The People, Respondent-Appellant,v.Vincent Barone, Appellant-Respondent.BriefN.Y.March 26, 2014To be Argued by: ANDREW M. LANKLER (Time Requested: 15 Minutes) New York County Clerk’s Indictment No. 5248/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – VINCENT BARONE, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ANDREW M. LANKLER JOSEPH C. PERRY LANKLER CARRAGHER & HORWITZ LLP Attorneys for Defendant-Appellant 415 Madison Avenue, 16th Floor New York, New York 10017 Tel.: (212) 812-8910 Fax: (212) 812-8920 Date Completed: February 25, 2013 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT .................................................................... 1 QUESTIONS PRESENTED........................................................................... 2 SUMMARY OF ARGUMENT ...................................................................... 3 STATEMENT OF FACTS ............................................................................. 4 A. The Concrete Compressive/Flexural Strength Alteration Scheme ....................................................................................... 6 1. Background .......................................................................... 7 2. The Alleged Scheme to Defraud .......................................... 8 3. The JetBlue Projects .......................................................... 10 B. The Steel Inspection Scheme ................................................... 12 1. Steel Inspection Reports and Invoices Submitted to DASNY .............................................................................. 12 2. Invoices Submitted to Tishman Construction and Silverstein Developers ....................................................... 15 C. The Mixed Design Scheme ...................................................... 15 D. The Field Tests Scheme ........................................................... 16 E. The Certified Inspectors Scheme ............................................. 17 ii F. The Appellate Division Vacates the Enterprise Corruption Count ........................................................................................ 17 POINT ONE: THE PREJUDICIAL SPILLOVER EFFECT OF THE TAINTED ENTERPRISE CORRUPTION COUNT DEPRIVED MR. BARONE OF A FAIR TRIAL BECAUSE THERE CAN BE NO DOUBT THAT THE JURY’S DECISION TO CONVICT ON THE TAINTED COUNT UNDULY INFLUENCED ITS GUILTY VERDICT ON THE REMAINING COUNTS ........................................................................... 21 A. Legal Standard ......................................................................... 21 B. Discussion ................................................................................ 26 C. Mr. Barone’s Defenses to the Underlying Charges Were Consumed by the Prejudicial Image that Testwell was a Criminal Enterprise .................................................................. 30 1. Lack of Evidence Connecting Mr. Barone to Mr. Caruso’s “Compressive/Flexural Strength Alterations Scheme” ............................................................................. 31 2. Lack of Evidence Proving Falsity and Intent to Defraud in the Compressive/Flexural Strength Alterations Scheme ............................................................................... 33 3. Lack of Evidence Proving Intent to Defraud in the Steel Inspections Scheme ......................................... 37 POINT TWO: THE RISK OF SPILLOVER PREJUDICE WAS EXACERBATED BY THE TRIAL COURT’S ERRONEOUS COMMENTS AND RULINGS ............... 39 A. Supreme Court’s Prejudicial Jury Instructions ........................ 40 B. Supreme Court’s Improper Bolstering of the People’s Case Compounded the Spillover Prejudice ...................................... 46 iii CONCLUSION ........................................................................................... 53 TABLE OF AUTHORITIES CASES PAGE People v Arnold, 98 NY2d 63 [2002] ..................................................... 46, 47 People v Baghai-Kermani, 84 NY2d 525 [1994] ......................................... 21 People v Barone, 101 AD3d 585 [1st Dept 2012] .... 17, 18, 19, 20, 27, 30, 31 People v Carter, 40 NY2d 933 [1976] .......................................................... 40 People v Ciaccio, 47 NY2d 431 [1979] ........................................................ 40 People v Colletti, 73 AD3d 1203 [2d Dept 2010] .................................. 25, 26 People v Concepcion, 17 NY3d 192 [2011] ........................................... 21, 22 People v De Jesus, 42 NY2d 519 [1977] ...................................................... 47 People v Doshi, 93 NY2d 499 [1999] .................................................... 22, 30 People v Killgo, 33 AD2d 226 [4th Dept 1970] ........................................... 47 People v Malloy, 55 NY2d 296 [1982] .................................................. 40, 41 People v Melendez, 227 AD2d 646 [2d Dept 1996] .................................... 52 People v Morales, 20 NY3d 240 [2012] ............................... 21, 22, 23, 30, 33 People v Moulton, 43 NY2d 944 [1978] ................................................ 46, 50 People v O’Rama, 78 NY2d 270 [1991] ...................................................... 45 People v Storfs, 47 NY2d 882 [1979] .......................................................... 46 iv People v Tucker, 89 AD2d 153 [1st Dept 1982] .......................................... 47 People v Western Express, 19 NY3d 652 [2012] ......................................... 18 People v Yut Wai Tom, 53 NY2d 44 [1981] .......................................... 46, 47 United States v DiNome, 954 F2d 839 [2d Cir 1992] ............................ 24, 25 United States v Tellier, 83 F3d 578 [2d Cir 1996] ................................. 23, 24 STATUTES CPL 310.30 ................................................................................................... 40 CPL 450.90 (1)................................................................................................ 3 CPL 470.05 (2)................................................................................................ 3 Penal Law § 155.05 (1) ................................................................................. 38 Penal Law § 175.10 ...................................................................................... 38 Penal Law § 175.35 ...................................................................................... 38 Penal Law § 190.65 (1) (b) ..................................................................... 37, 38 Penal Law § 490.25 ...................................................................................... 22 1 PRELIMINARY STATEMENT By permission of the Honorable James M. Catterson, Associate Justice of the Appellate Division, First Department, appellant Vincent Barone appeals from a December 27, 2012 order of that court, which modified a judgment of Supreme Court, New York County (McLaughlin, J.), rendered April 7, 2010. By that judgment, Mr. Barone was convicted, after a jury trial, of enterprise corruption, two counts of scheme to defraud in the first degree, nine counts of offering a false instrument for filing in the first degree, and one count of attempted grand larceny in the third degree. Supreme Court sentenced Mr. Barone to an aggregate indeterminate prison term of 5⅓ to 16 years. The Appellate Division modified the judgment of conviction and sentence by vacating Mr. Barone’s conviction for enterprise corruption and to the extent of modifying, in the interest of justice, the remaining sentences to run concurrently, thereby reducing the aggregate term of Mr. Barone’s indeterminate sentence to 1⅓ to 4 years, and as so modified, affirmed. Mr. Barone is presently released on bail and his sentence has been stayed by Supreme Court pending the determination of his appeal. Mr. Barone had the following co-defendants: V. Reddy Kancharla, Alfredo Caruso, Edward Porter, Michael Sterlacci, Wilfred 2 Sanchez, and Testwell Laboratories, Inc. (Testwell). Co-defendant Mr. Kancharla’s judgment of conviction and sentence was similarly modified by the Appellate Division and his application for leave to appeal to this Court was also granted by Justice Catterson. QUESTIONS PRESENTED 1. Is Mr. Barone is entitled to a new trial on the remaining counts for which he stands convicted where the People were improperly permitted to proceed at trial on the theory that the so called “Testwell Group” was a criminal enterprise and therefore were allowed to introduce otherwise inadmissible evidence that unfairly prejudiced the jury’s ability to evaluate the evidence on the remaining counts? 2. Was the risk of prejudicial spillover compounded by the trial court’s improper remarks and erroneous legal rulings, all of which helped to bolster the People’s theory that the so called “Testwell Group” was a criminal enterprise? 