders threatened to call the police, and was "yelling" at defendant just before the shots were fired. (A.271-73, 275, 279). She was in the immediate vicinity of defendant and his vehicle at this time (A.274, 278), and hence had both the motivation and the ability to fire the shots. The People ridicule the possibility that Greene may have fired the shots, arguing that McCalla never testified that he saw her holding a gun. See Res. Brf. at 56. The reason for this is simple, however: he was never asked. He certainly never said that Green wasn’t holding the gun – unlike his testimony concerning Mr. McPherson, which was steadfast in maintaining that defendant had nothing in his hands. McCalla’s -26- testimony does not exclude the possibility that Greene possessed the gun and fired the shots, and thus did nothing to dispel the equal plausibility of that inference. The People also contend that, if Greene had the gun, it would be a “remarkable coincidence” that “in his car’s trunk defendant kept a partially loaded magazine matching the gun.” See Res. Brf. at 56. But the People forget that the defendant and Greene were boyfriend and girlfriend. It is anything but farfetched that a girlfriend might keep some of her property in her boyfriend’s car – or, conversely, that she might have borrowed the gun for the night and loaded it for self-protection in case anyone tried to assault her at the Island Rock Club. The fact that “McCalla never mentioned Green [sic] putting anything into the trunk,” see Res. Brf. at 56, is hardly probative of anything, because she might have thrown the ammunition into the trunk earlier that night or on some previous night. And once again, the People’s contention that “McCalla said that he saw defendant getting into the trunk” runs up against the brick wall of McCalla’s emphatic testimony that defendant had nothing in his hands then or afterward. Unless the People are prepared to admit that McCalla committed perjury – which in itself would require reversal, see Napue v. Illinois, 360 U.S. 264 (1959) – they must accept the impact of this testimony. The evidence is at least as consistent with Greene possessing the gun and firing the shots as it is with defendant doing so, and the logical 8 To the extent that Main might be read to hold that mere proximity to shots fired is sufficient to warrant an inference of possession of a loaded weapon – as the People apparently advocate – it should not be followed, as such an inference would be far too speculative to prove guilt beyond a reasonable doubt. It is axiomatic that mere presence does not demonstrate guilt. Moreover, People v. Cade, 215 A.D.2d 772 (2d Dept. 1995), in which the defendant admitted possession, is not a circumstantial-evidence case and not instructive as to the facts at bar. -27- gaps in the evidence can only, impermissibly, be filled by conjecture. These gaps also distinguish this case from those upon which the People rely. In People v. Bailey, 19 A.D.3d 431 (2d Dept. 2005), for instance, the defendant had a weapon on his person (as opposed to merely in the same car) that was only technically unloaded, because it contained an inoperative bullet. Given that Bailey possessed a weapon that he obviously believed was loaded, and that he kept stocked with bullets, a jury could permissibly infer that, at some prior time, he possessed it with an actually-operable bullet in the magazine. Moreover, in Bailey and unlike the instant case, there was no other person who could have possessed the weapon during the relevant time. Likewise, in People v. Main, 179 A.D.2d 953 (3d Dept. 1992), the defendant made threats of violence to two witnesses, and it could hence be inferred that he was willing to back them up with a loaded gun. Again, there was no other person who could just as easily have had the weapon when it was loaded.8 -28- In People v. Johnson, 91 A.D.2d 327, 332 (4th Dept. 1982), also cited by the People, the gun was found in a locked room to which only the defendant had access, and the defendant admitted both possessing it and shooting it. Plainly, these circumstances do not apply here. Indeed, in one of the very cases relied upon by the prosecution, People v. McInnis, 179 A.D.2d 781, 782-83 (2d Dept. 1991), the defendant was involved in an incident where three guns were displayed. A witness saw one of the guns go off, but could not testify that any of the others were loaded. This Court agreed that the evidence was insufficient as to the guns that the witness did not actually see fired. Here, likewise, McCalla never saw the gun fired, could not say who fired it, did not see defendant in the act of loading or retrieving it (and indeed disclaimed seeing defendant with a gun), and thus did not provide evidence sufficient to sustain a conviction. Accordingly, a specific and detailed motion to dismiss the weapon possession count would have been a “clear-cut” and “dispositive” issue that would have led to the dismissal of that