The People, Respondent,v.Alfred Gary, Appellant.

Brief

N.Y.October 13, 2015

To be Argued by: HERALD PRICE FAHRINGER, ESQ. (Time Requested: 30 Minutes) APL-2014-00238 Nassau County Clerk’s Index No. 225N/11 Appellate Division, Second Department Docket No. 2012-08351 Court of Appeals of the State of New York   THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, – against – ALFRED GARY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT HERALD PRICE FAHRINGER, ESQ. ERICA T. DUBNO, ESQ. NICOLE NECKLES, ESQ. FAHRINGER & DUBNO 120 East 56th Street, Suite 1150 New York, New York 10022 Tel.: (212) 319-5351 Fax: (212) 319-6657 THOMAS F. LIOTTI, ESQ. LAW OFFICES OF THOMAS F. LIOTTI 600 Old County Road, Suite 530 Garden City, New York 11530 Tel.: (516) 794-4700 Fax: (516) 794-2816 Attorneys for Defendant-Appellant Alfred Gary Table of Contents Table of Authorities ....................................................................................................... v Jurisdictional Statement ................................................................................................ 1 Questions Presented ....................................................................................................... 2 Summary of Argument .................................................................................................. 4 Statement of Facts ........................................................................................................... 9 Alfred Gary Arranged for James Robert Sweet, an Avid Car Collector, to Purchase High-End Vehicles ............................................................................................ 11 A Massive Indictment is Issued Relating to Real Estate Mortgage Frauds .......................................................................... 14 The Trial.............................................................................................................. 16 The Defense Case .............................................................................................. 21 Alfred Gary is Acquitted of All Counts Except For One Count of Conspiracy ............................................................ 24 Alfred Gary Moved to Set Aside the Verdict .............................................. 24 POINT I COUNSEL’S INITIAL STIPULATION TO THE ADMISSION OF A DOCUMENT, INCLUDED WITHIN THOUSANDS OF PAGES OF DOCUMENTS, WHICH IS LATER LEARNED TO CONTAIN HIGHLY PREJUDICIAL HEARSAY SHOULD NOT BAR THE DEFENDANT FROM CHALLENGING THE ADMISSIBILITY OF THE HEARSAY IN A BENCH TRIAL ............................................................................... 26 ii The Appellate Division Erroneously Found that Alfred Gary Waived his Challenge to the Inadmissible Hearsay by Counsel’s Pre-trial Stipulation to the Mass of Evidence.............................................................. 30 The Court “Commends Both Sides for all the Hard Work You Put in with Respect to Streamlining this Trial” ................................................................................... 32 The Courts’ Willingness to Set Aside Erroneous Stipulations Will Encourage Defendants to Enter into Pre-trial Stipulations ........................................................................................................ 32 There Were Two Versions of the Verification of Employment -- One With the Hearsay and One Without the Hearsay ................................................................................ 34 Alfred Gary Was Substantially Prejudiced by the Admission of this Hearsay ....................................................................... 35 This Issue is Amply Developed and Preserved for Review by this Court .............................................................. 39 POINT II THE VERDICT WAS LEGALLY INSUFFICIENT TO ESTABLISH ALFRED GARY’S PARTICIPATION IN THE ALLEGED CONSPIRACY ............................................................................................................... 40 The Prosecution’s Key Witness Testified that He “Had No Reason to Believe that Mr. Gary was Involved in Any Illegal Activity” .......................................................... 41 The Prosecution Never Met its Burden of Proof, Beyond a Reasonable Doubt, that Alfred Gary Entered the Conspiracy by Providing a False Verification, Where Even the Wrong Name is Signed on the Form ...................................................... 43 iii Alfred Gary Did Not Join the Real Estate Conspiracy by Introducing James Robert Sweet to Tony Smith ........................................................................................ 45 The Witnesses Against Alfred Gary Were Cooperators With Significant Credibility Issues ................................................................................................................... 47 The Prosecution Failed to Establish the Existence of a Single Conspiracy ................................................................... 50 The Insufficiency Argument is Preserved for Review by this Court ........................................................................................ 54 POINT III THE VERDICT IS REPUGNANT, AND LEGALLY INSUFFICIENT, WHERE THE DEFENDANT WAS ACQUITTED OF THE VERY CONDUCT THE PROSECUTION HAD TO PROVE -- BEYOND A REASONABLE DOUBT -- TO ESTABLISH CONSPIRACY IN THE FOURTH DEGREE ........................................................... 56 No Person Should be Convicted of a Crime Where the Fact-finder Found that the Defendant Did Not Commit an Essential Element of the Charge ...................................................................................... 58 The Challenge to the Verdict is Preserved for Appellate Review .............................................................................................. 62 iv POINT IV THE CONVICTION SHOULD BE VACATED BASED UPON EVIDENTIARY ERRORS THAT DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND CONFRONTATION .......................................................................................... 64 It Was Error to Expand the Conspiracy to Admit Highly Prejudicial Double Hearsay Into Evidence ..................................................................................................... 65 The Defense Was Denied Critical Impeachment and His Right of Confrontation through a Prosecution Witness’ Invocation of His Privilege Against Self-Incrimination Regarding his Federal Fraud ........................................................................... 68 These Issues Were Preserved for Review ..................................................... 73 Conclusion ...................................................................................................................... 74 v Table of Authorities Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) .......................................................................................70 In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970) .......................................................................................40 Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239 (1946) .......................................................................................52 People v. Alfaro, 108 A.D.2d 517, 489 N.Y.S.2d 546 (2d Dept. 1985), aff’d on other grounds, 66 N.Y.2d 985, 499 N.Y.S.2d 378 (1985) ..................................................................................................61, 62 People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987) ..............................................................................40 People v. Brown, 17 N.Y.3d 863, 932 N.Y.S.2d 775 (2011) ..............................................................................40 People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70 (2005) ............................................................................56, 66 People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213 (1975) ..............................................................................67 People v. DeMauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884 (1979) ..............................................................................39 People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83 (1995) ................................................................................71 People v. Evangelista, 88 A.D.2d 804, 450 N.Y.S.2d 817 (1st Dept. 1982) .............................................................66 People v. Gary, 115 A.D.3d 760, 981 N.Y.S.2d 602 (2d Dept. 2014)..............................................................1 People v. Giordano, 211 A.D.2d 814, 622 N.Y.S.2d 89 (2d Dept. 1995), aff’d, 87 N.Y.2d 441, 640 N.Y.S.2d 432 (1995) ..............................................................................47 vi People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395 (2008) ..............................................................................54 People v. Joyce, 100 A.D.2d 343, 474 N.Y.S.2d 337 (2d Dept. 1984)............................................................59 People v. Leisner, 73 N.Y.2d 140, 538 N.Y.S.2d 517 (1989) ..................................................................51, 52, 66 People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986) ..................................................................................35 People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575 (2006) ................................................................................35 People v. Persico, 157 A.D.2d 339, 556 N.Y.S.2d 262 (1st Dept. 1990) ...........................................................66 People v. Pugh, 36 A.D.2d 845, 321 N.Y.S.2d 504 (2d Dept. 1971), aff’d, 29 N.Y.2d 909, 328 N.Y.S.2d 860 (1972) ..............................................................................61 People v. Rastelli, 37 N.Y.2d 240, 371 N.Y.S.2d 911 (1975) ..............................................................................66 People v. Reome, 15 N.Y.3d 188, 906 N.Y.S.2d 788 (2010) ..............................................................................49 People v. Rodriguez, 22 N.Y.3d 917, 977 N.Y.S.2d 703 (2013) ..............................................................................49 People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874 (1978) ..............................................................................35 People v. Smith, 18 N.Y.3d 544, 942 N.Y.S.2d 426 (2012) ..............................................................................72 People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132 (1981) ................................................................59, 60, 61, 62 People v. Wolf, 98 N.Y.2d 105, 745 N.Y.S.2d 766 (2002) ..............................................................................66 vii People v. Ya-ko Chi, 72 A.D.3d 709, 898 N.Y.S.2d 619 (2d Dept. 2010)..............................................................72 United States v. Maybury, 274 F.2d 899 (2d Cir. 1960) .............................................................................................60, 61 Jurisdictional Statement On September 5, 2014, the Honorable Eugene F. Pigott, Jr., granted Appellant Alfred Gary leave to appeal to the Court of Appeals from the decision and order of the Appellate Division, Second Department, dated March 12, 2014, which affirmed his judgment of conviction for conspiracy in the fourth degree (A.246, 247).1 The Appellate Division’s decision finally determined the action. See People v. Gary, 115 A.D.3d 760, 981 N.Y.S.2d 602 (2d Dept. 2014). Alfred Gary was acquitted of seven counts after a non- jury trial conducted before Justice Norman St. George in the Supreme Court, Nassau County.2 However, he was convicted of the single charge of conspiracy. He was sentenced to probation and ordered to pay restitution of $139,910. On April 23, 2014, Judge Pigott stayed execution of the 1 Numbers preceded by “A.” refer to pages of the Appendix. Numbers preceded by “Tr.” refer to the trial transcript. Numbers preceded by “Tr.” and a date refer to the transcript of a specific proceeding. 