The People, Respondent,v.Prince Clark, Appellant.BriefN.Y.November 16, 2016To be argued by DE NICE POWELL (I 5 .\!i11111es Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent. - against - PRINCE CLARK, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT DE '.jfCE POWELL Of ( 'ounsel April 13. 2016 APL-2015-00183 LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for Defendant-Appellant 1 1 1 John Street 9th Floor New York. NY 10038 (212) 693-0085 FAX: (212) 693-0878 INDEX PRELIMINARY STATEMENT . . . . . . . . . . . . . ARGUMENT POINT I APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY (A) DEFERRED TO HIM INSTEAD OF PRESENTING WHAT COUNSEL KNEW WAS APPELLANT'S ONLY VIABLE DEFENSE AND (B) FAILED TO PROTECT APPELLANT'S FUNDAMENTAL RIGHT TO A PUBLIC 1 TRIAL . . . . . . . . . . 1 A. B. DEFENSE COUNSEL'S ABDICATION OF HIS DUTY TO EXERCISE HIS PROFESSIONAL JUDGMENT . 1) The Record Demonstrates that Counsel's Failure to Raise a Justification Defense Resulted Solely From his Erroneous Deference to his 21- year-old Client's Wishes, Not Any 2 Strategic Decision . . . . . . . . . . . 2 2) It Was Clear at the Time of Appellant's Trial, and Remains Clear, that Whether to Advance a Justification Defense Was a Strategic Decision Defense Counsel Had the Authority and Obligation to Make . . . . . . . . . . . . . . . . 11 3) Defense Counsel's Defective Per- formance Harmed Appellant . . . . . . 17 DEFENSE COUNSEL'S FAILURE TO RELY ON ESTABLISHED LAW TO PROTECT APPELLANT'S CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL . 19 POINT II THE COURT VIOLATED ITS DUTY TO RESPOND MEANINGFULLY TO THE JURY WHEN, IN ANSWERING ITS REQUEST FOR GUIDANCE ON HOW JUSTIFICATION AFFECTED APPELLANT'S CULPABILITY FOR MURDER, IT TOLD JURORS NOT TO CONCERN THEMSELVES WITH SELF-DEFENSE AND TO FOCUS INSTEAD SOLELY ON WHETHER HE INTENDED TO KILL THE DECEASED . . . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 24 ii TABLE OF AUTHORITIES CASES: Cook v. Lynaugh, 821 F. 2d 1072 (5th Cir. 1987) . Davis v. Strack, 270 F.3d 1072 (5th Cir. 1987). Flores v. Demskie, 215 F.3d 293 (2nd Cir. 2000). Gonzalez v. United States, 553 U.S. 242 (2008) Jones v. Barnes, 463 U.S. 745 (1983) Kimmelman v. Morrison, 477 U.S. 365 (1986) Matter of Y.K., 87 N.Y.2d 430 (1996) Pavel v. Hollins, 261 F.3d 210 (2nd Cir. 2001). People v. Berk, 88 N. Y.2d 257 (1996) People v. Colon, 90 N.Y.2d 824 (1997) People v. Colville, 20 N. Y.3d 20 (2012). People v. Davis, 13 N. Y.3d 17 (2009) People v. Diaz, 15 N. Y.3d 40 (2010) People v. Droz, 39 N.Y.2d 457 (1976) People v. Ferguson, 67 N. Y.2d 383 (1986) People v. Gonzalez, 293 N.Y. 259 (1944) People v. Hanson, 24 N. Y.3d 294 (2014) People v. Harris, 95 N. Y.2d 316 (2000) People v. Hogan, 26 N. Y.3d 779 (2016) I Slip Op. 01207 People v. Kisoon 8 N.Y.3d 129 (2007) People v. Magliato, 68 N.Y.2d 24 (1986) People v. Martin, 16 N.Y.3d 607 (2011) iii 8 10 7 13 12 7 10 6 15 12 14 13 15 6 14 23 22,23 15 • • 8 t 11 12,13,17 22,23 10 21 People v. Martin, 71 A.D.3d 917 (2d Dept. 2010) People v. Martin, 8 N.Y.3d 129 (2007) People v. McManus, 67 N.Y.2d 541 (1986) People v. O'Rama, 78 N.Y.2d 270 (1991) People v. Petrovich, 87 N.Y.2d 961 (1996) People v. Rodriguez, 95 N.Y.2d 497 (2000) People v. Satterfield, 66 N.Y.2d 796 (1985) People v. Simmons, 206 A.D.2d 550 (2d Dept. 1994) 20 23 17,18 22 15,16 13 6 10 Presley v. Georgia, 558 U.S. 209 (2010) 20 Press-Enterprise v. Superior Court, 478 U.S. 1 (1986) 20 Press-Enterprise v. Superior Court, 464 U.S. 501 (1984) 21 Strickland v. Washington, 466 U.S. 668 (1984) 6 Waller v. Georgia, 467 U.S. 39 (1984) 20 Williams v. Taylor, 529 U.S. 362 (2000) 7 Williams v. Washington, 59 F.3d 673 (7th Cir. 1995) CONSTITUTIONAL PROVISIONS, STATUTES, AND OTHER AUTHORITIES U.S. Const., Amend. VI U.S. Const., Amend. XIV N.Y. Const., Art. I, §6 C.P.L. §310.30 C.P.L. §470.05 P.L. §125.25(1) (a) CJI2d[NY] Justification: USE OF DEADLY PHYSICAL DEFENSE OF A PERSON, PENAL LAW 35.15 [Effective 1980] . . . . . . . . . . . . . . . ABA Criminal Justice Standards for the Defense FORCE IN Sept. 1, 7 2 2 2 22 23 15 10 Function (3rct ed., 1993), Standard 4-5.2 ..... 