The People, Appellant,v.Ganesh R. Ramsaran, Respondent.BriefN.Y.June 20, 2017 To be argued by: Michael J. Genute (10 Minutes) App. Div. Case No. 108003 Supreme Court of the State of New York Appellate Division: Third Department THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, - against - GANESH RAMSARAN, Defendant-Appellant. BRIEF FOR RESPONDENT JOSEPH A. McBRIDE DISTRICT ATTORNEY, CHENANGO COUNTY Attorney for Respondent The Eaton Center 26 Conkey Ave. Box 126, 2nd floor Norwich, NY 13815 (607) 337-1745 MICHAEL J. GENUTE ASSISTANT DISTRICT ATTORNEY Of Counsel Chenango County Indictment No. 2013–57 i TABLE OF CONTENTS TABLE OF CASES.................................................................................................................... ii STATEMENT OF THE CASE ..................................................................................................1 LEGAL ARGUMENT POINT I. THE JURY'S VERDICT RESTS ON OVERWHELMING EVIDENCE AND SHOULD NOT BE DISTURBED. ......................13 POINT II. THE PEOPLE INTRODUCED HIGHLY PROBATIVE TESTIMONY, INCLUDING JAIL PHONE CALLS AND PHOTOGRAPHS, DOCUMENTING DEFENDANT’S MOTIVE TO KILL HIS WIFE. ................................20 POINT III. THE LOWER COURT MADE APPROPRIATE EVIDENTIARY RULINGS THROUGHOUT THE TRIAL. ............................................................................................25 POINT IV. DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL WAS NOT ABRIDGED BY EITHER THE PRO HACE VICE ADMISSION OF A DULY LICENSED NEW JERSEY ATTORNEY NOR THE LAWYER'S PERFORMANCE AT TRIAL ..............................................................................................40 CONCLUSION .........................................................................................................................50 ii TABLE OF CASES Federal Cases Chambers v Mississippi, 410 US 284 (1973) Elfgeeh v United States, 681 F2d 89 (2d Cir), cert denied, 113 SCt 671 (2012) Holmes v South Carolina, 547 US 319 (2006) Kieser v New York, 56 F3d 16 (2d Cir 1995) State Cases Matter of Garcia, 167 NJ 1 (2001) People v Abraham, 94 AD3d 1332 (3 Dept. 2012) People v Alexander, 109 AD3d 1083 (4 Dept. 2013) People v Anderson, 256 AD2d 413 (2 Dept. 1998) People v Bahr, 96 AD3d 1165 (3 Dept. 2012) People v Baldi, 54 NY2d 137 (1981) People v Banks, 14 AD3d 726 (3 Dept. 2005) People v Baston, 181 AD2d 786 (2 Dept. 1992) People v. Benevenuto, 91 NY2d 708 (1998) People v Benn, 68 NY2d 941 (1986) People v Benzinger, 36 NY2d 29 (1974) People v Berry, 110 AD3d 1002 (2 Dept. 2013) People v Bierenbaum, 301 AD2d 119 (1 Dept. 2002) People v Bliss, 283 AD2d 251 (1 Dept. 2001) People v Borthwick, 51 AD3d 1211 (3 Dept. 2008) People v Brito, 304 AD2d 320 (1 Dept. 2003) People v Brooks, 134 AD3d 574 (1 Dept. 2015) People v Brown, 252 AD2d 598 (3 Dept. 1998) People v Brown, 98 NY2d 226 (2002) People v Burkett, 101 AD3d 1468 (3 Dept. 2012) People v Cintron, 95 NY2d 329 (2000) People v Colon, 102 AD3d 705 (2013) People v Conway, 297 AD2d 398 (3 Dept. 2002), lv denied 99 NY2d 581, (2003) People v Crimmins, 36 NY2d 230 (1975) People v DiPippo, 2016 NY Slip Op 2279 (March 29, 2016) People v Dlugash, 41 NY2d 725 (1977) People v Dolan, 172 AD2d 68 (3 Dept 1991) People v Donohue, 229 AD2d 396 (2 Dept. 1996) People v Eberle, 265 AD2d 881 (4th Dept 1999) People v Elwood, 80 AD3d 988 (3 Dept. 2011) People v Ely, 164 AD2d 442 (3 Dept. 1990) People v Evans, 81 AD3d 1040 (3 Dept. 2011), lv denied 16 NY3d 894, (2011) iii People v Fitzpatrick, 40 NY2d 44 (1976) People v Gallo, 12 NY2d 12 (1962) People v Gamble, 18 NY3d 386 (2012) People v Greene, 13 AD3d 991 (3 Dept. 2004) People v Greene, 13 AD3d 991 (3 Dept. 2004) People v Hecker, 15 NY3d 625 (2010) People v Hobot, 84 NY2d 1021 (1995) People v Hogencamp, 295 AD2d 643 (3 Dept. 2002) People v Hood, 279 AD2d 699 (3 Dept. 2001) People v Inniss, 83 NY2d 653 (1994) People v Isla, 96 AD2d 789 (1 Dept. 1983) People v Johnson, 49 AD3d 664 (2d Dept 2008) People v Kieser, 79 NY2d 936 (1992) People v King, 2016 NY Slip Op 2278 (March 29, 2016) People v Langlois, 17 AD3d 772 (3d Dept 2005) People v LaValle, 3 NY3d 88 (2004) People v Lluveres, 15 AD3d 848 (4th Dept 2005) People v Love, 57 NY2d 998 (1982) People v Love, 57 NY2d 998 (1982) People v Massie, 2 NY3d 179 (2004) People v Mateo, 2 NY3d 383 (2004) People v McCray, 102 AD3d 1000, 1009-1010 (3d Dept. 2013) People v McDowell, 125 AD3d 577 (1 Dept. 2015) People v McDowell, 125 AD3d 577 (1 Dept. 2015) People v Melendez, 55 NY2d 445 (1982) People v Miles, 36 AD3d 1021 (3 Dept. 2007) People v Monroe, 6 AD3d 240 (1 Dept. 2004) People v Montgomery, 22 AD3d 960 (3 Dept. 2005) People v Morin, 192 AD2d 791 (3 Dept. 1993) People v Murphy, 128 AD2d 177 (3 Dept. 1987), affd. 70 NY2d 969 People v Nunez, 223 AD2d 507 (1 Dept. 1996) People v Olibencia, 45 AD3d 607 (2d Dept 2007) People v Oxley, 64 AD3d 1078 (3d Dept 2009) People v Person, 8 NY3d 973 (2007) People v Pham, 118 AD3d 1159 (3 Dept. 2014) People v Pobliner, 32 NY2d 356 (1973) People v Pobliner, 32 NY2d 356 (1973) People v Pollard, 70 AD3d 1403 (2010) People v Primo, 96 NY2d 351 (2001) People v Reyes, 62 AD3d 570 (1 Dept. 2009) People v Rivera, 71 NY2d 705 (1988) People v Rivers, 18 NY3d 222, 228 (2013) iv People v Rodriguez, 85 NY2d 586 (1995) People v Rojas, 97 NY2d 32 (NY 2001) People v Scruggs, 111 AD3d 966 (2d Dept 2013) People v Setless, 213 AD2d 900 (3 Dept. 1995) People v Stanford, 130 AD3d 1306 (3d Dept. 2015) People v Stevens, 76 NY2d 833 (1990) People v Thibeault, 73 AD3d 1237 (3 Dept. 2010) People v Thompson, 34 AD3d 852 (2 Dept. 2006) People v Thompson, 111 AD3d 56 (2d Dept 2013) People v. Thompson, 21 N.Y.3d 555 (2013) People v Turner, 37 AD3d 874 (3 Dept. 2007) People v Valderrama, 285 AD2d 902 (3 Dept. 2001) People v Vanterpool, 143 AD2d 282 (2 Dept. 1988) People v Walker, 285 AD2d 364 (1 Dept. 2001) People v Wieber, 202 AD2d 789 (3 Dept. 1994) People v Williams, 29 AD3d 1217 (3 Dept. 2006) People v Williams, 64 AD3d 734 (2d Dept 2009), aff'd 16 NY3d 480 (2011) People v Wilson, 71 AD3d 799 (2 Dept. 2010) People v Wlasiuk, – AD3d –, 24 NYS3d 787 (3d Dept 2016) People v Wragg, 26 NY3d 403 (2015) People v Wrotten, 14 NY3d 33 (2009) Strickland v Washington, 466 US 668 (1989) Winfield v United States, 676 A2d 1 (DC Cir 1996) 1 STATEMENT OF FACTS Overview 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). Seemingly unbeknownst to her, defendant embarked on a torrid affair with her best friend, Eileen Sayles, earlier that year, the level of which was documented through several communications between defendant and Eileen, as well as through Eileen’s testimony (A84-85, A97, RA341-342, RA344-345, RA474, RA480-482, RA540-541, RA541-542, RA542, RA542-543, RA445, RA461-462). Although defendant was undeniably attracted sexually to Eileen, his passion soon led him to regard her as his "soul mate", (RA73-74), and he became obsessed with the prospect of making her his wife and raising each other’s children together, with the hope that his new family would live in his current house (RA23 A14-15, A18-19 RA24, A21 RA25-267, RA29, RA34-35, A84 -85, RA71-74, RA378-379). Divorce from Jennifer would be a very costly proposition, he was told by his best friend about four weeks before the murder, especially since it was very likely that Jennifer would end up with custody of their three children. (RA268, RA269-275). But defendant was also aware that he was the sole beneficiary of his wife's $200,000 life insurance policy (RA268, A161, RA551-552). Nine days before his wife disappeared from the face of the earth, defendant pledged to Eileen on December 2, 2012 that he would have done anything and everything for them to be together in an email after she moved back in with her husband: I know you are going to do this anyway, so go ahead and please leave the iPhone and the money I gave you as an investment in our future in the green van under the driver's seat when you come over tomorrow to pick up the last of your stuff. Please also return the dresses and stuff that I gave you because knowing that you will be wearing that stuff for your husband that will be f---ing absolutely destroys me. Why or how you think this would work out with you f---ing your husband 2 again and using me as toilet paper and flushing me down the toilet feels great. If I ever see you at school, winter concert, et cetera, do not look at me, just look away. Nothing else to say. Have a great life with your husband that you chose over me. Enjoy f---ing him. And always remember you did this by lying and not talking to me with your choices. I was the only one totally blind-sided. Thanks again for that. You know I would have done everything and anything for you and for us to be together. But you used me . . . and flushed me. Whenever you think of this, think of how you lied and did not talk to me the way you made your choices in moving back in with him after everything he did to you and he said. Don't ever think of me again. 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 that day at 8:27 A.M. when a screen shot was taken (A195). Prior to posting that screen shot, she was engaged in an online game communicating with a 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 – where 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 home because he was too cold to jog back home (RA70-71, RA83-84, RA212, RA191, RA312-313). He then called Sayles who drove him home, but defendant, despite never passing up a sexual escapade with Eileen (RA92-93 A84), remarkably failed to invite her into his residence (RA92- 93 A84). While he initially reported that Jennifer left to go shopping between 9-10 A.M. (542- 4), her phone remained connected to the residential wi-fi until 10:57 AM. (RA260-261, RA262- 267, RA360-361). After hysterically reporting his wife missing minutes beyond her expected return time (RA17-19, A11, A13 RA13, RA17-19, RA13, RA38, A52, RA507a), though he did not even mention it in a phone call to his close friend until several minutes into the call (RA22, RA31 3 A23, RA32), defendant spoke with officers the next morning about locating his wife’s phone (A25, A95-96). In his initial discussions with officers from the New Berlin Police Department on the evening of the 11th and morning of the 12th, defendant claimed his marriage was a “perfect” one and that something terrible happened to his wife (A11-13, RA19-21, RA36-37; RA38, RA46, RA48, RA49, RA52, RA54-55, RA49). Following defendant’s representations that he was unsuccessful in using the Find My Iphone App to locate his wife’s phone the previous evening, the app suddenly worked when he was at the New Berlin Police Department on the morning of the 12th (A25). The signal from the app showed the phone to be located in Plymouth, at Moon Hill and State Highway 23 (A25), prompting defendant to quickly announce, “Oh my God, something terrible has happened, there’s water there” (A25 RA39). As it turned out, the phone was located a short distance from the where van was eventually found in the area of a creek bed (RA45, RA114-115). Following a lengthy and unsuccessful search for the phone or the victim’s van by several officers the next morning, defendant was quickly able to locate the phone once he traversed to the area the same day (A12-13 RA13-16, A28 RA44-45, RA112-115). Other than having some smudge marks on it, the phone was not damaged and was in good condition (RA45, RA114-115, RA118-119, RA184-185, RA358-359). Defendant was interviewed by Chenango County Sheriff Detective Kevin Powell on December 12 and 15 and by Lieutenant Richard Cobb on the 17th of December. Throughout these interviews, he was inconsistent as to the time when his wife left their home (initially stating 9-10 A.M. and later stating 10-11 A.M.) and whether he or his wife had dropped their children off at school that morning (A128-129, RA136, RA189, RA193-195, A187). 