The People, Respondent,v.Twanek Cummings, Appellant.BriefN.Y.May 24, 2017To be argued by SUSAN H. SALOMON (15 minutes requested) APL-2017-00063 Court of gppeate &tate ot Jleto gorfe THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TWANEK CUMMINGS, Defendant-Appellant. REPLY 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 September 22, 2017 TABLE OF CONTENTS iiTABLE OF AUTHORITIES PRELIMINARY STATEMENT 1 2REPLY ARGUMENT A. Subject, like any other successor judge, to the law of the case, the substituted judge violated it here 2 This Court’s governing law-of-the-case jurisprudence establishes the violation here 1. 3 The law of the case applies equally to substitute judges and any other successor judges in the same litigation 2. 5 The defendant, no less than the People, warrants relief for a law-of-the-case violation 3. 7 B. The record did not support the necessary excited-utterance finding that the declarant personally witnessed the shooting. 9 The wrongful admission of the bystander’s statement triggers constitutional harmless-error analysis, which respondent makes no effort to defeat on the merits; in any case, the error may not be deemed harmless under any standard. C. 15 20CONCLUSION WORD-COUNT CERTIFICATION 1A TABLE OF AUTHORITIES FEDERAL CASES United States v. Newton. 369 F.3d 659 (2d Cir. 2004) United States v. Sisk. 629 F.2d 1174 (6th Cir. 1980) . . STATE CASES People v. Beauchamp. 84 A.D.3d 507 (1st Dept. 2011) People v. Bilskv. 95 N.Y.2d 172 (2000) People v. Broome. 151 A.D.2d 995 (4th Dept. 1989) . . People v. Cabreia. 243 A.D.3d 387 (1st Dept. 1997) . . People v. Carmichael. 73 A.D.3d 622 (1st Dept. 2010) People v. Dorm. 12 N.Y.3d 16 (2009) People v. Evans. 94 N.Y.2d 499 (2000) People v. Fratello. 92 N.Y.2d 565 (1998) People v. Guin, 243 A.D.2d 649 (2d Dept. 1997) People v, Hampton. 21 N.Y.3d 277 (2013) People v. Flernandez. 28 N.Y.3d 1056 (2016) People v. Johnson. 1 N.Y.3d 302 (2003) People v. Kello. 96 N.Y.2d 740 (2001) People v. Linares. 2 N.Y.3d 507 120041 People v. Medina. 44 N.Y.2d 199 (1978) People v. Seit. 86 N.Y.2d 92 119951 People v. Vasquez. 214 A.D.2d 93 (1st Dept. 1995) . . STATE STATUTES 19, 20 7 4 3,4,6 7 7 4 4 passim 9, 13, 14 7 6 16 14 17, 18 4 4 18, 19 13 Jud. Law § 21 6 ii 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 Appellant submits this brief in reply to respondent’s [hereinafter RB], received by appellant on August 25, 2017. Appellant thus replies to respondent’s arguments that the substituted judge possessed the power to overrule his colleague in admitting a hearsay accusation against appellant; that the substituted judge correctly ruled that the hearsay qualified as an excited utterance; and that any error does not require reversal. Appellant maintains that respondent’s arguments lack merit. 1 REPLY ARGUMENT CONTRARY TO RESPONDENT’S ARGUMENTS, (A) THE SUBSTITUTED JUDGE VIOLATED THE LAW OF THE CASE IN OVERRULING HIS PREDECESSOR ON THE HEARSAY ISSUE, (B) HIS RULING, FINDING THAT THE HEARSAY QUALIFIED AS AN EXCITED UTTERANCE, IN ANY CASE CONSTITUTED ERROR, AND (C) REVERSAL IS REQUIRED. A. Subject, like any other successor judge, to the law of the case, the substituted judge violated it here. This Court has defined “law of the case” as addressing the “potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.” People v. Evans. 94 N.Y.2d 499, 502 (2000) (emphasis in original; internal citations omitted). Respondent proceeds from this foundational statement not only to distort this Court’s analysis in resolving Evans but to misstate appellant’s arguments and avoid his actual ones. The upshot: respondent advocates a rule that would grant substitute judges more power than ordinary successor judges to overrule their colleagues. See RB at 31-34. That is not the law — not under the Court’s law-of-the-case authority, and not under its authority governing substitute judges. 2 This Court’s governing law-of-the-case jurisprudence establishes the violation here. 1. Evans, appellant recognizes, interpreted “single litigation” to include a retrial. In fact, Evans explicitly announced that it was treating the law-of-the- case doctrine as raised on the appeal before it — involving, as it did, a retrial following a hung jury — “as a concept regulating pre-judgment rulings made by courts of coordinate jurisdiction in a single litigation.” 