3 SUMMARY OF ARGUMENT The critical issue presented by this appeal is whether Mr. Barone was deprived of a fair trial on the remaining counts for which he stands convicted. Mr. Barone contends that he is entitled to a new trial on these remaining counts because there was an inescapable prejudicial spillover effect created by the People’s erroneous decision to proceed on a theory that the “Testwell Group” was a criminal enterprise. This faulty approach allowed the People to introduce otherwise inadmissible evidence that sought to link Mr. Barone to predicate acts for which he was not charged and had no involvement. Furthermore, Mr. Barone maintains that numerous remarks and rulings by the trial court during the course of the trial compounded the risk of prejudicial spillover. This Court has jurisdiction to entertain this appeal pursuant to CPL 450.90 (1) and CPL 470.05 (2). As a threshold matter, Mr. Barone, along with co-defendant Kancharla, fully preserved their argument that the evidence introduced at trial was legally insufficient to support their convictions for enterprise corruption. Mr. Barone and Mr. Kancharla likewise preserved their arguments pertaining to the trial court’s improper remarks and erroneous legal rulings. The question of whether the jury’s decision to convict on the tainted enterprise corruption count influenced its 4 decision to convict on the remaining counts is, of course, a question of law reviewable by this Court. STATEMENT OF FACTS In October 2008, a New York County grand jury returned an indictment charging Testwell, its owner and Chief Executive Officer, V. Reddy Kancharla, and several employees, including Mr. Barone, with enterprise corruption and other crimes. Mr. Barone was one of several vice- presidents at Testwell. Testwell, at its height, provided a wide array of services and employed hundreds of people who worked in several departments located in multiple offices. The indictment alleged that Testwell and its employees – the so called “Testwell Group” – engaged in fraudulent inspection and testing of construction materials for projects throughout New York City. The original indictment contained 109 counts, but the prosecution dismissed certain counts prior to trial. The trial indictment contained 50 counts (the “Indictment”), 28 of which named Mr. Barone. From late November 2009 through February 2010, Mr. Barone and three co-defendants, Mr. Kancharla, Wilfred Sanchez, and Testwell, 5 were tried before Justice McLaughlin and a jury. 1 After the evidentiary portion of the trial, which lasted approximately seven weeks, the court dismissed one count of first-degree offering a false instrument for filing. The remaining 27 counts against Mr. Barone were submitted to the jury. After approximately two weeks of deliberations, the jury found Mr. Barone guilty of 13 counts, including enterprise corruption, but not guilty of the other 14 counts. 2 (A 336-39.) The Indictment alleged five distinct criminal schemes – the “Mix Design Scheme,” the “Field Test Scheme,” the “Steel Inspections Scheme,” the “Compressive/Flexural Strength Alterations Scheme” and the “Certified Inspectors Scheme.” Principally, the counts against Mr. Barone related to two of the schemes, the “Compressive/Flexural Strength 1 Co-defendant Michael Sterlacci pleaded guilty to three counts and was sentenced to probation and a $135,000 fine. Co-defendant Edward Porter pleaded guilty to one count and was sentenced to probation and a $100,000 fine. Co-defendant Alfredo Caruso was severed from the other defendants, and his case is still pending. 2 Mr. Sanchez was acquitted of all the charges against him. Mr. Kancharla was convicted of fifteen counts, including enterprise corruption. His conviction for enterprise corruption was likewise vacated by the Appellate Division. Testwell was convicted of all the charges against it, and was ordered to pay reparations totaling $1.7 million. 6 Alterations Scheme” and the “Steel Inspections Scheme.” 3 However, the prosecution, with the assistance of the trial court, conflated the defendants and their conduct throughout the trial, creating an overwhelming prejudicial spillover effect. The following will provide the Court with an overview of the five schemes alleged in the indictment with an emphasis on the schemes involving Mr. Barone. Mr. Barone incorporates by reference the pertinent sections of the summary of the trial evidence contained in Mr. Kancharla’s brief. A. The Concrete Compressive/Flexural Strength Alteration Scheme Mr. Barone was convicted of five counts in connection with changes to laboratory concrete strength test results. The prosecution’s theory was that Mr. Barone and another vice-president at Testwell, co- defendant Alfredo Caruso (whose case was severed from the other defendants), altered over 3,000 concrete strength test results for approximately 119 construction projects, including the project at JFK International Airport (the “JetBlue Project”). The prosecution contended 3 Mr. Barone was also implicated in the “Certified Inspectors Scheme,” a scheme solely charged as a single pattern act under the Enterprise Corruption count (Pattern Act 53) since venue for this charge was outside New York County. Mr. Barone was found to have committed that pattern act, and the other charged individual, Mr. Kancharla, was found not to have committed it. 7 that the changes were fraudulent because they had no legitimate basis, i.e., the changes falsified “failing” test results (results that fell below the specified pounds-per-square inch (“PSI”) strength level) into “passing” results, or eliminated anomalous results that may have raised red flags with Testwell’s clients and their project engineers. 1. Background As a matter of course, materials testing companies measure the strength of concrete poured at construction sites through the use of samples. When concrete is delivered to a job site, some samples are field-tested and other samples are collected and transported to the materials testing company’s laboratory. The shapes of the samples vary depending on the concrete’s use. Cylindrical samples are tested to measure the compressive strength of concrete used for foundations, walls, columns, and other structures. (A 19-20.) 4 Beam-shaped samples are tested to measure the flexural strength of concrete used for load-bearing, flat surfaces, such as sidewalks, driveways, and tarmacs. (A 19-20, 22.) 4 Numbers in parentheses following the letter “A” refer to the pages in Mr. Barone’s appendix. Nine additional pages from the original record have been inserted into this appendix, which were not included in the appendix filed with the Appellate Division. Those pages are noted as follows: A 6.1; 227.1; 227.2; 227.3; 227.4; 227.5; 232.1; 232.2 and 232.3. 8 Because concrete should harden over time, PSI strength for cylinders and beams generally increase at each interval. (A 30.) Typically, the critical testing interval in determining whether concrete meets the target PSI strength level is 28 days. (A 29.) The following chart contains hypothetical flexural strength test results reflecting the expected increase in strength over time: Sample Batch Target PSI Strength 7 Days 14 Days 28 Days 56 Days 1st Set 750 715 740 770 785 2nd Set 750 700 735 765 775 2. The Alleged Scheme to Defraud At Testwell, Mr. Caruso was the long-standing head of the concrete department. (A 113, 173-74.) The concrete department was located at Testwell’s main office in Ossining, New York. (A 124.) Employees in the concrete department processed field and laboratory test results, and created reports containing the results. (A 110-13.) As part of the department’s procedures, Mr. Caruso instructed employees to flag “low breaks” (failing test results) for his review. After reviewing the low breaks, Mr. Caruso directed employees to falsify some of the test results. (A 62-63, 9 115-16, 286-93.) The changes increased low breaks so the altered results met or exceeded the target PSI strength. The prosecution identified 3,290 changes to compressive and flexural concrete strength test results. (A 72; see also PX 5 108 [spreadsheet listing all changes].) The vast majority of changes were identified using a before-and-after comparison of test results stored in Testwell’s computer databases. (A 74-75.) James Murphy, a senior investigator from Thacher Associates (“Thacher”) who conducted the comparison as a retained consultant for the People, testified that Thacher’s analysis of the computer databases failed to find any “fingerprints” identifying who made the changes. (A 58.) Anthony Mansour, another consultant who helped analyze Testwell’s computer databases, identified eighteen Testwell employees who had access privilege to change test results in the computer databases. It was acknowledged that Mr. Barone never had such access privilege. (A 94-95, 302-03.) In fact, Mr. Barone was not a member of the concrete department and worked at Testwell’s satellite office in Queens. (A 113-14.) Mr. Barone managed his own staff and projects (A 114), and focused on projects relating to airports 5 Citations to “PX” refer to prosecution trial exhibits. 10 (A 118, 142-43). Mr. Barone covered for Mr. Caruso in Ossining only on rare occasions when Mr. Caruso was sick or out of the office. (A 117.) Thacher identified the remaining changes by reviewing emails and notes that instructed concrete department employees to identify low breaks and change test results. (A 59-62, 70-71; see also PX 80.) Many of the emails and notes showed that Mr. Caruso had authorized the changes (A 115-16, 286-293.) Aside from the handful of faxes relating solely to the JetBlue Project at Kennedy Airport, none indicated that Mr. Barone altered, or directed others to alter, test results. (A 57, 76.) 