The People, Appellant,v.Ganesh R. Ramsaran, Respondent.BriefN.Y.June 20, 2017 Oral argument time requested 10 minutes STATE OF NEW YORK APPELLATE DIVISION SUPREME COURT THIRD DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK Respondents, -against- Indictment No. 2013-57 GANESH RAMSARAN, Defendant-Appellant. APPELLANT’S BRIEF CHERYL COLEMAN, ESQ. Attorney for Defendant-Appellant 90 State Street, Suite 1400 Albany, New York 12207 518-436-5790 518-436-5793 (fax) TO: Hon. Joseph A. McBride District Attorney, Chenango County 26 Conkey Avenue Box 126, 2nd Floor Norwich, New York 13815 Dated: November 16, 2015 TABLE OF CONTENTS Page TABLE OF CONTENTS ............................................................................................................. i PRELIMINARY STATEMENT ................................................................................................. 1 STATEMENT OF FACTS .......................................................................................................... 2 I. COUNTY COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN ADMITTING INTO EVIDENCE THREE LIFE PORTRAITS OF THE VICTIM, INCLUDING ONE WITH HER CHILDREN, FOR NO RELEVANT PURPOSE….13 II. COUNTY COURT ERRED IN ALLOWING THE PEOPLE TO INTRODUCE EVIDENCE THAT APPELLANT HAD BEEN PHYSICALLY VIOLENT TO SAYLES…………………………………………………….………………………………17 A. The People Failed to Disclose this Prior Bad Act Pursuant to its Brady Obligation .................................................................................................................. 17 B. County Court Failed to Weigh the Probative Value and the Potential for Prejudice in Allowing the People to Inquire on Redirect Examination ............... 18 C. The People Impeached Their Own Witness and County Court Failed to Issue Limiting Instructions at the Time and in the Final Charge .................................. 20 III. THE COURT DENIED APPELLANT A FAIR TRIAL, IN ADMITTING EVIDENCE OF ARGUABLY IMMORAL CONDUCT, JAIL PHONE CALLS AND JAIL RECORDS……………………………………………………......…...………22 A. The Limited Admissibility of Uncharged Crimes Evidence ................................. 22 B. The Court Failed to Undertake a Proper Molineux Analysis and Failed to Instruct the Jury on the Limited Purpose of Molineux Evidence ........................ 23 C. The Evidence Admitted Under Molineux and the Prosecutor’s Failure to Abide by the Court’s Ruling .................................................................. 25 D. Analysis ...................................................................................................................... 26 E. Errors were not Harmless ........................................................................................ 30 IV. DEFENSE COUNSEL FAILED TO SATISFY THE STATUTORY REQUIREMENTS FOR PRO HAC VICE ADMISSION, COUNTY COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN ADMITTING DEFENSE COUNSEL PRO HAC VICE AND ACCORDINGLY APPELLANT WAS DENIED HIS RIGHT TO COUNSEL.........................................................................................…...32 V. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL…..34 VI. THE PEOPLE FAILED TO PROVE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE……………………………………………………………………...45 VII. COUNTY COURT DENIED APPELLANT THE RIGHT TO PRESENT A DEFENSE BY EXCLUDING THIRD-PARTY CULPABILITY EVIDENCE THAT THE VICTIM WAS BEING STALKED BY SOMEONE…………………….53 VIII. COUNTY COURT ERRONEOUSLY LIMITED THE DEFENSE CROSS- EXAMINATION OF EILEEN SAYLES BY PRECLUDING THE DEFENSE FROM ELICITING ADMISSIONS MADE BY APPELLANT IN VIOLATION OF THE RULE OF COMPLETENESS…………………………………………………….57 IX. THE INTEGRITY OF THE GRAND JURY PROCEEDING WAS IMPAIRED…..60 X. THE MEDICAL EXAMINER’S OPINION THAT THE VICTIM’S DEATH WAS A HOMICIDE INVADED THE PROVINCE OF THE JURY………………62 CONCLUSION ........................................................................................................................... 63 1 PRELIMINARY STATEMENT By right, appellant Ganesh Ramsaran appeals from a judgment of the County Court, Chenango County (Revoir, Jr., J.), rendered on December 1, 2014, convicting appellant, after a jury trial, of second-degree murder, and sentencing him to an indeterminate term of 25 years to life in prison. Appellant is currently incarcerated pursuant to this judgment of conviction. 2 STATEMENT OF FACTS Introduction Appellant was indicted for the murder of his wife. The only issue in the case was whether appellant was the individual who murdered the victim. Unfortunately, not only was defense counsel ill prepared to effectively represent appellant in the face of these charges, but the People resorted to improper tactics, such as introducing three life portraits of the victim and focused on collateral, but prejudicial issues. The end result was a jury that was overwhelmed by highly prejudicial, but irrelevant evidence and underwhelmed by the lack of an effective defense counsel. Taken individually or collectively, these errors deprived appellant of his right to a fair trial. The People’s Case at Trial At the time the victim disappeared, she and appellant were headed towards divorce. They were both living together with their children. On the morning of December 11, 2012, appellant took his children to school and returned home. It is at this point that the People’s theory and the defense theory sharply diverged. Appellant repeatedly told the police the victim had left the house to go shopping in Syracuse and never returned home. The People posit that appellant murdered the victim inside of their home shortly after returning home and dumped her body in a remote location. Either way, the victim was never seen again, until the police discovered her body months later. Victim’s Disappearance On the evening of December 11, 2012, at approximately 5:30 PM, appellant called his father-in-law to tell him his daughter had not returned home from shopping and she was thirty minutes late (A 52). Later that night, at approximately 7:54 PM, appellant called the police to report his wife as a missing person (A 10). When Officer Richard Pagillo arrived at appellant’s 3 home, appellant told him his wife had gone shopping in Syracuse and she should have been home by 5:00 PM (A 11). Appellant was very upset and showed Pagillo his call log, demonstrating his attempts to reach his wife (A 11-13). According to Pagillo, appellant told him their marriage was good (A 12). Recovery of the Victim’s Phone The night of the victim’s disappearance, police attempted to locate the victim’s phone using the “Find My iPhone” app (A 24). Appellant had previously tried to use the app to find the victim’s phone, but was unsuccessful (A 24). With police assistance, the app began working and showed the victim’s phone signal in the area of Moon Hill and State Highway 23 (A 25). After a brief, two hour search, the police were unable to find the victim’s phone (A 26-27). Appellant went to search the area and he found the phone (A 28). Recovery of the Victim’s Van Five days after the victim’s disappearance, appellant went for a drive with the victim’s father, Thomas Renz (A 54). Mr. Renz claimed that appellant “guided” him past the victim’s missing van (A 54). After returning from that drive, Mr. Renz drove back out to the area where he thought he saw his daughter’s van and discovered her van off of Route 23 (A 55). A forensic search of the van revealed several blood stains throughout the interior of the van (A 156-57). Blood stains were located on the interior driver door, on the floor of the driver’s compartment, 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 (A 157). Discovery of the Victim’s Body In February of 2013, Deputy Sheriff Kelly Hayner, received a call from her father about finding what looked like a body on his property (A 124-25). When Hayner arrived, she looked at 4 the location and discovered the body of a female sticking out of the snow (A 126-27). Based on the recovery of an earring next to the body and DNA analysis, the body was the victim’s (A 141- 42). Victim’s Autopsy Based on decomposition, the condition of the skin and obvious animal activity, Dr. Robert Stoppacher opined that the victim had been dead for some time, consistent with her body being dumped on December 11, 2012 (A 132-33, 140). Other than the animal activity, the external injuries were limited: bruising on her arm, bruising on her right leg, small tears on her left thumb and a tear to her bottom left foot (A 134-35). Internal injuries included an area of bleeding underneath the skin of the scalp, approximately 1.5-2 inches in size and a hemorrhage on the back of the scalp, indicating that part of the scalp had been struck by something (A 136). In addition, underneath the skin on the back of the victim, there were two very narrow bands of hemorrhage from left to right across the back, indicating that some sort of pressure had been applied (A 136). Based on his observations and examinations, Dr. Stoppacher opined that the manner of death was homicide, ruling out any natural, accidental or suicidal cause of death (A 138-39). He was not, however, able to opine as to the victim’s cause of death (A 137). DNA Evidence The New York State Police Laboratory conducted extensive analysis of swabs and other items of evidence for any blood or DNA. Ultimately, the analysis yielded very little and amounted to equivocal evidence. In appellant’s residence, the police recovered a sheet and a sweatshirt that appellant allegedly told the police he was wearing on the day of the victim’s disappearance. At the lab, an analyst took a cutting from the middle of the sheet, used a presumptive test to determine if blood 5 was present and preserved the cutting for DNA analysis. The cutting tested positive for the presence of blood and DNA analysis indicated that the victim was a major contributor to the mixture profile from the cutting (A 168). The cutting from the front right sleeve of the sweatshirt tested positive for the presence of blood and DNA analysis indicated that appellant 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 appellant and the victim rather than if the donors are two randomly selected, unrelated individuals (A 167). In the van, the police took numerous swabs throughout the vehicle, as well as a cutting from some carpet. Swabs from collection areas D, E, F, G, H tested positive for the presence of blood and DNA analysis indicated the victim matched the profile derived from these swabs (A 162-65). Swabs from collection areas A, B and H tested positive for the presence of blood and DNA analysis indicated the profile derived from these swabs was consistent with the victim (A 162-65, 168). The cutting from the carpet in the van tested positive for the presence of blood and DNA analysis indicated the victim matched the profile derived from that cutting (A 164-65). The People’s Theory In light of these facts, at trial, the People asserted, without direct evidence, that sometime around 8:15 AM on the morning of December 11, after appellant returned home after dropping his children off at school, appellant intentionally attacked and killed the victim in their home, attempted to clean up any blood evidence, used the victim’s van to transport her lifeless body to a remote location, dumped her body in a ravine, abandoned her van in a parking lot and then went to the local YMCA where he was eventually picked up by his girlfriend. In support of this 6 hypothesis, the People offered circumstantial evidence of defendant’s motive, opportunity and consciousness of guilt. Circumstantial Evidence of Motive After eliciting appellant’s statement that the marriage was good, within hours of his wife’s disappearance, the People sought to capitalize on this statement by presenting evidence indicating that the state of the marriage was poor and other motive evidence. First, the People suggested that appellant murdered his wife as an alternative to a divorce. To that end, during a visit in the fall of 2012, Jason Wicks and appellant had a conversation about divorce and the attendant consequences of divorce such as alimony, custody of children, child support and what, if any, impact an affair would have on such proceedings (A 16-17). Appellant openly spoke of divorcing the victim (A 79). Five days before her disappearance, the victim had made an appointment with a matrimonial law firm – although appellant was unaware of this appointment (A 155). Next, the People stated that appellant murdered his wife because of his ongoing sexual relationship with the victim’s friend, Eileen Sayles. In February of 2012, appellant began having an affair with Sayles (A 14-15, 76). The affair continued until the end of November when Sayles moved back in with her husband (A 81). According to Sayles, appellant was upset with her for ending their relationship and he sent her an e-mail expressing his feelings (A 81). The day before the victim’s disappearance, appellant and Sayles had sex (A 82-83). In addition, the People were permitted to elicit and introduce sexually explicit conversations and photographs between appellant and Sayles (A 18-19, 90-91, 97, 183-84). Appellant supposedly called Sayles approximately 2,400 times while he was incarcerated (A 197-98). 