The People, Respondent,v.Twanek Cummings, Appellant.

Brief

N.Y.May 24, 2017

To be argued by SUSAN H. SALOMON (15 minutes requested) APL-2017-00063 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TWANEK CUMMINGS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 Phone: (212) 577-2523, Ext. 518 Fax: (212) 577-2535 ssalomon@cfal.org SUSAN H. SALOMON Of Counsel May 19, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Prosecution’s case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Defense case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Appellate Division decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARGUMENT THE SUBSTITUTED TRIAL JUDGE NOT ONLY LACKED THE POWER TO OVERRULE HIS PREDECESSOR IN ADMITTING A HEARSAY ACCUSATION AGAINST APPELLANT, BUT THE SUBSTITUTED JUDGE’S RULING THAT THE HEARSAY QUALIFIED AS AN EXCITED UTTERANCE CONSTITUTED ERROR - WHICH, IN THE CONTEXT OF THIS CIRCUMSTANTIAL CASE ON THE PERPETRATOR’S IDENTITY, WARRANTS REVERSAL OF THE JUDGMENT.. . . . . . . . . . . . . . . 20 A. On its third attempt, before the third judge to hear appellant’s case, the prosecution secured admission of the unidentified bystander’s statement, “it was Twanek, man,” as an excited utterance, which the prosecutor went on to feature extensively in summation.. . . 20 i B. The substitute judge’s overruling of his colleague in the retrial - a single litigation - violated law-of-the-case.. . . . . . . . . . . . . . 23 C. The lower courts’ excited-utterance determinations lacked record support. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 D. The wrongful admission of the conclusory hearsay accusation cannot be deemed harmless under any standard.. . . . . . . . . . . . . 36 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 WORD-COUNT CERTIFICATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A ii TABLE OF AUTHORITIES Federal Cases Brown v. Keane, 355 F.3d 82 (2d Cir. 2004).................................................... 36 Crawford v. Washington, 541 U.S. 36 (2004). ................................................. 37 Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982). ................................. 36 United States v. Graves, 613 Fed. Appx. 157 (3d Cir. 2015). .......................... 42 United States v. Sisk, 629 F.2d 1174 (6th Cir. 1980). ...................................... 27 Zappulla v. New York, 391 F.3d 462 (2d Cir. 2004)........................................ 41 State Cases Aridas v. Caserta, 41 N.Y.2d 1059 (1977)........................................................ 26 Dondi v. Jones, 40 N.Y.2d 8 (1976).................................................................. 24 Martin v. City of Cohoes, 37 N.Y.2d 162 (1975). ............................................ 24 People v Johnson, 301 AD2d 462 [1st Dept 2003]..................................... 23, 27 People v McLeod, 279 AD2d 372 [1st Dept 2001]. ................................... 23, 27 People v. Baker, 26 N.Y.2d 169 (1970). ........................................................... 41 People v. Beauchamp, 84 A.D.3d 507 (1st Dept. 2011). .................................. 26 People v. Bilsky, 95 N.Y.2d 172 (2000). .................................................... 25, 26 People v. Brooks, 71 N.Y.2d 877 (1988).......................................................... 33 People v. Broome, 151 A.D.2d 995 (4th Dept. 1989)....................................... 27 People v. Brown, 72 A.D.3d 445 (1st Dept. 2010). .......................................... 30 People v. Cantave, 21 N.Y.3d 374 (2013). ....................................................... 30 People v. Carmichael, 73 A.D.3d 622 (1st Dept. 2010). .................................. 26 People v. Carmona, 82 N.Y.2d 603 (1993)....................................................... 33 People v. Coleman, 16 A.D.3d 254 (1st Dept. 2005). ...................................... 31 People v. Crimmins, 36 N.Y.2d 230 (1975).................................... 20, 37, 40, 42 People v. Cummings, 145 A.D.3d 490 (1st Dept. 2016). ................................... 1 iii People v. Dorm, 12 N.Y.3d 16 (2009). ............................................................. 28 People v. Evans, 94 N.Y.2d 499 (2000).................................................... Passim People v. Fratello, 92 N.Y.2d 565 (1998). ........................................ 3, 29, 30, 36 People v. Garcia, 25 N.Y.3d 77 (2015)............................................................. 37 People v. Goldstein, 6 N.Y.3d 119 (2005)........................................................ 41 People v. Gomez, 67 A.D.3d 927 (2d Dept. 2009). .......................................... 27 People v. Gonzalez, 55 N.Y.2d 720 (1981). ..................................................... 33 People v. Hampton, 21 N.Y.3d 277 (2013)................................................. 26, 28 People v. Hardy, 4 N.Y.3d 192 (2005).............................................................. 40 People v. Harris, 93 A.D.3d 58 (2d Dept. 2012)............................................... 41 People v. Johnson, 1 N.Y.3d 302 (2003). ................................................... 29, 36 People v. Kello, 96 N.Y.2d 740 (2001)............................................................. 39 People v. LaFontaine, 92 N.Y.2d 470 (1998). .................................................. 36 People v. Linares, 2 N.Y.3d 507 (2004). .......................................................... 26 People v. Medina, 44 N.Y.2d 199 (1978). ........................................................ 26 People v. Nieves, 67 N.Y.2d 125 (1986). ......................................................... 26 People v. Romero, 91 N.Y.2d 750 (1998)......................................................... 36 People v. Sanders, 26 N.Y.3d 773 (2016)......................................................... 29 People v. Thompson, 90 N.Y.2d 615 (1997). ................................................... 25 People v. Ugweches, 116 A.D.3d 440 (1st Dept. 2014). .................................. 42 People v. Vasquez, 214 A.D.2d 93 (1st Dept. 1995). ................................. 31, 32 People v. Whitlock, 95 A.D.3d 909 (2d Dept. 2012)........................................ 30 People v. Young, 308 A.D.2d 555 (2d Dept. 2003).......................................... 31 State v. Floyd Y., 22 N.Y.3d 95 (2013). ........................................................... 37 iv State Statutes C.P.L. § 450.90(1). .............................................................................................. 2 C.P.L. § 470.05(2). ........................................................................................ 3, 28 v COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : TWANEK CUMMINGS, : Defendant-Appellant. : ----------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of Hon. Eugene M. Fahey, Associate Judge of the Court of Appeals, entered March 31, 2017 (A1), appellant appeals from a December1 8, 2016, order of the Appellate Division, First Department (A2-4), People v. Cummings, 145 A.D.3d 490 (1st Dept. 2016), which affirmed a judgment of the Supreme Court, New York County, rendered January 16, 2014, convicting appellant, after a jury trial, of first-degree assault, P.L. § 120.10(1); attempted first-degree assault (two counts), §§ 110.00/120.10(1); second-degree assault (two counts), § 120.05(2); and second-degree criminal possession of a weapon (two counts), §§ 265.03(1)(a), 265.03(3); and sentencing him to an aggregate Numbers preceded by “A” refer to pages in appellant’s Appendix. 