The People, Respondent,v.Demetrius McGee, Appellant.BriefN.Y.February 5, 2013COURT OF APPEALS STATE OF NEW YORK To Be Argued By: MICHAEL J. HILLERY Requested Time: 15 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent v DEMETRIUS McGEE, Defendant-Appellant DONNA A. MILLING Indictment No. 01258-2008 BRIEF FOR RESPONDENT FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716} 858-2424 Fax: (716} 858-7922 MICHAEL J. HILLERY Assistant District Attorneys of Counsel TABLE OF AUTHORITIES CASES People v Acosta, 80 NY2d 665 (1993) . . 11, 12, 13 People v Ben even to, 91 NY2d 708 (1998) 16, 18 People v Borrero, 26 NY2d 430 ( 1970) 14 People v Hunter, 35 AD3d 1228 (4th Dept. 2006) . . . . . . . 18 People v LaBelle, 18 NY2d 405 (1966) 13 People v Lipsky, 57 NY2d 560 (1982) . 15 People v McGee, 87 AD3d 1400 (4th Dept 2011) 2, 14 People v Rizzo, 246 NY 334 (1927) 12 People v Stultz, 2 NY3d 277 (2004) 18 STATUTES CPL 60.50 15 Penal Law § 20.00 2 Penal Law § 110.00 2 Penal Law § 120.25 2 Penal Law§ 125.27(1) (i) 2 i TABLE OF CONTENTS Table of Authorities .................................. . i Questions Presented ................................... . 1 Preliminary Statement ................................. . 2 Facts 4 Point One. The verdict rested on legally sufficient evidence ............................... . 10 Point Two. Defendant received effective assistance of counsel ............................. . 16 Conclusion. The judgment of conviction should be affirmed in every respect ............. . 20 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent v DEMETRIUS McGEE, Defendant-Appellant Indictment No. 01258-2008 BRIEF FOR RESPONDENT QUESTIONS PRESENTED 1. Did the verdict rest on legally sufficient evidence? 2. Did defendant receive effective assistance of counsel? - 1 PRELIMINARY STATEMENT Defendant is appealing the Appellate Division, Fourth Department's decision of September 30, 2011, which unanimously affirmed his conviction (People v McGee, 87 AD3d 1400 [4th Dept. 2011]). Defendant and Mychal Carr were indicted for attempted first degree murder (Penal Law§§ 110.00, 125.27 [1] [i], 20.00) and first degree reckless endangerment (Penal Law §§ 120.25, 20.00). A jury convicted defendant as charged, and the court sentenced him to an aggregate prison term of twenty-five years to life. On appeal to the Appellate Division, Fourth Department, defendant argued that the trial proof was legally insufficient to support his conviction and he was denied effective assistance of counsel. The court rejected defendant's claims as without merit. This Court (Jones, J.) granted leave April 24, 2012. David C. Schopp, Esq. of The Legal Aid Bureau of Buffalo, Inc., Karen C. Russo-McLaughlin, Esq., of counsel, represents defendant on this appeal. - 2 The District Attorney of Erie County has represented the People of the State of New York throughout the proceedings. - 3 FACTS On May 14, 2008, around 7:00P.M., Catheryn Barlow was home with her three children watching television when she heard a firecracker or gunshot, and people yelling. She stepped onto the second-story porch of her Cambridge Avenue apartment with her toddler son. Many neighbors were outside of their houses (T 437- 440; numbers in parentheses preceded by "T" refer to pages of the trial transcript) . Barlow saw a vehicle at Scajaquada Street and Cambridge whose front passenger was screaming unintelligibly while seated on the door frame and stretching over the roof. The vehicle turned right onto Cambridge. As it neared Barlow's house, the screaming passenger drew a gun. Then, starting with Barlow's home, he opened fire, and she fled back inside with her son. Barlow checked on her children and returned to her porch. The vehicle was still nearby. She saw another person in the back passenger side with a gun, which he began firing at her. Both passengers fired continuously until the vehicle was close to Cambridge and East Ferry Street (T 440- 443, 499). The vehicle nearly struck, and shots were fired at, a police car that was turning left onto Cambridge. Another police - 4 car arrived, and both cars chased the rogue vehicle as it fled the area. The close-knit residents of Cambridge Avenue were left shaken, and their homes and a car marred by bullets (T 437, 443, 451) . Buffalo Police Officer Efrain Colon got a call over his patrol car radio of shots fired from a gold Equinox on Cambridge Avenue. Colon was just a quarter mile away and headed there instantly, as did Officer Ron Clark in another patrol car. As he neared Cambridge, Colon heard several shots. He turned left onto Cambridge and saw the Equinox coming toward him with a man hanging from the front passenger window, clutching the luggage rack with one hand and firing a handgun with the other. Colon yelled "Shots fired!" over the radio (T 506-510). The Equinox blew past Colon's car at great speed. Officer Clark tried to block it, but it glanced off his car and raced away. Clark activated his lights and sirens and radioed the events. Colon and Clark pursued the Equinox with several other patrol vehicles that had reached the scene (T 511-514, 574). Clark closed to about two car lengths from the Equinox. The Equinox raced through an intersection with a stop sign at about sixty-five miles an hour and was accelerating. On another two-lane - 5 street, Clark closed to about one car length from the Equinox. It quickly veered completely into the northbound lane -- the