The People, Respondent,v.Demetrius McGee, Appellant.BriefN.Y.February 5, 2013To be argued by: Karen C. Russo-McLaughlin Buffalo, New York (716) 853-9555 Estimated time: 15 minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, DEMETRIUS McGEE, Appellant. REPLY BRIEF FOR APPELLANT Erie County Indictment No. 2008- 1258 DAVID C. SCHOPP Attorney for Appellant THE LEGAL AID BUREAU OF BUFFALO, INC. 237 Main Street - Suite 1602 Buffalo, New York 14203 BARBARA J. DAVIES Chief Attorney Appeals Unit KAREN C. RUSSO-MCLAUGHLIN, of Counsel DATE: September 25,2012 TABLE OF CONTENTS PAGE ............................................................................................. TABLE OF AUTHORITIES ii QUESTIONS PRESENTED ............................................................................................... 1 PRELIMINARY STATEMENT ........................................................................................ 2 ........................................................................................................................ ARGUMENT 3 .................................................................................................................. ............ POINT I A 3 BECA USE THE PROOF WAS INSUFFICIENT AS A MATTER OF LA W TO SUSTAIN HIS CONVICTIONS OF ATTEMPTED MURDER IN THE FIRST DEGREE AND RECKLESS ENDANGERMENT IN THE FIRST DEGREE APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE LA W (US CONST., AMENDS. 5, 14; NY CONST., ART. I, SECTION 6). ..................................................................................... .3 POINT I1 ............................................................................................................................. 10 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (US CONST., AMENDS. 6,14; NY CONST., ART. I, ..................... SECTION 6), REQUIRING THE REVERSAL OF HIS CONVICTION. 10 CONCLUSION .................................................................................................................. 15 TABLE OF AUTHORITIES CASES People v Acosta. 80 NY2d 665 .............................................................................................. 4 People v Aponte. 16 NY3d 106 .............................................................................................. 3 People v Campbell. 72 NY2d 602 ......................................................................................... 3 People v Cooley. 50 AD3d 1548 ............................................................................................. 8 People v Fraser and Senior. 126 AD2d 740 .......................................................................... 7 People v Hall. 242 AD2d 734 ................................................................................................ 7 People v Henning. 267 AD2d 1092 ....................................................................................... 8 People v Hollenquest. 309 AD2d 1 159 .................................................................................. 8 People v McCray. 33 AD3d 8 17 ........................................................................................... -8 People v Moore. 184 AD2d 1042 ......................................................................................... -8 People v Moradel. 278 AD2d 250 ........................................................................................ 8 STATUTES Penal Law § 110.00 ................................................................................................................ 3 Section 240.20 .................................................................................................................... 1 3 CONSTITUTIONAL PROVISIONS NY Const., Art . I. Section 6 ............................................................................................. 3 10 US Const.. Amend . 5 ............................................................................................................. 3 US Const.. Amend . 6 ........................................................................................................... 10 US Const.. Amend . 14 ..................................................................................................... 3 10 QUESTIONS PRESENTED 1. Was the proof insufficient as a matter of law to establish the charges of attempted murder in the first degree pursuant to Penal Law $ 5 110.001125.27 (l)(a)(i), 20.00 and reckless endangerment in the first degree pursuant to Penal Law 5 120.25, 20.00, thereby denying appellant his constitutional right to a fair trial and due process (US Const., Amends. 5, 14; NY Const., art. I, section 6)? Answer of court below: The court below rejected appellant's contention that the proof was legally insufficient to support the convictions. 2. Did the defendant receive effective assistance of counsel? Answer of the court below: The court below concluded that the appellant had not been denied effective assistance of counsel. PRELIMINARY STATEMENT This is a reply brief filed on behalf of appellant Demetrius McGee. In addition to the arguments set forth below, appellant respectfully reiterates and incorporates all facts and arguments previously presented in his main brief. ARGUMENT POINT I BECAUSE THE PROOF WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN HIS CONVICTIONS OF ATTEMPTED MURDER IN THE FIRST DEGREE AND RECKLESS ENDANGERMENT IN THE FIRST DEGREE APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE LAW (US CONST., AMENDS. 