The People, Respondent,v.Twanek Cummings, Appellant.BriefN.Y.May 24, 2017APL-2017-00063 To be argued by ROSS D. MAZER (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TWANEK CUMMINGS, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 SYLVIA WERTHEIMER ROSS D. MAZER ASSISTANT DISTRICT ATTORNEYS Of Counsel AUGUST 25, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL The People’s Case............................................................................................ 5 The Defense Case .......................................................................................... 21 POINT THE RECORD SUPPORTS THE LOWER COURTS’ FINDINGS THAT IT WAS REASONABLY INFERABLE THAT THE UNIDENTIFIED DECLARANT PERSONALLY OBSERVED THE SHOOTING, AND THE DECLARANT’S STATEMENT WAS PROPERLY ADMITTED AS AN EXCITED UTTERANCE. ......................................................................... 22 A. The Relevant Record ............................................................................... 23 B. Justice Allen had authority to reconsider Justice Pickholz’s evidentiary ruling. ....................................................................... 28 C. The unidentified declarant’s statement was admissible as an excited utterance. ...................................................................................... 35 D. Any error was harmless. .......................................................................... 46 CONCLUSION ................................................................................................................... 54 -ii- TABLE OF AUTHORITIES FEDERAL CASES Arizona v. California, 460 U.S. 605 (1983) ........................................................................ 29 Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995) .............................................................. 41 Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988) ......................... 32 Crawford v. Washington, 541 U.S. 36 (2004) ....................................................... 22-23, 47 Luce v. United States, 469 U.S. 38 (1984) ......................................................................... 40 Messenger v. Anderson, 225 U.S. 436 (1912) ................................................................... 29 Miller v. Crown Amusements, Inc., 821 F. Supp. 703 (S.D. Ga. 1993) ......................... 38 Ohler v. United States, 529 U.S. 753 (2000) ..................................................................... 40 United States v. Angelo, 87 Fed. App’x 205 (2d Cir. 2004) ............................................ 30 United States v. Birney, 686 F.2d 102 (2d Cir. 1982) ....................................................... 30 United States v. Newton, 369 F.3d 659 (2d Cir. 2004) .................................................... 52 United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459 (S.D.N.Y. 2017) ................................................................................................................................. 40 United States v. Wade, 512 Fed. App’x 11 (2d Cir. 2013) ............................................... 30 Wright v. Cayan, 817 F.2d 999 (2d Cir. 1987) .................................................................. 34 STATE CASES Joy v. Kutzuk, 99 A.D.3d 1049 (3d Dep’t 2012) .............................................................. 34 Mosher-Simons v. County of Allegany, 99 N.Y.2d 214 (2002) ...................................... 34 People v. Amaya, 103 A.D.3d 568 (1st Dep’t 2013) ........................................................ 33 People v. Broome, 151 A.D.2d 995 (4th Dep’t 1989) ..................................................... 33 People v. Brown, 70 N.Y.2d 513 (1987) ............................................................................ 35 -iii- People v. Brown, 72 A.D.3d 445 (1st Dep’t 2010) .......................................................... 37 People v. Brown, 80 N.Y.2d 729 (1993) ............................................................................ 37 People v. Caballero, 137 A.D.3d 929 (2d Dep’t 2016) .................................................... 35 People v. Cabreja, 243 A.D.2d 387 (1st Dep’t 1997) ....................................................... 33 People v. Cantave, 21 N.Y.3d 374 (2013) ................................................................... 35, 42 People v. Carmona, 82 N.Y.2d 603 (1993) ....................................................................... 40 People v. Carroll, 95 N.Y.2d 375 (2000) ........................................................................... 31 People v. Caviness, 38 N.Y.2d 227 (1975) ........................................................................ 37 People v. Coleman, 16 A.D.3d 254 (1st Dep’t 2005) ....................................................... 37 People v. Cotto, 92 N.Y.2d 68 (1998) ................................................................................ 36 People v. Crimmins, 36 N.Y.2d 230 (1975) .................................................................. 5, 48 People v. Cummings, 145 A.D.3d 490 (1st Dep’t 2016) ................................................ 4-5 People v. Davis, 214 A.D.2d 583 (2d Dep’t 1995) ........................................................... 33 People v. Edwards, 47 N.Y.2d 493 (1979) ........................................................................ 35 People v. Evans, 94 N.Y.2d 499 (2000) .................................................................... 4, 29-32 People v. Fratello, 92 N.Y.2d 565 (1998) .......................................................... 5, 35-36, 44 People v. Gomez, 67 A.D.3d 927 (2d Dep’t 2009) .......................................................... 33 People v. Guin, 243 A.D.2d 649 (2d Dep’t 1997) ............................................................ 33 People v. Hampton, 21 N.Y.3d 277 (2013) .................................................................. 33-34 People v. Hernandez, 28 N.Y.3d 1056 (2016) ............................................................ 30, 47 People v. James, 93 N.Y.2d 620 (1999) ............................................................................. 46 People v. Johnson, 1 N.Y.3d 302 (2003) ........................................................................... 35 People v. Johnson, 301 A.D.2d 462 (1st Dep’t 2003) ...................................................... 33 -iv- People v. Malizia, 62 N.Y.2d 755 (1984) ........................................................................... 29 People v. McLeod, 279 A.D.2d 372 (1st Dep’t 2001) ...................................................... 33 People v. Nieves, 67 N.Y.2d 125 (1986).......................................................... 29, 32, 35-36 People v. Price, 2017 N.Y. Slip Op. 05174, 2017 WL 2742214 (June 27, 2017) ................................................................................................................................. 46 People v. Richardson, 300 A.D.2d 13 (1st Dep’t 2002) .................................................. 44 People v. Seit, 86 N.Y.2d 92 (1995) ................................................................................... 51 People v. Vasquez, 214 A.D.2d 93 (1st Dep’t 1995).................................................. 37, 44 Post v. Post, 141 A.D.2d 518 (2d Dep’t 1988) ................................................................. 34 STATE STATUTES CPL 1.20(15) ......................................................................................................................... 32 CPL 1.20(16) ......................................................................................................................... 32 Judiciary Law § 21............................................................................................................ 33-34 Penal Law § 110.00 ............................................................................................................. 1, 3 Penal Law § 120.05(2) ............................................................................................................ 1 Penal Law § 120.10(1) ............................................................................................................ 1 Penal Law § 125.25(1) ............................................................................................................ 3 Penal Law § 205.55 ................................................................................................................. 4 Penal Law § 265.03(1)(b) ....................................................................................................... 1 Penal Law § 265.03(3) ............................................................................................................ 1 OTHER AUTHORITIES 2 McCormick on Evidence § 272 (7th ed.) ....................................................................... 37 6 Wigmore, Evidence § 1751 (Chadbourn rev. ed. 1976) ............................................... 35 CJI2d(NY) (Identification – One Witness) ................................................................. 27, 45 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TWANEK CUMMINGS, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Eugene M. Fahey, Associate Judge of this Court, defendant Twanek Cummings appeals from an order of the Appellate Division, First Department, entered on December 8, 2016. That order unanimously affirmed a judgment of the Supreme Court, New York County (Ruth Pickholz, J., at voir dire; Bruce Allen, J., at trial), rendered on January 16, 2014, convicting defendant, after a jury trial, of Assault in the First Degree (Penal Law § 120.10[1]), and two counts each of Attempted Assault in the First Degree (Penal Law §§ 110.00/120.10[1]), Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b] and [3]), and Assault in the Second Degree (Penal Law § 120.05[2]). The court sentenced defendant, as a second felony offender, to a determinate term of 18 years in prison on the first-degree assault count and to lesser -2- concurrent prison terms on the other counts. Defendant is currently incarcerated pursuant to that judgment. On March 19, 2012, at 2:28 p.m., defendant shot at three men who were standing, chatting in front of a grocery store on the corner of 129th Street and St. Nicholas Terrace in Manhattan. Defendant approached the corner after alighting from the front passenger seat of an SUV that double-parked halfway down the block. As defendant got out of the SUV, he touched the door-jamb and left a fingerprint. Once at the corner, defendant pointed a gun at the head of Demetrius Relaford, who smacked the gun away so that defendant shot him in the left hand; as Relaford lay on the ground, defendant shot him a second time in the left leg. Next, defendant targeted Rodney Phillips; defendant’s first shot narrowly missed Phillips’s stomach, but his second shot struck Phillips’s left leg. The third man, Rundell Allen, bent down to help Phillips, and defendant shot him in the right buttock. Defendant then hurried back up the block and jumped into the van as it sped off. All the while, pedestrians were nearby. About a minute after the shooting, at 2:29 p.m., Phillips called 911. Before Phillips even could ask the dispatcher to send help, an unidentified man heard in the background of the 911 call exclaimed to someone he knew, “Yo, it was Twanek, man! It was Twanek, man!” When the police arrived, a woman on the street gave them a partial license plate number of the SUV. A patrol officer who heard the resulting radio broadcast spotted a vehicle matching the description and pursued it into the -3- parking