The People, Respondent-Appellant,v.Vincent Barone, Appellant-Respondent.BriefN.Y.March 26, 2014To be Argued by: ANDREW M. LANKLER (Time Requested: 15 Minutes) APL-2013-00013 New York County Indictment No. 5248/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, – against – VINCENT BARONE, Defendant-Appellant-Respondent. REPLY BRIEF FOR DEFENDANT- APPELLANT-RESPONDENT ANDREW M. LANKLER JOSEPH C. PERRY LANKLER CARRAGHER & HORWITZ LLP Attorneys for Defendant-Appellant- Respondent 415 Madison Avenue, 16th Floor New York, New York 10017 Tel.: (212) 812-8910 Fax: (212) 812-8920 Date Completed: January 7, 2014 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT .....................................................................1 QUESTIONS PRESENTED............................................................................3 POINT ONE: THE APPELLATE DIVISION’S DETERMINATION THAT MR. BARONE’S CONVICTION FOR ENTERPRISE CORRUPTION WAS AGAINST THE WEIGHT OF THE EVIDENCE IS NOT REVIEWABLE BY THIS COURT. ................................4 A. Legal Standard ........................................................................... 5 B. Discussion ................................................................................ 12 i. Common Purpose ........................................................... 13 ii. Ascertainable Structure .................................................. 17 POINT TWO: THE APPELLATE DIVISION EMPLOYED THE CORRECT LEGAL STANDARD WHEN IT VACATED THE ENTERPRISE CORRUPTION COUNT. ......................................................................... 19 A. Legal Standard ......................................................................... 20 B. Discussion ................................................................................ 21 POINT THREE: THERE IS A REASONABLE POSSIBILITY THAT THE PREJUDICIAL SPILLOVER EFFECT OF THE TAINTED ENTERPRISE CORRUPTION COUNT UNFAIRLY INFLUENCED THE JURY’S ii FINDINGS OF GUILT ON THE UNDERLYING COUNTS........................................................................ 26 CONCLUSION ........................................................................................ 37 TABLE OF AUTHORITIES CASES PAGE People ex rel. MacCracken v Miller, 291 NY 55 [1943] ............................... 6 People v Albro, 52 NY2d 619 [1981] ......................................................... 7, 8 People v Baghai-Kermani, 84 NY2d 525 [1994] ......................................... 27 People v Barone, 101 AD3d 585 [1st Dept 2012] ................................. passim People v Besser, 96 NY2d 136 [2001] ................................................... 20, 21 People v Bleakley, 69 NY2d 490 [1987] .................................................... 5, 6 People v Caban, 14 NY3d 369 [2010] ............................................................ 7 People v Cahill, 2 NY3d 14 [2003] ................................................................ 6 People v Colletti, 73 AD3d 1203 [2d Dept 2010], lv denied 15 NY3d 772 [2010]....................................................................................... 30 People v Concepcion, 17 NY3d 192 [2011] ................................................. 27 People v Corbett, 129 AD2d 433 [1st Dept 1987], lv dismissed 70 NY2d 870 [1987] ................................................................. 10 People v Delamota, 18 NY3d 107 [2011] ................................................ 5, 13 iii People v Doshi, 93 NY2d 499 [1999] .......................................................... 31 People v Giles, 73 NY2d 666, 669 [1989] ..................................................... 6 People v Hedgeman, 70 NY2d 533 [1987] ................................................... 11 People v Joseph Stevens & Co., Inc., 31 Misc 3d 1223[A], 2011 NY Slip Op 50808[U] *40 [Sup Ct, NY County 2011] ................... 24 People v Key, 54 NY2d 813 [1981] ............................................................... 9 People v Letterlough, 203 AD2d 589 [1st Dept 1994], lv dismissed 84 NY2d 862 [1994] ..................................................... 10, 11, 12 People v Mateo, 2 NY3d 383 [2004] .............................................................. 6 People v Medina, 111 AD2d 653 [1st Dept 1985], lv dismissed 67 NY2d 644 [1986] ................................................ 9, 10, 11, 12 People v Morales, 20 NY3d 240 [2012] ........................................... 27, 30, 37 People v Nixon, 156 AD2d 144 [1st Dept 1989], lv dismissed 76 NY2d 870 [1990].................................................................................. 11 People v O’Rama, 78 NY2d 270 [1991] ...................................................... 29 People v Rayam, 94 NY2d 557 [2000] ....................................................... 5, 6 People v Riley, 19 NY3d 944 [2012] ............................................................. 7 People v Rivera, 184 AD2d 288 [1st Dept 1992], lv dismissed 81 NY2d 758 [1992]............................................................................ 11, 12 People v Sinha, 19 NY3d 932 [2012] ..................................................... 28, 29 People v Sullivan, 29 NY2d 937 [1972] ......................................................... 6 iv People v Wakefield Fin. Corp., 155 Misc 2d 775 [Sup Ct, N.Y. Cty, 1992] ................................................................................... 17, 18 People v Washington, 71 NY2d 916 [1988] ................................................... 8 People v Western Express Intl., Inc., 19 NY3d 652 [2012] .................. passim Tibbs v Florida, 457 US 31 [1982] ................................................................. 6 United States v DiNome, 954 F2d 839 [2d Cir 1992] .................................. 32 STATUTES CPL 300.10 [6].............................................................................................. 30 CPL 450.90 [2] [a] .......................................................................... 2, 7, 10, 11 CPL 470.15 [1]................................................................................................ 5 CPL 470.15 [5]................................................................................................ 5 CPL 470.20 [2]................................................................................................ 6 Penal Law § 460.00 ...................................................................................... 12 Penal Law § 460.10 [3] ..................................................................... 12, 13, 21 Penal Law § 460.20 [1] ........................................................................... 20, 25 Penal Law § 460.20 [2] ................................................................................. 20 OTHER AUTHORITIES Preiser, Practice Commentaries to CPL 200.40 ........................................... 