lane of oncoming traffic -- though the southbound lane was unobstructed. Then, the front seat passenger leaned out the window and shot at Clark's vehicle. Clark heard three shots but only saw two muzzle flashes (T 577-579) . Later, while the front passenger was still leaning out the window, Clark saw a silver handgun in his hand. The passenger re-entered the Equinox as it began to turn, and it raced toward downtown Buffalo at upwards of ninety, even one hundred, miles an hour. Clark and Colon kept losing ground and soon lost sight of the Equinox (T 513-514, 583-587). Officer Jose Colon also responded to the radio call, strategically stopping and exiting his patrol vehicle about three blocks from the chase. The Equinox made such a sharp right turn onto Walden that one side of it raised off the ground. It headed westbound toward Colon and his partner, John Poisson. Colon and Poisson trained their weapons on the Equinox, which was about a block and a half away from them. Colon could see the driver and someone to his right for the twenty or thirty seconds from when the Equinox wildly turned the corner to when it reached the officers. - 6 Once the Equinox passed by, Colon re-entered his patrol car and gave chase (T 520-528) . Officer Brian Britzzalaro joined the pursuit at its tail end. After learning that the other officers had lost sight of the Equinox, Britzzalaro found it abandoned on a side street. One of its doors was open. The front passenger window was rolled completely down, and the rear passenger window about three quarters of the way down (T 626-630). On learning that the Equinox had been found on Johnson Park, the other officers converged on the area. They captured four suspects nearby. Defendant was arrested by Officer Poisson (T 515, 525-526, 561, 587, 598, 648-652, 668-669). Officer Edwin Perez searched a parking lot near Johnson Park for evidence. While searching vehicles there, he came to a blue Volvo and found a handgun inside the wheel well atop the tire. The gun was seized as evidence (T 665-670). Meanwhile, the four suspects were brought to police headquarters and separated. Defendant asked Clark why he had been brought there. Clark told him that the police were investigating - 7 an incident. Defendant said he "didn't do anything" and "was just driving" (T 598-600) . Officer Clark noticed damage to the rear driver's side door of his patrol car, near the window at the rear of the door. The type of damage to the metal convinced Clark, who has seen a good share of bullet damage to vehicles, that a bullet had caused it. Detective James Maroney of the crime scene unit also deemed the damage to Clark's car consistent with a "ricochet shot of a bullet" (T 595, 779, 789). Maroney collected the weapon found by Officer Perez, a Kurz 9-millimeter handgun, which fires a . 380 round. Maroney inspected the Equinox, noting rear passenger side damage consistent with a bullet ricochet, which indicated that the bullet had traveled from the front to the rear of the vehicle (T 783, 789-790, 799) . The police found five fired casings. Four of the five were .380 casings, the same type of round used by the recovered handgun. The other was a .32 caliber cartridge case. These were found on Cambridge. One was found very near the intersection of Ferry and Cambridge. A bullet was taken from a porch railing at a - 8 Cambridge house. A parked vehicle at 25 Cambridge was damaged (T 790-791). Peter Golwitzer encountered co-defendant Mychal Carr while detained at the Erie County Holding Center. It turns out Carr and Golwitzer had mutual acquaintances. They began conversing together. Soon, Carr spoke about the events leading to his detention. He told Golwitzer that he got into a truck, a high- speed police chase ensued, and he fired shots at the police (T 886- 890) . Forensic Serologist Sarah Cuddeback swabbed the handgun for DNA evidence. Forensic Serologist Kristin Hornick developed a DNA profile from the gun swab and compared it with known samples from the four suspects. The major portion of the DNA profile from the gun swab matched the DNA profile of the known specimen from Mychal Carr. Meanwhile, defendant's genetic profile could not be excluded from the minor portion of the DNA profile from the gun swab (T 910-911, 924, 928-929, 932-933). Firearms examiner Stuart Easter tested the handgun using .380 ammunition. The weapon was operable (T 964-968). - 9 POINT ONE THE VERDICT RESTED ON LEGALLY SUFFICIENT EVIDENCE. After the People's case, defense counsel moved to dismiss the charges, claiming that the People's only proof of his guilt was his uncorroborated, spontaneous remark that he was the driver. The prosecutor countered that one officer had seen defendant driving, and another had seen the Equinox positioned in a way that helped the co-defendant get a clear shot at the police car. The court denied the motion, and the case went ·to verdict (T 988-990). On appeal to the Appellate Division, defendant disputed the sufficiency of the trial evidence, amplifying trial counsel's claims that defendant's admission of being the driver lacked corroboration and that, even if the shooter had intended to murder Officer Ron Clark, the prosecution failed to prove defendant had intended likewise. Defendant also attacked the sufficiency of the evidence of reckless endangerment and of the "community of purpose" needed to convict one as an accomplice. The Appellate Division held, contra these