4 In his meeting with Powell on the 12th, defendant stated that while his marital relationship had been bad in the past, it had been a little better (RA120-123, RA134-135), that the victim would never leave her children (RA184), and that he had been in a 10 month sexual relationship with Sayles (RA123, RA135). Other than being very calm and not crying in his interview with Powell on the 15th, defendant frequently cursed about the game that his wife often played, though he never mentioned her being on the game on the morning of her disappearance (A129). Defendant otherwise represented that Sayles had returned to her husband and that the affair was over (RA126 A128, RA170). Defendant denied having sex with Sayles over the last four or five months (1009), and did not mention having had sex with Sayles on the 10th, the day before his wife went missing (A128, RA132). With Powell and Cobb, defendant consistently represented that he was working in the morning and logged onto his work computer (A128-129, RA136, A199, People’s Exhibit 208), while his wife worked out and showered, before leaving to go shopping (A128-129, RA136, A187). The defendant’s behavior the days and then weeks following his wife’s disappearance was anything but that of a husband concerned about his missing wife (A39-40, A42, A55-56, RA65-66, RA417-418, RA422, RA508-509, RA528). He never went looking for his missing wife (A39-40, A53-54, A67 RA69, A88 RA94, RA414-416, RA416, RA417-418, RA436, RA443-444, RA506-507, RA513-514, RA525-526, RA529-531, A228 RA396, RA435-436), and told his best friend not to fly up and help look for her (RA22, A22 RA27-29, RA374). He sought to convince 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 otherwise implied she was sleeping around (A42 RA56, A47 RA57, A53, A55, RA63-64, RA66-67, A67, RA79, RA101 A98, RA140-141, RA420-421, RA446, RA419, RA447-453). And four days after his 5 wife was supposedly missing, he was approaching his girlfriend’s father advising of his sexual relationship with Sayles, describing the two of them as soul-mates, seemingly more concerned about his relationship with Sayles than his missing wife (RA71-74, RA75-76, RA42-44, RA526- 527). His wife’s van was found a few days after his wife went missing, but not before defendant twice guided his father-in-law past the van, which was in plain sight from the road parked in an apartment complex (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 making sexual overtures to a concerned female acquaintance, Autumn Arotsky, who was checking in on him out of concern for his missing wife (RA77-78, RA80-82). Through a warrant search of defendant’s residence from Dec 18-20, several items were obtained and tested for fingerprints and blood, including a bottle of spot remover on defendant’s dresser in the master bedroom and a stain on the mattress in the master bedroom; forensic testing of most proved negative or inconclusive (RA223a, RA224, RA311, RA313a). Defendant’s sweatshirt and the bed sheets on the bed in the master bedroom, however, turned up positive for blood or the possible presence thereof (RA276-279, RA280-285). Also, the DNA of the blood on defendant’s sweatshirt (RA341), 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 (the victim) cannot be excluded as a possible contributor to this profile. . . --A166-167, RA289-291, RA294- 300. In terms of probability when discussing the stain on the sweatshirt defendant was wearing on the day of his wife’s disappearance, New York State Police Crime Lab Forensic Scientist Daniel Myers explained as follows (RA286-287): 6 It’s the probability of seeing the evidence if the two contributors were [defendant] and [the victim] 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 the victim], were the donors to the profile rather than if two randomly selected individuals were the donors. --A 167. After a few weeks, defendant was looking to re-establish his relationship with Eileen, with whom he had sex ONE day before his wife 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). The victim’s body was eventually found on February 26, 2013 outside the City of Norwich in the Town of Pharsalia (RA124-126 , RA117, RA228). The autopsy report was completed on February 27, and the death was ruled a homicide on May 20, 2013 (RA156-157, RA593-601). The defendant was indicted for Murder in the Second Degree by the Grand Jury on May 23, 2013. The trial began on September 2, 2014. The People’s evidence concerning the morning of December 11: There were several evidentiary pieces that led Chenango County Sheriff Lieutenant Cobb to question defendant’s activities on the morning of the 11th (1802-4). In particular, the victim was communicating with an internet friend from England, Rob Houston, through an online game she played on her phone when 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” (RA127, RA128, RA131, A149 RA161, 1136-9, RA310, RA357). The game app just showed that she was offline (A151). This was all the more odd, as the two had become acquainted in August of 2012, became more intimate since October, and the victim never left the game without explaining why she was leaving (RA161-163, A151-152, RA167-168). In fact, before she disappeared the victim sent Houston an item of underwear for 7 Christmas (RA163, RA164-165). And Houston sent the victim $150.00 through Western Union for the victim to buy herself a present for Christmas (A150). And before she suddenly disappeared from the game, the victim expressed her intent to go to the nearest Western Union to collect the money and that she was going to go shopping with Sayles in Syracuse later in the week, one of the reasons being that she did not feel her vehicle was in good mechanical condition (A150-151, RA165-166). The next day, Houston noticed that all of the history of the communications and the voice messages disappeared, even though Houston did not delete them (A153). The victim never made it to Western Union (RA169). Despite defendant’s initial claims that the victim left their house between 9:00 and 10:00 A.M and subsequent claims that she left before he sent an email at approximately 10:53 A.M., the victim’s phone was still connected to defendant’s “psycho” network at 10:57 A.M. (RA260- 261, RA262-267, RA360-361). In this regard, the victim’s phone would not have connected to the “psycho” network at the marital residence if she was more than a couple hundred feet from the residence, at best (RA265-266). And Lieutenant Cobb offered testimony contradicting that defendant made any efforts to locate his wife’s phone on the evening of his wife’s alleged disappearance (RA322-323). Contrary to defendant’s several 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 Forensic Investigations for all of IBM (RA236-237), 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 only a minute or two to initiate (RA233-235; RA238 A158-159). And while two brief emails were sent on the 11th, one at 10:54 a.m. and the other at around 8:00 8 p.m., they were not sent from either computer (i.e., they could have been by any electronic device with a capacity to use email) (RA239-241, RA242-244). And finally, the People introduced several videos from local business which did not show the victim driving on her regular route to Syracuse (RA199), and which failed to lend any corroboration of defendant’s story about running from his residence to the YMCA (RA200-201, RA202-203, RA204-205, RA206-211, RA213-215, RA216, RA217-219, RA220-221, RA222, RA190-191, RA1803, A199). Searches: The victim’s van, when it was found on December 16th about a mile from the “Y”, was covered with dried mud (A199 RA191, A156, RA231-232, RA233-234, RA236, 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 RA223, RA313). Cobb testified to the extensive search that took place for the victim, which included forest rangers, conservation officers and about 25 investigators, a K-9 search and rescue group, as well as helicopters (RA314-315, RA325). Powell and Cobb followed up on any other people who communicated with the victim through the game app in which the victim and Houston communicated (RA137-138; RA178-183). Houston was the only one with any information concerning the victim (RA324). Cobb was unable to identify any other possible person who would have wanted to do harm to the victim (RA324-325), which included follow-up on a Rob Smith, from England, whom defendant mentioned as messaging with his wife (RA182-183, RA562-563). 9 Cobb otherwise explained how the victim’s neighborhood was canvassed during the week of the 17th for anyone who saw the victim leave on the 11th, but nobody had seen her leave the residence (RA316-317). Cobb noted, however, that someone did see defendant with Sayles on the 10th, the day before the victim went missing (RA317). On February 26, 2013, the victim’s body was found dumped off the side of a seasonal road in Pharsalia, a few miles from where the van was found (RA116, RA117, RA338). An examination of the body and a review of the weather conditions since the victim went missing was consistent with the body having been dumped there on December 11, 2012 (RA148-150 AA137-139, RA153-155 A140, RA158-159, RA228, RA230, RA228-229, RA246-253, RA254- 259). The medical examiner otherwise opined that defendant’s wife did not die of natural causes, but was the victim of a homicide based upon several pre-mortem injuries he found, including one demonstrating that she had been struck in her head. (A136, RA146). Defendant was again questioned in March and May of 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). During this interview, defendant also told Cobb that his wife usually slept naked (A188, RA603), confirmed the victim’s usual route she drove to Syracuse, (RA321), and claimed for the first time to Cobb that his wife was taking drugs (RA322, RA433-434, RA447-453). Cobb again interviewed defendant on May 17th with Powell. During this interview, defendant admitted for the first time that he deleted information from November through December from his phone to clean up some memory (RA323). Confronted with information contradicting that he was working on his laptops on the morning of the 11th, defendant stated that Roper was wrong and that it was “bull shit”, claiming for the first time that the victim could have 10 taken several minutes getting her shoes on and leaving as a reason why her phone was still connected to the home wi-fi at 10:57 A.M. (RA371a-b). Defendant continued to waffle about the route he took to the “Y” (RA326-329). In this regard, Cobb noted in his testimony that the defendant lived on the east side of the city, yet approached the YMCA from the west side, which is the same side or end where the victim, her phone, and her van were located (RA330). For the first time on May 17th, defendant advised the investigators that he asked the victim for a divorce in April, September, and in June of 2012 (RA331). Defendant claimed that the victim created and used additional email accounts (RA331-332); Cobb was unable to verify this (RA332). On the other hand, defendant actually opened two accounts up for Sayles, under the name Eileen Ramsaran (RA332). Defendant otherwise denied that the victim had any idea about him and Sayles, including whether the victim ever referred to Sayles as his “trophy wife.” (RA334). Cobb noted that defendant became “upset, bordering on irate a couple of times, sarcastic once or twice” during the interview (RA333). He also noted that defendant was completely different than in Cobb’s “prior dealings with the defendant where he was much more upbeat” (RA333-334, RA441-442). During the interview, defendant suggested that the victim was a drug addict, addicted to “that fucking game”, that she “was not a mother any more”, and that she did not do the cooking or house cleaning (RA334-335). Throughout all of his interviews, defendant never mentioned that his wife was playing the online game on the morning of the 11th (A129, A188). In response to the accusation that he killed his wife, defendant responded that “I never harmed my wife” and repeatedly asked how she was killed (RA336-337). When told that he was under arrest, defendant refused Cobb’s directives to sit down for several seconds, standing face to face with Cobb (RA337). 