1 1 18-year prison term, to be followed by five years’ post-release supervision (Allen, J., at trial and sentencing). On May 4, 2017, this Court granted appellant’s motion to assign Robert S. Dean, Center for Appellate Litigation, as counsel on this appeal. Appellant had no co-defendants, and no stay has been sought. JURISDICTIONAL STATEMENT This Court has jurisdiction to entertain this appeal and to review the questions involved. See C.P.L. § 450.90(1). The appeal focuses on the admissibility, on the People’s case, of an unidentified declarant’s accusatory statement - “it was Twanek, man” - uttered at the scene of and in the wake of the shooting for which appellant stood trial. The initial judge at appellant’s trial barred its introduction, finding that it did not establish that the declarant had observed the shooting and therefore did not qualify as an excited utterance. But the substitute judge, who took over the case when the former judge took ill during jury selection, overruled his colleague. The Appellate Division affirmed the substitute judge’s actions in all respects. With Part A of the Argument setting out the relevant facts, Part B addresses the substitute judge’s authority to revisit the evidentiary ruling, 2 contending that the judge lacked it under this Court’s law-of-the-case jurisprudence. Claims concerning application of this doctrine fall within the Court’s jurisdictional purview. See, e.g., People v. Evans, 94 N.Y.2d 499 (2000). Regarding preservation, the substitute judge himself satisfied it: Following extensive discussion, he declared his power to disregard “any ruling made by any other judge at anytime” (A269), thus “expressly decid[ing] the question raised on appeal.” C.P.L. § 470.05(2). Part C of the Argument addresses the merits of the substitute judge’s evidentiary ruling. Ordinarily, “undisturbed findings by the courts below” that a declarant’s statement constituted an excited utterance renders such a finding beyond this Court’s review - provided that the findings possess record support. People v. Fratello, 92 N.Y.2d 565, 571 (1998). Here, the Argument contends, the record reflected that the unidentified bystander uttered his statement - “it was Twanek, man” - excitedly. But it did not support the lower courts’ conclusion that he had witnessed the shooting. Counsel duly protested the statement’s admission on the personal-observation issue, asserting that its unreliability would violate appellant’s right to a fair trial (A331-33). 3 QUESTION PRESENTED Whether the substituted trial judge not only lacked the power to overrule his predecessor in admitting a hearsay accusation against appellant, but whether the substituted judge’s ruling that the hearsay qualified as an excited utterance constituted error - which, in the context of this circumstantial case on the perpetrator’s identity, warrants reversal of the judgment. INTRODUCTION AND SUMMARY OF ARGUMENT On the afternoon of March 19, 2012, in Upper Manhattan, a man wearing a hoody and jeans, and with his face obscured, got out of a minivan and shot three men who were talking together on a street corner. The shooter then got back in the vehicle, which sped away. The three victims - none of whom knew or could identify their assailant - were wounded. One called 911 for help. In the background of the call, an unidentified male voice was heard to say, “it was Twanek, man.” A female bystander provided police with a partial license-plate identification, resulting in the minivan’s stop, minutes after the crime. Police arrested the driver, Gregory Hamilton. But the lone passenger slipped away. The passenger, law enforcement determined, was the shooter. Video surveillance from the area of the shooting prompted the police to examine the minivan for fingerprints, which turned up appellant’s. The investigation, which also relied on Hamilton’s phone records, ultimately led to appellant’s arrest. 4 With the top counts against him attempted-murder, appellant initially was tried before Hon. Juan Merchan and a jury. At this trial, Justice Merchan precluded introduction of the unidentified person’s claim on the 911 call. Following the People’s submission of a 14-page memorandum, an additional email submission, and extensive oral argument, the court declined to find the hearsay reliable, as either an excited utterance or present-sense impression, because it lacked a reasonable basis from which to infer that the declarant had personally observed the shooting. The trial ended in a hung jury. The subsequent trial was initially presided over by Justice Ruth Pickholz, who, after reviewing the prosecution’s fresh, 31-page, memorandum that took issue with Justice Merchan’s analysis, nonetheless concurred in her predecessor’s evidentiary ruling about the 911 call. But when she took ill during jury selection, the prosecution resubmitted the 31-page application to Hon. Bruce Allen, the substitute judge, who completed the trial. As described in more detail in the Argument, Justice Allen’s determination that he could revisit the ruling and his ruling itself, which reversed Justice Pickholz’s, constitutes the basis of this appeal. Appellant contends that both Justice Allen’s threshold determination - of his power to rule - and the substantive ruling constituted error. So did the Appellate Division’s endorsement of these 5 rulings. Also unfounded was the Appellate Division’s summary pronouncement that any error in admitting the statement was harmless. At this trial - which resulted in appellant’s convictions for assault and weapon possession, albeit not for attempted murder - the People endeavored to weave a web of circumstantial evidence pointing to his identity as the shooter. In that vein, besides the fingerprint evidence, they primarily presented phone-records and cell-site evidence that sought to place him with Hamilton at, and shortly after, the time of the shooting. But, as discussed in Part D of the Argument, this evidence was hardly conclusive. In addition, the description of the shooter’s height, offered by one of the victims and recorded by the police, was off by as much as half a foot from appellant’s height. A lack of evidence plagued the People’s case as well, namely the absence of appellant’s DNA on the shooter’s apparent clothing, found in the minivan. That the prosecution placed great store in the 911 accusation thus did not surprise. As detailed in the Argument, its heavy reliance on this improper evidence - which book-ended its summation - together with the far-from-overwhelming properly admitted proof, precludes a finding of harmless error. 6 STATEMENT OF FACTS Prosecution’s case At around 2:30 p.m. on March 19, 2012, Rodney Phillips, his cousin Demetrius Relaford, and their friend Rundell Allen were standing on the corner of 128th St. and St. Nicholas Terrace. The three - with Phillips and Allen wearing hoodies on the sunny and relatively warm day - were joking around when Phillips remarked a passing car, with tinted windows, and its lone passenger, who had a “little beard” and wore a hoody, moving around in it. A short time later, Phillips commented that the passenger had gotten out of the car and was now walking towards them, looking “mad.” The “guy” - with a gun “already out” - passed them. Then, after turning and asking Relaford “a question,” which Relaford ignored, the “guy” pointed the gun at Relaford’s head. Though Relaford smacked it, he still got shot, in his hand and leg. The “guy” shot Phillips (in the leg) and Allen (in the buttocks), too, before running away (A476-84, 489, 495, 501-02, 656-57). 2 Relaford, who had a prior conviction for selling crack and had been shot before, could not identify his new assailant - not at the time of the incident, not at a lineup a few months later, and not in court. (See also Detective Brian Unless otherwise indicated, the Appendix cites to the minutes of trial are to the2 trial resulting in a verdict. 7 Schumacher, at A521-25 - testifying that, at a lineup conducted on June 2, 2012, containing appellant, Relaford made no identification.) Himself 6'3" and 290 lbs., Relaford described the shooter only as a “lot shorter,” “maybe” coming up to Relaford’s chin, a “lot smaller,” younger than Relaford’s own 31 years, and wearing a baseball cap, pulled down low (A652, 667-72). Phillips, who had one drug-sale conviction on his record but other sales in his past for which he escaped arrest, also made no identification of the shooter - including at a lineup he attended on June 1, 2012 (A496, 505). Still, he offered a description - a light-skinned and freckled black man, with a “big” red beard, around Phillips’s age - 26 - but “short,” unlike Phillips’s own 6' (A477, 486-87, 491, 502). Moments after the shooting, Phillips called 911 (A482). According to Latasha Ortiz, records custodian with the NYPD, the call, originating from 129th St. and St. Nicholas Terrace, came in at “about 2:30 or 2:29 p.m.” (A321, 326). In the call, played for the jury at the conclusion of Ortiz’s testimony (People’s exhibit 47A), Phillips asks the operator to summon help, giving the address. In the background, an unidentified voice is also heard, twice saying, “it was Twanek, man.” Responding to a radio run at 2:30 about the shooting,3 Part A of the Argument sets out the circumstances surrounding the statement’s3 (continued...) 