The People, Appellant,v.Ganesh R. Ramsaran, Respondent.BriefN.Y.June 20, 2017DISTRICT ATIORNEY J osEPH A. M c BRIDE New York State Court of Appeals 20 Eagle Street Albany, NY 12207 Your Honors: O FFICE O F T HE D ISTRICT A TIORNEY C OUNTY O F C HENANGO E ATON CENTER B ox 126 C oNKEY AvENUE, 2ND F LooR NORWICH NEW YORK 13815 (607) 337-1745 Fax: (607) 337-1746 RE: People v Ganesh Ramsaran APL-2016-00228 Chenango County Indictment No. 2013-57 FIRST ASSISTANT MICHAEL D. F ERRARESE By Memorandum and Order dated July 14, 2016, the Appellate Division, Third Department reversed the judgment and ordered a new trial of Mr. Ramsaran, convicted of second degree murder for the death of his wife, on the ground he did not receive effective assistance of counsel. People v Ramsaran, 141 AD3d 865 (3rd Dept. 2016). The Third Department chiefly relied on this Court's decision in People v. Wright, 25 NY3d 769 (2015), finding that defense counsel's failure to object to remarks made in the prosecutor' s summation concerning DNA evidence deprived defendant of a fair trial. 141 AD3d at 869-70. QUESTION PRESENTED Is it proper for a prosecutor to make reasonable inferences in his/her summation based upon DNA evidence/testimony during the trial presented in terms of probability? If not: Is defense counsel constitutionally ineffective for failing to object to two, or arguably three, inadvertent misstatements of DNA evidence, which is little more than marginal evidence in support of the People's case? PERTINENT FACTS A. The evidence adduced at defendant's trial Overview1 As the Third Department observed, there was no shortage of evidence circumstantially demonstrating that defendant killed his wife: his affair with his wife's best friend, several contradictions in the statements he gave to local law enforcement, suspicious circumstances that took place on the morning of his wife's disappearance when he was the last known person with her, and his highly suspicious behaviors following her disappearance. 141 AD3d at 865-9. 1 The People continue to also rely on the statement of the case presented in their appellate brief before the Third Department. ASSISTAN T lAuRA R. P ARKER 1 ASSISTANT MICHAEL J. GENUTE 2 At the time of her murder in December 2012, Jennifer Ramsaran had been married to defendant for 12 years; the couple had three children, ages 14, 11, 8 (A48, A60, RA68).2 Earlier in 2012, the defendant began a sexual affair with his wife’s best friend, Eileen Sayles, whom he soon regarded as his “soulmate” (A84-85, A97, RA73-4, RA341-345, RA461-462, RA474, RA480-482, RA540-543). He became obsessed with the prospect of marrying her and raising each other’s children together, with the hope that his new family would live in his current house (A14-15, A18-19, A21, A84-85, RA23-29, RA34-35, RA71-74, RA378-379). Defendant had a strong financial motive for killing his wife. His best friend, a divorcé, told him in late 2012, while defendant’s marriage to Jennifer was unsettled, that a divorce would be very costly and that Jennifer would very likely have custody of the three children (RA268- 275). Defendant also knew he was the sole beneficiary of his wife's $200,000 life insurance policy (A161, RA268, RA551-552). December 2, 2012, nine days before his wife vanished, defendant pledged in an email to Eileen, after she moved back in with her husband, that he would have done anything and everything for them to be together: . . . Have a great life with your husband that you chose over me. Enjoy f---ing him. * * *You know I would have done everything and anything for you and for us to be together.... Sent from my iPhone. --A80-81, RA91, RA339-340, RA607 (emphasis added). Defendant was the last person known to be with his wife on December 11, 2012. Her cell phone was last used at 8:27 A.M. that day when a screen shot was taken (A195). Prior to the screen shot, she was engaged in an online game with an Internet friend, but inexplicably ceased communication with him at approximately 8:15 (A150-152). At about 12:45 PM, defendant appeared at the local YMCA - approximately one mile from where his wife’s vehicle was eventually found days later. He made a point of announcing to random people that his wife went shopping in Syracuse, and that he was trying to call her for a ride because he was too cold to jog back home (RA70-71, RA83-84, RA191, RA212, RA312-313). He actually called Eileen, who drove him home. Defendant, who never before passed up the opportunity for a sexual escapade with his mistress, did not invite Eileen into the house (A84, RA92-93). While he initially reported that Jennifer left to go shopping at 10 A.M. (A10-11, RA12), her phone remained connected to the residential WiFi until 10:57 A.M. (RA260-267, RA360-361). He sounded hysterical when reporting his wife missing, mere minutes after the time he said she was expected home. However, defendant did not mention her disappearance in a subsequent phone call to his close friend until several minutes into their conversation (A11, A13, A23, RA32, A52, RA13, RA17-19, RA22, RA31, RA38, RA507). 2 Numbers preceded by A refer to pages of the defendant-appellant’s Appendix filed with the Appellate Division, Third Department; those preceded by RA refer to pages of the Respondent’s Appendix below; and those preceded by SA refer to pages of the People’s Supplemental Appendix that is being filed and served with this letter brief. 