The People, Appellant,v.Ganesh R. Ramsaran, Respondent.BriefN.Y.June 20, 2017 1 March 13, 2017 John P. Asiello, Esq. Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, New York 12207 Re: People v. Ganesh Ramsaran APL-2016-00228/Chenango County Indictment No. 2013-57 Respondent’s answer to People’s SSM submission Dear Mr. Asiello: I am writing to respond to the prosecution’s SSM submission (Letter of ADA Michael J. Genute, dated February 18, 2017) seeking reversal of the Appellate Division’s order directing reversal of respondent’s conviction and granting him a new trial. This Court should reject the District Attorney’s attack on the Appellate Division’s sound application of well-settled prosecutorial misconduct and ineffective assistance of counsel principles. The trial involved two attorneys: the prosecutor and the defense attorney. The prosecutor resorted to improper tactics throughout the trial, such as admitting three life photographs of the victim and her children for no relevant purpose; eliciting prejudicial and irrelevant testimony about the victim’s life from the victim’s father, mother and sister; and misrepresenting the critical DNA evidence during summation as proof of defendant’s guilt. Unfortunately, the prosecutor was allowed to do whatever he wanted because defense counsel failed to even lodge an objection to virtually all of the prosecutor’s actions. The defense attorney, who has little criminal law experience and was not admitted to practice law in New York, was ill prepared to effectively represent respondent in the face of these charges. He exercised peremptory challenges with little thought; he failed to meaningfully participate during voir dire; he even told the jury “It’s possible [defendant] could have done it” and it was a question he asked himself “a million times” (A 244). Therefore, the order of the Appellate Division should be affirmed. Background 2 As spelled out in greater detail in our Appellate Division brief, respondent, Ganesh Ramsaran, was indicted for murder in the second degree for the alleged murder of his wife. At trial, the only real issue was whether respondent had killed his wife. Contrary to the People’s letter that “there was no shortage of evidence circumstantially demonstrating that defendant killed his wife” (People’s Letter at 1), most of the circumstantial evidence was equivocal, which is fully demonstrated in our Appellate Division brief. A cutting from the front right sleeve of a sweatshirt that respondent allegedly told the police he was wearing on the day of the victim’s disappearance tested positive for the presence of blood and DNA analysis indicated that respondent was a major contributor to the mixture profile from the cutting, with one additional donor – the victim could not be excluded as a possible contributor to the mixture profile (A 166). The analyst opined that the profile is 1.661 quadrillion times more likely to be observed if the donors are respondent and the victim rather than if the donors are two randomly selected, unrelated individuals (A 167). This was one of the most critical – if not the only – piece of evidence linking respondent to the murder of his wife. During summation, the prosecutor repeatedly misrepresented the testimony of the forensic expert as well as the DNA evidence found on respondent’s sweatshirt. For example, the prosecutor stated that “on that sweatshirt is his wife’s DNA and his DNA in an area where there were blood stains was examined” (SA 56). Later, the prosecutor again misrepresented the evidence by saying “That shows that her DNA was on that area where the bloody spot is” (SA 63). He followed that inaccuracy with this: “Why is that? Because he killed her” (SA 63). Finally, the prosecutor incorrectly told the jury “We have the forensic people who say his DNA is on that sweatshirt and her DNA is on that sweatshirt, to some degree” (SA 66). The victim’s family members, including her father, mother and sister, testified at trial and were allowed to inject a tremendous amount of family information that had no bearing on the respondent’s guilt or innocence. Epitomizing the devastating emotional and sympathetic testimony elicited from the victim’s family was the victim’s mother’s response to one of the prosecutor’s questions, asking if she could tell the jury “a little bit about [her daughter]”: She was my baby. She was the only one that I could talk to on the phone because she understood sign language to call me and she would give me the subject so I knew right away what we were talking about and then we could proceed, and it was easy to talk to her. I miss her so. She loved her dogs. She loved her children. When I was diagnosed with diabetes, the next thing I know in the mail was two books, two cookbooks. When I couldn’t eat more gluten, the next thing I know, she did a lot of research and sent me another two cookbooks on how to cook gluten free. She was just so considerate (A 59-60). Similar testimony was elicited from her father and her sister. 