The People, Respondent,v.Joseph Harris, Appellant.

Brief

N.Y.October 16, 2013

To be argued by: THOMAS M. NOSEWICZ (Counsel requests 20 minutes.) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, — against — JOSEPH HARRIS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 by: THOMAS M. NOSEWICZ Staff Attorney May 9, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY POINT ONE The tumultuous search of the apartment that Joseph Harris had been invited into was illegal. (Replying to Resp. Br. at 43–60.) . . . . . . . . . . . . . 1 A. The suppression issue is not a mixed question because the issues presented are what minimum facts the prosecution must show to justify the warrantless search of the Queens apartment. . . . 4 B. Though Mr. Harris had a diminished expectation of privacy as a parolee, he still had standing to contest the search of the private home where he was, at the least, a social guest. . . . . . . . . . . 5 C. Respondent’s justification for the protective sweep of the Queens apartment is far too general and contradicts the “standard procedure” rationale offered below. . . . . . . . . . . . . . . . . . 10 D. Even if a sweep was permissible, tossing a couch exceeded the “visual cursory inspection” allowed. . . . . . . . . . . . . . . . . . . . . . . . . 12 E. The trial court should have allowed defense counsel to call as a witness the officer who took photos of the couch. . . . . . . . . . . . . . . 12 ii REPLY POINT TWO Because the People’s charging documents and proof at trial showed that Joseph Harris’s possession and use of a firearm occurred at the same time and place, consecutive sentences for those convictions are illegal. (Replying to Resp. Br. at 21–42.) . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. Respondent’s statement of the law is misleading because it never refers to the “special problems” inherent in consecutive sentences for use and possession of a firearm. . . . . . . . . . . . . . . . . . 17 B. Respondent’s one-week-after-the-fact possession theory does not show that Mr. Harris possessed the firearm in a separate act before shooting Lewis, who was “paying … no mind” to Mr. Harris before the shooting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. The Bill of Particulars alleged that the use and possession here occurred at the same time and Respondent cannot delete that from the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 D. Diluting the People’s burden for consecutive sentences for use and possession of a firearm would inevitably lead to gamesmanship and unjust outcomes such as the 20 extra years added to Mr. Harris’s sentence here. . . . . . . . . . . . . . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 iii TABLE OF AUTHORITIES Cases Com. v. Morrison, 429 Mass. 511 (Mass. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re Leroy M., 16 N.Y.3d 243 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003) . . . . . . . . . . . . . . . . . . . . . 7 Jones v. United States, 362 U.S. 257 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Maryland v. Buie, 494 U.S. 325 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 12 Matter of Corbin v. Hillery, 74 N.Y.2d 279 (1989) . . . . . . . . . . . . . . . . . . . . . . . 23 Minnesota v. Carter, 525 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 Morton v. United States, 734 A.2d 178 (D.C. App. 1999) . . . . . . . . . . . . . . . . . . . 7 People v. Alonzo, 16 N.Y.3d 267 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Bigelow, 66 N.Y.2d 417 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Boyland, 20 N.Y.3d 879 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Brannon, 16 N.Y.3d 596 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Brown, 80 N.Y.2d 361 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 27 People v. Cassidy, 40 N.Y.2d 763 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Chestnut, 19 N.Y.3d 606 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Dean, 8 N.Y.3d 929 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Felix, 232 A.D.2d 228 (1st Dep’t 1996) . . . . . . . . . . . . . . . . . . . . . . . . 20 iv People v. Grega, 72 N.Y.2d 489 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Hamilton, 4 N.Y.3d 654 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Hernandez, 218 A.D.3d 167 (2d Dep’t 1996) . . . . . . . . . . . . . . . . . . . . . 8 People v. Huntley, 43 N.Y.2d 175 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9 People v. Iannone, 45 N.Y.2d 589 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Joseph Harris, 96 A.D.3d 502, 502 (1st Dep’t 2012) . . . . . . . . . . . . . . 7 People v. Kelly, 62 N.Y.2d 516 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Laureano, 87 N.Y.2d 640 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Miles, 23 N.Y.2d 527 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Miranda, 19 N.Y.3d 912 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Ortiz, 83 N.Y.2d 840 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 People v. Ramirez, 89 N.Y.2d 444 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Rivenburgh, 1 A.D.3d 696 (3d Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . 20 People v. Rivera, 85 N.Y.2d 766 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Rodriguez, 69 N.Y.2d 159 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Salcedo, 92 N.Y.2d 1019 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Simpson, 209 A.D.2d 281 (1st Dep’t 1994) . . . . . . . . . . . . . . . . . . . . . 