The People, Respondent,v.Patrick A. Asaro, Appellant.

Brief

N.Y.September 10, 2013

To be Argued by: BENJAMIN OSTRER Time Requested: 12 Minutes munrt uf 1\ppruln ~ttttr of Nrm Work THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- PATRICK ASARO, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Of Counsel: OSTRER & HOOVLER, P.C. Attorneys for Defendant-Appellant 111 Main Street - P.O. Box 509 Chester, New York 10918 (845) 469-7577 BENJAMIN OSTRER Orange County Clerk's Indictment No. 495/09 Appeal Press, LLC - (914) 761-3600 (212) 267-6602 (15075) TABLE OF CONTENTS Page TABLE OF AUTHORITIES................................................................................... ii ARGUMENT: 1. RESPONDENTS HAVE MISCHARACTERIZED EVIDENCE.................... 1 II. EXPERT TESTIMONY WAS IMPROPERLY ADMITTED .......................... 3 III. RESPONDENT'S CLAIM OF PEER REVIEW SHOULD BE REJECTED .. 7 CONCLUSION....................................................................................................... 12 -i- TABLE OF AUTHORITIES Page(s) Frye v. United States, 54 App.D.C. 46, 293 F. 1013 3, 6,7, 11 People v Rosario, 9 N.Y. 2d 286 5, 12 Report ofInvestigation of the Trace Evidence Section of the New York State Police Forensic Investigation Center; 10 People v. DaGata, 86 N.Y.2d 40,44-45. 12 CPL§ 240.20(1)(c) 12 RESPONDENTS HAVE MISCHARACHTERIZED EVIDENCE The Respondents, in their brief, have gone to great length in an effort to persuade this Court that the Appellant's ability to operate a motor vehicle was impaired at the time ofthe accident which resulted in the charges contained in the indictment. Respondents have devoted considerable attention in their briefto descriptions of the Appellant's alleged intoxication or impairment. Inspection of the testimony discloses that the versions of events related are internally inconsistent and devoid of corroboration. Respondents have also resorted to speculation in an attempt to explain away chemical tests of the Appellant's blood which confIrmed a complete absence of alcohol. The extrapolation argument presented by Respondents [Resp. brief p. 25] as to the "possibility" alcohol would have been detected at the time of the accident, (which was also made to the jury), improperly invites speculation. The Respondents' description of the initial police encounter with Appellant at the scene of the accident omits material facts. [Resp. brief p.17] Two uniformed officers allegedly detected the odor of alcohol but took no action with regard to potential associated charges. The widely varying witness accounts of 1 Appellant's alleged consumption of alcohol, in Respondents' brief, depict him as variously drinking beer during a beer pong game, [Resp. brief p. 7] consuming an entire 12 to 14 inch tall bottle of vodka, [Record p. 277] and exhibiting slurred speech. [Record p.262] None of the forgoing accounts were corroborated by a second witness. The indicia of alcohol consumption by police officers was not corroborated by their subsequent action or by anyone else who interviewed or interacted with Appellant, including numerous medical personnel, as well as the police officer who obtained his voluntary consent to the blood test taken at the hospital. Although Respondents recounted the extensive efforts ofEMT Natasha Vasquez [Resp. brief p. 20-22] they omit that she was literally in the face of Appellant and failed to detect the odor of alcohol. [Record p. 652] Respondents also ignore the actions of police officers who failed to take any action consistent with suspicion of an encounter with an intoxicated driver although they testify to detecting the odor of alcohol emanating from the Appellant. These perceptions were rebutted by those of the EMT who most closely attended to the Appellant. Assuredly, if the Appellant had demonstrated slurred speech or other indications of intoxication at the accident scene, the police present at the scene would have undertaken further inspection of Appellant's condition. The devotion paid to 2 evidence of impairment in Respondent's brief is further belied by jury's rejection of the acquittal of the charged impairment. It is remarkable that the Respondents continue to advance arguments concerning the needle stick in the face of known unreliability. [Resp. brief p. 31 and Point II Resp. brief p.62] Armed with knowledge that it was unreliable, the continued attention devoted to the "experiment" conducted by Michael Ortiz, a young auto mechanic, only serves to demonstrate the extent to which the prosecution ventured in an attempt to elevate the importance of needle stick. The inconsistency of the prosecutorial conduct in the instant case and the Gore case which is addressed in Appellant's main brief implicates due process concerns. EXPERT TESTIMONY WAS IMPROPERLY ADMITTED The conclusions contained in the expert's report were themselves not worthy of admission, as they were speculative, and, at best, the product of a misuse of the conservation of linear momentum formula. The expert report was premised upon speculation concerning the speed of the Steven's car and was therefore fundamentally flawed. The trial court and the Appellate Division erred in holding the requested Frye hearing had been properly denied. ( Frye v. United States, 54 App.D.C. 46, 293 F. 1013) 3 "If Stevens had been driving at 35 miles per hour defendant would have been driving at 94 miles per hour, while Stevens driving at 40 miles per hour would have meant that defendant was driving 99 miles per hour. " [Resp. briefp.32] Respondents do not address potential rate of speed had the Stevens car been stationary or slowed preparing to tum into the driveway at the Adamczyk