3 The jury found respondent guilty of murder in the second degree (Penal Law § 125.25[1]). Defense counsel did not object to the foregoing summation excerpts or the testimony of the victim’s family members. In the Appellate Division, respondent raised many issues.1 As relevant here, first, respondent claimed that the prosecution failed to prove him guilty beyond a reasonable doubt and that the verdict was against the weight of the evidence. Second, he argued that he was deprived of his right to the effective assistance of counsel, which deprived him of his right to a fair trial and entitled him to a new trial. The Appellate Division rejected the reasonable doubt/weight of the evidence point, but held that respondent was entitled to a new trial because he received ineffective assistance of counsel and was deprived of a fair trial (see People v Ramsaran, 141 AD3d 865 [3d Dept 2017]). On November 28, 2016, Judge Pigott granted leave to appeal to the People (28 NY3d 1075). ARGUMENT RESPONDENT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Under the New York constitution, a defendant is denied effective assistance of counsel when the circumstances “viewed in totality” show that the attorney did not provide “meaningful representation” (see People v Benevento, 91 NY2d 708, 712 [1998]). Defense counsel’s performance must be “objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney” (see Benevento, 91 NY2d at 712). To meet this standard, the defense must “reflect[] a reasonable and legitimate strategy under the circumstances and evidence presented” (see Benevento, 91 NY2d at 713). The Sixth Amendment right to counsel also requires an attorney “who has taken the time to . . . prepare” and is familiar with the existing law and facts “relevant to the defense” (see People v Droz, 39 NY2d 457, 462 [1976]). Counsel must “conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow [] enough time for reflection and preparation for trial” (see People v Bennett, 29 NY2d 462, 466 [1972]). 1 In light of the reversal on ineffective assistance of counsel grounds, the Appellate Division did not address many issues raised by respondent. Of specific relevance here, respondent raised issues regarding the admissibility of the three life photographs of the victim, one of which was used during the prosecutor’s summation, the prosecutor was allowed to introduce records of hundreds of jail phone calls and the contents of the phone calls themselves, some of which made reference to an attorney and one call in particularly referenced the court’s increase in bail – leaving the jury with the impression that the court believed defendant to be a flight risk/danger to the community and the exclusion of third-party culpability evidence. 4 The right to the effective assistance of counsel includes the right to have counsel make appropriate arguments and objections “to protect the interests of his client” and prevent prejudicial error in the first place (see People v Dean, 50 AD3d 1052, 1053 [2d Dept 2008]; see also People v Santarelli, 49 NY2d 243, 253 [1980]). A defendant’s right to have counsel protect him from prejudicial error includes an attorney’s duty to make appropriate, contemporaneous evidentiary objections (see Droz, 39 NY2d at 462). Consequently, defense counsel renders ineffective assistance when he inexplicably fails to protest plainly improper, serious evidentiary error (see Droz, 39 NY2d at 462). As this Court has held, ineffective assistance will be established when a defense attorney pursues an “inexplicably prejudicial course” (see People v Zaborski, 59 NY2d 863, 864-65 [1983]). However, even a single error may require reversal if it is “sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” (see People v Caban, 5 NY3d 143, 152 [2005]). (A) “[W]here defense counsel fails to object when faced with a pattern of prosecutorial misstatements far afield from acceptable argument, such as statements that misrepresent evidence central to the determination of guilt, and where there is no apparent strategic explanation for defense counsel’s silence, defendant has been deprived of meaningful representation and the constitutional right to a fair trial” (see People v Wright, 25 NY3d 769, 780 [2015]). Despite the Appellate Division decision, the People continue to assert that the prosecutor’s remarks were fair inferences from the evidence and that his conduct was not as bad as the conduct of the prosecutor in this Court’s People v Wright decision. Contrary to that assertion, the prosecutor’s remarks were not fair inferences from the evidence – they grossly misstated the evidence. During his opening statement, the prosecutor boldly declared: You’re also going to hear that remnants of her blood were found on the defendant’s sweatshirt that he was wearing on the day of the homicide. And you’re going to have the forensic people testify to the fact that her DNA and blood were mixed with his to find those two samples together (SRA 1). From the outset, the prosecutor misrepresented the evidence the jury would hear during the trial. “Remnants of her blood” is not an inference that can fairly be drawn from the evidence. “Her DNA and blood were mixed with his” is not an inference that can fairly be drawn from the evidence. Instead, these were intentional misrepresentations during the prosecutor’s opening statement about what the evidence would show or the prosecutor simply did not understand the evidence himself. 