94 N.Y.2d a t 503. Still, Evans found, “distinctions must be made” where retrials are concerned — because the wholesale binding on a retrial judge of the predecessor judge’s rulings could prove unworkable. Id. at 504. Consequently. Evans loosened what would have been a strict application of the doctrine in the case at hand to allow a successor judge on the retrial to revisit an evidentiary ruling by his colleague at the prior trial. See id at 504-05. In so ruling, this Court deemed “the [discretionary] nature of the prior ruling ... a pivotal concern in determining whether the successor Judge is constrained by the law of the case.” Id at 505. Retrial “distinctions” aside, this Court, in People v. Bilskv. 95 N.Y.2d 172 (2000), subsequently highlighted the “threshold qualifications” for application of the law-of-the-case doctrine: It applies to judicial determinations made in the course of a single litigation; it contemplates that the parties had a 3 ‘“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). Together, Evans and Bilskv make plain that law of the case applies to all judges of coordinate jurisdiction acting in the course of a single litigation that has not reached final judgment. If that single litigation involves a retrial, the retrial judge can look afresh at the prior trial-court’s evidentiary rulings. Otherwise, such judges cannot revisit each others’ merits rulings absent the lack of a full and fair opportunity to be heard the first time or some other extraordinary or special circumstance. Under these decisions, since appellant’s first trial, before Justice Merchan, ended in a hung jury and resulted in a retrial, Justice Pickholz — the original judge on the retrial — properly enjoyed the right to revisit Justice Merchan’s ruling concerning the 911 call. See, e.g.. People v. Dorm. 12 1 One such special circumstance, appellant has observed, permits trial courts to revisit colleagues’ prior change-of-counsel-related rulings. In fact, 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), rendering “the law of the case doctrine ... a non sequitur” in such circumstances, Bilskv. 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). 4 N.Y.3d 16, 19 (2009) (following a hung jury, the new justice on the retrial ruled contrary to his predecessor on a Molineux issue); Evans. 94 N.Y.2d at 504-05 (permitting a new Sandoval determination). The People exercised 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. That should have ended the matter. The law of the case applies equally to substitute judges and any other successor judges in the same litigation. 2. Nonetheless, respondent insists, appellant claims that “the [law-of-the- case] doctrine applies differently to a substitute judge within a single trial than to a successor judge at a retrial.” According to respondent, appellant argues that the doctrine “does not preclude a retrial judge from overruling her predecessor’s evidentiary ruling, but it precludes a substitute judge from exercising that same discretion.” RB at 31. Respondent concludes that “no good reason exists to restrict a substitute judge more than any other judge at a retrial.” RB at 28-29. Respondent misstates appellant’s arguments. Appellant argues that Justice Allen’s pronouncement — that he was “not bound by any ruling made by any other judge at anytime” (A269) — finds no place in the law. The law-of-the-case doctrine nowhere exempts substituted judges from its reach. See appellant’s opening brief [hereinafter AB] at 25. 5 Put another way, the doctrine applies to substituted judges no more and no less than to any other judges of coordinate jurisdiction acting in the same pre¬ judgment litigation. Justice Allen could have reconsidered the call — had Justice Pickholz not already done so. Evans and Bilskv support appellant’s actual argument. They do not remotely suggest a ‘substitute-judge exception’ to an issue otherwise governed by law of the case. Though respondent contends otherwise, see RB at 33-34, this Court’s jurisprudence regarding substitute judges supports appellant’s argument as well. This Court has permitted the substitute judge’s determination of the predecessor’s “outstanding” motions or decisions. See People v. Hampton. 