30 1 PRELIMINARY STATEMENT As detailed in our opening brief, the Appellate Division modified Mr. Barone’s judgment of conviction and sentence – on the law and the facts – by vacating Mr. Barone’s conviction for enterprise corruption. The lower court, in no uncertain terms, found that “the entire theory of the People’s case is made of conjecture, surmise and innuendo rather than proof beyond a reasonable doubt” (People v Barone, 101 AD3d 585, 589 [1st Dept 2012]). On the same day the Appellate Division issued its order reversing the enterprise corruption count, then-First Department Justice James M. Catterson granted Mr. Barone’s application for leave to appeal to this Court. In a powerful dissent, Justice Catterson concluded that the tainted enterprise corruption count deprived Mr. Barone of a fair trial. Justice Catterson made clear that Mr. Barone’s “viable defenses” on the remaining counts for which he stands convicted “were consumed by the vision conjured by the People of Testwell as a continuing criminal enterprise” (Barone, 101 AD3d at 597 [Catterson, J. dissenting]). The People likewise sought permission to cross-appeal and on April 25, 2013, First Department Justice Sallie Manzanet-Daniels granted the People’s application. On May 30, 2013, Mr. Barone filed a motion with 2 this Court seeking a dismissal of the People’s cross-appeal. Mr. Barone argued that this Court lacked the jurisdiction to entertain the People’s cross- appeal because the intermediary appellate court’s decision was not predicated on the law alone (see CPL 450.90 [2] [a]). The People opposed the motion and this Court, by letter dated August 23, 2013, reserved its decision on the motion to dismiss the People’s cross-appeal, pending full briefing by the parties on the issue. 3 QUESTIONS PRESENTED 1. Must this Court dismiss the People’s cross-appeal where the intermediary appellate court vacated Mr. Barone’s conviction for enterprise corruption upon a determination that the verdict was not in accord with the weight of the evidence? 2. Did the Appellate Division employ the correct legal standard when it vacated Mr. Barone’s conviction for enterprise corruption? 3. Is there a reasonable possibility that the prejudicial spillover effect of the tainted enterprise corruption count unfairly influenced the jury’s findings of guilt on the underlying counts? 4 POINT ONE THE APPELLATE DIVISION’S DETERMINATION THAT MR. BARONE’S CONVICTION FOR ENTERPRISE CORRUPTION WAS AGAINST THE WEIGHT OF THE EVIDENCE IS NOT REVIEWABLE BY THIS COURT. At the Appellate Division, Mr. Barone demonstrated that the evidence adduced to support his conviction for enterprise corruption was legally insufficient and against the weight of the evidence. The intermediate appellate court thus vacated his conviction on both grounds (see People v Barone, 101 AD3d 585, 587 [1st Dept 2012]). On appeal to this Court, the People principally contend that the Appellate Division engaged in an analysis of the facts predicated “on a misapprehension of the elements of the crime of enterprise corruption and an erroneously narrow view of the evidence” introduced at trial (People’s Brief at 60). This argument is without merit. An analysis of the Appellate Division’s opinion reveals that that the lower court not only properly applied this Court’s recent precedent in People v Western Express Intl., Inc. (19 NY3d 652 [2012]), but that the court undertook a careful and thorough review of the facts in concluding that the verdict was against the weight of the evidence. The Appellate Division’s 5 decision to vacate Mr. Barone’s conviction for enterprise corruption is, therefore and respectfully, unreviewable by this Court. A. Legal Standard This Court has long recognized that “an intermediate appellate court ‘may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant’” (People v Rayam, 94 NY2d 557, 560 [2000], quoting CPL 470.15 [1]). It is likewise axiomatic that “[a] determination of whether a judgment of conviction is ‘against the weight of the evidence’ is deemed to be on the facts (CPL 470.15 [5]) and is the exclusive province of an intermediate appellate court” (Rayam, 94 NY2d at 560 [emphasis added]; see also People v Delamota, 18 NY3d 107, 117 [2011] [“(a) conviction that (is) not in accord with the weight of the evidence results in an unreviewable order”]). In People v Bleakley (69 NY2d 490 [1987]), this Court articulated the standard that an intermediate appellate court must employ “in conducting weight of the evidence review” (Rayam, 94 NY2d at 560). Weight of the evidence review – distinct from legal sufficiency review – requires an appellate court, “like the trier of fact below, [to] ‘weigh the relative probative force of conflicting testimony and the relative strength of 6 conflicting inferences that may be drawn from the testimony’” (Bleakley, 69 NY2d at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see also People v Mateo, 2 NY3d 383, 410 [2004]). “If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict” (Bleakley, 69 NY2d at 495, citing CPL 470.20 [2]; see also Mateo, 2 NY3d at 410). “When an appellate court performs weight of the evidence review, it sits, in effect, as a ‘thirteenth juror’” (People v Cahill, 2 NY3d 14, 58 [2003], quoting Tibbs v Florida, 457 US 31, 42 [1982]). Failure of an intermediate appellate court to perform “its exclusive statutory authority to review the weight of the evidence in criminal cases” constitutes reversible error (Bleakley, 69 NY2d at 492; see also Rayam, 94 NY2d at 560). Historically, this Court lacked the jurisdiction to review an order of an intermediate appellate court where such court expressly reversed or modified “on the law and the facts” (see People v Giles, 73 NY2d 666, 669 [1989]; see e.g. People v Sullivan, 29 NY2d 937, 937 [1972] [“no alternative but to dismiss the appeal” where “the order recites that reversal was ‘on the facts,’ as well as on the law”]). On appeal, however, the People grasp at the 1979 legislative amendment to the Criminal Procedure Law, which “permit[s] appeals to the Court of Appeals in certain criminal cases 7 where the Appellate Division reverses or modifies on the law and the facts” (People v Albro, 52 NY2d 619, 621 [1981]; see CPL 450.90 [2] [a]). 1 The revised statute now permits appeals in the limited situations “where there is a controlling legal question combined with incidental but nondispositive factual issues” (Albro, 52 NY2d at 621). 2 As discussed below, the People’s jurisdictional argument fails in this case because the appeal does not fall within the limited exception carved out by the amended statute. In Albro, this Court had its first occasion to apply the newly amended CPL to an Appellate Division decision predicated on the law and the facts (see 52 NY2d at 622). The Court’s explanation of its jurisdiction in that case is instructive. There, this Court observed that the Appellate Division, in reversing the defendant’s conviction, made a factual finding that the defendant had been in custody at the time of his confession and was not represented by counsel (see id. at 622). Notwithstanding this factual finding, the Court opined that it could review the Appellate Division’s legal determination that the defendant’s “custodial interrogation in the absence of 1 CPL 450.90 (2) (a) provides that the Court of Appeals may determine for itself whether a lower “court’s determination of reversal or modification was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification.” 2 Of course, the controlling legal question at issue must be preserved for appellate review (see e.g. People v Riley, 19 NY3d 944, 946-947 [2012]; People v Caban, 14 NY3d 369, 373 [2010]). 