8 Detective John Borst was the first police officer on the scene. A “large crowd” had gathered in the street, at 129th and St. Nicholas Terrace. Some people “were screaming and yelling” (A344-45, 354-55). Borst saw Relaford, whom he recognized from a prior drug-sale arrest, slumped against a fence. Knowing also that Relaford had been shot before, Borst asked him for a description of this perpetrator. Though Relaford mustered only “male black, short,” Borst noted 5'3" on his UF61 report (A347, 352-54). That specific height, Borst surmised, must have come from someone in the crowd; “[s]omebody must have pointed out a height or something or weight” (A357). Police Officer Harold Nunez arrived on the scene while Borst was attending to Relaford. The crowd was “growing by the second.” Nunez “guess[ed]” that some were “passerby’s” [sic] and others “could have just been there before the shooting.” He “wasn’t quite sure.” In any case, an unidentified woman from the crowd approached him and whispered a partial license-plate identification, which he broadcast over the radio. She did not offer a description of the shooter (A225-27, 231). Nor did Rundell Allen, who Detective Patrick Purcell sought to (...continued)3 admission, the prosecutor’s use of it in summation, and the court’s jury-charge addressing it. 9 interview at Harlem Hospital, where Allen had been taken after the shooting. Though able to communicate, Allen provided no information (A426). (Nor did he testify.) At around 2:30 p.m., Police Officer Petra Anderson was at 151st St. and St. Nicholas Place, patrolling in a marked car, when she heard the partial-plate description - FTM - accompanied by the color and type of vehicle, a gray minivan (A234-36). A few minutes later, she saw the vehicle near 155th St. Activating her siren and lights, she pulled it over in the parking lot of the Polo Grounds (A238). Both the driver and passenger got out, and a small group of people, including a woman, approached the driver. Though primarily focusing her attention on the driver, Anderson also watched the passenger as he walked away, with another woman, down the pathway to the Polo Grounds. A light- skinned black, thin-to-medium-framed, young man - between 16 and 20 - with thick, curly hair, he was wearing low-hanging fatigue cargo-pants, a “busy” shirt, black sunglasses, and a baseball cap with the “Sox” logo in white. And he was carrying a garment bag (A240-43). He did not appear “short”; but, Anderson acknowledged, she evidently described him that way to a detective (A259-60). Though Anderson let the passenger get away, she detained the driver, 10 identified as Gregory Hamilton (A242-43). Upon his arrest, with the arrival of other officers and his mother in tow, Hamilton gave his phone and keys to his mother. (The woman who had initially approached the minivan, Hamilton said, was named Dorothy (A75). Police subsequently learned that she was Hamilton’s wife (Detective Kevin Brady: A575).) The minivan was taken to the precinct (A244, 264). So was Hamilton, who was 29, and appeared to stand 5'7" and weigh 170 lbs. (Purcell: A427). Called to the scene of the shooting at 3:45 p.m., Police Officer Christopher Krutys, with the Crime Scene Unit, found five deformed bullets and six shell-casings on the ground, indicating that a semi-automatic had been used. Though police never found the gun, testing revealed that all six casings had been fired from the same weapon (A369, 379-80; Detective Jeffrey Bahm: A741). In addition, surveillance video from the area had captured the shooter leaving the car, touching the front passenger door and closing it. And it showed the shooter wearing black jeans, a white shirt, and a light grey, hooded sweatshirt (A380-85; see also Jeffrey McAvoy, A312-21, regarding installation of the video; Michael Mannion, A428-34, discussing the video, People’s exhibits 57-59). Consequently, while processing the minivan, on March 20th, Krutys 11 dusted it for latent prints, finding one above the passenger-door window and another at the door jamb next to the handle (A383-85). Searching the vehicle, pursuant to a warrant, he and Detective Angel Martinez also found two pairs of black jeans in the minivan, as well as a white shirt with long sleeves, which, based on the video, they submitted for DNA testing (A282, 389, 394-95, 460- 61). On March 28th, Detective Gerald Rex, a latent-print examiner, analyzed the two prints lifted from the minivan. He determined that one, from above the window, had no value, in that it lacked a sufficient number of characteristics to make a useful comparison with known prints. But the other, from near the door jamb, did have value - although he could not say how many characteristics it possessed. Nor could he say when it had been left, as prints generally did not have an “expiration date.” Concluding that it matched appellant’s, which had been entered on a previously existing fingerprint-card associated with his NYSID number, Rex promptly notified the lead detective in the case, Henry Vanheemstedeobelt, with his results (A641-43, 649). Robert Hindle, a criminalist with the Medical Examiner’s Office, performed a DNA analysis on the clothing taken from the minivan (A535). He found DNA mixtures of three people on it. One of the three was Gregory 12 Hamilton, whose DNA was found on one pair of jeans (A537-39). As for appellant, Hindle found that he could not be excluded as a contributor, but neither could he be considered one. On a statistical analysis, Hindle concluded, “there was very strong support that the mixture [on each item of clothing] originated from three unknown, unrelated individuals rather than [appellant] and two unknown, unrelated individuals.” In other words, Rex explained, the DNA came from Hamilton and two other, unknown, individuals. As to when any of the DNA was deposited, the science could not say (A538-45). In late March, Detective Kevin Brady began searching for appellant and, pursuant to a court order, tracked a phone ending in 9948, whose listed subscriber was RM, resident in Irvine, California (stipulation at A509). On March 26, 2012, Brady found the phone in the possession of a young girl, RG, who claimed it belonged to her. Brady left the phone with the child (A566-71). In his search for appellant, Brady encountered his mother and grandmother, noting their phone numbers (A570-72). He also spoke to appellant’s sister and, on April 6th, to Hamilton’s wife, Dorothy. Brady told Dorothy that he wanted to speak to Hamilton, so she called him on his cell phone. Brady noted the last four digits of the number - 3283 (A571-76). Brady arrested appellant on June 1st, on a street in the Bronx, following 13 a short pursuit. Wrestling appellant to the ground, Brady took a phone that appellant was holding (A576-79; People’s exhibit 52). The prosecution analyzed the contents of this phone - whose last four digits were 9090, and whose subscriber was listed as an entity in Irvine, California (stipulation at A514; John Forames: A748-62; Brian McCarthy: A830). People’s exhibits 46A and 46B - two photographs - showed how appellant looked on the day of his arrest (A580). Detective Vanheemstedeobelt took appellant’s pedigree. The detective recalled his height as 5'9" and his weight as around 145 lbs. (A294-95, 309-10). According to information appellant previously provided to the DMV, in 2010, for his nondriver’s identification-card, he was 5'8", born in 1990, and lived in an apartment, in Upper Manhattan, on 8th Ave. (Rebecca Perez: A746-47). Examination of phone records revealed that, on the day of the shooting, the phone ending in 9948 communicated with the 3283 phone at 2:03 p.m., 2:04 p.m., and 2:18 p.m. Additional calls, including a nine-second call to 3283 at 2:36 p.m., were made by 9948 after 2:30 p.m. that day. While these calls were made in Manhattan, the 9948 phone was subsequently used en route to and in Richmond, Va., from March 20 through March 23, before it returned to New York City on March 