2 The court dismissed one count of falsifying business records prior to the start of the trial (Tr.84). The court did not reach a verdict on the enterprise corruption charge because the prosecution failed to establish the Pattern Acts required for such a conviction (A.190.). 2 judgment pending determination of this appeal (A.250). This Court has jurisdiction under CPL § 450.90 and § 460.20 to entertain this appeal and to review the questions raised. As developed below, all of the issues are preserved and eligible for review by this Court. There is no related litigation.3 Questions Presented 1. Whether, at a bench trial, an attorney’s pretrial stipulation to thousands of pages of documents, in a genuine effort to expedite the trial, which is later discovered to include a single document that contained highly prejudicial hearsay, should bar a defendant from challenging the admissibility of that hearsay where the objection to it was made during the prosecution’s very first witness’s testimony and the prosecution suffered no prejudice. 2. Was the evidence insufficient as a matter of law to sustain the conviction for conspiracy, especially where the prosecution’s chief witness believed that the funds provided to the Defendant, who is a car dealer, to purchase cars “were legitimately gotten from legitimate real estate transactions” and he had “no reason 3 The Appellate Division remanded the matter to the Supreme Court, Nassau County, for further proceedings relating to the stay of execution. The proceedings pursuant to CPL § 460.50, before Supervising Judge Christopher Quinn, are being adjourned pending this Court’s determination of this appeal. 3 to believe” the Defendant “was involved in any illegal activity”? 3. Whether the Defendant’s conviction for conspiracy should be reversed where it is repugnant to his acquittal for a scheme to defraud because the facts underlying the conspiracy are identical to those alleged in the scheme to defraud. 4. Was it error to admit into evidence highly prejudicial, impermissible double hearsay, in the form of a statement claimed to have been made by another defendant at a meeting at which the Defendant was not present, that the defense never had an opportunity to cross-examine? 5. Whether it was error not to strike the direct testimony of a prosecution witness who, on cross-examination, invoked his privilege against self-incrimination regarding his commission of a federal fraud? These questions implicate the Defendant’s rights protected by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 6 of the New York State Constitution and Article 70 of New York’s Criminal Procedure Law.4 4 Whenever any constitutional right is asserted on behalf of the Appellant, the claim is raised under the related provisions of the New York State and federal constitutions. 4 Summary of Argument Monday, February 7, 2011, may prove to be the most important day in the life of Alfred Gary. For, on that fateful date, Mr. Gary awoke to all the horrors of being thrown into a massive 91-page indictment, which charged 14 defendants in a total of 108 counts with mail fraud, bank fraud and conspiracy, among others. The main thrust of the indictment was that an enterprise, labeled by the prosecution as the “Sweet Deal Real Estate Group,” was profiting from various mortgage frauds. Virtually all of the defendants named in the indictment were mortgage brokers, real estate agents, appraisers, lawyers and buyers who were directly involved in the mortgage frauds. On the other hand, Defendant Alfred Gary, a high-end car dealer, who was not involved in any real estate transactions, was added to the indictment because he happened to sell cars to some people in the Real Estate Group. All the other defendants ultimately entered pleas to the charges. However, Alfred Gary believes so strongly in his innocence that he was the only defendant who went to trial. And, significantly, after testifying in his own 5 defense at a bench trial, Alfred Gary was acquitted of virtually every count, including all of the top charges. However, he was convicted of conspiracy in the fourth degree. On appeal, there are a number of issues of sufficient scale and urgency to warrant a reversal of this conviction. For instance, the Court is called upon to address the serious hazards resulting from an attorney’s agreement to stipulate certain facts and exhibits into evidence to facilitate the proceedings. Specifically, prior to trial, for the convenience of the court and to address the mass of exhibits that the prosecution sought to introduce, counsel stipulated to the admission in evidence of thousands of pages of exhibits. The exhibits included 24 individual loan files that each contained hundreds of pages. However, at trial, defense counsel discovered that a single sheet of paper -- included within one of the voluminous loan files -- contained highly prejudicial and inadmissible hearsay. The hearsay involved a handwritten notation on the bottom of an allegedly false verification of employment form that was purportedly used by the Real Estate Group to obtain a mortgage (A.129). 6 The hearsay -- “1/12 spoke w/ Gary and he [quality controlled] all info” -- was devastating to the defense because it suggested that Alfred Gary authorized the preparation of a false verification in his name. The hearsay also supported the prosecution’s claim that the bank relied on that false information in issuing a mortgage. As a consequence, counsel promptly objected to the harmful hearsay scribbled on the verification form. Significantly, there were two versions of this form: One with the handwritten hearsay note and one without it. Counsel underscored that he never intended to stipulate to the admission of the version containing the damaging hearsay. Counsel’s vigorous objections were made just the second day of a two-week-long bench trial, while the prosecution’s first witness was still on the witness stand. Thus, the hearsay was identified and objected to in ample time for the prosecutor to call the witness who allegedly wrote the handwritten notation and to avoid any prejudice resulting from defense counsel’s inadvertent stipulation to the single page containing the hearsay. 7 Nevertheless, the trial judge overruled counsel’s objections and the lethal hearsay was used by the prosecution to convict Alfred Gary. Thus, this Court is asked to resolve whether a criminal defendant is forever bound by a stipulation entered into by his counsel before trial -- or whether a defendant, in a criminal prosecution, may still raise a Sixth Amendment Confrontation Clause claim to inadmissible hearsay -- particularly where counsel promptly recognizes his error and vigorously moves to strike the hearsay from evidence. A related question presented by this appeal asks whether the evidence was legally sufficient to establish Alfred Gary’s participation in the charged conspiracy. The parties stipulated to the existence of a conspiracy, which had, as its objective, obtaining funds through false mortgages, which was the trademark of the Real Estate Group. The dispositive question at trial, however, was whether Alfred Gary, who leased and sold cars to a few members of the Real Estate Group, ever intentionally joined their conspiracy to steal millions of dollars from financial institutions through multiple fraudulent mortgage loans (A.56, 100). 8 Alfred Gary’s lack of any knowledge or intent are of critical importance, especially where the prosecution’s chief witness testified that Alfred Gary believed the funds he obtained from the Group to purchase and lease cars “were legitimately gotten from legitimate real estate transactions” (Tr.656) (emphasis supplied). Moreover, the prosecution’s main cooperating witness had “no reason to believe” Alfred Gary “was involved in any illegal activity” (Tr.600) (emphasis supplied). Furthermore, an essential element of conspiracy in the fourth degree is that the defendant intended to commit a class B or class C felony. Here, however, Alfred Gary was acquitted of all the underlying conduct that would support such a conviction. As a consequence, another issue on appeal is whether the verdict was repugnant because Mr. Gary had been found not guilty of the very conduct that the prosecution was required to prove -- beyond a reasonable doubt -- to support a conviction for conspiracy in the fourth degree. 9 There are also a number of important evidentiary issues that afflicted this trial and conviction. For example, the trial was irredeemably tainted by the admission of highly prejudicial double hearsay. And, the defense was precluded from properly confronting that evidence against Alfred Gary. Standing alone, each of these evidentiary issues should be sufficient to warrant a new trial. However, taken together, the cumulative effect of these egregious errors was certainly sufficient to deprive Alfred Gary of his state and federal constitutional rights to due process, a fair trial and to confront the prosecution’s witnesses. Statement of Facts Alfred Gary was raised in the Riverdale section of the Bronx (Tr.950). After graduating from college, Mr. Gary moved to California, where he worked as a music producer for Motown Music (Tr.950-51). Upon his return to the Tri- State area, Mr. Gary opened a business in New Jersey involving the purchase and lease of high-end automobiles, such as Maseratis, Bentleys and Porsches, by individuals and corporations (Tr.951, 976). 10 Mr. Gary’s clientele included notable individuals from the entertainment and financial industries, such as basketball star Kobe Bryant; Academy Award nominated actress Queen Latifah; and the first African-American Attorney General of New Jersey, Peter Harvey (Tr.952). Over the years, Alfred Gary established a fine reputation as an honest, reputable businessman. For example, a Certified Public Accountant, who has known Mr. Gary for more than 20 years, states that he is a “polite, upstanding and ethical” person who has been “stable within his community” and known as a “prudent business person” (A.239). Similarly, another accountant who has known Mr. Gary for approximately 25 years, describes him as a “hardworking and moral individual.” He further stated that Mr. Gary’s “work is ethical and meets the Generally Accepted Principles of Accounting” (A.238). 11 Alfred Gary Arranged for James Robert Sweet, an Avid Car Collector, to Purchase High-End Vehicles In 2006, a friend asked Alfred Gary to assist his cousin, James Robert Sweet, to purchase a Land Rover (Tr.959). Alfred Gary negotiated the price and arranged for Mr. Sweet to purchase the vehicle (Tr.960). Mr. Gary earned a commission of $5,000 (Tr.1079). Thereafter, a professional relationship ensued. Alfred Gary facilitated the purchase and/or lease of several high- end vehicles by Mr. Sweet and his business partners, and earned a customary commission for his efforts (Tr.961-68, 975, 1011, 1085-87).5 Alfred Gary understood that Mr. Sweet and his partners owned a mortgage and real estate business, which funded their lifestyle (Tr.964, 1086). Since Alfred Gary’s upscale car business placed him in contact with people of financial means, in 2007, Mr. Sweet asked Mr. Gary if he knew any investment bankers because he was interested in making an investment (Tr.979-80). Around 5 Mr. Sweet was a collector of expensive cars and owned a variety of vehicles, including a Bentley, Maserati, Porsche, Range Rover and BMW (Tr.405, 714). Mr. Sweet purchased or leased cars from other dealers as well -- not just from Alfred Gary. See, e.g., Tr.531-32. 