21 N.Y.3d 277, 285 (2013). At issue has been the extent to which Jud. Law § 21 precludes the “replacement” judge from ruling, in such “outstanding” matters, based on testimony or credibility assessments of witnesses that the “replacement” judge did not hear or view. See id. at 285-87 (determining that, in the case before it, the substitute judge permissibly ruled on an outstanding trial-order-of-dismissal motion, since it presented a “pure question of law”). This Court’s authority recognizes procedural constraints on substitute judges. It nowhere deems them exempt from the law of the case.2 2 Noting that a trial court possesses the authority to reconsider its own rulings (continued...) 6 The defendant, no less than the People, warrants relief for a law- of-the-case violation. 3. If any law-of-the-case violation occurred, respondent last contends, it provides no basis for reversal. As respondent sees it, not a single criminal case has granted such relief. See RB at 34. Appellant disagrees. To be sure, for the most part, the appellate courts have granted relief at the prosecution’s behest. See AB at 27 n.5 (citing, e.g.. People v. Cabreia. 243 A.D.3d 387, 387 (1st Dept. 1997); People v. Guin. 243 A.D.2d 649, 650 (2d Dept. 1997)). Perhaps that explains why respondent — though citing these cases elsewhere, see RB at 33 — does not count them. Simple fairness, however, dictates that relief cannot be entertained solely for the People’s benefit. In any event, People v. Broome. 151 A.D.2d 995, 995 (4th Dept. 1989), reversed on the defendant’s appeal, including on a finding that the court violated the law of the case in reversing a colleague’s Wade determination. Finally, though it ruled against the defendant in Evans, this Court recognized as cognizable his claim for relief — that law of the case had 2(...continued) “later in the trial,” respondent claims that “[n]o good reason exists why a substitute judge should not enjoy the same discretion.” RB at 32. Appellant agrees that law of the case has no application to a court’s revisiting its own rulings, see AB at 26 n.4, since such revisiting does not place a judge “in appellate review of his [co-equal] predecessor’s actions,” the doctrine’s central concern, United States v. Sisk. 629 F.2d 1174, 1179 (6th Cir. 1980). The law, however, does not transform a substitute judge into that judge’s predecessor. Only Justice Pickholz could have revisited her 911-call ruling. 7 “stripped” the successor judge of the discretion to revisit the prior Sandoval ruling at issue. Evans. 94 N.Y.2d at 505. The Court manifested its recognition in finding “no basis to identify an abuse of discretion on this record.” Id. at 506. On the record here, Justice Allen’s abuse of discretion should be beyond debate. He possessed none. 8 B. The record did not support the necessary excited-utterance finding that the declarant personally witnessed the shooting. Aside from defending the substitute judge’s right to make the ruling, respondent would also defend the substantive determination that the bystander’s declaration qualified as an excited utterance. Respondent thus contends that the circumstances surrounding the declaration warranted the requisite determination that the bystander had personally observed the shooting. See People v. Fratello. 92 N.Y.2d 565, 571 (1998). Embracing the decision below, respondent emphasizes as “critical” its finding on this score that “the statement was made immediately after the shooting.” RB at 39; A2-3. But the record, notwithstanding respondent’s interpretative and other efforts, does not support the finding. Nor do respondent’s residual arguments. First, though respondent wishes otherwise, see RB at 39-40, it cannot erase the prosecution’s verbal and written offers of proof about the call’s timing and length. Made to the three judges who ruled on the call — Merchan, Pickholz, and Allen — the prosecution’s representations repeatedly asserted that the call was placed within three minutes of the shooting, and cited in support “NYPD records” that the call “is at 2:32 p.m.” AB at 32, citing A16, 31, 61, 64, 65. Integral to a comprehensive and deliberative submission by an officer of the court, and one in control of the relevant evidence, these 9 considered representations should bind the People now. In any case, contrary to respondent’s claim, the testimony of Latisha Ortiz, an NYPD records-custodian, did not “clarify[] the timeline.” RB at 40. Asked by the prosecutor whether the call was placed “about 2:30 or 2:29 p.m.,” Ortiz answered “Yes, sir.” A326. Respondent posits that, by its “natural understanding,” “the prosecutor initially gave an approximate time, rounded to the nearest 10 minute interval, . . . then became more specific and provided the exact time of ‘2:29 p.m.’ — which was the benchmark of Ortiz’s ‘Yes’ response.” RB at 39. Appellant would counter that another, equally “natural,” understanding of the prosecutor’s question was that either time posited in the question could, if correct, supply the basis for a “yes” answer. The debate about “natural understanding” aside, respondent’s elaborate attempts at interpreting and qualifying the prosecution’s question and Ortiz’s response proves them anything but “clarifying.” No wonder that, in opposing counsel’s mistrial motion when the 911 call was admitted into evidence on the heels of Ortiz’s testimony, the prosecutor specifically relied on his written submission — not Ortiz’s “timeline” testimony (A335-36). Respondent’s resort to the timing of Detective Borst’s arrival on the scene fares no better. See RB at 40-41. Respondent asserts that the 911 call 10 had to have been placed before the detective’s arrival, which occurred at 2:31 p.m. Borst, however, said only that, at “around 2:30 p.m.,” he responded to a “[r]adio run ... for shots fired” at the location, that “[m]ultiple calls were coming over the radio, [and] [t]hey said they had multiple calls of shots fired.” A343-44. His testimony did not show, or suggest, that any of these calls was the 911 call in question. Respondent’s attempts to “clarify” the timeline — i.e, shorten it from the People’s three-minute proffer — fail. But even had they succeeded, respondent’s preferred “minute and a half’ timeline, see RB at 39, would not qualify as immediate either. More to the point, ninety seconds would not establish or compel a reasonable inference that the unidentified declarant on the 911 call witnessed the shooting. Many words can be spoken and exchanged in ninety seconds. Consider television commercials. Consider the daily lead-in segment to the CBS This Morning news show: “Your world in 90 seconds.” Consider that this Court frequently hears rebuttal arguments of such duration. Though respondent would baselessly disparage the comments of Justice Merchan and Justice Pickholz, see RB at 43, ninety seconds would have afforded the unidentified declarant sufficient opportunity to merely “parrot[] what he was told” by 11 someone else nearby. It obviously also would have given him ample time to have merely relayed prior rumors heard on the “street.” (Considering that appellant lived in the neighborhood of the shooting, see RB at 8, 16, 49, the potential for such “street” talk or animus by other neighborhood denizens did not strain the imagination.) And ninety seconds would have afforded the declarant sufficient time to join the crowd that gathered at the scene in the shooting’s aftermath — as the prosecutor described it, people “‘shown on video surveillance footage out and about on St. Nicholas Terrace [who] had made their way to the corner where the shooting took place’” (A84). Respondent acknowledges that “the video evidence cannot pinpoint the declarant.” RB at 42. Despite this understated concession, respondent asserts that “someone at or near the site of the shooting would have had an excellent opportunity to observe the perpetrator.” RB at 41. That may be so — but this question-begging observation avails respondent nothing. Taking another tack, respondent claims that appellant’s fingerprint, found on the car containing the shooter, corroborated the “substance” of the bystander’s declaration, which made “reasonably inferable that the declaration was based on personal observation.” RB at 44. Comparison of the cases on which respondent relies for this argument renders it useless here. Thus, in 12 Fratello. 92 N.Y.2d 565, this Court noted that the detail in the declarant’s statement about the particular make of the “crime vehicle” was “confirmed by the hubcaps found at the scene.” Id at 571. This evidence, the Court concluded, permitted the reasonable inference that the declarant (the crime victim) “had a sufficient opportunity to observe who attacked him and to identify defendant as one of the shooters.” Id. Similarly, in People v. Vasquez. 