claims, that the record supported defendant's convictions. - 10 Defendant asserts basically four related claims to this Court: 1) the People failed to prove that his acts were "very near" the commission of the crime, i.e., the attempt element; 2) the People failed to prove that he and the shooter shared the "community of purpose" needed to trigger accomplice liability; 3) the People's case lacked proof that he intended to kill the officer; and 4) he was not proven to be the driver beyond a reasonable doubt. These assertions lack merit for the following reasons. The standard of appellate review pronounced by this Court decidedly rejects undoing the results of rational jury deliberations. The reviewing court must view the facts in a light most favorable to the People, and 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 doubt" (People v Acosta, 80 NY2d 665, 672 [1993], quoting People v Steinberg, 79 NY2d 673, 681-682 [1992]; emphasis added) . "Could have found" implies that the same proof might have led a rational jury to a different, even diametric, finding from that actually made. To have merit, then, a legal sufficiency argument cannot merely tout as rational a different verdict; it must show the disputed verdict to be irrational. The jury's - 11 verdict here, while possibly not the only rational result, was certainly rational. Defendant first disputes the jury's finding of the attempt element. This argument is two-fold: first, defendant's acts were too remote to constitute an attempt; second, if the evidence proved his intent to murder, which he denies, his quick return to the proper lane shows that he withdrew from the criminal enterprise. Punishable attempts are decidedly different from preparation to commit a crime (Acosta, 80 NY2d 665 at 670). This Court has distinguished between "remote" acts and those "proximate and near to the consummation" (People v Rizzo, 246 NY 334, 337 [1927]) . Only acts that come "very near" or "dangerously near" the completed crime are punishable attempts (Acosta at 670). The question on appeal is whether the jury could rationally have found that defendant's acts were "dangerously near" the completed crime. Defendant led police on a harrowing chase reaching perilous speeds. He moved into the oncoming traffic lane just after Officer Clark had closed to within a car length of the Equinox, and only then, when conditions for a decisive shot seemed best, did Mychal Carr fire two or three shots at Officer Clark's - 12 patrol car. Indeed, one shot struck the driver side door. The jury was certainly rational in viewing defendant's and Carr's conduct as "dangerously near" a murder. Defendant's proposed withdrawal theory simply does not hold. Only after Carr had fired the gun multiple times did defendant return to the correct lane. Anyway, defendant bore the burden of proving withdrawal from the criminal enterprise by a preponderance of the evidence, but he did not present this defense at trial (Acosta at 674, citing People v Butts, 72 NY2d 746, 749 [1988]). The argument is not preserved. Contra his next contention, defendant shared with Carr a "community of purpose" justifying accomplice liability. The proof, in other words, could lead a rational jury to see a "design" by both actors, whose synergistic conduct culminated in a murderous act toward Officer Clark (see People v LaBelle, 18 NY2d 405, 412 [1966]) . That proof of mutual design was well-marshaled by the Appellate Division: Defendant drove down the street at least twice prior to the shooting, operated the vehicle at a speed enabling the co-defendant to fire multiple shots and strike several houses along the street and led the police on a high-speed chase in an attempt to evade capture. In addition, a jailhouse informant testified that the co-defendant informed him that it was the driver of the vehicle, i.e., defendant, who initiated the events that led to the crimes at - 13 issue. (People v McGee, 87 AD3d 1400, 1401-02 [4th Dept. 2011]) . Thirdly, defendant claims that the People's case did not prove he intended to kill Officer Clark. He asserts, as a corollary, that the facts do not exclude "to a moral certainty" every reasonable hypothesis but guilt (People v Borrero, 26 NY2d 430, 434-35 [1970]). This Court has framed the issue this way: "In the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts" (Borrero, 26 NY2d 430 at 435) . A rational jury most certainly could infer from the established facts that defendant intended to kill Officer Clark. To avoid redundancy, the facts will not all be restated. A simple detail bears emphasis: Carr did not fire toward the sky, but Officer Clark. If defendant's maneuver and Carr's shots were meant only to "avert capture," then it is fair to ask why one bullet struck the rear driver side door -- not, say, a tire, and how defendant's brief turn -- performed only once, just before Carr's shots --was an escape tactic at all. At best, defendant's "mere evasion" argument might provide a rational alternative to the inferences asserted by the People for the established facts, but - 14 the facts invite, if not command, the quite rational inference that defendant and Carr intended to kill Officer Clark. Lastly, defendant argues that the People failed to prove he was the driver beyond a reasonable doubt. This claim lacks merit. Indeed, after his capture, defendant told Officer Clark he "didn't do anything" and "was just driving." This