lot of the Polo Grounds housing complex on 155th Street. The pursuing officer arrested the driver, Gregory Hamilton, but defendant escaped in the confusion. Defendant fled to Virginia. He returned to New York City four days later. Finally, on June 1, 2012, the warrant squad found defendant in the Bronx. Defendant began to run when he spotted the police but was arrested after a four-block chase. By New York County Indictment Number 2390/2012, filed on June 18, 2012, a grand jury charged defendant with three counts of Attempted Murder in the Second Degree (Penal Law §§ 110/125.25[1]), one count of Assault in the First Degree, and two counts each of Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Assault in the Second Degree. On April 15, 2013, defendant proceeded to trial before the Honorable Juan Merchan and a jury. On May 9, 2013, Justice Merchan declared a mistrial after the jury failed to reach a verdict. On October 3, 2013, the case went to retrial before the Honorable Ruth Pickholz and a jury. On October 10, 2013, while jury selection still was underway, Justice Pickholz suffered a medical emergency, and the Honorable Bruce Allen replaced her. On October 28, 2013, the jury convicted defendant of the assault and -4- weapon-possession counts. It acquitted him of the attempted murder counts. On January 16, 2014, the court sentenced defendant as noted above.1 On appeal to the Appellate Division, First Department, defendant challenged the admission of the unidentified declarant’s statement in the background of the 911 call, which Justice Allen admitted as an excited utterance. In particular, defendant argued that Justice Allen violated the law of the case doctrine when he reconsidered Justice Pickholz’s earlier ruling that the statement was not admissible. Defendant also argued that, as a substantive matter, the statement did not qualify as an excited utterance because no evidence showed that the declarant personally observed the shooting. In an order dated December 8, 2016, the Appellate Division rejected defendant’s claims and unanimously affirmed the conviction. People v. Cummings, 145 A.D.3d 490 (1st Dep’t 2016). The court found that, although a “contrary ruling on the excited utterance issue had been made by a previous judge, who presided over part of jury selection,” the ruling was “evidentiary” and therefore “did not fall within the ambit of th[e law of the case] doctrine.” Id. at 491 (citing People v. Evans, 94 N.Y.2d 499 [2000]). Further, the court held that Justice Allen had providently admitted the unidentified declarant’s statement as an excited utterance. The Appellate 1 On February 24, 2014, Gregory Hamilton pled guilty to one count of Hindering Prosecution in the Third Degree (Penal Law § 205.55) and was sentenced to time served. -5- Division explained 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.” Id. (citing People v. Fratello, 92 N.Y.2d 565 [1998]). Alternatively, the court concluded that any error would have been harmless. Id. (citing People v. Crimmins, 36 N.Y.2d 230 [1975]). On this appeal, defendant renews the claims that he raised in the Appellate Division. Recognizing the limits on this Court’s jurisdiction, he recalibrates his claim that the declaration should not have been admitted as an excited utterance and contends that the lower courts’ findings that it was reasonably inferable that the declarant personally observed the shooting lack record support. THE EVIDENCE AT TRIAL The People’s Case A gray or silver minivan drives past the three victims and double-parks. The front passenger gets out, approaches the victims, and opens fire. On the afternoon of March 19, 2012, shortly before 2:28 p.m., DEMETRIUS RELAFORD, his cousin RODNEY PHILLIPS, and one of Phillips’s best friends, Rundell Allen, stood outside a small grocery store on the northwest corner of 129th Street and St. Nicholas Terrace in Manhattan “talking, laughing [and] joking” (Phillips: -6- A476-80;2 Relaford: A653-56, 675).3 Phillips, who was standing closest to the intersection, saw a gray or silver minivan drive past the grocery store on 129th Street and turn right onto St. Nicholas Terrace. Phillips noticed the front passenger “leaning back and forth to see around the driver” (Phillips: A480-83, 500-01). Relaford and Allen were standing to the west of Phillips along 129th Street, but a red “freight van” blocked their view of the street (Phillips: A480-85). Phillips “said something” to Relaford and Allen about what he had just seen, but they told him that he was just imagining it (Phillips: A480, 484, 501). Meanwhile, the minivan drove halfway down the block and double-parked on St. Nicholas Terrace between 128th and 129th Streets (Phillips: A497, 501). The front passenger alighted and walked “quickly” back to the corner of 129th Street (Phillips: A487, 497). Phillips noticed that he “look[ed] mad” (Phillips: A480, 487-88). At first, the man “walked past” Relaford, Phillips, and Allen as if he were going into the grocery store, but then he “turned around” and “pulled out [a] gun” (Phillips: A481, 488). Relaford felt someone “c[o]me across [his] left shoulder and basically ask[ ] [him] a question.” Relaford “really wasn’t paying attention.” He 2 Parenthetical references preceded by “A” are to the Appendix. Parenthetical references preceded by “SA” are to the Supplemental Appendix filed by respondent. “PX” stands for People’s Exhibit. 3 Phillips testified pursuant to a subpoena. He was 26 years old at trial and had a job related to shipping and packaging. In March 2011, he had been convicted of a drug sale (Phillips: A474-76). Relaford, who was 31 years old at trial, had two convictions for drug sale (Relaford: A673). -7- “didn’t know what the question was [and] basically kind of brushed it off” (Relaford: A656-57, 666). Events then moved quickly. The gunman pointed the gun at Relaford’s head, and as Relaford raised his hand to protect his face, he accidently “smacked” the gun as it fired (Phillips: A481, 489; Relaford: A657-59). The bullet struck Relaford in his left hand near the wrist. As Relaford lay on the ground, the gunman shot him a second time in the leg (Phillips: A481; Relaford: A657-60). Then, the shooter fired at Phillips and Allen. The first bullet “went past Phillips’s stomach and hit [an] ice box” behind him, but the next one struck Phillips in the leg (Phillips: A481, 489-90). As Allen bent down to help Phillips, the gunman shot him in the buttocks (Phillips: A481, 491-92). Then, the gunman hurried back to the minivan, which sped away (Phillips: A481, 492). Surveillance cameras located at 25 St. Nicholas Terrace, 35 St. Nicholas Terrace, and 408 West 129th Street captured the prelude to the shooting (PXs: 58-59 [video from 25 & 35 St. Nicholas Terrace], 57 [clips from PXs 58-59], 60 [video from 408 West 129th Street], 57A [clips from PXs 57, 59, & 60]). The video from 408 West 129th Street showed a gray or silver minivan drive east on 129th Street and turn right onto St. Nicholas Terrace. The videos from 25 and 35 St. Nicholas Terrace showed that, after the minivan turned right, it drove halfway down the block and double-parked. The shooter got out of the car. As captured on the videos, after the shooter got out, he touched the outer passenger-side door near the door-jamb as he -8- closed it. Then, the shooter walked quickly to the corner of 129th Street (PXs: 57, 57A, 60). The videos also captured some of the shooting and its aftermath. At the very edge of the video from the 408 West 129th Street camera, the shooter is seen to walk behind a van and fire a gun multiple times (PXs: 57A, 60). The shooting began at about 2:28 p.m. and 10 seconds (PXs: 57, 57A).4 After firing, the shooter turned the corner back onto St. Nicholas Terrace. Video from the cameras on that street showed that, at about 2:28 p.m. and 35 seconds, the shooter bounded into the minivan as it sped away (PXs: 57, 57A). Although the videos do not provide a clear view of the intersection of 129th Street and St. Nicholas Terrace where the shooting occurred, several bystanders are visible in the immediate area either across the street by an entrance to St. Nicholas Park or within feet of the corner itself (PXs: 57, 57A, 60). As described at trial by Phillips and Relaford, the shooter was a “light skinned black” man who appeared to be a “younger guy” (Phillips: A490-91; Relaford: A667- 70). He had a “red beard and freckles,” and he wore low-fitting black jeans, a black baseball cap, and a gray hoodie with the hood up over the cap (Phillips: A486-88; Relaford: A665; PX: 57). Height-wise, the shooter was a “lot shorter” than Relaford’s 4 The date and time stamp on the surveillance videos from 25 and 35 St. Nicholas Terrace were accurate (JEFFREY MCAVOY [private investigator for Secure Watch 24, a camera company]: A314). -9- 6’3”, coming up to about Relaford’s chin (Relaford: A667-69). According to the information defendant provided when he applied for his nondriver’s identification card at the DMV in 2010, defendant was 5’8” tall and would have been 21 years old at the time of the shooting (REBECCA PEREZ [record keeper at DMV]: A745-49; PXs: 69A-B [defendant’s ID card and driving abstract]).5 Phillips immediately calls 911. In the background of the 911 call, an unidentified bystander twice exclaims, “It was Twanek!” The police obtain a partial license plate description for the minivan. At 2:29 p.m., immediately after the shooting, Phillips called 911 (Phillips: A482; LATASHA ORTIZ [police custodian of records]: A326). The 911 operator responded, “Where’s your emergency?” and when she did not receive an answer, followed up by asking, “Hello?” After four seconds or so, a distraught-sounding Relaford is heard to yell, “My fucking leg!” “I can’t feel my leg!” and “Oh shit!” At about 20 seconds into the call, an unidentified man close enough to be overheard in the background of the call exclaimed, “Yo, it was Twanek, man! It was Twanek, man!” Other barely audible voices are also heard in the background, as the 911 operator repeats, “Hello?” About 35 seconds into the call, Phillips spoke and told the 5 The People also introduced screenshots of the shooter’s image from the surveillance videotapes alongside a subsequently obtained recent picture of defendant and others that investigators recovered from the cell phone of Gilliam Cordero. In the picture, just as in the surveillance video, defendant is wearing baggy dark pants and a gray hooded sweatshirt (JOHN FORAMES, [computer forensic analyst at Manhattan D.A.’s Office]: A759-60; Stipulation: A517; PXs: 53 [Cordero’s phone], 53A [picture], 54, 59A & 63A-HHH [screenshots from surveillance video]). -10- operator that three men had been shot at 129th Street and St. Nicholas Terrace, and that he himself had been shot in the leg. Phillips stated that his “cousin” had been shot in the leg as well. The operator asked if Phillips could describe the shooter, but he replied, “I don’t even know, can you send somebody now . . . ?” The operator advised Phillips to “hold on” while she got “EMS on the line.” The call lasted about one minute and 30 seconds (PX: 47A [911 call]).6 At about 2:30 p.m., Detective JOHN BORST was on motorcycle patrol near St. Nicholas Park and 133rd Street, approximately three blocks from the shooting site, when he received a radio report about the shooting. Borst proceeded “directly” to 129th Street and St. Nicholas Terrace (Borst: A343-44, 357). From a block away, near 130th Street, he could see that a “large crowd” had formed at the shooting site (Borst: A344, 354; see Phillips: A482; Relaford: A661). Detective Borst was the first police officer on the scene (Borst: A345, 351). On the surveillance video from 25 St. Nicholas Terrace, Borst’s motorcycle is seen to arrive just after 2:31 p.m., three minutes after the shooting (PXs: 57, 57A). Borst immediately observed that Relaford was “laid out on the ground in an L shape” with a “couple of holes in his leg.” An off-duty medic who lived nearby and happened to have been walking his dog when the shooting occurred, was attending to him (Borst: A345-46, 350; Phillips: A482). Borst knew Relaford from a previous, 6 A copy of the 911 recording will be submitted to this Court under separate cover. -11- drug-related arrest. He tried to “prod” Relaford to describe the shooter, and Relaford “eventually” offered that the shooter was a “short,” black man (Borst: A347, 353).7 Detective HENRY VANHEEMSTEDEOBELT [hereinafter “Detective Obelt”], Police Officer HAROLD NUNEZ, and other emergency personnel also responded to the scene. They, too, observed a crowd that was “growing by the second” (Nunez: A225; Obelt: A276).8 Nunez noted, in particular, that “several people” were “just at the corner” of 129th and St. Nicholas Terrace. At trial, he testified that they “could have been passer[s]by” or “could have been there before the shooting” (Nunez: A225). Relaford, Phillips, and Allen were transported by ambulance to Harlem Hospital (Borst: A352; Phillips: A494-95; Relaford: A662). Officers tried to elicit additional information from people in the crowd about the shooting, but “nobody wanted . . . to be seen talking to” the police (Borst: A357-58). Still, an unidentified woman in the crowd “whispered” to Nunez that the minivan’s license plate included the letters “FTM” (Nunez: A226-27). 