16 lV COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PRINCE CLARK, Defendant-Appellant. PRELIMINARY STATEMENT This brief is submitted in reply to the People's brief. ARGUMENT POINT I APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY (A) DEFERRED TO HIM INSTEAD OF PRESENTING WHAT COUNSEL KNEW WAS APPELLANT'S ONLY VIABLE DEFENSE AND (B) FAILED TO PROTECT APPELLANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL. A criminal defendant's constitutional right to effective assistance of counsel entitles him to the benefit of reasonable tactical and strategic decisions made by his attorney. Here, the People presented a video of the fatal shooting that showed appellant being attacked and testimony by appellant's friend who, present in the moments leading up to the shooting, identified appellant in the video. Nevertheless, despite counsel's recognition that a justification defense was called for and established law giving defense counsel the ultimate authority to make strategic and tactical decisions, counsel def erred to appellant's wish to have the jury consider only a misidentification defense and not justification. Counsel thereby abdicated his duty to make a quintessentially strategic decision based on his professional judgment and legal knowledge. He also failed to object when the court violated appellant's constitutional public trial right. These failures deprived appellant of the effective assistance of counsel. U.S. Const., Amends. VI, XIV; N.Y. Const. Art. I, §6. A. DEFENSE COUNSEL'S ABDICATION OF HIS DUTY TO EXERCISE HIS PROFESSIONAL JUDGMENT 1) The Record Demonstrates that Counsel's Failure to Raise a Justification Defense Resulted Solely From his Erroneous Deference to his 21-year-old Client's Wishes, Not Any Strategic Decision The People contend that the record does not establish that defense counsel's "sole motivation" for failing to pursue a justification defense was his belief that he was required to defer to appellant's wishes (Resp. Br., pp. 40- 52). They claim that the record is "equally consistent with the inference that, after discussing the issue with [appellant], defense counsel agreed with" appellant's view that raising justification could reduce appellant's chances of acquittal (Resp. Br., p. 49). They also argue that counsel's purported strategic decision was "objectively reasonable" (Resp. Br., pp. 57-67). But since the record shows both that 2 counsel disagreed with appellant and that he abandoned a justification defense only in misguided deference to his own client's wishes, defense counsel made no strategic decision at all, much less a reasonable one. First, as the Appellate Division dissenters observed, the "record demonstrates that defense counsel did not exercise any professional judgment in deciding how to try this case" (A 42). Defense counsel made it clear on the record that it was his belief that [appellant] had the absolute final authority over what trial strategy to employ. Accordingly, defense counsel consistently emphasized that he was not exercising his professional judgment, but rather, that of his 21-year-old client [](A42). * * * The record reflects that in defense counsel's view, he was bound to follow the strategy and tactics dictated by his 21-year-old client throughout the course of the trial: in his opening statement, cross-examinations, summation, jury charge, and response to the jury's note (A 42) . The record amply and unequivocally supports those conclusions. During trial, defense counsel informed the court that he had spoken to appellant about justification and EED defenses (A 341) , but appellant did not want to advance either (A 341). Counsel stated his belief that appellant had to expressly authorize him to pursue them, and therefore that he 3 was constrained not to raise either one (A 341-342). As a result of appellant's wish, he informed the court, he would not question any prosecution witnesses "with respect to why [the deceased] went into the building and . . other aspects of the case" (A 341) . The court addressed appellant directly and confirmed defense counsel's report that, "as a tactical decision [appellant was] entitled to make," appellant had instructed defense counsel not to pursue either defense (A 342-343). Subsequently, in a closing statement spanning barely 4~ pages of the record (A 502-507), defense counsel made only the completely untenable argument that the People failed to prove appellant's identity as the shooter, asserting that the "faces" shown in the surveillance footage were "not very visible" (A 505). He made no argument that appellant's friend Khadija Mitland, who knew appellant well, observed his conduct leading up to the shooting, and identified him on the surveillance tape, was an unreliable identification witness. During deliberations, defense counsel made clear again that he believed he had no authority to make the strategic decision to have the jury consider justification. In response to the jury's request for an instruction on self defense (A 593-594, 602), counsel reminded the court that he had been "instructed to use