7 Then, the People suggested that appellant murdered his wife because he was tired of her playing an online game. In a few interviews, appellant discussed his distaste with the victim’s obsession with an online game (A 129). Finally, the People claimed that appellant murdered his wife in order to collect on the $200,000 life insurance policy. In March of 2013, well after his wife’s disappearance, appellant contacted Prudential Life Insurance Company to notify them that his wife had passed (A 161). Nothing in the record indicates when the policy began or of any increases or other policy changes leading up to the victim’s disappearance. Circumstantial Evidence of Opportunity The People also presented evidence of the appellant’s and the victim’s location during the time of her supposed disappearance and evidence of the presence of blood, which was determined by DNA analysis to be the victim’s, in support of the theory that the victim had been killed in the house on the morning of December 11, 2012. Evidence of appellant’s location rested largely on his own account. A few days after the victim’s disappearance, the police interviewed appellant multiple times. He indicated the morning started as usual: he got the children breakfast, the victim made the children their lunch for the day, he took the children to school and dropped them off and returned home (A 128, 187-88). Once he returned home, the victim was eating and he logged on to his work computers (A 128, 187). While appellant was working, the victim went downstairs and exercised (A 128, 187). Following her workout, the victim showered and left to go to the mall in Syracuse in between 10:00 and 11:00 AM (A 128, 187). This timeline is consistent with the victim’s phone last being connected to the home network at 10:57 AM (A 160). 8 After the victim left, appellant went for a run to the YMCA (A 188). He told the police he took a right onto Sheff Road, ran to State Route 23, took a right down Tanner Hill and took a left down North Broad Street to get to the YMCA (A 188). To counter appellant’s account, the police recovered video from various locations along his stated route – according to the police, appellant was not located on any of the video surveillance they recovered (A 189-91). Video did corroborate appellant’s account of going to YMCA as well as several witnesses who saw him there (A 68-69, 74-75). In an effort to contradict appellant’s account, the People presented evidence disputing that appellant was working. Christopher Roper, a director for forensic investigations for IBM, analyzed appellant’s two work computers to determine what, if any, activity was being performed on the computers (A 158). Based on Roper’s analysis of one computer, it was powered up and running, but it was sitting idle the entire morning – the computer was not being used in any way (A 158). The other computer, according to Roper, was being used (A 158). That computer connected to the IBM server, but was terminated at 8:08 AM (A 158). Following that termination, the computer began to install a copy of Microsoft Office at approximately 8:15 AM and ended at approximately 8:24 AM (A 158). No further work was done on that computer until 6:31 PM (A 158-59). The People also presented hearsay evidence disputing that the victim would have traveled to Syracuse that day. According to Robert Houston, a member of the victim’s online game group, the victim had plans to go shopping in Syracuse with her friend Eileen later in the week (A 150). Houston also claimed that the victim planned to go to Syracuse in Eileen’s car because her car was making a noise, which made her uncomfortable with driving the car far from home (A 150-51). 9 Under the People’s theory, appellant returned home from dropping his children off at school, went upstairs, found the victim lying in bed playing an online game and he killed her. To support this theory, the People presented evidence that the victim was actively communicating online with Houston, when the communication suddenly stopped and the device showed the victim had gone offline (A 151). According to Houston, the victim never stopped communicating or left the game without informing him of why she was leaving (A 151-52). Houston did not hear from the victim again (A 152-53). The texts of these messages were not saved (A 153). Based on the aforementioned facts and inferences, the People contended that the victim did not leave for Syracuse, but instead, was murdered by appellant during the early morning hours of December 11, 2012. Circumstantial Evidence of Consciousness of Guilt In this vein, the People offered evidence of appellant’s behavior following the victim’s disappearance and argued that it was not consistent with that of a man whose wife had gone missing. This behavior, in the days following her disappearance, included contacting the victim’s family and the police too soon on the evening of December 11, 2012 when the victim had not returned home and not participating in the search for her (A 39, 53-54); appellant allegedly stating his wife’s funeral would be his first funeral on a Facebook post (A 41); appellant did not want friends and family to make the trip to his house following the victim’s disappearance (A 22, 37); appellant tried to convince the victim’s family that she was “sexting other men,” addicted to computer games, taking drugs and that she ran off with someone (A 23, 42, 55, 67); and appellant threw a birthday party for one of their children a few days after the victim’s disappearance (A 40). The People also offered evidence of appellant visiting Sayles’s parents to tell them he had been sexually involved with their daughter (A 70); appellant was upset she had returned to her 10 husband (A 71); appellant asked Autumne Arotsky why she had never had a three-some with him and the victim and why they had never “hooked up” (A 72-73). Defense Case At the close of the People’s proof, appellant elected to interpose a defense, testifying on his own behalf. Appellant explained that he had been contemplating a divorce for quite some time and had communicated his desire to get a divorce to several people (A 214-16). On the day of the victim’s disappearance, appellant explained he woke up and had sexual intercourse with the victim (A 217-18). Appellant showered, while the victim went back to sleep (1989). Eventually the children woke up, got ready for school, the victim made the children their lunches and appellant took the children to school (A 219-23). Once appellant returned home, he checked his e-mail, began to transfer data and watched television (A 224). While he was watching television, the victim went downstairs and worked out (A 225). The victim showered, gave appellant a kiss on the cheek and left for the mall (A 226). After the victim left, appellant changed into running clothes and went for a run to the YMCA (A 227-28). When appellant arrived at the YMCA, he used one of their phones to try and call the victim (A 68-69, 229). Unable to reach his wife, appellant called Sayles and asked her to pick him up (A 230). After Sayles dropped him off at home, appellant sent the victim a text message and he showered (A 231-32). The children took the bus home, as usual, and got home at approximately 3:30 PM (A 233). Closer to 5:00 PM, appellant grew worried because it was unlike the victim to not respond to text messages and phone calls (A 234-35). Appellant called his father-in-law, who calmed him down (A 236-37). But as time passed, appellant increasingly became worried and called the police (A 236). 11 Summations Defense counsel gave a meandering, pathetic summation. He focused on the intentional element of murder, even though the defense in this case was, quite clearly, appellant did not commit the murder (A 238-43, 245, 247-48). Defense counsel made remarks like “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 244). These remarks simply indicated that defense counsel thought appellant could be the murderer, undermining appellant’s credibility. Defense counsel argued that the timeline does not fit, even though he took no steps to present that theory to the jury (A 246). The summation given by defense counsel was so inept in explaining the law the jury must apply, that County Court felt compelled to instruct the jury on legal concepts right after the summation (2443- 47). This only undercut defense counsel’s already diminished credibility in the eyes of the jury. The trial prosecutor’s summation focused on inferences drawn from equivocal evidence in order to persuade the jury that the People sustained its burden of proof. He misrepresented the evidence to the jury by telling them that appellant’s sweatshirt contained his and the victim’s DNA in an area where there was blood (A 264, 267-68). The record reveals that the DNA results concluded that appellant was the major contributor of the mixture and the victim could not be excluded from the mixture. Instead, the trial prosecutor misused the DNA evidence, telling the jury that the victim was included in the mixture. The trial prosecutor also stirred the jury’s emotions by using a life portrait of the victim (A 266). Charge, Verdict and Sentencing The court submitted one count to the jury: second-degree murder. The court, however, failed to give appropriate instructions to the jury governing the requirement of corroboration of 12 statements appellant allegedly made and failed to give appropriate instructions to the jury regarding the opinion testimony of various experts. The jury convicted appellant of second-degree murder (A 269). Appellant was sentenced to an indeterminate term of 25 years to life in prison. He appeals. 