The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.Oct 15, 2014COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, APL 2013-00229 Appellant V DWIGHT DELEE, Defendant-Respondent BRIEF FOR DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AS AMICUS CURIAE FRANK A. SEDITA, III Erie County District Attorney President, District Attorney’s Association of the State of New York C/O Erie County District Attorney’s Office Attorney for Appellant 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858—7922 DONNA A. MILLING MORRIE I. KLEINBART MICHAEL J. HILLERY Assistant District Attorneys of Counsel September 5, 2014 TABLE OF CONTENTS Page Table of Authorities i Preliminary Statement 1 Interest of the Amicus 3 Statement of Facts 5 Argument Repugnancy review should encompass any language in the jury charge, or omitted language, reasonably likely to have influenced the verdict’s inconsistency. Otherwise, New York’s repugnancy rule should be abandoned 6 Conclusion 22 TABLE OF AUTHORITIES PAGE CASES People v Alonzo, 16 N.Y.3d 267 (2011) 16 People v Cahill, 2 N.Y.3d 14 (2003) 17 People v Davis, 58 N.Y.2d 1102 (1983) 20 People v Delee, 108 A.D.3d 1145 (4th Dept 2013) 5, 10, 14, 16 People v Johnson, 87 N.Y.2d 357 (1996) 17 People v Lewie, 17 N.Y.3d 348 (2Q11) 10 People v Muhammad, 17 N.Y.3d 532 (2011) 3, 7, 11, 12, 14, 16, 19—21 People v Tucker, 55 N.Y.2d 1 (1981) 3, 7, 8, 10, 11, 14, 16, 19, 21 United States v Powell, 469 US 57 (1984) 19 STATUTES CJI2d(NY) 10 CPL 1.20(37) 9 CPL 300.40 (3) (b) 15 Penal Law § 485 3, 13, 19, 21 Penal Law § 485.05 8 Penal Law § 485.10(2) 9 Penal Law § 485.10(3) 9 —i— PRELIMINARY STATEMENT The District Attorneys Association of the State of New York (DAASNY) submits this brief as amicus curiae in this appeal. Justice Erin N. Peradotto permitted the People to appeal to this Court from an order of the Appellate Division, Eourth Department reversing defendant’s conviction of manslaughter as a hate crime as repugnant to the jury’s acquittal on ordinary manslaughter. The majority’s conclusion is drawn mainly from four premises: (1) hate crime manslaughter in the first degree equals ordinary manslaughter in the first degree plus one element —— that defendant intentionally selected his victim due to his homosexuality; (2) the court rightly instructed the jury that that element is the only difference between those crimes; (3) the acquittal on ordinary manslaughter necessarily meant, then, that the jury found that the People had failed to prove at least one of the elements common to hate crime manslaughter and ordinary manslaughter; and, (4) only the court’s description of the elements themselves, and no other directive, remark, or clarifying point, is relevant in resolving claims of repugnancy. —1— Arnicus will address how these premises, namely the third and fourth, lead to an application of New York’s repugnancy rule that needlessly penalizes the People for an omission from a jury charge that effectively authorizes a repugnant verdict - and does so, as here, even when it is known why the jury reached the verdict it did, and such reason was completely rational. As will be developed, an ordinary crime is a lesser included offense of that same crime when it is charged as a hate crime. It is thus subject to the rules governing jury consideration of lesser included offenses, including the need to provide an instruction that if the jury convicted of the greater crime, it should not deliberate on the lesser crime. Because that was not provided here, the jury deliberated on the lesser included offense of a crime on which it had already decided to convict, resulting in the purportedly repugnant verdicts here. But it is the absence of an instruction to the jury that it was to stop after convicting of the greater offense combined with the direction that it was to deliberate on the lesser included offenses of the hate crime regardless of its verdict on the hate crimes that makes clear that the verdicts it reached were not repugnant. It was that failure, combined with review of the instructions as a whole, that supports the notion that there is a valid and rational explanation for the jury’s conviction of the —2— hate crime on the one hand and its acquittal of the ordinary crime on the other. In the face of such rational reason, the verdicts were not repugnant. In any case, amicus would suggest that what has been demonstrated here is the unworkability of the Tucker/Muhammad repugnancy rule, at least as far as hate crimes go. In short, amicus would urge acceptance of the federal rule which does not recognize the notion of repugnant verdicts; in that way, where, as here, the repugnancy is the direct result of the court’s error, a defendant convicted on overwhelming evidence would not obtain the benefit of an undeserved reversal and dismissal. Interest of the Amicus The District Attorneys Association of the State of New York (DAASNY) is a state—wide organization composed