20 People v. Sturkey, 77 N.Y.2d 979 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Taveras, 12 N.Y.3d 21 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 v People v. Walker, 20 N.Y.3d 122 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 People v. Wright, 19 N.Y.3d 359 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Rakas v. Illinois, 439 U.S. 128 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Samson v. California, 547 U.S. 843 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 State v. Huff, 278 Kan. 214 (Kan. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 State v. Missouri, 361 S.C. 107 (S.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 State v. Ortiz, 618 N.W.2d 556 (Iowa 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Brown, 484 F. Supp.2d 985 (D. Minn. 2007) . . . . . . . . . . . . . . . . 8 United States v. Dye, 2011 WL 159255 (N.D. Ohio 2011) . . . . . . . . . . . . . . . . . . 8 United States v. Poe, 556 F.3d 1113 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 8 United States v. Roy, 734 F.2d 108 (2d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States v. White, 622 F. Supp. 2d 34 (S.D.N.Y. 2008) . . . . . . . . . . . . . . . . . 9 Statutes N. Y. Penal Law § 265.15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25 N.Y. Penal Law § 265.03(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25 N.Y. Penal Law § 265.03(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25 N.Y. Penal Law § 70.25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 vi Other Authorities Barry A. Kamins, New York Search & Seizure (2013) . . . . . . . . . . . . . . . . . . . 6, 10 Wayne LaFave, Search and Seizure (4th ed. 2004 & 2010-2011 Pocket Part) . . . 6 1 Parenthetical references to “A-” are to Mr. Harris’s Appendix. The transcript of the hearing held on April 27, 2009, is cited as “H1”; the proceedings on April 28, 2009, are cited as “H2”; the trial held on April 30, 2009, to May 8, 2009, is cited as “T2”; and the sentencing, on July 7, 2009, is cited as “S.” Each citation is followed by a parallel citation to the Appendix. 1 ARGUMENT REPLY POINT ONE The tumultuous search of the apartment that Joseph Harris had been invited into was illegal. (Replying to Resp. Br. at 43–60.) On October 6, 2008, two Emergency Services Unit (“ESU”) police officers ripped the door off the apartment Joseph Harris was staying at, immediately removed and detained both men inside, and then charged through the apartment with semi-automatic weapons at the ready. See H1 133–138 (A-190–195).1 During this search, they physically upended a couch and found a firearm underneath it. See id. Respondent first argues that the entire suppression issue raised by these undisputed facts is a mixed question of law and fact immune from all but the most cursory review by this Court. Resp. Br. at 44–45. But that proposition misapprehends this Court’s ability to review search and seizure issues when the question presented is what minimum factual showing is required to authorize certain police activity. That is just what is presented here: a series of essentially uncontested facts and what legal consequences those facts have. 2 Next, Respondent says that Mr. Harris has no ability to even challenge this search because his parole officer told him he should not be in the apartment since it was the residence of his co-defendant from a robbery he was on parole for. Resp. Br. at 44–51. But Respondent’s authorities for this proposition are inapposite. They consider scenarios where the defendant committed a new serious crime, not mere parole violations. These cases do not change this Court’s long-standing rule that though Mr. Harris as a parolee has a diminished expectation of privacy, “he did not surrender his constitutional rights against unreasonable searches and seizures.” People v. Huntley, 43 N.Y.2d 175, 180–81 (1977). And, Respondent continues, even if parole had not forbidden Mr. Harris to go to the Queens apartment, Mr. Harris had no standing to challenge the search because he was a mere social visitor and not an overnight guest. Resp. Br. at 51–53. But this distinction is meaningless because of what five justice of the United States Supreme Court said in Minnesota v. Carter: “[A]lmost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.” 525 U.S. 83, 99 (1998) (Kennedy, J., concurring). 3 On the merits of the search — a protective sweep that must be justified by “articulable facts” suggesting an attacker is lurking inside a home, Maryland v. Buie, 494 U.S. 325, 335 (1990) — Respondent offers only a vague justification premised on the general facts of the underlying shooting crime and Mr. Harris’s status as a parole violator. Resp. Br. at 55. These excuses were not offered to the trial court and are otherwise too general to support the protective sweep. At the suppression court, the best justification the police could muster is that such sweeps are “standard procedure.” H1 136–37 (A-193–94). Next, even if the sweep was allowed in the first place, the officers went too far by tossing couches in what should have been a “cursory visual inspection.” Buie, 494 U.S. at 32. Finally, Respondent does not seriously address Mr. Harris’s contention that the trial court erred by denying Mr. Harris’s request to examine a police officer who took photos of the couch. Resp. Br. at 58–60. The photos had been destroyed by the police by the time of the suppression hearing and all of the police witnesses at the hearing claimed to remember nothing about the couch. Respondent’s response to this issue — that no matter what the couch looked like, the officers could flip it over — offers scant justification for the trial court’s 4 refusal to allow defense counsel’s