13 POINT I COUNTY COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN ADMITTING INTO EVIDENCE THREE LIFE PORTRAITS OF THE VICTIM, INCLUDING ONE WITH HER CHILDREN, FOR NO RELEVANT PURPOSE Appellant is entitled to a new trial because the People offered and County Court admitted three life portraits of the victim, including a photograph of the victim with her children (A 45-47). These photographs were not relevant to any disputed or material issue. Indeed, the only purpose these photographs had, were to arouse the emotions of the jurors – as demonstrated by the People in summation. This issue has been preserved as defense counsel objected to the admission of each photograph (A 43-47). Generally, photographs “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” (see People v Pobliner, 32 NY2d 356, 369 [1973]). Photographs should be excluded only if their “sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (see People v Wood, 79 NY2d 958, 960 [1992]). The same general principles apply to pictures of the victim taken while she was alive (see People v Stevens, 76 NY2d 833, 835-36 [1990]). Because these portraits may arouse the jury’s emotions, they are inadmissible “unless relevant to a material fact to be proved at trial” (see Stevens, 76 NY2d at 835; see also People v Dove, 233 AD2d 751 [3d Dept 1996]). Here, defense counsel objected to the admissibility of all three photographs, arguing that the photographs would “inflame” the jury and that they were “highly prejudicial” (A 43-44). Incredibly, the trial prosecutor simply responded that “they’re family photos” and the only stated relevance set forth by the prosecutor was that the “jury has a right to know that she was a person” – as if that was somehow a disputed issue (A 44). Quite clearly, these photographs were only admitted to arouse the emotions of the jury. Why else would the People offer not just one, not just 14 two, but three life photographs of the victim, including one depicting the victim with her children? Nonetheless, County Court admitted the photographs over defense counsel’s objection, stating that the “jury has a right to know who the victim was besides photographs of a body” and “[t]hey’re not engaged in any activities that would otherwise be prejudicial” (A 44-45). The photographs were prejudicial, inflammatory and only served to arouse the jury’s emotions. This is even more apparent upon examination of the photographs. 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. Such a symbol, plainly containing both religious connotations in addition to its secular meanings, only amplified the potential for prejudice. Similarly, 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 record also reveals the trial prosecutor used the photographs for that purpose. In addition to publishing the photographs at the time of their admittance, something he did with very few other exhibits, the trial prosecutor used one of the photographs to inject emotion into his summation. After placing one of the life photographs of the victim on an easel, the trial prosecutor stated: Ladies and gentlemen, this is Jennifer Ramsaran. This is People’s Exhibit 154. Can everyone see the photo? I’m going to move this board over, Judge, just for a little bit. Ladies and gentlemen, Jennifer was a little heavy, and we know the defendant’s feelings about heavy people. And we know that this is a picture of her in happier days. This is a real person that we’re talking about (A 265-66). The offer of and use of these photographs was solely designed to arouse the emotions of the jury and County Court’s decision to admit the portraits was erroneous. For example, in People v Donohue, the trial court allowed the People to introduce a wedding photograph of the victim (see People v Donohue, 229 AD2d 396, 397 [2d Dept 1996]). 15 There, the Second Department reversed the defendant’s conviction on this ground, holding that the “only purpose that the photograph could have served was to inflame the jury’s emotions and to introduce into the trial an impermissible sympathy factor” (see Donohue, 229 AD2d at 398). Similarly, these photographs had no probative value in a trial where the only issue was the identity of the victim’s killer, not whether the victim was dead. The only conceivable function was to evoke sympathy, which is borne out in the record. In allowing the admissibility of these photographs, County Court permitted the People to shift the jury’s focus away from the issues of the case and interject sympathy and emotions into their deliberations. The only remaining issue to resolve is whether this Court should conclude that the error was harmless or not. While the People will undoubtedly rely on a number of cases from this Court and others where the admission of life portraits have been held to be harmless, the People continue to use life portraits, without recourse, for no relevant purpose. The use of these photographs cannot be considered harmless in this case. The doctrine of harmless error recognizes that “[e]rrors are almost inevitable in any trial, improprieties almost unavoidable, [and that] the presence of one or the other furnishes no automatic signal for reversal and retrial” (see People v Kingston, 8 NY2d 384, 387 [1960]). It necessarily follows that “an otherwise guilty defendant is [not] entitled to a reversal whenever error has crept into his trial” (see People v Crimmins, 36 NY2d 230, 241 [1975]). When the error is non-constitutional, such an error is prejudicial only if “the appellate court concludes that there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred” (see Crimmins, 36 NY2d at 242). 16 In determining whether or not the admission of these photographs constitute harmless error, this Court should also review the overall intent of the People in this case, namely, to inject as much sympathetic and emotional testimony as possible in order to overcome the gaps in proof. The People went great lengths to elicit irrelevant testimony about the victim’s life, personality, etc. from the victim’s family members (see, pgs. 40-41 infra). The record reveals that there was far from overwhelming evidence of appellant’s guilt as the case rested entirely on circumstantial evidence and there is a significant probability that the error contributed to appellant’s conviction. 17 POINT II COUNTY COURT ERRED IN ALLOWING THE PEOPLE TO INTRODUCE EVIDENCE THAT APPELLANT HAD BEEN PHYSICALLY VIOLENT TO SAYLES The People were permitted to introduce evidence regarding a specific incident where appellant supposedly screamed and yelled at Sayles, grabbed her arm and pulled her back inside the house to prevent her from leaving (A 115-17). The defense had no notice of this prior bad act, the door was not open, County Court failed to balance the probative value of this evidence versus the obvious potential for prejudice and even though the questions were related to a topic explored on cross-examination, the People impeached their own witness. A. The People Failed to Disclose this Prior Bad Act Pursuant to its Brady Obligation The Due Process Clauses of the Federal and State Constitutions requires the People to inform the defense of evidence favorable to the accused (see Brady v Maryland, 373 US 83, 87- 88 [1963]; People v Bryce, 88 NY2d 124, 128 [1996]). “Impeachment evidence falls within the ambit of a prosecutor’s Brady obligation” (see People v Fuentes, 12 NY3d 259, 263 [2009] citing Giglio v United States, 405 US 150, 154-55 [1972]). The obligation to disclose “is no less applicable when the evidence is relevant only to the issue of credibility” (see People v Novoa, 70 NY2d 490, 496 [1987]). Thus, the People have an obligation to disclose information bearing on a witness’s bias, hostility or motive to fabricate. Without question, information indicating that appellant supposedly had a physical altercation with Sayles and prevented her from leaving his home, bears directly on her bias, hostility and her motive to fabricate. Of course, considering the jury heard the information, meeting the prejudice prong of a Brady violation is unsurmountable. But that is beside the point. The People’s willful nondisclosure of this information led the defense to ultimately open the door 18 in County Court’s view – not knowing about the highly prejudicial information sitting behind the door. B. County Court Failed to Weigh the Probative Value and the Potential for Prejudice in Allowing the People to Inquire on Redirect Examination The “scope and extent of cross-examination is committed to the trial court’s sound discretion” (see People v Hicks, 35 AD3d 1027, 1030 [3d Dept 2007]; People v Fiore, 12 NY2d 188, 201 [1962]). When a party “opens the door” during direct or cross-examination to excluded evidence or other testimony, the “opponent may seek to admit the excluded evidence in order to explain, clarify and fully elicit the question that has been only partially exposed on cross- examination” (see People v Mateo, 2 NY3d 383, 425 [2004]; see also People v Rojas, 97 NY2d 32, 39 [2001]). “The ‘opening the door’ theory must necessarily be approached on a case-by-case basis” (see People v Melendez, 55 NY2d 445, 452 [1982]). Essentially, this was a door opening issue. In County Court’s view, the People had a right to rebut the questions asked and the answers elicited during cross-examination (A 113-14). Unfortunately, the defense had no choice but to ask these questions considering the People repeatedly asked about appellant’s treatment of Sayles during the course of their relationship (A 84-86). Thus, in our view, asking specific questions about appellant’s treatment of Sayles on cross-examination did not open the door to the questions asked on re-direct examination. Worse yet, County Court neglected to balance the probative value against the possible prejudice. On cross-examination, defense counsel asked Sayles specific questions regarding appellant’s treatment of her during the course of their relationship. Sayles stated that appellant never tried to hurt her and treated her very lovingly and warm (A 98). The People sought to question Sayles regarding a specific incident that took place a few weeks after the victim’s disappearance. County Court, while addressing the issue of impeaching one’s own witness, utterly 19 failed in its gatekeeping role by failing to balance the probative value of the evidence versus the potential for prejudice. Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” (see People v Scarola, 71 NY2d 769, 777 [1988]). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence” (see Scarola, 71 NY2d at 777). But “[n]ot all relevant evidence is admissible as of right” (see Scarola, 71 NY2d at 777). “Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (see Scarola, 71 NY2d at 777). The trial court is required to bar evidence, even evidence that is made relevant under the opening the door theory, when the probative value is substantially outweighed by the potential for prejudice (see People v Mateo, 2 NY3d 383, 425 [2004]). In other words, courts must not only ensure that the evidence is relevant, but also that its probative value warrants its admission despite the potential for prejudice. County Court failed to do so. The probative value of the proffered evidence was marginal at best. The only value was to rebut Sayles’s own testimony that appellant had never been violent with her. But that was not the issue before the jury; regardless of appellant’s treatment of Sayles, it had no bearing on whether or not he murdered the victim. The potential prejudice of this evidence of an uncharged crime far outweighed its probative value. To compound the error, County Court failed to issue appropriate limiting instructions to the jury thereafter. Absent any limiting instructions, the evidence of a 20 domestic abuse situation between appellant and Sayles enabled the jury to view appellant through a domestic violence prism. Thus, measuring its slight probative worth against the potential for undue prejudice, particularly in view of its similarity to the crimes with which defendant was charged, the evidence should not have been used. C. The People Impeached Their Own Witness and County Court Failed to Issue Limiting Instructions at the Time and in the Final Charge County Court permitted the People to impeach Sayles with her prior oral statements to the trial prosecutor. In essence, County Court determined that while the People called Sayles as their witness, defense counsel exceeded the scope of the direct examination and thus, Sayles became a defense witness “properly subject to impeachment by the People” (A 113-14) (see People v Dolan, 172 AD2d 68, 75-76 [3d Dept 1991]). But, as mentioned above, the questions on cross- examination did not exceed the scope of the direct examination – rendering the impeachment of Sayles by the trial prosecutor impermissible because her testimony did not relate to a material fact that disproved or affirmatively damaged the People’s case (see CPL 60.35[1]; People v Fitzpatrick, 40 NY2d 44, 51 [1976]). Assuming the impeachment was even proper, the prior inconsistent statements were solely admissible for impeachment purposes, not as affirmative evidence of guilt or appellant’s propensity to commit crimes (see People v Montgomery, 22 AD3d 960, 962 [3d Dept 2005]). Unfortunately, County Court failed to “advise[] the jury of the limited purpose for which such testimony was being received, in order to minimize the prejudice to defendant” (see Montgomery, 22 AD3d at 963). As this Court has held, the “failure to so instruct the jury at the time the evidence was received and again in the final charge ‘was error which heightened the danger of the jury 21 receiving said evidence as proof of defendant’s propensity to commit the crimes charged’” (see Montgomery, 22 AD3d at 963). As in Montgomery, defense counsel failed to provide meaningful representation when “he failed . . . to request any limiting instructions either when the testimony was first elicited . . . or in the final charge to the jury” (see Montgomery, 22 AD3d at 962-63). Nonetheless, this Court should reverse in the interests of justice because the “lack of limiting instructions of any kind at any point requires reversal in the interest of justice, notwithstanding counsel’s failure to properly preserve this issue by requesting instructions or objecting to the court’s failure to so charge” (see Montgomery, 22 AD3d at 963). 22 POINT III THE COURT DENIED APPELLANT A FAIR TRIAL, IN ADMITTING EVIDENCE OF ARGUABLY IMMORAL CONDUCT, JAIL PHONE CALLS AND JAIL RECORDS None of the exceptions to the Molineux rule justified the jury hearing evidence that went to the very heart of the rationale for, generally, not permitting immoral conduct and prior bad act evidence in a criminal trial. Not only did the court allow evidence of appellant’s affair with Sayles, but the court permitted the People to elicit evidence under a nonexistent “obsession with sex” exception to the Molineux rule. This allowed the People to introduce volumes of sexual conversations between Sayles and appellant, photographs of appellant in the nude, sexual photographs that the victim had sent appellant, sexual photographs of the victim with appellant’s face in the picture and sexual photographs of Sayles, which portrayed appellant as a morally depraved individual. The prosecutor violated the Molineux ruling by eliciting testimony of a video that depicted the victim performing fellatio on appellant, even though County Court precluded the admission of that video. County Court also permitted the People to introduce many phone calls made by appellant while in confinement and the records of phone calls appellant made while in jail. The cumulative effect of these errors fueled a juror’s natural tendency to find appellant guilty because he had an immoral mind. Consequently, the erroneous admission of the Molineux evidence foretold the verdict and denied appellant a fair trial. This issue has been preserved as defense counsel objected to the introduction of the Molineux evidence. A. The Limited Admissibility of Uncharged Crimes Evidence Evidence of uncharged crime and prior bad act evidence is generally inadmissible because the “defendant is entitled to have the jury determine his guilt or innocence solely upon evidence tending to prove the crime charged and uninfluenced by irrelevant and prejudicial facts” (see 23 People v Cook, 42 NY2d 204 [1977]). Such evidence is always inadmissible if offered solely to show a defendant’s criminal propensity (see People v Alvino, 71 NY2d 233, 241 [1987]; People v Molineux, 168 NY 264, 291-94 [1901]). The rule set forth in Molineux was established to counteract the common tendency to believe that one “who has committed, or is suspected of committing one offense is likely to commit another, and, therefore, be guilty of the one charged” (see People v Fitzgerald, 156 NY 253 [1898]), and to “eliminate the risk that the jury, not fully convinced of the defendant’s guilt of the crime charged, may, nevertheless, find against him because his conduct generally merits punishment” (see People v Allweiss, 43 NY2d 40, 46 [1979]). Because “propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant’s prior crimes rather than on the evidence - - or lack of evidence - - relating to the case before it” (see People v Rojas, 97 NY2d 32, 36-37 [2001]), uncharged crime evidence is only admissible in limited circumstances: namely, if relevant to prove intent, motive, lack of mistake, common scheme or plan, identity, or to complete the narrative of the crime or provide the jury with background information, or when the prior crime is inextricably interwoven with the crime charged (see Molineux, 168 NY at 293; People v Vails, 43 NY2d 364, 368 [1977]). However, even when uncharged crime evidence is admissible for one of these purposes, it “must be rejected if its potential for prejudice outweighs its probative value” (see People v Till, 87 NY2d 835, 837 [1995]). B. The Court Failed to Undertake a Proper Molineux Analysis and Failed to Instruct the Jury on the Limited Purpose of Molineux Evidence Prior to receiving bad act or uncharged crime evidence, the court must first determine that it is relevant and material to an issue other than the defendant’s criminal propensity (see People v Hudy, 73 NY2d 40, 54-55 [1988]; People v Wlasiuk, 32 AD3d 674, 676 [3d Dept 2006]). If the 24 evidence is determined to be relevant and material on a nonpropensity purpose, the court must then balance its probative value against its potential for prejudice, and exclude the evidence unless the probative value outweighs the potential for prejudice (see People v Westerling, 48 AD3d 965, 966- 68 [3d Dept 2008]). Unfortunately, the court did not take either step of this analysis. The People failed to seek an advance ruling on the admissibility of the sexual photographs, the sexual conversations via Facebook and the jail calls/logs. Perhaps that is why the court did not recognize it had an obligation to conduct such analysis as to this evidence. Not only did the court fail to state a relevant and nonpropensity purpose, the court never weighed the probative value of this evidence against its prejudicial potential. The admission of the sexual photographs, appellant’s phone calls made from the jail and the records of the number of phone calls appellant made while in the jail had little or no probative value. But it did have a devastating prejudicial impact on appellant’s case. Considering the amount and weight of the arguably immoral and bad act evidence, that evidence was highly prejudicial. For example, in Elmy, the court failed to “expressly rule on the prior bad acts/uncharged crimes at issue,” failed to issue “corresponding limiting instructions . . . either at the time such testimony was received into evidence or during the course of the court’s final charge to the jury,” and failed to “balance[] the probative value of such evidence against its prejudicial effect” (see People v Elmy, 117 AD3d 1183, 1186 [3d Dept 2014]). Similarly, the court here, gave no Molineux limiting charge at the time of the testimony as to appellant’s arguably immoral and bad acts. Further, it gave no such charge in its final instructions that would apply to the trial testimony. 25 It is error to receive evidence of prior uncharged crimes or bad acts if Molineux limiting instructions are not given (see Resek, 3 NY3d 385, 389 [2004]). Indeed, so potentially prejudicial is such evidence that the instructions must be given both when the evidence is received and in the final charge (see People v Russell, 16 AD3d 776, 778 [3d Dept 2005]). The court violated these rules by giving no Molineux limiting charge at any time The court’s failure to undertake a thoughtful and deliberate analysis, ascertaining whether the evidence was relevant, and then weighing its probative value against its prejudicial effect, combined with the lack of limiting instructions to ensure the jury used the evidence properly, requires reversal (see Elmy; Westerling, at 968; Wlasiuk, at 677-78). C. The Evidence Admitted Under Molineux and the Prosecutor’s Failure to Abide by the Court’s Ruling Appellant was on trial for the murder of his wife on December 11, 2012. Nevertheless, the jurors were provided with tons of photographs in People’s Exhibit 183, which includes still images from the victim and appellant using an I-phone facetime app. These images depict the victim in various states of undress, including showing her breasts and vagina with a smaller picture of appellant in the background. There are additional photographs of appellant in various states of undress, which the People had someone give an opinion that such photographs were “unusual” (A 199). Included among the photographs were pictures of Eileen Sayles, some clothed, some unclothed. Though the court did not make an admissibility ruling, the People asserted that this evidence fell within an obsessed with sex exception. This theory could not begin to justify the voluminous and highly prejudicial immoral act evidence to which appellant’s jury was exposed. The People were permitted to admit electronic recordings of all of appellant’s jail calls, without any redactions or any thought as to their relevancy or the lack thereof (People’s Exhibits 26 163 and 273). Specifically, the People proceeded to introduce and publish 5 separate phone calls made by appellant during his time at the jail to “illustrate the tone and content of those conversations” (A 198; People’s Exhibits 273-77). The jurors were also provided with a record of appellant’s calls which he made while incarcerated at the Chenango County jail (People’s Exhibits 164-66). Thus, a good deal of the trial was devoted to informing the jury that appellant was engaged in arguably immoral conduct and impairing appellant’s presumption of innocence. D. Analysis Prosecutor’s Failure to Respect the Court’s Molineux Ruling In People v Ventimiglia, the Court of Appeals set forth the “procedure to be followed” when the prosecution wants to admit “potentially prejudicial testimony” (see People v Ventimiglia, 52 NY2d 350, 361-62 [1981]). Prior to trial, or at least before the witness testifies, the prosecutor “should ask for a ruling out of the presence of the jury” on whether the evidence is admissible under the Molineux standards (Id.). The court created this rule because otherwise “there is unfairness to the defendant” since “cautionary instructions” are often ineffective in removing the prejudice caused by bad acts evidence brought before the jury and then stricken following a defense objection (Id.; see also People v Small, 12 NY3d 732, 733 [2009]). Of course, the Ventimiglia procedure is pointless unless the prosecutor respects the court’s Molineux rulings throughout the remainder of the trial. In this case, the prosecutor violated these rules, eliciting uncharged crime evidence that he had not asked in advance to admit. In its pretrial rulings, the court precluded the prosecutor from introducing a video depicting appellant and the victim engaging in a sexual act because, rightly so, the testimony would have been unduly prejudicial (Decision). The prosecutor was not restrained by these rulings. 