24th (Lucy Nicholas: A794-800; Dean DeLitta: 14 A926). Among the calls made during this four-day period (March 20-24) were several to a number ending in 8818, which RG’s father used to call Detective Brady; one to a number associated with appellant’s mother, Tyshene Mungo; and one to a phone whose last four digits were 6059, belonging to FK, which police seized in April 2012 and thereafter analyzed (A798; stipulations: A518, 945; People’s exhibit 55). A search of FK’s phone’s contact-list associated 9948 with the name “T. Balla” (People’s exhibit 55A). The phone also contained a photograph of appellant in a light-grey hoody, with white drawstrings. Three other young men were standing with him, with one in a black jacket or hoody, also with white drawstrings (People’s exhibit 54; Forames: A754). The date that the photograph was taken could not be determined (Forames: A762, 771; see also Brady: A584-85). The usage of the 9948 phone ended on March 24th (McCarthy: A831). Using the phone records, Tanya de Vulpillieres, a cell-site analyst with the District Attorney’s office, mapped the cell towers that the 9948 and 3283 phones (colored, respectively, in red and green) communicated with on the day of the shooting, March 19th (A691-716; People’s exhibits 120-24). She acknowledged that the information could not reveal “specifically in what 15 geographical area somebody is actually standing with their cell phone” (A716- 17). Regarding phone 3283, for example, two calls (to numbers other than 9948) made about two minutes apart, shortly before and after 10:00 a.m., bounced off two different towers that were 22 blocks apart. Consequently, de Vulpillieres could not say with any certainty where, other than in Upper Manhattan, the 3283 phone was then being used (A716-22). At 2:36 p.m., when 9948 and 3283 were communicating with each other, they were bouncing off two towers that were three blocks apart (A723-25). This was the call that lasted nine seconds (A727). On the other hand, at 2:18 p.m., when the two phones were communicating with each other, they activated the same tower, near 123d St. And, at 2:43 p.m., phone 3283 received calls, activating the cell tower by the Polo Grounds, while, at that time, 9948 made an outgoing call, which activated the same tower (A728-29). Dean DeLitta, a paid, outside consultant, and deemed an expert, offered his explanation of cell-tower technology (A846-58). He, too, acknowledged that, while GPS can provide the specific location of a phone in use, the cell tower the phone activates cannot (A861, 906). The tower activated is, typically, the one with the strongest signal, which may not necessarily be the one closest to the phone. More, to accommodate the high demand of cell- 16 phone users, Manhattan has many more towers than do suburbs (A860). Building heights in Manhattan may also block a phone’s activation of a tower that is otherwise close to the phone (A872). As for movement of the phone, even a change from one side of a building to another can activate a change of tower (A913). DeLitta theorized that, when phone 3283 activated two towers - 20 blocks apart - for the calls around 10:00 a.m., the phone was “likely” stationary and positioned between them, with the change of signal strength accounting for the change of tower (A871-72, 903). The calls between 3283 and 9948 at 2:03 p.m. and 2:04 hit two different towers on both occasions. The 2:18 call between them activated the same tower - the one that 9948 had activated in the two preceding calls (A875-76). This tower - denominated 191 - was located directly north of 2217 Eighth Ave. (A877). At 2:33 p.m., 9948 made a call (not to 3283) that hit a tower near 135th St., thus “beyond” 129th St. and St. Nicholas Terrace (A878). As for the nine-second call between 9948 and 3283 at 2:36 p.m., where each phone activated a different tower, DeLitta noted that the two towers, as well as one between them, were close together; and he opined that varying signal strength, call volume, building density, and the phone carriers involved may have accounted for the 17 different towers activated. That the two phones were “in proximity” of each other was, therefore, “possible”; they “could be close together” (A878-82, 890). Following his arrest, appellant was incarcerated at Rikers Island. The prosecution presented several recorded phone-calls made from the jail that were logged in as having been made by an inmate there using appellant’s Rikers PIN number and “book and case” number (Tasha Brown: A678; Brian McCarthy: A829-30; People’s exhibits 81A-D, F). On one call, a voice is heard saying “it’s Twan Baller, man.” On another, a woman tells “Twanek” about her admission to college in Virginia, and he notes that he had told her about one in Richmond, where he “was at.” In a later call, a man proclaims the “streets crazy,” explaining, “I be nervous. I be thinkin’ be snitchin.” The inmate tells him that he has “somewhere [he] can go,” the inmate’s cousin’s “crib” in Newport News, Virginia, near Richmond. Defense case Detective Carl Carlson, after observing Hamilton’s arrest, obtained video footage from a New York Sports Club at 303 W. 145th St., showing him entering at 11:16 a.m. on March 19th and leaving at noon (A959, 972-74). The footage, from which stills were extracted, showed him with another man, 18 shorter than Hamilton and bearded, wearing a black or dark-blue hoody (A978; Defense exhibits B1-4). Verdict Following 2 ½ days of deliberation (A1124-72; court exhibit 21), the jury rendered its verdict. It acquitted appellant of the three counts charging attempted murder, but convicted him of first-degree assault (as to Relaford), attempted first-degree assault (as to Phillips and Allen), second-degree assault (as to Phillips and Allen), and second-degree criminal possession of a weapon (A1175-78). Appellate Division decision The Appellate Division unanimously affirmed the successor judge’s ruling on the 911 call in all respects. According to the panel, because the ruling was evidentiary, it “did not fall within the ambit” of the “law of the case doctrine.” For that conclusion, the panel cited People v. Evans, 94 N.Y.2d 499 (2000). It cited as well several of the First Department’s cases that had previously approved successor judges’ overruling of their predecessors within the same trial. On the merits, the panel found that “[a]ll of the circumstances,” with the timing of the statement “most significant[],” established a “strong likelihood” that the declarant had observed the shooting. Last, the court 19 summarily found, “any error in admitting the declaration was harmless (see People v. Crimmins, 36 N.Y.2d 230 (1975)).” A2-4 . ARGUMENT THE SUBSTITUTED TRIAL JUDGE NOT ONLY LACKED THE POWER TO OVERRULE HIS PREDECESSOR IN ADMITTING A HEARSAY ACCUSATION AGAINST APPELLANT, BUT THE SUBSTITUTED JUDGE’S RULING THAT THE HEARSAY QUALIFIED AS AN EXCITED UTTERANCE CONSTITUTED ERROR - WHICH, IN THE CONTEXT OF THIS CIRCUMSTANTIAL CASE ON THE PERPETRATOR’S IDENTITY, WARRANTS REVERSAL OF THE JUDGMENT. A. On its third attempt, before the third judge to hear appellant’s case, the prosecution secured admission of the unidentified bystander’s statement, “it was Twanek, man,” as an excited utterance, which the prosecutor went on to feature extensively in summation. At appellant’s first trial, Hon. Juan Merchan denied the prosecution’s application to admit the background statement on the 911 call, “it was Twanek, man,” as either an excited utterance or present-sense impression. After extensive written and oral argument by the parties, the court agreed with the defense that it would be “irresponsible” to draw the inference that the unknown declarant had been speaking from personal knowledge. In that vein, the court noted the prosecution’s proffer of three minutes between the shooting and the declaration, and deemed “important” the prosecution’s observation that, “‘[b]y that time, people other than the victim shown on video surveillance footage out 20 and about on St. Nicholas Terrace had made their way to the corner where the shooting took place’” (A64, 65, 67, 76, 81, 84-86). For all that appeared, the court found, the declarant may well have been one of those people - which hardly assured his having observed the shooting or his opportunity to have