3 During the initial missing person investigation, the defendant: ● Told officers his marriage was “perfect” and something terrible happened to his wife, ● Claimed he unsuccessfully tried locating Jennifer’s phone the previous evening via the Find My iPhone App, though it worked fine when he arrived at the local police department on the morning of the 12th, ● Finding a signal from the app, he announced, “Oh my God, something terrible has happened, there’s water there”, ● Quickly located the phone later in the day, despite an exhaustive search by officers earlier that morning. --A11-13, A25, A28, RA13-16, RA19-21, RA36-39, RA44-49, RA52, RA54-55, RA112-115. The phone was located in the area of a creek bed, a short distance from the where the van was eventually found (RA45, RA114-115). Other than having some smudge marks on it, the phone was in good working condition (RA45, RA114-115, RA118-119, RA184-185, RA358-359). During interviews with Chenango County Sheriff Detective Kevin Powell on December 12 and 15 and Lieutenant Richard Cobb on the 17th, defendant’s story was fraught with inconsistencies concerning the morning of Jennifer’s disappearance, his marital relationship, and his relationship with Eileen (A128-129, A135, A187, RA120-123, RA126, RA132-136, RA170, RA189, RA193-195). While he cursed about the game his wife played, defendant never mentioned that she was playing it on the morning of her disappearance (A128-9, RA132). He also recounted that he was working and logged onto his work computer that morning (A128-129, A199, RA136). Defendant was otherwise calm and not crying during his interview on the 15th (A128-129, RA125, RA139, RA171). Before his wife’s body was found, defendant: ● never went looking for his missing wife; ● told his best friend not to fly up and help look for her; ● told officers, his wife’s parents and sister, and others that his wife was sexting other men and had run off with someone, was a drug addict, a computer game addict, and implied she was sleeping around; ● four days after his wife was missing, told his mistress’s father about the extramarital relationship, describing the two of them as soulmates, being overtly more concerned about his relationship with Eileen than his missing wife. --A39-40, A42, A47, A53-55, A67, A88, A98, A228, RA22, RA27-29, RA42-44, RA56-57, RA63-67, RA69-76, RA79, RA94, RA101, RA140- 141, RA374, RA396, RA414-421, RA435-436, RA443-453, RA506-507, RA513-514, RA525-531. 4 His wife’s van was found a few days after she went missing, but not before defendant twice guided his father-in-law past the van, which was parked in an apartment complex in plain sight from the road (A53, A55, RA58-62, RA133, RA196, RA232, RA411, RA429-30, RA528- 529). While the father-in-law noticed the van and went back to check on it, defendant was at his home making sexual overtures to a concerned female acquaintance, who paid a visit out of concern for his missing wife (RA77-82). After a few weeks, defendant was looking to reestablish his relationship with Eileen, with whom he had sex one day before Jennifer went missing (A82, RA102-103). A couple of months later, he was making jokes on Facebook about his missing wife and how she did not sexually perform to his satisfaction (RA471, RA488, RA564-568). Jennifer’s body was eventually found on February 26, 2013 (RA117, RA124-126, RA228); her death was later ruled a homicide (RA156-157, RA593-601). The trial of the subsequent indictment, charging defendant with Murder in the Second Degree [Penal Law § 125.25(1)], began on September 2, 2014. The People’s evidence concerning the morning of December 11: On the morning of the 11th, Jennifer was communicating with an Internet friend from England, Rob Houston, through an online game she played on her phone. She suddenly left the game at approximately 8:15 A.M., failing to respond to several delivered messages, including one sent at 8:30 A.M. that read, "Where did you go? You just left the game” (A149-152, RA127- RA128, RA131, RA161-3, RA310, RA357, RA366-8). The game app just showed she was offline (A151). As the two had become acquainted in August of 2012 and became more intimate since October, Jennifer never left the game without explaining to Houston why she was leaving (A151-152, RA161-163, RA167-168). Before she disappeared, Jennifer sent Houston underwear for Christmas (RA163-165), and Houston sent her $150.00 through Western Union as a Christmas gift (A150). Before abruptly disengaging from the game, Jennifer told Houston she was going to the nearest Western Union to collect his monetary gift and would travel to Syracuse with Eileen later in the week to go shopping; Eileen would drive because Jennifer's car was not in good mechanical condition (A150-151, RA165-166). The next day, Houston noticed that the entire history of the communications and voice messages had disappeared (A153). Jennifer never made it to Western Union (RA169). Despite defendant’s initial claims that Jennifer left their house at approximately 10:00 A.M and subsequent claims that she left before he sent an email at approximately 10:53 A.M., Jennifer’s phone was still connected to defendant’s “Psycho” network at 10:57 A.M. (RA260- 267, RA360-361). The People’s