3. The JetBlue Projects The JetBlue Projects lasted more than two years and encompassed construction of a terminal and two surrounding areas: the roadside where passengers arrive and depart, and the airside consisting of the tarmac and runway aprons. JetBlue engaged DMJM Harris as the engineer for the roadside and airside areas. (A 31, 101, 104-05.) The prosecution focused on test results for the airside because Testwell conducted testing for that area, while another materials testing company handled the roadside. (A 104-05.) Testwell produced approximately 5,813 flexural strength test results in connection with the JetBlue Projects. Mr. Barone, as Testwell’s 11 project manager, authorized changes to certain JetBlue test results. Mr. Barone requested the changes through faxes sent from his assistant in Queens, Diana Vazquez, to employees in the concrete department in Ossining. (A 121-22.) The faxes contained handwritten notes changing, or adding comments to, certain test results. (A 267-285.) Most of the faxes adjusted existing test results (A 273), while others corrected obvious typographical errors such as an extra zero at the end of a figure (A 268). One fax supplied original results rather than revisions. (A 271.) Thacher identified approximately 16 changes to compressive strength test results for cylinders and approximately 149 changes to flexural strength test results for beams. 6 Of the 149 changes to beam results, 89 increased the PSI strength result, while 60 decreased it. (A 85, 258-262.) None of those changes altered a failing result to a passing result. (A 108-09, 258-262.) Many faxes added comments to reports, highlighting that certain results were “low” or “did not meet design strength.” (A 276-283.) Notably, Thacher’s senior investigator, testified that “[he] and [his] staff 6 The changes to cylinder and beam results were listed in PX 108. (A 295-98.) PX 74 contained a spreadsheet analyzing the alterations to the beam results. (A 258-262.) There was no spreadsheet analyzing the changes to the cylinder results. 12 studied [the changes to the flexural strength test results] pretty hard” and they could not “figure out any rhyme or reason” behind them. (A 54-56.) B. The Steel Inspection Scheme Mr. Barone was convicted of seven counts in connection with the “Steel Inspection Scheme.” The charges pertained to steel inspections performed by two Testwell inspectors in 2007 for the Dormitory Authority of New York (“DASNY”). The prosecution alleged that Mr. Barone and other Testwell employees falsified steel inspection reports submitted to DASNY and double-billed for the inspections. 1. Steel Inspection Reports and Invoices Submitted to DASNY As a former DASNY employee, Mr. Barone was its general point of contact at Testwell. (A 184.) Testwell, however, still assigned a project manager to each DASNY project; Steven Latus was Testwell’s manager for the expansion of John Jay College in Manhattan (the “DASNY Project”). 7 (A 184.) In early April 2007, two Testwell employees began to inspect steel for the DASNY Project that was being fabricated in South Carolina. The initial reports from the inspectors in South Carolina contained numerous 7 Mr. Latus was charged and tried on a separate indictment. He was acquitted of all charges. 13 errors. On June 29, 2007, Keith LaPlante, the head of the materials testing department at DASNY, emailed Mr. Barone asking him to join a meeting between Mr. Latus and DASNY employees to discuss the steel inspection reports and other issues. (A 304.) Although Mr. LaPlante had been exclusively dealing with Mr. Latus until that point, he sought Mr. Barone’s involvement because of his prior relationship with Mr. Barone and because he thought Mr. Barone could “lend some insight.” (A 197-98.) On July 3, 2007, Mr. Barone, along with Mr. Latus and Mr. Sanchez, attended the meeting requested by DASNY. Over the next two months, Mr. Barone and his colleagues made good faith efforts to correct the inspection reports and address DASNY’s concerns. Mr. Barone, for example, helped create a database listing each piece of steel to verify the accuracy of the revised reports. (A 305-08.) By September 2007, the inspectors in South Carolina had corrected their reports and Mr. Latus forwarded the revised reports to DASNY. (A 294.) With the exception of two mistakes out of approximately 970 pieces of steel listed in reports, DASNY agreed that the revised reports were accurate. (A 191-92.) After Mr. Latus submitted the corrected reports, he delivered the invoices for the inspections. (A 185, 310.) Because DASNY voiced concerns regarding the invoices, Mr. Barone 14 provided the inspectors’ time sheets and Testwell’s billing records. (PX 84 at 97 et seq.) Much of the dispute focused on double-billing even though DASNY’s contract with Testwell did not require the inspectors to work exclusively for DASNY. 8 In the end, DASNY terminated Testwell and never paid for the inspections. 9 (A 195.) However, with respect to Mr. Barone, Richard Visconti, one of the primary DASNY employees who interacted with Testwell, testified that “Mr. Barone was always responsive to me.” (A 186 [emphasis added].) Given the good faith efforts to correct the inspection reports, the jury found that the reports were not fraudulent, and acquitted the individual defendants of the counts of offering a false instrument for filing in the first degree relating to them (Counts 29-35). 10 Still, the jury convicted Mr. Barone of five counts of offering a false instrument for filing in the first degree, scheme to defraud in the first degree and attempted grand larceny in 8 DASNY conceded that it was required to pay for an inspector’s entire shift even if the inspector had downtime during the shift. (A 178-183.) 9 Because DASNY never paid Testwell, the Indictment charged all defendants with attempted grand larceny in the third degree (Count 28). 10 Although no employee was convicted for submitting falsified steel inspection reports, Testwell was convicted of the counts. 15 the third degree in connection with the invoices submitted to DASNY (Counts 27-28, 36-40). 2. Invoices Submitted to Tishman Construction and Silverstein Developers While working on the DASNY Project, the inspectors in South Carolina, on certain days, also inspected steel for projects owned by Tishman Construction and Silverstein Developers. Mr. Barone had no connection to those projects, including any discussions relating to contracts, billing, and payments. In fact, the witnesses from Tishman Construction and Silverstein Developers, John DeLeone and John Klein, respectively, had never met or heard of Mr. Barone. (A 187-88). Because the inspectors in South Carolina inspected steel for more than one project on certain days, the prosecution argued that DASNY, Tishman, and Silverstein had been fraudulently double-billed. (A 233-36.) The jury rejected the prosecution’s theory and acquitted Mr. Barone and the other individual defendants of falsifying business records in the first degree and grand larceny in the third degree in connection with Tishman Construction and Silverstein Developers (Counts 42-48). C. The Mixed Design Scheme Mr. Barone was not charged in connection with the “Mixed Design Scheme” nor was there any proof adduced at trial that he was 16 involved. Notably, this portion of the trial which did not pertain to Mr. Barone lasted approximately three weeks. Here, the prosecution’s theory for this scheme was that Testwell produced reports related to the strength of concrete needed for projects that were based on computer algorithms rather than actual testing, as required by the New York City Building Code. Specifically, the prosecution alleged that between 1998-2004 Mr. Kancharla stamped and signed these faulty reports and that, sometime in 2004, he asked Dr. Kaspal Thumma, Testwell’s Laboratory Director, to do so as well. (see Kancharla Br. “The Mixed Design Scheme”). D. The Field Tests Scheme Another scheme alleged in the indictment was the “Field Tests Scheme.” In this context, field tests refer to on-site tests, mandated by the Building Code, performed by inspectors on concrete as it is poured from the truck. Here, the People’s theory was that Testwell generated reports indicating that a technician conducted field tests on the Yankee stadium project even though said technician had actually never performed the required tests. The prosecution further contended that it was Mr. Caruso who allegedly directed the “Field Tests Scheme.” Again, the People did not charge Mr. Barone in connection with this scheme nor was there any proof 17 adduced at trial that he was involved. (see Kancharla Br. “The Field Tests Scheme”). E. The Certified Inspectors Scheme The last scheme charged was the “Certified Inspectors Scheme.” Mr. Barone was implicated in this scheme, which concerned the use of two uncertified inspectors to perform concrete testing at a construction project for the School Construction Authority (“SCA”). These two Testwell employees worked on the SCA project for one day each and SCA was billed $630.08 for their services, which SCA did not pay. Since venue for this alleged false filing lay in Queens County, this scheme was only charged as an Enterprise Corruption Pattern Act (Pattern Act 53). F. The Appellate Division Vacates the Enterprise Corruption Count On appeal to the Appellate Division, Mr. Barone contended, among other arguments, that the evidence adduced at trial to support his conviction for enterprise corruption was both legally insufficient and against the weight of the evidence. The court agreed. The court held that the “the evidence necessary to establish the elements of enterprise corruption was wholly missing from the People’s proof” (People v Barone, 101 AD3d 585, 589 [1st Dept 2012]). The court noted that “the entire theory of the People’s case [was] made of conjecture, 18 surmise and innuendo rather than proof beyond a reasonable doubt” (id.) and, quoting from this Court’s decision in People v Western Express (19 NY3d 652, 660 [2012]), found that there was “‘no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a criminal enterprise’” (Barone, 101 AD3d at 591). The court further observed that: “[t]he People offered no proof that Kancharla, Barone, or Testwell encouraged or expanded any criminal transactions. They adduced no proof that anyone encouraged ‘more and larger criminal transactions.’ Simply put, the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communications between Kancharla, Barone, and any of the criminal enterprise as required by [precedent]” (id. at 592). Justice Catterson – who authored the court’s opinion vacating Mr. Barone’s and Mr. Kancharla’s convictions for enterprise corruption – however, would have gone further. Justice Catterson not only agreed with appellants that the evidence introduced at trial wholly unsupported their convictions for enterprise corruption, but also concluded that appellants were deprived of a fair trial as a consequence of the tainted count and other significant trial court errors (see id. at 596). Accordingly, Justice Catterson issued a partial dissent in which he would have remanded the case “for a new trial on the remaining counts in the indictment” (id.). His partial dissent is instructive. 19 In describing the prejudice suffered by appellants during the course of the trial, Justice Catterson emphasized “that the enterprise corruption counts allowed the People to join five separate criminal schemes into one prosecution” and specifically pointed to how the People “relied heavily on Testwell being a criminal enterprise” (id. [emphasis added]). Justice Catterson highlighted the numerous times in which the People referred to this purported criminal enterprise, noting that the prosecutor told “the jury that ‘fraud [was] thoroughly entrenched at Testwell’; that ‘fraud became the master plan’; that at Testwell ‘it was fraud as a deliberate business strategy’; that ‘every engineer abides by [the City Code] . . . except the ones at Testwell’; that ‘at Testwell a PE’s license was . . . a license to steal’; and that ‘[t]hese crimes work together [and] ha[ve] a cadence . . . and they all conform to a pattern of criminal activity” (id.). Justice Catterson opined that the error in permitting the People to proceed under a theory that the “Testwell Group” was a criminal enterprise “allowed the People to link for the jury all of the individual defendants to crimes with which they were not charged” (id.). As a consequence, Justice Catterson concluded that “any viable defenses that Kancharla and Barone had to the crimes that they were actually charged with were consumed by the vision conjured by the People of Testwell as a 20 continuing enterprise” (id. at 597 [emphasis added]). On this basis, Justice Catterson granted leave to this Court. 21 POINT ONE THE PREJUDICIAL SPILLOVER EFFECT OF THE TAINTED ENTERPRISE CORRUPTION COUNT DEPRIVED MR. BARONE OF A FAIR TRIAL BECAUSE THERE CAN BE NO DOUBT THAT THE JURY’S DECISION TO CONVICT ON THE TAINTED COUNT UNDULY INFLUENCED ITS GUILTY VERDICT ON THE REMAINING COUNTS The Appellate Division correctly determined that the evidence introduced at trial was wholly inadequate to support a prosecution under the enterprise corruption statute. However, the lower court – ignoring this Court’s precedent – failed to consider the prejudicial spillover effect such prosecution had on the remaining counts for which Mr. Barone stands convicted. This error requires reversal and entitles Mr. Barone to a new trial. A. Legal Standard This Court has long held that “[w]hether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis” (People v Baghai-Kermani, 84 NY2d 525, 532 [1994]). A reviewing court “must evaluate ‘the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome’” (People v Morales, 20 NY3d 240, 250 [2012], quoting People v Concepcion, 17 NY3d 22 192, 196-197 [2011]). “Reversal is required if ‘there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” (Morales, 20 NY3d at 250, quoting People v Doshi, 93 NY2d 499, 505 [1999] [internal quotation marks and citation omitted] [emphasis added]). Recently, this Court had occasion to apply this analysis in Morales. In that case, the People secured a 70-count indictment charging the defendant with crimes of terrorism pursuant to the statute enacted in response to the September 11, 2001 attacks (see Morales, 20 NY3d at 244- 245; see also Penal Law § 490.25). The defendant was convicted of three crimes of terrorism as well as certain predicate acts charged in the indictment (Morales, 20 NY3d at 246). The Appellate Division concluded that the evidence was legally insufficient to support the terrorism charges and, therefore, modified the judgment of conviction by “reducing the terrorism convictions to the three primary offenses” (id.). Both parties appealed to this Court. After a careful review of the terrorism statute and the evidence introduced at trial, this Court likewise concluded that the evidence “was insufficient to establish [the] defendant’s guilt beyond a reasonable doubt under Penal Law § 490.25” (id. at 249). This Court then addressed the 23 defendant’s argument that he was deprived of a fair trial “because the theory of terrorism should not have been charged and the People were therefore permitted to introduce otherwise inadmissible evidence that unduly prejudiced the jury’s ability to fairly adjudicate his guilt or innocence” (id. at 250). This Court agreed, observing: “By proceeding on the terrorism theory, the People were able to introduce evidence about numerous alleged criminal acts committed by members of the [defendant’s] gang over the course of three years. Without the aura of terrorism looming over the case, the activities of [the] defendant’s associates in other contexts would have been largely, if not entirely, inadmissible. Based on the record, it is apparent that the volume of proof regarding unrelated assaults, murders and other offenses created a reasonable possibility that the jury’s findings were prejudicially influenced” (id. at 250 [emphasis added]). Thus, the Court concluded that “the spillover effect require[d] reversal and a new trial on the underlying offenses” (id.). This Court has not yet had the occasion to apply this type of analysis in the context of an erroneous enterprise corruption prosecution. However, other courts that have reversed convictions for enterprise corruption have necessarily determined that the prejudicial spillover effect of the tainted count required reversal and a new trial as to all the remaining counts. For example, in United States v Tellier (83 F3d 578 [2d Cir 1996]), the Second Circuit held that the reversal of a RICO conviction warranted 24 reversal of the remaining conviction in light of the fact that “all but a tiny sliver of the evidence admitted on the RICO charges [was] irrelevant” to the other charge for which defendant was convicted (id. at 582). In analyzing this issue, the court pointedly observed the following: “A RICO charge allows the government to introduce evidence of criminal activities in which a defendant did not participate to prove the enterprise element. If the RICO counts fail, prejudice on other counts is highly likely. In such circumstances, defendants who no longer face RICO charges should be severed so that the jury is not exposed to evidence that is irrelevant to the remaining charges. No extended discussion of the evidence is needed to determine that prejudice here was indisputable.”(id. [internal citations omitted] [emphasis added]). Accordingly, the court concluded that reversal of the “RICO convictions also dictate[d] reversal of his” remaining conviction “given the enormous amount of prejudicial spillover evidence admitted to prove the RICO ‘enterprise’ and its extensive criminal activities” (id. at 581-582 [emphasis added]). The Second Circuit employed a similar analysis in United States v DiNome (954 F2d 839 [2d Cir 1992]). As in Tellier, this case was a lengthy multi-defendant trial “involving a host of racketeering and other criminal charges” (id. at 841). Toward the close of trial, two of the defendants sought “a judgment of acquittal on the RICO and bribery charges, and claiming spillover prejudice, requested a mistrial as to the 25 remaining charges,” which included mail and wire fraud counts (id. at 844). The district court granted the motion insofar as it dismissed the RICO and bribery charges, but denied defendants’ motion for a mistrial (see id.). The defendants were subsequently convicted of the remaining counts (see id.). On appeal, the Second Circuit determined that the district court judge erred in failing to grant defendants’ mistrial motion. The court observed that “[o]nce the RICO charges against the [defendants] were dismissed, all but an infinitesimal fraction of the evidence at this sixteen- month trial lost any relevance to the mail and wire fraud charges against them” (id.). Accordingly, the court reversed the defendants’ remaining convictions in light of the inescapable conclusion that the evidence elicited against the co-defendants was “highly prejudicial in the context of the remaining” charges against the defendants (id. at 845). Furthermore, the Second Department’s decision in People v Colletti (73 AD3d 1203 [2d Dept 2010]), cited by Justice Catterson in his dissent below, is likewise on point in this regard. In Colletti, the defendant was charged with enterprise corruption under a theory that the defendant oversaw the Genovese-Bonanno gambling organization (see id. at 1204). However, during the course of the trial, the prosecutor repeatedly referred to other crime organizations not contained in the indictment (see id. at 1205). 