residence. The loss of Trooper Pirtle's notes and computations precluded Appellant from such an exercise which would have been similarly speculative. Respondents' assertion in their brief that "Defense counsel advised the jury in his opening that Pirtle had not preserved them" [Resp. brief p. 43] as evidence that defense counsel "fully prepared his cross examination" is, at best, misleading. The fleeting reference to the notes in his opening remarks confIrm that defense counsel was still burdened by the active concealment by the prosecution of the loss of Pirtle's computations. "The speed is the product of an accident reconstruction, a formula that is a quadratic equation. I never got that far in math. We don't have Victor Pirtle's mathematical computation. He didn't write it down. He didn't preserve it. " [emphasis added] [Record - 187] 4 · It is self evident that at the time of opening Appellant was not yet aware that Pirtle had allegedly made written computations which he couldn't reproduce. If armed with knowledge that the computations had been written and thereafter lost, defense counsel's remark in his opening would have been inexplicable. In stating erroneously to the jury that "He didn 'f write it down", defense counsel properly relied upon the prior proceedings at which disclosure of the computations was consistently opposed by Respondents in the context of his observation that written computations were absent from Rosario material provided at jury selection (People v Rosario, 9 N.Y. 2d 286). The comment in opening statement was made in ignorance of the fact that the computation had been made on a pad and had been lost. The prosecution disclosed only that there was no written computation. The failure of the Respondents to make full disclosure concerning the irretrievable nature of the loss ofthe mathematical computations consigned the defense to incorrectly conclude that Pirtle had computed the speed on an adding machine or computer where the result was displayed and not printed. The Respondents' actions in this case compelled significant efforts and wasted resources both pursuing non-existent information and critical review of the prosecution expert's work product. As noted in Appellant's main brief, Pirtle's notes were not the subject of questioning during his direct examination. It was not 5 until Pirtle's cross-examination that the actual method of his preparation of his computation and the loss ofthe pad containing his alleged computations was made known to the defendant. [Record pp. 1732-1734] This type of hide and seek, should not be endorsed or ratified by this Court. Respondents' claim that the defendant's opening statement somehow serves as confirmation that the Prosecution's misconduct was somehow cured, must be rejected. It does, however, further serve as evidence ofthe extreme to which the People will go in an attempt to preserve this wrongful conviction. Respondents' references to testimony, which was the subject of sustained objections, of Appellant's contemporaries who had allegedly modified their vehicles, as confirmation that Appellant had somehow elevated the performance of his car, is further evidence of the Prosecution's efforts to deflect from the significant prejudice which they knowingly introduced into the trial by attaching importance to the unreliable and therefore irrelevant needle stick. The combination of these factors, as set forth in Appellant's main Brief, resulted in an unfair trial. Respondents vigorously arne in their brief that the trial court properly denied the requested Frye hearing. Appellant contended in his request for the Frye hearing (and pre-trial disclosure of the expert's computations of speed) that Victor Pirtle had improperly utilized the conservation of linear momentum formula to 6 solve for two speeds. As it is now confirmed that the District Attorney was never in possession of Pirtle's computations, [Record p. 1732, 1734] their opposition to the Frye motion was made without the inability to themselves confirm whether Pirtle had properly employed the linear momentum formula. In the absence of some reasonable basis to believe the formula had been properly employed, the opposition to the requested hearing should be viewed as an attempt to obfuscate the loss of the notes. In hindsight, it is now clear that in opposing the motion, Respondents could not confirm how, or, even if, the conservation of linear momentum formula had been used or applied as the mathematical computations had been lost and, even more problematic, could not be reproduced by the expert. In the absence ofthe computations, the prosecution adopted a conviction at any cost posture by opposing the Frye hearing and resisting disclosure of the then non- existent calculations of their expert witness. RESPONDENT'S CLAIM OF "PEER REVIEW" SHOULD BE REJECTED The hypocrisy of the Respondents argument in their brief that Trooper Pirtle's work had been "Peer Reviewed" [Resp. brief at p.33] and therefore reliable is submitted as another instance offact bending. The review allegedly undertaken by Sergeant Bates was explored during the cross-examination of 7 Trooper Pirtle. The following excerpt [commencing at Record p. 1734] confirms the nature of the purported peer review. Q. SO without your handwritten notes, we have no documentation as to what numbers were used to reach your conclusions as to speed, is that correct? A. Correct. Q. And you never sent your mathematical computation to Dan Bates, you only spoke to him on the phone about them? A. Yes. Q. Do you know if Sergeant Bates wrote down the numbers or figures that you conveyed to him during your phone conversation? A. I do not believe