of elected District Attorneys from throughout New York State, the Special Narcotics Prosecutor of the City of New York, and their nearly 2900 assistants. Members of the Association are responsible for the investigation and prosecution of crimes pursuant to County Law Section 700. In conducting such prosecutions, members of DAASNY regularly try cases, including those charging ordinary crimes and the more serious hate crimes pursuant to Penal Law § 485. The question of repugnant or inconsistent verdicts regularly arises in —3— the course of prosecutions. Apart from the Court’s invitation to appear on this appeal as amicus curiae, the question of inconsistent verdicts is a significant one, made all the more significant in the context in which it arises here — prosecution for an already serious crime made all the more serious since it was committed because of an animus toward gays. As the group representing those who prosecute these cases across the state, DAASNY’s interest in resolution of the repugnancy question presented here is manifest. We also believe that our experience in prosecuting cases of all types gives us a view on the question of repugnancy in general that will only be of aid to the Court. —4— STATEMENT OF FACTS Amicus relies on the relevant facts as rehearsed in the decision of the Appellate Division, Fourth Department in People v Delee, 108 AD3d 1145 (4th Dept 2013) (Peradotto,J., dissenting) —5— ARGUMENT REPUGNANCY REVIEW SHOULD ENCOMPASS ANY LANGUAGE IN THE JURY CHARGE, OR OMITTED LANGUAGE, REASONABLY LIKELY TO HAVE INFLUENCED THE VERDICT’S INCONSISTENCY. OTHERWISE, NEW YORK’S REPUGNANCY RULE SHOULD BE ABANDONED. In concluding that the conviction of first degree manslaughter as a hate crime and the acquittal on ordinary first degree manslaughter were repugnant, the Appellate Division resisted the notion that the latter was a lesser included offense of the former and merely compared the elements of the two crimes without considering the instruction as a whole, in particular the manner in which the jury was told to deliberate. But the failure to consider the instruction as a whole denied the court a chance to understand what the jury foreperson made clear in an affidavit filed together with the People’s response to defendant’s post—verdict motion to set aside the verdict — that there was indeed a rational basis to conclude that the verdicts were not repugnant. Simply put, it is perfectly understandable how the jury reached the conclusion it did and that conclusion was far from contradictory; it recognized the extra severity attendant upon any crime when committed as a hate crime while, at the same time, not engaging in overkill. —6— A. In People v Tucker, 55 N.Y.2d 1 (1981), this Court identified the genesis of repugnancy problems as the submission to a jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The difficulty stems from the jury’s implicit finding, in the form of a conviction, that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime and hence, an acquittal. In resolving such claims, this Court looks to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court; in other words, the reviewing court is to consider only “whether the jury, as instructed, must have reached an inherently self-contradictory verdict” (People v Tucker, 55 N.Y.2d 1, 8 ) . The purpose of the rule is to “ensure that an individual is not convicted of ‘a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all ‘“ (People v Muhammad, 17 N.Y.3d 532, 539 , quoting Tucker, 55 N.Y.2d at 6) . Resolving claims of repugnancy in this fashion keeps the court out of the jury’s deliberative process by barring speculation on how the jury perceived and weighed the evidence. —7— Limiting its understanding of the Tucker rule to the elements of the charged crime only, the Appellate Division majority was compelled to reach the conclusion it did; after all, as charged here, the two crimes have all their elements in common except for the element that elevates the ordinary crime to a hate crime. But by not considering the instructions as a whole, the court ignored the unique nature of hate crimes, and perhaps more importantly, neglected the longstanding rule about jury instructions that requires that, in considering their impact on deliberations, the instructions as a whole must be considered. Indeed, absent consideration of the instructions as a whole and, most particularly, how the jury ought to go about its business, it is difficult to see how a reviewing court can fairly consider whether the jury’s conclusion may have resulted in some inconsistency. B. Hate crime manslaughter in the first degree consists of every element of ordinary manslaughter in the first degree and one added element. The added element, set forth in Penal Law § 485.05, is that defendant intentionally selected the person against whom the offense is committed or intended to be committed or committed