only one defense" - misidentification (A 4 594-596) and said that he could not object to the court's informing the jury that they were "not instructed on the law of justification o(r] self defense because there is no [such] claim in this case" (A 594-595) . After a bench conference, however, apparently deciding that he was precluded from raising justification but the jury was not precluded from considering it, counsel asked the court to remind the jurors only that they had to find "intent to kill"; counsel now "object[ed] to telling the jury . . that self defense or justification defense is not of their concern" (A 595) . The court nevertheless told the jurors that they were not to consider self-defense (A 602) Contrary to the People's argument on appeal (Resp. Br., p. 49), the record was not "equally consistent with the inference" that defense counsel agreed with appellant's decision to raise only mistaken identity, not justification. The only reason for counsel to make a record of his strategy discussion with his client was that counsel disagreed with appellant's decision to present only a misidentification defense. During deliberations, defense counsel reminded the court that appellant's "instruct[ion]" to present only a misidentification defense had blocked him from presenting a justification defense. Counsel's objection to the court 5 instructing jurors that justification was "not [] their concern," however, revealed once again that counsel was unhappy with the constraint appellant had placed on him and believed, in his professional judgment, that appellant would benefit from the jury considering justification. Thus, the record as a whole clearly demonstrates that defense counsel believed that a justification defense should be presented, and that he failed to present it only because he mistakenly believed he had no authority to override his client's "instruct [ion]" (A 594-596). The record similarly defeats the People's related claim that counsel's decision not to raise justification was an objectively reasonable strategic one. That argument is inapt because counsel never made any such strategic decision (Resp. Br. , pp. 5 7 - 6 7) An attorney's subjective reasons may be immaterial when the decision at issue was made pursuant to a strategy. People v. Satterfield, 66 N.Y.2d 796, 799 (1985). But a decision is not strategic unless it is a reasonably informed" decision made "with "conscious, an eye to benefitting" the accused, Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001), "made after thorough investigation of [the] law and facts relevant to plausible options." Strickland v. Washington, 466 U.S. 668, 690 (1984); see also People v. Droz, 6 39 N.Y.2d 457, 462 (1976) ("elementary" that effective counsel must review the law) . Thus, had counsel here weighed appellant's options and decided that mistaken identification alone was appellant's best chance of avoiding conviction, assessing the objective reasonableness of such a decision would be permissible. But that is clearly not what counsel did here. To the contrary, his strategic decision was that appellant would be best served by raising justification. He did precisely the opposite of what his knowledge and experience counseled him was in his client's best interests, and he did that only because he erroneously believed that he had to defer to the foolish decision his young client was making out of ignorance. A decision to adopt the opposite course from the one counsel knows is strategically sound cannot be saved on a theory that it was "objectively reasonable." Furthermore, a choice counsel makes based on a misunderstanding of the law, Williams v. Taylor, 529 U.S. 362, 395 (2000); Flores v. Demskie, 215 F.3d 293, 304 (2d Cir. 2000), "a mistaken belief[]," Kimmelman v. Morrison, 477 U.S. 365, 385 (1986), or "ignorance," Williams v. Washington, 59 F.3d 673, 680 (7th Cir. 1995), cannot be considered a "conscious," "strategic" decision. Pavel, 261 F.3d at 218; see also Kimmelman, 477 U.S. at 385 ("counsel's failure to request discovery . was not based on 'strategy,' but on 7 counsel's mistaken beliefs" about the prosecution's discovery obligations) . Here, the record unambiguously shows that defense counsel's failure to pursue a justification defense was not based on any strategic decision he made. Instead, counsel abdicated his responsibility to make the quintessentially strategic decision of whether to advance a justification defense. And he did so because he was under the mistaken impression that he was required to do so. Counsel's abdication was simply not a strategic decision that