214 A.D.2d 93 (1st Dept. 1995), the appellate court also looked to the content of the declarant’s statement — itself ascribing ongoing conduct, “‘he’s got the gun’” — and found it had been contemporaneously confirmed by police, who observed the defendant “manipulating what appeared to be a firearm . . . immediately before and after the . . . declaration.” Id. at 103-04. Here, by contrast, the declarant’s statement, put in the past tense, consisted of nothing but a conclusion that specified no conduct whatsover. It therefore provided nothing susceptible of corroboration that the declarant had personally observed the crime. Last, respondent claims that the court’s charge to the jury about the statement “enhanced” the “propriety of the ruling admitting the evidence.” RB at 45. Respondent does not — and cannot- explain how this could be so. See RB at 45-46. In fact, respondent accepts that the trial court, not the jury, was 13 charged with the responsibility of determining the statement’s admissibility. See People v. Johnson. 1 N.Y.3d 302, 306 (2003); Fratello. 92 N.Y.2d at 571; RB at 46. In fact, no jury charge could render admissible — “enhance[]” — an inadmissible hearsay declaration. 14 The wrongful admission of the bystander’s statement triggers constitutional harmless-error analysis, which respondent makes no effort to defeat on the merits: in any case, the error may not be deemed C. harmless under any standard. Claiming that any error in admitting the bystander’s statement “would have been harmless,” respondent makes no attempt to defend it under a constitutional harmless-error standard, instead deeming baseless appellant’s use of such analysis. RB at 46-47. Respondent’s efforts at avoidance fail. First, respondent says that appellant does not “affirmatively cite the due process clause as a basis for his appellate claim.” RB at 47. Yes, appellant does — specifically invoking it as triggering the constitutional harmless-error standard. See AB at 36-37. Second, respondent says that defense counsel’s “mere isolated reference to a ‘fair trial’” “did not transform defendant’s evidentiary argument into a constitutional due process claim.” RB at 47. Respondent would avoid counsel’s complaints that immediately preceded and led up to his “fair trial” claim: that the complete lack of evidence that the bystander had witnessed the shooting and that he “could have been coming from anywhere” “invites the jury to speculat[e].” A332-33. Respondent also would not acknowledge appellant’s citation of authority, including from this Court, recognizing a defendant’s due-process right to be convicted only upon reliable evidence and recognizing as well that counsel’s arguments can 15 obviously call to mind their constitutional bases without the need for counsel’s citing the constitutional provisions themselves. See AB at 36-37. Respondent’s lone citation on this issue — to People v. Hernandez. 28 N.Y.3d 1056 (2016), see RB at 47 — does it no good. The central issue on that excited-utterance appeal was whether the declarant — the child-abuse victim — had made the utterances while still under the stress of the event. Their fundamental provenance and reliability was not at issue. Nor, then, was the applicability of anything other than nonconstitutional harmless-error analysis. See 28 N.Y.3dat 1057-58. But even should this Court employ nonconstitutional analysis here, reversal is still required. Respondent quarrels with appellant over the strength of and inferences to be drawn from the evidence (apart from the 911 call). See RB at 48-50; AB at 38-39. To be sure, the fingerprint and cell-site evidence indicated that appellant and Hamilton (the getaway driver) knew each other. But even respondent’s own discussion accepts the lack of conclusive evidence as to when appellant’s print had been left on Hamilton’s car, and acknowledges as well that the cell-site evidence did not establish a phone’s exact location. See RB at 48-50 & n.17. Nor can respondent’s own discussion of the varying descriptions of the shooter (see RB at 50-51) blink the fact that the two 16 shooting victims who testified did not identify appellant as their assailant. Respondent also does not dispute that appellant’s going 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. See AB at 39; RB at 51. At the same time, respondent says nothing at all about the lack of appellant’s DNA on the clothing found in Hamilton’s car — where the shooter was suspected of having shed his clothing before fleeing the vehicle after it was stopped by police. Respondent also stays silent about the absence of any proof that appellant possessed a motive for the shooting. Appellant therefore renews his claim that the evidence precludes any finding of harmlessness — again invoking People v. Kello. 