The People, Respondent,v.Patrick A. Asaro, Appellant.BriefN.Y.September 10, 2013To be Argued by: BENJAMIN OSTRER Time Requested: 12 Minutes Oloutt of l\pprula ~tatt nf NtlU I'nrk THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- PATRICK ASARO, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT OSTRER & HOOVLER, P.C. Attorneys for Defendant-Appellant 111 Main Street - P.O. Box 509 Chester, New York 10918 (845) 469-7577 Orange County Clerk's Indictment No. 495/09 Appeal Press, LLC - (914) 761-3600 (212) 267-6602 (15075) TABLE OF CONTENTS Page ISSUES PRESENTED............................................................................................. ii TABLE OF AUTHORITIES................................................................................... iii STATEMENT OF THE FACTS............................................................................... 1 PROCEEDlNGS BELOW........................................................................................ 3 APPELLATE DIVISION DECISION & ORDER.................................................... 7 ARGUMENT: I. EXPERT TESTIMONY WAS IMPROPERLY ADMITTED.................. 9 II. A FRYE HEARING WAS REQUIRED.................................................. 14 III. PROOF WAS lNSUFFICIENT ............................................................. 15 A. The People failed to prove the elements of Reckless Manslaughter.... 16 IV. THE VERDICT WAS REPUGNANT................................................... 20 V, THE EXPERT TESTIMONY SHOULD HAVE BEEN STRICKEN.. 24 VI. EXPERT TESTIMONY WAS IMPROPERLY BOLSTERED........... 28 VII. THE FAILURE TO DISCLOSE THE UNRELIABILITY OF THE NEEDLE SLAP EVIDENCE CONSTITUTED A BRADY VIOLATION 31 CONCLUSION....................................................................................................... 33 -i- ISSUES PRESENTED 1. Did the trial court err in finding that the failure to produce the mathematical computations of the prosecutions expert constituted a Rosario violation which could be cured by means of an adverse inference charge to the jury? Answer: The Appellate Division held that the adverse inference charge was sufficient 2. Was the prosecution obligated to disclose to the defendant information which undermined the credibility of evidence offered to bolster the testimony of their accident reconstruction expert? Answer: The Appellate Division appears to have answered in the negative. 3. Did the trial court err in determining that a Rosario sanction was appropriate when it was discovered that the prosecution failed to produce the police expert's written computations supporting the ultimate conclusions contained in his report rather than striking or precluding his testimony? Answer: The Appellate Division approved of the sanction imposed by the trial court without addressing the rationale for the resulting disparate disclosure obligations of police experts as compared to other professionals. -11- TABLE OF AUTHORITIES Frye v. United States, 54 App.D.C. 46, 293 F. 1013 People v Rosario, 9 NY2d 286 People v. Ranghelle, 69 N.Y.2d 56 People v. Schaffer, 80 A.D.2d 865 People v. Wesley, 83 N.Y.2d 417 Maryland v. Craig, 497 U.S. 836 People v. Wrotten 14 N.y'3d 33, 39 Melendez-Diaz v. Massachusetts 129 S.Ct. 2527 Cassano v. Hagstrom, 5 N.Y.2d 643, 646; Tucker v. Elimelech, 184 A.D.2d 636, 637 Matott v. Ward, 48 N.Y.2d 455, 459-460,; Gross v. Friedman, 138 A.D.2d 571, affd73 N.Y.2d 721 People v. Contes, 60 N.Y.2d 620, 621 People v. Conway, 6 N.Y. 3d 869 People v. Boutin, 75 N.Y. 2d 692, 696 People v. Haney, 30 N.Y. 2d 328 People v. Cabrera, 10 N.Y. 3d 370 -iii- Pagers) 3, 10 .4,31 5 8,21 10 13 13 13 14 14 15 15 16 . 17 17 18 18 People v. Montanez, 41 N.Y.2d 53. People v. Green, 56 N.Y.2d 427,432, People v. Stanfield, 36 N.Y.2d 467,473; People v. Kern, 149 A.D.2d 187,209. Perma Research and Development v. Singer Co., 542 F.2d 111 People v. DaGata, 86 N.Y.2d 40, 44-45. United States v. Russo, 480 F.2d at 1241 People v. Copicotto, 50 N.Y.2d 222 People v. Pitts, 93 N.Y.2d 571. Dougherty v. Milliken, 163 N.Y. 527, 533. People v. Wernick, 89 N.Y.2d 111, 115 People v. Ciaccio, 47 N.Y.2d 431,439. People v Santorelli, 95 NY2d 412,422 People v Crandall, 38 A.D.3d 996, 997, Iv denied 9 NY3d 842; People v Oglesby, 12 A.D.3d 857, Iv denied 5 NY3d 792 Brady v Maryland, 373 U.S. 83 People v Baxley, 84 N.Y. 2d 208, 213 People v Bond, 95 N.Y. 2d 840, 843; People v Vilardi, 76 N.Y.2d 67, 77 -iv- 18 19 19 19 27 27,28,33 27 27 27 28 28 30 31 31 31 31 31 31 31 Statute(s) CPL (Criminal Procedure Law) § 240.45 Criminal Procedure Law § 240.75 CPL § 330.30 Vehicle & Traffic Law § 1192.1 Vehicle & Traffic Law § 1192.3 Penal Law § 125.12 Penal Law § 125.13 Penal Law § 125.15(1) CPLR (Civil Practice Law & Rules) § 3101 Sixth Amendment to the U.S. Constitution Constitution Art. 1 § 6 Civil Rights Law § 12. Fourteenth Amendment to the U.S. Constitution PL (Penal Law) § 15.05(4) PL (Penal Law) § 15.05(3) VTL §1192 (1-4) -v- 4,31 6,31 6,32 8,20,21 8,21 8,22 8,22 8 9 12 12,13 12 13 16 18 18 Criminal Procedure Law § 250.10 Criminal Procedure Law § 240.20(1)c -vi- 27 25,28,33 STATEMENT OF FACTS Patrick Asaro, appeals from his conviction following a jury trial arising out of his operation of a motor vehicle involved in an offset head on collision during the early morning hours of November 22,2008. Appellant, 21 years of age, was driving a 4-cylinder 2008 Mitsubishi, carrying 4 passengers which collided with a V-8, 1972 Camaro driven by Brian Stevens. Stevens' was traveling with a front seat passenger and was not wearing a seatbelt. He was pronounced dead at the scene as a result of injuries sustained in the collision. Appellant was interviewed by police at the scene and thereafter transported to Westchester Medical Center where he voluntarily submitted a blood sample to a State Police Officer, approximately two hours after the collision. Testing of the sample produced a 0.0 blood alcohol reading. Other testing at the N.Y. State Police Lab detected an unquantified trace amount of marijuana. The marijuana finding was later controverted by testing conducted at State Police direction by National Medical Service Laboratory which failed to detect the presence of marijuana in the appellant's blood. 