done so. Thus, the court posited, the declarant may have uttered the accusation merely because “word on the street had been that Twanek was going to do this” or because he was Twanek’s enemy and found this “a good opportunity” to falsely incriminate him (A85). With this trial having ended in jury deadlock, see A89-106, the prosecution renewed its application - now in a fresh 31-page memorandum that took issue with Justice Merchan’s ruling - prior to jury selection at the second trial. Nonetheless, Hon. Ruth Pickholz, then presiding, essentially agreed with her predecessor, finding that there was “no way to know whether the declarant observed the incident first hand or whether someone else reported the facts to him and he was just parroting what he was told.” She posited, “for example, the declarant’s girlfriend was the actual observer and told the declarant that she thought that the shooter looked like the defendant.” A113, 117-20. But when Justice Pickholz took ill before the completion of jury 21 selection (A125-30) and Hon. Bruce Allen took over the proceedings, the prosecution finally achieved its goal on its third attempt. As Justice Allen told the parties, he had “no doubt” that the case-law entitled him, as a substitute judge, to make his own ruling on the issue. Presented with the People’s 31- page memorandum, he was, he declared, “not bound by any ruling made by any other judge at anytime” (A269). Rejecting defense counsel’s protests - that Justice Pickholz’s ruling had gotten it right and that admitting the statement would violate not only appellant’s federal confrontation rights but his rights to a fair trial because of its unreliability - Justice Allen summarily found that the statement qualified for admission as an excited utterance (“I think the unidentified person is also making an excited utterance”) (A269, 331-33). Thus the jurors, as he later instructed, were free to consider it (A1108; “The individual’s statement has been admitted into evidence and may be considered by you.”). In summation, the prosecutor repeatedly invited the jury to do just that, playing the call twice (A1026, 1061, 1078, 1086). Appellant’s conviction ensued. Justice Allen committed error, on both counts: He lacked the right to review Justice Pickholz’s ruling, and his own evidentiary ruling, in any case, was substantively wrong. Given the central place that the statement occupied 22 in the prosecution’s case, its improper admission compels reversal. The Appellate Division’s contrary determinations do not withstand analysis. B. The substitute judge’s overruling of his colleague in the retrial - a single litigation - violated law-of-the-case. Rejecting appellant’s claim that this Court’s “law of the case” jurisprudence precluded Justice Allen from revisiting an evidentiary ruling made by a judge in the same trial, the Appellate Division declared: The ruling was evidentiary and did not fall within the ambit of that [law of the case] doctrine (see People v Evans, 94 NY2d 499 [2000]). Defendant does not dispute that this was the type of ruling that, under Evans, may be revisited by a successor judge in a retrial. We see no reason to apply a different rule where there are successive judges in the same trial (see People v Johnson, 301 AD2d 462 [1st Dept 2003], lv denied 99 NY2d 655 [2003]; People v McLeod, 279 AD2d 372 [1st Dept 2001], lv denied 96 NY2d 921 [2001]). A3. The Appellate Division’s pronouncement in appellant’s case, like its similar ones in Johnson and McLeod, runs afoul of Evans. In Evans, this Court held that a court’s prior evidentiary rulings did not bind a court presiding over a retrial of the same case. The court conducting the retrial possessed the power to exercise its own discretion regarding such matters. A contrary rule, this Court reasoned, would unduly restrict retrial- judges from addressing all manner of issues, including those “dealing with leading questions, or the manner in which an exhibit is marked or shown to a 23 witness or some other discretionary call.” Evans, 94 N.Y.2d at 504. This Court thus rejected the defendant’s claim before it, finding that the retrial judge lawfully exercised his own, fresh, discretion in assessing the prosecution’s Sandoval application. See id. at 504-05. In its analysis, this Court specifically distinguished “law of the case” insofar as it referred to the “potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.” Id. at 503 (internal citations omitted). Evans discussed the policy behind the doctrine’s “regulating” of such “pre-judgment rulings made by courts of coordinate jurisdiction.” Id. at 502-03. Evans observed that “the doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case.” Id. at 504. In fact, this Court continued, it had previously “recognized as much” in two prior cases. Id. Specifically, in Matter of Dondi v. Jones, 40 N.Y.2d 8, 15 (1976), the Court, deeming fundamental the prevention of “vexatious and repeated applications on the same point,” cautioned that “a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction.” And in Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975), it had called “law of the case” “an 24 articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.” Evans thus provides a controlling statement of, and reason for, the law- of-the-case doctrine. While observing that Evans “plumbed the reach of [the] doctrine,” People v. Bilsky, 95 N.Y.2d 172, 175 (2000), subsequently highlighted the “threshold qualifications” to its application: It applies only to judicial determinations made in the course of a single litigation; it contemplates that the parties had a “‘full and fair’ opportunity to litigate the initial determination”; and it necessarily “presupposes that legal determinations of a merits nature have been made.” Id. at 175 (internal citations omitted). Justice Allen’s pronouncement - that his status as a substitute judge gave him carte blanche to disregard his predecessor’s ruling - finds no place in the law. The law-of-the-case doctrine nowhere exempts substituted judges from its reach. Initially precluded entirely at early common law, see People v. Thompson, 90 N.Y.2d 615, 619 (1997), substitute judges today may rule only on newly arising or pending matters, which, in the latter instance, may require the additional taking of testimony and argument, see People v. Hampton, 21 25 N.Y.3d 277, 285-87 & n.5 (2013). This limitation to new or open matters honors the law-of-the-case dictates. The Appellate Division did not adopt Justice Allen’s rationale. But the panel’s own pronouncement that “evidentiary” rulings do not “fall within the ambit of [law of the case] doctrine” also misreads Evans. Given the explicit application of the doctrine to rulings within a single litigation, Evans and Bilsky contain no such exclusion. Evans’s discussion of “evidentiary” and Sandoval issues, exempting them from the doctrine’s reach, occurred only in answer to, and rejection of, the defendant’s argument that a judge could not revisit prior rulings of this type on a retrial. See Evans, 94 N.Y.2d at 504-06; see also People v. Nieves, 67 N.Y.2d 125, 136-37 (1986). 4 An actual exclusion from the doctrine’s reach within the same litigation allows4 trial courts to revisit colleagues’ prior change-of-counsel-related rulings. Considering that the law imposes an “ongoing duty” on trial courts to evaluate applications of this type, People v. Medina, 44 N.Y.2d 199, 207 (1978); People v. Linares, 2 N.Y.3d 507, 510 (2004), “the law of the case doctrine is simply a non sequitur” in such circumstances, Bilsky, 95 N.Y.2d at 178. See, e.g., People v. Beauchamp, 84 A.D.3d 507, 508 (1st Dept. 2011); cf. People v. Carmichael, 73 A.D.3d 622, 622 (1st Dept. 2010) (though two judges had authorized “hybrid representation” during pretrial proceedings, “the law of the case doctrine did not operate to preclude the trial court from exercising its own discretion on this issue”) (internal citation omitted). By contrast, though respondent urges otherwise, see respondent’s Appellate Division brief [hereinafter “RAD”] at 46, a court’s entitlement to revisit its own rulings during the same litigation does not justify a court’s overruling its co-equal colleague. The former does not implicate law-of-the-case doctrine at all. See Aridas v. Caserta, 41 N.Y.2d 1059, 1061 (1977) (“Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made.”). Such revisiting does not place a judge “in appellate review of his [co-equal] predecessor’s actions,” the doctrine’s (continued...) 