count, or at minimum its reversal on appeal to this Court, and defendant’s counsel was ineffective for failing to make such a motion. See People v. Turner, 5 N.Y.3d 476, 481 (2005). B. Questioning the Identity of the Victim. Furthermore, defense counsel was ineffective for pursuing a strategy of -29- questioning whether the victim in this case was in fact Leslie Burgess – a strategy which was entirely irrelevant to the issues before the jury, and required counsel to introduce photographs of the deceased’s corpse and to cross-examine the victim’s sister in a way virtually guaranteed to inflame the jury’s passions. There was nothing to gain from such a strategy and everything to lose – and the possible strategic justifications imagined at pages 58 through 64 of the respondent’s brief only underscore that fact. The People first contend, citing People v. Baker, 14 N.Y.3d 266 (2010), that in order to be “valid,” a strategy need not negate an element of the crime. See Res. Brf. at 58. Baker, however, is markedly different from this case. The defendant in Baker claimed that his counsel was ineffective for agreeing that the jury could consider depraved-indifference murder, first-degree manslaughter and second-degree manslaughter simultaneously rather than in the alternative. This Court found that all three offenses properly could be considered simultaneously, and that counsel had not made a mistake of law at all. See id. at 271-72. Obviously, where there was no error, there can be no ineffective assistance. This Court also found that counsel could have legitimately sought leniency from the jury by “giving the jury the option of considering the less serious homicide offense at the same time it deliberated over the depraved indifference murder and first-degree -30- manslaughter charges,” thus allowing them to convict of a lesser offense if it deadlocked on the greater. See id. at 272-73. Given this Court’s finding that there was no legal error in the first place, that finding has the characteristics of dicta. But in any event, it is not instructive as to this case. The defense attorney in Baker made a decision to allow the jury to be instructed in a manner that created a real possibility of benefit to his client – in other words, the benefit flowed naturally from the jury charge and from the likelihood that jurors would follow instructions as they are presumed to do. Here, in contrast, the jury was explicitly instructed that the identity of the victim was not relevant to their deliberations, and counsel knew that they would be so instructed. Defendant has no quarrel, as a general proposition, with the People’s argument that a valid trial strategy might do something other than negate an element of the crime. There are certainly other valid objectives that an attorney might hope to achieve at trial, for instance, to bolster a statutory defense, to cast doubt on the credibility of the People’s witnesses. But there must still be some objectively reasonable purpose that is served by the strategy; it cannot serve a purpose completely orthogonal to the issues before the jury and in a way that can only prejudice the defendant. In Baker, such a purpose existed, in the instant case, it clearly did not. This is only underscored by the People’s next attempt to justify it: they claim 9 The People contend parenthetically that “the effectiveness of the [misidentification] tactic is apparent from the number of objections it elicited from the prosecutor in this case.” See Res. Brf. at 60. Obviously, however, a prosecutor might object for all kinds of reasons that have nothing to do with the impact of the -31- that it was legitimate for defendant’s counsel to elicit the victim’s criminal record. See Res. Brf. at 59-60. But the cases they cite for that proposition – Hedrick v. True, 2004 WL 594989 (W.D. Va. 2004) and Lord v. Attorney General, 1991 WL 5174 (W.D.N.Y. 1991), both involved close-range homicides (a shooting in Hedrick and a stabbing in Lord) perpetrated during or after robberies. In such cases – especially in Lord, which involved a falling-out between thieves – elicitation of the victim’s criminal record can serve a legitimate purpose, because it could cast doubt in the jury’s mind as to who the initial aggressor was and affect its judgment as to the cause of death. Here, however, the cause of Leslie Burgess’ death was a car crash. The death did not result from a violent encounter, and indeed, defendant and Burgess had never even seen each other prior to the fatal accident. There was no latent issue as to the identity of the aggressor, because there was no aggressor. Under the circumstances of this case, any attempt to portray Burgess “as more a criminal than a victim,” see Lord, 1991 WL 5174, *4, was not merely irrelevant but insulting to the jury, and such a transparent attempt to smear the victim could only have incited the jurors’ passions against the defendant.9 testimony elicited by defense counsel – for instance, a desire to move the trial along and stop wasting time with irrelevant. -32- The People further contend that counsel might have wanted to introduce pictures of the corpse in order to prevent the jury from imagining it worse than it was, see Res. Brf. at 61-62, and to embarrass the prosecution by showing that it couldn’t properly identify the victim, see id. at 62. As to the first, it is only necessary to respond that a picture is worth a thousand words, and that the sight of a charred corpse – something few if any of the jurors would have seen before – is something more inherently prejudicial than any amount of dry testimony. This is especially true since, up to that time, the testimony concerning the body’s condition had been clinical and not inflammatory. As to the second possibility, that of “embarrassing” the prosecution, it is unlikely in the extreme that any embarrassment would have resulted from the prosecution not proving something that it didn’t have to prove. And even if the prosecution were embarrassed, that would not take away from the undisputed fact that defendant’s car had struck another car on the highway and that someone was dead. The credibility of the prosecution’s witnesses – who, unlike the prosecutor, provided evidence that the jury could consider – would not have been affected in the least. Any possible benefit, if indeed such a benefit could be said to exist, was so remote, -33- speculative and marginal that no reasonable attorney could consider it worth the prejudice that would inevitably result from attacking the victim and his sister. The People also argue that defense counsel might legitimately have sought to “sow confusion in the minds of the jury,” reasoning that the jury instructions might have identified Burgess by name and that a misidentification strategy might have confused the jury into believing that his identity was an element of the crime. See id. at 63-64. Any force this argument might have, however, is lost when one considers the fact that the trial court explicitly stated to defense counsel that identity was not an element, and that counsel knew that the jury would be instructed that the People did not have to prove who the victim was. In any event, this was not a case in which confusion was called for. The jury here was called upon to apply a complex legal standard and to make a retrospective judgment about Mr. McPherson’s mental state at the time of the crash. The jury needed to be focused on the issue of depraved indifference, and the difficulty of the People’s burden on that issue, rather than being distracted with irrelevancies. This is not a case such as Alston v. Phillips, 703 F. Supp. 2d 150, 182-83 (E.D.N.Y. 2010), relied upon by the People, in which defense counsel had to elicit damaging evidence and might validly have "seen little downside risk" in confusing the jury while doing so. Instead, this case involved a straightforward mitigating defense in which there was no 10 If this Court finds that the present record is not sufficient to adjudicate defendant’s ineffective assistance claims – which it is – then defendant requests that it say so, and that he be permitted to raise all such claims in an appropriate forum. -34- need to elicit damaging evidence and therefore no need for misdirection. Finally, the People contend that there may be additional strategic considerations not apparent from the trial record and which can only be explored in the CPL § 440.10 context. See Res. Brf. at 64-66. But any such reasons would, inevitably, be even weaker than the attempted justifications set forth in the People’s brief, which are presumably the best that the prosecution can imagine. Since all the People’s attempts to concoct a valid strategic justification are ultimately farfetched, speculative and of such marginal potential benefit that they could not possibly outweigh the prejudice caused by attacking the victim and showing pictures of the corpse to the jury, there is no possibility that a CPL § 440.10 motion, which would involve even more nonsensical “strategies,” would serve to justify counsel’s conduct. This is, as stated in the main brief, a case in which ineffectiveness can be demonstrated on the main record, because there is no valid reason for counsel to do what he did and because the prejudice to the defendant is manifest from the very testimony and pictures he elicited.10 In sum, this is not a case in which, as the People contend, “nearly any other -35- approach was clearly futile in view of the overwhelming nature of the evidence.” See Res. Brf. at 66. As shown in Point I above and in the main brief, the evidence of depraved indifference was not even sufficient, much less overwhelming. This is a case in which the jury needed to be focused on the lack of proof concerning a depraved mental state, not distracted by attacks on the victim and his sister that could only redound to the defendant’s prejudice. This Court should find