admission was amply corroborated: Officer Jose Colon saw defendant behind the wheel of the Equinox as it neared him and his partner (T 528); defendant's genetic profile could not be excluded from the minor portion of the DNA profile from the gun swab; and the jailhouse informant testified that Carr told him defendant had initiated the events leading to the crimes at issue. CPL 60.50 requires no more proof connecting defendant with the crimes (see People v Lipsky, 57 NY2d 560 I 571 [1982]) . The record attests that the jury's verdict was rational, thus satisfying the standard of appellate review this Court has long upheld. The verdict should therefore stand. - 15 POINT TWO DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL. Defendant argues that counsel's representation, though maybe "facially adequate," was marred by "several critical and substantial errors" fatal to his case. These were the failures to request a jury charge to attempted assault in the second degree and to challenge the probable cause for defendant's arrest. This Court has explained the long-held standard of "meaningful representation" thus: "As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v Benevento, 91 NY2d 708, 712-13 [1998]). By this standard, defendant was well represented. Defendant's theory of the case was that he was "just the driver," i.e. , that he lacked Carr's criminal intent. Counsel vigorously tried to prevail upon the jury that defendant.' s admission was the People's only proof against him. His approach was both reasonable and legitimate. - 16 Counsel had good reasons not to request a jury charge to the lesser included offense of attempted assault. The evidence did not support the view that Carr tried to seriously injure, but not kill, Officer Clark. The testimony portrayed an officer's life on a razor's edge as he pursued a vehicle of criminals in a frenetic chase, with speeds reaching ninety or one hundred miles an hour. It was in that context that Carr fired multiple shots toward the officer's driver side from close range, after defendant had veered into the on-coming traffic lane and improved Carr's angle with his target. Defense counsel may have rejected the idea that defendant had meant just to seriously injure Officer Clark because the whole context of the shooting so plainly pictured an officer's life imperiled. Another possible reason, lying beyond the record, for not requesting the lesser charge is that defendant, himself, preferred a "go for broke" approach. Defendant denies the efficacy of that approach -- and, therefore, that he would have declined to request the lesser charge, but there was a compelling reason to adopt it: it would place two diametric options before the jury in a very high-stakes attempted murder case that demanded the People reconstruct defendant's intent out of a chaotic, rapidly unfolding series of events -- no easy task. - 17 Counsel did not, contra defendant's claim, take a position adverse to him in explaining his decision to go to trial rather than plead guilty. Unlike in People v Hunter, 35 AD3d 1228 (4th Dept. 2006), counsel's remarks neither affected the outcome of a motion nor impaired the trial defense. Defendant can point to no real harm supposedly caused by counsel's remarks about his choice to go to trial (see Benevento, 91 NY2d 708 at 713-14) . Defendant also criticizes counsel's posture toward the joint Huntley and probable cause hearing, in which counsel allegedly "absented" himself from the probable cause part of the hearing. Yet, a probable cause challenge had little or no chance of success; counsel cannot be faulted for not pursuing one (see People v Stultz, 2 NY3d 277, 287 [2004]). The record attests that counsel competently advanced the reasonable and legitimate strategy of showing a lack of intent. Counsel objected to Carr's counsel's using the photo array. He guarded against the jury's learning that Catheryn Barlow had identified defendant as the shooter -- a fact that conflicted with what he knew the prosecution intended to offer (T 488-493). He elicited on Barlow's cross-examination her inability to recall whether the driver had been shooting, and that, in fact, she had not even seen the driver (T 501-502) . He elicited from Officer - 18 Jose Colon that he had not seen a gun in defendant's hand, and that none of the reports he had received indicated that the driver was the shooter (T 542). He established that it may not be unusual to find a mixture of several individuals' DNA on the gun, that DNA analysis could not determine when the DNA had been deposited, and that environmental factors can degrade DNA (T 918-921, 951). Beyond astute cross-examination, counsel made apt objections and a precise motion for a trial order of dismissal sufficient to preserve these arguments for appeal. He gave input into the court's jury charge and objected to amending the indictment (T 488-493, 677-678, 766, 988-990, 1012-1013). He was conscientious at all stages of the case. The record shows that counsel zealously pursued defendant's interests. Given counsel's evident concern to present a coherent defense, the approach he undertook cannot reasonably be deemed reversible error. The conviction should stand. - 19 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE AFFIRMED IN EVERY RESPECT. ~~~y Assistant District of Counsel August 22, 2012 - 20 Respectfully submitted, FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202