reasonable request to counter the prosecution witness’ stonewalling of a key issue at the suppression hearing. The firearm taken from the Queens apartment was the product of an illegal search. This Court should suppress that evidence and reverse Mr. Harris’s convictions. A. The suppression issue is not a mixed question because the issues presented are what minimum facts the prosecution must show to justify the warrantless search of the Queens apartment. Though this Court’s power to consider search and seizure issues is sometimes limited when a mixed question of law and fact presents itself, when the issue is “the minimum showing” needed to justify particular police activity “a question of law is presented for [this Court’s] review.” People v. Bigelow, 66 N.Y.2d 417, 420–21 (1985). And even when the issue is not expressly what the baseline for the police action is, this Court routinely considers search and seizure questions. See, e.g., People v. Walker, 20 N.Y.3d 122, 126–27 (2012) (deciding whether inventory search was properly conducted); People v. Miranda, 19 N.Y.3d 912 (2012) (considering whether a police officer was allowed to seize a knife); People v. Brannon, 16 N.Y.3d 596, 602 (2011) (deciding in one of two consolidated cases that “[t]he officer’s testimony therefore does not, as a matter of 5 law, support the conclusion that he had a reasonable suspicion that the knife in defendant’s pocket was unlawful.”); In re Leroy M., 16 N.Y.3d 243 (2011) (considering whether evidence was attenuated from earlier unlawful police activity). This Court’s recent order in People v. Boyland, 20 N.Y.3d 879 (2012), that “[w]hether a protective sweep is justified under particular circumstances involves a mixed question of law and fact” is not to the contrary because this case presents a question of what baseline facts must be shown to permit a sweep, not whether the particular mix of facts in a case allowed a sweep. The same reasoning applies to the question of standing, which is sometimes a mixed question as in People v. Ortiz, 83 N.Y.2d 840, 843 (1994), and sometimes is not, as in People v. Rodriguez, 69 N.Y.2d 159 (1987). Here, the facts are static and the only question is what the law allowed the police to do. B. Though Mr. Harris had a diminished expectation of privacy as a parolee, he still had standing to contest the search of the private home where he was, at the least, a social guest. As outlined in Mr. Harris’s opening brief, the prosecution’s own witnesses testified to sufficient facts showing that Mr. Harris was living at the Queens apartment, even if not for a full day. See Brief for Defendant-Appellant Joseph 2 Though Mr. Harris did not cite Carter in the lower courts, that does not prevent him from relying on it now. Both the suppression court and the Appellate Division held that Mr. Harris was merely a social guest and therefore did not have standing. See H2 52 (A-287) 6 Harris at 26. But whether he was living at the Queens apartment is ultimately irrelevant because five members of the United States Supreme Court have held that “almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.” Carter, 525 U.S. at 99 (Kennedy, J., concurring). Wayne LaFave’s treatise — which is in this Court’s view “the leading treatise on the law of search and seizure,” Walker, 20 N.Y.3d at 126 — confirms that Carter grants Mr. Harris standing. See Wayne LaFave, Search and Seizure, § 11.3(b) at 151–52 (4th ed. 2004 & 2010-2011 Pocket Part) (A “majority in Carter actually embraced the position that a social guest would not have to be an overnight guest in order to have standing in the premises of another.”); Barry A. Kamins, New York Search & Seizure, § 1.03[1] at 1-127 (2013) (“[A] majority of the Justices would confer standing on social guests who do not necessarily remain overnight at the home of their host.” ). As Mr. Harris urged in his opening brief, this Court should overrule Ortiz, 83 N.Y.2d at 840, and those other cases holding that a social guest does not have standing to challenge the search of a private home.2 (suppression court implicitly rejected social guest standing by holding that the legal standard for standing is “not my door’s always open to [you,] it’s not that he’s there”); People v. Joseph Harris, 96 A.D.3d 502, 502 (1st Dep’t 2012) (holding there was no standing because Mr. Harris was a “mere visitor”). These conclusions were error and are appropriately challenged in this Court. The issue of a social guest’s standing has been the key to this case ever since the suppression hearing and this Court can certainly rule on it now. See People v. Chestnut, 19 N.Y.3d 606, 611 n.2 (2012) (preservation rules “should not be applied in [an] overly technical way ... that focus[es] on minutiae or emphasize[s] form over substance.”). 