evidence contradicted that defendant made any efforts to locate his wife’s phone on the evening of her disappearance (RA322-323). Contrary to defendant’s statements that he was working online as an employee of IBM on the morning of the 11th, Christopher Roper, Director of Security Technology and Global 5 Forensic Investigations for all of IBM, confirmed that no work was done on the computers for the entire morning and even afternoon of the 11th, except for a simple program install shortly after 8:00, taking a minute or two to initiate (A158-159, RA233-238). And while two brief emails were sent on the 11th, one at 10:54 a.m. and the other at around 8:00 p.m., they were not sent from either computer (RA239-244). Several surveillance videos from local businesses did not show Jennifer driving on her regular route to Syracuse and did not corroborate defendant’s story about running from his residence to the YMCA (A199, RA190-191, RA200-222, RA367). The YMCA video system was consistent with the defendant entering its parking lot from the west, less than three hours after he claimed Jennifer left to go shopping in Syracuse, which was the direction where Jennifer’s van, cell phone, and body were subsequently discovered. Defendant resided in an easterly direction (RA212, RA330). Searches: Jennifer’s van was found, covered with dried mud, on December 16, about a mile from the YMCA (A156, A199, RA191, RA231-236, RA248). An examination of the van revealed several areas of blood, including on the interior driver door, in the driver’s compartment on the floor, on the interior of the front passenger door, and a larger stain in the rear of the van between the middle and rear seats on the floor (A156, A165, RA223, RA313). An extensive search for Jennifer, including interviews with those she communicated via the online game app, offered no other leads (RA137-8, RA178-83, RA314-315, RA324-5, RA562-3). And nobody in her neighborhood saw Jennifer leave her residence on the 11th, though someone did see the defendant with Sayles on the 10th (RA316-7). On February 26, 2013, Jennifer’s body was found dumped off the side of a seasonal road, a few miles from where the van was found (RA116-7, RA338). An examination of the body and a review of the weather conditions since Jennifer went missing were consistent with the body having been dumped there on December 11, 2012 (A137-140, RA148-150, RA153-155, RA158- 159, RA228-230, RA246-259). The medical examiner concluded that defendant’s wife did not die of natural causes, but was victim of a homicide based upon several pre-mortem injuries he found, including one demonstrating that she had been struck on her head (A136, RA146). Questioning of defendant after Jennifer’s body was found: Defendant was again questioned on March 22 and May 17, 2013, the latter resulting in his arrest. On March 22, defendant’s story deviated from what he told Cobb in December concerning the route he ran to the “Y” (RA321, RA370). He also stated that his wife usually slept naked (A188, RA603), confirmed Jennifer’s usual route she drove to Syracuse, (RA321), and claimed for the first time that his wife was taking drugs (RA322, RA433-434, RA447-453). 6 On May 17, defendant: ● admitted deleting information from November through December from his phone to clean up some memory, ● admitted asking Jennifer for a divorce throughout 2012, ● denied that Jennifer had any idea about his affair, including that Jennifer ever referred to Eileen as his “trophy wife”, ● claimed that Jennifer created and used additional email accounts, which could not be verified; defendant actually opened two accounts up for Eileen, under the name “Eileen Ramsaran”, ● waffled about the route he took to the “Y”, ● when confronted with Roper’s information that he was not working on the morning of the 11th, stated that it was “bullshit”, ● claimed that Jennifer could have taken several minutes getting her shoes on and leaving as a reason why her phone was still connected to the home WiFi at 10:57 A.M., ● stated that Jennifer was addicted to “that fucking game”, that she “was not a mother anymore”, that she did not do the cooking or house cleaning, and suggested that she was a drug addict. --RA323, RA326-335. Following defendant’s arrest and incarceration, he maintained a voracious appetite for Eileen, attempting to call her more than 2,000 times, speaking with her over 100 times, and ardently professing his desire for her. Throughout some of these calls, defendant also made known his distaste for overweight people, mocked the police, and told Eileen that Jennifer had confessed to the defendant in November of 2012 that she was having an affair, which he never shared with the police (A93-94, A130-131, A198, RA186-187, RA345-348). Scientific/DNA Evidence: Much of the blood found on the carpet of the van matched Jennifer’s DNA (A165). Other than finding a spot remover in the marital bedroom, an investigation within the marital residence from December 18-20 offered little in terms of any persuasive scientific determinations (SA1-5). There was a blood stain located on the arm of the sweatshirt worn by the defendant on the morning of Jennifer’s disappearance, which he donned when he arrived at the “Y” (RA276-285). The People’s DNA expert, New York State Police Crime Lab Forensic Scientist Daniel Myers, testified that the DNA of the blood on Mr. Ramsaran's sweatshirt was a mixture profile consistent with DNA from (defendant), admixed with DNA from at least one additional donor, with (defendant) being the major contributor. The minor contributor in this file was interpretable, and (Jennifer) cannot be excluded as a possible contributor to this profile. . . --A166-167, RA289-291, RA294-300. 