could be justified as objectively reasonable. See Cook v. Lynaugh, 821 F.2d 1072, 1078 (5th Cir. 1987) (when counsel acknowledged that it never "struck his mind" to conduct a relevant investigation, there was no "strategy" to evaluate) Thus, the cases the People cite for the proposition that a defense attorney cannot be faulted for avoiding inconsistent defenses (Resp. Br., pp. 65-67) are irrelevant. The proper inquiry is whether appellant was deprived of the strategic expertise of counsel to which he was entitled. As this Court explicitly stated in People v. Hogan, 26 N.Y.3d 779 (2016), Slip Op. 01207, p. 6, if defense counsel defers to a defendant, without exercising his or her professional judgment, on a decision that is "for the attorney, not the accused, to make" because it is not fundamental, the defendant is deprived of "the expert judgment of counsel to which the Sixth Amendment entitles him" or her (Colville, 20 NY3d at 32) . 8 Defense counsel's deference to his client's wish, without exercising his own professional judgment, about a critical strategic matter counsel had the duty and ultimate authority to decide, was precisely the failure that occurred in this case. Given the evidence, defense counsel's belief that justification should be presented to the jury and that misidentification, standing alone, had no chance of succeeding, was obviously correct. Appellant's friend, Khadija Mitland, who was present and saw much of the confrontation preceding the shooting, identified appellant not only as a participant in that confrontation, but also in the video of the fatal encounter. There was simply no evidence that Mitland' s identification of appellant was unreliable, and counsel made no effort to advance such an argument in summation. Therefore, given the evidence, there was no objectively reasonable chance of winning an acquittal of the murder count based solely on a misidentification defense. On the other hand, the evidence showed that appellant had retreated into his building, thereby unambiguously communicating his withdrawal from the prior confrontation he had had with Tallyrand. It was Jamel Wisdom and his unidentified companion who pursued him into the building lobby. As the surveillance video showed, Wisdom backed appellant further into the lobby, slammed him into a wall, and 9 appeared to reach for the gun. It was only at that point that the gun was fired. Additionally, Mitland testified that, during the confrontation preceding the shooting, she heard appellant say that one of his attackers was armed with a knife and intended to use it against him (A 301-302). Since this testimony was admitted without limitation, the jury could have properly used it as proof of appellant's state of mind. This evidence and the surveillance footage could unquestionably have led a reasonable juror to conclude that appellant justifiably used deadly physical force against Wisdom's attack in the lobby. Davis v. Strack, 270 F.3d 111 (2d Cir. 2001); Matter of Y.K., 87 N.Y.2d 430 (1996); People v. Magliato, 68 N.Y.2d 24, 30 (1968); People v. Simmons, 206 A.D.2d 550 (2d Dept. 1994); CJI2d [NY] Justification: USE OF DEADLY PHYSICAL FORCE IN DEFENSE OF A PERSON, PENAL LAW 35 .15 [Effective Sept. 1, 1980] . Indeed, justification was such an obvious defense that, even in the absence of a justification charge, the jurors, having viewed the surveillance video, asked for instructions on self-defense. But because defense counsel had abandoned his own strategic decision in deference to his young client's wishes, counsel did not ask the court to give the charge the jury itself had requested, and the court failed to give it. In sum, despite defense counsel's judgment that a justification defense should be presented to the jury and 10 that misidentification alone had no chance of winning appellant an acquittal of the murder charge, counsel deferred to appellant's strategic decision to present only a misidentification defense. Counsel's deference to appellant on a decision that was "for the attorney, not the accused, to make," Hogan, Slip Op. 01207 at p. 6, deprived appellant of "the expert judgment of counsel to which the Sixth Amendment entitles him." Id. As a result, he was denied the effective assistance of counsel. 