27 During the People’s case-in-chief, the prosecutor elicited testimony that a video was recovered from appellant’s computer, which depicted the victim performing oral sex on appellant (A 180-82). Not only was this testimony presented in violation of the best evidence rule, but the testimony violated the court’s Molineux ruling. When counsel attempted to point out that this evidence violated a pretrial ruling, County Court overruled any objection (A 181). Smith was permitted to testify that he saw the victim performing oral sex on a male and identified that male as appellant (A 181-82). This was permitted, despite the court’s conclusion that the “potential for undue prejudice, however – to upset or enrage a sensitive, or puritanical, juror – is high, indeed” (Decision). The potential for undue prejudice was not lessened simply because the jury heard, rather than saw, the video. To make matters worse, the court failed to give any curative instructions to the jury regarding this testimony. Obsession with Sex Evidence A good deal of the trial was dedicated to eliciting testimony and introducing evidence to prove that appellant was, in the words of the trial prosecutor, obsessed with sex. According to the People, this obsession with sex drove appellant to kill his wife. While the defense would concede that evidence of an affair and appellant’s desire to have sex with Sayles arguably establishes proof of a motive to kill, that does not mean anything that could be construed as sexual in nature is relevant. Nonetheless, the People introduced evidence to show that appellant did not necessarily conform to Chenango County social mores. First, the jury was able to see approximately 72 sexually explicit photographs of the victim “facetiming” with appellant (People’s Exhibit 183). What appellant and the victim did sexually, during the course of their marriage, had little, if any probative value. The potential for undue prejudice, on the other hand, was high. 28 Second, the jury was able to see approximately 17 photographs of appellant by himself, some of them sexually explicit (People’s Exhibit 183). The presence of these photographs of appellant on his computer had no probative value, but the potential for undue prejudice, particularly in conjunction with the other photographs, was high. In addition to these photographs, the People elicited testimony about the particulars about the photographs (A 170-79, 185-86, 192- 96) and testimony that appellant was “preoccupied” with sex (A 80). Those photographs only sought to portray appellant as a sexual deviant whose sexual proclivities are somehow immoral.1 This was made clear by the trial prosecutor who, in summation, stated that appellant “is obsessed with sex, with the photos that he has on his computer, with the photos of his wife, the photos of his girlfriend, and God forbid, the photos that he has of himself show that he is consumed with sex and sexual content” (A 256). For example, in People v Setless, this Court held that evidence of a sexual relationship between the defendant’s son and the victim and evidence of a sadomasochistic relationship between the victim and the defendant was reversible error (see People v Setless, 213 AD2d 900, 901 [3d Dept 1995]). In this Court’s view, there was no relevance to some of the testimony and the potential prejudice outweighed any probative value (see Setless, 213 AD2d at 901). Compounding the error, the court below failed to conduct a hearing or to issue the required limiting instructions (see Setless, 213 AD2d at 902). Similarly, in this case, while appellant’s possession of some naked photographs of Sayles might be said to bolster evidence of a motive to kill, there is no analogous relevance to the admission of explicit photographs of the victim and appellant. The potential prejudice of this evidence far outweighed its probative value. And, like in Setless, County Court failed to conduct 1 The trial prosecutor continually referred to sexual intercourse as “relations” (A 77). 29 a hearing prior to admission of the evidence at trial and failed to issue appropriate limiting instructions to the jury regarding this evidence. Jail Calls and Jail Call Records Throughout the trial, the People presented evidence of motive by exploring appellant’s affair with Sayles at length. The jury was well aware of appellant’s relationship with Sayles and the People’s assertion that the affair led appellant to kill his wife. To that end, the People offered testimony regarding the number of times appellant called Sayles while he was incarcerated (A 93, 130-31), the jury was provided with detailed call records stemming from the jail (A 119-23; People’s Exhibits 164-66) and the jury was provided with the electronic recordings of appellant’s calls made while he was incarcerated (People’s Exhibits 163, 273-77). The issue with the use of jail calls and the like is that it runs the risk of compromising the presumption of innocence along the lines of forcing a defendant to wear prison clothing throughout the trial because it creates a “constant reminder of the accused’s condition” which constitutes a “continuing influence throughout the trial” (see Estelle v Williams, 425 US 501, 504-05 [1976]; People v Roman, 35 NY2d 978 [1975]). Not only was the jury permitted to review the records of all of the phone calls appellant made during the course of his incarceration, which spanned a significant period, but the jury was permitted to listen to phone calls that appellant made. Neither the records of the calls or the calls themselves were relevant or probative and even assuming the existence of some probative value, the potential prejudice in compromising the presumption of innocence far outweighed any probative value. That appellant spoke with Sayles, beginning 7 months after the victim’s disappearance and the contents of the phone calls were not relevant and were simply cumulative to the evidence already before the jury. 30 Moreover, the contents of the phone calls themselves were extremely prejudicial and infringed upon appellant’s right to counsel. For instance, on one such phone call, appellant and Sayles talk at length about the court’s decision to increase bail from $100,000 to $1,000,000 – such a topic only served to inform the jury that County Court viewed appellant as a flight risk and believed the evidence of his guilt to be strong. In other phone calls, appellant talks to Sayles about his conversations with his attorneys, plainly making reference to his invocation of his right to counsel (see People v Murphy, 51 AD3d 1057, 1058 [3d Dept 2008]). In short, the prosecutor repeatedly introduced evidence of appellant’s alleged immoral acts, in violation of the court’s prior ruling or without the prosecutor seeking an advance ruling on them. The prosecutor’s actions resulted in the presentation of highly prejudicial material throughout the trial. E. Errors were not Harmless Apart from the introduction of immoral act evidence, the People’s evidence in the instant case was weak and, thus, the improper admission of the testimony appellant’s sexual behavior was not harmless but, indeed, overwhelmingly prejudicial. The People’s case rested exclusively on equivocal circumstantial evidence. The complete lack of limiting instructions to the jury left the introduction of this evidence unchecked. The immoral act evidence provided the jurors with the comfort of knowing that whatever doubts they might otherwise have, a conviction would be justified by appellant’s immoral conduct. It cannot be said that there was no significant probability that the extremely prejudicial immoral act evidence did not contribute to the verdict. The error here was not harmless (see People v Wilkinson, 71 AD3d 249 [2d Dept 2010]; People v Figueroa, 211 AD2d 811 [2d Dept 1995]). 31 POINT IV DEFENSE COUNSEL FAILED TO SATISFY THE STATUTORY REQUIREMENTS FOR PRO HAC VICE ADMISSION, COUNTY COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN ADMITTING DEFENSE COUNSEL PRO HAC VICE AND ACCORDINGLY APPELLANT WAS DENIED HIS RIGHT TO COUNSEL Appellant’s trial counsel, Gilberto Garcia, was not a member of the New York bar and thus, was permitted to represent appellant under a pro hac vice admission. County Court should not have admitted defense counsel pro hac vice, considering defense counsel failed to satisfy the statutory requirements for pro hac vice admission and based upon his prior reprimand from New Jersey. While appellant submits his right to counsel was denied on these grounds given the serious and substantive defects, if this Court deems the defects technical in nature, at a minimum, it does certainly put into perspective the myriad errors defense counsel made, as fully explored in Point V, infra. A defendant’s right to counsel is constitutionally guaranteed and is “viewed . . . as a cherished and valuable protection that must be guarded with the utmost vigilance” (see People v Lopez, 16 NY3d 375, 380 [2011]). Despite this guarantee, “not every defect in an individual’s ability to practice law renders his representation a deprivation of that right” (see People v Kieser, 79 NY2d 936, 937 [1992]). As a result, “courts have distinguished between those defects that are technical, i.e., those resulting from administrative suspension or censure for failure to comply with State Bar rules which have no bearing on the qualification, competence or moral character of the defendant’s representative and those that are serious and substantive such as a representative’s inability to practice law in any State because of a failure to seek admission or where admission to practice has been denied for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character” (see Kieser, 79 NY2d at 937-38). 32 While a defendant has a right to choose who will represent him, which is a “fundamental right” (see People v Arroyaye, 49 NY2d 264, 270 [1980]), “the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” (see People v Griffin, 20 NY3d 626, 630 [2013]). Courts “owe[] a duty independent of counsel to protect the right of an accused to effective assistance of counsel” (see People v McDonald, 68 NY2d 1, 8 [1986]). In this case, appellant’s attorney was licensed to practice law in New Jersey, but had previously been reprimanded by the New Jersey bar (see In re Garcia, 167 NJ 1 [2001]). A review of Mr. Garcia’s legal experience also reveals that his practice is generally limited to bankruptcy, commercial litigation and real estate matters (see Artigas v Renewal Arts Realty Corp., 22 AD3d 327 [1st Dept 2005]). Nonetheless, County Court admitted appellant’s attorney pro hac vice for purposes of representing appellant in a murder case. This, despite Mr. Garcia’s failure to satisfy the statutory requirements for pro hac vice admission because he did not associate with a New York attorney, who would be the attorney of record (see 22 NYCRR 520.11[a],[c] and [e]). Accordingly, appellant was deprived of his right to counsel based on the serious and substantive defects in Mr. Garcia’s ability to practice law. 33 POINT V APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Appellant was denied his right to the effective assistance of counsel at the suppression hearing and at the ensuing trial because of counsel’s repeated failures to effectively advocate for his client and protect him from improper evidence and argument. One does not even need the benefit of hindsight to point out where defense counsel went awry in strategy because defense counsel’s trial strategy went so much beyond losing tactics as to rise to the level of ineffectiveness. Under the federal constitution, defense counsel is ineffective when his performance falls below “an objective standard of reasonableness” and prejudices the defendant (see Strickland, 466 US at 688). 