12 the same time, another one of Mr. Gary’s clients, Tony Smith, was seeking possible investors for a small company (Tr.879, 981).6 Believing that they could help each other, Alfred Gary initiated a conference call between Mr. Sweet and Mr. Smith to discuss the potential investment opportunities (Tr.982). After the call, at Mr. Smith’s request, Alfred Gary arranged for the two men to meet in order for Mr. Sweet to possibly invest in Mr. Smith’s company (Tr.982-84, 1128). The meeting was held on December 11, 2007, in an office building in Midtown Manhattan (Tr.983-85). Alfred Gary’s participation was limited to introducing Mr. Sweet and Mr. Smith to each other (Tr.630, 985-86). Mr. Gary indicated that if the two men ultimately agreed to conduct business together for the investment, he would be entitled to a customary finder’s fee for putting the parties together (Tr.991). 6 Tony Smith owned the Martland Group, a consulting and holding company that secured funds for small companies (Tr.476, 575). Mr. Smith met Alfred Gary back in 1995, when Mr. Gary was working for one of Mr. Smith’s co-workers. In 2007, Mr. Smith leased a Saab SUV from Mr. Gary (Tr.477- 79). 13 Mr. Smith and Mr. Sweet described to each other their respective investment opportunities (Tr.987). No one ever discussed mortgage fraud or any other illegal activity (Tr.571, 986). About five minutes into the meeting, Mr. Sweet asked to have a private conversation with Mr. Smith. Alfred Gary went outside and checked on his dog, which he had left in his parked car (Tr.985-86, 1130). According to Mr. Smith, at some point in the 15- minute-long meeting, Mr. Sweet told Mr. Smith that he owned a lot of property on Long Island and had checks coming in from closings that he wanted deposited and returned to him in cash (Tr.485-86, 493). Mr. Smith agreed to deposit the checks in his business account because he believed the funds were obtained from legitimate real estate transactions (Tr.656). Mr. Smith subsequently made payments to Alfred Gary on behalf of Mr. Sweet and his associates for cars they purchased or leased through his business (Tr.582, 1120, 1122). Mr. Smith also paid Alfred Gary his agreed upon finder’s fee (Tr.1070-71, 1125). Mr. Smith testified that he had no reason to believe Alfred Gary was involved in any illegal activities (Tr.600). 14 A Massive Indictment is Issued Relating to Real Estate Mortgage Frauds On February 7, 2011, an indictment was issued by the Nassau County District Attorney’s Office, which implicated James Robert Sweet and 13 others with a variety of offenses stemming from complex mortgage frauds (A.9-99). The indictment alleged that from October 1, 2004, to May 19, 2009 -- a period of almost five years -- the Real Estate Group, of which Mr. Sweet was a leader, stole properties and mortgage proceeds by impersonating the buyer and seller of properties, as well as the seller’s representatives. The group also used straw buyers to purchase properties and, once the funds from the sales were received, defaulted on the mortgage payments (A.10). Alfred Gary was named in 10 counts, including enterprise corruption, conspiracy, scheme to defraud, money laundering and falsifying a business record.7 Alfred Gary 7 Specifically, Alfred Gary was charged with enterprise corruption, in violation of P.L. § 460.20(1)(a) (Count 1); conspiracy in the fourth degree, in violation of P.L. § 105.10(1) (Count 2); scheme to defraud in the first degree, in violation of P.L. § 190.65(1)(b) (Count 3); money laundering in the first degree, in violation of P.L. § 470.20(1)(b)(ii)(A)(iii) (Count 4); five counts of money laundering in the second degree, in violation of P.L. § 470.15(1)(b)(ii)(A)(iii) (Counts 12, 17, 22, 27 and 32); 15 was arrested in February of 2011. He steadfastly maintained his innocence, and was the only defendant who insisted upon a trial (Tr.128; Tr.8/22/12 at 13). The record in this conspiracy prosecution was extensive. The prosecution had over 100 exhibits, each of which ran up to 400 pages. There were also more than 150,000 items of Rosario material (Tr. 3/9/12 at 22-23). Rather than burden the court with extensive testimony relating to the Real Estate Group’s mortgage frauds, which would have consumed weeks of testimony, the parties stipulated to certain facts and witness statements establishing the Real Estate Group’s illegal conduct (A.107, 115). Alfred Gary vehemently denied any participation in any of that criminal conduct (Tr.950, 1072-73). And, the Stipulated Statement of Facts provides that “while the defendant stipulates to the facts and evidence as set forth in this Stipulation, he specifically denies as to himself and falsifying business records in the first degree, in violation of P.L. § 175.10 (Count 93) (A.9, 56, 61, 62, 64, 66, 68, 70, 72, 94). At trial, the indictment was modified to reflect only the 10 counts that related to Alfred Gary (A.100). He was only convicted of conspiracy in the fourth degree. 16 alone any criminal participation in the criminal enterprise, as well as any criminal participation in any related larceny, money laundering, conspiracy, or scheme to defraud committed by the other defendants charged” in the indictment (A.107)(emphasis supplied).8 The Trial At trial, three members of the Real Estate Group testified in return for reduced sentences. Carlos Irizarry, a real estate agent and loan officer, testified about the real estate/mortgage conspiracy and his role in the enterprise.9 8 On the eve of trial the prosecutor sought to amend the count charging falsifying business records in the first degree to claim that Alfred Gary made a false entry in a business record, under P.L. § 175.05(1), instead of claiming that he prevented the making of a true entry, under P.L. § 175.05(4) (Tr.54-56). The prosecution’s motion was denied and the court dismissed that substantive count (Tr.84-85). 9 Mr. Irizarry pled guilty to enterprise corruption and grand larceny relating to the Real Estate Group. In return for his cooperation, rather than 25 years imprisonment, Mr. Irizarry, who has a prior conviction for theft, received a reduced sentence of only five months incarceration and five months probation (Tr.149-51, 281, 295-96). 17 During his debriefing by the prosecution, Mr. Irizarry identified Alfred Gary as a car dealer and made no mention of Mr. Gary being part of any illegal activities10 (Tr.396). However, at trial, Mr. Irizarry changed his tune and claimed that Alfred Gary agreed to provide a false verification of employment for one of Mr. Sweet’s straw buyers. The alleged false verification of employment form (Exhibit 17C) was a single sheet of paper that was part of a voluminous loan file that was previously stipulated to by the parties (Exhibit 17A) (Tr.219-22; A.129). That exhibit was not filled out by Alfred Gary and does not contain his handwriting (Tr.1072-74; A.129). Carlos Irizarry completed much of the information placed on the form himself, including the applicant’s date of employment, present position, and prospects of continued employment (Tr.381).11 10 Mr. Irizarry stated that his wife purchased a Cadillac Escalade from Mr. Gary in 2007, which Mr. Gary subsequently repossessed because the Irizarrys failed to make payments (Tr.203, 227, 411). 11 Mr. Irizarry claimed he did not know who filled out the remaining information on the form (Tr.382, 385). 18 The form was signed “Alan Gary,” but the Defendant’s name is Alfred Gary (Tr.226, 390; A.129). Alfred Gary has never been known as “Alan Gary” (Tr.1073). In addition, the company name typed on the form -- “AG Capital Finance” -- is the wrong name of Alfred Gary’s company, which is actually called “AG Capital Holdings Inc.” (Tr.382, 953, 1073). Moreover, the bottom of the form submitted by the prosecution contained the hearsay notation, “1/12 spoke w/ Gary and he QC all info” (Tr.379; A.129).12 The prosecution suggested that the notation confirmed that Alfred Gary was involved in the creation of the false verification. However, most significantly, there existed two versions of the verification: One with the handwritten note and one without it (Tr.417). Defense counsel only intended to stipulate to the admission of the verification that did not contain the handwritten note (Tr.378). Thus, once counsel recognized the prejudicial hearsay of the handwritten notation, he objected to its admission into evidence (Tr.379-80). 12 Carlos Irizarry testified that “QC” stands for “Quality Control” (Tr.226). 19 Counsel urged that the notation constituted inadmissible hearsay, and should be redacted, where (1) the prosecution’s witness, Carlos Irizarry, did not know who wrote the notation on the form; (2) there was no evidence as to when the notation was added to the bottom of the form; and (3) it was impossible for defense counsel to confront or cross-examine the notation (Tr.226, 379-80, 385).13 However, counsel’s application was denied. Another cooperating witness, Tony Smith, indicated that in 2007 he spoke regularly with Mr. Gary, who he had known for several years, because they were interested in doing business together (Tr.480-81). Mr. Smith confirmed that in December of 2007, he attended the meeting with Mr. Gary and Mr. Sweet in Manhattan in anticipation of finding an investor for one of his investment businesses (Tr.483, 569).14 13 After cross-examination, the defense unsuccessfully moved to strike Mr. Irizarry’s entire testimony and the allegedly false verification form because his testimony was predicated on hearsay and matters of which he did not have direct knowledge (Tr.457, 463-68; A.129). 14 Mr. Smith admitted to laundering over one million dollars of proceeds from properties stolen by identity theft by the Real Estate Group through his Martland Group bank accounts (Tr.476, 575). He also pled guilty under a cooperation 20 Sophia Welsh, a mortgage broker who also participated in the real estate conspiracy, testified to a conversation where Mr. Sweet purportedly indicated that Mr. Smith was going to launder funds for the Real Estate Group (Tr.694). Ms. Welsh confirmed that Mr. Gary was not present at this conversation (Tr.720). Ms. Welsh also acknowledged that Mr. Sweet never said that Alfred Gary played any role in the mortgage conspiracy (Tr.722). Finally, the prosecution called Sherly Gschweng, an employee of the Nassau County District Attorney’s Office. Ms. Gschweng never before testified in any case and was not an expert forensic accountant (Tr.797). Ms. Gschweng testified about her analysis of Alfred Gary’s business bank accounts (Tr.753-95). She indicated that certain payments had been made from Tony Smith’s corporate account into Alfred Gary’s company accounts. However, those funds were used largely for business expenses relating to cars and some personal expenses (Tr.777). agreement to money laundering in the first degree with a recommended sentence of six months incarceration and five years of probation (Tr.476-77). 