7 Myers expanded upon this by explaining: It’s the probability of seeing the evidence if the two contributors were [defendant] and [Jennifer] versus the contributors being two randomly selected individuals from the population, is 1.661 quadrillion times more likely to be observed if these two individuals, [defendant and Jennifer], were the donors to the profile rather than if two randomly selected individuals were the donors. --A167. Defendant's case When defendant took the stand, he conveyed a tweaked story regarding the morning of the 11th from what he had shared with Cobb and Powell. Defendant maintained that Jennifer initiated sex that morning (A217-218), though he previously stated that they did not have sex for weeks and had discussed getting divorced. None of his DNA was recovered via the sexual assault examination of his wife's body (A169, RA288, RA510-511). He testified that after responding to email at 8:13 a.m., he subsequently started to transfer data, turned on and watched the television. So, “That's what happened that morning," he told the jury, adding, “Relaxing. See -- yeah, that's all I did” (A224, RA384-385, RA388). Regarding the morning of Jennifer’s disappearance, defendant: ● for the first time, stated that she was playing the online game on her phone, ● in a change from his prior statements but still contradictory to the testimony of Roper, who defendant conceded was a “legend” with his company, testified that he was actually off from work, though logged onto his laptop, ● maintained his wife left for Syracuse before he sent an email at 10:54 A.M. and suggested that she may have still been connected to the residential “Psycho” WiFi at 10:57 while she was pulling away from the house down their driveway. --RA488-497, RA534-535, RA538-540. Defendant claimed that he subsequently jogged to the “Y” from his residence (A227, RA391-396). While his testimony was consistent concerning the events that took place at the “Y” (RA410-406, RA501-502), defendant wavered concerning the actual route he took and claimed it was raining at the time of his run, which was not borne out by still shots from the retrieved surveillance videos (A227, RA391-400, RA498-501, RA553-556, RA604-5). Defendant could not understand why he was not observed on any of the business surveillance videos (RA497-498). Despite his penchant for working out and running marathons, defendant denied that he was physically strong enough to kill his wife (RA456-7). He otherwise denied much of the incriminating evidence presented against him, admitting only those things he could not deny (RA410, RA431-432, RA456-459, RA502-505, RA516-519, RA532, RA536-538, RA561-563). 8 Defense counsel’s trial strategy: Defense counsel demonstrated a strategy to warm up to jurors and avoid portraying his client as being on the defensive. This strategy did not limit his cross-examination of the People’s witnesses, including the People’s DNA expert, Daniel Myers. Defense counsel vigorously cross- examined Myers and elicited responses from Myers that reflected effective and zealous preparation (SA6-29). The prosecutor's summation and remarks concerning DNA evidence Throughout his summation of approximately 50 transcript pages (SA30-78), the prosecutor drew the jury's attention to the abundance of evidence demonstrating defendant’s guilt, commenting only three times about the DNA evidence found on defendant’s sweatshirt, the first mention of it being over half-way through his summation: Then the next day . . . they ask him for his clothes. He doesn't give them the shoes . . . Doesn't give them the hat. He gives them the sweatshirt. And on that sweatshirt is his wife's DNA and his DNA in an area where (the) blood stains (were) examined. --SA55-56. He more fully addressed it six pages later, while specifically citing to Myers’ testimony. And the DNA results came back, and you heard the expert . . . Mr. Myers was very specific. He did not give me any more nor any less. That is not an absolute match, the alleles. . . there's alleles there for Jennifer and the alleles are there for the defendant. And that they are there together. And what he said is that there is not enough alleles there to conclusively say that that is all of her DNA. He wouldn't say that. You need more alleles to say it was conclusively her. And it's mixed with his. But he did say that the chance of that amount of her DNA and those alleles being mixed with this defendant's DNA is 1.666 quadrillion as opposed to any other two people, I believe, on the planet. And I don't testify. That's in the report. That's what he testified. That shows that her DNA was on that area where the bloody spot is. --SA82-3 (emphasis added). The prosecutor proceeded to speak about the extensive contradictions in defendant’s testimony, before rehashing all of the testimony in an apparent attempt to avoid excluding any piece of evidence, which led to the following commentary: So what else do we have? We have the videos. We have Mr. Roper. We have Mr. Houston. We have the forensic people who says his DNA is on that sweatshirt and her DNA is on that sweatshirt, to some degree. And we have the defendant's testimony when he takes the stand. --SA66 (emphasis added). 