1 The autopsy of the decedent conducted by the Orange County Medical Examiner's Office confirmed that he had been significantly impaired by marijuana at the time of the collision. A marijuana pipe with residue was found in his pocket by National Medical Service is a Pennsylvania laboratory operating under contract witb the N.Y. State Police Department. New York State Police. The prosecution offered the testimony of the sole passenger in the Stevens' car, that she had been with Stevens for in excess of 4 hours prior to the collision and had not witnessed him using marijuana or other intoxicants. The New York State Police Accident Reconstruction Unit, led by Trooper Victor Pirtle, processed the scene, collecting physical evidence, photographs and digital surveys although it failed to address a fluid pool, located on the road centerline [R- 1055, line 10-12, AprilS, 2010] 2 or the front license plate from Steven's vehicle which was also photographed on the centerline. [R- 1071 line 13-25, AprilS, 2010] An accident reconstruction report [R-84] was issued by Trooper Victor Pirtle a member of the New York State Police Collision Reconstruction Unit in June, 2009.[R-84] Trooper Pirtle reported that he utilized the "conservation o/linear momentum/ormula" to compute the speeds of the two vehicles involved. He concluded that the appellants vehicle was traveling at 94 miles per hour by assuming the speed of the Steven's vehicle to be 35 miles per hour at the time of impact. [R- 94] 2 National Medical Service is a Pennsylvania laboratory operating under contract with the N.Y. State Police Department. 2 PROCEEDINGS BELOW The matter was presented to the Orange County Grand Jury which returned a 15 count indictment [R-29] on or about August 4,2009, charging appellant with the crimes of manslaughter in the second degree; [PL § 125.15(1)] Count 1, criminally negligent homicide [PL § 125.10] Count 2, Assault in the Second Degree 120.05(4) Counts 3, 4, 5 and 6; Assault in the third degr:ee [PL § 120.00(2)] Counts 7 and 9; Assault in the third degree [PL § 120.00(3) Counts 8 and 10; reckless endangerment in the second degree [PL § 120.20] Counts 11 and 13; Reckless Driving [VTL § 1212] Counts 12 and 14 and Driving While Ability Impaired by Alcohol [VTL § 1192 (1)] Count 15. At arraignment, the People served a Bill of Particulars [R-96,97] in which they set forth that the defendant had acted in a reckless manner by crossing the double yellow line at a high rate of speed while impaired by alcohol. Appellant's omnibus motion [R-48] sought various relief including a Frye hearing (Frye v. United States, 54 App.D.C. 46, 293 F. 1013) based upon the unorthodox use ofthe linear momentum mathematical formula by Trooper Victor Pirtle to reach his determinations of speed reflected in his final report. Appellant sought a Frye hearing as Pirtle reported he had employed "the conservation of linear momentumformula" to compute the speed of both vehicles involved in the 3 collision. It was un-controverted that application ofthe formula requires knowledge of the speed of one of the vehicles involved in the collision. The application was denied by the trial court. The court also denied as premature, the companion request for disclosure of the police expert's mathematical computations of speed employing the formula. [R-24; Decision & Order November 20, 2009 Hon. I.G. Berry ICC] The trial court accepted the People's claim that the mathematical calculation of speed constituted Rosario material (CPL § 240.45) and therefore not subject to disclosure until commencement of the trial. (People v Rosario, 9 N.Y. 2d 286) In light of the rulings the Appellant was precluded from assessing the validity or accuracy ofthe computations made by the People's expert. The People did not disclose that the mathematical computations had been lost and could not be duplicated. On February 4, 2010, shortly before the initial trial date the prosecution served an amended Bill of Particulars [R-143-146] which for the first time asserted Appellant was impaired by the voluntary consumption "of alcohol and/or by voluntary consumption of drugs". This change materially altered the People's theory of the case which had previously relied solely upon impairment by alcohol. Appellant sought dismissal based upon the significant change in the prosecution theory of the case, which was denied. [R- 16; Decision and Order dated March 16, 4 2010 Hon. J.G. Berry JCC]. The Trial upon Counts 1-10 and 13-15 was commenced on March 22,2010 and concluded with a verdict on April 9, 2010. Counts 11 and 12 had been severed and were subsequently dismissed in light of the trial verdict. At trial over objection, expert testimony concerning conclusions of speed of both vehicles at the time of collision was received in evidence. The nature of the expert's computations and the manner oftheir loss was not disclosed until his cross- examination late in the trial. A prompt application to strike Pirtle's testimony was ultimately denied by the Trial Court. After being advised that the Court had elected to deny the request to strike the testimony, appellant submitted a proposed adverse inference charge which had been previously utilized by the Trial Judge in which the lost material was described as "exculpatory". The People objected to the instruction. [R- 1341 line 25 - 1343 line 3, April 7, 2010] The Court acceded to the People's request that "exculpatory" be deleted and instead charged the jury that the missing evidence could be viewed, but not necessarily so, as favorable to the defendant. The New York State Legislature eliminated the per se sanction for discovery violations established by this Court in People v. Ranghelle, 69 N.Y.2d 56, with the adoption CPL §240.75 [L. 2000 c.l § 48 effective February 1,2001]. Since that time the appropriateness of a sanction has been within the sound discretion of the trial courts. The absence of a standardized charge and criteria for the imposition of sanctions for 5 varied degrees of blameworthiness results in disparate treatment. The Criminal Pattern Jury Instructions does not include a model adverse inference charge. Prior to summations, the Appellant moved to reopen proof upon learning of the nature of the "needle stick" testimony offered by the District Attorney in an adjacent courtroom. The People also separately moved to reopen. The Court denied both motions and summations were delivered. The expert testimony offered by the Orange County District Attorney in People v. Gore was later transcribed and included in the Appellant's post-trial motion pursuant to CPL § 330.30. 