5, 14; NY CONST., ART. I, SECTION 6). It is settled that a defendant cannot be punished for the crime of attempted murder in the first degree unless the result -- death -- was intended. The People have simply failed to establish, beyond a reasonable doubt, with even a scintilla of evidence that the appellant intended to cause the death of a police officer. The proof was equally deficient to establish beyond a reasonable doubt that the appellant had engaged in conduct that constituted an attempt to commit a murder. Pursuant to Penal Law § 110.00, an attempt exists as an identifiable separate offense from the crime that is being attempted. (see, People v Campbell, 72 NY2d 602). "To prove attempt, the People must show that the defendant acted for a particular criminal purpose, i.e., with intent to commit a specific crime" (People v Aponte, 16 NY3d 106, citing People v Campbell, id.). Repondent seeks to impose a new standard of review Respondent argues that appellant's legal sufficiency argument, on appeal, required the appellant to convince the court that the "disputed verdict is irrational" (respondent's brief at p. 11). This suggestion overlooks the prosecution's fundamental responsibility to prove each and every element of the crime charged beyond a reasonable doubt. In addition, respondent's argument seeks to raise the bar for appellants by imposing a new and legally unsupportable standard for appellate review i.e., a demonstration by appellant that the jury's verdict is irrational (emphasis supplied). Appellant asks this Court to reject, out of hand, the prosecution's proposal to shift the burden on appeal in such a manner, for doing so would, in effect, dilute the People's fundamental duty to prove each and every element of a charge beyond a reasonable doubt. The People's skewed view that a successful insufficiency argument, depends upon appellant's ability to successfully demonstrate that the jury's decision is irrational, turns on its head the reviewing court's responsibility. People v Acosta, 80 NY2d 665, instructed that the court need only see a "valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubty' (supra at 672)(emphasis supplied). Clearly, contrary to respondent's assertions, the reviewing court's responsibility is twofold: (1) to examine the proof at trial to determine whether the reasoning and inferences reached by the jury are founded upon a rational basis, and (2) whether those conclusions are supported by evidence at trial that prove every element of the crime charged beyond a reasonable doubt. Appellant reasserts that because the People's evidence was insufficient as a matter of law the jury's verdict could not be based upon a valid line of reasoning or permissible inferences. The people failed to prove beyond a reasonable doubt that appellant's actions were "dangerously near" the completed crime. Respondent argues that the codefendant's act of shooting out the window of the passenger side door in the direction of the police vehicle was conduct that was "dangerously near" a murder. To adopt this argument, the proof would have to establish that a shot fired from the codefendant's gun either: (1) actually hit the officer or (2) struck the police vehicle in such a manner that the bullet was capable of causing the officer's death. Neither fact was established. Contrary to respondent's suggestion, there is not sufficient proof that any shot actually made contact with the police vehicle and respondent's statement that "one shot struck the driver side door" (respondent's brief at p. 13), inaccurately implies that a shot struck the front driver door where the officer was seated, coming perilously close to hitting Officer Clark. Upon closer review of the evidence it is clear that the shots fired, if they grazed the vehicle at all, did not come even remotely close to hitting the front driver's door or dangerously close to accomplishing a murder. The People's witness, Officer Maroney, a Buffalo Police detective in the crime scene unit, testified about his findings in the investigation of the crime scene following the incident and his observations of the police vehicle driven by Officer Clark. Maroney described the close-up photo of the police vehicle as depicting "a damage defect in the rear passenger - or rear driver's side door" (A-879-880) (Numbers in parentheses preceded by the letter "A" refer to pages in the appendix) (emphasis supplied). On direct examination Maroney describes the flaw he observed as follows: Q. And, Detective Maroney, what is your opinion as to what that damage is caused by? A. It's damage. It could have been caused by a lot of things. It's consistent with a ricochet shot of a bullet. It's also consistent with other damage, but there is a denting in of (sic) the metal on the door frame and also the rear, the white paint. (A-879) This testimony, read together with Officer Clark's testimony, that he was not even aware that the shots he heard had struck the vehicle he was driving (A-664), (in other words, he did not hear a bullet strike the vehicle he was driving, he did not detect any contact between the bullets fired and the police vehicle and he did not feel that he was in any immediate danger), could have led the jury to the only one rational conclusion i.e., that the shots fired did not even strike the police vehicle and that the codefendant's acts were neither "very near" nor "dangerously near" the completed crime. This equivocal evidence does not supply the necessary proof beyond a reasonable doubt that the actions of the appellant were dangerously close to completing the crime charged. Consequently, on the established facts, no rational jury could reach a conclusion that the appellant's direct actions came "very near" or "dangerously near", beyond a reasonable doubt, to accomplishing the murder of Officer Clark. Respondent's assertions that appellant's actions came "very near" or "dangerously near" the completed crime run contrary to the conclusions