9 In the remainder of his summation, the prosecutor reviewed the defendant’s testimony while on the stand, focusing much of his attention on defendant’s motive for killing his wife. He did not remark further concerning the blood on the defendant’s sweatshirt (SA67-78). Verdict and Sentence The jury found defendant guilty of Murder in the Second Degree (no lesser offense was submitted for their consideration), and on December 21, 2014, defendant was sentenced to 25 years to life in prison (A269, RA587-8). B. The Third Department's discussion of the prosecutor's remarks concerning the DNA analysis of defendant's sweatshirt. In the Appellate Division’s view, "the prosecutor repeatedly mischaracterized Myers' testimony and the DNA results by stating multiple times that Jennifer's DNA was on the sweatshirt.” 141 AD3d at 871. Citing to Wright, 25 NY3d at 771, the court held that “in light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding . . . the qualified nature of the test results, defense counsel's failure to object to the prosecutor's comments during summation, alone, rendered him ineffective." 141 AD3d at 871 (internal quotations and brackets omitted). ARGUMENT3 A. The remarks made by the prosecutor in the matter at bar could be inferred from the evidence presented during the trial, whereas the prosecutor in Wright was found to have sorely misstated the evidence. The testimony and evidence concerning the DNA found on the defendant’s sweatshirt were based upon a probability analysis. The People’s DNA expert here, New York State Police Crime Lab Forensic Scientist Daniel Myers (RA286-7), testified that the DNA of the blood on defendant’s sweatshirt was a mixture profile consistent with DNA from (defendant), admixed with DNA from at least one additional donor, with (defendant) being the major contributor. The minor contributor in this file was interpretable, and (Jennifer) cannot be excluded as a possible contributor to this profile. . . --A166-167, RA289-291, RA294-300. Myers further explained: It’s the probability of seeing the evidence if the two contributors were [defendant] 3 The People maintain and reserve arguments set forth in their appellate brief before the Third Department. 10 and [Jennifer] versus the contributors being two randomly selected individuals from the population, is 1.661 quadrillion times more likely to be observed if these two individuals, [defendant and Jennifer], were the donors to the profile rather than if two randomly selected individuals were the donors. --A167. Unlike in Wright, where the DNA testimony was, in pertinent part, that the defendant could not be excluded from the relevant evidence, the DNA testimony presented by Myers was presented in terms of probability. Given the DNA evidence here, the prosecutor’s scrutinized comments should not be characterized as misleading or as unfair inferences from the evidence tantamount to the closing summation by the Wright prosecutor that prompted reversal. In Wright, the relevant testimony was that the defendant and one of the co-defendants could not be excluded as contributors to DNA found on the victim and evidence associated with her murder. Yet the prosecutor “told the jury that the case could be decided based on common sense and science." 25 NY3d at 777 (internal quotations omitted). She further asserted, that defendant and Gifford left their DNA all over the crime then turned her focus to what she argued was the one constant of the DNA analysis: that defendant was the only matching contributor across several DNA samples. --25 NY3d at 777 (internal quotations omitted). This Court considered the remarks made by the prosecutor in Wright to be egregious misstatements of fact since the testimony actually garnered through three DNA experts (a) failed to ascertain with any certainty that Wright’s DNA was on the victim or any of the evidence connected to her murder and (b) was that the defendant and his accomplice could not be excluded as contributors to the DNA the prosecutor referenced throughout her summation. See 25 NY3d at 769. The Third Department in this case deemed three particular statements by the prosecutor to be so misleading as to warrant reversal owing to trial counsel’s failure to object to them: ■ "on that sweatshirt is [defendant's] wife's DNA" ■ the report "shows that [Jennifer's] DNA was on that area where the bloody spot is" ■ "We have the forensic people who say[] . . . [Jennifer's] DNA is on that sweatshirt, to some degree" -- 141 AD3d at 871. While the first of those three statements was uttered without additional comment (SA56), the second comment, when viewed in context, is a fair inference drawn from Myers’ testimony, which was accurately narrated by the prosecutor immediately prior to making that particular comment: There was a blood spot on this sweatshirt. It was examined for DNA. And the DNA results came back, and you heard the expert . . . Mr. Myers was very specific. He did not give me any more nor any less. That is not an