3 [R-1556- 1828] [expert testimony in Gore; R-1577-1578 and 1824-1827] The jury deliberated for two days before rendering its verdict of guilty on Counts 1,3,4,5,6, 7, 9, 13, 14 and Not Guilty on the 15th Count which charged Driving While Ability Impaired by Alcohol. 4 Appellant promptly moved to have the verdict rejected as repugnant based upon the acquittal on the 15 th Count. Appellant raised a claim of repugnancy based upon the verdict and asked that the jury be retained and directed to deliberate further. [R- 1551 line 12, April 9, 2010]. The application was denied by the Court and the jury was discharged. [R- 1552 line 12 - 1553 line 12, April 9, 2010] 4 Defendant's 330.30 Motion was denied without a hearing. [R-IO Decision and Order June 28, 2010 Counts 2, 10, were not the subject of the verdict lesser included of other counts. 6 Appellant was sentenced on July 30, 2010 to a term of incarceration of3 to 10 years upon his conviction of Reckless Manslaughter and concurrent sentences of3 years determinate time upon his convictions for Assault in the Second Degree. He was also sentenced to lesser concurrent terms upon his conviction for Assault in the third degree and reckless endangerment in the second degree and reckless driving. A timely notice of appeal ofthe conviction was filed and served on or about July 30, 2010. THE APPELLATE DIVISION'S DECISION AND ORDER The Appellate Division Second Department [A-8] found that Appellant had preserved claims regarding the claimed insufficiency of proof of manslaughter, repugnancy of the verdict, the admission of expert testimony in the absence of disclosure of underlying scientific computations of speed and the sufficiency of the "adverse witness charge" (decision at page 2; [A-9]). It also found Appellant had failed to preserve his claims regarding the prosecutor's remarks during opening and summation, which are addressed herein as confirmation of the critical nature of the expert testimony. The Appellate Division impliedly approved of the propriety of the adverse inference charge as a remedy for incomplete disclosure by a police expert. 7 In denying the repugnancy claim, the Appellate Division failed to address the distinction between People v. Schaffer 80 A.D.2d 865 and the instant proceeding. Appellant having been found not guilty of DW AI [VTL § 1192.1] was therefore as a matter of law was "not impaired to any degree" unlike the defendant in Schaffer • who, although acquitted of Driving While Intoxicated [VTL § 1192.3], was convicted of Driving While Ability Impaired by alcohol. [VTL § 1192.1]. The Legislature created a distinct class of vehicular manslaughter [Penal Law §125.12 and §125.13] which includes an element of driver impairment. The indictment in this case did not charge vehicular manslaughter but instead charged manslaughter Penal Law § 125.15(1), the presumably more difficult burden of proof in the vehicular context. The conviction in this case in the absence of a fmding of impairment highlights the likely inability of the jury to discern the mens rea. The legal distinction between criminal negligence and manslaughter must be defined by this Court in light of the absence of guidance for fact finders. The Appellate Division did not reach this issue in reliance upon a mistaken reading of Schaffer. 8 ARGUMENT I, EXPERT TESTIMONY WAS IMPROPERLY ADMITTED The threshold or test for admission of expert opinion in a criminal proceeding in which the accused's liberty is at stake must be at least as stringent as imposed upon litigants in a run of the mill personal injury case. The trial court permitted the People to offer testimony including the ultimate conclusions of speed by their expert, despite the absence of the mathematical computations of the expert. Disclosure of the basis for an expert's opinion must be made prior to admission at trial and the disclosure must be complete and sufficient to permit competent examination of the manner in which the expert reached his or her conclusions. (CPLR § 3101) The Appellate Division approved the sanction imposed by the trial court without addressing the rationale for the resulting disparate disclosure obligations of police experts as compared to other professionals. Over objection, the trial court permitted the People to offer the expert testimony of Trooper Victor Pirtle, an accident reconstructionist trained by the New York State Police. As described above, Trooper Pirtle utilized the "conservation of linear momentum formula" to compute the speeds of appellant's car and the victims vehicle at impact. The use of the formula was questioned in appellants omnibus 9 motion as the mathematical computation required particular information which was not contained in the report. tR-48] The expert testimony admissibility test established in Frye v. United States, 54 AppD.C. 46, 293 F. 1013 (1923), requires that expert testimony be based on a scientific principle or procedure which has been "sufficiently established to have gained general acceptance in the particular field to which it belongs." [ People v. Wesley, 83 N.Y.2d 417, 423, quoting Frye v. United States, supra at 1014] As set forth above, appellant had demanded a Frye hearing raising the issue that the linear momentum formula employed by the People's expert could not be used to solve for two unknown speeds and could only be employed where the speed of at least one of two colliding vehicles traveling in a linear path was known.[R-53,54] The trial court denied the application and held that the mathematical computation was to be disclosed as part of the People's Rosario presumably at the commencement oftria1.5 Appellant renewed his application for disclosure of Trooper Pirtle's computations upon receipt of the Rosario material when the parties appeared for jury selection. In response the prosecution acknowledged an absence of written mathematical calculations but maintaining that all discoverable material had been produced, implying that any computation which was made did not result in a printed Decision and Order of November 20,2009, Hon J. Berry, J.C.C. [R-24] 10 record. The People failed to advise appellant or the Court that the computation had been made on a yellow pad which had been lost. Trooper Pirtle testified on cross-examination that he had prepared written computations of speed, but that the pad containing the computations had been left at his desk at the State Police Barracks in Middletown, New York and had been lost several months prior to trial. [R-1040 line 3 - R-1041 line 16; April 5, 2010] Victor Pirtle further