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]). 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 the Court of Appeals 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 review of the record reveals defense counsel’s complete unfamiliarity with criminal law, his inexperience as a trial attorney, particularly with respect to criminal cases and his complete lack of a sound trial strategy. The culmination of defense counsel’s efforts deprived appellant of meaningful representation. Defense Counsel Prepared to Waive Pretrial Hearings Citing an apparent need for a closed door hearing, defense counsel was prepared to waive any and all pretrial hearings in a murder case (A299-301). Instead, defense counsel asserted that appellant would “get a second bite at the apple” and appellant had the opportunity to file “motions in limine before trial” (A301). This decision to waive any pretrial hearings simply because the hearings would be open to the public really underscores defense counsel’s complete unfamiliarity with criminal law. Apparently, defense counsel was under the impression that the People were going to introduce “two months of evidence” during the hearings (A301). Of course, this is not the case. The 34. 35 People were required to satisfy their burden with respect to any statements allegedly made by defendant to law enforcement and with respect to the propriety of any and all searches and seizures. None of the evidence elicited at a hearing, even assuming the media published the evidence, would have poisoned the jury pool. Defense Counsel Waived a Public Hearing Ultimately, County Court agreed to close the courtroom and proceed with pretrial hearings. Defense counsel’s agreement to waive appellant’s public trial during the pretrial Huntley hearing, which could not possibly have benefitted the defense, permitted the People to present the testimony of police officers to a closed courtroom, without establishing any need for closure whatsoever, much less that the need outweighed appellant’s right to a public trial. The Supreme Court has repeatedly recognized the value an open trial has, not just in maintaining the integrity of the judicial system generally, but for the defendant himself in a particular case (see Press Enterprise I, 464 US 501, 508 [1984]; Richmond Newspapers v Virginia, 448 US 555, 570-71 [1980]). Any publicity that would have followed was not even remotely likely to prejudice the defense. Counsel’s insistence to arbitrarily closing the hearing was not motivated by any strategic or other legitimate expectation. Accordingly, defense counsel’s consent to closing the hearing to the public constituted a failure of meaningful representation of counsel. Defense Counsel Called Appellant as a Witness at the Suppression Hearing Apparently under the belief that whether a defendant’s statement is voluntary is determined under a subjective standard, rather than an objective standard, defense counsel called appellant as a witness during the suppression hearing (A 4, 110). Only after an objection by the People and some legal education from the court did defense counsel realize the error of his ways (A 5-6). Quite clearly, the standard for assessing a suspect’s custodial status is “whether a reasonable 36 person innocent of any wrongdoing would have believed that he or she was not free to leave” (see People v Paulman, 5 NY3d 122, 129 [2005]). This is simply another illustration of defense counsel’s complete unfamiliarity with criminal law. Defense Counsel was Unprepared to Exercise Peremptory Challenges Despite having 20 peremptory challenges, following the first round of jury selection, defense counsel exercised 1 peremptory challenge (A 7). Only after being informed that the 9 selected jurors would be sworn in, does defense counsel decide to exercise another peremptory challenge (A 8). After County Court allows that challenge, indicating that 8 selected jurors are left to be sworn in, defense counsel then elects to exercise another peremptory challenge (A 8). While these challenges were ultimately made, this again demonstrates defense counsel’s overall ineptness – he clearly did not put enough thought into jury selection, perhaps the most significant part of a criminal trial. Defense Counsel Failed to Meaningfully Participate in Voir Dire of the Second Panel Again, demonstrating a complete lack of interest in jury selection, incredibly defense counsel merely stated the following to the second panel: You have become at least honorary jurors for day. You have heard everything already, right? So do you have any questions of me? Because I have none for you. We’re good? Thank you (A 9). Appellant was deprived of meaningful representation when defense counsel failed to conduct a probing voir dire of the second jury panel. No strategic or reasonable explanation exists. Defense Counsel Consistently Failed to Object to Irrelevant and Prejudicial Testimony Defense counsel had the responsibility to ensure that inadmissible, irrelevant and prejudicial evidence was not introduced. He failed miserably at this task. The end result was the jury was armed with a wealth of inadmissible and irrelevant evidence that severely prejudiced his 37 credibility, depriving him of a fair trial and depriving him of his constitutional right to effective assistance of counsel. First, Wicks, an old friend of appellant’s, was permitted to testify regarding appellant’s general demeanor during November of 2012 (A 20). Wicks testified that appellant was “more on edge” and “anxious;” that appellant “wasn’t getting a lot of sleep;” and that appellant kept watching Fox News (A 20). Appellant’s demeanor on a trip with Wicks had no bearing on any issue in the trial. Ultimately, Wicks was permitted to testify that the friendship had deteriorated (A 20-21). Next, the victim’s sister was permitted to testify that appellant flirted with an old friend of the family in 2012 (A 35). She was allowed to testify that she was not close to her sister because she did not want her children to be around appellant’s crass behavior (A 36). The victim’s sister testified that appellant was “always kidding about extra wives” (A 35). She was allowed to opine that appellant always said things that “were not respectful towards the wife” (A 35). She was allowed to speculate that appellant had the “final say” on all decisions (A 43). Ultimately, the People offered and admitted multiple photographs of the victim and her children – clearly showing that the People were intent on calling every family member to testify about the victim’s background and to elicit sympathy from the jury (see Point I). Surprisingly, defense counsel at least objected to the trial prosecutor’s repeated attempts to have the victim’s sister describe appellant’s behavior as far back as 1995 (A 31-34). Then, continuing this theme, the victim’s father was permitted to testify that appellant did not treat his daughter “good at the end” (A 48). He was allowed to testify that appellant yelled at the victim and their children “a lot” back in 2012 (A 49). In fact, the victim’s father was allowed to discuss a specific example of when appellant allegedly yelled at his sick daughter when she 38 coughed (A 50). He was permitted to opine that appellant was “always in control” and to discuss what appellant said to his parents following the victim’s disappearance (A 51). In addition, he was able to testify about an argument he had with appellant after the victim’s disappearance about taking the children to church (A 56). He was also allowed to testify about how many times he saw his grandchildren after the victim’s disappearance – clearly the People implied that appellant was depriving his wife’s parents of seeing their grandchildren (A 57-58). Following the victim’s sister and father, the victim’s mother was allowed to describe appellant as “macho and the boss” and “everything had to be his way” (A 63). She was permitted to imply that appellant shut down a web cam conversation she was having with the victim and she testified about asking the victim if she was under “gestapo order” (A 65-66). Next, Eileen Sayles testified that she had given appellant some of her passwords to her Facebook and Yahoo accounts (A 95). The trial prosecutor was then permitted to ask whether appellant had ever checked to see who she was talking to – implying that appellant was some sort of online stalker (A 96). Not only was none of this testimony relevant, but it seems clear that the prosecutor did not even have a good faith basis to ask this question. She was also allowed to state that she was told Robert Houston was in London on the day of the victim’s disappearance (A 118). The decision by defense counsel to not object to this irrelevant and highly prejudicial testimony is inexcusable. Defense Counsel Failed to Object to Irrelevant Testimony by the Family Members of the Victim Courts have 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” 39 (see People v LaValle, 3 NY3d 88, 113 [2004][internal citations and quotations omitted]). This black letter law, in conjunction with the 3 life photographs mentioned in Point I, had no effect on the People and, unfortunately, defense counsel utterly failed to lodge appropriate objections to repeated testimony about the victim’s personal background, including her personality, that was not material to any issue at trial. To that end, the People called the victim’s father, mother and sister to elicit this improper testimony. For example, the victim’s sister was permitted to testify about the following: the victim grew up in North Greenbush, she went to high school at Columbia High School, she graduated in 1992, she moved to Norwich because of appellant even though they had no family in the area (A 29, 31). She was allowed to describe the victim as “very easy to get along with, sweet, always wanting to help anybody” (A 30). The victim’s mother was asked if she could tell the jury “a little bit about [her daughter]” (A 59). She responded as follows: 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). That was not the end of this type of testimony. She was allowed to describe her relationship with her grandchildren (A 61). Then, she was allowed to describe the victim’s relationship with her children, calling her a “wonderful” mother and describing her as follows: Jennifer got along with the kids very well. She called her son “Sweetie.” And then the other two she always had a name, always hugging them. She was a great mother (A 61-62). 