8 an attorney violated [his] State constitutional right to counsel” (id.). This Court explained “the factual determination that defendant was in custody would not, in itself, have led to reversal. Absent the court’s legal conclusion that a custodial statement would violate defendant’s right to counsel, the [factual] finding would be irrelevant. Because the factual question was thus incidental and nondispositive, an appeal lies [to this Court]” (id. at 624). In People v Washington (71 NY2d 916 [1988]), this Court similarly held that the order of the Appellate Division presented a question of law within its power of review. There, the Appellate Division reversed the defendant’s conviction, concluding that the trial court had abused its discretion when it declined to reopen the case for the defendant to testify before the jury (see id. at 918). Though the Appellate Division indicated that it reversed “as a matter of discretion in the interest of justice,” this Court determined that the intermediary appellate court based its order on an incorrect legal conclusion that the trial court had erred as a matter of law when it refused to reopen the case (see id.). The Court accordingly remitted the case back to the Appellate Division so that the lower could exercise its interest of justice review power under the proper legal standard (see id.). This Court’s jurisdiction to hear the appeals in Albro and Washington stands in contrast to the countless number of appeals, such as 9 the instant one, where this Court has dismissed because it was clear that the decisions below were based on dispositive factual findings beyond this Court’s review (see e.g. People v Key, 54 NY2d 813, 814 [1981] [appeal dismissed where “review of the opinions rendered by that court reveals that its disposition was predicated upon a new finding of fact” that led to the reversal]). Indeed, in situations where it is evident that the Appellate Division has reversed or modified a conviction on weight of the evidence grounds, this Court’s jurisdiction to review such an order is circumscribed. In this regard, we have found no case – nor do the People cite one – where this Court has entertained a People’s appeal following the Appellate Division’s unique exercise of its factual review power in favor of a defendant. For example, in People v Medina (111 AD2d 653 [1st Dept 1985]), the Appellate Division reduced the defendant’s conviction, on the law and the facts, from first-degree attempted criminal possession of stolen property to second-degree attempted criminal possession of stolen property (see id. at 653). The court observed that an essential element to support a conviction for first-degree criminal possession of stolen property is that “the People must prove beyond a reasonable doubt that the value of the property exceeds $1500” (see id.). The court evaluated the evidence adduced at trial, 10 namely the expert witness who testified that the replacement value of the jewelry that the defendant attempted to purchase was approximately $2000, and ultimately concluded that the People failed to prove the defective jewelry had a value of $1500 or greater (see id at 654). On appeal, this Court properly dismissed the People’s appeal pursuant to CPL 450.90 (2) (a) (People v Medina, 67 NY2d 644 [1986]). This Court concluded it did not have jurisdiction because the Appellate Division made a dispositive factual finding concerning the “relative strength” of the expert’s testimony about the value of the jewelry (see also People v Corbett, 129 AD2d 433, 434-435 [1st Dept 1987], lv dismissed 70 NY2d 870 [1987]). The Appellate Division similarly made dispositive factual findings in People v Letterlough (203 AD2d 589 [1st Dept 1994]). In that case, the defendant was convicted of robbery in the second degree under a theory that he had forcibly stolen property with the aid of two accomplices (see id. at 590). The evidence introduced at trial established that the defendant and one accomplice stole some merchandise from a retail store and that, once they exited the store, they were met by a third accomplice driving a vehicle (see id.). As the three attempted to escape, they were approached by a security officer, at which point the defendant and his 11 cohorts exited the vehicle (see id.). The evidence adduced further demonstrated that the defendant re-entered the vehicle on his own and, as he drove away from the scene, he struck a security officer with the car (see id.). The intermediary appellate court vacated the second-degree robbery conviction, stating that, “[a]s a matter of fact, if not as a matter of law, we cannot see how the defendant’s two accomplices, who were standing to the side at the time that the defendant drove” his car and struck the security officer “were in any position ‘to render him aid during the actual commission of the robbery’” (id., quoting People v Hedgeman, 70 NY2d 533, 543 [1987]). On appeal, this Court, as in Medina, dismissed the People’s appeal pursuant to CPL 450.90 (2) (a) (People Letterlough, 84 NY2d 862 [1994]). This is so because the Appellate Division, in finding that the accomplices did not provide the defendant with any assistance at the time that he exercised force to effectuate the robbery, weighed the evidence presented on this issue and made a dispositive factual finding concerning an essential element of the crime. Such a finding is, of course, beyond this Court’s power to review. 3 3 Even where the Appellate Division purports to reverse on the law alone, this Court has not hesitated to dismiss appeals on CPL 450.90 grounds (see e.g. People v Nixon, 156 AD2d 144 [1st Dept 1989], lv dismissed 76 NY2d 870 [1990] [where Appellate Division reduces the defendant’s robbery conviction to petit larceny on the law, this Court dismisses appeal where it is clear that the lower court’s decision was predicated on dispositive factual findings related to the element of force]; People v Rivera, 184 AD2d 12 B. Discussion The Appellate Division’s review of the facts in this case and conclusion that Mr. Barone’s conviction for enterprise corruption was against the weight of the evidence is no different than that court’s review of the facts in Medina and Letterlough. On appeal, the People attempt to circumvent this jurisdictional barrier by contending that the lower court’s evidentiary findings were based “on a number of incorrect legal premises” related to the crime of enterprise corruption (People’s Brief at 68). Our analysis below, however, will emphatically demonstrate that the Appellate Division simply evaluated the facts in light of the essential elements necessary to sustain a conviction for enterprise corruption. A review of the Appellate Division’s order requires a threshold discussion of this elevated crime. Enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law § 460.00 et seq.) requires proof that a group of individuals engaged in a “criminal enterprise” (see Penal Law § 460.10 [3]; Western Express, 19 NY3d at 658-659). The Legislature has defined a “criminal enterprise” as “a group of persons 288 [1st Dept 1992], lv dismissed 81 NY2d 758 [1992] [where Appellate Division reverses the defendant’s conviction for second-degree robbery on the law, this Court dismisses where it is clear that the lower court makes factual findings related to the element of intent]). 