he did, sir. Q. Now you said that Sergeant Bates reviewed your report? A. Yes Q. Did he offer any correction or changes to make to your report ? A. Yes, he did. We discussed it. Although Trooper Pirtle could not recall the nature of the changes which were suggested to his report by Bates, the following exchange serves as additional confirmation of the illusion of peer review which was undertaken. Q. Yes sir. Now did Sergeant Bates correct you with respect to the fact that 8 you listed Brian Stevens as being injured in your report? A. No, he did not. Q. Did Sergeant Bates correct you with respect to the notation in your report that the Chevy Camaro was not equipped with an air bag? A. I don't believe that he did. Q. And you know as you sit here today that that Chevy Camaro is equipped with an air bag: isn't that correct? A. I believe that it is. Q. But in your report you indicate that there was no air bag? A. May I look? Q. Trooper I believe it would be page 6 at the top? A. I found it Q. SO your report indicated that the Camaro was not equipped with an air bag? A. Yes [Record p. 1735 - 1736] Following some additional questioning, the steering wheel was then handed to the witness which was marked into evidence as defendant's exhibit 1. At which time Pirtle testified that although it was important to him, he never determined 9 whether the steering wheel was sawed off or became dislodged during the accident. A subsequent exchange disclosed that the data relating to the grade of the road and presumably the drag factor which Pirtle used for his computations was only to be found on the lost note pad. [Record p. 1742, 1744] Respondents contend in their brief that the defendant was sufficiently armed to cross-examine the expert. They also urge that this and the lower Courts should have confidence in the report because "Pirtle's report was peer reviewed by another New York State Police reconstructionist." [Resp. brief p. 33] In truth, the peer review of Pirtle's work is submitted as no better than that to which State Police Forensic Scientist Garry Veeder's was subjected at the New York State Police Lab. [see generally, The New York State Inspector General's Report o(Jnvestigation of the Trace Evidence Section ofthe New York State Police Forensic Investigation Center; December, 2009] As Pirtle's computations were not shared with his purported peer reviewer, reliance thereon as vindication of the accuracy of the expert report is somewhat curious. In the absence of inspection of the expert's computations, there can be no comfort that the formula had been properly applied. Appellant originally challenged the expert report on the ground that the formula was being used to solve the speeds of both vehicles when the proper application required knowledge of the speed of at least one vehicle. 10 The District Attorney resorted to deception to avoid the requested Frye hearing which would have disclosed the loss of the experts computations and his inability to reproduce them. At the time the Respondents opposed the application for the Frye hearing, they themselves could not determine if Pirtle had employed the linear momentum formula correctly as Pirtle later testified he never provided the District Attorney with his mathematical computations. [Record p. 1733] It was at best a questionable practice employed by the District Attorney to fail to disclose the loss of the expert's arithmetic and notice that it could not be reproduced. Simply put, if the prosecution, in possession of all ofthe investigative data could not duplicate Pirtle's original computation of speed, it must be assumed that there was insufficient data for the defendant to prepare his own estimates. There is no basis upon which to believe that any expert, armed with the remaining materials provided to Appellant could reproduce a computation of speed or any of the other conclusions such as cross-over and point of impact, upon which the manslaughter conviction was based. The indictment and arrest in this case followed a lengthy 9 month investigation. As a result, there was little if any evidence of the collision remaining at the scene available to Appellant following his arrest. 11 CONCLUSION The ultimate conclusions ofthe expert in this case were not subject to verification. The ability to cross examine about his ultimate conclusions is no substitute for inspection of how he reached those conclusions. This Court in People v. DaGata, 86 N.Y.2d 40, 44-45 held that the underlying data utilized by an expert must be disclosed in accordance with CPL§ 240.20(l)(c). In so doing, this Court did not allow that an adverse inference would be a meaningful remedy for such disclosure. The fundamental error in classifYing the expert work product as Rosario material was aggravated by the Respondent's course of conduct. Respondent's contention notwithstanding, endorsement of the remedy supplied by the trial court would reward and perhaps invite an expert to destroy his work product once his report was produced. It was therefore plain error, even in the ignorance of the prosecutions actions, to admit the prosecution's expert testimony. Victor Pirtle's status as a police officer did not excuse the prosecution's obligation to provide complete disclosure of his work product. 12 The Respondent's conduct deprived Appellant of the ability to meaningfully confront a critical witness against him. The judgment should be vacated and reversed and a new trial ordered. Dated: Chester, New York February 14,2013 Respectfully submitted, "§;~.~ f}i/tt,e;t, Benjamin Ostrer Ostrer & Hoovler, P.C. Attorneys for Appellant, Patrick Asaro 111 Main Street Chester, New York 10918 (845) 469-7577 13