2) It Was Clear at the Time of Appellant's Trial, and Remains Clear, that Whether to Advance a Justification Defense Was a Strategic Decision Defense Counsel Had the Authority and Obligation to Make The People argue that, "in light of the state of the law at the time of [appellant's] trial," defense counsel's "view that he could not proffer a justification defense without defendant's consent" was objectively reasonable (Resp. Br., pp. 52-56). Indeed they go so far as to argue at length that such a view is actually correct (Resp. Br., pp. 67-77). Those arguments are without merit because established law has long allocated to defense counsel the responsibility, as well as the ultimate authority, to make strategic decisions like what defense to raise. In Hogan, Slip Op. 01207 at p. 5, this Court acknowledged as "well established" the rule that "a defendant, having accepted the assistance of counsel, retains authority only over" fundamental decisions such as "whether to plead guilty, 11 waive a jury, testify in his or her own behalf, or take an appeal" a division of authority identified long before appellant's trial in Jones v. Barnes, 463 U.S. 745, 751 (1983), and People v. Colon, 90 N.Y.2d 824, 825 (1997). As Jones, 463 U.S. at 751, and Colon, 90 N.Y.2d at 826, made crystal clear, while the accused has the ultimate authority to make the enumerated "fundamental" decisions, other decisions involving strategy are matters of professional judgment to be decided by defense counsel. Allowing the defendant personally to override counsel's decision as to such matters would "seriously undermine[] the ability of counsel to present the client's case in accord with counsel's professional evaluation," Jones, 463 U.S. at 751, and "disserve the very goal of vigorous and effective advocacy." Id. at 754. Relying on the long-established di vision of decision making authority, the Court in Hogan, Slip Op. 01207 at p. 6, held that defense counsel's ultimate power to make non- fundamental strategic decisions "requir[ing] the expert judgment of counsel [citation omitted]" meant that counsel had the authority to decide whether the defendant would testify before a grand jury, because it was a strategic decision that "involve [d] weighing [ J " the "potential disadvantages" against the possible advantages to the accused. This "quintessential matter [] of strategy" was appropriate "for the lawyer, not the client," to decide. Id. 12 In 2008, two years before the instant case was tried, the Supreme Court had reiterated in Gonzalez v. United States, 553 U.S. 242, 249-250 (2008)' the importance of counsel's expertise in making the tactical and strategic decisions in a criminal case: The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. Numerous choices affecting conduct of the trial . depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiency and fairness that the trial process is designed to promote. Id. (emphasis added) . Before appellant's trial, the division of decision-making authority between the attorney and the criminal defendant had also been repeatedly reaffirmed by this Court. People v. Davis, 13 N.Y.3d 17, 30 (2009) ("well established" that a defendant, "having accepted the assistance of counsel, retains authority over only certain fundamental decisions regarding the case" such as "whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal"); People v. Rodriguez, 95 N.Y.2d 497, 501-502 ( 2 000) ("By accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with sifting out weak 13 arguments, charting strategy and making day-to-day decisions"); People v. Ferguson, 67 N.Y.2d 383, 390 (1986) (a represented defendant "relegates control of much of the case to the lawyer except as to certain fundamental decisions"). Thus, when this case was tried, the law clearly gave defense counsel the ultimate authority to make strategic decisions such as whether to present a justification defense (see also Appellant's Main Brief, pp. 31-34). The People argue, incorrectly, that People v. Colville, 20 N.Y.3d 20 (2012), "changed" the law regarding the division of decision-making authority in criminal trials (Resp. Br., pp. 55 56) . Colville did not announce any such "change[]." Applying established law, the Court in Colville reaffirmed the long-recognized division of decision-making power between attorney and client, holding that whether to request a lesser-included offense was "a matter of strategy and tactics which ultimately rests with defense counsel." 20 N. Y. 3d at 2 3. 1 Here, the decision of whether to raise justification required defense counsel's "expert judgment" and legal knowledge in weighing the "various risks and benefits" to appellant of presenting a justification defense - a decision that was indubitably "an appropriate one for the lawyer, not Nor did the Second Department's decision in Col ville alter the law. As the People admit (Resp. Br., pp. 54-55), that court affirmed without determining where the lessers decision rested. 