13 sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law § 460.10 [3]). Accordingly, both this Court in Western Express, and the Appellate Division in this case, have recognized a criminal enterprise demands proof of three essential elements: (1) a common purpose; (2) an ascertainable structure; and (3) continuity of existence (see Western Express, 19 NY3d at 658; Barone, 101 AD3d at 590). A dispositive factual finding that the evidence at trial did not support any one of these three essentials elements results in an unreviewable order (see Delamota, 18 NY3d at 117). Here, it is clear that the Appellate Division made factual findings in favor of the defendants concerning both the “common purpose” element and the “ascertainable structure” element. i. Common Purpose There is no doubt that the People proceeded under a theory that Mr. Barone, Mr. Kancharla and Testwell at large shared the common purpose or “goal of maximizing Testwell’s profits by cutting labor costs to the bone and then hiding that fact with falsified reports and phony test results” (People’s Brief at 74). The Appellate Division fully understood the 14 People’s theory and determined, after engaging in a review of the record, that the evidence did not support a finding that Mr. Barone and Mr. Kancharla shared in this purported common purpose (see Barone, 101 AD3d at 593). For example, the Appellate Division determined that the record did not support the People’s claim that Testwell always employed unqualified workers as a means to enhance corporate profit. After all, there was evidence that the inspectors working on the River Place II project had performed “very good” work throughout the course of that project (see Barone, 101 AD3d at 593-594). Even the testimony that the People cite on appeal fails to prove their theory that Testwell hired unqualified workers on other projects in furtherance of a criminal enterprise. Specifically, the People rely on the testimony of Omont McBride for the proposition that Testwell employee Shikeen Kennedy was not a qualified concrete inspector with the Jet Blue project (R 1440-1441). 4 Yet, the record reveals that Mr. McBride gave equivocal testimony regarding Kennedy’s certification and that, in any event, workers who lacked the proper certification were paired with 4 Numbers in parentheses following the letter “A” refer to the pages in Mr. Barone’s appendix; numbers following the letter “K” refer to Mr. Kancharla’s appendix; numbers following the letter “R” refer to the People’s appendix. 15 employees who possessed the proper certifications (id.). And more to the point, Mr. McBride actually testified that he believed Kennedy, for the most part, had been a pretty good inspector (R 1442). 5 Moreover, in exercising its plenary factual review power, the lower court concluded that the evidence did not prove that Mr. Barone and Mr. Kancharla, or anyone at Testwell for that matter, “banded together” in any coordinated effort to falsify test results and reports. While the Appellate Division noted that there was evidence that Alfredo Caruso had undertaken a role in the falsification of concrete test results (see Barone, 101 AD3d at 594-595), the court made a striking observation about what the evidence glaringly lacked. Pointedly, the court explicated that there was no proof that Mr. Barone or Mr. Caruso discussed the alleged falsification of test results with Mr. Kancharla or that Mr. Kancharla “even knew about the practice” (Barone, 101 AD3d at 596) – evidence that surely undercuts any theory that a criminal enterprise existed. 6 5 Jamar Sellers’ testimony also relied upon by the People does not prove that Testwell employed unqualified workers in furtherance of a criminal enterprise. Although Sellers testifies that he performed field inspection jobs on his own before he became certified by the American Concrete Institute, he explained that, prior to inspecting jobs on his own, he worked alongside a trainer or a supervisor for six months (R 293). 6 On this point and contrary to the People’s theory that senior management at Testwell shared a common purpose to enhance profits by falsifying data, the Appellate Division also found that Mr. Kancharla had no knowledge “that the test results from the Yankee Stadium project were fabricated. Similarly, the People failed to introduce evidence that Kancharla knew that there was any problem with the inspection reports for the John Jay 16 With respect to the mix design project – a project that Mr. Barone had no involvement with – the Appellate Division highlighted that there was evidence introduced at trial of only one conversation where Mr. Kancharla told Testwell employee Kaspal Thumma at some point in 2004 or 2005 that it was “industry practice” to utilize falsified mix-design reports (see Barone, 101 AD3d at 591; R 794-795). The Appellate Division rightly concluded the mere fact that this single conversation took place failed to prove that a larger criminal enterprise was in existence. The intermediary appellate court logically came to this determination because “there was no testimony that any employee of Testwell ever spoke with Kancharla or Barone about the different crimes other than the one tangential conversation that Kancharla had with Thumma” (Barone, 101 AD3d at 592). The Appellate Division even took note of the lack of evidence related to Testwell’s computer system. On appeal in the intermediary appellate court, the People contended that the computer had been installed in order to perpetuate the common purpose of hiding data-tampering fraud (see Barone, 101 AD3d at 592). The lower court ultimately disagreed with this assertion, explaining that although there was evidence establishing that “computer system did not allow one to determine who had altered data, there project or that the certifications submitted to the [SCA] were inaccurate” (Barone, 101 AD3d at 591). 17 was no evidence of any kind that the computer system was purposefully programmed to “hide” “data tampering” and that neither Mr. Kancharla – nor anyone at Testwell – “had any role in the programming” (id.). All of the foregoing makes exceedingly clear what the People loath to admit: the People’s assertion at trial that Testwell and its senior management shared the “common purpose” of tampering data and cutting labor costs in order to maximize Testwell profits was against the weight of the evidence. 7 For this reason alone, this Court must dismiss the People’s cross-appeal. ii. Ascertainable Structure The Appellate Division also weighed the evidence adduced at trial in support of the People’s theory that Mr. Barone and Mr. Kancharla used the Testwell corporate form – that is to say, its structure – in furtherance of the crimes they allegedly committed (see e.g. People v Wakefield Fin. Corp., 155 Misc 2d 775, 785 [Sup Ct, N.Y. Cty, 1992] 7 The People’s theory that the common goal of the “Testwell Group” was to maximize profits by engaging in criminal conduct is further undercut by an analysis of Testwell’s actual revenue in 2008. Indeed, the Appellate Division went out of its way to highlight the conflicting inferences flowing from that evidence. On the one hand, the Appellate Division noted that Testwell’s alleged criminal conduct in 2008 generated approximately $100,000 in revenue. On the other, the court poignantly observed that this amount only constituted a mere 0.5% of Testwell’s total revenue of $20 million for that year (see Barone, 101 AD3d at 593). 