3 See, e.g., United States v. Poe, 556 F.3d 1113, 1122 (10th Cir. 2009) (“[A] social guest who does not stay overnight has a reasonable expectation of privacy.”); State v. Huff, 278 Kan. 214, 220 (Kan. 2004) (“As social guests, defendants had standing to assert that expectation.”); State v. Missouri, 361 S.C. 107, 114 n.3 (S.C. 2004) (“[I]t is apparent that at least five members of the Court … would be willing to extend protection to guests present for social reasons and present for some time less than an overnight stay.”); In re Welfare of B.R.K., 658 N.W.2d 565, 576 (Minn. 2003) (“While not binding authority, the dissenting and concurring opinions in Carter indicate that a majority of the Supreme Court considers a short-term social guest’s expectation of privacy legitimate.”); State v. Ortiz, 618 N.W.2d 556, 560 (Iowa 2000) (“[W]e must be mindful of [Justice Kennedy’s] concurring opinion, as well as the plurality opinion, because, without Justice Kennedy’s concurrence, the Court’s finding of no reasonable expectation of privacy would not have prevailed.”); Morton v. United States, 734 A.2d 178, 182 (D.C. App. 1999) (noting “the common thread in the various opinions in Carter that at least 7 Mr. Harris was just such a social guest because he was at the Queens apartment for a few hours hanging out with his friend and former co-defendant Ricky Kelly. See H1 35–37 (A-92–94); H1 42–43 (A-99–100). The prosecution and the Appellate Division both characterized Mr. Harris as a social guest. See T2 23, 32 (A-258, 267) (prosecutor: Mr. Harris was an “invitee” and “visitor” at the apartment); People v. Joseph Harris, 96 A.D.3d 502, 502 (1st Dep’t 2012) (holding there was no standing because Mr. Harris was a “mere visitor”). Aside from trying to delay this Court’s inevitable joining of courts across the country recognizing the import of Carter,3 Respondent says that Mr. Harris’s social guests of the host generally have a legitimate expectation of privacy”). 4 United States v. Roy, 734 F.2d 108 (2d Cir. 1984) (escapee from prison); People v. Hernandez, 218 A.D.3d 167 (2d Dep’t 1996) (same); United States v. Dye, 2011 WL 159255 (N.D. Ohio 2011) (violating protective order); United States v. Brown, 484 F. Supp.2d 985 (D. Minn. 2007) (trespassing); United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986) (trespassing); Com. v. Morrison, 429 Mass. 511 (Mass. 1999) (violating protective order). Though another case cited by Respondent, United States v. White, had facts close to those here, it only considered 8 “wrongful presence” — because it was in violation of his parole conditions — at the Queens apartment also defeats standing. Resp. Br. at 46–49. Respondent stretches its authorities too far. The “wrongful presence” formulation it relies on came in a sparse aside in a 1960 United States Supreme Court opinion noting that those “legitimately on premises” have a reasonable expectation of privacy in the premises but that rule “would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” Jones v. United States, 362 U.S. 257, 267 (1960). Eighteen years later, the Court offered more dicta on what “wrongful presence” might mean: “A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’” Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). That example — a burglar caught in the act — was of a defendant in the midst of a new crime. So too are the rest of Respondent’s authorities.4 wrongful presence in a footnote and as “an alternative basis on which [the] motion to suppress could be denied.” 622 F. Supp. 2d 34, 43 n.8 (S.D.N.Y. 2008). 9 Those cases are inapposite because Mr. Harris was not committing a new crime by associating with Kelly. He was merely violating the terms of his parole. Respondent cannot argue that either the Supreme Court of the United States or this Court has ever said that a defendant in the midst of a petty offense — much less a non-criminal parole violation as the one here — loses all expectation of privacy. Nor does Respondent point to any Appellate Division decisions on the issue of non-serious offenses. Mr. Harris agrees that he had a reduced expectation of privacy as a parolee. See Samson v. California, 547 U.S. 843, 849 (2006). But he did not entirely lose his rights. In fact, this Court has said that the state may take advantage of a parolee’s diminished privacy interests only if the search is “substantially related to the performance of [the parole officer’s duty] in the particular circumstances.” Huntley, 43 N.Y.2d at 181. But this rule applies only to parole and the police department must still follow “the familiar requirement of a showing of probable cause.” Id. Here, there was no substantial connection between the search of the Queens apartment and Mr. Harris’s parole restrictions. First, the search was not even 10 conducted by a parole officer. Next, the very arrest of Mr. Harris at Kelly’s Queens apartment provided conclusive evidence of a parole violation. Mr. Harris was not supposed to be there at all. Nothing inside the apartment was needed. Finally, the firearm seized from the apartment was obviously evidence to help a criminal investigation, not to further parole’s supervision. As Justice Kamins has explained, “the courts have drawn the line where a parole officer is seeking evidence in aid of a prosecution for criminal activity.” Kamins, New York Search & Seizure, § 4.03[8][c] at 4-180. Since parole itself could not have searched the apartment, Mr. Harris at least has standing to challenge the search when the police, a different entity entirely, conducted it. C. Respondent’s justification for the protective sweep of the Queens apartment is far too general and contradicts the “standard procedure” rationale offered below. At the suppression hearing, the officer who led the sweep through the Queens apartment said it was conducted as part of “standard procedure.” H1 136–37 (A-193–94). That is not enough of a reason to conduct a warrantless search. Instead, a protective sweep must, like all searches, be anchored to a particularized suspicion specific to the situation at hand. Buie, 494 U.S. at 335. The scene at the Queens apartment was not quickly evolving or uncertain: police 11 officers had been there for hours, the two men inside the apartment were quickly handcuffed and removed — as one of the ESU officers said, the men were “down on their knees and [the police] were holding them,” H1 146 (A-203) — and there was no indication that