that defendant received ineffective assistance of counsel and that, at minimum, a new trial is required. POINT III THE EVIDENCE OF DEPRAVED INDIFFERENCE MURDER AND SECOND-DEGREE WEAPON POSSESSION WAS LEGALLY INSUFFICIENT (U.S. CONST. AMEND. V, XIV) Finally, this Court should find, independently of any ineffective assistance of counsel, that the trial evidence, even viewed in the light most favorable to the People, was not sufficient to support a conviction of depraved indifference murder or second- degree weapon possession. Defendant acknowledges - as he acknowledged in the main brief - that the motion to dismiss made by his counsel at trial did not include the grounds urged on this appeal. This Court’s jurisdiction to review the merits of defendant’s argument thus hinges on defendant’s contention that the rule established in People v. Gray, 86 -36- N.Y.2d 10 (1995) should be abandoned in favor of the Federal rule in United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983). The People contend that it would be unconstitutional for this Court to adopt the Gjurashaj rule, and that “compelling practical reasons” counsel against overruling Gray. However, the People’s constitutional argument is without merit, and its parade of horribles is simply not grounded in fact. For their constitutional argument, the People rely on Article VI, Section 3(a) of the New York State Constitution, which provides in pertinent part that “[t]he jurisdiction of the court of appeals shall be limited to the review of questions of law except where the judgment is of death.” In particular, the People contend that the limitation of this Court’s jurisdiction to “questions of law” necessarily requires that trial motions to dismiss for insufficient evidence be made with specificity. See Res. Brf. at 69-71. But what the People ignore is that the State Constitution does not define what a “question of law” is. It is thus within the power of the Legislature, and of this Court, to define the parameters of a “question of law.” In criminal cases, the requirements for preserving a question of law are set forth in Section 470.05(2) of the Criminal Procedure Law, which provides: For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was -37- registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an “exception” but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in reponse to a protest by a party, the court expressly decided the question raised on appeal. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered. (Emphasis added). In other words, “a question of law is preserved if the point was expressly decided by the trial court in response to a protest, even though the protesting party overlooked that argument when making the protest.” People v. Ayala, 142 AD.2d 147, 157 (2d Dept. 1988), aff’d, 75 N.Y.2d 422 (1990) (emphasis added). Again, nothing in CPL § 470.05(2) speaks to the specificity with which an objection or protest must be made; instead, it merely regulates the time at which the protest must be registered. Indeed, as the Ayala court recognized, the 1986 amendments to CPL § 470.05(2) were specifically intended to eliminate formalism in the preservation of issues of law, and to allow such issues to be preserved “implicitly” through the seeking of a particular ruling. Indeed, a general trial motion to dismiss would appear to be within the express 11 Indeed, even People v. Hawkins, 11 N.Y.3d 484, 491 (2008), cited by the People, does not state that the Gray rule is mandated by the state constitution; instead, the Hawkins court simply began its discussion of preservation standards by referring to the state constitutional provision at issue. -38- parameters of CPL § 470.05(2). A defendant who moves to dismiss one or more counts on the ground of insufficient evidence – even generally - has certainly requested “expressly or impliedly” a ruling dismissing those counts, and has made his or her position regarding the sufficiency of the evidence known to the court. Moreover, if the court denies the motion, the sufficiency of the proof has been “expressly decided by the trial court in response to a protest,” which preserves an issue of law even if the defendant protesting the insufficiency of the evidence “overlooked [an] argument” in favor of his position. Ayala, 142 A.D.2d at 157. Thus, the Gray rule is not mandated either by the New York State Constitution or by statute. It is a judge-made rule, and as such, it is one that judges can unmake.11 Moreover, the People’s contention that, absent the Gray rule, “the defense bar and prosecutors alike could soon be afflicted by a creeping intellectual laziness, resulting in a steadily increasing number of legally insufficient convictions across the State,” see Res. Brf. at 72, is not borne out by a comparison between New York and Federal statistics concerning criminal appeal dispositions. In Federal courts between 1995 and 2007, approximately 80 percent of criminal appeals each year resulted in 12 In 2005 - the year Booker was decided - the Federal affirmance rate approached 50 percent, and in 2006, it was approximately 68 percent. By 2007, the affirmance rate was back at or above 80 percent. See Heise, supra, 93 Marquette L. Rev. at 830. Based upon the experience of the undersigned in litigating Federal criminal appeals, including the 2005-07 period, the reduced affirmance rate during that period is attributable entirely to the remands necessitated by Booker. 