11 Following defendant’s arrest, he maintained a voracious appetite for Eileen: he tried calling her from the jail more than 2,000 times and actually spoke with her over 100 times, with defendant ardently professing his desire for her (A93-94, A130-131, RA186-187, RA345, A198, RA346-1748, People Ex. 273). Throughout at least some of these calls, defendant also made known his distaste for overweight people, mocked the police, and told Eileen that the victim had confessed to the defendant in November of 2012 that she was having an affair, though he never shared this alleged statement with the police (Id.). Defendant's case When defendant took the stand, he conveyed a similar, but tweaked, story of the morning of the 11th that he previously provided to Cobb and Powell. Defendant maintained that the victim initiated sex on the morning of the 11th (A217-218), even though he previously stated that they did not have sex for weeks and discussed getting divorced; moreover, none of his DNA was recovered from the victim via the sexual assault examination kit (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” (A 224, RA384-385 RA388). For the first time, he acknowledged that she was playing the online game on her phone (RA490-493), which he acknowledged in interviews (A129, 1696-7) and, to a lesser degree, on the stand was a source of tension between them (RA489-490, RA535). While he acknowledged stating in prior interview(s) that he was working on the morning of the 11th (RA534-535), he testified that he was actually off from work, though logged onto his laptop. Roper, however, testified that he had ascertained no keys were struck on the computer from 8:08 A.M. until much 12 later in the day (RA488-490, RA494, RA534-535). On the stand, defendant 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” wi-fi at 10:57 while she was pulling away from the house down their driveway (RA495-497, RA538-540). Defendant claimed he then went for a jog to the YMCA (A227, RA391-392, RA393- 396). While his testimony was consistent concerning the events that took place at the “Y” (RA410-404, RA405-406, RA406a-e, 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 retrieved surveillance videos in the neighborhood (A227, 2019-RA391-392, RA393- 396, RA397, RA398-399, RA400, RA498-501, RA553-556, Ex. 283-4). Defendant could not understand why he was not observed on any of the business surveillance videos (RA497-498). He denied that: Wicks informed him of the financial consequences of getting a divorce (RA518- 519); he made light of her disappearance when communicating to a Facebook friend (RA561); he told anyone he had the perfect marriage (2069, 2297-8); he made an advance towards Arotsky (RA431-432, RA532); his and his wife’s DNA could have been on the sleeve of his sweatshirt (RA536-538), that he was physically strong enough to kill his wife, that he did not use the Find My Iphone App to find his wife’s phone until the morning of December 12th (RA456- 459), and that he deleted his wife’s Apple account (RA502-505, RA563). Verdict: Following testimony by the People and defendant, summations, the jury charge, and the jury’s request for Myers' DNA report from the carpet and bed in the house and photos identifying those locations, along with the DNA report from the sexual assault kit, defendant was found guilty of the lone count in the indictment, Murder in the Second Degree. PL 125.25(1) 13 (RA573-8, A269). On December 21, 2014, defendant was sentenced to 25 years to life (RA587- 8). LEGAL ARGUMENT POINT I THE JURY'S VERDICT RESTS ON OVERWHELMING EVIDENCE AND SHOULD NOT BE DISTURBED. (Answering Appellant’s Point VI) That defendant killed his wife on the morning of December 11, 2012, was established by not only the weight and sufficiency of evidence, but by overwhelming evidence. Perhaps the most compelling evidence that defendant killed his wife emanates from the evidence presented by the People concerning the morning of the 11th at the marital residence. For starters, defendant was the last known person with the victim. The last use of the victim’s phone was the seemingly random screenshot at 8:27 A.M. This was several minutes after she strangely stopped communicating with Rob Houston through her online game at approximately 8:15 A.M., prompting Houston to send her several messages, the last one being at approximately 8:30 A.M. (A151-152, RA368). And despite defendant’s statements that she left much earlier, her phone was still connected to the residential “psycho” wi-fi at 10:57 A.M. Mysteriously, all of the communications the victim had with Houston through the online game, including voice messaging, were deleted the next day, and Houston testified that he did not delete any messages. And in one of her communications with Houston, she stated an intention to go shopping in Syracuse later in the week, not that morning and not in her own vehicle. 14 Defendant’s animated behavior at the “Y” in announcing that his wife went to Syracuse and that he was calling her for a ride home was nothing short of incredible. As the evidence would show, from the location of where his wife’s body was dumped, to where her phone was placed, to where her van was left, and to the YMCA where defendant entered from the east, as opposed to the west, which he initially claimed, is a convenient and fairly direct path (RA602). The testimony of Dr. Stoppacher, the chief medical examiner in Onondaga County who performed the autopsy on the victim, in combination with that of Wesley Jones concerning the weather, was consistent with the People’s theory that defendant killed his wife on December 11, 2012, and dumped her body over an embankment along Center Road in Pharsalia. And the DNA evidence concerning the blood on the sleeve of defendant’s sweatshirt he wore on the morning of his wife’s disappearance, being 1.661 quadrillion times more likely to be observed if it was a combination of the defendant’s and victim’s versus two randomly selected individuals, is nothing short of compelling. With all of this, the People provided the jury with a plethora of evidence to support the finding that defendant murdered his wife. As to Motive: Defendant claims that he had little to no motive to kill his wife. While the People elicited evidence of defendant’s obsession with Eileen, defendant vaguely remarks about this evidence in his argument concerning motive. See, Appellant’s Brief, p. 46. To the contrary, just nine days before his wife was murdered, defendant told Eileen that he would have done “anything and everything” to be with her. A day before his wife disappeared, defendant was having a sexual rendezvous with Eileen. Days after his wife was killed, defendant was spending time with Eileen. Weeks after his wife was missing, defendant was encouraging Eileen to move in with him. For months, defendant was carrying on an impassioned affair with Eileen, who, according to the 15 victim, was the “trophy wife” defendant desired. The evidence also reflected that defendant had spurned his wife, in part due to her weight, and wanted a divorce. Ultimately, defendant was greatly motivated to rid himself of his wife and to be unimpeded with Eileen and “(t)he jury was entitled to consider whether this relationship motivated the murder.” People v Pobliner, 32 NY2d 356, 371 (1973). “Certainly, it was relevant to show that defendant’s relationship with his wife was not a close affectionate one which might negate a motive to murder.” Id. While defendant denied it, defendant’s best friend, Jason Wicks, told the jury of a conversation they had less than a month before the victim was killed, where Jason, having experienced his own divorce, told the defendant he could expect that, in addition to the expenses associated with divorce litigation, Jennifer would be awarded custody of the children and defendant would be required to pay child support. While defendant was by no means poor, Jason made it clear to him that a divorce would prove to be costly both financially and in terms of having his children, and a quick windfall of $200,000.00 would certainly enhance defendant’s manner of living and travelling. And finally, there is no question that defendant failed to make any mention of his wife’s tendency to play the online game when he was initially interviewed. He would eventually make several comments in later interviews expressing his distaste for her playing “that fucking game”, which clearly made him extremely upset. The combination of his failure to mention the game, along with his subsequent admission to his true feelings about her playing the game (which he softened in his trial testimony), clearly demonstrate a hostility towards the victim and her playing the game which, along with his other motives, contributed to his willingness to murder her. 16 Clearly, defendant was determined to do whatever it took to have it all – Eileen, his children, his residence, and his money. Other than defendant’s incredible denials on the stand, there is nothing to contradict his obvious motivations for murdering his wife. Opportunity: Defendant was the last known person with the victim. Defendant claims that he could not have been the one who caused her to leave the online game at 8:15 A.M. because his computer began installing a program at 8:15 A.M. This argument simply fails to hold water. The time that the program began installing was “around a quarter past eight”, (A158), not at exactly 8:15, and the victim left the online game at “approximately” 8:15 (A151). There are several things that could have taken place within a small time frame, especially considering Roper’s testimony that an install runs on its own, not requiring a live person to be at the computer. There would not have been much time required for defendant to start the install and then to commence the process of killing his wife, which would have necessarily taken her from the game in an abrupt fashion at around the time she ceased communications with Houston. To suggest that he could not have killed her because a program began installing at approximately the same time she abruptly left the game is entirely undermined by Roper’s testimony that it took maybe a minute or two to begin the program install, which commenced at about 8:08 A.M., that there was no other work done on the computer until much later in the day, and that the victim remarkably never responded to Houston’s frequent messaging for several minutes. As for the online game, Houston had an online flirtation with the victim and, shortly before her death, he arranged for a Western Union wire transfer of money as a gift to her. In their communications before she suddenly left the game that morning, the victim told him she planned to pick up the money and then go shopping in Syracuse later in the week with Eileen; 17 the two women would travel in Eileen’s car because her own car was making an odd noise, so she was concerned about it breaking down far away from home. Although Jennifer always let Houston know she was signing off from the game, on the morning of December 11, 2012, she just abruptly disappeared from the game. Moreover, a random screen shot of the victim’s home screen at 8:27 A.M. of a picture of her children from Halloween was the last actual physical usage of the victim’s phone (RA368). As the defendant always acknowledged that he was home with the victim, Houston’s testimony was extremely probative of defendant having and making the most of the opportunity to kill his wife. Defendant argues that there was no proof that he cleaned the bathroom after the murder since forensic analysis of the spot remover and spray bottle did not conclusively establish that he'd used it (Appellant’s Brief, p. 48.). But defendant could have used gloves and/or other cleaning materials he disposed of before the police executed the search warrant on December 17, 2012. Tellingly, he did not invite Eileen into his home after she drove him from the YMCA, despite the fact that he never before had passed up an opportunity to have sex with her. And finally, defendant was a runner of marathons and consistently maintained his penchant for running as well as for staying in shape by using weights. In this regard, he was easily able to execute the transporting of his wife’s body into her van, dropping her body off the embankment on Center Road, before placing her phone near a creek bed where only he could later find it. After placing the phone in the desired location, defendant parked the vehicle at Plank Manor Apartments, then ran or walked to the Norwich Y.M.C.A., where he would strangely tell people whom he hardly knew that his wife went shopping in Syracuse, while trying to feign being extremely cold. And even though he claimed his wife was shopping in Syracuse, he claimed to call her for a ride home before contacting Sayles for such a ride. 18 Consciousness of Guilt: Defendant claims that his behaviors in carrying on with his life as normal and that his not looking for his wife and posting about his wife’s funeral a few days after she was missing could all be explained with an innocent explanation. Despite this argument, defendant fails to cite such an explanation and certainly fails to address numerous other behaviors rendered by defendant. Defendant otherwise claims that his sexual advance towards Arotsky and his allegations that the victim was taking drugs and sexting with other men was somehow irrelevant, yet fails to explain why that is the case. Conveniently, defendant fails to address a number of suspicious behaviors, along with a myriad of inconsistent and contradicted statements defendant made to the Police including: His continued pursuit of Eileen, Falsely telling Powell and Cobb that he was logged onto his computers and working on the morning of the 11th , His inability to consistently explain the route he supposedly took to the YMCA from his residence, His unusual behaviors at the “Y”, His Facebook communication joking that “The husband’s always do it” (RA471), while making sexual advances towards the recipient of that message (RA566), His deletion of recent content on his cell phone and of his Facebook communications with Eileen (RA479-80), His crying about his wife being a few minutes late from her supposed shopping trip, even though he was acting like nothing happened days after she disappeared, Never mentioning to the police