reached by courts throughout the state analyzing and defining acts that constitute attempt. In People v Fraser and Senior, 126 AD2d 740, the court found there was insufficient evidence to support the indictment, charging attempted murder in the first degree, against both defendants even though there was evidence that Senior had instructed Fraser, the driver, to "get out of here" and "go". Moreover, even though defendant Fraser removed a gun from his waist and aimed directly at Officer Fella, the court found that there was insufficient proof of the specific intent to cause the death of Sgt. Battcher, who was holding on to defendant Fraser's arm as the driver accelerated the vehicle. In the case at bar, unlike the facts in Fraser and Senior, supra, there was no evidence suggesting that appellant and his codefendant engaged in any conversation suggesting a shared plan to murder the officer and even if the court found that the evidence might establish that two shots were fired by the codefendant, he did not directly target the officer, he only "possibly" hit the rear portion of the police vehicle in an effort to avert capture. There is a lack of proof establishing, beyond a reasonable doubt, that a bullet even hit the police vehicle. These facts fall far short of the proof necessary to establish either an attempt to commit a murder, or the requisite intent to do so. In stark contrast, in People v Hall, 242 AD2d 734, where defendant was charged with attempted murder in the second degree, the court found legally sufficient evidence of the intention to cause death where the People's evidence established that the defendant pointed a gun directly at the complainant's head and fired two shots at close range, hitting the complainant in the right hand and thigh. Similarly, sufficient evidence of an attempt to commit murder in the second degree was found where "[tlhe People produced evidence that, during a routine traffic stop, defendant pointed a hand gun directly at the police officer and fired at him (People v Hollenquest, 309 AD2d 11 59). In each of these cases the defendant aimed and fired directly at the body of the victim. Clearly, the facts in each of the aforementioned cases are decidedly different from the facts here. The People failed to establish the requisite intent to commit murder. There is a common thread running through the cases where the requisite specific intent to commit murder is found, that being, the actual lethal or potentially lethal bodily contact perpetrated by the assailant against the victim (People v Henning, 267 AD2d 1092, where after quarreling, the victim was shot at close range; People v Moore, 184 AD2d 1042, charging an attempted murder, where the defendant made verbal threats, the victim suffered multiple stab wounds and the defendant continued to stab the victim until he collapsed; People v Moradel, 278 AD2d 250, where defendant was charged with attempted murder in the second degree the evidence established multiple stab wounds to the victim's head and chest; People v Cooley, 50 AD3d 1548, in an attempt to commit murder the defendant inflicted multiple stab wounds to the victim's throat, one of which penetrated her airway; and People v McCray, 33 AD3d 817, where the court rejected defendant's contention that the victim was accidentally stabbed, finding intent based on statements made by the defendant to friends and medical evidence indicating that the victim had been strangled, beaten and stabbed multiple times). Here, there was no evidence that the direct actions and conduct of the appellant could be perceived as even potentially fatal to Officer Clark. The facts defy the assertion that appellant and his codefendant had, in fact, formed the specific intent to commit the murder of Officer Clark. If that were the case, when the codefendant fired shots and missed, he would have continued to fire with the hopes that his objective -- murder -- would be accomplished. And, had the driver, also formed the specific intent to commit murder, the appellant, as the driver of the vehicle would have facilitated the shooter by driving the vehicle in such a manner as to provide a clear field of fire. Instead, he moved the vehicle out of the line of fire to avert a tragedy. Thus, the circumstances in the instant matter were far too remote to establish the element of attempt or to even suggest that the appellant, in concert with his codefendant, had formed the specific intent to commit a murder. Since the actual proof fell far short of meeting the People's burden of proving, beyond a reasonable doubt, that appellant and his codefendant had entered into a scheme or plan to specifically commit the murder of a police officer and that they jointly attempted to carry out such a plan, appellant's conviction for murder in the first degree must be reversed and the indictment dismissed. Accordingly, appellant asks this Court to reverse the Appellate Division's order and to reverse his conviction and dismiss the indictment based upon the legal insufficiency of the evidence. POINT I1 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (US CONST., AMENDS. 