13 Available online at http://recruitconnect.skadden.com/content/Publications/ Publications2272_0.pdf (visited March 19, 2013). -39- affirmances, with the exception of 2005 and 2006 when the courts were dealing with the aftermath of United States v. Booker, 543 U.S. 220 (2005) and the end of the mandatory sentencing guidelines. See Michael Heise, Federal Criminal Appeals: A Brief Empirical Perspective, 93 Marquette L. Rev. 825, 830 (Dec. 2009).12 In the four departments of the New York State Appellate Division during the same period, affirmance rates ranged from 80 to 91 percent. See Bentley Kassal, Update: Did the Appellate Odds Change in 2009, NYSBA J. 38, 39 (Oct. 2010) (giving statistics for 2005 through 2009).13 Although the affirmance rates were slightly higher in state court, they were not markedly so, and a good deal of the difference is likely attributable to the Federal courts’ use of mechanical sentencing guidelines and the resulting profusion of sentencing appeals. There is thus no indication that the Federal criminal bar has been afflicted by a “creeping intellectual laziness” due to the Gjurashaj rule – indeed, the United States Attorneys’ offices in the four judicial districts of New York, which have impeccable -40- professional reputations, would no doubt bristle at any such suggestion. Instead, what happens in Federal court is that the focus of sufficiency appeals is where it should be – on whether the defendant’s guilt was sufficiently proven - rather than on the subsidiary issue of whether his lawyer moved to dismiss with sufficient specificity. To be sure, as defendant has acknowledged, a rule of specificity makes perfect sense for trial errors, where a prompt and specific objection may enable the court to cure the error before any fatal harm is done. But as stated in the main brief, insufficient evidence is not an “error” that the trial court can or should cure. Proving a criminal case is the People’s responsibility, not the trial judge’s, and it would be unseemly for a trial court to respond to a meritorious trial motion to dismiss by enabling the People to reopen their proof. Indeed, even the case of People v. Whipple, 97 N.Y.2d 1, 8 (2001), cited at page 71 of the respondent’s brief, states that if the People “move[] to reopen in order to cure some defect in their case that became discernible only after a defense motion based on research,” then the grant of a motion to reopen might even be an abuse of discretion. And while a motion to reopen could potentially be entertained to allow the People to establish a “missing element [which] is simple to prove and not seriously contested,” see id., it would hardly be fair to require the defendant himself to point out the deficiency to an adversary. Requiring detailed objections to errors made by trial judges, who are not in an 14 Indeed, the reverse may be true, given that at least one Federal court has suggested that a meritorious sufficiency point will nearly always qualify for review under the plain-error standard even if no trial motion to dismiss was made at all. See United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009); United States v. Vizcarra- Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995). -41- adversarial relationship with the defense, is one thing; requiring defendants to notify the People of the holes in their case is something different entirely. Indeed, the availability of motions to reopen is a factor counseling against the Gray rule rather than in its favor, because the level of specificity required by Gray undermines the adversarial nature of the system and potentially compels the defendant to assist the People in proving their case. Finally, the availability of interest-of-justice review in the Appellate Division, see Res. Brf. at 71, is not a reason for this Court to impose a more stringent rule of preservation than is used in Federal courts, given that Federal courts of appeal may also review unpreserved errors under the “plain error” rule. See United States v. Cotton, 535 U.S. 625 (2002). In practical terms, the state courts do not have a significantly broader scope of review of unpreserved errors than the Federal courts do, meaning that there is no “safety net” for unpreserved sufficiency claims in the state courts.14 And of course, the ability of the Appellate Division to review unpreserved sufficiency issues is no substitute for the second layer of review provided by this -42- Court with