absolute 11 match, the alleles. . . there's alleles there for Jennifer and the alleles are there for the defendant. And that they are there together. And what he said is that there is not enough alleles there to conclusively say that that is all of her DNA. He wouldn't say that. You need more alleles to say it was conclusively her. And it's mixed with his. But he did say that the chance of that amount of her DNA and those alleles being mixed with this defendant's DNA is 1.666 quadrillion as opposed to any other two people, I believe, on the planet. And I don't testify. That's in the report. That's what he testified. That shows that her DNA and his DNA in an area where (the) blood stains (were) examined. -- SA62-3 (emphasis added). Though it did not place the remark in complete context, the Third Department recognized that the prosecutor was potentially “asking the jury to make an inference from the evidence at trial." 141 AD3d at 871. While the court below noted the qualifier, “to some degree”, when reciting the prosecutor’s third comment, the court did not otherwise include the surrounding context. The whole of the prosecutor’s statement was as follows: So what else do we have? We have the videos. We have Mr. Roper. We have Mr. Houston. We have the forensic people who says his DNA is on that sweatshirt and her DNA is on that sweatshirt, to some degree. And we have the defendant's testimony when he takes the stand. --SA66 (emphasis added). This last remark is again not a statement that was intended to mislead the jury or to suggest that the DNA evidence is foolproof, but represents a reasonable inference from the DNA testimony. In Wright, this Court observed that while “the prosecutor was entitled to fair comment on the DNA evidence available in this case, she was not entitled to present the results in a manner that was contrary to the evidence and the science.” Wright, 25 NY3d at 782 (emphasis added). The prosecutor’s challenged remarks here were fair inferences he made and asked the jury to make based upon the evidence, and were not contrary to the evidence adduced at trial. Were it error and misconduct for the prosecutor in this case to argue that Jennifer’s blood was on the sweatshirt based upon the DNA evidence, a prosecutor would essentially be foreclosed from making any argument or inference during summation based upon any other type of circumstantial evidence. But as this Court firmly acknowledged in Wright, a prosecutor may indeed “ask the jury to draw reasonable inferences from the evidence presented at trial.” 25 NY3d at 784. Likewise in Matter of Gorghan v. DeAngelis, 7 NY3d 470, this Court, while addressing misconduct by the prosecutor, alluded to the propriety of a prosecutor making “supportable assertions.” 7 NY3d at 472. The prosecutor’s remarks here were supportable assertions-fair inferences based upon the evidence presented. Contrary to the rationale proffered by the court below, the prosecutor’s scrutinized 12 remarks were certainly not contrary to the evidence, could be fairly inferred from the evidence, and were counterbalanced by qualifications and entirely appropriate comment concerning the scientific evidence. B. Even if the Court were to conclude that the prosecutor's comments concerning DNA now in issue were improper, the Appellate Division order should be reversed and defendant’s conviction reinstated. Because those few remarks did not deny defendant a fair trial, the absence of defense counsel objection should not be deemed to constitute ineffective representation. The Third Department’s Wright-driven analysis failed to duly consider the impact of the prosecutor’s remark here upon defendant’s conviction or to otherwise put those remarks in context of the prosecutor’s overall summation. The court essentially concluded that a prosecutor’s summation that is not confined to verbatim quotes of DNA expert testimony, in and of itself, is grounds for finding that a defendant was deprived of a fair trial. The Wright Court found the trial prosecutor “relied heavily on the DNA evidence, and argued that the DNA established that defendant raped and murdered Jennifer.” 25 NY3d at 777- 778. As the dissenting Justices in the Fourth Department observed, "[n]otwithstanding the circumstantial and inconclusive nature of the above DNA evidence, the People presented it as their strongest proof linking defendant to the victim’s murder.” People v. Wright, 115 AD3d 1257, 1260. The Wright prosecutor asserted that the “defendant and (the co-defendant) left their DNA all over the crime," then turned her focus to what she argued was the one constant of the DNA analysis: that defendant was the only matching contributor across several DNA samples.” Id. Thereafter, the prosecutor made close to 10 additional remarks stating that either the defendant’s and/or the co-defendant’s DNA were found on the victim or on evidence directly connected to the victim’s murder. 25 NY3d at 777-8; 780-82; see also,115 AD3d at 1260-1. By contrast, the People presented an abundance of evidence circumstantially proving that Mr. Ramsaran killed his wife. After deftly summarizing the most germane aspects of the prosecutor's case, the Third Department rebuffed defendant's claims that the evidence was legally insufficient and that the verdict was against the weight of the evidence. 