6, 14; NY CONST., ART. I, SECTION 6), REQUIRING THE REVERSAL OF HIS CONVICTION. Defense counsel's failure to seek severance of appellant's trial from that of his codefendant is, in retrospect, perhaps one of counsel's most damaging errors. The Appellate Division in concluding "that there was legally sufficient evidence to establish that appellant and his codefendant shared the requisite 'community of purpose' for accomplice liability to attach", relied upon the jailhouse informant's testimony concerning conversations he had had with the codefendant. Since the trial evidence firmly established that appellant was not the shooter, the joint trial was highly prejudicial to the appellant and appellant was irreparably harmed by the testimony of conversations between the codefendant and the jailhouse informant. In its decision, the Appellate Division concluded, based upon the testimony of Peter Golwitzer, the jailhouse informant (A-973-999), that "it was the driver of the vehicle, i.e., defendant, who initiated the events that led to the crimes at issue". Appellant asserts that the extrapolation of Golwitzer's testimony to suggest that the events were initiated by appellant requires overreaching and mental gymnastics. On direct examination Golwitzer testified about his conversation with Mychal Carr, the codefendant, as follows: Q. . . .what did he tell you generally about it? A. Told me that it was his birthday and that whoever was driving the truck and someone else came by, wanted him to hang out. He said no at first, you know, I'm really trying to, but because it was his birthday he said he got in the truck, and that's when they were driving around. * * * Q. So he told you he got in the truck, right? A. Yes. Q. What happened? What did he tell you happened next? A. They started driving around and something happened down one of the streets where the cops went to pull him over, got into the -- I don't know if it was a high-speed chase or what, but started following them, chasing them around. And that's when shots were fired. Q. Okay. Well, who fired the shots? A. From what I was told Mike. Q. Well, Mychal told you he fired the shots? A. Yes. Q. And who did he tell you he fired the shots at? A. Whoever was chasing him. Q. So the police? A. Yes. At this point the court sustained the objection, on the basis of leading, made by codefendant's counsel (A-889) while appellant's counsel sat mute. Golwitzer's testimony does not support the lower court's conclusion that the appellant and his codefendant shared a "community of purpose". Golwitzer did not know who was driving the truck when Carr was picked up at his house, referring to the driver only as "whoever was driving the truck". In fact, Golwitzer provides no time frame and he certainly failed to provide any reliable evidence that the person driving the truck when Carr was picked up was the same person driving the truck at the time of the incident. Golwitzer stated that "they" were driving around but could not identify the individuals in the vehicle. Given that there was testimony at trial of at least three individuals in the vehicle, Golwitzer's testimony was too vague to be accorded any credibility. Golwitzer's testimony supplied a vague, tenuous and speculative connection between the appellant and his codefendant and contrary to the lower court's conclusions, does not provide sufficient proof of a shared intent or accomplice liability. The only purpose served by Golwitzer's testimony was to prejudice appellant's defense. Although the codefendant's counsel objected several times regarding Golwitzer's testimony during the Cavdona hearing, and again, during his testimony at trial, appellant's attorney did not object at all. Codefendant's counsel cross-examined the jailhouse informant following the Cardona hearing, and again, following his direct testimony at trial, but there was no cross-examination of Golwitzer by appellant's counsel either during the Cavdona hearing or after his trial testimony. More serious though, was counsel's failure to object to the late disclosure of Rosario material regarding the statements made by Peter Golwitzer. On April 6, 2009, the first day of trial, the prosecutor represented to defense counsel and the court that, "as far as I know I have turned over everything I have for Rosario, Brady, or that's relevant under Section 240.20" (A-85). This is inaccurate however because all the Rosario material had not been provided to defense counsel. It was seven days later, on April 13, 2009, that statements made by Golwitzer in August, 2008 to the District Attorney's office and the handwritten letter, also sent in August 2008, to the District Attorney by Golwitzer were first provided to defense counsel (A-971). The obvious impeachment value of the statements of the prosecution witness, Golweitzer, and the prejudicial effect upon the appellant of the delay in turning over the statements would constitute reversible error, had defense counsel objected. Counsel's failure to object at this critical stage of the trial was fatal to appellant's defense. The failure of defense counsel to actively participate at this stage of the trial was irreparably harmful and prejudicial to the appellant. To a jury, this lack of participation could only be interpreted as a concession to the validity of the charges and the facts as presented by Golwitzer. In fact, Court Exhibit Number 5 in evidence, where the jury specifically requested the testimony of Golwitzer, further demonstrates the importance the jury placed on this witness's testimony and the prejudice suffered by counsel's failure to seek severance. In sum, the cumulative effect of defense counsel's errors, taken together, constitute ineffective assistance of counsel. The fundamental and critical errors of counsel worked to deprive appellant of his state and federal constitutional right to the effective assistance of counsel, requiring reversal of his conviction. CONCLUSION WHEREFORE, it is respectfully requested that this Court reverse the order of the Appellate Division and dismiss the indictment, or, alternatively, order a new trial, and grant such other and further relief as to this Court seems just and proper. Respectfully submitted, DEMETFUUS McGee, APPELLANT By his Attorney DAVID C. SCHOPP Dated: Buffalo, New York September 25,201 2 A of Counsel