7 Although Borst noted the shooter’s height on the Omni Form Complaint as 5’3,” he testified that Relaford did not provide that measurement. Borst explained, “I must have talked to somebody in the crowd. I know a lot of people up there . . . Somebody must have pointed out a height or something” (Borst: A359). 8 Surveillance video showed three police cars arrive about 30 seconds after Borst, or about three and a half minutes after the shooting (PXs: 57A, 60). -12- A police officer pulls over the minivan and arrests the driver, Gregory Hamilton, but the shooter manages to escape. Police Officer PETRA ANDERSON, a traffic safety officer, was on patrol in a marked car around 151st Street and St. Nicholas Terrace, when she heard a radio transmission that a “gray minivan” with the partial license plate “FTM” was wanted in connection with a recent shooting at 129th Street and St. Nicholas Terrace (Anderson: A233-36, 252-54). When Anderson reached the intersection of 154th Street and Bradhurst Avenue, she passed a vehicle that fit the broadcast description, headed in the opposite direction (Anderson: A238, 252-53). She made a U-turn and activated her car’s police lights and siren, but the minivan crossed the intersection at 155th Street and entered the parking lot of the Polo Grounds public housing complex. Anderson followed the minivan as it zigzagged into the lot, and pulled up behind it (Anderson: A238-39). Both of the minivan’s front doors opened; the driver, later identified as Gregory Hamilton, and the passenger both got out near a group of four to seven people who were standing on the sidewalk, including Hamilton’s wife, Dorothy Sorey (Anderson: A238-45, 264). After the passenger glanced back at Anderson, he “cross[ed] in front of the gray minivan,” “stepped up on the sidewalk into the crowd and began to go off down the pathway to the Polo Grounds” (Anderson: A239-40, 259). Anderson stayed with Hamilton, who was arrested (A239-44). -13- When the passenger got out of the minivan, Anderson could “see his profile, head to toe.” She also had a “brief” but “full frontal” view of the passenger’s face when he glanced back at her (Anderson: A266-67). The passenger was a light-skinned black man, between 16 and 20 years old, with a “medium frame.” He had “curly hair that was kind of thick,” like it “just had braids taken out.” The passenger was wearing “army fatigue cargo pants” and a multi-colored plaid shirt with a design on it, and carried a solid-color garment “draped over his right arm.” He also wore a black baseball cap with a White Sox logo on it (Anderson: A240-42, 259-63). By the time backup arrived, the passenger had escaped “far back into the Polo Grounds.” The subsequent testing of two pairs of black jeans, a white thermal undershirt, and a Poland Spring water bottle (Obelt: A307-08; Krutys: A389-90, 406, 416; Martinez: A462-63) removed from the minivan did not reveal defendant’s DNA (ROBERT HINDLE [criminalist]: A538-45). The police discover defendant’s fingerprint on the front passenger-side door of the minivan, where surveillance video showed the shooter had touched the door. The next day, Police Officer CHRISTOPHER KRUTYS of the Evidence Collection Unit and Detectives Obelt and ANGEL MARTINEZ processed the minivan, which was a 2012 gray or silver Honda Odyssey SUV (Obelt: A282-83, 308; Krutys: A381; Martinez: A459-60). First, the officers watched surveillance video of the shooting, which showed “the suspect touching the front passenger-side door” near the door-jamb, the area where “the passenger-side door ends and the . . . middle -14- door would start.” Krutys dusted the front passenger-side door for fingerprints and lifted one usable print from the door-jamb area next to the handle (Krutys: A383-87, 411-14; Martinez: A460; PXs: 50A-F [prints]; see PX: 57). Detective GERALD REX subsequently ran the print through a police database, which identified it as defendant’s right index fingerprint (Rex: A642-43; PX: 50B). Rex subsequently compared the fingerprint recovered from the minivan with defendant’s fingerprint taken after arrest and confirmed that they were “identical” (Rex: A644). A fingerprint consists of water from a person’s sweat pores mixed with some oils. There is no way to determine with “any degree of scientific certainty” when a fingerprint was created. How long a print remains on a surface depends on various factors: for example, a print will evaporate in the heat and wash away in the rain. (Krutys: A408-10; Rex: A636, 649-50). On March 19, 2012, the high temperature in New York City was 74 degrees Fahrenheit. The most recent rainfall had occurred three days earlier, on March 16 (PX: 108 [weather report]). Signals from defendant’s and Hamilton’s phones show that they were together and in the vicinity of 129th Street andS St. Nicholas Terrace shortly before the shooting. After the shooting, their phones generated signals leading north to the Polo Grounds. Before and after the shooting, defendant’s cell phone, ending in 9948, and Hamilton’s cell phone, ending in 3283, generated signals that made it possible to track -15- their locations.9 TANYA DE VULPILLIERES, a senior cell site analyst at the Manhattan District Attorney’s Office, analyzed the cell site data and prepared maps that plotted the locations of the calls to and from defendant’s and Hamilton’s phones (De Vulpillieres: A697-706; PXs: 3-10 [cell site maps]; PXs: 70 & 76 [call detail for defendant], 71 [call detail for Hamilton]). DEAN DELITTA, an expert witness in call routing, cell site data, and cellular call record analysis, prepared a PowerPoint presentation based on the same information (DeLitta: A847-59; PXs: 85A [PowerPoint], 85B [call detail and cell site records]). When a cell phone is on, it communicates with between one and three cell towers or sites. If the cell phone makes or receives a call, the network routes the call to the “primary” tower, which is the tower that provides the strongest signal and is “usually” the closest (DeLitta: A853). A cell tower has three antennas, each covering a 120 degree “sector”: generally, the first antenna faces north; the second, southeast; 9 This brief refers to phones by the last four digits of their phone numbers. Gregory Hamilton’s Facebook records confirmed that he used the 3283 phone, which was registered to his wife, Dorothy Sorey (Stipulation: A510-11; Trial: A951; PX: 95). As for the 9948 phone, records showed that, on March 22, 2012, a phone belonging to a man named Fleming King received a call from that number, at the end of which he created an entry in his phone’s contact list under the name “T. Balla” (Forames: A753-57; Stipulation: A518; PXs: 55A[i-ii] [contact list], 55B [analysis of “T Balla” entry], 70). Defendant’s Facebook page stated that his name was “Twan Baller,” and his sister, Twanea Cumings, sometimes referred to him by that name (PXs: 94 [Twanea’s Facebook], 96 [defendant’s Facebook]). In addition, the most commonly dialed numbers for that phone included defendant’s mother, Tyshene Mungo; defendant’s grandmother, Christina Butler; defendant’s girlfriend, Melissa; and defendant’s friend or associate, Brian Maldonado a/k/a/ “B.G.” (BRIAN MCCARTHY [consultant to Crime Strategies Unit of Manhattan D.A.’s Office]: A811, 825-28; PXs: 79 [chart of outgoing calls], 125 [diagram of outgoing calls]). -16- and the third, southwest. Each tower’s coverage overlaps with the next tower’s coverage, so that a cell phone does not drop a call as it travels (DeLitta: A854-55, 894). In an urban area like Manhattan, cell sites are more numerous and closer together than in rural areas, and each cell site covers “a couple of blocks maximum” (DeLitta: A860-61, 895-99). At 2:03 p.m. on March 19, 25 minutes before the shooting, defendant placed a 37-second call to Hamilton: Defendant’s phone generated a signal at a cell tower near 123rd Street and St. Nicholas Terrace, which was about three blocks north of defendant’s apartment; and Hamilton’s phone generated a signal at a tower near 141st Street and St. Nicholas Terrace (DeLitta: A875-77, 913; PXs: 85A-B). Less than one minute later, at 2:04 p.m., Hamilton placed a 45-second call to defendant and their phones generated signals at the same towers as before (DeLitta: A876; PXs: 85A-B). At 2:18 p.m., 10 minutes before the shooting, defendant placed a 24-second call to Hamilton. This time, signals from both of their phones bounced off the 123rd Street tower near defendant’s apartment (DeLitta: A877-78; PXs: 85A-B).10 At 2:33 p.m., about five minutes after the shooting, defendant placed a call that bounced off a tower near 141st Street and Amsterdam Avenue (DeLitta: A878, 918; PXs: 85A-B). The cell site data reflected a nine-second call, at 2:36 p.m., from 10 At 2:22 p.m., an incoming call to Hamilton’s phone generated a signal at the same tower (DeLitta: A877; PXs: 85A-B). -17- defendant’s phone to Hamilton’s phone, generating signals at neighboring cell towers at 141st Street and St. Nicholas Terrace, and 141st Street and Amsterdam Avenue. Since the records reflected that each phone activated the southeast sector of the respective tower, defendant and Hamilton could have been in the same car so long as the minivan was traveling east of the tower on St. Nicholas Avenue (DeLitta: A879- 83, 919).11 Between 2:41 and 2:44 p.m., defendant and Hamilton both received calls that caused their phones to generate signals at a tower that serviced the Polo Grounds housing complex, north of 155th Street (DeLitta: A884-85; PXs: 85A-B). After defendant evaded arrest, signals from his phone indicated that he went to the Port Authority and then to Richmond, Virginia, where he remained for four days. Between 2:46 and 5:13 p.m., defendant’s phone generated cell tower signals that went steadily southward until they reached the Chinatown area (DeLitta: A885- 86; PXs: 85A-B). Then, between 5:27 and 6:58 p.m., defendant’s phone generated multiple signals at towers near the Port Authority (DeLitta: A887; PXs: 85A-B). Defendant’s phone did not generate any more signals until 2:52 a.m. the next morning, when it repeatedly activated a cell tower in Richmond, Virginia (DeLitta: A888; PXs: 85A-B). 