21 At the close of the prosecution’s case, the Defendant moved for a trial order of dismissal because there was no evidence that Alfred Gary joined the charged conspiracy (A.130-44). The defense urged that the evidence was insufficient to link Alfred Gary to the Real Estate Group and its frauds (A.135-36). In addition, the defense argued that the prosecution’s witnesses lacked credibility where they had committed other serious crimes -- such as immigration fraud, theft, and identity fraud (A.137-41). The court reserved decision (A.144). The Defense Case Although the prosecution failed to establish Alfred Gary’s participation in any misconduct, he nevertheless elected to mount a vigorous defense and called witnesses on his behalf. Mr. Gary also took the stand and denied being part of any criminal conduct (Tr.949-50). For example, Alfred Gary stated that he never verified anyone’s employment (Tr.1072-73). He also confirmed that his handwriting does not appear anywhere on the alleged verification of employment form (Tr.1072). He did not know anything about the form and has never been known as “Alan Gary”, which is the name signed on the form (Tr.1072-73). 22 Alfred Gary also testified about his car business and detailed how the funds he received from Tony Smith were for vehicles that had been leased or sold to Mr. Sweet and his associates (Tr.947-1075). Mr. Gary demonstrated that he received $48,000 from Mr. Smith on February 26, 2008, for a 2003 Porsche C4 convertible that was leased by Mr. Sweet’s business partner, John DiCanio (Tr.999-1000, 1086). Mr. Gary further received $147,000 on March 18, 2008, relating to Mr. Sweet’s purchase of a 2008 Mercedes Benz S63 (Tr.1122). And, he received $10,000 on April 9, 2008, for tickets and other fees accumulated on John DiCanio’s Porsche (Tr.1033). The defense also called Peter Goldman, a Certified Public Accountant15, who confirmed that it was normal practice for the owner of a closed corporation, such as Alfred Gary’s companies, to pay business and personal expenses out of a single corporate account (Tr.865). Mr. Goldman explained that when taxes are filed, the funds are 15 Mr. Goldman received his law degree from Fordham University School of Law and a Master’s Degree in Taxation from NYU School of Law. Mr. Goldman was a prosecutor in the United States Attorney’s Office for the Eastern District of New York from 1974 to 1977. He is also a retired Colonel from the United States Army Reserves (Tr.846). 23 separated and personal expenses would be indicated as income or a loan (Tr.866-67). Owen May, the owner of an investment banking firm, testified and corroborated that Tony Smith was trying to raise two million dollars for a small company called Klegg Electronics (Tr.879).16 Mr. May confirmed that he spoke to Alfred Gary and Tony Smith about Klegg Electronics (Tr.879- 80). Moreover, after the indictment was issued, Mr. Smith admitted to Mr. May on several occasions that Alfred Gary was not involved in the scheme alleged in the indictment (Tr.891-92). At the close of the case, the defense renewed its application for a trial order of dismissal. The court reserved decision and denied the application on March 30, 2012 (A.140, 189). 16 Klegg Electronics was a television manufacturing company that sought to put computer units into flat panel televisions (Tr.876). 24 Alfred Gary is Acquitted of All Counts Except For One Count of Conspiracy On March 30, 2012, Justice Norman St. George found Alfred Gary not guilty of a scheme to defraud, as well as all six money laundering counts (A.189-90). The court had dismissed the count of falsifying business records prior to the start of the trial (Tr.84). The court did not reach a verdict as to Count 1, charging enterprise corruption, because the prosecution failed to establish the money laundering charges, which formed the basis for the underlying Pattern Acts (A.190). However, the court found Alfred Gary guilty of Count 2, which charged conspiracy in the fourth degree (A.189). Alfred Gary Moved to Set Aside the Verdict Prior to sentencing, Alfred Gary moved, pursuant to CPL § 330.30, to set aside the verdict (A.192-201). The motion renewed the claim that the prosecution failed to prove a prima facie case or to establish Alfred Gary’s guilt beyond a reasonable doubt. 25 Specifically, the defense urged that the prosecution “failed to prove the defendant’s agreement or any overt act indicating knowledge or intent to act with respect to a single, integrated conspiracy” (A.196). It was further urged that the verdict was repugnant (A.196-97, 225-32). Without providing any explanation for its decision, the court summarily denied the application to set aside the verdict (A.233). On August 22, 2012, Alfred Gary was sentenced to five years probation and ordered to pay restitution (A.242).17 A timely Notice of Appeal was filed on August 29, 2012 (A.2). On September 17, 2012, the Honorable Cheryl E. Chambers of the Appellate Division, Second Department granted a stay of execution of the judgment pending appeal. 17 In a negotiated disposition to expedite the proceedings, Alfred Gary waived a restitution hearing and stipulated to restitution of $139,910, payable to Bank of America, N.A. and CitiMortgage, Inc. It was expressly agreed that the stipulation “shall not constitute an admission or evidence of wrongdoing by the defendant” (A.241). The payment of the restitution has been stayed pending completion of the appeal process (A.250). 26 On March 12, 2014, the Appellate Division affirmed Alfred Gary’s conviction and sentence (A.247). On September 5, 2014, Judge Pigott, granted Alfred Gary leave to appeal (A.246, 250). These are the facts that bring us to this time and place. POINT I COUNSEL’S INITIAL STIPULATION TO THE ADMISSION OF A DOCUMENT, INCLUDED WITHIN THOUSANDS OF PAGES OF DOCUMENTS, WHICH IS LATER LEARNED TO CONTAIN HIGHLY PREJUDICIAL HEARSAY SHOULD NOT BAR THE DEFENDANT FROM CHALLENGING THE ADMISSIBILITY OF THE HEARSAY IN A BENCH TRIAL This case presents a pure question of law that has never been addressed by this Court: Whether defense counsel’s stipulation to the admission of a large array of documents to facilitate the trial bars the defendant from challenging the admissibility of a document during a bench trial when it is subsequently discovered that the document contains highly prejudicial hearsay. 27 Put another way, this Court is called upon to resolve the recurring legal question of whether a criminal defendant is forever bound by a stipulation entered into by his counsel -- or whether he may still raise a constitutional Confrontation Clause claim, together with other objections, to inadmissible hearsay where counsel promptly recognizes his error in overlooking the inadmissible document and vigorously objects to its receipt in evidence -- especially where the error is identified during the testimony of the prosecution’s very first witness when the parties still had ample time to avoid any prejudice to the prosecution. This issue, involving the common practice of stipulating to the admissibility of evidence, impacts thousands of defendants throughout the State, as well as the orderly administration of justice. And, unless corrected by this Court, it is bound to have severe ramifications on the conducting of criminal trials in the Second Department, which is the largest Department in our State. 28 Throughout the entire bench trial, and the weeks leading up to it, defense counsel and the prosecution worked together conscientiously to drastically reduce the number of prosecution witnesses from 50 to four (Tr.30; A.107-28). The court also directed counsel to work together to stipulate the exhibits into evidence. Thus, at the request of the court, virtually all of the exhibits in this case were admitted into evidence by stipulation (Tr.92). The prosecution had 24 loan files, including well over 100 exhibits -- each running up to 400 pages long. In addition, there were over 150,000 items of Rosario material (Tr.8, 22, 23). One of those exhibits, which the parties stipulated into evidence, was a single page verification of employment, which was allegedly signed by Alfred Gary (A.129). The verification was introduced into evidence during the testimony of the prosecution’s first witness, Carlos Irizarry, as part of a much bigger file18 (Tr.219). 18 The entire loan file for the property at 185 Friends Lane, in Westbury, was admitted into evidence as Exhibit 17A (Tr.218-19; A.129). 29 Trial counsel soon realized that, among the blizzard of paper that swept over the case, the version of the verification in evidence as Exhibit 17C (A.129) contained a handwritten inscription on the bottom of the page that did not appear on the version that defense counsel had reviewed before agreeing to stipulate the document into evidence (Tr.378).19 As a consequence, counsel moved to redact the handwriting on the bottom of the exhibit (Tr.379). Counsel urged that the notation, which stated “1/12 spoke w/ Gary and he QC20 all info,” was inadmissible hearsay (Tr.379). Significantly, the prosecution’s witness, Carlos Irizarry, did not know who wrote that notation (Tr.385). There was also no evidence as to when the handwritten notation was added to the bottom of the form. 19 The prosecution concedes that there is a version of the verification which does not contain the hearsay notation on the bottom of the page (Tr.417). 20 As indicated, Carlos Irizarry testified that “QC” stands for “Quality Control” (Tr.226). 30 Therefore, it was impossible for defense counsel to confront or cross-examine the out-of-court statement which was, erroneously, offered for the truth of the matter -- that someone from the bank had confirmed with Alfred Gary the contents of the verification of employment (Tr.226). The Appellate Division Erroneously Found that Alfred Gary Waived his Challenge to the Inadmissible Hearsay by Counsel’s Pre-trial Stipulation to the Mass of Evidence Without citing to any authority, the Second Department affirmed the trial court’s refusal to allow the defense to challenge the admissibility of the allegedly false verification of employment form, whose hearsay nature was only discovered after it was stipulated into evidence, on the basis that the objection was waived. The Appellate Division held that Alfred Gary “waived his contention that a document offered by the People contained inadmissible hearsay by, prior to trial, stipulating to the admission into evidence of that document, among others” (A.248). However, there was no waiver and the Appellate Division’s decision sets a very dangerous precedent. 31 The Second Department now holds that a defendant’s vigorous challenge to the admissibility of a document, which contains highly prejudicial hearsay, cannot override his counsel’s good-faith stipulation into evidence of a large bulk of documents to expedite the trial. This ruling will discourage defendants from stipulating to matters before trial for fear that, upon closer scrutiny of the materials, they will discover a document’s inadmissibility. And, even when there is ample time to cure any prejudice from the stipulation, they will be forever bound by that initial decision. Such a harsh approach is at war with fundamental fairness and will extend the length of trials and place a severe drain on the judiciary’s already strained resources. It is often only during the midst of trial that the inadmissibility of certain evidence, and its highly prejudicial nature, becomes fully apparent. However, if defendants do not have a mechanism through which they may revisit a pre-trial stipulation -- which may have been made without the benefit of a witness’s testimony or was the result of counsel’s understandable confusion regarding which version of the document was being admitted -- then 32 they may opt for the safer approach and refrain from stipulating to evidence to expedite the trial. The stifling impact of this is immediately apparent. The Court “Commends Both Sides for all the Hard Work You Put in with Respect to Streamlining this Trial” Significantly, here, the trial court commended both sides for simplifying the case by, among other things, stipulating to the admissibility of the exhibits prior to trial (Tr. 3/9/12 at 36, 50). Without the stipulations, Mr. Gary’s two-week trial would likely have extended several more weeks, if not months. If the thousands of cases pending throughout the State are similarly extended because of defendants’ fear of the repercussions of entering into an overall stipulation, then the already long delay in resolving matters will increase exponentially. The Courts’ Willingness to Set Aside Erroneous Stipulations Will Encourage Defendants to Enter into Pre-trial Stipulations Stipulations are typically entered into to “dispense with proof over matters not in issue, thereby promoting judicial economy at the convenience of the parties.” 