anyone else was lurking inside. But Respondent argues that a sweep was allowed because Mr. Harris was “a suspect in an extremely violent crime, in violation of his parole, and potentially in the company of an accomplice from a prior armed robbery.” Resp. Br. at 55. These are no justifications at all. Each of these concerns was addressed before the sweep began: Mr. Harris — the violent suspect — was under control, the parole violations were technical ones for failing to report, and the old accomplice Ricky Kelley had already been taken into custody. If these were the reasons for the sweep, the officers should not have even stepped through the front door after removing Mr. Harris and Kelly. Finally, these reasons were not offered to the suppression court. All the prosecution argued there was that “the facts and circumstances of the arrest,” T1 35 (A-92), justified the “standard procedure” sweep. H1 136–37 (A-193–94). 12 D. Even if a sweep was permissible, tossing a couch exceeded the “visual cursory inspection” allowed. But if the ESU officers were allowed to rumble through the Queens apartment, the officers exceeded the “cursory visual inspection” Buie, 494 U.S. at 332, of a protective sweep. They physically tossed a couch. Respondent says this was allowed because “the ‘legs’ of the upturned sofa … might have been long enough that a person might have been able to lie flat under the sofa” and that someone might have been hiding “behind the couch.” Resp. Br. at 58. That would have been one big sofa. Without any of the officers able to remember the size of the sofa, it is simply unreasonable to assume that the sofa in the Queens apartment was abnormally large. And if the officers were really concerned with someone hiding behind the sofa, they could have just looked. E. The trial court should have allowed defense counsel to call as a witness the officer who took photos of the couch. Finally, Respondent quickly addresses Mr. Harris’s contention that the trial court should have done more to address the spoliation of evidence here — photographs of the couch that were destroyed before the hearing. Trial counsel’s suggestion was eminently reasonable: examine the police officer (who was going to testify shortly at trial) who took the photos of the couch. Justice McLaughlin 13 denied this request because “the jury” could consider the destruction of the photos, H2 6 (A-241), evidence relevant to a suppression issue. And Respondent defends that denial because the couch was of “marginal relevance” because there should be no second-guessing of a police officer during a protective sweep, no matter what the photos may have shown about the couch. Resp. Br. at 60. But sweeps are still warrantless searches and are only allowed in certain circumstances and under certain conditions. If trial courts do not review these warrantless searches, their intrusiveness will inevitably expand based on increasingly outlandish theories of where phantom assailants may be lurking. Justice McLaughlin should have at least tried to gotten to the bottom of the couch issue and should have allowed defense counsel to examine the police officer who took enough time at the scene to photograph the couch. See People v. Kelly, 62 N.Y.2d 516, 521 (1984) (explaining trial court’s duty “to eliminate any prejudice to the defendant while protecting the interests of society” when crafting remedy for lost evidence). The suppression court’s failure to do so requires this Court to suppress the evidence and reverse Mr. Harris’s convictions. 14 REPLY POINT TWO Because the People’s charging documents and proof at trial showed that Joseph Harris’s possession and use of a firearm occurred at the same time and place, consecutive sentences for those convictions are illegal. (Replying to Resp. Br. at 21–42.) This Court has long emphasized the “special problems,” People v. Wright, 19 N.Y.3d 359, 366 (2012), inherent in consecutive sentences for possession of a firearm and use of the firearm. The prosecution, therefore, has a correspondingly high burden to prove that possession of a firearm is distinct from the use of that firearm. In this case, the prosecution did not satisfy its burden. At most, the People’s proof showed that Mr. Harris’s possession of the firearm preceded his use of the firearm by a moment. The complainant Leonard Lewis — who was also the only eyewitness — testified that he was “paying … no mind” to Mr. Harris before Mr. Harris “all of a sudden” came up to Lewis’s vehicle and “all of a sudden” opened fire. T2 20 (A-401); T2 13 (A-394). Under this Court’s settled rules, this evidence confirmed that Mr. Harris’s use and possession of the firearm occurred in a single act. Mr. Harris could not be punished twice for this single act. See N.Y. Penal Law § 70.25(2) (requiring concurrent sentences when offenses are committed in a “single act.”). 