11 Cell phones do not necessarily “hand over” calls to another tower “at the same exact time,” depending, among other factors, on the quality of the phones’ antennas (Delitta: A879-81). -18- Four days later, on March 23, 2012, defendant’s phone generated signals that led back to New York City. At 5:34 p.m., he placed a call that bounced off a tower in Richmond. At 3:48 p.m. the next afternoon, defendant placed a call that bounced off a tower in New York City (DeLitta: A888-89; PXs: 85A-B). Defendant twice changes phones. The Manhattan Warrant Squad tracks defendant’s new phone to a location in the Bronx. Defendant resists arrest, but ultimately is taken into custody. Before he returned to New York City, defendant obtained a new phone with a number ending in 5002, which was registered to an address in Newport News, Virginia (McCarthy: A808-10, 829, 842; PX: 77 [phone records]).12 Meanwhile, Detective KEVIN BRADY of the Manhattan Warrant Squad was assigned to find defendant (Brady: A564-66). On March 26, Brady went to an address in the Bronx and found the 9948 phone in the possession of ten- or eleven-year-old R.G., but the detective did not take the phone from the child (Brady: A566-68). Defendant knew R.G.’s father, Rudolph Goldsby a/k/a/ “Ru,” and had even called Goldsby at 3:05 p.m. on the day of the shooting (De Vulpillieres: A704). On June 1, 2012, after he had obtained a court order to track another phone with a number ending in 9090, Brady spotted defendant at 183rd Street and Valentine Avenue in the Bronx. As soon as defendant looked in Brady’s direction he “started to 12 The phone’s “Service Start Date” was listed as March 28, 2012. On March 29, 2012, the phone placed an outgoing call to defendant’s girlfriend, Melissa, activating a cell site in Newport News (Stipulation: A691; PX: 77). -19- run.” Brady caught up with defendant after a four-block chase, and they “wrestled to the ground” (Brady: A576-77). Brady placed defendant under arrest and recovered the 9090 phone from him (Brady: A577-80; PXs: 46A-B [pictures of defendant], 52 [9090 phone]). According to the pedigree information he provided, defendant was 5’9” and weighed about 145 pounds (Obelt: A309). On June 1 and 2, 2012, Detectives Obelt and BRIAN SCHUMACHER conducted lineups that Phillips and Relaford viewed. Neither Phillips nor Relaford identified anyone in the lineups (Obelt: A300-06; Schumacher: A523-25). Brian McCarthy compared the outgoing phone calls from the 9948 phone to the outgoing phone calls from three other phones used by defendant: the 5002 phone from Virginia; the 9090 phone recovered from defendant at arrest; and the phone that defendant used at Rikers Island, activated by defendant’s unique book and case number (McCarthy: A808-10, 829, 842; PXs: 70 [records for 9948 phone], 74 [records for 9090 phone], 77 [records for 5002 phone], 81 [Rikers calls]). The numbers most commonly dialed by all four phones included defendant’s mother, grandmother, girlfriend, and friend Maldonado (McCarthy: A811, 825-28; PXs: 79 [chart of outgoing calls], 125 [diagram of outgoing calls]).13 13 The 9948 and 9090 phones were both registered to the same P.O. Box address in Irvine, California, but under different names (Stipulations: A509, 515). -20- The phones’ “calling pattern[ ]” showed that defendant had used the phones consecutively. The 9948 phone registered activity from about February 26, 2012 to about March 25, 2012; the 5002 phone, from about March 28, 2012 to about May 20, 2012; the 9090 phone, from about May 25, 2012 until defendant’s arrest on June 1, 2012; and the Rikers Island phone, from June 2, 2012 to November 30, 2012 (McCarthy: A817-18, 831-32). In recorded phone conversations from Rikers Island, defendant admits that he recently had been in Virginia. While defendant was in pretrial detention at Rikers Island, he made several phone calls to acquaintances (DOC Investigator TASHA BROWN: A677-78, 687; PXs: 81-81D [defendant’s call log and recordings], 81F [call excerpts]). In a June 12, 2012 call, defendant told a female acquaintance that he and “Ru” still had a “crib” in Richmond, Virginia. On November 17, 2012, defendant spoke to a male acquaintance who told him, “Streets crazy,” and, “I be nervous. I be thinkin’ be snitchin’.” Defendant responded that people “do be snitchin’.” The other man said that he was “about to start fuckin’ around out of town,” and defendant responded that he had “somewhere you can go.” Defendant explained, “I’m talkin’ ‘bout my cousin, when I was down there, you heard, before I came back [ ] I was down there at her crib. She in Newport News, you heard? That’s right next to Richmond, though” (PX: 81F). -21- The victims’ injuries. Records from Harlem Hospital confirm that Relaford was shot in his left wrist and left thigh (PX: 66 [Relaford’s medical records]). It took “over eight months before [he] was able to walk” without a cane or crutches. At trial — a year and a half after the shooting — Relaford’s leg was 90% better. He could not “bend it the way that [he] normally would bend it,” but he could “walk on it without a cane” (Relaford: A664-65; PX: 66). Phillips likewise presented with a gunshot wound to the left leg that caused a “soft tissue laceration in the lateral left thigh” (PX: 67 [Phillips’s medical records]). Allen suffered a gunshot wound to his right buttock (PX: 68 [Allen’s medical records]). The Defense Case On March 19, 2012, Detective CHARLES CARLSTROM responded to the Polo Grounds housing complex as Gregory Hamilton was being arrested (Carlstrom: A971-72). Subsequently, Carlstrom visited a New York Sports Club located at 303 West 145th Street in Manhattan to confirm that Hamilton had been there on the morning of the shooting (Carlstrom: A959-60). Carlstrom reviewed surveillance video from that day, which showed Hamilton at the gym with a man wearing a black or dark blue hoodie (Carlstrom: A960-64, 978; DXs: B1-B4 [screenshots]). -22- POINT THE RECORD SUPPORTS THE LOWER COURTS’ FINDINGS THAT IT WAS REASONABLY INFERABLE THAT THE UNIDENTIFIED DECLARANT PERSONALLY OBSERVED THE SHOOTING, AND THE DECLARANT’S STATEMENT WAS PROPERLY ADMITTED AS AN EXCITED UTTERANCE (Answering Defendant’s Brief). The unidentified bystander’s exclamation, excitedly blurting out that the shooter was “Twanek,” was probative, trustworthy evidence that the trial court properly allowed the jury to consider. Contrary to defendant’s argument, the trial court properly found that it was reasonable to infer that the declarant had personally observed the shooting and appropriately admitted the declaration under the excited utterance exception to the hearsay rule. Preliminarily, it bears note that, although defendant repeatedly characterizes the declaration heard in the background of Phillips’s 911 call as “accusatory” and an “accusation” (e.g., Defendant’s Brief at 2, 20), defendant does not raise any appellate Confrontation Clause claim. In fact, defendant concedes that the declarant’s “statement did not qualify as ‘testimonial’” under Crawford v. Washington, 541 U.S. 36 (2004) (Defendant’s Brief at 37). Defendant thereby acknowledges that there was no evidence to suggest that the declarant was remotely aware that his statement would be overheard by law enforcement or that he otherwise intended to convey information to them. As a declaration addressed not to law enforcement, but to the others near the -23- declarant on the sidewalk, the statement was not “accusatory” under Crawford. Indeed, the statement was only serendipitously recorded on the 911 call. In subsection (a) below, Respondent reviews the pertinent record. Subsection (b) explains that, contrary to defendant’s contention, Justice Allen as a substitute judge had the authority to make his own evidentiary ruling. Subsection (c) discusses that Justice Allen properly admitted the statement, which defendant concedes was “excited” (Defendant’s Brief at 29, 33), because, as the Appellate Division concluded, “[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). Contrary to defendant’s assertion, that conclusion, which affirmed the lower court’s finding that it was reasonably inferable that the declarant personally observed the shooting, has record support. The lower courts’ findings accordingly are not subject to further review. Finally, subsection (d) elaborates that any error was harmless. A. The Relevant Record Victim Phillips called 911 at 2:29 p.m. (Ortiz: A326) — about a minute after the shooting, which the surveillance video showed began at about 2:28 p.m. and 10 seconds (PXs: 57, 57A). About 20 seconds into that call, after victim Relaford is heard yelling that he cannot feel his legs, an unidentified declarant is heard in the background exclaiming, “Yo, it was Twanek, man! It was Twanek, man!” (PX: 47A). -24- The declarant exclaimed before Phillips, who placed the call, spoke even one word to the operator. Phillips never indicated that he heard the exclamation, and the declarant is not heard saying anything else after Phillips started speaking to the 911 operator. At defendant’s first trial, Justice Merchan denied the People’s request to admit the unidentified bystander’s exclamation under the excited utterance or present sense impression exceptions to the hearsay rule (A77). The judge remarked that it had been a “difficult decision” and offered that “reasonable minds would differ” as to whether “it is reasonable to infer that [the] declarant was a bystander speaking from personal knowledge” (A76, 80-81, 85-86). The judge himself wondered whether the unidentified declarant made the statement “because word on the street had been that Twanek was going to do this” or because defendant had an enemy who had found a “good opportunity to incriminate” him (A85). The judge expressed the view that there were “too many unanswered questions . . . to allow into evidence a statement which fingers the defendant as the shooter” (A86). After he declared a mistrial because the jury could not reach a verdict, Justice Merchan broached the possibility of a disposition and commented that he did not know “how the next judge w[ould] rule on the 911 tape.” He added that it was “quite possible the next judge will let that in” (A93). When the retrial commenced before the Honorable Ruth Pickholz, the People again asked the court to admit the statement as an excited utterance or present sense impression, and the prosecutor submitted a 31-page letter that elaborated on the -25- arguments the People had made before Justice Merchan (A5-35). Justice Pickholz denied the People’s request, remarking that there was “no way to know whether the declarant observed the incident first hand” or had received the information “second hand [ ] perhaps filtered or altered” (A119-20). Before the alternate jurors were selected, Justice Pickholz was hospitalized and was replaced by the Honorable Bruce Allen (A125-30). The People asked Justice Allen to reconsider the admissibility of the 911 call. Justice Allen listened to the 911 call himself. He also reviewed the written submissions and heard argument on the issue (A195-97). In addition to referencing his written papers, the prosecutor asserted that the surveillance “[v]ideo show[ed] people in the immediate area [who] would have . . . had an opportunity to observe the defendant commit the crime” (A197). Before ruling, Justice Allen “read Judge Pickholz’ decision and her