The People, Appellant,v.Ganesh R. Ramsaran, Respondent.

Brief

N.Y.June 20, 2017

OFFICE OF THE DISTRICT ATTORNEY DISTRICT ATTORNEY COUNTY OF CHENANGO JosEPH A McBRIDE EATON CENTER 0 R l G IN A L CONKEY A~~:u~~~ND FLOOR NORWICH, NEW YORK 13815 New York State Court of Appeals 20 Eagle Street Albany, NY 12207 Your Honors: (607) 337-1745 Fax: (607) 337-1746 RE: People v Ramsaran Docket No. APL-2016-00288 FIRST ASSISTANT MICHAEL D. FERRARESE fU!C~i:mn:o MAR 2 9 2017 NEW YOR!< STi1J'E COURT OF APPEALS On Friday, March 17, the Chenango County District Attorney's Office received Ms. Coleman's responding letter on behalf of Mr. Ramsaran dated March 13, 2017. The People hereby respectfully request, pursuant to Rule 500. II (e), that the Court consider the very brief Reply below to the respondent's March 13 submission. PEOPLE'S REPLY A. The prosecutor's few DNA related comments, challenged for the first time on appeal In criticizing the propriety of the prosecutor's remarks during summation and arguing lbr reversal as was ordered in People v White, 24 N.Y.3d 759 (2015), defendant makes much of the fact that the People's DNA expert testified that the victim, Jennnifer Ramsaf'illl, could not be excluded as a contributor to the DNA profile from the blood found on the defendant's sweatshi.rt. Defendant's argument overlooks the fact that the expert also testified that there were alleles that matched those of the victim, albeit not enough for him to conclusively state that it was the victim's DNA pro.file. See RA297. As the People have previously pointed out, the expert calculated the likelihood ratio statistic, which indicates the probability that the defendant and victim's DNA profiles are part of the mixture on the sweatshirt- i.e., It's the probability of seeing the evidence if the two contributors were [defendant] and [Jennifer] versus the contributors being two randomly selected individuals from the population, is 1.661 quadrillion times more likely to be observed if these two individuals, [defendant and Jennifer), were the donors to the profile rather than if two randomly selected individuals were the donors. --AI 67. This is different from the DNA analysis Wldettaken in Wright, 25 N. Y.3d at 784, where the record establishes that Y-STR DNA testing was utilized. The statistics produced by Y-STR DNA testing are never used for individualization purposes, but instead to include or exclude an individual from a pool of possible DNA donors who may be male relatives. In the instant case, the astronomical statistics produced by the STRMix probabilistic genotyping software clearly indicates that it is far more probable that the victim is included rather than excluded from the ASSISTANT lAURA R. PARKER ASSISTANT MICHAEL J. GENUTE mixture. Given that, the People reiterate that the prosecutor's remarks about the DNA were fair inferences from the evidence. If not deemed fair comment on the evidence, the prosecutor's remarks in summation constitute, as pointed out in the People's initial submission, just two or three inadvertent misstatements of the evidence. The defendant now points to the prosecutor's comment in his opening statement indicating that the jurors would "hear that remnants of [Jennifer Ramsaran's] blood were found on the defendant's sweatshirt that he was wearing on the day of the homidde;" more particularly, "the forensic people [will] testifY to the fact that her DNA and blood were mixed with his to find those two samples together." SRA 1. Although this previewing remark did not mirror what the DNA expert testimony proved to be, the trial judge instructed the jury that "nothing that either attorney may say in the opening statement or at any time during this trial constitutes evidence" (2SAI 1), thereby eliminating any potential undue prejudice. See, People v. Mussmacher, 133 A.D.2d 352, 353 (2nd Dept 1987) (con\iction affinned even though prosecutor made reference, in opening statement, to statements suppressed before trial; jury had been instructed that opening statements are not evidence). As defendant suggests, the People's argument is, in part, that the prosecutor's comments in the matter at bar were "not as bad as the prosecutor" in Wright. To be more specific, the prosecutor's comments in the matter at bar pale in comparison not only to the remarks in Wright, but in light of the evidence presented in Wright in two respects. Firstly, and as set