15 That the evidence unfurled at trial like this is not surprising. Months before trial, the People disclosed in a Bill of Particulars their theory that all of the crimes Mr. Harris was charged with — attempted murder, assault, and two counts of criminal possession of a weapon — occurred at the same time: approximately 11:50 AM on September 25, 2008. See A-10. Before trial, the People never told Mr. Harris that their theory had changed. The proof at trial matched the theory in the Bill of Particulars. A separate act of possession was not mentioned in opening statements or summation or charged to the jury. It was only at sentencing that the prosecutor advanced his new theory that Mr. Harris “lived his daily life in the possession of a loaded handgun” and therefore had a loaded firearm when Lewis arrived on the block about twenty minutes before the shooting. S 8 (A-1054). But by then it was too late for new ideas. Not once does Respondent refer to the “special problems” the Court has identified in consecutive sentences for possession and use of a firearm. Instead, Respondent repeats over and over that Mr. Harris had a firearm well before shooting Mr. Lewis. But its only purported proof from the record for this conclusion is that the same firearm used to shoot Lewis was recovered more than a week later in the Queens apartment where Mr. Harris was arrested. Resp. Br. at 31. Respondent says this is “conclusive circumstantial proof.” Resp. Br. at 35. In 16 fact, it does nothing to show that Mr. Harris possessed a loaded firearm at a time prior to and distinct from the shooting incident. Whatever aid this “circumstantial proof” offers Respondent, it is not enough to overcome the “special problems” created by twice punishing Mr. Harris for use and possession of a firearm accomplished in a single act. Aside from the problems of proof with Respondent’s argument, there is another compelling reason to disallow the consecutive sentences here. In People v. Hamilton, 4 N.Y.3d 654 (2005), and Wright, 19 N.Y.3d at 359, this Court set an especially stringent standard for prosecutors to meet before consecutive sentences could be imposed for possession of a weapon with intent to use it unlawfully against another, N.Y. Penal Law § 265.03(1), and a substantive offense involving that same weapon. Though the simple possession offense here, N.Y. Penal Law § 265.03(3), does not require a showing of any particular intent, a consecutive sentence for simple possession presents the same problems as a sentence for possession with intent because — thanks to a statutory presumption that any possession of a weapon is possession with intent, N. Y. Penal Law § 265.15(4) — the offenses are essentially the same. Allowing consecutive sentences here would signal to prosecutors that Wright and Hamilton are all but dead letters because the high bar those cases set 5 Respondent also tries to overcomplicate this Court’s analysis by arguing that the test of comparing statutory elements first articulated in People v. Laureano, 87 N.Y.2d 640, 643 (1996), applies here. See Resp. Br. at 22. This Court has not used this test in decisions about consecutive sentences for weapons possession and use that came after the Laureano decision in 1996. In 1998, People v. Salcedo, 92 N.Y.2d 1019 (1998), did not cite Laureano or use its analysis. Nor did Hamilton, 4 N.Y.3d at 17 can be easily avoided just by charging simple possession instead of possession with intent on identical facts. This Court, as it has frequently done in the past, should not condone that prosecutorial manipulation. A. Respondent’s statement of the law is misleading because it never refers to the “special problems” inherent in consecutive sentences for use and possession of a firearm. Mr. Harris’s brief and Respondent’s brief paint close to the same picture of this Court’s consecutive sentencing jurisprudence. But Respondent’s brief has a telling omission — not once does it mention the “special problems” this Court has identified for decades when it comes to consecutive sentences for use and possession of a firearm. In People v. Brown, this Court recognized a “narrow rational and statutory interpretation [of Penal Law § 70.25(2)] underlying our cases dealing with consecutive sentencing in weapons prosecutions, where there is an interrelated ensuing substantive crime.” 80 N.Y.2d 361, 364–65 (1992). Twenty years later in Wright, these “special problems” were no less pressing. 19 N.Y.3d at 366.5 654, in 2005. Finally, this Court explicitly rejected Laureano’s application last year in Wright by first noting that Laureano provides the usual test but then holding that a “different framework” applies for weapons possession because of “the heightened level of integration between possession and the ensuing substantive crime for which the weapon was used.” 19 N.Y.3d at 366. 18 The upshot is that weapons possession cases are sui generis and the prosecutor must satisfy an especially exacting burden to show that the use and possession proven at trial were separate and distinct acts. Here, this burden was not met. B. Respondent’s one-week-after-the-fact possession theory does not show that Mr. Harris possessed the firearm in a separate act before shooting Lewis, who was “paying … no mind” to Mr. Harris before the shooting. Respondent would have a stronger argument for consecutive sentences here if they could prove that Mr. Harris had a weapon on him before Lewis showed up. But wishing these were the facts does not make them appear in the record. The record lacks evidence to support Respondent’s supposition: the only eyewitness, the complaint Lewis, said he saw Mr. Harris speaking to a man called Bad One but was “really paying them no mind,” T2 20 (A-401), before Mr. Harris “all of a sudden” came up to Lewis’s Jeep, greeted him, and then “all of a sudden” opened fire. T2 13 (A-394). As Lewis put it, “things just happened real fast.” T2 152 (A- 533). 