9 J. Wigmore, Evidence §§ 2588-2597 (3d ed. 1940). We urge, most respectfully, that to encourage parties to stipulate to the 33 admissibility of evidence, courts should readily permit exceptions to stipulations, where a sense of fairness demands it -- especially when there is ample time to cure any prejudice from the stipulation. Here, the error was identified during the testimony of the prosecution’s very first witness. Thus, there was sufficient time for the prosecution to call the necessary witness who actually made the notation on the verification of employment form. And, the witness would then be available for cross-examination. This is particularly true where it was a bench trial and there was no concern about delaying the proceedings. Exceptions to stipulations should also be granted where it is discovered that the stipulation was entered into based on a reasonable misunderstanding. This will allow defendants to feel confident that an oversight concerning an individual document, amidst a large quantity of evidence, can be cured at trial. 34 There Were Two Versions of the Verification of Employment -- One With the Hearsay and One Without the Hearsay Here, there was a reasonable basis to grant specific relief from the stipulation where the prosecution concedes that the voluminous loan file contained two copies of the verification form -- one with the hearsay and one without the hearsay (Tr.417). Thus, given the thousands of pages of documents and exhibits provided by the prosecution, it is eminently reasonable that counsel, despite diligent efforts, did not observe and appreciate the consequence of the single page verification obscured within the immense file and other exhibits. The predominant issue here is whether a stipulation constitutes an irrevocable waiver that forever binds the defendant -- even where that stipulation to admit a mass of documents that included inadmissible hearsay was entered into by honest mistake, and steps were quickly taken to correct counsel’s error, which resulted from the prosecution’s production of two versions of the same document. 35 The rigid rule adopted by the Second Department -- that once a document, among hundreds of others, has been erroneously stipulated into evidence, it cannot be undone - - serves no equitable purpose, especially in a bench trial. Alfred Gary Was Substantially Prejudiced by the Admission of this Hearsay Alfred Gary was irredeemably prejudiced by the trial court’s refusal to strike the hearsay. The notion that hearsay is an out-of-court statement made by a declarant, which is offered in court for the truth of the matter, needs no scholarly vindication. See People v. Nieves, 67 N.Y.2d 125, 131, 501 N.Y.S.2d 1, 4 (1986) (discussing what constitutes hearsay). The “inherent dangers in hearsay evidence are obvious.” People v. Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874, 882 (1978). This is because the person who made the statement is not called as a witness at trial. Therefore, the “adversary of the party offering the proof is afforded no opportunity to cross-examine the declarant or impeach his credibility.” Id.21 21 See also People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575 36 Here, cross-examination, the best machinery devised by man to discover the truth, was thwarted where trial counsel was unable to confront the statement scrawled on the bottom of the verification. The obvious hazards in this evidence amplify the imperatives of the exclusionary rule. And, the failure to exclude the statement constituted reversible error -- particularly where the verification was the only evidence presented to establish that Alfred Gary had any involvement with the alleged mortgage fraud. At trial, the prosecution tried to link Alfred Gary to the real estate fraud. Thus, much of the fiercest fighting centered on the admissibility of the single sheet of paper, which the prosecution claimed trumpeted Mr. Gary’s entrance into Mr. Sweet’s conspiracy and established that he had knowledge of the underlying mortgage fraud.22 (2006)(reversing a conviction where, at trial, the defendant was unable to challenge the prosecution’s proof on a critical element). 22 See, e.g., Tr.107, 380, 391, 417, 420, 421, 457, 459, 463, 567, 817, 1169, 1191. 37 The handwritten notation on the bottom of the page was used by the prosecution to establish the truth of its claim that the bank relied upon the verification to enable a fraudulent loan to clear (Tr.1191). This was extremely prejudicial to Alfred Gary -- particularly where, as more fully developed below in Point II, the verification, itself, is highly suspect and would hardly provide a basis for anyone issuing a loan. The form is missing critical information that would be relevant and material to issuing a loan. For instance, the information sought in Boxes 6 (Lender No.), 12A (Current Gross Pay), 12B (Gross Earnings), 14 (Overtime/Bonus Information), 15 (Hourly Pay), 16 (Date of Next Pay Increase), 17 (Projected Amount of Next Pay Increase), 19 (Amount of Last Pay Increase), and 20 (Remarks), is all missing (A.129). Furthermore, Alfred Gary’s name and alleged signature are completely wrong since his name is “Alfred” not “Alan” Gary. Moreover, the company name and title are all wrong on the form, which was not signed or filled out by Mr. Gary (Tr.226, 390, 1072; A.129). 38 Given the many grave doubts surrounding the authenticity of the verification, including who filled in the limited information on the form (A.385), and when it was filled in, the error in failing to redact the highly prejudicial hearsay statement at the bottom was devastating to the defense. And, any probative value of the hearsay was far outweighed by its prejudicial effect. Indeed, based on the paucity of proof against Alfred Gary, and the fact that he was acquitted of all counts except the conspiracy, the court certainly relied upon the verification and its hearsay in finding Mr. Gary guilty of the conspiracy charge. Thus, the Defendant has been condemned to the awful specter of a felony conviction based on inadmissible hearsay evidence that he was never able to challenge. 39 This Issue is Amply Developed and Preserved for Review by this Court The claim is fully preserved and eligible for review. See Tr.378-80, 391, 417-21, 457-68; Appellant’s Br. at 2, 27-29, 53-58.23 A balancing of the equities tilts heavily in favor of reconsidering counsel’s stipulation of the hearsay into evidence. The objection was raised while the prosecution’s first witness was still on the stand.24 Thus, counsel’s objection was timely because it was made with sufficient time to cure any harm and while the witness was still available and on the witness stand. This error standing alone warrants a reversal of Alfred Gary’s conviction and a new trial. 23 Trial counsel asked the judge to redact the hearsay (Tr.379), and then moved to strike the hearsay and the witness’s testimony about the hearsay (Tr.380). Counsel subsequently renewed his application to strike the hearsay and to have it redacted (Tr.391). 24 Compare People v. DeMauro, 48 N.Y.2d 892, 893, 424 N.Y.S.2d 884, 886 (1979) (the defendant’s motion for a mistrial based upon the inadvertent disclosure of the defendant’s incarceration was untimely when the motion was not made until the day after the witness completed her testimony). 40 POINT II THE VERDICT WAS LEGALLY INSUFFICIENT TO ESTABLISH ALFRED GARY’S PARTICIPATION IN THE ALLEGED CONSPIRACY Under our system of law no one can be convicted of a crime, and suffer the terrifying consequence of a criminal conviction, “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). As a consequence, this Court is empowered to reverse or modify a judgment, such as this, which is based upon legally insufficient evidence. See People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987). A verdict is only legally sufficient when, “viewing the facts in a light most favorable” to the prosecution, there is a “valid line of reasoning or permissible inferences” from which a rational fact-finder could have found the elements of the crime proved beyond a reasonable doubt. People v. Brown, 17 N.Y.3d 863, 865, 932 N.Y.S.2d 775, 777 (2011), quoting People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 484 (2007). 41 The Appellate Division -- without citing to any facts or rationale to support its conclusory determination -- summarily held that the evidence, in the light most favorable to the prosecution, was sufficient to establish Alfred Gary’s guilt beyond a reasonable doubt (A.247). However, as developed below, this conclusory determination is wrong. Instead, the evidence of Alfred Gary’s participation in the charged conspiracy was legally insufficient as a matter of law because there was no valid line of reasoning or permissible inferences from which a rational fact-finder could have found the elements of the crime proved beyond a reasonable doubt. The Prosecution’s Key Witness Testified that He “Had No Reason to Believe that Mr. Gary was Involved in Any Illegal Activity” The prosecution urges that Alfred Gary was part of the Real Estate Group. However, even viewing the evidence in the light most favorable to the prosecution, the trial evidence failed to establish Alfred Gary’s participation in conspiracy in the fourth degree. 42 Alfred Gary never attended any real estate closings and had nothing to do with any real estate fraud (Tr.950, 992). Thus, unlike the many appraisers, mortgage brokers and lawyers identified in this prosecution, Alfred Gary truly had no connection to any of the real estate deals in Nassau County (Tr.322, 992). The testimony of the prosecution’s key witness, Tony Smith, is critical. Mr. Smith acknowledged that he “had no reason to believe that Mr. Gary was involved in any illegal activity” (Tr.600) (emphasis supplied). And, since Tony Smith obtained the funds from Mr. Sweet, which he gave to Alfred Gary to purchase cars, Mr. Smith was in an excellent position to know if Mr. Gary had anything to do with the illegal activities of the Real Estate Group. Instead, Alfred Gary was merely a car dealer (Tr.600). The prosecution’s witnesses confirmed that Mr. Gary purchased and leased cars -- which is his occupation -- for Mr. Sweet and others. See e.g., Tr.213, 413, 479, 533, 536, 547, 582, 599. That Alfred Gary is a legitimate car dealer, and was not part of any conspiracy to launder mortgage fraud funds, is also confirmed by the fact that Alfred Gary actually repossessed cars from members of the Real Estate 43 Group who fell behind on their required payments. See, e.g., Tr.228, 250, 304, 411. Certainly, if Alfred Gary was part of Mr. Sweet’s conspiracy and crew, he never would have taken the radical step of repossessing cars from members who were delinquent in their monthly payments. The Prosecution Never Met its Burden of Proof, Beyond a Reasonable Doubt, that Alfred Gary Entered the Conspiracy by Providing a False Verification, Where Even the Wrong Name is Signed on the Form As developed in Point I, in an effort to connect Alfred Gary to the Real Estate Group, the prosecution claimed that he entered into the alleged conspiracy back in 2006 because a false document was prepared in his name, by others, which was submitted to a lender, along with other documents, as part of a fraudulent mortgage application (Tr.1182). Specifically, the prosecution claimed Mr. Sweet asked Alfred Gary to verify that a Frank Martin worked for Mr. Gary’s company when, in fact, Mr. Martin did not work for Mr. Gary. The prosecution also introduced a Request for Verification of Employment as its Exhibit 17C, in support of that allegation (A.129). 