that the victim was playing the game on the morning of her disappearance, Initially stating to officers that he had a perfect marriage, Not revealing that he had sex with Eileen the day before the victim was killed, Initially hiding the fact that he was having an affair, Telling the police, the victim’s family, and others that his wife was a drug addict who was sexting other men. Defendant's lies, misstatements and omissions powerfully bespeak his consciousness of guilt. People v Bierenbaum, 301 AD2d 119, 138 (1 Dept. 2002); see also, People v Wieber, 202 AD2d 789 (3 Dept. 1994), People v Wlasiuk, – AD3d –, 24 NYS3d 787 (3d Dept 2016). While 19 evaluated on a case by case basis, (see, Id., citing People v Cintron, 95 NY2d 329, 333 [2000]), “it is difficult to come to any other conclusion than that these false statements (omissions and contradictions) indicate a consciousness of guilt.” Id., citing People v Benzinger, 36 NY2d 29, 33-34 (1974). As the Court in Bierenbaum observed, the People proved beyond a reasonable doubt that this defendant had the opportunity, the motive, and the intent to kill his victim, and that it was he who did so. Beyond that, the proof also clearly shows how he went about it, that she did not kill herself, nor that any boyfriend or drug dealer killed her. --Bierenbaum, at 139. Aside from all of the contradictions associated with defendant’s statements and testimony, along with the proof that the victim was still at the marital residence connected to the “psycho” wi-fi, suddenly left the game where she was previously communicating with Robert Houston, and that the People’s testimony contradicted that defendant was doing any work that morning, “the evidence shows that she was anything but desperate or depressed so that one might reasonably fear she was contemplating suicide.” Id. As in Bierenbaum, there “was the overwhelming opinion of those closest to her . . .”, (Id.), which negated the possibility that she would “vanish without a trace in the aftermath of self-inflicted death.” Id. And “(a)s for any suggested theory that someone other than defendant killed her, no proof exists in this record which is even remotely consistent with such speculation, and there is no one other than defendant () who, like he, had the motive or had the exclusive opportunity to kill her at the time and place where the victim was last seen alive; and, surely, there was no one who signaled his obvious guilt by covering and distorting the truth as this defendant repeatedly did. His claim of innocence--and the presumption which accompanies it--has been utterly overwhelmed and destroyed by the People's proof. --Id., 301 AD2d at 139-140. A. Any errors found to have been committed were harmless. (Answering Appellant's Brief, Generally) Based upon the foregoing, the People submit that the verdict is not only properly supported by the weight of the evidence, but that there is overwhelming evidence of defendant’s 20 guilt. As such, the People submit that should this Court find any errors that were committed below, that it deem them as harmless in light of the overwhelming evidence of defendant’s guilt. See, People v Brown, 98 NY2d 226 (2002), People v Crimmins, 36 NY2d 230 (1975), People v Murphy, 128 AD2d 177, 184 (3 Dept. 1987), affd. 70 NY2d 969. B. There is nothing to suggest that the integrity of the Grand Jury was impaired. (Answering Appellant's Point IX) Defendant does not argue with any specificity that the trial court decision to deny defendant’s motion to dismiss the indictment was error. In this regard, the People submit that the lower court’s denial of defendant’s motion to dismiss the indictment was proper. POINT II THE PEOPLE INTRODUCED HIGHLY PROBATIVE TESTIMONY, INCLUDING JAIL PHONE CALLS AND PHOTOGRAPHS, DOCUMENTING DEFENDANT’S MOTIVE TO KILL HIS WIFE. (Answering Appellant's Point III) The People’s theory throughout the case was that defendant was obsessed with Sayles, both sexually and in terms of having a relationship with her. In order to demonstrate this theory, the People introduced communications defendant had with Sayles and his wife-victim, along with sexually provocative photographs that were in defendant’s possession. Ultimately, there was no specific Molineux analysis required, requested, or contemplated, as the use of the photographs and communications were inextricably woven into the fabric of the People’s theory of what motivated defendant to murder his wife. Any necessity of balancing this evidence was fulfilled by the People’s own limitations in presenting such testimony. Even addressing this under a Molineux-type analysis, the initial issue is "whether the People have shown that the evidence is probative of some legally relevant and material issue 21 aside from the defendant’s propensity to commit the crime charged.” People v Miles, 36 AD3d 1021, 1022-1023 (3 Dept. 2007) (internal punctuation and citation omitted). Otherwise said, “while not admissible to demonstrate bad character generally or a propensity to commit the charged crimes, evidence of uncharged crimes or bad acts may be admitted if it establishes an element of the crime charged . . . is inextricably interwoven with the charged crime, provides necessary background . . . or falls within the five general Molineux exceptions.” People v Pham, 118 AD3d 1159, 1161 (3 Dept. 2014) (internal punctuation and citations omitted). Defendant claims that the People sought to “elicit evidence under a nonexistent ‘obsession with sex’ exception to the Molineux rule.” App. Brf., p. 22. There are several problems with this argument. First, the complained-of evidence was not subject to Molineux, as it did not involve the type of evidence typically subject to a Molineux analysis. Second, even if it was subject to Molineux, the testimony was extremely probative for establishing defendant’s motive to murder his wife. Thirdly, the prosecutor never claimed or otherwise argued that this was an “obsession with sex” exception to Molineux. Fourthly, defense counsel did not pose any objection to the particular testimony, even acknowledging its relevance at points (A172-175, A180-182). And finally, the evidence at issue was not nearly as extensive as defendant argues on appeal. “It is well settled that, although evidence of a defendant's prior criminal or immoral conduct may be received if it helps to establish some element of the crime under consideration is relevant because of some recognized exception to the general rule or is so inextricably interwoven with other facts in the case that it is explanatory of the acts done or words used in the otherwise admissible part of the evidence, it is inadmissible to establish a defendant's general bad character or criminal propensity.” People v Setless, 213 AD2d 900, 901 (3 Dept. 1995) (citations and internal 22 quotations omitted). In Setless, the defendant, who was charged with murder, claimed that the trial court committed reversible error in permitting “testimony from (defendant’s son) that he met the victim when defendant gave her to him as a 16th birthday present so that he could lose his virginity, proof of the continuing relationship between (the son) and the victim, evidence of defendant's sadomasochistic relationship with the victim and detailed evidence of sexual implements found in the victim's apartment.” Id. This Court determined that “defendant's sadomasochistic relationship with the victim did demonstrate defendant's motive to kill her when she threatened to expose their conduct to defendant's mother and girlfriend” (213 AD2d at 901), but that there was “no analogous relevance to the explicit testimony concerning (the son’s) relationship with the victim and exhibition to the jury of whips and other implements of torture.” Id. In this regard, the sexual tone of defendant’s communications with Sayles, along with testimony concerning the pictures defendant possessed of his wife and himself demonstrated defendant’s motive to commit murder. Unlike in Setless, they were not “improper admission of prejudicial or irrelevant testimony . . .” People v Setless, 289 AD2d 708, 708 (3 Dept. 2001). The numerous cases relied upon by defendant and otherwise uncovered through research involve evidence of prior uncharged crimes or evidence that is directly connected to prior uncharged crimes. In this case, the evidence went directly to defendant’s obsession with Sayles or his cover-up of the murder. There is no allegation of an uncharged crime or anything even remotely criminal. It was simply not subject to Molineux. The pictures of and communications defendant had with Sayles explicitly show defendant’s obsession with Sayles. The pictures of the victim were also very relevant to contradict defendant’s statements that she was sending nude pictures to other men. To the contrary, defendant was encouraging her to send him sexually charged photos so he could later shockingly claim that she was 23 sexually involved with and hence killed by someone else (RA9). And the pictures defendant possessed of himself were minimal and further demonstrated defendant’s sexual obsession with Sayles in exchanging such pictures (i.e., sexting) with her. The five phone calls were similarly relevant to demonstrate the extent of defendant’s obsession with Sayles and the general theme of his communications with her. What could be more relevant to defendant having a motive to murder his wife? As argued above, the prosecutor focused the People’s theory on defendant’s sexual and personal relationship with Sayles, as opposed to arguing an “obsession with sex exception to the Molineux rule”, as defendant claims. See, App. Brief p. 22. The trial judge specifically recognized, “the prosecution’s theory . . . has been labeled as an obsessing sex with the girlfriend and the girlfriend clearly” (RA344). The record simply does not support that the prosecutor argued for or the Court ruled that a defendant’s obsession with sex is an exception to the Molineux rule or that, in this case, it motivated defendant to murder his wife. Furthermore, defendant's description on appeal of evidence presented to the jury is often greatly exaggerated or is simply inaccurate. For example, the pictures referenced from Exhibit 183 were not displayed to the jury (A185-186). While there was a description of the pictures that were on the disc, the record reflects that NONE of the sexually charged photos were put before the jury. Id. And as demonstrated from the record during deliberations, the jury did not have access to any computer or electronic media that could have played the disc outside of the courtroom (RA572). Consequently, although the disc had been formally admitted, the jury did not have the means to view any of the pictures contained on the disc. As for the video, a similar argument is had. While the lower court did not permit the People to play the video to the jury because of its potential prejudicial impact upon the jury, 24 there was no such limitation to referencing the existence of the video, without elaborating and opining as to the video’s circumstances. The prosecutor did nothing contrary to the trial court’s determination, which was clearly acknowledged by defense counsel at the time it was referenced (A180-A182). Moreover, the court did include a cautionary Molineux charge in the jury charge as follows: There was also evidence consisting of photographs and videos taken from cell phones and computers showing sexual images. That evidence was not offered and must not be considered for the purpose of proving that the defendant had a propensity or predisposition to commit the crime charged in this case. It was offered as evidence of motive for the charged crime and is inextricably interwoven into and completes the story. If you found the evidence believable, you may consider it for those limited purposes and not to indicate a propensity to commit the charged crime. -- RA570-571. The reference to defendant being preoccupied by sex was elicited through Sayles. The context of the testimony was that defendant tried to have sex with Sayles whenever he was alone with Sayles, not that he was a “sexual deviant” (A80). Similarly, Cobb's testimony that defendant had the naked pictures of himself stored on his cell phone was a follow-up to Cobb’s testimony on cross that there was nothing unusual on defendant’s phone (RA365; A199) As for the hundred or so phone conversations between defendant and Sayles while he was in jail, the prosecutor limited the People’s evidence to just five phone calls. Moreover, the court gave limiting instructions concerning defendant’s incarceration numerous time following such testimony and in its charge to the jury (A96-97; A131; RA300a; RA345-346, RA350-351; RA570). The trial court did not include such an instruction to start the trial at the request of defense counsel (RA7-8). The court also instructed the jury to disregard anything stated by 25 Sayles in those phone calls, noting the difficulty it would be to redact such portion of the audio recordings (RA348-351, RA354-55). The testimony and evidence complained of was highly probative of defendant’s intent to kill his wife. The evidence was also significantly limited in terms of the content presented to the jury. As the evidence was inextricably woven into the fabric of the People’s theory of what motivated defendant to murder his wife, it was appropriately admitted. POINT III THE LOWER COURT MADE APPROPRIATE EVIDENTIARY RULINGS THROUGHOUT THE TRIAL. A. The trial court properly ruled that defendant could not elicit self-serving hearsay through Eileen Sayles. (Answering Appellant's Point VIII) Defendant sought to introduce hearsay and otherwise self-serving testimony through Eileen Sayles. While Sayles testified to the extent of her relationship with defendant both before and after defendant killed his wife, defense counsel sought to elicit testimony that defendant intended to be financially generous to the victim following an anticipated divorce. As the People did not elicit inculpatory testimony from Sayles that defendant intended to undermine the victim financially or otherwise, the statements defense counsel sought to elicit would not have contradicted, explained, let alone clarified anything elicited on direct and was therefore nothing more than self-serving hearsay that was properly omitted by the lower court. “Where use is made in a judicial proceeding of a prior declaration, the entire declaration at the time made so far as relevant must be taken together. A party may not utilize only so much of the declaration as is for his benefit; but he must also admit that which is against his interest, 26 and the whole must stand or fall together.” People v Gallo, 12 NY2d 12 (1962) (citations and internal punctuation omitted). However, self-serving “statements . . . are inadmissible hearsay (if they are not) declarations against penal interest. . .” People v Valderrama, 285 AD2d 902, 904 (3 Dept. 2001) (citations omitted). Defendant complains that he was not permitted to introduce hearsay statements through Sayles after the People introduced inculpatory statements through the same witness. Defendant’s argument is grounded in the “rule of completeness” (App. Brief, p. 56). The weakness in defendant’s argument, however, is that – unlike the defendants in the cases he cites – defendant was not looking to clarify any of the inculpatory statements or to introduce exculpatory evidence. As the hearsay statements sought to be introduced by defendant through Sayles were not intended to contradict Sayles’ testimony concerning statements made by defendant, the exclusion of such testimony was wholly proper. Defendant does not seek to convince the Court that the statements he hoped to elicit were needed to explain Sayles' testimony on direct. Rather, he argues The People were permitted to elicit a number of statements appellant allegedly made to Sayles during the course of their relationship, including, but not limited to, plans appellant made to raise their children together, things appellant said to pressure her into leaving her husband and appellant discussing his plans to obtain a divorce (A 78-80, 83). Lengthy conversations between appellant and Sayles on Facebook were admitted into evidence and other testimonial evidence regarding their conversations were permitted (People’s Exhibits 207 & 207A, A 87-89, 91- 94). Ostensibly, these statements were elicited in an effort to establish proof of motive. --App. Brief, p. 56. In essence, defendant is piggy-backing on trial counsel’s argument that “what’s good for the goose is good for the gander” (A100). Defense counsel sought to introduce self-serving hearsay statements to contradict the People’s argument that defendant was motivated to kill his wife to avoid the financial burdens associated with a divorce. But the People did not elicit such 27 testimony through Sayles. Defendant’s sole purpose of eliciting such testimony was to introduce self-serving hearsay statements allegedly made by defendant, who later took the stand and provided similar testimony defense counsel sought to elicit through Sayles (A216 RA375-76, RA425). Contrary to the argument made in defendant’s brief, defense counsel was not looking to “pick() up where the People left off,” (App. Brief, at 56), but was looking to elicit testimony unrelated to what had been elicited on direct. The People’s argument then and now is simply that such testimony was “inadmissible hearsay as (it did) not satisfy the criteria for declarations against penal interest and . . . the introduction of such statements into evidence would have unfairly allowed defendant to introduce his self-serving version of the events at trial without being subjected to cross- examination.” Valderrama, 285 AD2d at 904 (citations omitted). The cases defendant cites and that support the “rule of completeness” argument being advanced by defendant involve circumstances where the People introduce inculpatory statements made by a defendant while the defendant is not permitted to include the exculpatory portions of those same statements made contemporaneous with the inculpatory statements. People v Gallo, 12 NY2d 12 (1962) (where trial court denied defendant’s request to read parts of a pre-arraignment colloquy between an assistant district attorney and defendant believed to be exculpatory after stenographer read inculpatory portions of same discussion); People v Dlugash, 41 NY2d 725 (1977) (defendant was entitled to have the entirety of the admissions, both the inculpatory and the exculpatory portions, placed in evidence before the trier of facts. 41 NY2d at 736, citations omitted); People v Isla, 96 AD2d 789 (1 Dept. 1983) (The portion of defendant’s statement stating that he had shot the victim in “self-defense” should have been reported to the Grand Jury); People v Anderson, 256 AD2d 413 (2 Dept. 1998) (It was wrong for the court to preclude defendant’s 28 attempt to introduce exculpatory portion of statement after prosecutor introduced the inculpatory portion of the same statement); People v Mateo, 2 NY3d 383 (2004). The testimony defense counsel sought to elicit “did not constitute exculpatory evidence and was not necessary to provide a complete narration of defendant’s inculpatory statements.” People v Pollard, 70 AD3d 1403, 1404 (2010) (citation omitted); see also, People v Walker, 285 AD2d 364, 365 (1 Dept. 2001). And “the (excluded) matter could not have raised a reasonable doubt about defendant’s guilt,” (Walker, 285 AD2d at 365), especially considering defendant’s primary motives for killing his wife (i.e., his desire to live with Eileen in the marital residence while raising their children together). Ultimately, the testimony sought to be elicited had very little, if any, exculpatory probative value. B. The newfound claim that the trial court wrongly precluded third-party culpability evidence that Ms. Ramsaran had been stalked online by "someone" has not been preserved for appellate review, and should not give rise to reversal in the interest of justice. (Answering Appellant's Point VII) Defendant would have the Court order a new trial on the ground that he was impermissibly foreclosed from presenting third-party culpability evidence. But defense counsel disavowed that his intent was to suggest to the jury "that a stalker might have killed" his client's wife; "I'm never going to say that that stalker could have killed her like I'm never going to say she committed suicide" (A147). Rather, he wanted to elicit hearsay testimony from Robert Houston – that Ms. Ramsaran had said, at some point during their virtual friendship, she was being stalked online – in order to lay the foundation for/buttress the defense argument that the police were guilty of shoddy practices, had too quickly seized upon defendant, without exploring other leads (A145, A147-48; also see defense counsel's opening at RA10-11). A party who raises an argument for admissibility of evidence – even a constitutional one – for the first time on 29 appeal has not preserved the claim as a question of law for appellate review. CPL § 470.05(2); People v Person, 8 NY3d 973, 974 (2007) (at trial, defendant argued that videotape was necessary to establish prior inconsistent statements; appellate argument that transcript of video was inadequate substitute for video was not preserved); People v Inniss, 83 NY2d 653, 658 (1994) (claim that testimony and cooperation agreement were probative of witness's bias/interest not raised in trial court; at trial, defendant argued only that they demonstrated perjury); People v Olibencia, 45 AD3d 607, 608 (2d Dept 2007) ("since the defendant never objected to the exclusion of [third-party culpability evidence and a witness's prior bad acts] on any constitutional ground, his constitutional claims with respect to the trial court's rulings...are unpreserved for appellate review"). This Court should not exercise its interest of justice jurisdiction [CPL§ 470.15(6)(a)] to reverse on the unpreserved ground that defendant should have been given "the opportunity to present evidence [of] a statement the victim made regarding someone stalking her [which] squarely identifies a culpable third-party" (Appellant's Brief, p. 54). The third-party culpability cases cited in Point VII of Appellant's Brief – which resulted in reversal – all involved evidence pointing to a named person as possibly responsible for the crime(s) for which the defendant stood trial: Chambers v Mississippi, 410 US 284 (1973): Gable McDonald Holmes v South Carolina, 547 US 319 (2006): Jimmy McCaw White Winfield v United States, 676 A2d 1 (DC Cir 1996): Edward Huff People v Primo, 96 NY2d 351 (2001): Moe Booker People v Oxley, 64 AD3d 1078 (3d Dept 2009): denominated in opinion as merely "Chase", but true and complete name known – if not by fellow jail inmates, by his roommate and his parole officer (see 64 AD3d at 1082) People v Thompson, 111 AD3d 56 (2d Dept 2013): Inderjeet Uppal 30 And just this week, our Court of Appeals ordered a new trial of rape and felony murder charges on the ground that the defendant should have been allowed to introduce evidence implicating one Howard Gombert. People v DiPippo, 2016 NY Slip Op 2279 (March 29, 2016). But on the same day the Court of Appeals reversed DiPippo, it upheld a trial court's preclusion of evidence suggesting that "two men" had a vengeful motive for carrying out an attack upon the victim and framing the defendant. People v King, 2016 NY Slip Op 2278. *6-7 (March 29, 2016): Before a trial court permits evidence that another party committed the crime for which a defendant is on trial, "the court must balance the probity of the evidence against the prejudicial effect to the People" (People v Schulz, 4 NY3d 521, 528 [2005], citing People v Primo, 96 NY2d 351, 356 [2001]). The admission of such evidence "may not rest on mere suspicion or surmise" (Primo, 96 NY2d at 357). Here, it cannot be said that the trial court abused its discretion in not allowing the proffered testimony. The Court rejected a similar argument in People v Gamble, 18 NY3d 386, 398-99 (2012): Defendant's further contention that he was denied the right to present a defense and his argument that Supreme Court erroneously shielded the jury from hearing evidence demonstrating that there were "other potential perpetrators who had a motive to do violence to [the victim]" is without merit.... That the People introduced evidence establishing defendant's motive for the shootings does not, as the Appellate Division observed, "open the door to generalized, speculative evidence of possible motives by unidentifiable persons" [citation omitted]. See also, People v Williams, 64 AD3d 734 (2d Dept 2009), aff'd 16 NY3d 480 (2011) ("evidence or argument that an unidentified third party may have committed the shooting was purely speculative"); People v Johnson, 49 AD3d 664, 665 (2d Dept 2008) ("trial court properly denied the defendant's request to cross-examine a witness regarding an alleged plan by the victim to commit a crime which, if actually committed, might have motivated unnamed third parties to kill the victim"). As evidenced by defendant's inability to muster any record support, the hearsay at issue 31 here did not "squarely identif[y] a culpable third party" (Appellant's Brief, p. 54) or even describe gender and close temporal-physical proximity as the putative witness in King, supra, would be able to do [2016 NY Slip Op, 2278 at *6], had the Court of Appeals ordered a new trial of that indictment. In this week's decision of DiPippo, the Court reaffirmed that "[t]he admission of evidence of third-party culpability may not rest on mere suspicion or