the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of —8— whether the belief or perception is correct. In this case, the People proved beyond a reasonable doubt that defendant’s victim had been singled out because of his homosexuality. Though hate crime manslaughter in the first degree and ordinary manslaughter in the first degree are both Class B felonies, there can be no doubt that the latter crime must be considered a lesser included offense of the former. As even the majority recognized, it is impossible to commit hate crime manslaughter without committing, by the same conduct, ordinary manslaughter - the classic definition of a lesser included offense. (CPL 1.20 ). And, while both are Class B felonies, in effect, they are of a different grade or degree; the punishment for hate crime manslaughter exceeds the punishment for ordinary manslaughter. If convicted of a Class B felony as a hate crime, the sentence ranges increase from that of an ordinary Class B felony, to the harsher sentences detailed in Penal Law § 485.10(3). Perhaps more tellingly on the lesser included question, if convicted of a misdemeanor, or Class C, D, or E felony as a hate crime, a defendant is to be sentenced as if the crime were in the next highest category. Penal Law § 485.10(2). What follows is that the legislature did indeed intend that ordinary crimes are lesser included offenses of the same crimes when committed as a hate crime; it so demonstrated by moving the crime up to the next highest class, if committed as a hate crime. —9— Certainly, had the trial court treated the counts as standing in a relationship of greater and lesser and instructed the jury so —— and as required, when such charges are before it —- the verdict would certainly have been consistent. The jury would have been told not to consider ordinary manslaughter if it found defendant guilty of hate crime manslaughter. (see CJI2d[NY]) . Unfortunately, it would appear that the trial court was of the same view as the Appellate Division majority, that “ordinary or plain manslaughter in the first degree is not a lesser included offense of manslaughter in the first degree as a hate crime.” (People v Delee, 108 A.D.3d 1145, 1147 [4th Dept 2013]) . This, as noted above, is simply incorrect. C. Because the trial court did not consider the ordinary crime as a lesser included of the greater hate crime, it failed to direct the jury not to consider the ordinary crime at all after conviction on the crime as a hate crime. Indeed, it directed the jury to consider the ordinary crime regardless. Because the repugnancy analysis involves examining the instructions to the jury “to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict,” (People v Tucker, 55 N.Y.2d 1, 8 ), and jury instructions are considered as whole, (People v Lewie, 17 N.Y.3d 348, 363 ), a repugnancy claim must be evaluated in light — 10 — both of what the jury was told and what it was not told; here, the omission of such a preclusive charge as well as the direction to consider the ordinary crimes even upon conviction of the hate crime. This case shows why the omission of the preclusive charge, that is, examination of the charge as a whole, must be part of the repugnancy analysis. The court’ s opposite directive to the jury to consider the ordinary crime, even if it had found defendant guilty of the hate crime, could not help be understood by the jury that acquittal on the former was a valid verdict despite conviction of the latter. It was not, if the elements are considered in a vacuum. As the Appellate Division majority concluded, pure legal consistency required like verdicts as to hate crime manslaughter and ordinary manslaughter. The court’s charge, however, allowed, and even invited, the jury to treat the two charges as separate, unrelated crimes. After all, the jury was told to consider the ordinary crime regardless of its resolution of the same crime as a hate crime. This permission or invitation is reasonably inferred from the court’s apparent provision of a choice where none should have been given. Having allowed the jurors to consider both the greater and the lesser included offenses, the question becomes, as per Tucker and Muhammad, “only [upon consideration of the charge given - 11 - to the jury and its verdict], if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other. If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case.” (People v Muhammad, 17 N.Y.3d 532, 539—540 ) . There is precisely such a basis. In enacting the hate crimes statute, the Legislature announced the following findings: The legislature finds and determines as follows: criminal acts involving violence, intimidation and destruction of property based upon bias and prejudice have become more prevalent in New York state in recent years. The intolerable truth is that in these crimes, commonly and justly referred to as “hate crimes”, victims are intentionally selected, in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. Hate crimes do more than threaten the safety and welfare of all citizens. They inflict on victims incalculable physical and emotional damage and tear at the very fabric of free society. Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs. Hate crimes can and do intimidate and disrupt entire communities and vitiate the civility that is essential to healthy democratic processes. In a democratic society, citizens cannot be required to approve of the beliefs and practices of others, but must never commit criminal acts on account of them. Current law does not adequately recognize the harm to public order and individual safety that hate crimes cause. Therefore, our laws must be — 12 — strengthened to provide clear recognition of the gravity of hate crimes and the compelling importance of preventing their recurrence. Accordingly, the legislature finds and declares that hate crimes should be prosecuted and punished with appropriate severity. Penal Law § 485.00. Most significant in this regard is the Legislature’s conclusion that at the time the law was enacted in 2000, the law did not adequately recognize the harm to public order and individual safety that hate crimes cause, that the law had to be strengthened to prevent their recurrence, and that such crimes had to be punished with appropriate severity. This is precisely what this jury did. By convicting of manslaughter as a hate crime but acquitting of ordinary manslaughter, the jury recognized not that there were elements common to manslaughter in the first degree as a hate crime and that same crime as an ordinary crime that had not been proven. Rather, its verdict demonstrated a clear recognition of the gravity of the crime of hate that defendant had committed. Returning a verdict that the crime was anything else — by convicting defendant of the merely ordinary crime of first degree manslaughter — would not have been a true statement of the jury’s view of the facts that it had found. Plainly then, there was every basis to justify the split verdict that this jury — 13 — returned — it was a statement of the community that what defendant had done was no ordinary crime but was an attack on the very fabric of the community and its ability to conduct civilized democratic discourse. This being the case, it cannot be said that the jury “has actually found that defendant did not commit an essential element” (Tucker, 55 N.Y.2d at 6 [emphasis added) D. What is unique in this case is that it is not merely a hypothetical view of the jury’s verdict, although such views would defeat a repugnancy claim, (see People v Muhammad, 17 N.Y.3d at 540), but what actually occurred here. As recited by Justice Peradotto in her dissent, “an affidavit of the jury foreperson, sworn to exactly one week after the verdict, states that, after concluding that defendant was the shooter, the jury proceeded to ‘deliberate on whether the case was a hate crime as defined by the judge. We determined that [defendant] ‘s motive and actions did meet the criteria as defined by the judge for a hate crime. We came to that decision relatively quickly. According to the foreperson, the jury then “discussed the other charges . . . that were not hate crimes, but did not find him guilty of those charges once we had determined that this was a hate crime” (emphasis added) . (People v Delee, 108 A.D.3d 1145, 1153 [4th Dept 2013] [Peradotto, J., dissenting] ) — 14 — What is evident from this affidavit is that defendant was not acquitted of ordinary manslaughter because he did not commit one or more of its elements, but because his conduct was encompassed in hate crime manslaughter. The jury avoided the needlessness or “overkill” of a conviction for ordinary manslaughter. The charges stood in such a relationship that conviction of hate crime manslaughter mandated dismissal of ordinary manslaughter (CPL 300.40 [b]) . Both crimes related to the same conduct, with one crime being a lesser of the other. The jury intuited this concept but lacked the required court instruction to express its will in a legally agreeable form. As finder of fact, it could not dismiss the ordinary manslaughter count. Nor could it avoid that count if it rejected a guilty verdict on ordinary murder. Forced as it was to consider ordinary manslaughter given its view of the evidence, and the court’s misinstruction, its “not guilty” finding was, under the circumstances, equivalent to a dismissal. In short, because the jury recognized that finding defendant guilty of the homicide charges that were not hate crimes would have been unnecessary or even “overkill”, the verdict was not at all repugnant. Put another way, rejecting a claim of repugnancy here would highlight what it was that the jury actually found. — 15 — E. As a general matter, New York’s repugnancy rule is justified by the notion that it is crucial to insure that a defendant is not convicted of a crime on which the jury has found that the defendant has