44 Alfred Gary unequivocally denied ever filling out the form or authorizing anyone to complete the form (Tr.1072- 73). Carlos Irizarry admitted to completing the information in Boxes 9, 10 and 11 of the form (A.129), which relate to the applicant’s date of employment, present position, and probability of continued employment (Tr.381). Mr. Irizarry, an alleged accomplice, conceded that he did not know who filled out most of the remaining information on the form (Tr.382, 385).25 Furthermore, even if Alfred Gary authorized the verification, which is vigorously disputed, it would not prove that he knowingly entered a conspiracy with Mr. Sweet. In fact, the prosecution claimed that Mr. Gary was merely doing a favor for Mr. Sweet, who had purchased a number of cars from him (Tr.1187). But, there is no evidence that Alfred Gary ever knew what the form was to be used for or that he was part of a broad criminal venture. There is also no reference on the form to a mortgage for 25 The reliability of the verification itself -- as a record that was used to obtain a substantial loan -- is also questioned by the fact that all places on the form where any income information would be indicated were crossed out (A.129, 388). The prosecution never called as a witness the actual person who completed the rest of the information on the form or signed the name “Alan Gary.” 45 property at 185 Friends Lane, in Westbury, for which it was purportedly used (A.129). Carlos Irizarry also testified that the Real Estate Group paid individuals to complete false verifications (Tr.358). In contrast, Alfred Gary never received any compensation in connection with the verification (Tr.227, 358). This further calls into question the prosecution’s tenuous claim that Alfred Gary entered the conspiracy by authorizing a false verification. Alfred Gary Did Not Join the Real Estate Conspiracy by Introducing James Robert Sweet to Tony Smith The prosecution urges, in the alternative, that Alfred Gary joined the real estate conspiracy in December of 2007 by introducing Tony Smith to James Robert Sweet (Tr.517-18, 1182). However, the evidence was completely insufficient to sustain that nebulous conjecture. Tony Smith, who was once a licensed securities broker, worked with investors to obtain funding for various penny stocks and other small companies (Tr.575, 646). Alfred Gary had, in the past, put him in touch with people who invested in stocks recommended by Mr. Smith (Tr.604, 647). As a 46 consequence, when Alfred Gary introduced Tony Smith to Mr. Sweet in December of 2007, it was to see whether Mr. Sweet could invest in a legitimate business opportunity (Tr.569, 571). James Robert Sweet never said anything in Alfred Gary’s presence about being involved in any illegal activity (Tr.571). Moreover, both Alfred Gary and Tony Smith believed that Mr. Sweet was obtaining his money from legal sources (Tr.629). Their belief was well founded because they knew Mr. Sweet owned a mortgage company and substantial property on Long Island (Tr.629). The evidence from the prosecution’s own witness -- Tony Smith -- was that after Alfred Gary introduced the two businessmen, Alfred Gary did not participate in any further discussions. Instead, he was simply present (Tr.630). However, mere presence at a meeting is insufficient to prove an intentional joining of a conspiracy.26 26 The highest potential for unjust convictions exists under the perilous conspiracy doctrine because of its elusiveness and lenient rules concerning the admissibility of evidence, which would be barred in other circumstances. This danger is best exemplified by a scene from David Mamet’s Broadway play, Glengarry Glen Ross. There, a character reveals to a co-worker his scheme to rob the real estate sales office. 47 Instead, criminal responsibility for a conspiracy requires an affirmative act or agreement -- rather than mere passive knowledge of the conspiracy. See People v. Giordano, 211 A.D.2d 814, 816, 622 N.Y.S.2d 89, 91 (2d Dept. 1995) (a “conspirator must know of the agreement and intend to join the conspiracy”), aff’d, 87 N.Y.2d 441, 640 N.Y.S.2d 432 (1995). The Witnesses Against Alfred Gary Were Cooperators With Significant Credibility Issues Additionally, all of the fact witnesses against Alfred Gary were cooperators who were testifying in exchange for their freedom. For example, Carlos Irizarry conceded that he was initially facing 25-years imprisonment. But, through his cooperation, his exposure was radically reduced to a mere five months of incarceration (Tr.295-96). Certainly, a cooperator will, understandably, say anything to gain that kind of bountiful dispensation. Later, the schemer tells the other salesman that he is implicated in the scheme. When the other salesman, in astonishment, asks, “Why?”, the schemer answers, “Because you listened!” David Mamet, Glengarry Glen Ross, sc. 2. What a terrifying, but true illustration of the incoherencies of the prosecutor’s claim that Alfred Gary was involved in the charged conspiracy because he may have just listened. 48 And, in assessing the proof, it is important to recognize that each of the prosecution’s fact witnesses had significant criminal histories of considerable concern. For instance, as more fully developed below, Carlos Irizarry concededly deceived the government and engaged in serious immigration fraud (Tr.213). Furthermore, he was previously convicted of larceny (Tr.281). Similarly, Sophia Welsh pled guilty to enterprise corruption and grand larceny (Tr.667). Significantly, while cooperating with the prosecution in this case, she was also facing other charges in Kings County, including grand larceny and identity theft (Tr.668). And, Tony Smith pled guilty to money laundering in the first degree (Tr.476).27 27 The prosecution may argue that Alfred Gary also has a prior criminal history. However, in reality, Mr. Gary has lived an upstanding life. When he was just 18 years old, and in college, he pled guilty to giving someone $200 towards drugs and was sentenced to one year incarceration. Mr. Gary was accepted into a work release program and was able to continue his schooling while serving his sentence (Tr.954). 49 In recognition of the inherent fallibility of testimony from such cooperating witnesses, a defendant “may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” CPL § 60.22(1)(emphasis supplied).28 Here, the prosecution failed to present evidence that confirmed or harmonized with the cooperators’ testimony. Instead, the evidence established that Alfred Gary was merely a car dealer who happened -- as it turned out -- to have sold cars to persons who were engaged in misconduct. 28 The corroborative evidence must connect the defendant with the commission of the crime in such a manner as to reasonably satisfy a jury that the accomplice is telling the truth. See People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 791 (2010); People v. Rodriguez, 22 N.Y.3d 917, 977 N.Y.S.2d 703 (2013) (the evidence was insufficient to corroborate the accomplice’s testimony). 50 The Prosecution Failed to Establish the Existence of a Single Conspiracy The indictment alleged a multifarious conspiracy that spanned five years and contained 41 overt acts.29 But, the proof at trial failed to establish a single conspiracy including Alfred Gary, or his membership, in any such all- encompassing conspiracy. At most, without conceding any illicit conduct on his part, the prosecution proved an isolated relationship between Alfred Gary, Tony Smith and James Robert Sweet -- rather than any overarching conspiracy. This critical variance was fatal to the validity of the conviction because it allowed highly prejudicial proof to flood the trial. 29 Alfred Gary was only named in four overt acts. Overt Act (g) alleges that he “provided a false verification of employment” (A.58). Overt Act (h) alleges that on February 26, 2008, Alfred Gary “received proceeds from The Martland Group into a bank account which he controlled” (A.58). Overt Acts (i) and (j) alleged that same conduct on March 18, and April 9, 2008 (A.58). However, Mr. Gary explained that the deposit of these funds related to his lawful business of leasing and selling cars. 51 This Court has described the crime of conspiracy as the “darling of the modern prosecutor’s nursery,” because it “exemplifies the tendency of a principle to expand itself to the limit of its logic and furnishes the prosecution with potent evidentiary weapons.” People v. Leisner, 73 N.Y.2d 140, 149, 538 N.Y.S.2d 517, 521 (1989) (internal citations and punctuation omitted). The Court also noted that the “risk of prejudice” to a defendant is “greatest” when the prosecution “combines a number of seemingly related criminal agreements into a single integrated conspiracy count.” 73 N.Y.2d at 149, 538 N.Y.S.2d at 522. In that circumstance, the “‘all too real’ danger that a [finder of fact] will find guilt by association is well recognized.” Id. (emphasis supplied). Here, the prosecution attempts to justify a single conspiracy involving many different persons by claiming that the defendants were part of one sweeping conspiracy with James Robert Sweet at its hub and tangential people, such as Alfred Gary, serving as spokes of a single wheel. 52 However, as urged by counsel at trial, no rational trier of fact could infer from the evidence that Alfred Gary was part of an integrated conspiracy or that such an integrated conspiracy existed (Tr.124-33). Significantly, a single “spoke-type” conspiracy cannot be found unless there is an indispensable “rim of the wheel to enclose the spokes.” Leisner, 73 N.Y.2d at 151, 538 N.Y.S.2d at 523, citing Kotteakos v. United States, 328 U.S. 750, 755, 66 S. Ct. 1239, 1243 (1946).30 This is because “[n]o matter the geometric shape taken by a conspiracy, ‘the gist of the offense remains the overall agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.’” 73 N.Y.2d at 151, 538 N.Y.S.2d at 523, quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964) (Friendly, J.). 30 In Kotteakos, the Supreme Court warned prosecutors against exploiting loose and indiscriminate conspiracy charges. The Court held that each person at the end of a separate spoke had the right “not to be tried en masse for the conglomeration of distinct and separate offenses.” 328 U.S. at 775, 66 S. Ct. at 1253. 