26 Moreover, in its charge, the trial court, over defense counsel’s objection, instructed the jurors that they “only needed to find the existence of a generic criminal enterprise” as opposed to an instruction that “the defendant carried on his criminal activities ‘for the Genovese-Bonanno Gambling Organization’” as described in the indictment (id.). The Appellate Division reversed the conviction, concluding that both the People and the trial court “impermissibly broadened the basis for conviction beyond that specifically alleged in the indictment” (id.). With respect to the predicate acts for which the defendant was separately charged and convicted, the Appellate Division further determined that “since the various offenses of which the defendant was convicted are factually intertwined with each other, and the references to organized crime and to the activities of various crime families pervade the record, reversal and a new trial as to all of the counts is appropriate” (id. at 1207-1208 [emphasis added]). B. Discussion Applying this precedent to the facts presented in this case makes it overwhelmingly clear that Mr. Barone’s remaining convictions should be reversed as a consequence of the prejudicial spillover effect created by the tainted enterprise corruption charge. To begin, as Justice 27 Catterson recognized in his dissent, there can be no doubt that the People “relied heavily” (Barone, 101 AD3d at 596) on the theory that the so called “Testwell Group” was a criminal enterprise. Such erroneous reliance on this faulty theory led to numerous references that pervaded the record, which improperly linked Mr. Barone to aspects of Testwell’s business in which he played no role. Indeed, the prosecutor set the tone for the case in her opening statement in which she told the jury that “Testwell’s officers and employees and the three defendants before you were actually generating an intricate web of deceit at nearly every state of the inspection process” (A 6.1 [emphasis added]). The People’s repeated reliance on the theory that the “Testwell Group” was a criminal enterprise persisted throughout the course of this trial, culminating with numerous remarks that, in light of the fact that the enterprise count has now been vacated, can only be fairly viewed as inflammatory and highly prejudicial. At the beginning of the prosecutor’s summation, she characterized the alleged enterprise corruption at Testwell as “fraud by design, [f]raud so thoroughly entrenched at Testwell that you can see the pattern repeated over and over literally for years” (A 227.1-227.2 [emphasis added]). This hyperbolic rhetoric continued throughout the summation as the prosecutor relentlessly referred to every perceived 28 wrongdoing at Testwell as evidence of “the pattern in the fraud itself, in the enterprise” (A 232.2) or evidence that “[o]nce again the pattern of lies, deception, and fraud emerged” (A 232.3). Moreover, the prosecutor repeatedly linked Mr. Barone to other executives at Testwell seemingly to bolster the People’s theory that the “Testwell Group” was a criminal enterprise. Indeed, the prosecutor suggested that the jury’s core decision was “whether the defendants Reddy Kancharla, Vincent Barone, Wilfred Sanchez and by their actions, Testwell, were part of an [illicit] subgroup [that] commit[ted] a series of crimes in an organized manner” (A 227.3). To that end, the prosecutor argued to the jury that “[o]ver ten years of ownership Reddy Kancharla and his confederates at Testwell used the enormous trust placed in them . . . [t]o provide the illusion of inspection while cutting corners at every opportunity” (A 227.2 [emphasis added]). The implication that Mr. Barone conspired with Kancharla and other employees at Testwell over a ten-year period is particularly prejudicial since the charges in the indictment relating to Mr. Barone took place in 2005 or thereafter – only three years before the People secured the indictment against him. Nevertheless, the People, by virtue of the enterprise corruption charge, sought to tie Mr. Barone to other alleged acts that took place in which he played no part. 29 For example, the prosecutor improperly connected Mr. Barone to the “Mix Design Scheme” and the “Field Tests Scheme” during her summation. In her arguments pertaining to the “Mix Design Scheme,” the prosecutor contended that “all of the engineers” at Testwell – including Mr. Barone – who stamped the mixed design reports with their seal of integrity knew that the reports “were not true.” (A 228.) Likewise, in her arguments concerning the “Field Tests Scheme,” the prosecutor falsely linked Mr. Barone with Mr. Caruso and maintained that they both hired field inspectors “with little to no training and [who were] sent out to the jobs with little to no supervision perform tests that they weren’t qualified to do.” (A 229.) The indictment and the trial evidence, however, make clear, that Mr. Barone had no involvement in either the “Mix Design Scheme” or the “Field Tests Scheme.” Furthermore, the prosecutor argued during summation that “[a]lthough there were several vice-presidents at Testwell, Mr. Barone was indisputably Reddy Kancharla’s right hand man” and “[t]hroughout the scheme it’s clear that he was the last stop before Reddy Kancharla emerged from behind the scene” (A 227.4-227.5). Given the utter lack of evidence to support a charge of enterprise corruption and the fact that in many instances 30 Mr. Barone and Mr. Kancharla were each charged with separate acts, such a baseless assertion is highly prejudicial. Given the volume and hyperbolic nature of the prosecutor’s repeated comments seeking to portray the image that the so called “Testwell Group” was nothing but a criminal enterprise, it becomes clear that the jury was not in a position to adjudicate the underlying counts against Mr. Barone fairly (see Morales 20 NY3d at 250). Put another way, there is more than a reasonable possibility that the jury’s decision to convict on the tainted enterprise corruption count influenced its decision to convict on the remaining counts in a meaningful way (see Doshi, 93 NY2d at 505). C. Mr. Barone’s Defenses to the Underlying Charges Were Consumed by the Prejudicial Image that Testwell was a Criminal Enterprise As a consequence of impermissibly linking Mr. Barone to alleged schemes in which he was not charged and portraying the false image that the so called “Testwell Group” was a criminal enterprise, the People deprived the jury of their ability to assess Mr. Barone’s legitimate defenses to the charges that actually pertained to him. Indeed, as Justice Catterson stressed in his dissent, “any viable defenses that Kancharla and Barone had to the crimes that they were actually charged with were consumed by the vision by the People of Testwell as a continuing enterprise” (Barone, 101 31 AD3d at 597). Because the jury could not properly perform its fact finding function, Mr. Barone is entitled to a new trial on the remaining counts for which he stands convicted. 1. Lack of Evidence Connecting Mr. Barone to Mr. Caruso’s “Compressive/Flexural Strength Alterations Scheme” At trial, Mr. Barone asserted that the People unfairly linked him to Mr. Caruso in connection with the “Compressive/Flexural Strength Alterations Scheme.” As discussed earlier, the prosecution’s before-and- after comparison of Testwell’s computer databases revealed approximately 3,290 changes to concrete test results for projects throughout New York City. The analysis, however, failed to find any forensic “fingerprints” identifying who made or authorized the changes. (A 58.) One prosecution consultant testified that certain employees had access privilege to the databases, but admitted that he could not determine if anyone utilized such access to alter results. (A 96-97.) The investigation revealed that Mr. Barone never had any access privilege. (A 94-95, 302-03.) Given the lack of forensic evidence, the prosecution relied on testimony from a single employee in the concrete department and documents seized from Testwell’s offices to identify who altered test results. Ana Murthy was the only witness who worked in the concrete department, and 32 the only Testwell employee called to testify about making changes to laboratory concrete test results. With respect to her supervisor, Alfredo Caruso, Ms. Murthy described his scheme of flagging and falsifying failing test results. (A 115-16.) Dozens of emails corroborated Ms. Murthy’s testimony. (A 286-293.) Nearly every one showed that Mr. Caruso falsified low breaks. Aside from the JetBlue faxes sent from Queens to Ossining, none of the emails or other documents seized from Testwell mentioned Mr. Barone. (A 57, 76.) In fact, there was no evidence that Mr. Caruso and Mr. Barone ever discussed altering test results, much less coordinated to falsify them. The sole cooperating witness, Kaspal Thumma, the director of Testwell’s concrete testing laboratory, testified that he was unaware of any scheme to alter test results. (A 153.) The only evidence pertaining to Mr. Barone was Ms. Murthy’s testimony that he occasionally filled-in for Mr. Caruso, and that he authorized changes to JetBlue test results through faxes sent to the concrete department in Ossining. (A 117, 121-23.) Ms. Murthy’s testimony regarding the JetBlue faxes was detailed and corroborated by copies of the correspondence. (A 267-285.) In contrast, her testimony connecting Mr. Barone to Mr. Caruso was ambiguous and uncorroborated. (A 117.) 