not committed an essential element. Muhammad at 539; Tucker at 65. But application of such a rule must be with recognition that jurors are not “legal experts, “ Delee at 1154 (Peradotto, J., dissenting) and among the things they bring to the deliberations is common sense. Viewed in this light, the verdict is certainly a logical one and the finding of guilt must be sustained. First, the jury’s deliberations were reasonable in light of the court’s charge, namely the court’s failure to forbid the jury from considering ordinary manslaughter if it found defendant guilty of hate crime manslaughter. The jury’s avoidance of “overkill” in a case where two sets of crimes encompassed the same conduct resembled a prosecutor’s dutiful avoidance of multiplicity. Multiplicity, where a single offense is charged in multiple counts, “creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed” (People v Alonzo, 16 N.Y.3d 267, 269 ) . The jury was guided by a sense of that risk, and acted fair—mindedly, in renouncing an improper aggregation of punishment for a single crime. — 16 — Second, without the preclusive instruction in such a case, a jury could sensibly view hate crime manslaughter and ordinary manslaughter as contraries. That is, a jury could reason that defendant could not simultaneously, and in the same sense, have committed both crimes; he could not have killed his victim for being a homosexual and killed him without regard for his homosexuality. Put another way, either defendant committed a hate crime manslaughter or he committed nothing. Third, the jury’s verdict of acquittal on ordinary manslaughter reflects the basic concern “that the jury should be permitted to render a verdict that fully reflects defendant’s culpability” (People v Johnson, 87 N.Y.2d 357, 360—361 [1996)). The jury found that defendant had committed this as a hate crime, and it so returned its verdict. That it did not convict of ordinary manslaughter reflects a verdict that sought to assign the proper level of culpability to defendant while, at the same time, avoid the abuse of excess. Lastly, this case stands as a clarion reminder that common sense and sound reasoning must not be expelled from the legal evaluation of verdicts, but embraced if the judicial system is to honor “the true conscience of the jury” (People v Cahill, 2 N.Y.3d 14, 83 ) . This jury’s conscience crystallized in a rational verdict and was confirmed in the foreperson’s words, - 17 — and should be honored, not sacrificed for a rigid legal technicality. F. Finally, amicus submits that if New York’s repugnancy rule, rightly applied, requires affirmance of the order of reversal, such result illustrates why the rule should be abandoned. There can be little question that the verdicts here - conviction of hate crime manslaughter but acquittal of ordinary manslaughter — were the result of a court that did not appreciate that the ordinary crime is the lesser included offense of the identical crime when charged as a hate crime. Equally plain is that defendant killed his victim for the very reason decried by the hate crimes statute - the “intolerable” notion that the victim of the crime here was intentionally selected because of his sexual orientation. The Legislature’s worthy goal in punishing hate crimes proved by overwhelming evidence as was the case here must not be frustrated because of judicial error. This is a price far too great to pay in light of legislative findings that crimes such as this “inflict on victims incalculable physical and emotional damage . . . tear at the very fabric of free society [and] not only harm individual victims but send a powerful message of — 18 — intolerance and discrimination to all members of the group to which the victim belongs (Penal Law § 485.00) If that is the inevitable result of application of the Tucker/Muhammad rule, it may well be time to discard the rule and apply the federal rule - there is no such thing as a repugnant verdict. In United States v Powell, 469 US 57 (1984), the Supreme Court reiterated its longstanding rule that in the federal system, defendants would not be entitled to reversal because of inconsistent verdicts. The Powell court recognized that ofttimes the reason for the inconsistency is a jury’s desire to exercise lenity, that is, implementation by the jury of its historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch. United States v Powell, 469 U.S. at 65. But, of course, implementation of that role creates a burden that falls squarely on the government, which cannot appeal from such exercises of lenity. Consequently, in rejecting the notion that a criminal defendant can get relief because of repugnancy, the Powell court observed that a defendant is afforded all needed “protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts” (Id. at 67) — 19 — In rejecting this approach, this Court has identified the New York rule as a more moderate approach that extends better protection