19 Lewis simply did not see what Mr. Harris was doing until the shooting began. To solve this problem in its case, Respondent tries to change who has the burden at sentencing. Even though it is clear that the People have the burden of justifying a consecutive sentence, see, e.g., People v. Taveras, 12 N.Y.3d 21, 25 (2009), Respondent says “[t]here is no evidence whatsoever that defendant obtained the gun only immediately before approaching Lewis.” Resp. Br. at 31. But it does not matter whether Mr. Harris could prove this. What mattered was whether the prosecution could show that the weapon was possessed at a separate and distinct time before the shooting. Aside from its attempted burden shifting, Respondent refers to only one fact in the record to support its position: Mr. Harris was arrested at the Queens apartment 11 days after the shooting and in the apartment was the gun used in the shooting. Resp. Br. at 33. But this proves next to nothing. Respondent’s argument only works if possession long after proves possession long before. It simply does not. Though Mr. Harris may have had the weapon 11 days before the shooting just because he was close to it 11 days later, there was as much proof of that as that he got the firearm in the second before he approached Lewis. The People needed to do more than suggest an interesting idea of when Mr. Harris began possessing the firearm. See People v. Dean, 8 N.Y.3d 929, 930–31 (2007) 20 (though defendant possessed multiple images of child pornography, the prosecution’s failure to allege specific separate incidents of possession precluded consecutive sentences). Several cases cited by Respondent, Resp. Br. at 29 n.9, allowing consecutive sentences for simple possession emphasize just how poor the prosecution’s proof was here. See People v. Rivenburgh, 1 A.D.3d 696, 701 (3d Dep’t 2003) (“[D]efendant admitted that he carried the .38 caliber revolver on his person at all times prior to its seizure.”); People v. Felix, 232 A.D.2d 228, 228 (1st Dep’t 1996) (“[T]here was evidence that defendant possessed the weapon and placed it in the back seat of a car before accosting the victim and shooting her.”); People v. Simpson, 209 A.D.2d 281, 282 (1st Dep’t 1994) (a witness saw the defendant put a gun in his pants well before the defendant fired the weapon at another location); People v. Bernier, 204 A.D.2d 732, 732 (2d Dep’t 1994) (when a crowd at a nightclub became unruly, a security guard “retrieved a shotgun from his boss, held it across his chest, and used the gun and his elbow to push the crowd back” before accidentally firing the weapon). What these case have in common is that the prosecution proved both where the gun came from — and hence the exact moment the defendant’s possession began — and how long the possession lasted. That information is entirely lacking 21 here. Instead, all the People proved was that Mr. Harris had a gun when he “all of a sudden” appeared at Lewis’s car, an appearance that preceded his opening fire only by a moment. T2 13 (A-394). That incidental possession is not a separate act. See People v. Sturkey, 77 N.Y.2d 979, 980 (1991) (possessing a stolen firearm for “two to four seconds” is not separate and distinct from the preceding robbery). Since it was the People’s burden to show separate and distinct acts, the gap in the record was theirs to fix, not Mr. Harris’s. C. The Bill of Particulars alleged that the use and possession here occurred at the same time and Respondent cannot delete that from the record. The hole in the record about when Mr. Harris first possessed the firearm in this case is not surprising. The People’s proof at trial mirrored the Bill of Particulars and the Bill of Particulars said that the four crimes Mr. Harris was charged with had but a single time of occurrence: approximately 11:50 am on September 25, 2008. See A-10. 22 This was the entirety of the Bill of Particulars provided to Mr. Harris: The Bill of Particulars makes no distinction between offenses. It does not even give a range of time for the offenses to have occurred within. Instead, it presents a single moment of criminal action: approximately 11:50 AM on September 25, 2008. Nor did the People’s response to Mr. Harris’s omnibus motion theorize a separate act of weapons possession on September 25, 2008. See A-31, ¶ 4; A-37, ¶ 2. Respondent now says that the Bill of Particulars is but meaningless “general language in the People’s charging documents … [that] indicated nothing more than an ‘[o]ccurence’ at ‘[a]pp[roximately]’ 11:50 a.m. on September 25, 2008.” Resp. Br. at 34. 23 This Court has said otherwise. Once a factual theory is alleged, “the People [a]re not then free to present proof at trial that virtually rule[s] out that theory.” People v. Grega, 72 N.Y.2d 489, 498 (1988). The Bill of Particulars has such powerful binding effect because it supplements an indictment. See Matter of Corbin v. Hillery, 74 N.Y.2d 279, 290 (1989) (holding that what a prosecutor “has affirmatively stated in its bill of particulars … became a part of its pleadings and, until amended, was binding on the People), aff’d sub nom. Grady v. Corbin, 495 U.S. 508 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688 (1993). These charging documents serve three important functions: (1) vindicating Mr. Harris’s due process rights to notice of the charges against him to allow him to present a defense, (2) ensuring symmetry between the crime proven at trial and the one the grand jury indicted, and (3) preventing double jeopardy violations. See People v. Rivera, 85 N.Y.2d 766, 769 (1995) (citing People v. Iannone, 45 N.Y.2d 589, 594–95 (1978)). All three of these concerns are at stake here. Mr. Harris had no notice he was defending against separate criminal acts. Counsel therefore had no reason to cross-examine Lewis about what Mr. Harris was doing before the shooting. This made the sudden arrival at sentencing of a new theory of possession particularly 24 troublesome because it left Mr. Harris ill-prepared to counter it with evidence from trial. Nor is there any