96 N.Y.2d 740 (2001), as a highly apt benchmark. See AB at 39. In finding the erroneous admission of 911 tapes there harmless under a nonconstitutional standard, this Court noted that 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.” Id. at 744. In fact, the tapes “arguably” provided evidence that the defense had “attempted to exploit.” “It therefore was far from probable that the jury’s acceptance of [the 17 eyewitnesses’] credibility turned on the 911 tapes.” Id The Court thus concluded not only that the proof of guilt was overwhelming but that there was “no significant probability that the jury would have acquitted had the proscribed evidence not been introduced.” Id. Here, by contrast, the evidence of guilt was far from unequivocal. The bystander’s accusation was undeniably prejudicial. And the prosecutor’s repeated and emphatic use of it in summation effectively invited the jury to resolve any doubts and convict on the accusation alone. As the prosecutor put it during one of his iterations: [T]hat 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). Last, appellant also renews his claim that the jury’s failure to convict at the first trial, where the statement was absent, supports a harmful-error determination. See AB at 41-42. Here, respondent takes no issue with the cases on which appellant relies but counters with People v, Seit. 86 N.Y.2d 92 (1995) — which, according to respondent, found the “admission of a 911 call harmless . . . even though [the] first trial had resulted in [a] hung jury.” RB at 51. Seit. however, involved the wrongful preclusion of a 911 call on the defense case. See 86 N.Y.2d at 95-97. Finding preclusion harmless, the majority trained on other evidence that effectively filled the evidentiary gap for 18 the defense. The majority also found speculative the dissent’s contention that the call’s admission at the first trial had prompted the hung jury. Id. at 97 n.3. Appellant acknowledges that the effect on the outcome of the presence or preclusion of defense-favorable evidence may be difficult to gauge. But the effect of prosecution-favorable offending evidence — both its absence and its pernicious presence — is less susceptible of speculation. The statements of Justice Merchan — who presided over the first trial — made the point concrete here. Addressing the parties after the mistrial, he encouraged a plea, specifically telling defense counsel that the retrial judge might rule differently on the 911 call. See A8. No wonder that the trial prosecutor incorporated these remarks in his written submission to Justice Pickholz and Justice Allen, and fought so hard to gain the offending statement’s admission. As for the other case respondent cites, United States v. Newton. 369 F.3d 659 (2d Cir. 2004), see RB at 52, it found that the prior hung jury in the case before it did not factor into the harmless-error calculus, because the defendant’s guilt of the crime — possession of a firearm — had been conclusively established: He had been found in possession during a search by the government. See id. at 680. Even so, the court affirmed our salient point: “A prior hung jury may support a finding that an error committed with respect 19 to a very close issue during a retrial is not harmless.” Id. (internal citations omitted). Though appellant would substitute “critical” for “close,” that was the case here. 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 September 22, 2017 20 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 reply brief was prepared in Wordperfect®, using a 14-point Times New Roman font, and totaled 3943 words. Dated: New York, New York September 22, 2017 101 Susan H. Salomon 1A