5 The People’s expert testified that the cutting from the sweatshirt consisted of a mixture profile consistent with defendant being the major contributor admixed with DNA from at least one additional donor (A 167). The minor contributor was interpretable – the victim could not be excluded as a possible contributor to the mixture profile (A 167). According to their expert, the profile is 1.661 quadrillion times more likely to be observed if the donors are respondent and the victim rather than if the donors are two randomly selected, unrelated individuals (A 167-68). Nonetheless, their expert testified that there were not enough alleles or DNA data to say conclusively that the victim’s DNA was present. The expert never testified that the victim’s DNA was present in the mixture. Rather, the expert testified that she could not be excluded from the mixture. The prosecutor, through each of his comments on DNA, used the “could not be excluded” testimony, to tell the jury that the victim’s DNA was included in that mixture. That is what the prosecutor attempted to do and what makes the defense attorney’s complete failure to object to these remarks so dangerous. Because the jury hears complex testimony involving the DNA combined with an ineffective cross-examination by counsel who was clearly unprepared to challenge the scientific testimony in this case, and in summation, they hear the prosecutor repeatedly make comments that directly indicate the victim’s DNA was included in the mixture. For instance, the prosecutor told the jury “on that sweatshirt is his wife’s DNA and his DNA in an area where there were blood stains” (SA 56). This, again, is not an inference that can fairly be drawn from the evidence. Continuing with the tactic of misrepresentation, the prosecutor went on to claim that the report and the expert’s testimony “shows that her DNA was on that area where the bloody spot is. Why is that? Because he killed her” (SA 63). Now, the People argue that the preceding comments of the prosecutor establish that he was seeking the jury to draw an inference and that he did not misrepresent the evidence. The comments preceding that statement, however, are also inaccurate. Instead, the preceding comments espouse the theory that the victim’s DNA is included in that mixture. While the prosecutor stated it “is not an absolute match” and he told the jury “there’s alleles there for the victim and the alleles are there for the defendant”, he told the jury the expert said “there is not enough alleles there to conclusively say that that is all of her DNA . . . you need more alleles to say it was conclusively her” (SA 62). The prosecutor is clearly stating that the victim’s DNA is included in that mixture – just not all of it. The final remark by the prosecutor about DNA reiterates his belief that the evidence shows that the victim’s DNA is included in that mixture. To that end, the prosecutor stated “We have the forensic people who says his DNA is on that sweatshirt and her DNA is on that sweatshirt, to some degree” (SA 66). Yet another comment not fairly inferable from the evidence. The prosecutor unequivocally states that the expert told the jury her DNA is on that sweatshirt to some degree. This transforms the 6 testimony of the expert, who said she could not be excluded, into the victim’s DNA can be included in the mixture. These failures to object to the prosecutor’s inaccurate and misleading descriptions of the DNA evidence during his closing, as in Wright, “constitutes a pattern of inexcusable mistakes that cannot be attributed to a failed trial strategy, and which denied defendant a fair trial” (see Wright, 25 NY3d at 779). Indeed, attorneys cannot play fast and loose with what DNA evidence means particularly because “forensic DNA testing has become an accurate and reliable means of analyzing physical evidence collected at crime scenes and has played an increasingly important role in conclusively connecting individuals to crimes” (see People v Pitts, 4 NY3d 303, 309 [2005]). The People’s case rested on equivocal circumstantial evidence. Allowing the prosecutor to misrepresent the DNA testimony, unchecked, deprived respondent of a fair trial. For that reason, the Appellate Division held that defense counsel’s failure to object to the prosecutor’s remarks about DNA in summation to have deprived defendant of a fair trial by itself. (B) Sadly, defense counsel’s failures did not begin and end with a failure to object to the prosecutor’s summation. Of note, the Appellate Division addressed two other failings: the failure to object to irrelevant and prejudicial family testimony and the ineptness of defense counsel’s own summation. To begin, this Court has long held that “family information about a victim is an important aspect of the victim’s life, generally, it has no bearing on [a] defendant’s guilt or innocence” (see People v Harris, 98 NY2d 452, 491 [2002]). This is so because “jurors have an obligation to decide the issues in the case in a judicial temper” – “[a]ppeals to sympathy or prejudice can but be harmful” (see People v LaValle, 3 NY3d 88, 113 [2004][internal citations and quotations omitted]). Undeterred