14 the client." Hogan, Slip Op. 01207 at p. 6 (citing Ferguson, 67 N.Y.2d at 390) As the Appellate Division dissenters aptly recognized, this calculus "unquestionably implicate[d] trial strategy and tactics, the hallmarks of matter ultimately left to the professional judgment of defense counsel [citation omitted]" (A 43)- precisely the sentiment the Court expressed in Hogan, Slip Op. 01207 at p. 6. The People also argue that, when this case was tried, People v. Petrovich, 87 N.Y.2d 961 (1996), was this Court's "most relevant decision" (Resp. Br., p. 53) However, Petrovich, holding that the decision to request EED belonged to the defendant, is not inconsistent with appellant's argument in this case. 87 N. Y. 2d at 963. EED is an affirmative defense that the defense shoulders the burden of proving by a preponderance of the evidence. People v. Harris, 95 N.Y.2d 316, 319 (2000); P.L. §125.25 (1) (a). Moreover, a defendant raising EED necessarily gives up his constitutional right to remain silent as to extremely intimate and personal matters because the court can compel him to submit to an examination by the People's expert. People v. Diaz, 15 N.Y.3d 40, 47 (2010). Therefore, whether to raise EED is a personal decision in a way that whether to raise justification is not. Moreover, since justification does not involve a mental infirmity, People v. Berk, 88 N.Y.2d 257, 263 (1996), as the People concede (Resp. Br., p. 59), it can be successfully advanced based solely on evidence presented by the prosecution, like the surveillance tape here. 15 Contrary to the People's argument (Resp. Br., p. 70), the ABA standards had also addressed the critical di vision of decision-making power long before appellant's trial. The American Bar Association's Criminal Justice Standards for the Defense Function (3rd ed. 1993), Standard 4-5.2, entitled "Control and Direction of the Case," provides that "[s]trategic and tactical decisions should be made by defense counsel after consultation with the client where feasible." These standards also provide a finite list of decisions "ultimately to be made" by the defendant, which do not include what defense to raise. Thus, the standards of professional conduct, the legions of cases holding that counsel has and must have the ultimate authority to make strategic and tactical decisions, and a proper understanding of the limited holding of Petrovich should all have informed defense counsel that he, not appellant, had the ultimate authority to make the strategic and tactical decision of whether to raise a justification defense. The People argue that appellant's desire to present only a misidentification defense was "so personal and crucial to the accused's fate" that it was a "fundamental decision that the defendant is entitled to make" (Resp. Br., p. 68). However, the decision to present that defense was no more personal or crucial than the decision to present or forego any other defense, or indeed than many other strategic decisions entrusted to defense counsel, such as whether the defendant 16 should testify before grand jury. Hogan, Slip Op. 01207 at p. 7. Had defense counsel pursued the justification defense he clearly believed should be presented, counsel would not have been required to concede appellant's identity, or undermine a mistaken identity defense. Justification, moreover, is an ordinary defense, which the People must disprove beyond a reasonable doubt . People v. McManus, 67 N.Y.2d 541, 547 (1986). And given the surveillance tape, appellant would not have needed to testify in order to advance it. Raising a justification defense based on the People's evidence simply would have held the People to their required burden of proof on an obvious and critical issue. 3) Defense Counsel's Defective Performance Harmed Appellant The People contend that, even if defense counsel erroneously deferred to appellant's choice of defense based on counsel's failure to understand the established division of decision-making power, appellant was not denied effective assistance of counsel because there was "no reasonable view of the evidence supporting the charge" and no "reasonable probability that the justification defense would have prevailed" (Resp. Br., p. 78). That untenable argument ignores the agreement of both the Appellate Division majority and dissenters that the evidence, viewed in the light most favorable to the defendant, supported the charge (A 18 [majority]; A 32-34 [dissent]). Therefore, the denial of 17 counsel's request for the charge would have constituted reversible error. McManus, 67 