surmise"; and generally speaking, "[r]emote acts, disconnected and outside of the crime itself, cannot be separately proved to show that someone other than the defendant committed the crime" -- DiPippo, 2016 NY Slip Op 2279 at *11 [citations omitted]. Reversal in this case on the ground that defendant should have been able put before the jury hearsay evidence that "someone" -- somewhere in the world-wide Internet universe -- had haunted Ms. Ramsaran's virtual footsteps, at some unknown time, would fly in the face of these established principles. C. The lower court correctly permitted the People to elicit testimony concerning an incident when defendant grabbed Sayles by the arm and pulled her into his house where defense counsel “opened the door” to such testimony by eliciting a response from Sayles on cross that defendant was never violent towards her. (Answering Appellant's Point II) In response to testimony elicited on defendant's cross-examination of Eileen Sayles that defendant was "never violent" towards her, the prosecutor asked Sayles on re-direct about an incident she revealed to the prosecutor when prepping for trial. The incident involved defendant pulling Sayles back into his home once during the time his wife was missing. Defendant brands the incident as a “physical altercation" (Appellant’s Brief., p.17), which should have been kept from the jury; suggests that defense counsel had no choice but to ask the precipitating questions based upon the prosecutor’s direct of Sayles; and argues that the prosecutor's redirect constituted improper impeachment of the People's own witness. But because this snippet of testimony elicited on redirect was an attempt to clarify and correct the testimony on cross that defendant 32 was never violent, and as it was otherwise very limited, defendant’s argument must fail. At the outset, the People note that Sayles' testimony on direct as to defendant's attitude before and after defendant's wife – her best friend – disappeared occupies just one-and-a-half pages of transcript, and was so innocuous that it did not warrant exploration on cross as to whether defendant was violent. Moreover, this was not a “physical altercation" as reasonable people would imagine it: Sayles told the jury that defendant did not hurt her as he grabbed her and pulled her inside, so it certainly did not constitute a prior bad act or uncharged crime. And contrary to defendant’s argument on appeal (App. Brf., p. 7), it clearly did not give Sayles any reason to be biased towards defendant; she had not wanted to testify against him in the first place. In short, it was nothing more than a lover’s spat after which the two made up and had sex (RA104-107, A114- 117). The scope of redirect examination falls within the trial court's sound discretion. See, People v Massie, 2 NY3d 179, 183, (2004); accord, e.g., People v Greene, 13 AD3d 991, 93 (3 Dept. 2004); People v Conway, 297 AD2d 398, 399 (3 Dept. 2002). “The court may permit further inquiry on a subject if the defense opens the door by providing incomplete or misleading information, although such inquiry must be limited to only such otherwise inadmissible evidence as is reasonably necessary to correct the misleading impression." Id., Massie, 2 NY3d at 184 (internal punctuation omitted). The record here compares favorably to People v Greene, 13 AD3d 991 (3 Dept. 2004), and People v Rojas, 97 NY2d 32 (NY 2001). In Greene, the court made a pretrial ruling prohibiting “evidence regarding uncharged sexual conduct." After defense counsel's cross- examination of the victim suggested that the charged circumstances involved “isolated contact”, the trial court permitted the prosecutor on redirect to inquire about uncharged sexual conduct 33 which had been previously prohibited under the Molineux ruling. This Court ruled that those redirect questions "were proper because they were limited and clarified the topic addressed on cross-examination.” 13 AD3d at 993 (citation omitted); see also, People v Brown, 252 AD2d 598 (3 Dept. 1998); People v Rodriguez, 85 NY2d 586 (1995). The trial judge in Rojas reined in the prosecutor, ruling he should make no reference to why Rojas was in confinement. His attorney, who argued on opening that defendant was being treated in a harsh manner, proceeded to elicit testimony to that effect. The trial court overruled his objection when the People thereafter elicited testimony as to the prior criminal conduct that resulted in Rojas' confinement, finding that defendant opened the door to such previously precluded testimony – a ruling that was upheld by the Court of Appeals. 97 NY2d at 38. Thus, in both Rojas and Greene, there was testimony that would not have been admitted but for the “opening door” rule. The redirect testimony of Eileen Sayles challenged here did not involve a prior crime or bad act, was not pre-determined to be unduly prejudicial to the defendant, and was fair response to the pertinent part of the preceding cross-examination testimony. The further argument that the elicited testimony on redirect was impermissible impeachment of Sayles is unfounded. Her testimony did not concern a “material issue” nor did it “disprove the position of (the People).” CPL § 60.35. Unlike the circumstances involved in the cases cited by defendant, her redirect testimony did not undermine the factual arguments being made by the prosecution. See, People v Montgomery, 22 AD3d 960 (3 Dept. 2005); People v Dolan, 172 AD2d 68 (3 Dept 1991); People v Fitzpatrick, 40 NY2d 44 (1976). As the testimony was a fair and limited response to the testimony elicited on cross- examination, which otherwise clarified on obviously misleading impression, the trial court 34 appropriately exercised its discretion in admitting the challenged, redirect testimony. D. The receipt into evidence of several photographs of the victim while she was alive was not reversible error. (Answering Appellant's Point I) The People introduced three life photographs of the victim: two were headshot portraits, the other was of her with the couple's three children. When defense counsel objected, the prosecutor argued that “the jury has a right to know that she was a person”, and County Court concluded similarly, noting that “the jury has a right to know who the victim was besides [the autopsy] photographs of the body”; additionally, the judge observed, the victim and children were “not [depicted as being] engaged in any activities that would otherwise be prejudicial” (A 44-45). Defendant argues that County Court's admission of the photographs requires reversal. While the People acknowledge that “(t)he general rule is that photographs of the deceased are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered,” "[a]dmission of photographs of homicide victims is generally within the discretion of the trial court.” People v Pobliner, 32 NY2d 356, 369 (1973) (citations omitted). “The court properly exercised its discretion in permitting the prosecutor to elicit limited, innocuous background information about the murder victim.” People v McDowell, 125 AD3d 577, 577 (1 Dept. 2015), citing People v Stevens, 76 NY2d 833, 835-6 (1990). “This evidence was not unduly prejudicial, and any error in this regard was harmless.” Id., citing Stevens, 76 NY2d at 835-6. Contrary to defendant’s argument, the lower court judge reviewed the photographs and noted that two of them were headshots and specifically commented concerning the one where the victim is with her children – (RA610) – that “they’re not engaged in any 35 activities that would otherwise be prejudicial” (A45). The photograph that portrayed the victim’s full body in the picture with her children was also relevant considering defendant’s feelings towards heavier people, as well as her appearance compared with that of Sayles. Defendant’s analysis of the photographs is exceptionally gratuitous and self-serving, the trial judge failing to recognize any such emotional or sympathetic symbolism in their appearance. As argued in Point I, supra, the evidence of defendant’s guilt is overwhelming. At the very least, it was not a close call akin to what took place in People v Donohue, 229 AD2d 396 (2 Dept. 1996), where the court reversed defendant’s conviction for vehicular manslaughter and lesser related charges, observing that, “in a case as close as the one at bar, there is a significant probability that the photograph impermissibly tipped the scales in favor of the People.” 229 AD2d at 398. If this Court finds error in the admission of the photographs, it was not one that presents a reversible issue as there was “no significant probability that the [photographs’ admission] contributed to [the] conviction[ ]." People v Berry, 110 AD3d 1002, 1003 (2 Dept. 2013), citing People v Crimmins, 36 NY2d 230, 241–242 (1975); People v Thompson, 34 AD3d 852 (2 Dept. 2006); see also, People v Ely, 164 AD2d 442, 447 (3 Dept. 1990), citing Stevens, 76 NY2d 833 (1990); People v Wilson, 71 AD3d 799, at 800 (2 Dept. 2010); People v Colon, 102 AD3d 705, 705 (2013). E. Under the facts of this case, the County Court did not err in permitting the medical examiner's opinion as concerning the manner of death to stand. (Answering Appellant's Point X) Robert Stoppacher, M.D., the Chief Medical Examiner for Onondaga County and Board- certified in Forensic Pathology, Anatomic Pathology, and Clinical Pathology, testified as to the observations he made in the course of conducting the autopsy of Jennifer Ramsaran's body after it thawed. Apart from the moderately advanced, post-mortem decomposition and the evidence 36 that animals fed on the corpse's face and left leg (A172-3), there were external contusions/bruises on her right arm, the lower right leg and inside knee (RA135, A134). The internal injuries found were bleeding/hemorrhage underneath the scalp at the back of her head, about 1½ - 2" in size, "indicating...impact": "that part of the scalp had [been] struck or struck something" (A136), and two narrow bands of hemorrhage or bleeding running through the tissue of her back, immediately beneath the generally discolored skin. This bands bespoke of "some sort of pressure applied there" -- A136. In Dr. Stoppacher's opinion, the internal injuries preceded death (RA146). The absence of Wischnewski tumors prompted him to conclude she had not died of hypothermia, but he could not testify with certainty as to the cause of death: the toxicology analysis revealed nothing of significance, and there was no evidence she had suffered from life-threatening or chronic disease or sustained a severe lethal injury resulting in death. The animal feeding and post-mortem decomposition made it impossible to conclusively determine whether, e.g., suffocation, smothering and/or strangulation accounted for her death (RA146-50, A137). Dr. Stoppacher then explained why his autopsy report (RA593-601) reflected his determination that the manner of death1 was homicide, rather than any one of pathology's four other classifications for manner of death: (1) natural; (2) suicide; (3) accidental; and (4) undetermined – which is used most frequently in cases presenting high levels of prescription medications or street drugs in the body of someone known to use those, and one cannot be certain if they committed suicide or accidentally overdosed (A138-9). None of those explained why someone of Ms. Ramsaran's health condition – and whose body presented what the 1 Dr. Stoppacher had explained previously how forensic pathology distinguishes cause of death ("what caused [the] person to die") from manner of death (the circumstances under which they died, "how the death came about") – RA144a-b. 37 pathologist found, and did not find, in his post-mortem examination -- "should [be] found naked, on the side of the road" (A139). Defendant contends that County Court should have granted defense counsel's subsequent motion to strike Dr. Stoppacher's testimony as to the manner of death, and cites, e.g., People v Langlois, 17 AD3d 772 (3d Dept 2005). There, the Court held that it was error to permit a “forensic pathologist to testify that, based upon her examination of defendant's statement to law enforcement officials, she was of the view that the death of one of the victims constituted homicide", thereby expressing her opinion "as to the ultimate issue in the case." 17 AD3d at 774. Langlois marked the first time this Court adopted the defense argument that held sway in People v Eberle, 265 AD2d 881 (4th Dept 1999). But neither Eberle nor Langlois should be construed as bright line holdings that require a finding of error in every case where a forensic pathologist opines that the manner of death was homicidal. The pathologist in Eberle told the jury that the autopsy results supported, in equal measure, two possible causes of death: suffocation and Sudden Infant Death Syndrome (SIDS). Nevertheless, she opined that the infant died as a result of "homicidal asphyxiation", a conclusion that she acknowledged was not based on medical evidence, but rather derived from her review of various statements by defendant and others, presented to her by the police. 