testified that in the absence of his written notes there was no documentation as to how he reached his conclusion of speed. [R-1042 lines 15-18; AprilS, 2010] The defense requested that the testimony of Victor Pirtle be stricken [R-1108 line 6; April 6, 2010]. The application was acknowledged by the trial court [R-1185 line 25] and decision reserved. [R-1185-1186; April 6, 2010] The People's failure to disclose the loss of the mathematical computation prior to' trial consigned the appellant to exhaust resources in a futile attempt to test the validity of the expert's conclusion. The effort was also rendered useless because Pirtle could not ultimately be examined about the computations. The absence of the basis for an expert opinion deprived appellant of his Sixth Amendment right to confront witnesses against him. The failure to disclose also deprived the Appellant of a fair determination of his request for a Frye hearing. In denying the Frye hearing the trial court expressed the erroneous belief that the computations would be 11 produced at the time of trial and would be subject to examination by appellant. Pirtle's extensive direct testimony was received prior to the disclosure that he had prepared written mathematical computations which had been lost. Appellant was deprived of the ability to move in limine to prevent Pirtle's testimony due to the failure of the People to disclose the loss of his written notes. The adverse inference charge given by the trial court was an ambiguous instruction as it permitted the jurors to credit the expert testimony. The charge as given did not meaningfully compensate for the significant harm done to the appellant. The absence ofthe notes which included the expert witness' computation of speed deprived the appellant of an opportunity to meaningfully confront the witness in violation of his 6th Amendment rights and rights accorded pursuant to NYS Constitution Art. 1 § 6 and Civil Rights Law § 12. Pirtle was able to avoid answering a variety of questions concerning the source of his conclusions due to the absence of his notes including the grade of the road. [R-1052 lines 20-25, R-1078 lines 20-23, April 5, 2010] He also confirmed that his mathematical computations had not been subjected to peer review and of necessity were unverifiable. [R- 1042 lines 19-22; April 5, 2010] This Court has held that the confrontation clause's primary concern is with "ensur[ing] the reliability of the evidence against a criminal defendant by subjecting 12 it to rigorous testing in the context of an adversary proceeding before the trier of fact" (citing Maryland v. Craig, 497 U.S. 836 at 845; People v. Wrotten 14 N.Y.3d 33, 39. Appellant's right of due process and fair trial guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, § 6 of the New York State Constitution were violated by receipt of the Pirtle testimony. The right to cross- examination is designed to promote reliability in the truth~finding functions of a criminal trial. In this case, Pirtle reiterated his out of court conclusions in a fashion which precluded any examination of his methodology or test of the accuracy of his computations. In this case, Pirtle's inability to recount the manner in which he reached his conclusions due to the loss of his notes was effectively a non-appearance, which should have resulted in the striking of his opinion testimony. In Melendez-Diaz v. Massachusetts 129 S.Ct. 2527 the United States Supreme Court concluded that permitting a certified laboratory report to be offered into evidence without the necessity of presenting the analyst as a witness offended confrontation rights of an accused. It is submitted that presentation of the expert witness in this case without the ability to testifY regarding his computations is no less offensive. 13 II. A FRYE HEARING WAS REQUIRED Even assuming Pirtle's testimony concerning his computation of speed was properly admitted despite the admitted Rosario violation, the testimony was improper as the methodology was not shown to be generally accepted. While the field of accident reconstruction has been deemed sufficiently reliable to satisfy the Frye test the unorthodox use of the conservation of linear momentum formula mandated that the expert rely upon matters not found in the record of the case. It is well settled that an expert's opinion must be based on facts in the record or personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion (Cassano v. Hagstrom, 5 N.Y.2d 643, 646; Tucker v. Elimelech, 184 A.D.2d 636, 637). In this case the prosecution expert assumed a speed for one vehicle to reach his conclusion as to the speed of the appellant's vehicle. He therefore relied upon matters outside the record and his personal knowledge. The trial court without any inquiry impliedly found that the mathematical computation conformed to generally accepted scientific standards. This exercise in speculation cannot be justified particularly in light of the absence of the actual computations of the expert. The Appellant Division erroneously found that the ability to cross examine upon the conclusions contained in the report were sufficient to satisfy the appellant's 14 due process and confrontation rights as he "was able to cross-examine the expert about his methodology for determining the speed of the vehicles involved including the variable used in the formula he employed". [Decision & Order App. Div., April 3,2012 at page 2; R-9]. The Appellate Division ignored the arguable inaccuracy of the expert's mathematical computations which he could not duplicate. The expert was permitted to parrot key words and provide definitions during his direct testimony, over objections, without the need to connect the testimony to the observations made at the crash site. The People elicited Trooper Pirtle's opinion (over objection) of the speed of the Appellant's vehicle at the point of impact "to a degree of scientific certainty", however, they failed to show in the field of accident reconstruction what the "degree" of scientific certainty is. The expert's opinion taken as a whole did not reflect an acceptable level of certainty and should not have been adniitted. ( Matott v. Ward, 48 N.Y.2d 455, 459-460; Gross v. Friedman, 138 AD.2d 571, affd. 73 N.Y.2d 721). III. THE PROOF WAS INSUFFICIENT The conduct alleged in the prosecution's bill of particulars which formed the basis for proof of the reckless element underlying the manslaughter and assault