40 The People persistently attempted to persuade the jury through emotion, from life photographs to irrelevant testimony to so-called victim impact evidence. There was no strategic or legitimate reason for counsel not to object to this testimony and the courts have made it clear that this type of testimony is inadmissible. Defense Counsel Inexplicably Consented to the Remote Testimony of Robert Houston For no reason other than expediency, defense counsel consented to Houston testifying on live television (A 149). While sometimes permissible, “it is an exceptional procedure to be used only in exceptional circumstances” because “[l]ive televised testimony is certainly not the equivalent of in-person testimony” (see People v Wrotten, 14 NY3d 33, 39 [2009]). The reasons this procedure should be reserved for exceptional circumstances was plain during cross- examination, when defense counsel’s cross-examination was thwarted by Houston’s inability to read exhibits (A 154). Defense Counsel Failed to Object to Misconduct during Summation One of the most critical – if not the only – piece of evidence linking appellant to the murder of his wife was the discovery of a blood stain on the sweatshirt he stated he wore the day his wife disappeared. Based on the DNA analysis of the stain, appellant was the major contributor and the victim could not be excluded as a possible contributor to the mixture profile (A 166). While the People’s expert opined that the profile is 1.661 quadrillion times more likely to be observed if the donors are appellant and the victim rather than if the donors are two randomly selected, unrelated individuals (A 167), the victim could not specifically be included as a contributor to the mixture profile. Undeterred by the testimony of their own expert, the trial prosecutor repeatedly misrepresented to the jury the critical DNA evidence as proof of defendant’s guilt and defense 41 counsel repeatedly failed to object. He stated “on that sweatshirt is his wife’s DNA and his DNA in an area where there were blood stains was examined” (A 264). The prosecutor also stated that “[t]hat shows that her DNA was on that area where the bloody spot is. Why is that? Because he killed her” (A 268). Recently, the Court of Appeals reversed a murder conviction where the sole error defense counsel made was his failure to object to the prosecutor’s misrepresentation of the DNA evidence (see People v Wright, 2015 WL 3965732). Here, defense counsel failed to object to similar misrepresentations – in addition to the collective errors he made, as demonstrated above. Defense Counsel Encouraged Appellant to Testify “One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions” (see People v Mason, 263 AD2d 73, 76 [1st Dept 2000][citations omitted]). While counsel is responsible for strategic and tactical decisions during a trial, a defendant retains the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify [on one’s] own behalf, or take an appeal” (see People v Petrovich, 87 NY2d 961, 963 [1996] quoting Jones v Barnes, 463 US 745, 751 [1983]). Ultimately, “the decision whether a defendant will testify at trial is a strategic one to be made by defendant in consultation with counsel” (see People v Borthwick, 51 AD3d 1211, 1216 [3d Dept 2008]). At the close of the People’s case, County Court inquired as to whether appellant would be interposing a defense (A 200). County Court specifically asked appellant whether he was waiving his right to testify and appellant told the court he would not testify (A 200). Incredibly, on the record, defense counsel told appellant that he thought his testimony would be “significant” and that he has “recommended that [appellant] should take a strong consideration to testify in this case” 42 (A 201). Despite the misadvice, appellant reiterated that he did not want to testify. The jury was then informed that the proof was closed and that they would not hear any additional witnesses (A 202). Undeterred, overnight, defense counsel again opined that appellant should testify (A 203). As a result of this conversation, appellant decided to testify (A 204-05). What followed was a lengthy, meandering direct examination that counsel was ill prepared for and it was clear, based on appellant’s testimony, that he was not adequately prepared by counsel to testify. In this type of case, there was no reason for appellant to testify, which only subjected him to lengthy and badgering cross-examination from the trial prosecutor. Defense Counsel Gave an Inept Summation Defense counsel gave an ineffective summation that primarily focused on the intentional element of murder, even where the defense in this case was quite simply, appellant did not murder his wife (A 238-43, 245, 247-48). Defense counsel made remarks like “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). These remarks simply indicated that defense counsel thought appellant could be the murderer, undermining appellant’s credibility. Defense counsel also argued that the timeline does not fit, even though he took no steps to present that theory to the jury (A 246). The summation given by defense counsel was so inept in explaining the law the jury must apply, that County Court felt compelled to instruct the jury on legal concepts right after the summation (2443-47). This only undercut defense counsel’s already diminished credibility in the eyes of the jury. Defense Counsel Failed to Request Appropriate Charges for the Jury’s Final Charge 43 Defense counsel failed to request appropriate charges such as the required corroboration charge for evidence of statements appellant made (see People v Morin, 192 AD2d 791 [3d Dept 1993]), and an expert testimony charge (see People v Nunez, 223 AD2d 507 [1st Dept 1996]). In sum, the Court of Appeals, 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 appellant when the stakes were at their highest. This Court should, accordingly, reverse. 44 POINT VI THE PEOPLE FAILED TO PROVE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE In this wholly circumstantial case, the prosecutor constructed an entirely speculative account of what had occurred. With no set time of death, with no information on the cause of death other than a generic opinion of homicide as the manner of death, and with no witnesses or direct evidence about what occurred or why, the prosecutor argued that appellant must have killed the victim. With no witnesses, no confession, and no corroboration for that account, the evidence was legally insufficient to support that theory or the charge of second-degree murder. Therefore, the second-degree murder charge should be dismissed. In reviewing the sufficiency of the evidence in a circumstantial evidence case, this Court must determine, as it does in every type of case, “whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People” (see People v Williams, 84 NY2d 925, 926 [1994]; People v Contes, 60 NY2d 620, 621 [1983]). For wholly circumstantial cases, as this is, this Court must review with careful scrutiny the inferences because of “[t]he danger . . . with the use of circumstantial evidence . . . that . . . logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – [could], if undetected, elevate coincidence and, therefore, suspicion into permissible inference” (see People v Cleague, 22 NY2d 363, 367 [1968]). For an inference to be permissible in a wholly circumstantial case, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, and it must flow naturally, reasonably and logically from them (see People v Benzinger, 36 Ny2d 29, 32 [1974]). As the Court of Appeals has observed, “[a]lthough credibility 45 is thus for the trier of facts and, in judging whether a prima facie case has been made out, the questions of fact must be assumed to have been decided for the People, the foundation for the findings must be facts and inferences that are so reasonable that they cannot be confused with mere conjecture or suspicion” (see People v Castillo, 47 NY2d 270, 277 [1979]). The second-degree murder count of which appellant was convicted required a showing that he caused the death of the victim, with the intent to cause her death (see Penal Law §§ 125.25[2]). Viewed in the light most favorable to the People, there was an insufficient showing that appellant did so. Alternatively, the conviction should be found to be against the weight of the evidence. This Court, which unlike the Court of Appeals has jurisdiction to reverse a conviction based upon the weight of the evidence, has not hesitated to do so when the evidence requires it (see People v Graham, 107 AD3d 1296 [3d Dept 2013]). In light of the above statement of facts, at trial, the People asserted, without direct evidence, that sometime around 8:15 AM on the morning of December 11, after appellant returned home after dropping his children off at school, appellant intentionally attacked and killed the victim in their home, attempted to clean up any blood evidence, used the victim’s van to transport her lifeless body to a remote location, dumped her body in a ravine, abandoned her van in a parking lot and then went to the local YMCA where he was eventually picked up by his girlfriend. In support of this hypothesis, the People offered circumstantial evidence of defendant’s motive, opportunity and consciousness of guilt. But there are several reasonable inferences that can be drawn from each category that are consistent with innocence. Motive In this regard, the People stated that appellant had murdered his wife as an alternative to an inevitable divorce proceeding, which would require him to pay alimony and he would lose the 46 custody of their children. This constituted weak and speculative evidence of motive. Though it is clear that appellant and his wife were headed to divorce, it is a considerable leap to say that appellant killed his wife to avoid divorce, particularly when there was no evidence that alimony would have burdened appellant and when there was no evidence that appellant would lose the custody of his children – although the trial prosecutor wanted the jury to believe, without any evidence, the victim would get custody (A 255). Along the lines of pecuniary interest, the People presented evidence of a life insurance policy, in the amount of $200,000, and suggested that appellant was motivated to kill the victim to collect on this policy. Yet, there was no evidence suggesting appellant needed the money, there was no evidence suggesting appellant had increased the amount of insurance recently and ineffective counsel neglected to elicit that the policy had been purchased in 2006 – a whole 6 years before the murder occurred (see, e.g., People v Richardson, 55 AD3d 934, 937 [3d Dept 2008]). The remaining alleged evidence of motive to kill can equally be said to be motive to divorce. For instance, the People went to great lengths to elicit testimony of appellant’s distaste for his wife’s obsession with an online game and his claimed animosity towards heavy people (A 253-54). The notion that appellant would kill his wife over an online game and her weight enjoys little, if any, support in the trial evidence and is one bit of rank speculation followed by another. Tied in with the possibility of divorce was appellant’s on-again, off-again affair with Eileen Sayles. This represented the lynchpin of the People’s evidence of motive. To that end, the People introduced Facebook records, e-mails, jail phone calls and call records and called Sayles as a witness to explore the affair and to present as many sordid details as possible in an effort to portray appellant as sex obsessed and to suggest that appellant killed his wife to be with his girlfriend. 