reasoning” (A201). The next afternoon, after opening statements and testimony from Officers Nunez and Anderson, the court granted the People’s request to admit the 911 call in its entirety (A269). Initially, the judge placed on the record that he had had a discussion with the parties “about the role of a substitute judge and the power of the substitute judge,” and, after studying the case law, had concluded that he was “not bound by any ruling made by any other judge” and could “make whatever [he thought] was the correct ruling” (A269). Justice Allen then stated that he disagreed with Justice Pickholz’s prior ruling and had concluded that the unidentified declarant’s statement was -26- admissible as an “excited utterance” (A269).14 After the unredacted 911 call was played for the jury, defendant moved for a mistrial (A330-33), but Justice Allen, who expressed that he had “thought about it again overnight,” denied the motion (A338). In summation, defense counsel addressed the declarant’s exclamation. Preliminarily, counsel maintained that the crowd of people who had gathered at the scene when the police arrived “could have been coming from anywhere,” and that “those people were not there at the time of the shooting” (A985). Counsel acknowledged that the jurors “unquestionably” could hear someone “in the background [of the 911 call] yelling what sounds like, It’s Twanek, it’s Twanek” (A986). But, counsel emphasized that that person never testified and was not cross- examined. Counsel argued that the unidentified person could have been “somebody that was in the park who made an assumption” or “somebody in a building who heard the gunshots.” Counsel rhetorically asked whether the declarant was “even talking about Twanek Cummings?” and stated, “I have no idea, and neither do you [ ] because that person did not take the stand” (A986). In his own summation, the prosecutor played the 911 call for the jury and argued that the declarant had “identified the defendant, Twanek Cummings [ ] by his very uncommon first name, more than once and emphatically right after the shooting, 14 Justice Allen stated that he would supplement his ruling with a written decision (A269), but no such decision is contained in the record. -27- and his certainty and his sincerity was clear” (A1026). The prosecutor urged the jurors to listen to “how it was said in the moment,” and asserted that the declarant “was talking to the other people there on the corner” (A1026-27). The prosecutor proffered various evidence-based reasons for why the declaration was “trustworthy” (A1027-29), including that the evidence showed that, at the time of the shooting, “people from the block were in the vicinity of the intersection” and “had the opportunity . . . to observe” the shooter (A1027). The prosecutor played the 911 call again near the end of his summation (A1085), repeating that the declarant had made his identification to the “people who were closest to him on the corner” (A1086). Following the prosecutor’s summation, defendant renewed his request for a mistrial, and alternatively submitted a proposed jury charge on identification. The judge denied the mistrial request but agreed to counsel’s identification charge with some modifications. After reviewing the modified charge, defense counsel “agree[d] that the charge is acceptable” (A1089-91). Thus, the court’s final instructions included a modified version of the pattern jury charge for an identification premised upon the testimony of one witness. See CJI2d[NY] (Identification – One Witness). At the outset, the court emphasized that the People had the burden to prove beyond a reasonable doubt “not only that a charged crime was committed, but also that the defendant is the person who committed” it (A1108). Specifically addressing the unidentified declarant’s statement, the judge recalled that the jurors had heard a “recording of a 911 call which included a -28- statement by someone in the background” who was “unidentified and did not testify in court.” The judge informed the jurors that the statement “may be considered” but that it was “up to [them] to determine the weight, credibility, and reliability of that statement” (A1108). The instruction stressed that “[o]ur system of justice is deeply concerned that no person who is innocent of a crime be convicted of it,” and that, to avoid convicting an innocent person, the jurors had to “consider identification evidence with great care” (id.). The court continued that the identification of the defendant had to be both truthful and accurate (A1109). And, the court instructed, to assess the identification’s accuracy, the jurors were required to “evaluate the evidence or lack of evidence” concerning the individual’s “capacity for observation” and to be “satisfied . . . that the evidence is reliable and that the person had the ability to observe and remember the individual in question” (A1109). The court then enumerated the various factors by which the jury should assess the opportunity for observation, stating in each instance that the jurors should consider the “evidence or lack of evidence” (A1109-10). B. Justice Allen had authority to reconsider Justice Pickholz’s evidentiary ruling. At the outset, Justice Allen did not violate the “law of the case” doctrine when he reconsidered his predecessor’s ruling (contra Defendant’s Brief at 23-28). As the Appellate Division stated, the doctrine does not apply to evidentiary rulings and no -29- good reason exists to restrict a substitute judge more than any other judge at a retrial (A3). The law of the case doctrine posits that when a court of coordinate jurisdiction “decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). “Law of the case” belongs to a “larger family of kindred concepts,” including “res judicata (claim preclusion) and collateral estoppel (issue preclusion),” which are “designed to limit relitigation of issues.” Evans, 94 N.Y.2d at 502. However, unlike claim and issue preclusion, which apply after final judgment and which this Court has described as “rigid rules of limitation,” law of the case reflects only a “judicially crafted policy.” Id. at 503. It “‘expresses the practice of courts generally to refuse to reopen what has been decided’” but is “‘not a limit to their power.’” Id. (quoting Messenger v. Anderson, 225 U.S. 436, 444 [1912] [Holmes, J.]). In that regard, the law of the case doctrine is “necessarily ‘amorphous’ in that it ‘directs a court’s discretion,’ but does not restrict its authority.” Evans, 94 N.Y.2d at 503 (citing Arizona v. California, 460 U.S. at 618). Moreover, law of the case does not apply to every prior ruling made by a court of coordinate jurisdiction. For instance, although pretrial suppression rulings ordinarily bind another judge, “trial rulings” — and “evidentiary type” rulings in particular — generally do not. Evans, 94 N.Y.2d at 505-06; People v. Nieves, 67 N.Y.2d 125, 137 (1986); People v. Malizia, 62 N.Y.2d 755, 758 (1984). This Court has -30- explained that, unlike suppression rulings, evidentiary rulings are not linked to a finite record of pretrial proceedings that involve factual as well as legal determinations. Rather, evidentiary rulings typically implicate the court’s discretion, and a judge who examines an “earlier discretionary ruling is in a position different from one who would revisit a prior determination of law or finding of fact.” Evans, 94 N.Y.2d at 505. Like this Court, the Second Circuit has emphasized the discretionary nature of evidentiary rulings in finding them exempt from the law of the case doctrine. That court has explained that a presiding judge must enjoy “wide discretion in deciding either to admit or exclude evidence,” and should base evidentiary rulings on the existing trial record rather than a “pretrial order of another judge.” United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982) (citation omitted); United States v. Angelo, 87 Fed. App’x 205, 207-08 (2d Cir. 2004) (same). At the least, “it is clear that pretrial evidentiary rulings may be revisited where no prejudice accrues to the party that had previously thought it had secured a favorable ruling.” United States v. Wade, 512 Fed. App’x 11, 14 n.1 (2d Cir. 2013). And, “prejudice” in this context “does not mean the harm which results from a failure to apply the doctrine; rather, it refers to a lack of sufficiency of notice and an opportunity to prepare.” Birney, 686 F.2d at 107. Here, the decision whether to admit the declarant’s statement was a classic evidentiary question that implicated the court’s discretion. See People v. Hernandez, 28 N.Y.3d 1056, 1057 (2016) (“The decision to admit hearsay as an excited utterance -31- is left to the sound judgment of the trial court”); People v. Carroll, 95 N.Y.2d 375, 385 (2000) (court properly exercised its “wide discretion in making evidentiary rulings” when it denied defendant’s motion to admit statement as excited utterance). Notably, defendant does not and could not plausibly claim that he relied upon Justice Pickholz’s prior ruling, where Justice Allen replaced Justice Pickholz during voir dire and entertained the People’s request to reconsider the ruling before opening statements. Further, Justice Allen thoroughly reviewed the relevant materials and heard argument from the parties before rendering his ruling. Contrary to defendant’s position, the law of the case doctrine did not preclude that exercise of discretion. Indeed, defendant acknowledges that, on a retrial, a judge who overrules his predecessor’s evidentiary ruling does not run afoul of the law of the case doctrine. Defendant argues, however, that the doctrine applies differently to a substitute judge within a single trial than to a successor judge at a retrial. According to defendant, in other words, law of the case does not preclude a retrial judge from overruling her predecessor’s evidentiary ruling, but it precludes a substitute judge from exercising that same discretion. In support of that position, defendant asserts that Evans limited the application of the law of the case doctrine to rulings within a “single litigation” (Defendant’s Brief at 26), and interprets “single litigation” to exclude a retrial. But Evans spoke of a “single litigation before final judgment.” Evans, 94 N.Y.2d at 502 (emphasis in original) (citation omitted). A mistrial that results from a deadlocked -32- jury does not yield a final judgment, see CPL 1.20(15), and therefore, a retrial constitutes part of the same litigation. To the same effect, this Court characterized law of the case as a “kind of intra- action res judicata.” Evans, 94 N.Y.2d at 502 (emphasis added) (citation and internal quotation marks omitted). As defined in Criminal Procedure Law section 1.20(16), a “criminal action” includes a retrial. So, too, this Court plainly has applied the law of the case doctrine to bar a judge presiding over a retrial from reconsidering a suppression ruling made by the judge at the first trial. See Evans, 94 N.Y.2d at 504-05 (“order following a suppression motion . . . ordinarily will be” “binding in a subsequent trial”); Nieves, 67 N.Y.2d at 137 (same). Thus, contrary to defendant’s claim, the “single litigation” to which the law of the case doctrine applies encompasses a retrial, and the doctrine does not restrict a substitute judge any more than any other judge at a retrial. Moreover, it is well-established that a trial judge has authority to reconsider her own evidentiary rulings later in the trial. No good reason exists why a substitute judge should not enjoy the same discretion to reconsider prior evidentiary rulings on which a defendant has not adversely relied. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817 (1988) (“A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance.”). As defendant acknowledges (Defendant’s Brief at 27 n.5), although Evans happened to involve a retrial, the Appellate Division has routinely found that the law -33- of the case doctrine did not bar a judge from reconsidering a prior evidentiary-type ruling made by another judge of coordinate jurisdiction in the same trial. See People v. Amaya, 103 A.D.3d 568, 569 (1st Dep’t 2013) (Sandoval ruling); People v. Gomez, 67 A.D.3d 927, 928 (2d Dep’t 2009) (Sandoval ruling); People v. Johnson, 301 A.D.2d 462, 463 (1st Dep’t 2003) (Sandoval ruling); People v. McLeod, 279 A.D.2d 372 (1st Dep’t 2001) (Molineux ruling); People v. Davis, 214 A.D.2d 583 (2d Dep’t 1995) (Sandoval ruling). Defendant deems those decisions “misguided” (Defendant’s Brief at 27 n.5), but articulates no persuasive reason to overrule them. And, although defendant claims that some appellate courts have found that a prior evidentiary ruling bound a substitute judge, none of the cases he cites actually involved evidentiary rulings (see Defendant’s Brief at 27 n.5 ¶ 2). See People v. Cabreja, 243 A.D.2d 387, 387 (1st Dep’t 1997) (sufficiency of search warrant application); People v. Guin, 243 A.D.2d 649, 650 (2d Dep’t 1997) (sufficiency of grand jury minutes); People v. Broome, 151 A.D.2d 995, 995 (4th Dep’t 1989) (preclusion of identification testimony). Defendant also wrongly relies on People v. Hampton, 21 N.Y.3d 277, 285-87 (2013), for the proposition that “substitute judges today may rule only on newly arising or pending matters” (Defendant’s Brief at 25, 28). In Hampton, this Court held that a substitute judge did not violate section 21 of the Judiciary Law when he denied the defendant’s motion to dismiss. Section 21 provides that a substitute judge may not rule on an issue that was “argued orally in the court when he was not present -34- and sitting therein as a judge.” This Court concluded that, although the motion had been argued before the prior judge, the substitute judge had reviewed the entire record and “‘indicate[d] on the record the requisite familiarity with the proceeding.’” Id. at 279 (citation omitted). The Court also noted that Judiciary Law § 21 generally required a remand only where “the substitute judge was required to weigh conflicting testimony he did not hear or assess credibility of witnesses he did not view, as is the case, for example, with respect to a suppression motion.” Id. at 286. Here, of course, Justice Allen reviewed the relevant record and heard argument from the parties before he exercised his discretion to reconsider his predecessor’s evidentiary ruling. Accordingly, the judge did not contravene Hampton or Judiciary Law § 21. Finally, even assuming for the sake of argument that Justice Allen violated the law of the case doctrine, it would not provide a basis for reversal. The doctrine does not bind appellate courts, which may affirm a ruling that is substantively correct even if the ruling violated the law of the case doctrine. See Mosher-Simons v. County of Allegany, 99 N.Y.2d 214, 218-19 (2002); see, e.g. Joy v. Kutzuk, 99 A.D.3d 1049 (3d Dep’t 2012) (affirming despite law of the case violation); see also Wright v. Cayan, 817 F.2d 999, 1002 n.3 (2d Cir. 1987) (“[I]t would be self-defeating to reverse a correct ruling by the second judge solely because of a departure from the law of the case.”). Although some courts have indicated that a law of the case violation alone could provide a basis for reversal, see, e.g., Post v. Post, 141 A.D.2d 518, 519 (2d Dep’t 1988), research does not reveal a single criminal case where this occurred. And here, -35- as discussed infra, Justice Allen’s decision to admit the declarant’s statement was a sound exercise of discretion. Thus, even if there were a law of the case violation, it would not provide a reason to reverse defendant’s conviction. C. The unidentified declarant’s statement was admissible as an excited utterance. Moreover, Justice Allen providently exercised his discretion to admit the excited declaration. Under the well-established excited utterance exception to the hearsay rule, an out-of-court statement is admissible if it relates to a startling event and was made while the declarant was under the resulting stress of excitement. People v. Johnson, 1 N.Y.3d 302, 306 (2003); Nieves, 67 N.Y.2d at 135; People v. Edwards, 47 N.Y.2d 493, 496-97 (1979). The rationale is that the excitement “stills [the declarant’s] reflective faculties,” People v. Brown, 70 N.Y.2d 513, 518 (1987), and attendant capacity to fabricate, Nieves, 67 N.Y.2d at 135, so that “[t]he spontaneity of the declaration guarantees its trustworthiness and reliability,” People v. Cantave, 21 N.Y.3d 374, 381 (2013). The “essential element” of an excited utterance is that “the declarant spoke while under the stress or influence of the excitement caused by the event.” Cantave, 21 N.Y.3d at 381 (citation and internal quotation marks omitted). In addition, “it must be inferable” — i.e., the evidence must permit the trial court “reasonably to infer” — “that the declarant had an opportunity to observe personally the event described in the declaration.” Fratello, 92 N.Y.2d at 571 (citing 6 Wigmore, Evidence § 1751, at 222 [Chadbourn rev. ed. 1976]); see, e.g., People v. Caballero, 137 -36- A.D.3d 929, 930 (2d Dep’t 2016) (“The circumstances surrounding the statement . . . permit[ted] a reasonable inference that the declarant had an opportunity to observe the altercation.”). Here, defendant does not dispute that the declarant exclaimed, “Yo, it was Twanek, man! It was Twanek, man!” while under the stress of excitement caused by the triple shooting (see Defendant’s Brief at 29, 31, 33 n.6), an obviously traumatic and startling event. Nor does defendant dispute that the declarant’s exclamation “relate[d]” to the shooting, see Nieves, 67 N.Y.2d at 135, in that it purported to identify the first name of the shooter. Defendant claims only that the “personal observation” requirement was not satisfied. Significantly, as with any other aspect of the applicability of the excited utterance exception, this issue presents a mixed question of law and fact. Fratello, 92 N.Y.2d at 571. The trial court, by admitting the contested statement as an excited utterance, necessarily rejected defendant’s objection based upon the declarant’s asserted lack of personal observation (A269). See id. The Appellate Division, in upholding the admissibility of the declaration under the excited utterance exception, found that “[a]ll of the circumstances . . . established a strong likelihood that the declarant observed the shooting” (A2-3). As defendant recognizes (Defendant’s Brief at 29), so long as the lower courts’ findings that it was reasonably inferable that the declarant personally observed the shooting have record support, they are beyond this Court’s further review. Fratello, 92 N.Y.2d at 571 (citing People v. Cotto, 92 N.Y.2d -37- 68, 76-77 [1998]). And, contrary to defendant’s claim, ample record support exists, thus warranting an affirmance. Notably, this Court wisely has rejected too-stringent interpretations of the hearsay exception that would “bar the fact finder from hearing relevant testimony that is perfectly reliable.” People v. Brown, 80 N.Y.2d 729, 736 (1993). Thus, this Court has long recognized that a hearsay statement by an “unidentified bystander” may be admissible. Id. at 734-35; accord, e.g., People v. Brown, 72 A.D.3d 445 (1st Dep’t 2010) (court properly admitted 911 call by unidentified declarant); People v. Coleman, 16 A.D.3d 254 (1st Dep’t 2005) (same). Further, courts and commentators have stated that the party that seeks to admit an excited utterance need not offer “[d]irect proof” that the declarant observed the event; “if the circumstances appear consistent with opportunity by the declarant, the requirement is met.” 2 McCormick on Evidence § 272 (7th ed.); People v. Vasquez, 214 A.D.2d 93, 102-03 (1st Dep’t 1995), lv. denied, 88 N.Y.2d 943 (1996) (hearsay statement did not have to recite that it was based on personal knowledge so long as such knowledge could be “inferred from the circumstances”). Indeed, Fratello’s “reasonably inferable” standard inherently contemplates that the threshold showing of the requisite opportunity to observe does not require direct proof, but may be satisfied by circumstantial evidence. See also People v. Caviness, 38 N.Y.2d 227, 231-32 (1975) (excited utterance by nonparticipant was admissible provided he “was shown to have had an adequate opportunity to observe the event”). -38- Defendant notably does not dispute that personal knowledge should be judged under the “reasonably inferable” standard (see Defendant’s Brief at 30). But, defendant’s assertion that “[n]o evidence showed” that the declarant in this case “in fact saw the shooting” (Defendant’s Brief at 31) improperly focuses on the absence of direct proof, while giving short shrift to the reasonable inferences from the evidence. Justices Merchan and Pickholz did the same. Contrary to defendant’s argument, the circumstances surrounding and attending the unidentified bystander’s declaration reasonably supported the inference that the statement was not only excited, but also was based on the declarant’s personal opportunity to observe. And even if the declarant’s status as an unidentified bystander might require some heightened indicia of reliability, the Appellate Division’s finding that there was “a strong likelihood that the declarant observed the shooting” (A2-3) satisfies any legitimate concern. Preliminarily, it bears noting that, to admit the statement, the trial court did not have to rely on the memory, perception or honesty of another witness who heard the statement. Since the declaration was memorialized in the background of Phillips’s 911 call, there was “no uncertainty as to the content of the declarant’s statement, which serves to heighten the reliability of the evidence.” Miller v. Crown Amusements, Inc., 821 F. Supp. 703, 706 (S.D. Ga. 1993) (finding by preponderance of the evidence that unidentified declarant who placed recorded 911 call had personally observed car accident). -39- Moreover, the record supports the Appellate Division’s critical finding that “the statement was made immediately after the shooting” (A2-3). More particularly, surveillance videos fixed the time of the shooting as 2:28 p.m. (PX: 57). Latasha Ortiz, the police department custodian of records called as a witness, testified that the 911 call was placed at 2:29 p.m. (Ortiz: A326). The background declaration can be heard only 20 seconds into the call. Thus, the record establishes that the declarant excitedly blurted out defendant’s first name only about a minute and a half after the triple shooting. Defendant’s attempts to cast doubt on the immediacy of the declaration are unavailing. True, as defendant notes, the record reflects that the prosecutor asked whether the 911 call was placed “at – about 2:30 or 2:29 p.m.,” to which Ortiz responded, “Yes, sir” (Defendant’s Brief at 32; A326). But that does not establish that the call was placed “up to two minutes after the shooting” (Defendant’s Brief at 32). The natural understanding of the relevant question is that, when he referred to “about 2:30,” the prosecutor initially gave an approximate time, rounded to the nearest 10 minute interval. The prosecutor then became more specific and provided the exact time of “2:29 p.m.” – which was the benchmark of Ortiz’s “Yes” response. So, too, defendant unduly emphasizes