fmth above, the evidence presented in Wright was that the detendant's (and co-defendant's) DNA could not be excluded from the relevant items of evidence. Secondly, the remarks by the prosecutor in Wright were viewed by this Court as an "apparent intent ... to persuade the jury that the DNA established U1at ddendant had committed the mpe and murder. when the evidence did not, and could not, dispositively establish his guilt." Wright, 25 N.Y.3d at 784. Neither of these circumstances can be fairly said to be in play here. The prosecutor's comments in the matter at bar clearly do not contradict the evidence presented, as did the comments by U1e prosecutor in Wright. Moreover, the prosecutor did not rely upon the DNA evidence as the lynchpin of the People's case, as there was an abundance of evidence presented and discussed in summation demonstrating that th.e defendant murdered his wife on the morning of December ll, 2012. Ultimately, the prosecutor's comments referencing the victim's DNA being on the defendant's sweatshirt were marginal, when compared with the entirety of the People's case and closing argument, and certainly did not interfere with defendant having a fair trial. Finally, defendant reiterates the reasons set 1brth in his appellate brief below as to why he feels that his trial attorney's performance was fatally deficient. In this regard, the People continue to rely upon its Respondent's Brief to U1e Third Department, specifically Point IV, as well as those put forth in the People's original submission before this Coutt. Ultimately, the arguments made by defendant that trial counsel was ineffective fail to adequately consider 1 2SA refers to the People's Second Supplemental Appendix that is being filed and served with U1is letter reply brief. defense counsel's strategic approach or lack of undue prejudicial impact upon the defendant's right to a fair trial. Throughout, defense counsel zealously represented defendant as evidenced by his familiarity with the facts of the case and his acute cross-exan1ination of the People's witnesses. "In determining whether a defendant received meaningful representation, counsel's etTorts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective." People v. Parson, 27 N.Y.3d 1107, 1108 (2016), citing People v. Benevento, 91 N.Y.2d 708, 712 (1998). While defendant now takes issue with much of trial counsel's tactics, "hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel." People v. Schulz, 4 N. Y .3d 521, 531 (2005), citing People v Baldi, 54 NY2d 137, 151 (1981); see also, Parson, 27 N.Y.2d at 1108. For all these reasons, it is respectfully requested that tl1e Appellate Division, Third Department's order be reversed and defendant's conviction be reinstated. With deep thanks for your courtesy and attention, I am Most· spectfully o~ Assistant District Attorney STATEOFNEWYORK COURT OF. APPEALS -------.-----------------------------------------------·---------X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- GANESH R. RAMSARAN, Respondent. ------------------------------------------------------------------X RULE 500.11(m) CERTIFICATION MICHAEL J. GENUTE, the attorney who signed the letter brief submitted on behalf of the People/ Appellant in the above captioned matter, hereby certifies that, per the Microsoft Office Word processing system, the letter brief is 1,083 words. Dated: Norwich, New York March 28, 2017 '/}Mv: MICHAEL J. GENUTE Assistant District Attorney []ORIGINAL Affidavit of Service by Mail New York Supreme Court Appellate Division - Third Department THE PEOPLE OF THE STATE OF NEW YORK: Plaintiff- Appellant, -against- GANESH RAMSARAN, Defendant. -Respondent. The nndersigned being duly sworn deposes and says: ~I\' c.. ~ ~ (~0'-~ · , is not a party of the within action and is over 18 years of age. That on March 9, 2017 (I) I mailed at the United States Post Office located at 685 Watervliet Shaker Road, Lat~"'-"'c!- e>IML · New r:ork 12110, one (1) copy of the Appellant's Second Supplemental Appendixfm theCO{v\ 0 -\.- ~ followmg party: o,J Cheryl Coleman, Esq. 90 State Street, Suite 1400 Albany, New York 12207 Peo&l g_s (( (,)~ \_j c~,._,. '/"~ :;;:;lQ_,t~ Sworn to before me this .21 -n, Day of ~ :liJt 7 ?~~J. ()__,~ NotaJ:yPlk t TERRY I. JOSLIN Notary Public, State of New York Qualified in Saratoga Co.ury.y), My Commission Expires-lff' intedName MAR 2 9 2017 NEW YORK STATF. COURT OF r\PPEI\LS