N.Y.2d at 546-547. Contrary to the People's assertion (Resp. Br., p. 78), the court at sentencing did not state that appellant was the initial aggressor in the shooting of Wisdom. Nor did it suggest that the evidence would not have supported a justification charge. Instead, the court merely raised questions about whether an EED or a no-intent-to-kill defense would have been "sustainable," given the number of times the weapon discharged (A 636-637). Significantly, the deliberating jury asked how the "law differentiate[s] 'intent to kill' from 'intent to harm?'" and "[w] ith respect to [the struggle and [appellant] deceased] if he initiated the was acting defensively, does that negate the 'intent to kill'?" (A 593-594, 602). The jury's request for instructions on self-defense unquestionably demonstrated that they thought appellant might have been justified when he killed Wisdom during a close contact fight initiated by Wisdom. In the face of the court's instruction to the jury not to focus on whether appellant acted in self-defense (A 602), the jury was dissuaded from giving self defense any consideration, despite the evidence that supported that defense (A 33, 38). Had the jury determined that appellant was justified, as it easily might have done if given a justification charge, it would have acquitted appellant of murder. Appellant was 18 therefore clearly harmed by defense counsel's defective performance. B. DEFENSE COUNSEL'S FAILURE TO RELY ON ESTABLISHED LAW TO PROTECT APPELLANT'S CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL Defense counsel also failed to protest the court's exclusion of the general public and appellant's family members from the courtroom during jury selection. The People concede that the court excluded the "audience," and that the "audience" included appellant's family, but assert that it is "possible" that the court "allowed defendant's family to remain" (Resp. Br., p. 86). In support of this claimed possibility, the People point to defense counsel's statement, made after the court clerk directed all those present in the audience to "exit the courtroom," that appellant's family members complained that he he had "not done enough for" appellant (A 105), and that appellant's family was "back there and some of the remarks that were made" (A 105). Based on counsel's cryptic statement, the People speculate that it was "possible" that appellant's family ignored the clerk's directive to leave the courtroom. However, counsel's statement cannot negate the record, which explicitly states that, in accordance with the clerk's directive, the "audience was excused" {A 94-95). The People argue that the purportedly "inadequate" record must be held against appellant (Resp. Br., pp. 85-87). The defense, however, did not have the burden of creating a record 19 justifying closure. It was incumbent upon the court to make a record, articulating "findings specific enough that a reviewing court can determine whether the closure order was properly ordered." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986). In any event, apart from a defendant's family, the "public" has the right to be present during jury selection, which is intertwined with appellant's right to a public trial. Presley v. Georgia, 558 U.S. 209, 213-216 (2010). To protect these rights, in Waller v. Georgia, 467 U.S. 39, 48 (1984), the Supreme Court established standards that trial courts must apply before excluding the public from any stage of a criminal trial. Among other requirements, a court must consider reasonable alternatives to closing the proceeding to the public and make record "findings adequate to support the closure." Id. Here, during voir dire, the court closed the courtroom without considering any alternatives to closure or making record "findings adequate to support the closure." Id. The People contend further that defense counsel's failure to protect appellant's constitutional right to a public trial did not constitute ineffective assistance of counsel because, prior to Presley, courts permitted the exclusion of spectators during jury selection, and because the Appellate Division had decided in People v. Martin, 71 A.D.3d 917, 918 (2d Dept. 2010), that the defendant's public trial right was not violated when the "record demonstrat[ed] that there were no 20 immediate alternatives" to closure during voir dire (Resp. Br., p. 88) . That argument, however, ignores the critical fact that Presley was decided on January 19, 2010, 10 months before appellant's trial. In it, the Supreme Court emphasized, as it had mandated in Waller and affirmed