assurance that the grand jury returned an indictment for a separate possession that was completed before Lewis was shot. Though Mr. Harris made a motion to inspect the grand jury minutes, that motion was made while the prosecution was sticking to its Bill of Particulars theory of a single criminal act; the trial court had no reason or ability to compare theories. And since the prosecution’s trial evidence did not describe a separate act of possession, it is unlikely the more summary grand jury proof did either. Indeed, if it had, the Bill of Particulars would have had to disclose it. Finally, preventing Mr. Harris’s exposure to twenty additional years of punishment from a consecutive sentence for possession of the firearm is the exact double jeopardy concern that is “embodied in, if not extended by Penal Law § 70.25(2).” People v. Ramirez, 89 N.Y.2d 444, 451 n.5 (1996) (quotation marks and ellipsis omitted). In sum, if the People intended to prove that Mr. Harris committed a distinct act of possession of a firearm and a separate act of using the firearm, the Bill of Particulars should have specified two occurrences, not one. 6 Incredibly, Respondent argues that Mr. Harris’s conviction for possession with intent could also have been run consecutively to his convictions for using the firearm. Resp. Br. at 41–42. But to reach this conclusion Respondent relies on the statutory presumption — further underscoring that it is entirely up to a prosecutor to determine which flavor of criminal possession of a weapon in the second degree to charge and thus whether a defendant is exposed to consecutive sentences. 25 D. Diluting the People’s burden for consecutive sentences for use and possession of a firearm would inevitably lead to gamesmanship and unjust outcomes such as the 20 extra years added to Mr. Harris’s sentence here. The Penal Law has eroded the distinction between the simple possession offense at issue here, N.Y. Penal Law § 265.03(3), and the possession with intent offense, Penal Law § 265.03(1), examined in Hamilton, 4 N.Y.3d at 654, and Wright, 19 N.Y.3d at 359. Such erosion is accomplished by Penal Law § 265.15(4), which encodes a statutory presumption that any possession of weapon is done with the intent to use the weapon unlawfully. This means that almost every set of facts will satisfy both the simple possession and possession with intent varieties of criminal possession of a weapon in the second degree. Prosecutors should not be allowed to take advantage of this quirk and charge defendants with use of a firearm and simple possession of that firearm in a single act and therefore expose the defendant to more punishment than if they had been charged with possession with intent.6 26 Mr. Harris does not dispute that consecutive sentences for simple possession of a weapon and later use of that weapon are sometimes allowed. But the People must show the two crimes are separate and distinct. Allowing that burden to be satisfied with a weak showing like the one here — assuming from an event long after the shooting that Mr. Harris must have had the firearm long before the shooting — allows prosecutors an unwarranted ability to distort the administration of criminal justice. A prosecutor would never fail to charge simple possession because it would always hang more punishment over a defendant and thus increase the defendant’s willingness to plead guilty. This Court already cut off one avenue to this charge manipulation with Hamilton, 4 N.Y.3d at 654, and Wright, 19 N.Y.3d at 359. It should finish what it started and confirm that before consecutive sentences may be imposed, the People must charge and prove a separate and distinct act of simple possession of a firearm. Respondent argues these concerns do not deserve any consideration. Resp Br. at 41–42. But this Court has always taken account of the possibility for prosecutorial manipulation. When holding that a kidnapping offense often merges into a closely related offense, this Court was driven by a concern with the products of an “excess of prosecutorial zeal.” People v. Miles, 23 N.Y.2d 527, 540 (1969). This Court further explained that the kidnapping “merger doctrine was of judicial 27 origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available.” People v. Cassidy, 40 N.Y.2d 763, 764-66 (1976). Similarly, when it comes to drafting indictments, prosecutors must avoid the “temptation to abuse” the process by charging a single crime as multiple counts. People v. Alonzo, 16 N.Y.3d 267, 270 (2011). This Court’s long line of consecutive sentencing cases has also appropriately curbed prosecutorial zeal. The Court has applied a common sense rule: separate acts deserving of separate punishment may be shown by distinctions in “culpable mental state, nature and manner of use, time, place, and victim.” Brown, 80 N.Y.2d at 365. The showing the People need to make about such facts is higher when it comes to possession and use of a weapon. Wright, 19 N.Y.3d at 359. The Court should continue holding the People to this burden and not allow them to avoid it with a simple charging decision. 28 CONCLUSION For all of the above reasons, this Court should suppress the firearm and reverse Joseph Harris’s convictions. In the alternative, this Court should correct Mr. Harris’s illegal sentence by ordering that all his sentences be run concurrently to each other. Dated: New York, New York May 9, 2013 RICHARD M. GREENBERG Attorney for Defendant-Appellant _____________________________ by: THOMAS M. NOSEWICZ Staff Attorney tnosewicz@appellatedefender.org OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100