26 The Appellate Division endorsed patent error in appellant’s case. Justice Allen’s overruling of Justice Pickholz met the doctrine’s “threshold qualifications” for its application: He overruled her in the course of the same trial, after he was substituted for her; her ruling had been on the merits; and the parties had enjoyed a full and fair opportunity to litigate the issue - the admissibility vel non of the background statement on the 911 call - before her. Indeed, the People submitted the same arguments to both jurists. See A112-13, 119 (Pickholz, J.); A196-97 (Allen, J.). No circumstances, let alone extraordinary ones, authorized the resubmission and changed decision. 5 (...continued)4 central concern. United States v. Sisk, 629 F.2d 1174, 1179 (6th Cir. 1980). The Appellate Division’s invoking of its prior cases upholding a trial court’s5 revisiting of a prior court’s Sandoval or Molineux ruling within the same case Johnson, 301 A.D.2d 462 (Sandoval); McLeod, 279 A.D.2d 372 (Molineux) was similarly misguided. Absent new facts or a material change in the law or the lack of opportunity for a full and fair adjudication on the initial application, these decisions cannot withstand scrutiny under Evans. The same holds true for People v. Gomez, 67 A.D.3d 927, 928 (2d Dept. 2009) (declaring that “a successor judge is not bound by a prior Sandoval ruling made in the same case (see People v. Evans, 94 N.Y.2d 499, 505- 506)”). It also bears noting that these same appellate courts and others have elsewhere correctly enforced the doctrine. See, e.g., People v. Cabreja, 243 A.D.2d 387, 387 (!st Dept. 1997) (finding no “extraordinary circumstances” warranting the suppression judge’s reversal of his colleague’s prior ruling that had denied suppression); People v. Guin, 243 A.D.2d 649, 650 (2d Dept. 1997) (People correctly contended that the lower court violated the law-of-the-case in reinspecting grand jury minutes and finding them deficient, where the court’s colleague had found them sufficient). See also, e.g., People v. Broome, 151 A.D.2d 995, 995 (4th Dept. 1989) (court violated law-of-the-case in reversing colleague’s Wade determination). 27 In conclusion, since appellant’s first trial ended in a hung jury and resulted in a retrial, Justice Pickholz enjoyed the right to revisit Justice Merchan’s ruling concerning the 911 call. See, e.g., People v. Dorm, 12 N.Y.3d 16, 19 (2009) (following hung jury, new justice on retrial ruled contrary to his predecessor on Molineux issue); Evans, 94 N.Y.2d at 504-05 (permitting a new Sandoval determination). The People had a full and fair opportunity to make their case for the statement’s admission to her, presenting her with an extensive written motion, which she read and discussed in conclusively ruling against them. The law did not entitle Justice Allen to overrule her. The law permitted him, as a substitute judge, to rule only on issues that she left open. See Hampton, 21 N.Y.3d at 285-87. With Justice Allen, “in response to a protest by a party,” having “expressly decided the question raised on appeal,” C.P.L. § 470.05(2) - declaring his power to disregard “any ruling made by any other judge at anytime” - the issue is preserved for this Court’s review. See Hampton, 21 N.Y.3d at 284 n.2 (finding preserved, on a similar basis, the issue whether a substituted judge could decide questions orally argued before another judge, even where the issue was purely legal in nature). His erroneous arrogation of power led to the improper admission of the evidence. 28 C. The lower courts’ excited-utterance determinations lacked record support. Assuming his right to rule on the issue, the law tasked Justice Allen with the responsibility of resolving the admissibility of the unidentified declarant’s statement. See People v. Johnson, 1 N.Y.3d 302, 306 (2003); People v. Fratello, 92 N.Y.2d 565, 571 (1998). The trial court simply declared its belief that “the unidentified person is also making an excited utterance” (A269), while the Appellate Division found that “[a]ll of the circumstances - most significantly that the statement was made immediately after the shooting - established a strong likelihood that the declarant observed the shooting” (A2- 3). Though the issue presents a “mixed question of law and fact,” id., neither Justice Allen’s summary pronouncement of admissibility nor the Appellate Division’s affirmance precludes this Court’s review, as neither ruling possesses record support. Cf., e.g., People v. Sanders, 26 N.Y.3d 773, 777-78 (2016) (finding “no record support” for the lower courts’ conclusion that police possessed probable cause to believe that the seized evidence constituted the instrumentality of a crime). The record reflected that the unidentified bystander uttered his statement - “it was Twanek, man” - excitedly. It did not, however, support the conclusion that he had witnessed the shooting. Excited utterances constitute exceptions to the hearsay rule “because the 29 declarant is exposed to a startling or upsetting event that is sufficiently powerful to render [his] normal reflective processes inoperative.” “[T]hat the declarant spoke while under the stress or influence of the excitement caused by the event” therefore constitutes an “essential element” of this exception. People v. Cantave, 21 N.Y.3d 374, 381 (2013) (internal quotation marks and citations omitted). But admissibility also requires evidence from which the trial court reasonably may infer that the declarant “had an opportunity to observe personally the event described in the declaration.” Fratello, 92 N.Y.2d at 571. In “most instances,” circumstances that the declarant “was an actual participant in the event which is the subject of the declaration” “self-evidently” satisfies the personal-observation requirement. Id. (within a minute of the shooting and car crash, victim-declarant identified defendant as his assailant to police). Statements by witnesses, even if unidentified, may meet the requirement as well - provided they bear indicia of personal observation. See, e.g., People v. Whitlock, 95 A.D.3d 909, 910 (2d Dept. 2012) (statement of victim’s child, in car with victim at time of shooting); People v. Brown, 72 A.D.3d 445, 445 (1st Dept. 2010) (911 call enabled the police to meet an “ongoing emergency”); People v. Coleman, 16 A.D.3d 254, 254,255 (1st Dept. 30 2005) (unidentified but distraught caller, “urgently seeking police intervention,” described an attack in progress); People v. Young, 308 A.D.2d 555, 556 (2d Dept. 2003) (child’s statement - “‘daddy shot [the decedent]’” - made at scene of the shooting and in its immediate aftermath); People v. Vasquez, 214 A.D.2d 93, 103-04 (1st Dept. 1995) (declarant’s statement, “‘he’s got the gun,’” “strongly suggested” declarant’s contemporaneous observation of the defendant’s conduct, confirmed by concurrent observations of his conduct by the police). In each of these cases, the very content of the bystander-statement and its surrounding circumstances rendered it obvious or warranted the reasonable inference that the bystander was observing or had just observed a crime as it had occurred. The same cannot be said about the statement here. No evidence showed that the person who uttered “it was Twanek, man,” however excited he may have been, in fact saw the shooting. Heard in the background of the 911 call made by one of the shooting victims (Phillips), who asks for help, the bystander’s words were necessarily uttered after the event. The words themselves - employing the past tense - ascribed no conduct to “Twanek,” ongoing or otherwise, which might have bespoken the declarant’s personal observation. Cf. Vasquez, 214 A.D.2d at 31 103-04 (declarant’s statement, “‘he’s got the gun,’” suggested declarant’s contemporaneous observation). Contrary to the Appellate Division’s decision, the statement’s timing did not bespeak the declarant’s personal observation either. The record undermines the Appellate Division’s conclusion. Specifically, surveillance video pegged the shooting at 2:28 p.m. The trial witness from the