18 [criminal enterprise requires “a system of authority beyond what is minimally necessary to effectuate individual substantive criminal offenses”]). In the intermediary appellate court’s view, the evidence on this point was, to say the least, flimsy. At the outset of the court’s analysis on this point, the Appellate Division noted the dearth of evidence introduced by the People, which was intended to establish the Testwell corporate hierarchy (see Barone, 101 AD3d at 591; A. 175; compare R. 1773). In fact, the People’s own witness testified that a Testwell website that purported to detail the leadership structure “was totally out of date” (id.). Significantly, the Appellate Division, engaging in a weight of the evidence analysis, found no conclusive evidence that tended to show how the Testwell corporate structure was used to effectuate the alleged criminal enterprise. Specifically, the court highlighted that there was no evidence suggesting that Mr. Barone or Mr. Kancharla used the “regular meetings of Testwell’s management” to discuss any of the schemes for which they were charged (Barone, 101 AD3d at 592). Again, that Mr. Kancharla spoke with Mr. Thumma tangentially about the mix-design scheme on one occasion was insufficient proof that Testwell management used the corporate form to “encourage[] or expand[] any criminal transactions” (id.). 19 Simply put, the evidence introduced at trial did not support the conclusion that there was “a leadership structure, overall planning of the criminal enterprise, or any communications between [Testwell management] in furtherance of the criminal enterprise as required by precedent” (id.). This factual finding is likewise unreviewable by this Court and, therefore, the People’s cross-appeal should be dismissed. POINT TWO THE APPELLATE DIVISION EMPLOYED THE CORRECT LEGAL STANDARD WHEN IT VACATED THE ENTERPRISE CORRUPTION COUNT. 8 In an effort to sidestep the jurisdictional impediment to their cross-appeal, the People contend that the Appellate Division “made a series of [incorrect] predicate legal rulings that . . . necessarily deformed any second-tier factual determinations it made” when it reversed Mr. Barone’s conviction for enterprise corruption (People’s Brief at 67). An assessment of the lower court’s opinion, however, reveals that there is nothing incorrect about its understanding of OCCA or its application of this Court’s decisions interpreting this elevated crime. 8 Mr. Barone fully incorporates Mr. Kancharla’s arguments addressing the insufficiency of the evidence supporting the convictions for enterprise corruption (see Kancharla Reply Brief, Point A). Here, we supplement this point by identifying certain weaknesses in the People’s arguments. 20 A. Legal Standard This Court has recognized that the intent of the Legislature when it enacted OCCA – a class B felony – was to create an enhanced crime, which “addressed[ed] the particular and cumulative harm posed by persons who band together in complex criminal organizations” (People v Besser, 96 NY2d 136, 142 [2001]). Indeed, this Court has observed that “[t]o justify the superadded penalties for participation in a corrupt enterprise, and concomitantly to avoid sweeping relatively minor offenders into complex multidefendant, multicount prosecutions entailing a risk of draconian punishment, it was necessary [for the Legislature] to distinguish between what on the one hand were merely patterns of criminal conduct and what on the other were patterns demonstrably designed to achieve the purposes and promote the interests of organized, structurally distinct criminal entities” (Western Express, 19 NY3d at 658 [emphasis added]) . Accordingly, in order to fall within the ambit of OCCA, a person must be “employed by or associated with a criminal enterprise and intentionally participate[] in the affairs of that enterprise by engaging in a pattern of criminal activity involving at least three criminal acts” (Besser, 96 NY2d at 142, citing Penal Law § 460.20 [1], [2]). As discussed, supra, a criminal enterprise consists of “an association possessing a continuity of existence, criminal purpose, and structure – which is to say, of constancy and capacity exceeding the individual crimes under the association’s auspices or for its 21 purposes” (Western Express, 19 NY3d at 658; see also Penal Law § 460.10 [3]). B. Discussion An examination of the Appellate Division’s opinion will leave one hard pressed to believe – as the People vociferously contend – that the lower court departed from this Court’s analysis in Besser and Western Express. At the outset, there is nothing striking about the court’s recitation of the applicable statute and case law (see Barone, 101 AD3d at 589-591). Quoting directly from Besser, the Appellate Division reiterated that OCCA’s emphasis was not on “isolated criminal activities . . . conduct adequately addressed elsewhere in the Penal Law,” but on individuals who “band together in complex criminal organizations” (id. at 589; see Besser, 96 NY2d at 142). Furthermore, there is nothing incorrect about the court’s discussion of the elements of a “criminal enterprise” (see id. at 590) Nor is there anything improper about the court’s reliance on Western Express wherein it explains, for an enterprise corruption indictment to survive a motion to dismiss, there must be a “reasonable inference of an ‘enduring structurally distinct symbiotically related criminal entity which defendants were purposefully associated’” (id. at 590, quoting Western Express, 19 NY3d at 660). 22 The Appellate Division’s application of these settled principles to the facts of this case is likewise straightforward. Given this reality, the People nevertheless choose to make what can only be viewed as specious arguments about the court’s legal insufficiency analysis. First, the People complain that the lower court has interpreted the requirement that the People prove the existence of an “ascertainable structure” to mean a “hierarchical structure,” noting that this issue has been expressly left open by this Court in Western Express (see 19 NY3d at 659; People’s Brief at 68). This assertion has no merit for at least two reasons. For one, the plain language of the opinion makes clear that the Appellate Division held that there was no structure – of any kind – to the so called “Testwell group.” Not only did the court find that there was no “evidence of a leadership structure,” the court further concluded that the evidence failed to establish that Mr. Barone and Mr. Kancharla had “any communications” with one another or with others “in furtherance of the criminal enterprise” (Barone, 101 AD3d at 592). Nor was there any evidence of any coordinated “planning” among any Testwell employee at any level in furtherance of a criminal enterprise (see id.). Moreover, to the extent that there are references to a “hierarchical structure” in the lower court’s opinion, they are of no moment 23 given that the People tried this case on the theory that Mr. Kancharla and Mr. Barone used the legitimate corporate hierarchy in furtherance of the criminal enterprise. 