was; (1) speed, (2) cross-over and (3) impairment by a1coho1.6 [R-97] Appellant was 6 The People's original Bill of Particulars [R-96-97] alleged only alcohol impainnent, was amended days before trial to include "impaired by voluutary consumption of alcohol andlor by the voluntary consumption of drugs" Amended Bill of Particulars [R-145] Later identified as "not limited to marihuana and dextromethorphan" [R-146] 15 found not guilty of driving while ability impaired by alcohol under Count 15 of the indictment. The People offered no testimony pursuant to which the jury could have found the Appellant impaired by marijuana or other substances. The appellant's request for a missing witness charge [R-1310 line 16- 1313 line 22] regarding the absence oftestimony of Dr. Barbieri and Dr. Blum and to strike Pirtle's testimony was denied by the Court [R- 1317 line 22] despite the People having turned over 800 pages of Rosario material and statement on the record, on Monday, April 5, 2010, that they would each testify on Wednesday, April 7, 2010 [R-945 lines 4-7; April 5, 2010] The jury was not presented with any evidence that the trace quantity of dextromethorphan found was sufficient to result in impairment. Where, as in this case, there were no eyewitnesses concerning speed at the time of the collision, the flawed or junk science testimony, coupled with the absence of toxicological testimony, was insufficient to demonstrate beyond a reasonable doubt that Appellant had traveled at a significantly excessive speed, crossed over and was impaired. A. The People Failed to Prove the Elements of Reckless Manslaughter Viewing the proof at trial in the light most favorable to the People, the evidence was insufficient to support the conviction for manslaughter or reckless assault. People v. Contes, 60 N.Y.2d 620, 621 [Counts 1,3,4, 5 and 6] Penal Law § 16 15.05(4). This Court has examined the definition of criminal negligence in varying contexts. In People v. Conway, 6 N.Y. 3d 869, this Court held; "the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community's general sense of right and wrong. Criminal negligence requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; non-perception of a risk, even if [the proscribed result occurs], is not enough." Conway, supra, at 872. In the context of automobile accidents, criminal negligence requires some risk creation, 'rather than the non-perception of risk.' In this case, when viewed in the light most favorable to the People, the appellant's "risk creation" is founded upon a 21 year old, speeding on an arguably familiar road while his passengers consumed alcohol and marijuana, and failing to keep right. This Court has defined the burden of proof as follows; "[I]n short, it takes some additional affirmative act by the defendant to transform "speeding" into "dangerous speeding"; conduct by which the defendant exhibits the kind of "serious[ly] blameworth[y]" carelessness whose "seriousness would be apparent to anyone who shares the community's general sense of right and wrong" People v. Boutin, 75 N.Y. 2d 692, 696. Evidence found sufficient to establish criminally 17 negligent homicide, includes proof that the defendant has engaged in some other "risk-creating" behavior in addition to driving faster than the posted speed limit. People v. Haney, 30 N.Y. 2d 328 [1972], People v. Cabrera, 10 N.Y. 3d 370 [2008]. The Legislature created a special class of crime which elevated criminal negligence in automobile cases to manslaughter where the additional element of impairment by alcohol or drugs could be shown. This crime was not included in the indictment in this case. The proof ofthis crime was again modified by the Legislature in 2005 to lessen the burden of proof in cases where impairment [VTL § 1192 (1-4)] could be shown. The indictment in this case charged manslaughter in the second degree; [PL § 125.15(1)] Count 1, an element of which is defined as "recklessly caus[ing] the death of another person" without particular reference to a vehicle or impairment. "[A] person acts recklessly with respect to a result ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes "a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05[3]). A defendant's awareness of the risk created by his conduct dictates the degree of his criminal liability. People v. Montanez, 41 N.Y.2d 53. If a defendant fails to perceive a substantial and unjustifiable risk created by his actions, 18 he may be found to be guilty of criminally negligent homicide, but not of reckless homicide (Penal Law § 125.10), [Count 2 in the indictment in this case]. The distinction between the conduct supportive of recklessness as opposed to criminal negligence is not susceptible to direct proof. Such charges involve "'fine gradations along but a single spectrum of culpability.'" People v. Green, 56 N.Y.2d 427,432, quoting People v. Stanfield, 36 N.Y.2d 467, 473; People v. Kern, 149 A.D.2d 187,209. The proof of excessive speed at the trial below relied upon a flawed accident reconstruction analysis and a concededly unreliable piece of physical evidence (speedometer). It is submitted that the credible evidence did not demonstrate an awareness and conscious disregard of a substantial and unjustifiable risk necessary to sustain the first or second counts in the indictment. Even assuming the jury concluded speeding and cross-over from the physical evidence at the scene, they could not have quantified the speed to the degree of blameworthiness necessary to sustain the manslaughter charge, particularly, in light of the not guilty verdict with respect to the 15th Count. The People were required to prove that the appellant was aware of the risk of death and consciously disregarded it, and that the risk was of such a nature that disregard thereof is a gross deviation of the standard of conduct that a reasonable person would have observed under those circumstances. In the absence of a showing of impairment, the proof at trial was at 19 best, sufficient to support the lesser charge of Criminally Negligent Homicide as charged in Count 2 ofthe indictment. IV. THE VERDICT WAS REPUGNANT The Appellate Division correctly held that the appellant's claim of repugnancy was preserved. (Decision and Order April 3, 2012 at page 2; [A-9]) As appellant was found not guilty of the 15th Count charging driving while ability impaired by alcohol. The People failed to offer proof of impairment by drugs. The original bill of particulars cited (1) speed (2) cross-over and (3) impairment by alcohol. The amended bill of particulars expanded the third item to include drugs. However, no testimony was offered to quantify the amount of any drug in Appellant's system was sufficient to cause impairment. The people did not call a toxicologist to offer any opinion regarding impairment by drugs and the evidence showed a complete absence of alcohol in the appellants system. As a result, appellant was found not guilty of Driving While Ability Impaired by Alcohol. VTL § 1192.1. No testimony was offered which could have permitted the jury to conclude impairment by either marijuana or methorphan. While the New York State Police Laboratory detected the presence of marijuana and methorphan it did not quantify the amount present sufficient for a witness to testify 20 that the compounds impaired the appellant. Nor was any analysis presented to the jury beyond the comments of the prosecutor in his opening and summation. The proof at trial further undermined any claim of impairment as the testing conducted at National Medical Labs did not detect marijuana. Additionally, there was no testimony upon which the jury could find that the quantity of dextromethorphan 7 found in appellant's blood would result in impairment. The failure of the People to prove each of the elements set forth in their bill of particulars and amended bill of particulars rendered the proof of recklessness insufficient to sustain the charges of manslaughter and reckless assault counts. The verdict was also rendered repugnant as the defendant was found not guilty of the charge of driving while impaired and the "impairment" was one of three indicia of recklessness set forth in the bill of particulars and amended bill of particulars, each of which identified impairment as an element to be proven to sustain the Manslaughter and reckless assault charges upon which the defendant was found guilty by the jury. The Appellate Division relied upon the holding in People v. Schaffer, 80 A.D.2d 865 in support ofthe validity of the verdict. It is submitted that this Court's decision in Schaffer is inapplicable as the jury acquitted on a charge of driving while Dextromethorphan is a component of numerous over the counter cold remedies such as DayQuil. 21 i'" intoxicated, [VTL§ 1192.3], it convicted on the lesser included charge of driving while ability impaired [VTL § 1192.1]. The guilty verdict on the impaired charge was supportive of the People's theory that the defendant had failed to recognize the risk due to the impairment. The absence of a jury finding of impairment distinguishes the instant case in a critical fashion. The Peoples' theory in this case, as set forth in the bill of particulars, was that Appellant was speeding and crossed over while impaired. The People were bound by their bills of particulars. Impairment was always the means by which the People claimed the failure to perceive the risk would be shown. The Vehicular Manslaughter statutes (PL § 125.12, § 125.13) assume recklessness arising out of impairment coupled with other indicia of negligence. The Legislature intended to elevate criminal negligence to manslaughter by viewing impairment as an alternative for recklessness. There was no testimony at trial that would have permitted the jury to find impairment by any substance. The conflicting lab reports regarding marijuana presence were never the subject of quantification testimony or testimony concerning whether impairment was even possible at the levels found. Although a metabolite of cough medicine was found in the Appellant's blood, there was no testimony at trial 22 that would have permitted the jury to conclude that the defendant was impaired by cough medicine or had consumed an excessive amount. The People offered no proof pursuant to which the National Medical Lab test could have been discredited by the jury. Although 800 pages of Rosario material were supplied to the defense relating to this testing on Monday April 5th, [A-945 lines 4-7] the People rested without calling a witness to testify about the results. An application by Appellant for a missing witness charge upon the People's failure to call the National Medical Lab toxicologists was denied. Viewing the evidence in a light most favorable to the People the cumulative evidence did not support the verdict. A cross-over even proximate to the fog-line at a high rate of speed is submitted as supportive of, at most, criminal negligence, not the recklessness necessary to sustain the verdict returned in this case. The prosecution misled the jury by eliciting testimony from State Toxicologist Gillies regarding the definition of terms relevant to impairment without connection ofthose terms to the defendant. General questions regarding central nervous system suppression can not substitute for the quantification necessary to prove impairment. The mere presence of an over the counter medication in a person's system does not prove beyond a reasonable doubt impairment by that drug. In her testimony, Ms. Gillies was carefully asked to opine on the fact that methorphan was a central 23 nervous system suppressant but never whether the level found was sufficient to result in impairment. The State Police lab does not quantify drug levels [R-1233 line 1-3] The same careful testimony was elicited concerning marijuana that was not quantified in the State Police testing [R-1249 lines 21-25] and was not detected in the NMS testing. Therefore, any conclusion of impairment by either substance required speculation on the part ofthe jury. V. THE EXPERT'S TESTIMONY SHOULD HAVE BEEN STRICKEN Appellant repeatedly sought disclosure of the calculation of speed prepared in connection with the Accident Reconstruction Report of Trooper Victor Pirtle. The People argued that the computation, although central to the report, was Rosario material and therefore not subject to disclosure until the trial commenced. At no time did the People inform either this Court or the Appellant that the calculation had been lost and could not be recreated. The absence of a candid declaration by the People concerning the loss of the critical computation of Trooper Pirtle deprived the Court ofthe opportunity to make an informed decision on the actual circumstances relating to the expert opinion to be offered. It is inconceivable that the Trial Court would have permitted the issue to go unaddressed had the People informed that the calculations did not exist. 