265 AD2d at 881. Given these factors – two widely different causes of death, one of natural causes and one at the hands of another, and the pathologist's reliance on various statements "presented to her by the police"2 (265 AD2d at 882) in order to rule out SIDS – the Fourth Department's finding of error is wholly understandable. 2 In reversing Eberle's conviction, the Fourth Department also suppressed all the statements he gave to investigators from the District Attorney's Office and to the baby's mother, who was acting as an agent of the police, the court found, at the time she elicited statements from him. 265 AD2d at 882-83. 38 Although not apparent from the Court's decisions of Langlois, supra, and People v Odell, 26 AD3d 527 (3d Dept 2006) [also cited by appellant at p. 61 of his Brief], an examination of the defendants' appellate briefs and appendices in both of those cases reveals that the opinions of the People's pathology experts were objectionable because they too represented extrapolation from the defendant's statements as relayed by law enforcement: a) Barbara Wood, M.D. -- who performed the second autopsy on what remained of Dottie Dowd's body and was the People's pathology expert at Denis Langlois' trial on arson and depraved indifference and felony murder charges -- testified that "the cause of Miss Dowd's death was carbon monoxide poisoning, due to smoke inhalation from the residential fire" (A 126 of appellant Langlois' Appendix). When asked her opinion on the manner of Ms. Dowd's death, she told the jury, “My opinion, based upon my review of [the defendant's written] statement I reviewed is that the manner of death is homicide” (A 127). b) When Michael Baden, M.D. testified for the People at the trial of Diane Odell for the three murders of her long-dead newborn infants, whose mummified remains were discovered in an Arizona storage unit she had rented, he told the jury that the physical evidence revealed by the autopsies and the circumstances of concealment under which the babies' nigh-skeletal remains were found, bespoke of "foul play." But it was only because he sifted through the nebulous and inconsistent statements given by Ms. Odell (over the course of three days of off-and-on questioning) that Dr. Baden concluded that each infant had died of traumatic asphyxiation caused by strangulation, and that the manner of death was homicide. A 612-21 of appellant Odell's Appendix. On cross- examination, Dr. Baden acknowledged, inter alia, that if the defendant's statements were untrue, "I would have to reconsider my opinion" (A 647). On appeal, the Court rejected the contention "that it was error to allow the People's forensic expert to testify as to the cause and manner of death based, in part, on defendant's statements to law enforcement personnel," but agreed that "County Court inappropriately permitted the People's expert to opine that the infants' deaths constituted 'homicides'". 26 AD3d at 529. That claim, however, was unpreserved, and the error deemed harmless in any event because Dr. Baden explained "the medical definition and stated that he was not drawing a legal conclusion in that regard, nor was he making a determination regarding any culpability for the infants' deaths." Id. Dr. Stoppacher's view on the manner of Ms. Ramsaran's death was not in any way shaped by statements defendant gave to the police or anyone else. Nor is this case one where – because the defendant acknowledges having committed the homicide in question, but put forth a 39 justification defense [see People v Lluveres, 15 AD3d 848 (4th Dept 2005), and People v Scruggs, 111 AD3d 966 (2d Dept 2013)] or the defense of extreme emotion disturbance – the defendant could argue the jury might have been unduly influenced by a pathologist's opinion that the manner of death was "homicidal." Rather, Dr. Stoppacher's testimony was based on his Board-certified knowledge of pathology, his autopsy, and the fact that "her body was found, naked, by the side of [a] road" (A139). As this Court observed in Odell, supra, ["it] is axiomatic that expert testimony is admissible where, as here, the conclusions drawn from the facts depend upon professional knowledge not within the ken of the ordinary juror." 26 AD3d at 529. Significantly, the Court of Appeals has more recently made plain that the "familiar rule[ ]" that expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence … applies to testimony regarding both the ultimate questions and those of lesser significance.... -- People v Rivers, 18 NY3d 222, 228 (2013) [citations omitted]. Additionally, it expressly reaffirmed that courts should not exclude [expert] testimony merely because, to some degree, it invades the jury's province.... Expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw conclusions from the facts. It is a kind of authorized encroachment in that respect.... -- Id [internal punctuation and citations omitted]. The Court accordingly turned aside Rivers' claim that the expert testimony, "ruling out accidental and natural causes of the fires and concluding that one of the fires was intentionally set", invaded the jury's province. Id. Because no principled distinction can be drawn between the fire investigator's opinion in Rivers and Dr. Stoppacher's opinion here as to the manner of death, this Court should reject this defendant's claim of error. 40 POINT IV DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL WAS NOT ABRIDGED BY EITHER THE PRO HACE VICE ADMISSION OF A DULY LICENSED NEW JERSEY ATTORNEY NOR THE LAWYER'S PERFORMANCE AT TRIAL (Answering Appellant's Points IV and V) A. The pro hac vice admission of a licensed New Jersey attorney was not a per se denial of Mr. Ramsaran's constitutional right to counsel. (Answering Appellant's Point IV) Quoting backdrop language from People v Kieser, 79 NY2d 936 (1992), defendant seeks to convince the Court that County Court's grant of the pro hac vice application – which resulted in Gilberto Garcia, Esq., assuming representation of Mr. Ramsaran (RA592) – was a per se violation of the constitutional right to counsel for which automatic reversal is required, regardless of the attorney's professional performance. But Kieser does not compel that result; in fact, it calls for the contrary conclusion. Owing to his failure to pay New Jersey attorney registration fees, Mr. Kieser's trial-level attorney, Kenneth Yates, was prohibited from practicing law in New Jersey at the time of Kieser's arraignment and up until some point prior to trial. Mr. Yates paid the registration fees he owed before Kieser's 1987 trial began in Queens County Supreme Court, but did not ask the trial Justice to be admitted pro hac vice, perhaps because he did not want to draw attention to the the fact that his preceding New York appearances and filings were done while he was professionally disqualified in his home state. Kieser was convicted and sentenced in October 1987. His consolidated appeal (direct appeal from the judgment and discretionary appeal from 1990 denial of his CPL 440.10 motion3) came before the Court of Appeals four years later. The Court affirmed the Appellate Division's 3 The timing of Kieser's 440.10 motion suggests that learning of Kenneth Yates's October 1989 disbarment in New Jersey [Matter of Yates, 115 NJ 663 (1989] prompted Kieser or his appellate attorney to investigate Yates's professional status at the time he represented Kieser in Queens County. 41 order [172 AD2d 626 (2d Dept 1991)] upholding the conviction and the Supreme Court's refusal to vacate the judgment on the Sixth Amendment ground propounded by Kieser. [Mr. Yates] had attended law school and had been duly licensed to practice law in New Jersey until he was temporarily suspended from practice for nonpayment of Bar dues. We conclude that his temporary administrative suspension and his failure to be admitted pro hac vice in New York are "technical" defects which, under the circumstances here, cannot serve to support defendant's right to counsel claim [citations omitted]. Defendant's remaining arguments are without merit. -- Kieser, 79 NY2d at 938. Kieser fared no better in the federal habeas corpus proceeding he subsequently initiated. Kieser contends that Yates's suspension at the time of [his] arraign-ment and Yates's failure ever to move for admission pro hac vice in New York constitute a per se violation of Kieser's Sixth Amendment right to counsel. We disagree. Where the attorney has duly qualified and been admitted to practice in another jurisdiction but fails either to seek admission pro hac vice or to follow local court rules, the violation is a technical defect that does not represent a Sixth Amendment violation [citations omitted]. -- Kieser v New York, 56 F3d 16, 17 (2d Cir 1995). In sum, both our state's high court and the Second Circuit concluded that Mr. Yates's then temporary, professional disability and failure to seek pro hac vice admission were technical defects which should not give rise to vacatur of the judgment. Given those holdings, defendant's argument that the substitution of Mr. Garcia presented "serious and substantive defects" (Appellant's Brief, p. 32) is meritless. Unlike Yates, Mr. Garcia was not precluded from practicing law in New Jersey at any point during the Chenango County prosecution (See, RA591); indeed, his professional reprimand back in 2001 was not accompanied by any suspension of his practice privileges [see Matter of Garcia, 167 NJ 1 (2001)], and secured admission pro hac vice, and did not seek to pass himself off to anyone in the courtroom as duly licensed in New York was affiliated with a duly admitted New York lawyer who had agreed to serve as the attorney of record (RA589-90) The Second Circuit, whose decisions informed our Court of Appeals' holding in Kieser, has more recently reaffirmed that there are but two situations where the finding of a per se violation is justified: (1) where the defendant's attorney holds no license to practice law, and (2) 42 where defense counsel is implicated in the client's crime(s). Elfgeeh v United States, 681 F2d 89, 92 (2d Cir), cert denied, 113 SCt 671 (2012). Because neither of these is presented in the record here, the Court should reject defendant's claim of entitlement. B. Defendant has not demonstrated that Mr. Garcia's representation of defendant was constitutionally deficient Turning now to defendant's claim that Mr. Garcia's representation was sub-par, the People note that a number of his contentions in this regard involve either trial strategy or concern matters dehors the record. Other points of argument involve matters that had absolutely no impact upon defendant’s trial or propose objections that would not have been sustained. More importantly, counsel zealously represented defendant throughout the trial by making pre-trial motions, appropriate objections, effectively cross-examining witnesses, and delivering a sound opening and summation. Despite the nuanced distinctions between the "effective assistance of counsel", guaranteed by the U.S. Constitution's Sixth Amendment, and "meaningful representation" within the meaning of the State Constitution's right to counsel, both the U.S. Supreme Court and our Court of Appeals Require that the respective assessments be made in light “of the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation.” People v Baldi, 54 NY2d 137, 147 (1981); also see Strickland v Washington, 466 US 668, 689 (1989) (“fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time”) Have declared that there is a strong presumption that counsel acted in a professionally competent manner. People v Rivera, 71 NY2d 705, 709 (1988); Strickland, 466 US at 689 (“Judicial scrutiny of counsel's performance must be highly deferential.... A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance") Impose the burden on defendants seeking to invalidate the judgment on this Sixth Amendment ground. People v Hobot, 84 NY2d 1021, 1022 (1995) (defendant “bears the well-settled high burden of demonstrating that he was deprived of...meaningful representation”); Strickland, 466 US at 693. 