141 AD3d at 869. The significance of the blood found on the sweatshirt that defendant wore on the morning of his wife’s disappearance was but a negligible piece of the People's proof. Consequently, People v Wragg, 26 NY3d 403 (2015), decided by this Court subsequent to Wright, is more apt here than Wright. Specifically, this Court observed that “while . . . some of the prosecutor's summation remarks were inappropriate . . . the remarks were not so egregious that counsel's failure to object renders his overall representation constitutionally defective.” 26 NY3d at 411. Notably, this Court distinguished the prosecutor’s comments in Wragg from those in Wright, ● People v Fisher, 18 NY3d 964 (2012): where the prosecutor truly did make numerous inappropriate remarks in her summation by referring “in extended 13 fashion” (18 NY3d at 966), to prior consistent statements by the complainants that were not in evidence, by “advis(ing) the jury that it could view evidence of the complainants' contemporaneous misbehavior at school as proof that the crimes occurred” (Id.), by making misleading comments about any consideration one of the People’s witnesses was receiving for his testimony, and by “exhort(ing), the voice of a child is evidence . . . (t)he day that the voice of a child is not evidence is the day that those doors to the courtroom should be locked forever. -Id. at 967, and ● People v Ashwal, 39 NY2d 105(1976): where the prosecutor “convey(ed) the impression that (one of the People’s witnesses) was killed by those he had informed upon, one of whom was this defendant.” 39 NY2d at 110. Problematically, “there was nothing in the record to connect the defendant with the informer's death; nor was there even any evidence indicating that the death was the result of the informer's new found profession.” Id. As this Court observed, “any reference or speculative comment as to the cause or reason for his death was utterly gratuitous and, under the circumstances, could only have served to blur the issues and prejudice the jury against the accused.” -Ibid. In the matter at bar, the court below determined that two or arguably three misstatements of DNA evidence amounted to egregious conduct by the prosecutor that deprived defendant of a fair trial (Ramsaran, 141 AD3d at 870), and defense counsel was constitutionally deficient for not objecting to such remarks. This is clearly not how this Court has envisioned a prosecutor’s remarks or defense counsel’s performance be measured. The precept that, in order to reverse a conviction on the basis of prosecutorial misconduct, misstatements of the evidence by a prosecutor must be to such a degree as to deprive a defendant of a fair trial has been consistently applied by this Court. See, People v Riback, 13 NY3d 416, 423 (2009) (“After a certain point, though, the cumulative effect of a prosecutor's improper comments during summation may overwhelm a defendant's right to a fair trial”); People v. Calabria, 94 NY2d 519, 523 (2000) (“[t]he cumulative effect of such conduct substantially prejudiced defendant's rights”); See also, Fisher, 18 NY3d at 967; People v. Galloway, 54 NY2d 396, 401 (1981). There was certainly no deviation from this principle by this Court in Wright, finding that “defense counsel's serial failure to object to the prosecution's inaccurate and misleading descriptions of the DNA evidence during the People's closing constitutes a pattern of inexcusable mistakes . . . which denied defendant a fair trial.” 25 NY3d at 779. Even if deemed inaccurate or not fully representative of the DNA evidence, the prosecutor’s remarks here were simply not to such a degree as to deprive the defendant of a fair trial. As the prosecutor’s statements did not deprive defendant of a fair trial, there was no basis for finding defense counsel ineffective when he did not object to those comments. In reversing the conviction in Wright, this Court specifically commented, 14 We do not base our decision on defense counsel's failure to object to an isolated, insignificant, albeit erroneous, statement by the prosecutor. As our discussion makes clear, the prosecution's summation contains numerous misrepresentations of the evidence. The apparent intent was to persuade the jury that the DNA established that defendant had committed the rape and murder, when the evidence did not, and could not, dispositively establish his guilt. --25 NY3d at 784. The prosecutor’s summation in the present matter does not evince that same intense effort to persuade the jury that the DNA dispositively established defendant’s guilt. Instead, the prosecutor here spoke at substantial length concerning defendant’s obsession with his paramour and his future plans with her. He then focused on the timeline of Jennifer’s disappearance, on the contradictions wrought in defendant’s statements and testimony, and on the location of Jennifer’s body, cell phone, and van, in correlation with the “Y”, where defendant arrived less than two hours after his wife’s phone was last connected to the marital residence’s WiFi. The prosecutor otherwise sought to fairly deliver the DNA evidence, providing a nigh verbatim quote of the expert’s testimony, just prior to making one of the remarks criticized by the Third Department. Moreover, ● the prosecutor invited the jury to