24 As a result, Victor Pirtle was improperly permitted to testify to his opinion concerning the speed ofthe vehicles and other matters despite the mysterious destruction and/or loss of his computation(s) which the People failed to disclose until after his direct testimony at trial. The People are charged with a duty to assemble Rosario material and to preserve it. In this case, the People's charade concerning the existence of a calculation denied Appellant of a reasoned determination by the Trial Court of his pre-trial request for a Frye hearing on the methodology employed by Trooper Pirtle in computing the speed ofthe vehicles involved in the collision. The People's response to Appellant's motion misled the Court and Appellant to believe that a calculation which could be tested on cross examination existed and would be produced at the time of trial. The prosecution failed to satisfy their disclosure obligations pursuant to CPL § 240.20. The People persuasively argued that "The formula (conservation oflinear momentum) itself, the application ofthe formula by Trooper Pirtle, along with his qualifications and training, are all issues of fact for trial, where Trooper Pirtle can be cross examined." (affirmation of ADA Ferrara, dated October 29,2009 @ 'If 7 [R-123]) In failing to inform that trial court and appellant that the notes evidencing the "application of the formula" had been lost was inexcusable given the specific demand for production. The People's claim in opposition to the requested 25 Frye hearing that there would be fair opportunity to view the requested evidence at the time of trial was at best disingenuous in light of knowledge that the computation had been lost and could not be duplicated. The Trial Court's erroneous treatment of the expert's notes and computations as Rosario material coupled with the prosecutions misrepresentations deprived appellant of his ability to confront the expert. The Trial Court was admittedly unaware of the loss of Pirtle's computation when it denied appellant's objection to Pirtle's testimony [R-955 lines 4-7; April 5, 2010] and when it permitted Pirtle to testify as to his computation of speed. [R-1016 lines 5-19; April 5, 2010] The direct testimony of Trooper Pirtle recited numerous factors considered in determining the speed, although none was quantified. It was not until his cross-examination that the loss of his computations and the ingredients in his computation were disclosed. Appellant objected to the admission of the expert's conclusion concerning the speed of the vehicles. [R-1016lines 5-19; April 5,2010] The direct testimony elicited by the People gave the impression that a computation had been made upon which the witness could be cross-examined. At no point did the People offer testimony that the computations and equation had been lost. The opinion was a central element of the People's case. Without the mathematical computation, the appellant was unable to confront the witness about the soundness of his opinion and computations. The expert conceded he approximated a speed for one vehicle to compute a speed for the appellant's vehicle. 26 [R-I017 lines 1-3 & lines 6-20; AprilS, 2010] The opinion of an expert requires disclosure of the calculations supportive ofthe opinion. Perma Research and Development v. Singer Co., 542 F.2d 111, 126, People v. DaGata, 86 N.Y.2d 40. Computations should be made known sufficiently in advance of trial so that the adverse party will have an opportunity to examine and test the inputs, program and outputs prior to trial. United States v. Russo, 480 F.2d at 1241. The exercise of the People's duty under Rosario and Article 240 of the Criminal Procedure Law should not be a sporting event where the opponent only discovers facts in the hands of the adversary at trial. People v. Copicotto, 50 N.Y.2d 222,226. The disclosure of the materials which were involved in the preparation of the expert's report advances fairness and a productive environment in which psychiatric evidence can be introduced. This is the goal of the legislative intent as articulated in the statute. (CPL § 250.10) People v. Pitts, 93 N.Y.2d 571. The People's opposition to Appellant's omnibus motion included the following averments; 18b. "Second, the defendant is asking for the calculations and computations created by Trooper Vic Pirtle during his reconstruction investigation." The People refuse to tum over the calculations to the extent that the reconstruction report has previously been provided by the People pursuant to CPL 240.20. 18e. "Finally, the defendant is asking for disclosure of Trooper Pirtle's computation under the guise that it constitutes Brady material. The People are aware of their obligation to provide the defendant with any 27 and all information that tends to exculpate the defendant. The People submit at this time they are not in possession of any Brady material" [Affirmation of A.D.A.Ferrara October 29,2009 at ~ 18 b & e; R-127, 128] Based, in part upon the foregoing, the Trial Court denied the requested computations as premature. This Court has held that CPL§ 240.20(1)(c) requires the prosecution to disclose any notes or documents used in the preparation of reports or related to the specific tests of items in a defendant's case. People v. DaGata, 86 N.Y.2d 40,44-45. The trial court's determination that the calculations of the expert were Rosario material rather than material discoverable material severely prejudiced appellant by depriving him of statutorily mandated discovery. VI. THE EXPERT TESTIMONY WAS IMPROPERLY BOLSTERED. Reference to the position of the speedometer/tachometer needle was improper given the People's knowledge that it was not reliable as an indicia of the speed at impact. New York has adopted a two-fold test for the admission of scientific expert testimony. Initially a showing must be made that the opinion testimony "depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence" Dougherty v. Milliken, 163 N.Y. 527, 533. The second is that such "expert testimony be based on a scientific principle or procedure which has been "sufficiently established to have gained general acceptance in the particular field in which it belongs" People v. Wernick, 89 N.Y.2d 111, 115. The use of the 28 speedometer and tachometer to corroborate Victor Pirtle's conclusions further violated the Appellant's right to a fair trial. Despite knowledge that the "needle slap" was unreliable, the prosecution utilized the physical