33 Without the aura of a criminal enterprise corruption charge taking center stage at trial (see Morales, 20 NY3d at 250), the jury would have been in a much better position to assess Mr. Barone’s strong defense that there was no evidence linking him to Mr. Caruso’s alleged wrongdoing. 2. Lack of Evidence Proving Falsity and Intent to Defraud in the Compressive/Flexural Strength Alterations Scheme Not only was there a paucity of evidence linking Mr. Barone to Mr. Caruso’s scheme, Mr. Barone also contended at trial that he lacked any intent to defraud since the changes he made to the JetBlue test reports were, in fact, not false. Indeed, the JetBlue faxes demonstrated that Mr. Barone never instructed employees to flag low breaks for revision. The faxes showed that Mr. Barone did quite the opposite—he repeatedly instructed employees to point out failing test results. 11 (A 276-283.) Because the JetBlue faxes did not follow Mr. Caruso’s distinct fraudulent pattern, the prosecution relied on speculative theories expounded by Simon Barbe. Mr. Barbe’s analysis was flawed from its inception since he failed to collect, much less review, all of the relevant test results. (A 84.) Furthermore, Mr. Barbe did not interview any witnesses in connection with 11 Thacher conceded that the person who had changed test reports to include comments pointing out low breaks was “doing their job.” (A 92-93.) 34 his investigation, including the Testwell technicians who conducted the tests. (A 82-83.) Despite his failure to conduct a thorough investigation, Mr. Barbe opined that he identified two fraudulent patterns: (1) eliminating anomalous results and (2) smoothing outliers. (A 68-69.) A comprehensive review of the test results discredited both theories. As to the purported pattern of changing anomalous results, an analysis of the complete set of the final test results revealed that they contained many anomalies not identified by Mr. Barbe. Approximately 11.82% of the flexural beam test results reported by Testwell did not conform to the expected trend of increasing strength over time. (A 224-26, 309.) Within the controlling 28 day results, the number of anomalies increased to approximately 12.69%. (A 224-26, 309.) Further analysis demonstrated that oftentimes the very alterations that Mr. Barbe claimed supported his theory in fact created anomalies, rather than eliminating them. (A 89-90.) When confronted with changes that created anomalies, Mr. Barbe conceded that such data did not fit his theory, and that the person who had altered those results “seemed to not have known what they were doing.” (A 90.) Significantly, some of the JetBlue faxes, on their face, showed 35 that Mr. Barone changed certain test results before he received the results for later intervals, thereby making it impossible for him to tailor test results to conform to the expected pattern. For example, one fax contained the following pertinent data and figures: Sample Barcode Cast Date Test Date Age Date / Testing Interval Original Result Requested Altered Result 1150016 7-3-2007 7-10-2007 7 days 840 850 1150027 7-3-2007 7-10-2007 7 days 720 800 The fax header displayed that it was sent on July 16, 2007 showing that Mr. Barone adjusted both 7 day results at least one day before the 14 day testing interval and fifteen days before the controlling 28 day testing interval for the other samples collected on the same day. 12 (A 269.) Other faxes reflected the same exculpatory pattern (A 270), including the JetBlue faxes in PX 77A, which contained approximately 15 additional test results that were changed prior to subsequent testing intervals. (A 284-285.) With respect to the alleged pattern of smoothing outliers, Mr. Barbe failed to support his theory with any analysis. First, he did not even 12 As discussed below, the trial court undermined defense counsel’s cross examination of Mr. Barbe regarding the significance of the fax header by interjecting that “[i]t also presupposes that the fax machine calibration, as far as date, is accurate . . . . A lot of presumptions here.” (A 81.) Nonetheless, the prosecution relied on the accuracy of the dates in the fax headers during a subsequent examination. (A 119, 272.) 36 know the acceptable standard deviation for flexural beam test results under industry standards. (A 91.) More importantly, Mr. Barbe never bothered to analyze whether the original or the altered results fell within, or outside of, the acceptable standard deviation. (A 87-88.) Simply put, Mr. Barbe admitted that the jury did not see any analysis establishing that test results were altered to fall within the acceptable standard deviation. Finally, at odds with Mr. Barbe’s theories, one fax showed that Mr. Barone supplied PSI strength figures rather than altered original results already on the page (the “Blank Fax”). (A 167-69, 271.) A comparison of the 24 results provided by Mr. Barone in the Blank Fax to the original results contained in the Testwell laboratory logbook revealed that Mr. Barone’s results matched the original results 22 times for an accuracy rate of 92%. 13 (Compare A 271 to A 263-66.) Thus, the Blank Fax demonstrated that Mr. Barone did not fabricate test results to eliminate anomalies or smooth outliers as the prosecution alleged. Instead, the Blank Fax indicated that Mr. Barone independently measured beams, calculated his own test results for the purpose of comparing them to the laboratory’s results, and, if necessary, corrected certain results for accuracy. (A 108.) 13 One can pair the beams listed in the Blank Fax with their corresponding test results in the logbook by using each beam’s unique barcode, testing interval, and test date. (Compare A 271 to A 263-66.) 37 In the end, James Murphy, Mr. Barbe’s supervisor at Thacher, dealt perhaps the most damaging blow to the prosecution’s theories. Mr. Murphy flatly contradicted Mr. Barbe, finding no “rhyme or reason,” and therefore, no fraudulent pattern, behind Mr. Barone’s changes to the JetBlue beam test results. (A 54-56.) Again, given that the People’s theory that the “Testwell Group” was a criminal enterprise permeated every aspect of the trial, it is clear that the jury could not fairly evaluate Mr. Barone’s defense that he lacked any intent to defraud when he made changes to the JetBlue Test results. 3. Lack of Evidence Proving Intent to Defraud in the Steel Inspections Scheme Mr. Barone further contends that the tainted enterprise corruption impacted the jury’s ability to evaluate his defense that he lacked the intent to defraud with respect to the “Steel Inspections Scheme.” The plain language of the scheme to defraud statute requires the intent to defraud or to steal property from more than one person, and the obtaining of property from one or more such persons (see Penal Law § 190.65 [1] [b]). Here, the evidence did not establish either element. First, as to intent, in acquitting the individual defendants of the charges relating to Tishman and Silverstein, the jury found that they did not 38 intend to defraud, or steal from, either company. 14 Thus, DASNY was the only possible target of the scheme, and Mr. Barone could not have intended to defraud or steal property from “more than one person” as expressly required by Penal Law § 190.65 (1) (b). Second, the record failed to establish that Mr. Barone obtained property from “one or more such persons” because (i) the jury found that Mr. Barone did not steal from either Tishman or Silverstein, as evidenced by the acquittals on counts relating to both companies; and (ii) DASNY never paid Testwell (see Penal Law § 190.65 [1] [b]). Similarly, in acquitting Mr. Barone of the counts concerning the steel inspection reports (Counts 29-35), the jury, by definition, found that the reports were not falsified and that Mr. Barone did not intend to defraud DASNY (see Penal Law § 175.35). Accordingly, the only possible basis for the convictions relating to the invoices submitted to DASNY had to be fraudulent double-billing. Indeed, the prosecutor argued the double-billing theory in her summation (A 233-236), and stood by it after the jury returned its verdicts (A 249-254). When defense counsel argued that the convictions 14 Falsifying business records in the first degree requires “intent to defraud” (Penal Law § 175.10), and grand larceny in the third degree requires larcenous intent (Penal Law § 155.05 [1]). 