NYPD, records-custodian Latasha Ortiz, answered “Yes” to the prosecutor’s question that put the time of the 911 call at “about 2:30 or 2:29 p. m.” (A326) - thus, up to two minutes after the shooting. But Justice Allen determined the People’s application to admit the hearsay accusation based on their 31-page submission, which expanded the timing by yet another minute. The application included the prosecutor’s repeated written representations that the declaration occurred “within 3 minutes of” or “three minutes after” “the triple shooting” (A16, 31), and attached as an exhibit the April 15, 2013, minutes of the prosecutor’s oral representation to Justice Merchan (the judge who heard the first application) that, “since the incident is at 2:29 p.m., this call according to NYPD records is at 2:32 p.m. within three minutes of the call.” A61; see also A64 (“three minutes after the call”). Indeed, Justice Merchan had noted the three minutes (A65). Because Justice Allen determined the application on the prosecution’s 32 own proffer, its three-minute timeline therefore governs the admissibility question. Cf., e.g., People v. Carmona, 82 N.Y.2d 603, 610 n.2 (1993) (as defendant’s trial testimony was not part of the suppression hearing evidence “and was therefore not before the court when it made its [suppression] determination, it is not relevant to the correctness of that determination and is not a proper subject for consideration on this appeal”); see also People v. Gonzalez, 55 N.Y.2d 720, 721-22 (1981). But even two minutes (as allowed by the testimony of the police records-custodian) afforded the unidentified declarant here sufficient opportunity to merely “parrot[] what he was told” by someone else nearby, as Justice Pickholz found. It also gave him ample time to have merely relayed prior rumors heard on the “street.” They did not establish that he witnessed the shooting. 6 Respondent’s claim below, calling it “inconceivable that no one other than the victims would have seen the shooter,” RAD at 54, avails it nothing. The surveillance video simply showed several pedestrians on the street at the time of the shooting. Such a plaint does not substitute for evidence that the Taking another tack below, respondent cited cases endorsing, as excited6 utterances, declarations “made much further [in time] from the exciting event.” RAD at 52-53. These cases are legally beside the point. All involving victim-declarants, they assumed or determined that the declarants had personally observed the event. The timing issue concerned whether each was still under the stress of the event at the time of the declaration. See, e.g., People v. Brooks, 71 N.Y.2d 877 (1988). Here, appellant does not contest that the bystander may have been excited. 33 declarant saw it. Respondent’s additional assertions - that “only someone who personally observed the shooting could have exclaimed about it” so quickly; that the timing of the statement “did not allow for the declarant” to talk to any other bystanders, RAD at 53; and that the declarant “would have had an excellent opportunity to observe the event,” RAD at 57 - would substitute sheer speculation for legitimate inferences. They are also at odds with the People’s submission on their application to admit the declaration. To be sure, though surveillance video did not show a crowd at the time of the shooting, many people, according to police testimony, gathered at the scene in the shooting’s aftermath. Apparently one, according to the first officer on the scene, offered a description of the perpetrator’s height- 5'3" (far shorter than appellant’s). And another, an unidentified woman, furnished the police with a partial license-plate number. But the record did not reveal whether anyone - including, most critically, the unidentified declarant on the 911 call - witnessed the crime. Phillips, for example, was not questioned on the topic. Justice Merchan summarized matters best. During the three minutes between the shooting and the statement, the declarant may well have been one of those people, as the prosecutor put it, “‘shown on video surveillance footage 34 out and about on St. Nicholas Terrace [who] had made their way to the corner where the shooting took place.’” A84. That did not warrant a reasonable inference that the declarant had observed the shooting. As Justice Merchan posited, the declarant may have simply uttered a rumor he had heard in the neighborhood, or, harboring a personal grudge against Twanek, seized the moment to falsely accuse him. Contrary to respondent’s final argument below, the court’s jury-charge about the hearsay declaration did not, and could not, mitigate or ‘cure’ any error in admitting the declaration. Respondent would consider a saving grace the court’s tasking the jury with determining the weight and reliability of the declaration, including the declarant’s opportunity to “observe” the “person” (A1108-10). According to respondent, the charge ensured that the jury would not have given weight to the declaration without having first concluded that the declarant had personally observed the shooting. See RAD at 62. Aside from the court’s having told the jury that a judicial - and approving - determination had been made admitting the statement (A1108), the law precluded the jury from acting as a backstop: The trial court - not the jury - was charged with the responsibility of determining the statement’s 35 admissibility. See Fratello, 92 N.Y.2d at 571; Johnson, 1 N.Y.3d at 306.7 The jury, as defense counsel argued to Justice Allen, should not have heard the declaration. Aside from preserving the issue for this Court’s review, counsel’s protest simply, and unfortunately, got it right: Admitting the unreliable declaration would deny his client a fair trial (A332-33). D. The wrongful admission of the conclusory hearsay accusation cannot be deemed harmless under any standard. As just noted, in protesting the wrongful admission of the unidentified declarant’s accusation, defense counsel challenged the underlying unreliability of the statement as an excited utterance. Concomitantly invoking his client’s fair-trial rights, this argument “call[ed] to mind a specific right protected by the Constitution,” Daye v. Attorney General, 696 F.2d 186, 193-94 (2d Cir. 1982), namely a defendant’s federal (and state) due-process right to be convicted only upon reliable evidence. See, e.g., State v. Floyd Y., 22 N.Y.3d 95, 98, 103 Because Justice Allen did not admit the statement on the People’s additional7 theory as a present-sense impression its admissibility vel non under that theory is beyond the scope of this Court’s review. See, e.g., People v. LaFontaine, 92 N.Y.2d 470, 474 (1998); People v. Romero, 91 N.Y.2d 750, 753-54 (1998). In any event, like the excited-utterance exception, this hearsay exception also requires that the declarant possess personal knowledge of the event related. See, e.g., Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004) (“[I]f the caller did not see [the defendant] shooting, his statement to that effect was not a report of a contemporaneous observation, but rather of his surmise. . . . The present sense impression applies only to reports of what the declarant has actually observed through the senses, not to what the declarant merely conjectures.”). Accordingly, the statement in appellant’s case did not qualify under this theory, either. 