that, in his pretrial memorandum, the prosecutor advised that the 911 call was placed “within three minutes” of the shooting (A15; Defendant’s Brief at 32). Defendant contends that that “three-minute timeline . . . governs the admissibility question” (Defendant’s Brief at 33). However, -40- appellate courts review in limine rulings based on the evidence adduced at trial, see Ohler v. United States, 529 U.S. 753, 759 (2000), which is why those rulings are always “subject to change when the case unfolds, particularly if the actual testimony differs” from the pretrial proffer. Luce v. United States, 469 U.S. 38, 41-42 (1984); see also United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 462 (S.D.N.Y. 2017) (in limine rulings are based on “forecasted evidence”).15 Indeed, while for these purposes defendant focuses on Justice Allen’s initial ruling, the judge ruled on the issue again when defendant moved for a mistrial after the recording of the 911 call was played before the jury (A338). Notably, by that time, the judge had heard Ortiz’s testimony clarifying the timeline (see A326). As it happened, additional trial evidence independently confirmed that Phillips placed his 911 call at 2:29 p.m., about a minute after the shooting. After all, surveillance video shows that the first responding officer, Detective Borst, arrived by motorcycle at the corner where the shooting occurred at 2:31 p.m. (PX: 57A). Since Phillips specifically asked the 911 dispatcher to send help, the call had to have been concluded before that time. Indeed, the 911 call had to have been placed at least a minute and a half (PX: 47A) before Detective Borst’s 2:31 p.m. arrival, since that was how long the call lasted. And, again, it is uncontroverted that the excited declaration 15 People v. Carmona, 82 N.Y.2d 603, 610 n.2 (1993), is distinguishable (contra Defendant’s Brief at 39), because it involved appellate review of a suppression ruling, which, unlike review of an in limine ruling, is limited to the evidence elicited at the pretrial hearing. -41- was uttered about 20 seconds into the call. Thus, without conceding that a three- minute delay would have been inconsistent with personal knowledge, that was simply not what the trial evidence showed. By the same token, the evidence showed that the declarant had to have been very close to the shooting site at the time of the crime. Since Relaford is also heard yelling in the background, and Relaford testified that he fell to the ground unable to move after the shooting (A661), the declarant had to have been right by the corner where the victims were shot when his voice was picked up in the background of the 911 call. And for the declarant to have exclaimed from that corner so quickly, he had to have been either at the corner or extremely nearby when the shooting occurred. See Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995) (declarant’s “proximity to the scene at the time of the incident provided some circumstantial evidence of firsthand knowledge”). Certainly, the details of the crime as established by the trial evidence demonstrated that someone at or near the site of the shooting would have had an excellent opportunity to observe the perpetrator. The shooting occurred on a street corner accessible to pedestrians in the middle of a sunny afternoon. The perpetrator fired at least five shots at three different victims, affording ample time for a bystander to view him. Contrary to defendant’s assertion, the shooter’s face was not “obscured” (Defendant’s Brief at 4). Although defendant wore his sweatshirt hood over a baseball cap, his face was not covered. In fact, Phillips testified that the shooter “look[ed] mad” -42- as he approached the corner (A480, 487-88). Thus, the evidence showed that the perpetrator’s face was visible before, during, and after the shooting, so that anyone who knew him would have recognized him in the daylight. Importantly, too, surveillance video showed individuals in a position to observe the shooting. Although the video does not provide a clear view of the 129th Street and St. Nicholas Terrace intersection where the shooting occurred, several people are seen next to or across the street from that location when the shots were fired. That a large crowd had gathered by the time the police responded (see Defendant’s Brief at 34), is of no moment because the bystander heard exclaiming on the 911 call had been there earlier, when the call was placed. Thus, although the video evidence cannot pinpoint the declarant, it reveals that people were well positioned to see the shooter. Next, notwithstanding that the statement was in “the past tense” (Defendant’s Brief at 31), its characteristics indicated that the declarant was speaking from personal knowledge. As can be heard on the recording, the declarant’s tone of voice was highly excited; that manifestly excited tone of voice strongly suggested that the declarant was speaking about an event he had just observed. Compare Cantave, 21 N.Y.3d at 382 (finding that declarant’s voice, while “agitated,” “did not evidence an inability to reflect upon the events, which would have supported an excited utterance”). So, too, that the declarant prefaced his exclamation with the word, “Yo,” betrayed that the declaration was unsolicited. Further, that the declarant repeated, “It was Twanek!” and also used the words “Yo” and “man” for emphasis betrayed that -43- he had blurted out the statement. The tone, repetition, and words “Yo” and “man” all conveyed that the declarant was exclaiming about an event he had just witnessed. While defendant complains that the People “would substitute sheer speculation for legitimate inferences” (Defendant’s Brief at 34), it is defendant who sets forth implausible inferences from the evidence. Echoing some of the comments made by Justices Merchan and Pickholz, defendant contends that perhaps the declarant just “relayed prior rumors heard on the street,” or “harbor[ed] a personal grudge against [defendant, and] seized the moment to falsely accuse him” (Defendant’s Brief at 33, 36). But those suppositions assume the sort of reflection that the concededly “excited” nature of the outburst presumptively negates. And, the notion that the declarant might both have heard an earlier relevant rumor and then just have happened to be at the shooting site contemplates an unlikely combination of coincidences. Further, while defendant supposes that the declarant could have “parrot[ed] what he was told by someone else nearby” (Defendant’s Brief at 33), the timing of the statement on the heels of the shooting realistically did not allow for the declarant to have had a prior conversation with other bystanders. In short, the declarant excitedly identified the shooter at the crime scene, which was plainly visible to bystanders, immediately after the shooting. Especially in that context, the declarant’s tone of voice and unsolicited exclamation strongly suggested that he was speaking about a just-observed event. As the Appellate Division concluded, the reasonable inferences from the established facts engendered a strong likelihood that the -44- declarant had personally observed the shooting, so as to make the recorded exclamation probative and reliable evidence appropriately considered by the factfinder. In addition, the substance of the unidentified bystander’s declaration was corroborated by other evidence. In Fratello, this Court found that it was reasonable to infer that the declarant had spoken from personal knowledge because, among other factors, the declarant had accurately “identif[ied] the crime vehicle as a white Acura Legend,” a fact verified by independent evidence at trial. 92 N.Y.2d at 570-71. And, in Vasquez, 214 A.D.2d at 102-03, the Appellate Division “inferred from the circumstances” that an unidentified declarant had just observed an exciting event, because the declarant informed a police officer that the defendant still had “the gun,” a fact that was corroborated by the officer’s independent observations.16 Here, the fingerprint that defendant left on the minivan, right where the video shows that the shooter touched the outer door, strongly corroborated the unidentified declarant’s statement that “Twanek” — defendant’s unusual first name — was the shooter. For that reason as well, it was reasonably inferable that the declaration was based on personal observation. 16 In Vasquez, the unidentified declarant’s statement was admitted as a present sense impression, a hearsay exception that contains the same personal knowledge requirement as an excited utterance. See, e.g. People v. Richardson, 300 A.D.2d 13 (1st Dep’t 2002). Although, in addition, the present sense impression exception requires “corroboration” as a separate element, the Vasquez court also relied on corroboration as a factor to support a finding of personal knowledge. -45- Even if this Court did not want to rely on corroboration as an independent factor helping to establish personal knowledge, at the least, the fingerprint evidence belied defendant’s speculation that someone was trying to “falsely accuse him” (Defendant’s Brief at 35). Indeed, the corroborating fingerprint would belie any alternative to personal knowledge premised on a deliberately false or a mistaken identification of the shooter. So, too, the propriety of the ruling admitting the evidence was enhanced by the court’s cautionary instruction that it was for the jurors to determine the “weight, credibility, and reliability of th[e] statement.” Justice Allen stressed that the individual heard in the background of the 911 call was “unidentified” and did “not testify in court.” Notably, modifying the standard one-witness identification charge, see CJI2d[NY] (Identification – One Witness), the court directed the jury to evaluate the “evidence or lack of evidence” (emphasis added) of the declarant’s “capacity for observation,” and instructed that, to convict, the jurors needed to be “satisfied . . . that the evidence is reliable and that the person had the ability to observe and remember the individual in question.” Again highlighting that the declarant was unidentified, the judge repeated “or lack of evidence” another eight times as he enumerated the factors pertinent to evaluating the accuracy of the statement (A1108- 10). Thus, the trial court properly submitted the unidentified declarant’s statement for the jury’s consideration. -46- Defendant’s suggestion that the court thereby abdicated its “responsibility of determining the statement’s admissibility” (Defendant’s Brief at 35-36) confuses the court’s and jury’s different roles. The admissibility of evidence on the one hand, and the weight of that evidence on the other hand entail different assessments. Here, the trial court properly made the threshold determination of admissibility and properly left the separate issue of the weight of the evidence to the jury as fact-finder. See, e.g., People v. Price, 2017 N.Y. Slip Op. 05174, 2017 WL 2742214 (June 27, 2017) (“As with other evidentiary matters, when presented with a question of authentication, the trial court’s task is to determine whether the party offering the evidence has made a sufficient threshold showing of reliability so that the evidence may be submitted to the jury.”); People v. James, 93 N.Y.2d 620, 634-35 (1999) (out-of-court statements are admissible under hearsay exception for statements by co-conspirator if, inter alia, it is “inferable under the circumstances” that declarant had “competent knowledge” of conspiratorial arrangement alleged in statement). In sum, the ruling that the unidentified declarant’s statement was