39 relating to the invoices were repugnant because the jury found that the underlying inspection reports were not falsified, the prosecutor responded: [I]t’s the People’s view it’s not a repugnant verdict either factually or legally. The People’s view with respect to the invoices [is] that they were double billing with respect to the others working on two jobs at the same time billing ten dollars ten hours. (A 254.) Based on the double-billing theory, no reasonable juror could convict Mr. Barone because he had no involvement with two out of the three projects. If Mr. Barone did not defraud or steal from Tishman and Silverstein, as the jury found, how did he attempt to double-bill DASNY? The contradictory nature of the convictions signals that the jury was confused and swayed by the prejudicial spillover that permeated the trial. POINT TWO THE RISK OF SPILLOVER PREJUDICE WAS EXACERBATED BY THE TRIAL COURT’S ERRONEOUS COMMENTS AND RULINGS The trial court compounded the risk of spillover prejudice by bolstering the People’s theory that the so called “Testwell Group” was a criminal enterprise. During the course of the trial, Supreme Court made a series of comments and rulings that improperly conveyed to the jury that it 40 believed Mr. Barone and his co-defendants formed a criminal enterprise. These erroneous remarks in support of the People’s enterprise corruption theory deprived the jury of its independent fact finding function warranting reversal of Mr. Barone’s remaining convictions and a new trial. A. Supreme Court’s Prejudicial Jury Instructions There are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations. Accordingly, courts have recognized that supplemental instructions “may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves” People v Ciaccio, 47 NY2d 431, 436 [1979]). As such, the instructions must be free of prejudicial innuendos (see People v Carter, 40 NY2d 933, 934 [1976]). Under CPL 310.30, a court must respond to a jury question as it deems proper. However, while a court retains some measure of discretion in framing its response, in all instances it must respond meaningfully to a jury’s inquiry (see People v Malloy, 55 NY2d 296, 302 [1982]). Factors to consider in evaluating the meaningfulness of the response are: (1) the form of the jury’s question because it may require clarification; (2) the particular 41 issue raised in the inquiry; (3) the supplemental instruction actually given; and (4) the presence or absence of prejudice to the defendant (id. at 302). Here, given the highly complex evidence relating to the different schemes, the jury struggled to determine whether Mr. Barone intended to falsify or correct test results. When the jury asked for guidance regarding this critical issue during its deliberations, the trial court not only failed to respond meaningfully to the inquiry, but also improperly instructed the jury to consider highly prejudicial spillover evidence wholly unrelated to Mr. Barone. On the second day of deliberations, the jury issued a note asking, “In the charge offering a false instrument for filing, please define and clarify false.” (A 237, 316.) The trial court responded to the note with the following succinct instruction: False is the every day usual use of the word, it means something that’s not true. False appears in the elements of the crime. If you remember the charge that I gave you, there are five elements each of which have to be proven beyond a reasonable doubt. But the answer to your question is false means not true. If you want me to read the elements of that charge I will. They’re shaking their head yes and so here we go . . . [trial court then read the pattern instruction for Offering a False Instrument for Filing in the First Degree]. (A 238-39.) The next day, the jury sent another note asking, “What does offering a false instrument for filing mean? If numbers have been changed 42 to numbers that are accurate, is that okay? Does it matter?” (A 243, 317 [emphasis added].) It was clear to all that the note pertained to Mr. Barone. (A 240-41.) Counsel for Mr. Barone urged the court to respond to the note, which asked a direct question, with the following: “[I]f the numbers on the report have been changed to make them accurate, then the instrument does not contain false information and you cannot convict.” (A 240.) The parties had an extended colloquy regarding this issue, culminating in the following agreement with the court: Mr. Shechtman: 15 Their question is a very simple one. If it is changed to be accurate, can there be a conviction? And the answer to that unmistakably is no. The Court: I don’t have a problem with that. But my problem is that there’s a lot that happened over the two months of this trial that by telescoping--I don’t have a difficulty answering that and regarding that one element, I think I also have to say something more broad. Mr. Shechtman: Namely? The Court: That in the context of this case they have to decide all of the element[s] regarding any charge that they are considering. 15 Mr. Shechtman was counsel for Mr. Kancharla. 43 Mr. Shechtman: That’s fine. The Court: Bring them out. Don’t forget the alternates. (A 242-243 [emphasis added].) Thus, counsel for Mr. Barone and Mr. Kancharla understood that the trial court would provide a direct response to the question, and remind the jury that falsity is one of several elements to be considered. The trial court, however, deviated from the agreed upon response and gave a broader instruction that expressly instructed the jury to consider evidence completely unrelated to Mr. Barone or the “Compressive/Flexural Strength Alterations Scheme”: The note says: “‘What does offering a false instrument for filing mean? If numbers have been changed to numbers that are accurate, is that okay? Does it matter?’ If you remember that part of the charge when I was describing how you approach your deliberations, there was a section where you got to decide what happened. Factual decisions are exclusively yours, I can’t make them for you, I can’t say anything that singles it out, if anything, I’m thinking about and you have to decide what you think the facts are in order to put yourselves in addition to make a decision from which your verdict will follow. So there are, with regard to Offering a False Instrument for Filing, if you’ll remember, there were five elements one of which is that the document has to be false. There are, of course, other elements. The answer to the question with regard to is it okay if you have decided that with regard to a charge that 44 you’re considering, that with regard to the element of falsity, that a document was being changed from inaccurate to being accurate, then does that meaning that element regarding falsity was not proven beyond a reasonable doubt? But in the topic of the two month case and thousands of pages of testimony and all these bits, you have to consider any count and any defendant in the context of this case considering all the elements and all the testimony that you heard. This is one where you’re the jury and you’re there to make the decision. I can read the elements of Offering a False Instrument for Filing, but there comes a point when a jury asks a question beyond which me as a judge or anybody else can’t go.” (A 243-44 [emphasis added].) 16 On the evening after the charge was given, counsel wrote a letter to the court objecting to these remarks, which deviated from the proposed instruction agreed to by the parties, and urged the court to reinstruct the jury on this important issue. (A 332-335). Supreme Court declined counsel’s application. Clearly, the trial court committed reversible error. Rather than simply answering the question, the trial court impermissibly expanded the scope of its instructions to include the entire 16 On the next court date, the parties and the trial court agreed that there was a mistake in one part of the transcript. When discussing the accuracy of test results, the trial court had in fact stated in substance, “The answer to the question with regard to is it okay if you have to sign it, that with regard to a charge that you’re considering, that with regard to the element of falsity, that a document was being changed from inaccurate to being accurate, then that means that the element regarding falsity was not proven beyond a reasonable doubt.” (A 245.) 45 case, and, in essence, instructed the jury to consider evidence relating to defendants and charges unrelated to Mr. Barone, such as the “Mix Design Scheme” and the “Field Test Scheme.” The trial court’s extemporaneous response was a far cry from the agreement that it would instruct the jury that they had “to decide all of the element[s] regarding any charge that they [were] considering.” 17 (A 242.) The trial court exacerbated its error by confusing the jury after providing the improper instruction. It informed the jury that, despite its instruction to consider “all testimony,” it could not answer their question: “[B]ut there comes a point when a jury asks a question beyond which me as a judge or anybody else can’t go.” (A 244.) Two days after the improper instruction, the jury sent two notes demonstrating that the trial court had successfully confused them. The first note showed that the jury continued to struggle with alterations to concrete test results. (A 318.) More troubling, the second note showed that the jury followed the trial court’s erroneous instruction to consider and conflate evidence relating to different schemes: “Testimony regarding when it is okay to make changes on tests (concrete; 17 In addition to the error in the substance of the supplemental instruction, the court’s violation of the agreement with counsel effectively deprived Mr. Barone of his right to help frame the instruction provided to the jury (see People v O’Rama, 78 NY2d 270, 277 [1991]). 