9 Indeed, on summation, the prosecutor went out of her way to emphasize the importance of the corporate hierarchy as it related to the purported criminal enterprise (see e.g. A 227.2 [“Over ten years of ownership Reddy Kancharla and his confederates at Testwell used the enormous trust placed in them”]; K 378 [“Kancharla trained his people in the fine art of half truth [and] fake responses”]; A 227.4 [“Let’s move on to Vincent Barone right at the top of the Testwell team . . . Mr. Barone was indisputably Reddy Kancharla’s right hand man, number two . . . throughout the scheme it’s clear (Barone) was the last stop”]). Despite proceeding on such a theory, the People criticize the Appellate Division for making reference to a “hierarchical structure” in its analysis, arguing that they are now somehow required to prove something not required by the OCCA statute itself. 10 That the Appellate Division disagreed with the People’s own theory and found no “hierarchical 9 To that end, the People adduced evidence that Mr. Kancharla’s was the owner of Testwell and that Mr. Barone was Testwell’s Vice-President in charge of the Engineering Department (see e.g. R 1603; R 1773). 10 The People’s criticism of the lower court is later contradicted by their own assertion that “the jury was amply justified in finding that the defendants’ crimes were committed through the use of the hierarchical corporate structure” (People’s Brief at 83 [emphasis added]). 24 structure” in this case does not stand for the broader proposition that the People must present proof of a “hierarchical structure” in all OCCA cases. In a similar vein, the People further attack the lower court for purporting to require proof of a “distinct hierarchy,” meaning “one separate and distinct from the corporate structure of the legitimate enterprise within which the defendants committed their crimes.” (People’s Brief at 68). This argument too lacks merit. To be clear, the Appellate Division, at no point, adopts such a position. Rather, the lower court simply takes issue with the People’s theory that the alleged ascertainable structure in this case – Testwell’s corporate hierarchal structure – was actually used in furtherance of a criminal enterprise. In that regard, the majority aptly criticizes the dissent, which apparently seemed satisfied that the proof established an “ascertainable structure” because “it is frequently the case that legitimate corporations may ‘both lend their corporate form, hierarchy and operations to criminal enterprises which flourish [ ] within their corporate structure’” (Barone, 101 AD3d at 603 [Manzanet-Daniels, J. dissenting], quoting People v Joseph Stevens & Co., Inc., 31 Misc 3d 1223[A], 2011 NY Slip Op 50808[U] *40 [Sup Ct, NY County 2011]). The majority counters by acknowledging that while such a “legal aphorism” (Barone, 101 AD3d at 594) may be correct in theory, the proof adduced at trial in this case did not 25 demonstrate that a criminal enterprise “flourished” within Testwell’s legitimate structure. The People further chastise the Appellate Division for purporting to heighten their burden of proof in an OCCA prosecution beyond what is mandated by Penal Law § 460.20 (1) (a). The Appellate Division’s analysis, however, is perfectly consistent with the statute, which requires proof of participation in an enterprise’s affairs “through the requisite pattern of criminal activity” (People’s Brief at 68). On this point, the lower court makes clear that there was no proof of any participation in an enterprise’s affairs, noting, for example, that “there was no testimony that any employee of Testwell ever spoke with Kancharla or Barone about the different crimes other than one tangential conversation that Kancharla had with Thumma” (Barone, 101 AD3d at 592). That the court stated that neither Mr. Kancharla nor Mr. Barone “encouraged or expanded any criminal transactions” (id.) is an appropriate observation, given the People’s trial theory that the two were the head of the so called “Testwell group.” Such an observation does not broaden the People’s burden of proof and any suggestion to the contrary should be respectfully rejected by this Court. 11 11 Perhaps the least compelling of the People’s criticisms of the Appellate Division’s order is the notion that the intermediary court pronounced a rule requiring “direct” proof in an enterprise corruption case (see People’s Brief at 68, 88-89). Not only do the People 26 *** In sum, all of these hollow arguments should be seen for what they are: a futile attempt to resurrect a conviction for a heightened crime that was emphatically and soundly vacated by the Appellate Division. POINT THREE THERE IS A REASONABLE POSSIBILITY THAT THE PREJUDICIAL SPILLOVER EFFECT OF THE TAINTED ENTERPRISE CORRUPTION COUNT UNFAIRLY INFLUENCED THE JURY’S FINDINGS OF GUILT ON THE UNDERLYING COUNTS. In response to Mr. Barone’s argument that he is entitled to a new trial on the underlying counts for which he stands convicted, the People weakly retort, “the facts and circumstances [of this case] preclude any findings of spillover prejudice” (People’s Brief at 98). Specifically, the People argue that “given the strength of the evidence . . . it is impossible to imagine any jury reaching any other verdict but guilty” on the underlying counts (People’s Brief at 109). Yet the People, in advancing this unsupported claim, not only distort the record with respect to the trial court’s fail to cite the portion of the lower court’s order that stands for this preposterous proposition, but the People gloss over the numerous instances in which the Appellate Division conducts its independent review of the facts and weighs the conflicting inferences flowing from the evidence – both direct and circumstantial – introduced at trial (see Point One, supra). 27 instructions to the jury but also boldly dismiss the viable defenses to the underlying counts that Mr. Barone asserted at trial. As a consequence, the jury was unable to properly consider these defenses because the People prejudicially linked Mr. Barone to aspects of Testwell’s business in which he played no role and alleged schemes in which he had no knowledge. Thus, a reasonable possibility that the jury’s verdict was tainted is the only fair conclusion that can be drawn from the inflammatory nature of this case. Accordingly, we respectfully submit that a new trial is required on these underlying charges. The standard in determining whether reversal of an underlying count is required is well-familiar. A reviewing court must reverse where “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” (People v Morales, 20 NY3d 240, 250 [2012]). Claims of spillover prejudice are “question[s] that can only be resolved on a case-by- case basis” (People v Baghai-Kermani, 84 NY2d 525, 532 [1994]). An appellate court must assess “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” (People v Concepcion, 17 NY3d 192, 196-197 [2011]; see Morales, 20 NY3d at 250). 