evidence to corroborate the testimony of their expert. The People improperly bolstered the ultimate conclusions of their expert by pointing to the position of the speedometer needle. No objection was taken to the opening during which the Assistant District Attorney stated "But quite possibly the best piece of evidence that Investigator Hammer will show you is the speedometer was stuck at a speed limit, ladies and gentlemen, it was stuck at 109 miles an hour, and approximately 5,000 RPMs of the engine, the speed the engine was turning." [R-182 line 22 - R-183 line 1; March 24,2010] because the prosecution did not disclose the contradictory evidence in its' possession. In characterizing the speedometer as ''possibly the best piece of evidence" [R- 182 line 22], the People took improper liberty with facts known to them. Testimony by a prosecution witness, Trooper Eric Haydt in People v. Gore, Orange County Indictment 609/09, was contrary to the arguments made in this case. 8 Trooper Haydt testified as a member of the same accident reconstruction team as Trooper Pirtle and was listed on the People's witness list at the trial of this matter. His testimony in the Gore case [R-1824-1827] & [R-1577-1578] made clear that the needle position, described as "needle slap" which had been elevated to high A transcript ofHaydt's testimony was not available until after the close of proof in this case but was presented to the trial court in support ofthe post verdict motion; [A-1824-1827]. 29 importance in this case was nothing more than a convenient curiosity. Appellant sought to re-open proof to call Trooper Haydt, which was denied by the Trial Court. [R-1465 lines 14 -R- 1469 line 13; April 8, 2010]. The People relied upon evidence in People v. Gore which rejected "needle slap" as a reliable indicia of speed. The vehicles in both cases were late model front wheel drive sedans of Japanese manufacture. The Trial Court incorrectly focused on whether the trial assistant knew ofthe Gore testimony rather than the awareness on the part of the District Attorney's Office. [R-1465 -1469] The speedometer was a critical piece of evidence in the jury's eyes as it was the first item requested during deliberations and was supplied to the jury prior to their first note. [R-1529 line 17-18; April 8, 2010) The emphasis placed on the fixed position of the speedometer and tachometer was misleading to the jury as the prosecution knew that "needle slap" was unreliable as an indicia of speed. The Orange County District Attorney obtained a conviction in People v. Gore in part by discrediting "needle slap" through testimony of a member of Trooper Pirtle's Accident Reconstruction Unit. The People cannot assert the needle slap is critical in one case and irrelevant in another. Particularly, where the computations of the expert witness are not produced. Expert testimony cannot be used "to bolster the testimony of another witness." People v. Ciaccio, 47 N.Y.2d 431,439. In this case the holes in the expert testimony were bolstered by evidence and argument that the People knew was unreliable and improper. 30 VII. THE FAILURE TO DISCLOSE THE UNRELIABILITY OF THE NEEDLE SLAP EVIDENCE CONSTITUTED A BRADY VIOLATION The Rosario rule, codified in CPL§ 240.45, further "obligates the prosecution to disclose any recorded statement in its possession or control made by a person the prosecutor intends to call to the stand, which relates to the subject matter of the witness' testimony" (People v Santorelli, 95 N.Y. 2d 412, 422; People v Rosario, 9 N.Y. 2d 286, 289). A failure to timely disclose such statements, however, is grounds for reversal where as in this case "there is a reasonable possibility that the non-disclosure materially contributed to the result ofthe trial" (CPL 240.75; People v Crandall, 38 A.D. 3d 996, 997, Iv denied 9 N.Y. 3d 842; People v Oglesby, 12 A.D. 3d 857, Iv denied 5 NY3d 792). A Brady violation occurs when the prosecution fails to timely disclose all exculpatory and material evidence (Brady v Maryland, 373 U.S. 83), including evidence that could be used to challenge the credibility of a crucial prosecution witness (People v Baxley, 84 N.Y.2d 208,213) Where the People fail to disclose such evidence and where, as here, the defendant has made a specific request for such materials, reversal is required "if there is a 'reasonable possibility' that, had that material been disclosed, the result would have been different" (People v Bond, 95 N.Y. 2d 840, 843; People v Vilardi, 76 N.Y. 2d 67, 77); There can be little doubt 31 that in the needle slap evidence was utilized to bolster the expert's testimony which was of critical importance to the prosecution's case. The record in this case shows that the People failed to discharge their Rosario and Brady obligations. The accidental discovery of the Brady material undermining the "needle slap" evidence did not occur until after the last witness testified. A summary of the testimony offered by the Orange County District Attorney in People v. Gore on March 23, 2010, was described to the trial court in support of the application to reopen proof and later in support of the CPL § 330.30 motion. It confirmed the prosecution's knowledge that "needle slap" in front wheel drive cars sustaining heavy front end damage should not be relied upon. The People's failure to disclose information regarding the unreliability of "needle slap" also constituted a Brady violation. The failure of the prosecution to disclose the inherent unreliability of the speedometer needle location deprived appellant of his ability to confront the witnesses against him and resulted in the admission of irrelevant evidence. 32 CONCLUSION An expert witness' status as a police officer should not warrant the substitution of a Rosario sanction in lieu of compliance with the disclosure obligations mandated by CPL §240.20 and People v. DaGata, supra. Admission of the conclusory testimony ofthe People's expert in spite ofthe admitted loss of his work papers deprived Appellant of the ability to meaningfully confront a critical witness against him. The jury verdict was repugnant and based upon insufficient evidence. For the forgoing reasons the judgment and sentence should be vacated and reversed and a new trial ordered. Dated: Chester, New York December 12,2012 Respectfully submitted, ,~~ Benjamin Ostrer Ostrer & Hoov1er, P.C. Attorneys for Appellant, Patrick Asaro 111 Main Street Chester, New York 10918 (845) 469-7577 33