46 cylinder, beam; steel).” (A 319 [emphasis added].) Because the information requested by the jury related to the central issue at the heart of Mr. Barone’s defense — that he corrected test results, and therefore, lacked the intent to defraud — the court’s error gravely prejudiced him. The court’s improper supplemental instruction reinforced and ultimately sanctioned the prosecution’s faulty theory that the “Testwell Group” was a criminal enterprise. B. Supreme Court’s Improper Bolstering of the People’s Case Compounded the Spillover Prejudice It is well settled that courts may take an active role at trial to clarify confusing testimony and ensure that the proceedings take place in an orderly and expeditious manner (see People v Arnold, 98 NY2d 63, 67 [2002]; People v Yut Wai Tom, 53 NY2d 44, 56 [1981]). However, their role is not unfettered (see Arnold, 98 NY2d at 67; People v Storfs, 47 NY2d 882, 883 [1979]). Indeed, a central tenet of judicial impartiality is that trial courts may not act “in a manner from which a jury will gain the impression of existence of an opinion on the part of the court as to the credibility of the testimony of any witness or the merits of any issue in the case” (People v Moulton, 43 NY2d 944, 945 [1978]). Recognizing the grave risks involved when judges intervene at trial, even for a proper purpose, this Court has held that they should do so 47 sparingly (see Yut Wai Tom, 53 NY2d at 57 [“a Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness”]). Trial courts cross the line when they “take[] on either the function or appearance of an advocate at trial” (Arnold, 98 NY2d at 67), or when their conduct “in the form of words, actions, or demeanor . . . divert[s] or itself become[s] an irrelevant subject of the jury’s focus” (People v De Jesus, 42 NY2d 519, 524 [1977]). This Court has further held that judicial interference “must be measured both qualitatively and quantitatively” (Yut Wai Tom, 53 NY2d at 55). No single instance need be shown to merit reversal; rather, the cumulative effect of several instances can provide grounds for reversal (see e.g. People v Tucker, 89 AD2d 153, 157 [1st Dept 1982] [reversal resulting from “a gradual accumulation of judicial interjection which in totality is prejudicial”]; People v Killgo, 33 AD2d 226, 227 [4th Dept 1970]). In this case, the cumulative effect of the trial court’s repeated interruptions warrants reversal. Throughout the trial, the court distracted the jury and called attention to itself by interrupting witness examinations and 48 making prejudicial remarks. 18 The court foreshadowed its pattern of interrupting examinations by commenting on its own “persnickety nature” to the parties and to the jury. (A 49.) The most damaging interjections were when the court (i) rehabilitated an important prosecution witness during cross examination; (ii) characterized the conduct of a Testwell employee who was the prosecution’s chief cooperating witness as a “crime”; and (iii) interrupted readback of critical testimony and characterized conduct at issue as “massaging” test results, causing the jury to return guilty verdicts for Enterprise Corruption within two hours. As a consequence, the court in each instance improperly bolstered the prosecution’s theory that Mr. Barone falsified test results and that he did so in furtherance of the “Testwell Group” criminal enterprise. For example, when cross examining Simon Barbe to show that Mr. Barone had, at times, altered 7 day test results before the 28 and 56 day tests had even been performed, defense counsel pointed out the fax header, which reflected the date that the fax had been sent. (A 77-81.) The cross examination sought to highlight Mr. Barone’s defense to the jury, namely 18 In addition, the trial court referred to the jury as its “clients” on at least seventeen occasions. (A 6-8, 25-26, 53, 65, 98-99, 176, 189-190, 193, 196, 227, 246-48.) These references called upon the jurors to look to the court as their trusted advisor and to give greater weight to the court’s pattern of improper remarks. 49 that Mr. Barone could not have falsified test results to conform to the expected pattern of increasing strength over time because he adjusted results before the subsequent tests had been performed. Inexplicably, the court intervened to undermine the purpose of the cross examination and to rehabilitate Mr. Barbe, stating that the exculpatory evidence “presupposes that the fax machine calibration, as far as date, is accurate . . . . A lot of presumption here.” (A 81.) No curative instruction was given. Similarly, during the direct examination of Kaspal Thumma, the prosecution attempted to elicit his complicity in the “Mix Design Scheme” (for which Mr. Barone was not charged). Mr. Thumma had difficulty admitting any criminal conduct. (A 146-49.) Rather than allowing the prosecution to continue its examination, the court intervened to make Mr. Thumma admit that, at the time, he knew that certifying certain mix design reports was wrong: “The topic, of course, is perfectly fine, but I would suggest when did you realize you were doing something wrong by putting your stamp on a mix design report . . . When did you realize you were committing a crime?” (A 150 [emphasis added].) Defense counsel immediately objected and requested a sidebar, at which point the court told the jury that “for the time being, forget about what I just said.” (A 150.) At sidebar, the court admitted that its question 50 was improper, but quipped that it was becoming impatient with the prosecution’s “habit of not asking a simple declarative statement as a question.” (A 151.) Then, the court joked to the jury that it “had a senior [moment]” while providing a perfunctory curative instruction to forget what had just been said. (A 151-52.) The trial court’s question to Mr. Thumma asking whether he knew that he was “committing a crime” improperly signaled to the jury in no uncertain terms that the trial court firmly believed that the “Testwell Group” was a criminal enterprise (see Moulton, 43 NY2d at 945). Finally, there is no doubt that the jury struggled in reaching a verdict, deliberating for over 19 days and submitting 40 notes to the court. Above all, the jury struggled with enterprise corruption as nine notes pertained to the count. 19 The nine notes came toward the end of the jury’s 19 Eight of the nine notes included the following: (i) “please define enterprise corruption” (A 322); (ii) “please repeat the five elements which compromise Enterprise Corruption” (A 323); (iii) “Please define criminal enterprise” (A 324); (iv) “In the definition of Criminal Enterprise, must all aspects of the definition be present to determine if the enterprise is criminal; e.g. if part of the definition is met, can you conclude the enterprise is criminal” (A 325); (v) “Please define Enterprise Corruption” (A 326); (vi) “Please define: ascertainable structure; common criminal purpose, beyond individual acts; association of 2 or more people” (A 327); (vii) “We have come to verdicts on all three defendants, except for Enterprise Corruption. We feel we are unable to reach a verdict on this last charge” (A 328); (viii) asking for the prosecution’s organizational chart for “The Testwell Group.” (A 329). 51 deliberations and made clear that the count was preventing them from reaching a final verdict. In fact, on the day before the final verdicts, the jury sent a note that it could not reach a verdict on the enterprise corruption charge. (A 328.) On the last day of deliberations, the jury sent a note requesting certain parts of Ana Murthy’s testimony. (A 330.) As the court reporter read the relevant parts of the transcript related to the concrete department’s procedures for processing test results, he stumbled over the word “marry,” noting it began with the letter “M.” Instead of letting the reporter continue, the trial court interrupted and spontaneously blurted out, “massage,” as in massaging test results. (A 252 [emphasis added].) Defense counsel objected, and the court admitted that its error: The people should understand the court reporter started to stop and stumble on an M word and I said “massage” and, of course, in the context of this case isn’t a great choice of words when I expected the word to be when it was finally articulated, it certainly was not, it was something else. (A 252.) Approximately 90 minutes later, the jury convicted Mr. Barone of Enterprise Corruption. (A 255, 331.) Again, the trial court’s interruption of the readback of crucial witness testimony prejudiced Mr. Barone and deprived him of a fair trial 52 (see e.g. People v Melendez, 227 AD2d 646, 647-648 [2d Dept 1996] [the defendant was denied a fair trial where “the court presumptuously provided a witness with a read-back of testimony before the court reporter could respond to the request, and it turned out that the court’s recollection of the testimony was erroneous”]). By interjecting the word “massage” while the court reporter read testimony regarding test results, the court clearly conveyed its opinion on the central issue in the case: that Mr. Barone had, in fact, been “massaging” test results as per Alfredo Caruso’s fraudulent scheme. The impact could not have been more devastating as the jury returned a guilty verdict on enterprise corruption only an hour or so later. 53 CONCLUSION For the foregoing reasons, this Court should reverse the order of the Appellate Division and order a new trial on the remaining counts for which Mr. Barone stands convicted. This Court should conclude that Mr. Barone was deprived of a fair trial because the prejudicial spillover from the tainted enterprise corruption charge unduly prejudiced the jury’s decision to convict on the remaining counts. Dated: New York, New York February 25, 2013 Respectfully submitted, Lankler Carragher & Horwitz LLP By: ________________________ Andrew M. Lankler Joseph C. Perry 415 Madison Avenue New York, NY 10017 (212) 812-8910 (212) 812-8920 (facsimile) Attorneys for Defendant-Appellant Vincent Barone