in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), that courts must both consider reasonable alternatives to closing court proceedings and make adequate record findings to support any closure. Presley, 558 U.S. at 212-215. The court in this case did neither and any defense attorney even minimally current on the law would have recognized the court's failures and protected his client's rights. Therefore, as of the time of his representation, defense counsel should have used the extant law to protect appellant's constitutional public trial right, the denial of which constitutes per se reversible error. People v. Martin, 16 N.Y.3d 607, 613 (2011). Since no possible strategic reason inuring to appellant's benefit could justify defense counsel's failure to object to closing the courtroom, counsel's failure to protest closure denied appellant his right to effective assistance of counsel. * * * In sum, defense counsel's multiple failures denied appellant his right to effective assistance of counsel, requiring reversal and a new trial. 21 POINT II THE COURT VIOLATED ITS DUTY TO RESPOND MEANINGFULLY TO THE JURY WHEN, IN ANSWERING ITS REQUEST FOR GUIDANCE ON HOW JUSTIFICATION AFFECTED APPELLANT'S CULPABILITY FOR MURDER, IT TOLD JURORS NOT TO CONCERN THEMSELVES WITH SELF- DEFENSE AND TO FOCUS INSTEAD SOLELY ON WHETHER HE INTENDED TO KILL THE DECEASED. The People contend that the court's response to the jury's request for an instruction on self-defense was "meaningful," and that defense counsel failed to preserve any error in that response (Resp. Br., pp. 95-99, 102 104). The People are wrong. The Court said in People v. Kisoon, 8 N.Y.3d 129, 134 (2007), and reiterated in People v. Hanson 24 N.Y.3d 294, 300 (2014), that it made "clear" in People v. O'Rama, 78 N.Y.2d 270, 277 (1991), that, when deliberating jurors make a request, the trial court's core responsibility under [C.P.L. §310.30] is both to give meaningful notice to counsel of the specific content of the jurors' request . . . and to provide a meaningful response to the jury. Here, when the jury requested instructions about the relationship of intent and self-defense, the court failed to give the jury the guidance it requested. Instead, it told the jurors not to consider justification, stating that "there is a concept in the law called justification, self-defense, /1 which "requires a number of factors to be present" (A 602) , but that the jurors were not charged on justification and 22 should "focus on . . whether or not [appellant] intended to cause the death of Mr. Wisdom in that causing his death was his conscious objective or purpose" (A 602) . The jury's question about self-defense was clearly pertinent to its determination of appellant's guilt or non- guilt. The court's response, instructing it not to consider justification at all, was tantamount to a refusal to respond to the jury's request for relevant information. As a result, the response was far from meaningful. People v. Gonzalez, 293 N.Y. 259, 262 (1944) (reversible error when court refused to respond to jury's confusion about the law); C.P.L. §310.30; see also Appellant's Main Brief, pp. 51-55. Defense counsel objected to the court's charge instructing the jury that it was not permitted to consider self-defense (A 595, 603), preserving the court's error in instructing the jury that self-defense was not its concern. C.P.L. §470.05. Moreover, by failing to give a "meaningful response" to a jury's request for an instruction on the law, the court failed to fulfill its "core responsibility" pursuant to §310.30, a mode of proceedings violation that is exempt from normal preservation rules. Hanson, 24 N.Y.3d at 299 (court failed to respond to deliberating jury's request for information and testimony); Kisoon, 8 N.Y.3d at 135 (court failed to give parties notice of actual contents of a jury's deadlock note); People v. Martin, 8 N.Y.3d 129, 133 (2007) (court failed to respond to deliberating jury's request 23 for charge); Gonzalez, 293 N.Y. at 262-263 (refusal to answer jury's questions about how to assess defendant's state of mind). There was a real possibility that, had the jury been given the requested justification charge, it would have found that appellant justifiably killed Wisdom and acquitted him of murder. Thus, the judgment should be reversed and a new trial ordered. CONCLUSION FOR THE REASONS STATED IN APPELLANT'S MAIN BRIEF AND THIS REPLY, THE JUDGMENT MUST BE REVERSED AND NEW TRIAL ORDERED (POINTS I AND II) . Respectfully submitted, LYNN W. L. FAHEY Attorney for the Defendant- Appellant DE NICE POWELL Of Counsel April 13, 2016 24