43 Assessed in light of these governing principles, defendant's claim that he did not receive constitutionally adequate legal representation should not prevail. As to Pre-Trial Practice: Defendant’s claim that his attorney’s pre-trial representation of him was ineffective is not only exaggerated, but the claims need to be put into context. There was a suppression hearing, defendant did not testify at the hearing, and closing the hearing to the public was for defendant’s own interest. Defendant otherwise suffered no prejudice from any of the claimed shortcomings by counsel’s pre-trial practice, including the waiver of public hearings for the stated intention of not tainting the jury pool, and his handling of the suppression hearing. While defendant intended to make motions in limine, versus entirely waiving motions or hearings, a pre-trial suppression hearing was eventually held. At that hearing, trial counsel’s initial inclination to call defendant at the suppression hearing did not result in the defendant ever answering one question (RA579- 886). There is simply no authority for reversal of a conviction under these circumstances, nor has defendant alleged any prejudice resulting from defendant’s pre-trial strategy or practice. As to Jury Selection: Defendant essentially claims trial counsel was ineffective for a lack of smoothness while exercising his peremptory challenges and because he did not actively engage in questioning a particular panel of 11 potential jurors. In both of these circumstances, defendant fails to cite how he was prejudiced by defense counsel’s conduct. Throughout jury selection, Attorney Garcia regularly utilized his peremptory challenges and moved to have potential jurors for cause. The issue of how prepared counsel was during jury selection would have otherwise been much better addressed via a CPL 440.10 motion. 44 While Attorney Garcia did not participate in voir dire with the particular panel as defendant now complains, he strategically participated in the jury selection process, exercising several of his peremptory challenges to that particular panel (A9, RA2-6). Out of this particular panel of 11 potential jurors, only two were eventually chosen. The record certainly demonstrates that trial counsel had a strategy and, based upon the prosecutor’s voir dire, knew the jurors he wanted and did not want on the panel. See, People v Alexander, 109 AD3d 1083, 1085 (4 Dept. 2013) (defendant failed to demonstrate lack of strategy where defense counsel did not exercise any challenges during voir dire); see also, People v Wragg, 26 NY3d 403, 410 (2015), People v Turner, 37 AD3d 874, 877 (3 Dept. 2007), People v Hecker, 15 NY3d 625, 658 (2010). As defendant has not shown “that the fairness of the trial was impaired” (People v. Thompson, 21 N.Y.3d 555, 560 [2013] [citations omitted], by trial counsel’s performance during jury selection, defendant’s claim in this regard must fail. As to testimony: While defense counsel could have objected to testimony concerning defendant’s strange behaviors around his best friend, the testimony was clearly relevant for demonstrating defendant’s attitude and mind-set approximately one month before killing his wife. Similarly, the testimony elicited through Sayles about defendant was clearly relevant to demonstrate the degree of his obsession with Sayles. Considering the relevance of the testimony, any objection in either of these circumstances would likely not have been sustained. The testimony that defendant had a controlling disposition was certainly relevant for demonstrating the state of his marriage, as well as his motive and drive to achieve his goal of being with Sayles. As this Court has previously observed, the testimony provided “credible evidence establishing defendant’s (), intent and motive in murdering (his wife), as well as the 45 nature and status of their relationship at that time.” People v Burkett, 101 AD3d 1468, 1471 (3 Dept. 2012), citing People v Thibeault, 73 AD3d 1237, 1239–1241 (3 Dept. 2010); see also, People v Brooks, 134 AD3d 574, 575-76 (1 Dept. 2015). In this regard, this Court in Pham, made it clear that background information as to a defendant's relationship with a domestic partner is not inadmissible . . . 118 AD3d at 1161. This and other courts have also found relevant a defendant’s controlling conduct towards the victim and other girlfriends. See, People v Williams, 29 AD3d 1217, 1219 (3 Dept. 2006), People v Bierenbaum, 301 AD2d 119 (1 Dept. 2002). As for the testimony by family members concerning the victim, trial courts have the discretion to "permit[ ] the prosecutor to elicit limited, innocuous background information about the murder victim.” People v McDowell, 125 AD3d 577, 577 (1 Dept. 2015), citing People v Stevens, 76 NY2d 833, 835-6 (1990). Moreover, such evidence was admissible to counter defendant's pre-indictment representations that his wife was a drug addict and had run off with another man, akin to the evidence admitted in People v LaValle, 3 NY3d 88, 114 (2004), that was deemed necessary for establishing a sequence of events leading up to a crime. It was further relevant for demonstrating that the victim was not the type to leave her children, to harm herself, or otherwise abandon her family. See, People v Bierenbaum, 301 AD2d 119, 138-140 (1 Dept. 2002). Counsel should not be faulted for consenting to Robert Houston, who lived in England, testifying via Skype, for “the court's inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure such as the one employed here.” People v Wrotten, 14 NY3d 33, 36 (2009); see also, People v Manon, 135 AD3d 586 (1 Dept. 2016). As to the Prosecutor’s summation: 46 While the prosecutor made one remark that the defendant and victim’s DNA were on defendant’s sweatshirt, which was stated without objection, the prosecutor later elaborated and explained the evidence as it was presented: And here we have the defendant's sweatshirt, okay? 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 match, the alleles. . . there's alleles there for the victim 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. --A267-8 (emphasis added) As a cautionary measure, the prosecutor frequently reminded the jurors that the information is in the report and that what he says is not evidence (A264, A267-8, RA569). Ultimately, the prosecutor’s “comments were () conclusions fairly deduced from the evidence.” People v Greene, 13 AD3d 991, at 993 (3 Dept. 2004); see also, People v Abraham, 94 AD3d 1332, 1334 (3 Dept. 2012); People v Bliss, 283 AD2d 251, 251 (1 Dept. 2001). After all, the chances that the DNA was a combination of the defendant’s and the victim’s was 1.661 quadrillion times more likely than two randomly selected individuals (A166-167). In this regard, any objection by defense counsel should not have been sustained. As to Defendant Testifying: While defense counsel initially represented that defendant would not be taking the stand, despite his suggestions to the contrary (A200-210), the record fails to demonstrate that defendant was coerced into taking the stand or otherwise wrongfully persuaded to by defense counsel. The court’s colloquy with both defense counsel and defendant, which is not entirely included in 47 Appellant’s Brief, reflects that the decision to testify was an entirely voluntary one made by defendant (RA372 A203-204). While there was a discussion between defendant and defense counsel around 6:00 P.M. after defendant initially waived his right to testify, there is nothing in the record to discern the complete context of that communication. The record is otherwise devoid of information to demonstrate the impact that the aforementioned phone call had on defendant’s decision to testify. Ultimately, it was the defendant’s decision. See, People v Banks, 14 AD3d 726, 728 (3 Dept. 2005), People v Borthwick, 51 AD3d 1211, 1216 (3 Dept. 2008). And in his words, “(t)he reason being specifically is that there's so many gaps and holes from my perspective now that only I can fill and only I can explain. It is what it is. This is my life on the line. I want these jurors to understand, see the full scope, the full view. It is what it is” (RA373). Likewise, the fact that defendant frequently sought to veer from the questions being asked and make sarcastic comments throughout his testimony, especially on cross, does not establish counsel’s ineffectiveness. Considering the evidence against defendant, there was clearly a legitimate basis and strategy for encouraging him to testify. See, People v Stanford, 130 AD3d 1306, 1309-1310 (3d Dept. 2015) (citations omitted). Moreover, the specific communications defendant had with defense counsel about taking the stand are “outside the scope of this record.” People v Borthwick, 51 AD3d 1211, 1216 (3d Dept. 2008) (citations omitted). And such a decision “is a strategic one to be made by defendant in consultation with counsel.” Id. (citations omitted). As there was a logical explanation for defendant to testify, as defendant confirmed his desire to testify, and as defendant otherwise makes vague arguments that are not reflected in this record as to why he ultimately testified, there is no basis for suggesting that defense counsel was ineffective for recommending he testify or with regard to preparations he made with defendant 48 prior to testifying. As to Counsel’s Summation: This and other courts have previously addressed the effectiveness of a trial counsel’s summations, typically finding that the summations were grounded in trial strategy. Eg., People v Hood, 279 AD2d 699 (3 Dept. 2001), People v Benn, 68 NY2d 941 (1986). As the Court of Appeals observed in Benn, “(i)ndeed, defendant suggests nothing better.” 68 NY2d at 942 (1986). Ultimately, defense counsel’s summation was “was reasonable under the circumstances, and (his) strategy did not impair the fairness of the trial or affect its result.” People v Monroe, 6 AD3d 240, 240 (1 Dept. 2004) (citations omitted); see also, People v Hogencamp, 295 AD2d 643 (3 Dept. 2002); People v Baston, 181 AD2d 786 (2 Dept. 1992); People v Brito, 304 AD2d 320 (1 Dept. 2003); People v Vanterpool, 143 AD2d 282, 282 (2 Dept. 1988) (commenting that “[w]hile counsel’s summation was decidedly lacking in clarity, review of his performance in its entirety, in conjunction with the evidence, the law, and the circumstances of the case reveals that defendant received the effective assistance of counsel to which he was constitutionally entitled” [citations omitted]). As to the Jury Charge: Defendant claims trial counsel was ineffective for failing to request corroboration and expert witness instructions. In the matter at bar, the contested issue was defendant's culpability for his wife's murder. Because the medical examiner’s testimony did not inculpate the defendant in any way, an expert witness charge was not required. See, People v Nunez, 223 AD2d 507 (1 Dept. 1996). As for a corroboration charge, there was a plethora of evidence demonstrative of defendant’s guilt, thereby negating any requirement for such a charge. See, CPL § 60.50. 49 Moreover, defendant’s statements were either not admissions to committing the crime or were extensively corroborated, thereby making such a charge unnecessary. See, People v Morin, 192 AD2d 791, 792 (3 Dept. 1993). Conclusion Many of “(d)efendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including matters of strategy.” People v McDowell, 125 AD3d 577, 577 (1 Dept. 2015), citing People v Rivera, 71 NY2d 705, 709 (1988); People v Love, 57 NY2d 998 (1982). Those issues include “counsel’s summation strategy and any consultations he may have had with defendant concerning that strategy.” People v Reyes, 62 AD3d 570, 571 (1 Dept. 2009), citing People v Rivera, 71 NY2d 705, 709, (1988); People v Love, 57 NY2d 998 (1982). The errors defendant now asserts were made by trial defense counsel “- viewed in the context of counsel's overall representation - do not rise to the level of ineffective assistance of counsel.” People v Bahr, 96 AD3d 1165, 1166-7 (3 Dept. 2012). Defendant has not shown that any of counsel’s alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case. McDowell, 125 AD3d at 577. “Counsel zealously advocated for defendant, made appropriate pretrial motions, pursued a reasonable defense theory, thoroughly cross- examined witnesses and made appropriate evidentiary objections; thus, viewing the record as a whole, defendant received meaningful representation.” People v McCray, 102 AD3d 1000, 1009-1010 (3d Dept. 2013), citing People v. Benevenuto, 91 NY2d 708, 712 (1998); People v Evans, 81 AD3d 1040, 1041, (3 Dept. 2011), lv denied 16 NY3d 894, (2011). Considering the plethora of issues preserved by defense counsel through his efforts, which are relied upon in 50 defendant’s appeal, it is clear that, while defendant may not have had a perfect trial, he had a fair one. People v Elwood, 80 AD3d 988, 990 (3 Dept. 2011). CONCLUSION For all of the foregoing reasons, the People respectfully request that defendant’s conviction and sentence be affirmed in their entirety. Respectfully submitted, ____________________ Michael J. Genute Assistant District Attorney Chenango County District Attorney’s Office 26 Conkey Ave. Box 126, 2nd Floor Norwich, New York 13815 (607) 337-1745