53 Although it was stipulated that Mr. Sweet engaged in a conspiracy with others to steal money through mortgage loans (A.112-14), there was no stipulation or evidence that Alfred Gary was involved in this distinct conspiracy. For, even though direct relationships existed between the other defendants and Mr. Sweet, there was no stipulation or link between Alfred Gary and a single criminal intent. As a consequence, the prosecutor failed to prove the conspiracy count against Alfred Gary as a matter of law and fact. Moreover, as more fully developed below, Alfred Gary was substantially prejudiced by the prosecution’s efforts to prove a single conspiracy. This is because the prosecution used this theoretical proscenium to admit a mass of noxious testimony and evidence that was wholly unrelated to Alfred Gary, as well as evidence pursuant to the co-conspirator exception to the rule against hearsay. 54 The Insufficiency Argument is Preserved for Review by this Court This issue is fully preserved for appellate review where trial counsel repeatedly objected to the prosecution’s failure to establish one integrated conspiracy. See, e.g., Tr.114, 121-24, 133, 142, 1161; A.170, 196. Moreover, recognizing the prosecution’s failure to meet its burden of proof against Alfred Gary, defense counsel moved for a trial order of dismissal at the end of the prosecution’s case, and renewed it at the close of the defense case (A.130-37). In his closing argument counsel again renewed his motion for a trial order of dismissal and developed the many insufficiencies in the prosecution’s proof (A.164, 165, 170, 187).31 Counsel even filed a motion to set aside the verdict, pursuant to CPL § 330.30, because the prosecution “wholly failed to prove a prima facie case against the defendant or proof beyond a reasonable doubt.” Specifically, counsel urged that the prosecution “failed to prove the defendant’s 31 See People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 399 (2008) (“counsel must move for a trial order of dismissal, and the argument must be ‘specifically directed’ at the error being urged” to preserve a challenge to the legal sufficiency of a conviction). 55 agreement or any overt act indicating knowledge or intent to act with respect to a single, integrated conspiracy” (A.196). These legal issues were then developed before the Appellate Division on pages 1 and 24-39 of the Appellant’s opening brief. For all these reasons, the matter is fully preserved for appellate review. As a consequence, reversal of Alfred Gary’s conviction is necessitated under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as under Article I, § 6 of the New York State Constitution. 56 POINT III THE VERDICT IS REPUGNANT, AND LEGALLY INSUFFICIENT, WHERE THE DEFENDANT WAS ACQUITTED OF THE VERY CONDUCT THE PROSECUTION HAD TO PROVE -- BEYOND A REASONABLE DOUBT -- TO ESTABLISH CONSPIRACY IN THE FOURTH DEGREE A conspiracy typically requires proof of an agreement to commit an offense, together with an overt act committed by a co-conspirator in furtherance of the conspiracy. See People v. Caban, 5 N.Y.3d 143, 149, 800 N.Y.S.2d 70, 74 (2005).32 However, conspiracy in the fourth degree requires substantially more proof. To establish that crime, the prosecution must prove -- beyond a reasonable doubt -- that the defendant intended and agreed to perform a class B or C felony.33 Here, the prosecution failed to prove the critical aggravating factor -- the class C felony (grand larceny) -- which was required 32 See also P.L. § 105.00 and § 105.20. 33 Section 105.10(1) of the Penal Law provides that a “person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting (1) a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct.” Conspiracy in the fourth degree is a class E felony. 57 to sustain the charged conviction for conspiracy in the fourth degree. Count 2 alleged a conspiracy in that between October 1, 2004 to May 19, 2009, in Nassau County, 14 defendants agreed to obtain funds from certain lenders by obtaining mortgages through false information or fraudulent documents (A.56). The allegations of the intended C felony (grand larceny) -- including obtaining funds from certain lenders by procuring mortgages through false information or fraudulent documents -- were identical to the elements of the scheme to defraud charged in Count 3 (A.56, 61).34 Since Alfred Gary was acquitted of the scheme to defraud, he could not, as a matter of law or fact, be convicted of conspiracy in the fourth degree, which required the prosecution to prove that Alfred Gary intended to commit that very same conduct to establish the underlying grand larceny. 34 Count 3 charges a scheme to defraud in that during the very same period of time, October 1, 2004 and May 19, 2009, in Nassau County, the same 14 defendants engaged in the same ongoing course of conduct intended to obtain the same funds from the same lenders under the same false pretenses (A.61). 58 No Person Should be Convicted of a Crime Where the Fact-finder Found that the Defendant Did Not Commit an Essential Element of the Charge The Appellate Division found, without explanation, that the verdict was not repugnant because it believed that Alfred Gary’s acquittals on the scheme to defraud and money laundering counts “did not necessarily negate an essential element of conspiracy in the fourth degree” (A.248). However, that is wrong. Alfred Gary’s conviction of conspiracy in the fourth degree is repugnant and deficient as a matter of law because he was acquitted of the precise conduct alleged in the conspiracy. Moreover, because the prosecution could not prove the underlying substantive offenses or demonstrate an intent to commit those offenses, the prosecution failed to establish an essential element of conspiracy in the fourth degree. 59 A defendant, such as Alfred Gary, who had no knowledge of the conspirators’ serious goals, cannot be convicted of the elevated offense of conspiracy in the fourth degree.35 Here, as conceded by prosecution witness Tony Smith, Alfred Gary did not know of Mr. Sweet’s criminal conduct (Tr.600). As a consequence, even if Mr. Gary may have known that something was amiss, which is disputed, he certainly never intended to a commit a class B or class C felony, as required to sustain a conviction for conspiracy in the fourth degree.36 No person should be convicted of a crime where the finder of fact “has actually found that the defendant did not commit an essential element” of the offense. People v. Tucker, 55 N.Y.2d 1, 6, 447 N.Y.S.2d 132, 134 (1981). And, one of the most cherished policies of our nation is that allowing “such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.” Id. 35 See Richard A. Greenberg, New York Criminal Law, § 4:6 at 220 (Thomas West 2007) (3rd ed.). 36 See People v. Joyce, 100 A.D.2d 343, 347, 474 N.Y.S.2d 337, 340 (2d Dept. 1984)(the prosecution may not establish conspiracy in the fourth degree without establishing the necessary “specific intent” to commit a class B or class C felony). 60 Although the decision of a jury is usually given deference in assessing whether a verdict is repugnant37, this Court and the Second Circuit have recognized that very different considerations come into play where, as here, the case was tried before a judge. See Tucker, 55 N.Y.2d at 6 n.7, 447 N.Y.S.2d at 134 n.7. In fact, in United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), cited by this Court in Tucker, the Second Circuit held that the rule generally upholding jury verdicts in criminal cases does not apply to an inconsistent verdict after a bench trial. In Maybury, the Second Circuit reiterated that jury verdicts are, historically, given greater deference because they are “not just the verdict of twelve men” -- they also reflect the verdict of the community. 274 F.2d at 903. However, there is no basis for approving an “inconsistent judgment when a criminal case is tried” before a judge. 274 F.2d at 903. A judge is “hardly the ‘voice of the country,’ even when he sits in the jury’s place.” Id. 37 Where a jury reaches a verdict, “a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.” 55 N.Y.2d at 7, 447 N.Y.S.2d at 134. 61 We recognize that courts have held that inconsistency in a verdict rendered at a bench trial would not necessarily lead to reversal if the inconsistency related to separate counts of the accusatory instrument.38 However, the logical approach adopted by Maybury -- and acknowledged by this Court in Tucker -- is much more equitable because it better ensures that defendants are not convicted in violation of their due process rights. Alfred Gary’s conviction is also legally insufficient and the verdict was repugnant where the only class B and C felonies that Alfred Gary was charged with were money laundering in the first degree and money laundering in the second degree (A.61-62, 64, 66, 68, 70, 72, 100).39 However, 38 See People v. Pugh, 36 A.D.2d 845, 321 N.Y.S.2d 504 (2d Dept. 1971), aff’d, 29 N.Y.2d 909, 328 N.Y.S.2d 860 (1972); People v. Alfaro, 108 A.D.2d 517, 489 N.Y.S.2d 546 (2d Dept. 1985), aff’d on other grounds, 66 N.Y.2d 985, 499 N.Y.S.2d 378 (1985). 39 Alfred Gary was added to the sweeping enterprise corruption count, which is a class B felony. However, P.L. § 105.35 expressly provides that conspiracy to commit enterprise corruption “shall not constitute an offense.” Thus, enterprise corruption is exempted from those offenses which can be used to increase the punishment for a conspiracy under P.L. § 105.10(1). Moreover, the trial court declined to reach a verdict on the enterprise corruption count because the prosecution failed to establish the required Pattern Acts (A.190). 62 Alfred Gary was acquitted of those very offenses (A.189- 90). Thus, the verdict was repugnant as a matter of law. The Challenge to the Verdict is Preserved for Appellate Review This compelling issue was fully preserved for appellate review where an appropriate protest was lodged in the trial court. Immediately after the verdict was announced, counsel requested an opportunity to file a motion, pursuant to CPL § 330.30, to set aside the verdict (A.191).40 Trial counsel then filed a timely motion, which specifically identified the verdict as being repugnant (A.193, 198).41 40 See Alfaro, 66 N.Y.2d at 987, 499 N.Y.S.2d at 379 (a claim that a verdict in a bench trial was repugnant may be made in a § 330 motion because the judge, as the finder of fact, “is still available to correct repugnancies in the verdict”). 41 For example, counsel urged “[i]n finding the defendant guilty under Count 2, the Court has rendered inconsistent verdicts, contrary to the evidence” (A.196-97). The § 330 motion cited to Tucker and argued that a “conviction for Conspiracy and an acquittal under other counts presents repugnant and inconsistent verdicts” (A.198). 63 Both parties fully briefed the issue of repugnancy and it was the subject of a written decision by Justice St. George (A.193, 209, 225, 233).42 The matter was then fully developed before the Appellate Division in Point II of the Appellant’s brief. See, e.g., pages 2 and 40-48. As a consequence, this legal issue is properly before this Court and fully eligible for review. The conviction violated Alfred Gary’s rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 6 of the New York State Constitution. For all these reasons, the conviction should be reversed and the judgment should be vacated. 42 The trial court acknowledged the repugnancy claims but found, without any explanation, that the Defendant “failed to establish any basis for reversal or modification of the Verdict as a matter of law” (A.233). 