28 The People point to several factors in support of their theory that Mr. Barone was not prejudiced. For example, they posit that the Supreme Court clearly instructed the jury to decide each count separately (see People v Sinha, 19 NY3d 932, 935 [2012]). Additionally, the People rely on the section of the trial court’s initial charge to the jurors advising them to consider each charge for each defendant separately (see R 1537). Noticeably absent from this discussion is any reference to the court’s later remarks in response to a question from the jury about one of the schemes that Mr. Barone had been charged with, the Compressive/Flexural Strength Alternations Scheme. The jurors sought clarification regarding the legal definition of “Offering a False Instrument for Filing” and whether making accurate changes to the instrument constituted a crime (see A 243, 317). Rather than answering the question as agreed upon by the parties, the Supreme Court invited the jury, in determining whether a document had been changed from inaccurate to accurate, to consider the “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 the case considering all the elements and all the testimony that you heard” (A 243-244 [emphasis added]). 29 Such an instruction at such a crucial point of the deliberations was unmistakably prejudicial to Mr. Barone. It cannot be emphasized enough that the court’s response to the juror’s questions explicitly directed them to evaluate evidence pertaining to defendants and charges wholly unrelated to Mr. Barone – in complete contradiction to the People’s contention that the jury was advised to decide each count separately (see Sinha, 19 NY3d at 935). 12 Equally unavailing is the People’s reliance on “nature of deliberations in an OCCA case” (People’s Brief at 101). The People maintain that because the court told the jury to consider every predicate crime and pattern act prior to deliberating on the OCCA, there can be no risk 12 The trial judge’s failure to respond to the jury’s inquiry in the manner agreed upon by the parties and correct the error at defense counsel’s request constituted a “significant departure from the organization of the court or the mode of proceedings prescribed by law” (see People v O’Rama, 78 NY2d 270, 279 [1991] [internal citation marks omitted]). Sadly, this was not the only error committed by the trial judge. As we explained in Point Two of our opening brief, the trial judge routinely tipped his hand in favor of the People by bolstering their theory that the so called “Testwell group” was a criminal enterprise. At trial, the court interjected during the testimony of the People’s cooperating witness, Kaspal Thumma, offering his personal view that Thumma’s work at Testwell constituted criminal activity (A 150). The trial judge similarly interjected during the cross- examination of Simon Barbe, wholly undercutting Mr. Barone’s defense that he could not have falsified test results to conform to the People’s alleged pattern of fraud (A 81). Even more damaging, during a critical readback of testimony about the concrete department’s procedures for processing test results, the trial judge interrupted the court reporter, suggesting the witness had testified about the “massag[ing]” of test results at Testwell. This, of course, was not the case (A 252). The court’s “curative” instruction that it had “expected” that testimony only exacerbated the problem (id.). Ninety minutes later, the jury returned its verdict convicting Mr. Barone of enterprise corruption (A 255, 331). 30 that the enterprise corruption count influenced the jury’s resolution of the underlying felony counts. By this logic, no defendant convicted of OCCA could advance a “spillover prejudice” argument in New York because jurors in all cases are instructed “to render a verdict separately and specifically upon each criminal act” before considering the enterprise corruption charge (CPL 300.10 [6]). The People’s position, however, is wholly at odds with this Court’s approach to claims of spillover prejudice, which requires an analysis of the underlying error at trial and its potential for prejudicial impact on the overall outcome of the case (see Morales, 20 NY3d at 250). Their view is also in tension with the generally accepted understanding that enterprise corruption charges carry with them an augmented risk of spillover prejudice (see Preiser, Practice Commentaries to CPL 200.40 at 309 [observing that that an OCCA charge “creates an increased risk of spillover prejudice” and “causes concern regarding guilt by association”]). It is apparently completely lost on the People that pursuing an enterprise corruption count in a case such as this resulted in the jury hearing and considering evidence against individual defendants for conduct with which they had no involvement whatsoever (see People v Colletti, 73 AD3d 1203, 1207-1208 [2d Dept 2010], lv denied 15 NY3d 772 [2010]). 31 Furthermore, the fact that the jury rendered “carefully mixed verdicts” (People’s Brief at 101) on the underlying counts in no way refutes Mr. Barone’s claim of spillover prejudice. Rather, there is a reasonable possibility that here, given the hyperbolic rhetoric used by the prosecutor at trial, which portrayed the so called “Testwell Group” as an organization thoroughly “entrenched” by fraud (see A 227.1-227.2), the jury felt compelled to convict Mr. Barone of some of the underlying predicate acts. That is why the People’s reliance on People v Doshi (93 NY2d 499 [1999]) is misplaced. For one, Doshi involved a single defendant charged with a discrete number of crimes. Second, the remaining counts that the defendant in Doshi stood convicted of were “readily distinguishable” from the tainted counts (see id. at 505-506). By contrast, this case involves multi-defendants collectively charged with enterprise corruption and individually charged with various multiple predicate and non-overlapping criminal acts. These underlying predicate criminal acts are inextricably linked to the tainted enterprise corruption charge as they formed the necessary basis upon which the OCCA prosecution went forward. Thus, unlike Doshi, it can hardly be said that the remaining counts here are “readily distinguishable” from the tainted OCCA count. 32 The People are also incorrect in their assertion that because the jurors deliberated at length for over two weeks in rendering three partial verdicts, Mr. Barone’s claim of spillover prejudice is somehow negated. The People appear to cite United States v DiNome (954 F2d 839 [2d Cir 1992]) in support of this proposition. Yet, in DiNome, the length of the jury deliberations played no role in the court’s spillover prejudice analysis. Rather, the court merely observed that the length of the jury deliberations was among several factors that assured the court that the jury generally “comprehended the [complex] case” (DiNome, 954 F2d at 843). The Second Circuit then went on to address a claim of spillover prejudice lodged by two of the defendants. As noted in our opening brief (see Barone Opening Brief at 24-25), the court reversed the defendants’ remaining convictions – despite the lengthy deliberations – concluding that “once 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” (DiNome, 954 F2d at 844). Finally, the People espouse the view that the proof against Mr. Barone on “the charges of which [he] stand[s] convicted was compelling and unanswerable” (People’s Brief at 107). Such a statement is not, however, 33 supported by a fair reading of the record. As we explained in our opening brief, Mr. Barone had a number of strong defenses with respect to the two schemes for which he stands convicted. The jury ought to hear and consider these viable defenses without the aura of an illusory criminal enterprise – an image that undeniably infected the first trial. 