respect to preserved claims. This Court should accordingly find that the Gjurashaj rule is superior to the Gray rule, adopt Gjurashaj as a matter of state law, and proceed to the merits of the defendant’s sufficiency claims. Again, as to the depraved indifference murder count, the insufficiency of the evidence is fully discussed in the main brief and in Point I above, and defendant will thus not belabor the record by repeating it here. Suffice it to say that the record contains no proof whatsoever that defendant made a deliberate and conscious choice to drive the wrong way on the Southern State Parkway, nor is there any plausible reason why he would have made such a choice. The record of this case – which is virtually identical to that in Valencia, supra – is devoid of any evidence that the defendant did not care whether others lived or died as a result of his driving, which under the circumstances at bar, would require a finding that he also did not care whether he lived or died. The evidence proved that the defendant was simply trying to get home, and that while driving home in a highly intoxicated state was certainly reckless, it did not evince depraved indifference to human life under the Valencia and Prindle precedents. As to the gun charge, the People argue that “a rational jury could have inferred on the basis of, among other things, the match between the pistol found in his car and the shell casings found outside the nightclub, that at some point before the collision -43- on the Southern State Parkway, defendant possessed the pistol loaded with operable ammunition.” See Res. Brf. at 74. But as they did in the litigation below, the People ignore the testimony of their own witness Delroy McCalla, who was adamant in maintaining that Mr. McPherson never had a gun in his hand during the period before the shots were fired. Moreover, the People’s suggestion that Mr. McPherson got the pistol out of the trunk of the car and loaded it while sitting on the front seat, see Res. Brf. at 73-74, is again contrary to McCalla’s testimony that defendant did not have a gun in his hand while he was in these locations. Defendant reiterates that McCalla did not merely fail to recall whether or not he was holding a gun; instead, he was unwavering in his testimony that defendant “had nothing in his hands.” The People also ignore the fact that the defendant was not the only one at the scene who could have possessed the weapon and fired the shots. Instead, as stated in the main brief, his girlfriend Crystal Greene was standing right next to him and was, according to McCalla, considerably angrier and more agitated than the defendant himself. The facts proven at trial are just as consistent, if not more so, with Greene being the one who had the gun and fired it, thereafter throwing it on the front passenger side of the car, as they are with McPherson being the one who held the gun while it was loaded and ultimately fired the weapon. There was certainly proof from which a jury could find that the bullets at the -44- Island Rock Club were fired from the same weapon that was found in the defendant’s car. There was also, clearly, evidence that Mr. McPherson possessed the weapon after it had been fired, when it was in an unloaded state. However, there was an absence of proof from which the jurors could infer that Mr. McPherson, rather than Crystal Greene, was the one who had the gun before and during the period when it was fired. Where, as here, the proof of possession is wholly circumstantial, and where the evidence is at least equally consistent with innocence as with guilt, a verdict against the defendant cannot stand. People v. Montanez, 41 N.Y.2d 53, 57 (1976); People v. Ford, 66 N.Y.2d 428, 441 (1986); accord United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002) ("if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt") (emphasis added). Indeed, this is true even where the circumstantial proof leaves the reviewing court with a distinct feeling of suspicion, "because it would not satisfy the Constitution to have a jury determine that the defendant is probably guilty." United States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (emphasis in original). Since the jury would have to flip a coin to determine whether defendant, as opposed to Greene, possessed the weapon while it was loaded, the evidence even in the light most -45- favorable to the People was not sufficient to prove defendant’s guilt, and the second- degree weapon possession count should be reversed. CONCLUSION In light of the foregoing, this Court should grant the instant appeal, vacate defendant's murder and weapon possession convictions, dismiss those charges or reduce them to lesser offenses supported by the proof, and remand with instructions to resentence defendant as to all counts of which he still stands convicted. Dated: New York, NY March 20, 2013 _________________________ JONATHAN I. EDELSTEIN Of Counsel: Robert M. Grossman