by the law, the prosecutor pressed on and elicited irrelevant and prejudicial background information about the victim’s life and other irrelevant testimony about respondent’s general demeanor. The People, incredibly, state that this was a strategic decision made by counsel (People’s Letter at 15 [“Defense counsel maintained an obvious strategy throughout the trial of engaging the jurors and presenting his defendant in a straight-forward light to the jury]). We do not know what that means. It can fairly be said that every defense attorney throughout the State of New York attempts to engage jurors and present their clients in a straight-forward light. Lodging appropriate objections to irrelevant and prejudicial testimony that overwhelms a jury with emotion and prohibits a jury from dispassionately evaluating the evidence does not detract from this “strategy.” The failure of defense counsel to object to this type of testimony should be viewed alongside the People’s overall intent in this case, namely, to inject as much 7 sympathetic and emotional testimony as possible in order to overcome the gaps in proof. For example, the People introduced three life photographs of the victim, for no relevant purpose. At least defense counsel objected to this conduct. People’s Exhibit 152 contains a solitary photograph of the victim, but incredibly, the photograph also contains a peace symbol in the form of a dove in the upper left-hand corner. People’s Exhibit 153 depicts the victim with her children, but the picture is focused on the children, while the victim is secondary to them. The prosecutor even misused one of the photographs during summation with an emotional appeal that was not objected to by defense counsel (A 265- 66). Next, defense counsel gave an inept summation. The People do not even seem to dispute this in their letter. Defense counsel’s strategy, if you will, during summation was to focus the jury on the intentional element of murder, even though the defense was quite simply, respondent did not murder his wife (A 238-43, 245, 247-48). Defense counsel told the jury “It’s possible he could have done it. I’ve asked myself that question a million times. Is it possible Remy could have done it” (A 235). A defense attorney, in a murder case, told the jury it was possible his client committed the crime. That is unbelievable. That is not meaningful representation. Moreover, defense counsel misrepresented various legal standards throughout the summation to the point where County Court felt compelled to give the jury appropriate instructions after the summation ended. While these were the specific failings noted by the Appellate Division, there was much more. Defense counsel prepared to waive pre-trial hearings, which would have enabled the defense to challenge some of the important evidence the prosecutor relied upon, simply because the hearing was open to the public. He only participated in the hearing because County Court allowed him to waive a public hearing. His lack of legal knowledge was on full display when he attempted to call respondent to the stand during the hearing under the mistaken belief that whether a statement was voluntary or not was a subjective inquiry. Jury selection is one of the most important phases of the trial because defense counsel ultimately selects who sits on a jury, since the defense exercises peremptory challenges last. Defense counsel exercised a single peremptory challenge during the first panel. Only after being informed that nine jurors would be seated, did defense counsel then decide to challenge two more jurors. During the second round of jury selection, defense counsel simply asked if the jurors had any questions for him and sat down (A 9). Finally, defense counsel encouraged respondent to testify. Respondent repeatedly reiterated he did not and would not testify. Defense counsel continued to encourage him to testify and ultimately, because counsel was so insistent that he do so, he testified. There was no point to this testimony and defense counsel failed to prepare to conduct a meaningful direct examination and failed to prepare respondent to testify on both direct and cross-examination. 8 In sum, this Court, in reversing a murder conviction based on a defense attorney who was just as ineffective as counsel was in this case, put it best: While defense counsel’s errors in this case individually may not constitute ineffective assistance, the cumulative effect of defense counsel’s actions deprived defendant of meaningful representation. Defense counsel’s actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation (see People v Oathout, 21 NY3d 127, 132 [2013]). We can think of no better way to summarize the lack of meaningful representation provided to respondent when the stakes were at their highest. (C) Considering the well-settled state of the law and the clarity of the Appellate Division decision, we do not oppose section 500.11 review. Accordingly, the Appellate Division ruled correctly, and the order reversing respondent’s conviction and ordering a new trial should be affirmed. Yours truly, Cheryl F. Coleman Attorney for Respondent cc: ADA Michael J. Genute, District Attorney, Chenango County