36 (2013). Cf. People v. Garcia, 25 N.Y.3d 77, 82, 86 (2015) (finding that counsel’s complaint, “‘[w]e don’t have that witness here,’” preserved a federal confrontation claim). While counsel’s additional confrontation-claim here may have foundered because the statement did not qualify as “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004), and its progeny, counsel’s separate due-process argument now triggers the People’s burden to prove that the accusation’s introduction was harmless beyond a reasonable doubt. But regardless of the standard applied, contrary to the Appellate Division’s single- line pronouncement of harmlessness, the introduction of the accusation - whether based on the trial court’s usurpation of jurisdiction or on its substantively incorrect ruling, or both - may not be deemed harmless. First, the prosecution’s other evidence of appellant’s guilt - on the highly contested element of his identity as the shooter - was not overwhelming. See People v. Crimmins, 36 N.Y.2d 230, 241 (1975) (“[U]nless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error.”). The two shooting victims who testified did not identify him as their assailant. More, the description of the shooter as short - 5'3", 37 according to one of the police reports - did not come close to appellant’s documented 5'8" or 5'9". That the shooting victims had engaged in the drug trade itself suggested that numerous others may have had motive to harm them. As for appellant, however, the People presented no motive whatsoever. Appellant and Hamilton - the getaway driver - may have known each other. And, using phones 9948 and 3283, respectively, they even may have called each other on the day of the shooting. But the cell-site evidence left much room to question whether they were physically together, let alone in Hamilton’s car. After all, both de Vulpillieres and DeLitta conceded that cell- site tracking could not reveal specifically where the phone in question was being used - because phones activated towers based on signal strength, not geographic proximity. Graphically illustrating that principle, 3283 was shown to activate different towers, a mile apart, on calls (not to 9948) only a minute or so apart. Thus, as to the call between 3283 and 9948 at 2:36 p.m., only minutes after the shooting, DeLitta could pronounce it only “possible” that they were “in proximity” of each other - offering a hodgepodge of reasons to try to account for each phone’s having activated a different tower. If they were in Hamilton’s car together, a call from one to the other minutes after the shooting made no sense. In fact, the defense produced a 38 photograph showing Hamilton with another young man - shorter than appellant - in the hours preceding the shooting. Like the shooter, he was attired in a hoody and jeans - a virtual uniform of the young, urban, male. This not only constituted third-party-guilt evidence, but it also rendered the photograph of appellant, standing with three friends while wearing a light-grey hoody, unremarkable; even two of the shooting victims had been wearing hoodies. That appellant’s DNA was not found on any of the clothing tested in Hamilton’s car bore significance - where the shooter was suspected of having shed his clothing before fleeing the vehicle after it was stopped by police. On the other hand, appellant’s fingerprint on the car did not conclusively speak to when he may have left it there. Last, that appellant went to Virginia after the shooting hardly could be characterized as compelling evidence of flight - considering that he returned to New York, on his own, four days later. Indirect and underwhelming, this evidence itself precludes a finding of harmlessness. Cf., e.g., People v. Kello, 96 N.Y.2d 740, 744 (2001) (finding 911 tapes harmless, where the two eyewitnesses, “who were well acquainted with the defendant, gave unequivocal testimony that he fired the fatal shots,” and, “at most, the tapes weakly confirmed [their] testimony”). The likely impact of the bystander’s declaration, simple and direct, bars a 39 harmlessness determination as well. No wonder that the prosecutor began his summation with it, playing the tape for the jury (which had previously heard it upon its admission into evidence). As the prosecutor described it, “that person unequivocally identified the defendant, Twanek Cummings, to you, by his very uncommon first name, . . . as the perpetrator of the shoot[ing] . . . . [T]he identification of the defendant was made right there on the street” (A1026). The prosecutor invoked the declaration midway through his summation, “You have a guy on the street shouting out Twanek Cummings’s name”; “the 911 call capturing his name” (A1061, 1078). And he ended his closing argument with it, playing the tape yet again for the jurors and claiming, “He was saying it to the people who were closest to him on the corner, and in a way he’s saying it to you” (A1086). Betraying the People’s on-the-ground assessment of the importance of this evidence to their case, the prosecutor’s emphasis of the declaration precludes a finding of harmless error under the test for constitutional error. See Crimmins, 36 N.Y.2d at 237; see, e.g., People v. Hardy, 4 N.Y.3d 192, 199 (2005) (“The prosecutor’s own summation illustrates how important the [improperly admitted evidence] was to the People’s case. . . . The People’s heavy reliance on [this evidence] creates a reasonable possibility that its 40 admission and subsequent exploitation by the prosecutor contributed to the verdict.”); People v. Harris, 93 A.D.3d 58, 74 (2d Dept. 2012) (while the prosecutor’s summation stressed that the disputed evidence was not the only evidence of guilt, “it is clear that the prosecution considered it, if not the most damaging, at least ‘damaging piece of evidence’”) (internal citation omitted), aff’d 20 N.Y.3d 912 (2012); see also People v. Goldstein, 6 N.Y.3d 119, 130- 31 (2005). Conversely, the jury’s failure to convict at the first trial, where the statement was absent, also establishes harm. It supports the conclusion that the evidence at the retrial may not be deemed overwhelming. See Zappulla v.8 New York, 391 F.3d 462, 471 (2d Cir. 2004), cert. denied 546 U.S. 957 (2005) (“fact that the first trial resulted in a hung jury . . . suggests that the case was Below, respondent speculated that the first jury may not have convicted because,8 while defense counsel acknowledged the 9948 phone records, he also argued to that jury that no one had seen appellant in physical possession of the 9948 phone. Respondent additionally observed that this jury heard less evidence than the second jury about appellant’s going to Virginia after the shooting. See RAD at 60-61. Respondent’s theorizing accomplishes nothing. Regarding the phone, the obvious lack of direct evidence physically putting it in appellant’s hands was available to the second jury. Given the phone records, counsel simply stressed the holes in the People’s case concerning the location and meaning of the phone’s use. As for appellant’s traveling to Virginia, regardless of the quantum and quality of evidence showing it, it constituted no more than equivocal evidence of flight considering that he returned to New York, on his own, a few days later. Fittingly, the jury that convicted heard a charge that consciousness-of-guilt evidence may be of only slight probative value and, standing alone, may never constitute the basis for conviction (A1110-11). See, e.g., People v. Baker, 26 N.Y.2d 169, 174 (1970). 41 close”). And it meets Crimmins’s test for nonconstitutional error: that there “is a significant probability . . . that the jury would have acquitted . . . had it not been for the error.” 36 N.Y.2d at 242. Cf. United States v. Graves, 613 Fed. Appx. 157, 161 (3d Cir. 2015) (observing that where the defendant’s first two trials ended in hung juries, thus bespeaking a “quintessential example of a ‘close case,’” “even a weak impact” of wrongfully unobjected-to offending evidence will satisfy the Strickland federal test for prejudice (for ineffective assistance of counsel) of a “reasonable probability” of a different result); People v. Ugweches, 116 A.D.3d 440, 442 (1st Dept. 2014) (prejudice component of defendant’s ineffective-assistance-of-counsel claim supported “by the fact that there was a hung jury in defendant’s prior trial at which the offending evidence [unobjected-to at the second trial] was absent” and certain favorable evidence was introduced). The judgment may not stand. 42 CONCLUSION THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant ____________________ Susan H. Salomon Of counsel May 19, 2017 43 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : TWANEK CUMMINGS, : Defendant-Appellant. : ----------------------------------------------------------------------x WORD-COUNT CERTIFICATION I, Susan H. Salomon, an attorney duly admitted and licensed to practice law in the State of New York, do hereby certify, pursuant to Rule 500.13(c)(1) of the Court, that the foregoing Appellant’s brief was prepared in Wordperfect®, using a 14-point Times New Roman font, and totaled 9491 words. Dated: New York, New York May 19, 2017 __________________ Susan H. Salomon 1A