against verdicts that are inherently repugnant on the law. The rule ensures that an individual is not convicted of “a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all”. A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt. (People v Muhammad, 17 N.Y.3d at 538—539) Respectfully, in amicus’ view, New York’s approach to repugnancy is not so moderate after all. Despite its goal of protecting individuals whose trials have ended in inconsistent verdicts, it exacts a drastic toll on the People, who may not retry these individuals without judicial recourse. This toll is, as here, even harsher when a jury has rationally approached its deliberations and reached a reasonable verdict despite insufficient guidance from the court that charged it. In short, a defendant who has been convicted by a jury in whose selection he had a voice ought not be given the windfall of dismissal simply because that jury followed precisely what it had been told. Juries are, after all, presumed to follow those instructions, (see, e.g., People vDavis, 58 N.Y.2d 1102 [19831). — 20 — As demonstrated above, those instructions resulted in the inconsistency identified by the Appellate Division which, in its view, required reversal. * * * * * * Penal Law § 485.00, the hate crimes statute, was intended to give recognition to the additional physical and emotional damage suffered by victims of such crimes. The jury’s verdict, the apparent product of a court’s erroneous belief that an ordinary crime is not a lesser included offense of that same crime when it is committed as a hate crime, acknowledged this additional harm by refusing to characterize defendant’s crime as a mere ordinary manslaughter, but insisting that it was a hate crime or nothing. In a word, this was not repugnant; it was an expression of the community’s view of what it was that defendant had done. But should this Court conclude that, nevertheless, the verdicts were inconsistent, it must appreciate that the Tucker/Muhammad repugnancy analysis places too great a cost on those seeking to insure that defendants are convicted of that which they actually did. Dismissal is simply too great a price to pay especially when the proof of guilt is as overwhelming as it was here. — 21 — CONCLUSION The order of the Appellate Division should be reversed and the judgment of conviction reinstated. Respectfully Submitted, FRANK A. SEDITA, III Erie County District Attorney President, District Attorney’s Association of the State of New York C/O Erie County District Attorney’s Office Attorney for Appellant 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858—2424 Fax: (716) 858—7922 DONNA A. MILLING MORRIE I. KIJEINBART MICHAEL J. HILLERY Assistant District Attorneys of Counsel September 5, 2014 — 22 — STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT Appellant OF SERVICE v APL2O13-00229 DWIGHT DELEE, Defendant-Respondent STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO ) SYLVIA COLLINS, being duly sworn, deposes and says: That she is over 21 years of age and is employed by the County of Erie, at the Erie County District Attorneys Office; that on September 24, 2014 she served three copies of the Brief for District Attorneys Association of the State of New York as Amicus Curiae upon William J. Fitzpatrick, Esq., attorney for Appellant, addressed to William J. Fitzpatrick, Esq., at his office located at Onondaga County District Attorney’s Office, Criminal Courthouse, 4th Floor, 505 South State Street, Syracuse, NY 13202 by depositing true copies of same, securely enclosed in a postpaid wrapper, in a Post Office box regularly maintained by the United States Postal Service at the Erie County Hall in the City of Buffalo, New York. SYLVI OLLINS Subscribed and sworn to before e September 24 2014 DONNA A. MILLING Notary Public, State of New York’ Qualified in Erie County My Commission Expires February 9, 2016. STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT Appellant OF SERVICE v APL2O13-00229 DWIGHT DELEE, Defendant-Respondent STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO ) SYLVIA COLLINS, being duly sworn, deposes and says: That she is over 21 years of age and is employed by the County of Erie, at the Erie County District Attorneys Office; that on September 24, 2014 she served three copies of the Brief for District Attorneys Association of the State of New York as Amicus Curiae upon Philip Rothschild, Esq., attorney for Respondent, addressed to Philip Rothschild, Esq., at his office located at Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 by depositing true copies of same, securely enclosed in a postpaid wrapper, in a Post Office box regularly maintained by the United States Postal Service at the Erie County Hall in the City of Buffalo, New York. SYLVIA QLLINS Subscribed and sworn to before September 24, 2014.n . DONNA A MILLING Notary Public, State of New York Qualified in Erie County My Commission Expires February 9, 2016.