13 For one, Mr. Barone highlighted a number of deficiencies in the record with respect to Mr. Barone’s alleged involvement in the Compressive/Flexural Strength Alterations Scheme. Not only was there no forensic proof connecting Mr. Barone to the changed test results (A 94-95, 302-303), the prosecution’s own cooperating witness, Kaspal Thumma, conceded that he was unaware of the existence of any scheme in the first instance (A 153). Furthermore, the only evidence that purported to link Mr. Barone to the vast amount of evidence describing Mr. Caruso’s role in the scheme was Ana Murthy’s testimony that she received an occasional number of faxes from Mr. Barone concerning the Jet Blue Project (A 117, 121-123). The People concede that there was no evidence adduced at trial that Mr. Barone and Mr. Caruso discussed altering test results. They claim this does 13 This is certainly how Justice Catterson viewed the record: in his dissent, he aptly found that the “viable defenses that [] Barone had to the crimes [he] was actually charged with were consumed by the vision conjured by the People of Testwell as a criminal enterprise” (Barone, 101 AD3d at 597). This was so because “[t]he use of Testwell as a criminal enterprise allowed the People to link for the jury all of the individual defendants to the crimes with which they were not charged” (id. at 596). 34 not matter, for “Barone certainly communicated with other participants in the scheme to achieve that end” (People’s Brief at 141). This is pure conjecture as there is no record evidence that Barone communicated with anyone about this scheme. The complete dearth of evidence describing Mr. Barone’s alleged role in Mr. Caruso’s Compressive/Flexural Strength Alterations Scheme wholly supports Mr. Barone’s defense theory that he lacked any intent to defraud, which, of course, is an essential element to these underlying charges. In fact, the content of the JetBlue faxes introduced to support this alleged scheme negates any intent to defraud. What the faxes actually show is that Mr. Barone wanted his employees to identify failing test results (A 276-283). There was no evidence that Mr. Barone ever directed any Testwell employees to flag low breaks for “revision.” The People brush aside this defense by contending there was no reason to “instruct the employees to flag “low breaks,” because the Testwell computer was programmed to generate an alert whenever results fell below the required threshold” (People’s Brief at 142). This assertion is, of course at odds with the testimony of the People’s own witness, Simon Barbe, who conceded that it was quite proper to include comments pointing out low breaks on the test reports (see A 92-93). 35 Furthermore, the image that the “Testwell group” was a criminal enterprise warrants a new trial because it deprived the jury of its ability to examine the other deficiencies in Simon Barbe’s testimony. For example, despite Mr. Barbe’s speculative theory that Mr. Barone eliminated anomalous results in furtherance of this scheme, Mr. Barbe could not account for the fact that Mr. Barone had altered certain results before he received the results for later intervals. This gaping hole in the People’s theory undermined their contention at trial that Mr. Barone tailored the test results to conform to the expected criminal pattern alleged (see A 269, 270, 284-285). 14 Moreover, the evidence introduced to prove the only other scheme with which Mr. Barone was charged – the steel inspection scheme – was hardly “unanswerable.” Despite their claim that the proof lodged against Mr. Barone in this scheme was “overwhelming,” the People are forced to acknowledge that the jurors indeed “chose to acquit [Mr. Barone] on some charges such as those related to the creation and filing of the false inspection reports (People’s Brief at 154). The People attempt to explain the inconsistency in the verdict with respect to this scheme by positing that the 14 Mr. Barbe’s other theory that the test results were manipulated in order to smooth outliers was likewise not supported by any meaningful analysis (see A 91; 87-88). 36 jury exercised “rough justice” and “leniency” toward Mr. Barone (People’s Brief at 157; 162). Such an argument is purely speculative and has no record support. A more accurate interpretation of the mixed verdict is the reasonable possibility that the jurors were confused and ultimately swayed by the idea that Mr. Barone, one of the leaders of the so called “Testwell group,” must have played some role in the steel inspections scheme. There is simply no other way to explain the jury’s finding that, on the one hand, Mr. Barone had not double billed Tishman and Silverstein vis-à-vis DASNY, yet, on the other hand, Mr. Barone had double billed DASNY vis- à-vis Tishman and Silverstein. Finally, there can be little doubt that the hyperbolic rhetoric used by the prosecutor to convey the notion that so called “Testwell group” was a criminal enterprise contaminated the proceedings and enabled the People to distort and conflate the evidence. As a consequence, Mr. Barone was improperly connected to schemes in which the indictment made clear he played no role. The image painted by the People in summation that Mr. Kancharla and his confederates for “over ten years” abused the “enormous trust placed in them . . . [t]o provide the illusion of inspection while cutting corners at every opportunity” was particularly prejudicial to Mr. Barone (A 37 227.2). After all, the two schemes with which Mr. Barone was charged covered only a three-year period. The image that Mr. Barone was Mr. Kancharla’s “right hand man” and that he was “last stop before Reddy Kancharla emerged from behind the scene” is equally disingenuous for, in most instances, the two were charged with separate acts (A 227.4-227.5). In sum, the only reasonable conclusion that can be drawn from jury’s decision to convict on the tainted enterprise corruption count is that such decision heavily influenced its decision to convict on the remaining counts (see Morales, 20 NY3d at 250). Accordingly, we respectfully request the Court to grant Mr. Barone a new trial – a trial unimpeded by the baseless misconception that Mr. Barone was part of an illicit subgroup that perpetuated fraud in an organized manner. CONCLUSION For the foregoing reasons, this Court should first dismiss the People’s cross-appeal because it lacks the jurisdiction to review the Appellate Division’s reversal of the enterprise corruption count on weight of the evidence grounds. Alternatively, should the Court wish to review the merits of the People’s cross-appeal, this Court should affirm this portion Appellate Division’s order vacating the enterprise corruption count. Moreover, this court should modify 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 January 7, 2014 Respectfully submitted, Lankier Carragher & Horwitz LLP By:~b~ dfeWM./Lankl er Joseph C. Perry 415 Madison Avenue New York, NY 10017 (212) 812-8910 (212) 812-8920 (facsimile) Attorneys for Defendant-Appellant Vincent Barone 38