admissible as an excited utterance finds ample support in the record and was a proper exercise of the trial court’s discretion. D. Any error was harmless. In any event, the Appellate Division properly concluded that any error would have been harmless (A3). At the outset, contrary to defendant’s assertion (Defendant’s -47- Brief at 36-37), the appropriate harmless error standard is that for non-constitutional error. Defendant acknowledges that the confrontation clause claim he raised before the trial court “foundered because the statement did not qualify as ‘testimonial’” under Crawford, 541 U.S. 36 (Defendant’s Brief at 37). Although defendant tries to suggest that his trial counsel also raised a due process claim, he notably does not now affirmatively cite the due process clause as a basis for his appellate claim. Further, any appellate due process claim would be unpreserved. Apart from the invocation of Crawford, defendant’s trial counsel argued only that, as a matter of state evidence law, the unidentified declarant’s statement was not admissible under the excited utterance exception to the hearsay rule (A196-97, 331-33). Notably, too, the trial court couched its ruling that the statement was admissible in similar evidentiary terms, concluding that, contrary to defense counsel’s argument, the statement qualified as an excited utterance (A269). And, contrary to defendant’s current contention (Defendant’s Brief at 36-37), trial counsel’s mere isolated reference to a “fair trial” (A333) did not transform defendant’s evidentiary argument into a constitutional due process claim. Indeed, most evidentiary issues implicate the fairness of the trial, and thus defendant’s contention would improperly make every hearsay complaint a constitutional claim. Accordingly, the harmless error standard for non-constitutional error applies to defendant’s non-constitutional hearsay claim. See Hernandez, 28 N.Y.3d at 1057 (harmlessness of erroneously admitted hearsay evaluated under standard for non-constitutional error). -48- Under that standard, any error was harmless because the other proof of guilt was overwhelming and there was no “significant probability” that, without the bystander’s statement, the jury would have acquitted defendant. Crimmins, 36 N.Y.2d at 242-43. Critically, defendant’s right index fingerprint was found on the outer front passenger-side door of the minivan that drove the shooter to and from the crime scene. Moreover, defendant’s fingerprint was recovered from the door-jamb area next to the handle, right where surveillance video showed the shooter had placed his hand after alighting from the front passenger’s seat on his way to the corner where he shot the three victims. And defendant’s fingerprint was the only one recovered from that tell-tale location on the minivan. To present the non-hearsay evidence of guilt as “underwhelming” (Defendant’s Brief at 39), defendant breezily dismisses the telling fingerprint evidence; in the lone sentence even acknowledging that evidence, defendant protests that his “fingerprint on the car did not conclusively speak to when he may have left it there” (id.). However, the evidence included testimony that the length of time a fingerprint remains on a surface will be affected by the elements (A408-10, 636). Of course, the outside of a car door typically will be significantly exposed to the elements. As noted by the prosecutor, the weather on the day of the shooting was warm, which was less conducive to a fingerprint lasting (A1040-41). In addition, the weather report introduced into evidence showed that it had rained in the City three days earlier, which again could have eliminated any pre-existing fingerprint on the outer car door -49- (PX: 108; see A636). As the prosecutor argued on summation, the ineluctable inference was that the fingerprint was “fresh” (A1040). Indeed, it would have been an amazing coincidence had defendant previously left a fingerprint exactly where the surveillance video showed the shooter touched the car door on his way to the shooting. Thus, the fingerprint evidence was compelling circumstantial proof that defendant was the shooter and made it difficult to imagine that, even without the bystander’s statement, a jury would have acquitted defendant. Other evidence also contributed to the compelling, independent circumstantial proof of guilt. The cell site information and call detail records strongly indicated that defendant was with Hamilton, the undisputed driver of the minivan, before and after the shooting. Defendant and Hamilton made a flurry of phone calls to one another in the half hour leading up to the shooting. Notably, when defendant called Hamilton at 2:18 p.m., ten minutes before the shooting, their phones activated the same cell site near defendant’s apartment – close to the shooting site. At 2:33 and 2:36 p.m., defendant’s and Hamilton’s phones activated cell towers on 141st Street, about 12 blocks north of the shooting, consistent with driving away together from the crime scene towards the Polo Grounds. Although a nine-second call from defendant’s phone to Hamilton’s phone at 2:36 p.m. generated signals that bounced off cell sites three blocks apart, those towers were close enough to overlap in their coverage. Further, while defendant insists that, if he and Hamilton were together, “a call from one to the other . . . made no sense” (Defendant’s Brief at 38), the prosecutor argued -50- convincingly on summation that because the call was so brief, defendant may have “pocket dialed” or inadvertently “hit the wrong contact” in the fast-moving aftermath of the shooting (A1051-52). Indeed, by 2:41 p.m., defendant’s and Hamilton’s phones both generated signals at the cell tower that covered the Polo Grounds housing complex, showing that they were still together when Officer Anderson converged on the minivan.17 So, too, the evidence of the shooter’s general physical appearance matched defendant in significant respects. Relaford, who was 6’3” tall, testified that the shooter came up to about his chin. That description of a “shorter” (A668) shooter was consistent with defendant’s self-professed height of 5’8” or 5’9.” While defendant emphasizes that one police report recorded the shooter’s height as 5’3” (Defendant’s Brief at 34), the author Detective Borst explained that the source was not any of the victims; and, the jurors could see for themselves from the surveillance video of the shooter standing next to the minivan that the shooter was taller than 5’3.” In addition, Relaford, Phillips, and Officer Anderson all testified that the shooter was a young-looking, light-skinned black man. Consistent with that 17 Although defendant correctly points out that cell-site evidence does not establish a phone’s exact location, he overstates the matter by claiming that phones “activate[ ] towers based on signal strength, not geographic proximity” (Defendant’s Brief at 38). In fact, the evidence established that the cell tower with the strongest signal is “usually” the closest (DeLitta: A853), and that in urban areas like Manhattan, a cell site can pinpoint a phone’s location within a “couple of blocks” (DeLitta: A860-61, 895-99). -51- testimony, the evidence established that defendant was a light-skinned, black man, who was 21 years old at the time of the shooting. And just as Phillips testified that the shooter had a red beard and freckles, and Anderson testified that the front passenger from the minivan had hair that was “curly” and “kind of thick,” various pictures showed that defendant had a beard with flecks of red in it, appeared to have freckles or spots on his face, and had curly hair that was kind of thick.18 Defendant’s guilt was further confirmed by consciousness-of-guilt evidence. Three hours after the shooting, defendant was already by the Port Authority, preparing to leave town, and by 3:00 a.m. the next morning, he had fled to Richmond, Virginia. There, defendant acquired a new phone to replace the 9948 phone he later discarded. By the time the police caught him in the Bronx, defendant had changed phones once again. And when the police came to arrest him, defendant tried to run away. Defendant’s multiple acts of evasion further circumstantially showed his guilt. Nor is a finding of harmless error precluded by the fact that the first trial resulted in a deadlocked jury (see Defendant’s Brief at 41). See People v. Seit, 86 N.Y.2d 92 (1995) (finding admission of 911 call was harmless error even though first trial had resulted in hung jury). Indeed, a “jury may hang for any number of reasons,” 18 Defendant suggests in passing that a picture taken at the gym on the morning of the shooting of Hamilton and another man “constituted third-party guilt evidence” because, like the shooter, Hamilton’s companion wore a hoody and jeans (Defendant’s Brief at 39). Suffice it to say that the man in the picture wore a “black or very dark blue hoody,” unlike the gray hoody worn by the shooter. -52- including “idiosyncratic views” of individual jurors that do not reflect the strength of the trial evidence. United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004) (holding that error was harmless even though first trial resulted in hung jury). Here, the People also presented more evidence at the second trial, especially the call detail and cell site records for the 5002 phone, which further proved that defendant had possessed the 9948 phone on the day of the shooting and that he had absconded to Virginia. Indeed, in his first-trial summation, defense counsel had contested both of those claims (SA19, 29). At the second trial, however, defendant’s new counsel had to concede that the 9948 phone belonged to defendant (A997) and that defendant had gone to Virginia just after the shooting (A1017). To be sure, as defendant points out (Defendant’s Brief at 40-41), the prosecutor referred several times in summation to the double exclamation, “It was Twanek!” But, defense counsel, too, addressed that statement on his summation, presenting arguments that impugned the statement’s reliability (A986). When, in turn, the prosecutor addressed the statement, the jurors were already familiar with the arguments against its reliability. And, far from focusing only on the contested statement, the prosecutor’s summation filled 60 transcript pages and reviewed all of the evidence at trial (A1025-87). Beyond that, as previously stated, Justice Allen’s jury instruction pertaining directly to the excited utterance cautioned the jurors that they needed to be “satisfied … that the evidence [was] reliable and that [the declarant] had the ability to observe -53- and remember the individual in question” (A1109). Thus, the jurors would not have given any weight to the declarant’s statement unless they first concluded that the statement was accurate and reflected the declarant’s personal observations. Accordingly, in light of the overwhelming fingerprint and other circumstantial evidence against defendant, there was no significant probability that the statement determined the verdict. * * * In sum, Justice Allen had full authority to reconsider his predecessor’s evidentiary ruling, and his decision to admit the declarant’s statement as an excited utterance finds more than adequate support in the record and was a proper exercise of discretion. Alternatively, any error would have been harmless. -54- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov SYLVIA WERTHEIMER ROSS D. MAZER Assistant District Attorneys Of Counsel August 25, 2017 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 13417, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.