undertake a first-hand review of the DNA evidence while deliberating and cautioned the jurors that what he said should not be considered as evidence (SA31-33, SA38, SA48, SA63). ● the court instructed the jurors that what the attorneys said in closing argument is not evidence (SA79), and jurors are presumed to have followed judicial instructions. See, e.g., People v. Guzman, 76 NY2d 1, 7 (1990); People v Baker, 10 NY3d 266, 274 (2010). And finally, based upon his overall performance, it can only make sense that defense counsel made a conscious decision not to interpose objections he deemed could alienate the jury. Surely, objecting to a point that could easily be inferred (i.e., that Jennifer’s blood was on defendant’s sweatshirt) was grounded in his trial strategy of winning over the jurors, as opposed to being ineffective or otherwise ill-prepared. See, People v King, 27 NY3d 147, 159-160 (2016); People v Gross, 26 NY3d 689, 696 (2016). . In the matter now at bar, it cannot be said that the prosecutor’s fleeting remarks “tipped the scales” (See, 115 AD3d at 1262) in the People’s favor or were so detached from Myers’ testimony that the comments were intended to mislead the jury, thereby depriving defendant of a fair trial. Similarly, his statement did not “potentially divert() the jurors from their obligation to consider defendant's guilt or innocence.” Riback, 13 NY3d at 422. This case is clearly not one evincing an intent by the prosecutor “to persuade the jury that the DNA established that defendant had committed the . . . murder.” Wright, 25 NY3d at 784. At worst, the remarks were isolated missteps in the prosecutor’s summation. In either event, the comments are a far cry from a “willful and repeated mischaracterization of (the) evidence.” Id. 15 C. Defense counsel’s representation was not otherwise constitutionally deficient. The court below concluded that “other trial errors by defense counsel, when taken as a whole, lend additional support to defendant's contention that he was deprived of the effective assistance of counsel.” 141 AD3d at 871. The court specifically addressed defense counsel not objecting to background information about Jennifer or testimony concerning the defendant’s attitude towards marriage and his “general demeanor.” 141 AD3d at 871. While, as the appellate division observed, an objection to such testimony could have been successful, it does not translate that it was error for defense counsel not to object to such testimony. Defense counsel maintained an obvious strategy throughout the trial of engaging the jurors and presenting his defendant in a straight-forward light to the jury. Defense counsel presented a defense that, while his client may not have been the most likeable guy to many, the defendant did not commit murder and that the proof was insufficient to establish that he was guilty beyond a reasonable doubt. To object to testimony concerning Jennifer’s background and defendant’s “general demeanor” and attitude, would clearly have undermined that strategy. See, King, 27 NY3d at 159-160. In its analysis, the court below also failed to consider the purpose of the testimony concerning Jennifer and defendant. Throughout the investigation of the defendant, he was portraying Jennifer as a drug and game addict, who was sleeping around with other men. It was certainly incumbent upon the prosecutor to present testimony that contradicted the defendant’s position in this regard and otherwise illuminated the context of the party’s marriage. Likewise, the defendant’s “general demeanor” and attitude towards marriage was relevant background information of their marriage, also reflecting the defendant’s motive and intent in killing his wife. Very arguably, such evidence was more relevant than prejudicial, making any objection by defense counsel susceptible to being overruled. Lastly, even if “defense counsel’s summation left something to be desired, it made clear [what] the defense was” (People v. Jones, 55 NY2d 771, 773 [1981]): that the People did not prove beyond a reasonable doubt that the defendant murdered his wife. SA80-146. See also, People v. Benevento, 91 NY2d 708, 711 (1998) (“counsel's summation reiterated the primary strategy of the defense”). As “the actions of defense counsel of which defendant now complains could be attributed to tactical trial decisions …, defendant has failed to establish that he was denied his constitutional right to effective assistance of counsel.” People v. Ryan, 90 NY2d 822, 823-824 (1997) (citations omitted). 16 CONCLUSION The Third Department erred in ordering reversal on the primary ground that defense counsel did not object to three of the prosecutor’s comments during summation concerning the DNA evidence found on defendant’s sweatshirt. Unlike the prosecutor in Wright, his comments in summation concerning the DNA evidence were fair comment on the evidence, were not presented as the linchpin of the People’s case, and did not otherwise result in denying the defendant of a fair trial. For all these reasons, it is respectfully requested that the Appellate Division, Third Department’s order be reversed and defendant’s conviction be reinstated in its entirety. With deep thanks for your courtesy and attention, I am Most respectfully yours, Michael J. Genute Assistant District Attorney