64 POINT IV THE CONVICTION SHOULD BE VACATED BASED UPON EVIDENTIARY ERRORS THAT DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND CONFRONTATION Among the perils of overbroad conspiracies is that prosecutors can exploit the spacious and unfixed boundaries of a conspiracy to smuggle highly prejudicial hearsay into the trial -- which would otherwise be barred. Sadly, that occurred here where the prosecution was able to slip into evidence double hearsay statements allegedly made by a co- conspirator that Alfred Gary was never able to confront. The prosecution called one witness, Sophia Welsh, who had virtually no personal knowledge about Alfred Gary, for the sole purpose of introducing a statement allegedly made by James Robert Sweet (Tr.660). Ms. Welsh was allowed to testify -- over vigorous objections43 -- that at some unspecified point in December of 2007 she heard Mr. Sweet say that Tony Smith was going to “wash the money,” and he was Alfred Gary’s “boy” (Tr.694, 711). 43 Trial counsel repeatedly objected to all of Sophia Welsh’s testimony, with specific emphasis on the statements attributed to Mr. Sweet (Tr.506, 510, 589, 659, 663-64, 680-84, 694, 701-12). 65 This is the most volatile form of hearsay imaginable because Alfred Gary was not present when James Robert Sweet reportedly made the statements (Tr.720).44 Mr. Sweet was never produced at trial. And, defense counsel’s request for a missing witness charge was denied (Tr.661, 1154). Thus, the prejudicial statement, which endeavored to link Alfred Gary to Tony Smith’s laundering of funds, contaminated the trial because the defense was unable to confront or examine it. It Was Error to Expand the Conspiracy to Admit Highly Prejudicial Double Hearsay Into Evidence The Appellate Division held that the “testimony of a coconspirator was properly received into evidence under the coconspirator exception to the hearsay rule” (A.248). However, the exception’s use in this case represents a dangerous expansion of that limited doctrine. 44 The trial judge initially recognized the double hearsay nature of allowing Ms. Welsh testify about statements allegedly made by Mr. Sweet. For example, the court noted that the “problem with going down the slippery slope” of allowing the “double hearsay” into evidence is that defense counsel “can’t cross-examine Mr. Sweet about what she’s going to say Mr. Sweet said” (Tr.675-76). 66 The co-conspirator exception to the rule against hearsay is rooted in the precarious proposition that all participants in a conspiracy are responsible for the acts and declarations of the others.45 But, the narrow exception “rests upon the shakiest of theoretical foundations.” People v. Persico, 157 A.D.2d 339, 347, 556 N.Y.S.2d 262, 268 (1st Dept. 1990) (emphasis supplied). Because of the dubious nature of co-conspirator’s admissions, such evidence is only permitted if the prosecution can first establish a prima facie case of conspiracy without recourse to the declaration sought to be introduced under the hearsay exception. Leisner, 73 N.Y.2d at 149, 538 N.Y.S.2d at 521.46 45 Caban, 5 N.Y.3d at 148, 800 N.Y.S.2d at 74; People v. Rastelli, 37 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 914 (1975). 46 See also People v. Wolf, 98 N.Y.2d 105, 118, 745 N.Y.S.2d 766, 775 (2002); People v. Evangelista, 88 A.D.2d 804, 450 N.Y.S.2d 817 (1st Dept. 1982); Caban, 5 N.Y.3d at 148, 800 N.Y.S.2d at 74. 67 Applying these constraints to the facts of this case, the prosecution clearly failed to establish, as a matter of law, that Mr. Sweet’s statement was made in the course of a conspiracy to which Alfred Gary was a member (Tr.701-04). For example, Tony Smith, a key prosecution witness, swore that there was no basis to believe that Alfred Gary was involved in any illegal activities (Tr.600). Mr. Sweet never said anything in Mr. Gary’s presence about being involved in any illegal activities (Tr.571). And, Alfred Gary was not present when the statement was allegedly made. Finally, the statement was only made after Mr. Gary introduced Tony Smith to Mr. Sweet for the purpose of making a perfectly lawful investment in Tony Smith’s company (Tr.571). Since the prosecution never established that Alfred Gary was a member of the Real Estate Group conspiracy, the prejudice to Alfred Gary from admission of this hearsay was far from harmless. See People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213 (1975). For instance, the prosecutor forcefully exploited this statement during her summation in an effort to connect Alfred Gary to James Robert Sweet’s criminal conduct. See Tr.1202 (“as you heard Sophia Welsh 68 say, the man who is going to do that was Al Gary’s boy, Tony Smith”). The evidence against Alfred Gary was purely circumstantial, which is why, we urge, he was acquitted of virtually every charge contained in the indictment. The trial court even conceded that, in the scheme of things, Alfred Gary was merely “tangentially involved” (A.5). As a consequence, the error in expanding this conspiracy and allowing highly prejudicial double hearsay -- which Alfred Gary could not confront or subject to cross-examination -- was absolutely devastating to the defense and warrants a reversal of his conviction. The Defense Was Denied Critical Impeachment and His Right of Confrontation through a Prosecution Witness’ Invocation of His Privilege Against Self-Incrimination Regarding his Federal Fraud It was also error for the trial court to deny the Defendant’s motion to strike the entire testimony of Carlos Irizarry where the defense was deprived of its right to confrontation and an opportunity to properly impeach the witness through his invocation of his Fifth Amendment privilege against self-incrimination. 69 Specifically, during the prosecution’s direct examination of Carlos Irizarry, who was the only witness to endeavor to link Alfred Gary to the critical verification of employment, Mr. Irizarry conceded that he had engaged in the federal crime of immigration fraud (Tr.28, 213). However, during cross-examination, the witness refused to answer any specific questions relating to his deception of the federal authorities. And, instead, he repeatedly invoked his Fifth Amendment privilege (Tr.442). Defense counsel sought to strike Carlos Irizarry’s entire testimony because counsel was unable to properly confront and impeach the witness (Tr.457). Ultimately, the trial court declined to strike Carlos Irizarry’s testimony. But, he agreed to draw an adverse inference against Mr. Irizarry relating to his invocation of his privilege regarding the immigration fraud (Tr.467- 68; A.162). However, this remedial action was inadequate, and this error is of sufficient magnitude to require a new trial. 70 The primary purpose of the Confrontation Clause is to prevent defendants, such as Alfred Gary, from being convicted based on ex parte testimony.47 Cross-examination is indispensable to the accuracy of the fact-finding process because it is the only way to ensure that a defendant has an effective means to adequately test adverse evidence. Thus, the Confrontation Clause commands, “not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross- examination.” Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370 (2004). A critical corollary of the right of confrontation is the ability to properly impeach a witness and, thus, discredit their testimony. As recognized by this Court, “the fundamental right embodied in the Confrontation Clause is the right to cross-examine one’s 47 The Sixth Amendment guarantees, “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also U.S. Const. amend. XIV. Similarly, the New York Constitution provides, “[i]n any trial in any court whatever the party accused shall be ... confronted with the witnesses against him or her.” N.Y. Const. art. I, § 6. Whenever reference is made to the “Confrontation Clause” it is meant to refer to the relevant provisions of the state and federal constitutions. 71 adverse witnesses.” People v. Eastman, 85 N.Y.2d 265, 274, 624 N.Y.S.2d 83, 464 (1995). Here, the trial court found that the testimony regarding the witness’ federal fraud was collateral to the underlying offense but believed that it did impact on his credibility (Tr.468). The Appellate Division held that the trial court “providently exercised its discretion in denying the defendant’s motion, since the witness invoked the privilege with respect to a collateral matter relating to general credibility” (A.248). However, issues relating to the witness’s conceded immigration fraud -- involving his wife -- relate directly to the underlying conspiracy. This is especially true where Carlos Irizarry conceded that he purchased a car -- in his wife’s name -- from Alfred Gary using funds obtained from Mr. Sweet (Tr.204-07, 210, 407, 409). In light of the interrelatedness of the alleged fraud to Mr. Irizarry’s wife, it was error to allow Mr. Irizarry’s testimony to stand where the defense was precluded from fully developing issues related to his federal fraud with wife and to his credibility. 72 Moreover, this error was prejudicial because the defense was denied the ability to properly and competently impeach a key prosecution witness. Although this case was not tried in front of a jury, Alfred Gary was still prejudiced by this evidence. A trial is, after all, a human enterprise, and even the finest judges can be unduly influenced by erroneously admitted evidence.48 Alfred Gary is entitled to a new trial because the profound prejudice and cumulative effect from admitting this evidence deprived him of his constitutional rights of confrontation, a fair trial and due process, guaranteed under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 6 of the New York State Constitution. 48 See, e.g., People v. Smith, 18 N.Y.3d 544, 942 N.Y.S.2d 426 (2012) (a new trial was warranted in a DWI case where, in a bench trial, the judge erroneously admitted evidence regarding the defendant’s refusal to take a blood test). Furthermore, even though the judge in a nonjury trial is presumed to have considered only competent evidence in reaching its verdict, that presumption is rebutted where, as here, the court allowed the contested proof into evidence. See, e.g., People v. Ya-ko Chi, 72 A.D.3d 709, 710, 898 N.Y.S.2d 619, 621 (2d Dept. 2010). 73 These Issues Were Preserved for Review The trial curt’s error in admitting the double hearsay, under the co-conspirator doctrine, was fully preserved in the lower court. See, e.g., Tr.506, 510, 589, 659, 663-64, 680-84, 694, 701-12. The issue was presented on appeal at pages 2 and 49-53 of the Appellant’s opening brief. Issues relating to Carlos Irizarry’s invocation of his Fifth Amendment privilege are fully preserved for appellate review. The matter was addressed at length throughout the trial and was the subject of extensive applications by defense counsel. See, e.g., Tr.213-15, 243-44, 258, 275, 422-26, 442, 455-68. It was also developed in Point III of the Appellant’s brief in the Appellate Division at pages 2 and 59-62. Conclusion For all these reasons, the Court should reverse the Appellant's conviction; vacate the Judgment and sentence, as well as the Judgment Order of Restitution; and dismiss the indictment or, in the alternative, grant a new trial; and grant such other and further relief as is just under all the circumstances. Dated: New York, New York November 4, 2014 Respectfully submitted, ~ \~h!__U Herald Price Fahringer, Esq. 0 Erica T. Dubno, Esq. Nicole Neckles, Esq. Fahringer & Dubno 120 East 56th Street, Suite 1150 New York, New York 10022 (212) 319-5351 herald.fahringer@fahringerlaw.com Thomas F. Liotti, Esq. 600 Old Country Road, Suite 530 Garden City, New York 11530 (516) 739-3700 tom@tliotti.com Counsel for Alfred Gary 74