47 Notably absent from the record is any evidence of a threat that appellant wanted to kill his wife. Nothing in the Facebook records hint at a desire to kill. There was no evidence of any domestic abuse incidents throughout their marriage. While the bulk of the People’s case rested on motive evidence, evidence of motive, “does not establish any element of the crime, and cannot take the place of proof of [a defendant’s] actual commission of the crime” (see People v Marin, 65 NY2d 741, 745 [1985]). The People’s speculation about motive cannot fill the void of evidentiary facts. Opportunity According to the prosecutor’s supposed reconstruction of events, appellant killed his wife upon returning home from dropping their children off at school while she was in bed playing an online game. He then used a spot remover to clean up most of the blood evidence, put his wife’s dead body in her van, drove her to a remote area, dumped her body, parked her van in a parking lot, ran to the YMCA where he set up an “alibi” by talking to several people about his wife’s activities that day and had his girlfriend pick him up. In between her disappearance and the discovery of her body, appellant gave his account of what happened that day, including the work he did on his computers and the route he took from his house to the YMCA – the People’s witnesses contradicted appellant’s account. The People’s theory has considerable gaps. First, the People hypothesize that the victim was killed in her bed, while she was playing an online game, because of a drop of her blood on the middle of a bed sheet – not an unusual spot for a blood stain – and because she slept naked and her body was dumped without any clothes (A 257-58). The trial prosecutor asked why would anyone have to remove her clothes to dump her body (A 257-58)? Quite obviously, to remove any possible DNA left on her clothing during the homicide. 48 Next, according to Robert Thomas, he was playing an online game with the victim on the morning of December 11, 2012, when she suddenly left the game without an explanation (A 151). This led the People to assert that appellant killed the victim while she was playing the game at approximately 8:15 AM. But at the same time the victim stopped communicating with Thomas, appellant’s computer began installing a program at 8:15 AM (A 158). Clearly, appellant could not have been the cause of the victim’s decision to stop communicating with Thomas that morning. Following the victim’s murder, the People surmised that appellant carried the victim’s body to the van, without leaving any blood evidence behind and drove the van to a secluded area where he dumped her naked body on the side of the road; appellant then drove the van to a parking lot on Route 23 and ran to the local YMCA where he set up an “alibi” and was eventually picked up by his girlfriend. After Sayles dropped him off at his home, he did not invite her inside for sex, which led the People to speculate that he did not because he needed to clean up after murdering his wife (A 260). The crux of the People’s claim that appellant cleaned up any blood, comes from the recovery of a spot remover bottle sitting on the dresser in the master bedroom (A 259). But appellant can be excluded from the swab from the nozzle trigger of the spot remover bottle and cannot be included or excluded from the swab from the outside of the spot remover bottle (A 168-69). There was no evidence that appellant used the spot remover bottle, no evidence indicating the alteration by wiping, smearing or dilution of any blood spatter evidence and no evidence establishing that an intentional clean-up had occurred, which left the jury only to speculate about the spot remover bottle. Consciousness of Guilt 49 Finally, as for appellant’s consciousness of guilt, the People offered evidence of appellant’s behavior including the following: appellant did not go look for his wife; appellant declined offers from friends and family to come up after her disappearance; appellant allegedly posting that his wife’s funeral would be his first on Facebook; appellant tried to convince the victim’s family that she was “sexting other men,” addicted to computer games, taking drugs and that she ran off with someone; appellant hosted a birthday party for one of their children a few days after the victim’s disappearance; appellant visited Sayles’s parents to inform them that he had been sexually involved with their daughter; and appellant made inappropriate sexual remarks to Arotsky. Evidence of consciousness of guilt is generally considered to have “limited probative value [and] its probative weight is highly dependent upon the facts of each particular case” (see People v Cintron, 95 NY2d 329, 332-33 [2000]). Considering the facts of this particular case, the evidence of appellant’s purportedly unusual behavior is of limited probative value, particularly where the inferences that could be drawn from this evidence are wholly consistent with innocence. Taking the alleged Facebook post first, is it any surprise that appellant believed his wife was dead after her van was found abandoned in a parking lot and her phone found abandoned in a river? The idea that he posted this remark and it somehow shows his complicity in the death of his wife is ridiculous. That appellant allegedly made inappropriate remarks to Artosky 5 days after his wife’s disappearance was simply not relevant and has no probative value nor was the conversation appellant had with Sayles’s parents. Regarding the birthday party, perhaps appellant was trying his best to maintain the appearance of a regular and routine life for his children? That he hosted a birthday party for his daughter is hardly incriminating. Moreover, appellant’s actions in discussing possibilities of what 50 his wife did are not abnormal for someone whose wife disappeared. In fact, it is normal behavior for someone to scour everything they can think of to determine what happened. The People made a big deal of the fact that appellant did not go look for his wife, asking as many witnesses as possible whether he went and looked for his wife. The reason, the People posit, is he knew where she was (A 261). Or perhaps this was because he had children to take care of and trusted the police to find his wife. This is a Catch-22. If appellant went looking for his wife, it would not have been frequently enough or it would have been so frequent, he would have been trying to deflect suspicion. This is abundantly clear based on the People’s argument regarding the missing phone. In summation, the trial prosecutor questioned why appellant, after locating her phone on the iPhone application, would not immediately go get his wife (A 262). This is somehow more evidence of appellant’s consciousness of guilt. But then, when the police are unable to locate the phone, when appellant goes to look for the phone, it is somehow incriminating: he found the phone because he put it there (A 263). This is the danger of circumstantial evidence of consciousness of guilt. People react differently to different situations. When your wife and the mother of your children vanish, you cannot be expected to conform to societal expectations of “normal” behavior. And, unfortunately, this case was built on circumstantial evidence of motive and consciousness of guilt – which fell well short of legally sufficient evidence and the jury gave this evidence more weight than it should have, especially when defense counsel was ill prepared to counter with competing inferences during summation. Appellant fully preserved this claim. Immediately after the prosecution rested, he moved to dismiss the very charges at issue here, pointing to the insufficiency of the evidence on identity 51 grounds. Moreover, in response to that protest, County Court explicitly ruled on the very issue preserving this issue for appeal (see CPL § 470.05[2]). In sum, the proven facts do not lead naturally and reasonably to the conclusion of guilt and are not inconsistent with any reasonable hypothesis of innocence. The proven facts merely established that someone killed the victim – the evidence against appellant was mere speculation and do not permit the inference that he killed his wife. Therefore, the second-degree murder charge must be dismissed. 52 POINT VII COUNTY COURT DENIED APPELLANT THE RIGHT TO PRESENT A DEFENSE BY EXCLUDING THIRD-PARTY CULPABILITY EVIDENCE THAT THE VICTIM WAS BEING STALKED BY SOMEONE During their investigation of the victim’s death, the police had uncovered information that the victim had told Robert Houston (who testified at trial) and other online game players that someone had been stalking her (A 143-44). When defense counsel made it clear he planned to inquire about this conversation through Houston, the People sought a motion in limine because such testimony was hearsay. Despite the victim’s statements that she was being stalked by someone clearly giving rise to the inference of third-party culpability, not based upon suspicion or surmise, which could not have resulted in undue prejudice to the People or confusion, County Court precluded inquiry on the grounds of hearsay and a misguided relevancy analysis because the statement was not made on the day of her disappearance (A 145, 147-48). Therefore, appellant was denied his right to present a defense. A defendant in a criminal has a due process right to introduce evidence that a third party committed the crime (see Holmes v South Carolina, 547 US 319 [2006]; Crane v Kentucky, 476 US 683, 690 [1986]). Evidence is deemed material when it creates a doubt that otherwise did not exist (see United States v Agurs, 427 US 97, 111-13 [1976]). Proof of third-party culpability for a charged crime places the focus “not [on] the third party’s guilt or innocence, but on the effect the evidence has upon the defendant’s culpability and in this regard it need only tend to create reasonable doubt that the defendant committed the offense” (see Winfield v United States, 676 A2d 1, 4 [DC 1996]; People v Alvino, 71 NY2d 233, 241 [1987][evidence that creates a reasonable doubt as to the defendant’s guilt by suggesting that a third party may be guilty of the charged crime should be admissible if it “has any tendency in reason” to establish such a reasonable doubt]). 53 In a line of cases, the Court of Appeals has set forth a specific procedure that must be followed prior to permitting evidence that another individual committed the crime at issue (see People v Schulz, 4 NY3d 521 [2005]; People v Primo, 96 NY2d 351 [2001]). First, County Court is “required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” (see People v Oxley, 64 AD3d 1078, 1081 [3d Dept 2009]). Next, County Court “must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” (see Oxley, 64 AD3d at 1081). This two-step analysis should follow an offer of proof from the defense with the People having an opportunity to make “counter-arguments,” culminating in a “definitive ruling regarding what is admissible” (see Oxley, 64 AD3d at 1081-82). While County Court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters . . . the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” (see People v Hudy, 73 NY2d 40, 56-57 [1988]). Here, the proffer consisted of exhibits and testimony regarding the victim’s statements to Houston and others that she someone had been stalking her (1125-26). County Court precluded any line of questioning into the victim’s statements and refused to allow the defense to admit any of this evidence of third-party culpability. The court reached this determination on the grounds that the victim’s statements constituted hearsay with no applicable exception, rejecting the state of mind exception because the victim’s statements were not made on the date of her disappearance (1129-31). The People did not make any showing of prejudice, confusion or delay. 54 In an entirely circumstantial evidence case, County Court abused its discretion in denying appellant the opportunity to present evidence which was not merely speculative, but a statement the victim made regarding someone stalking her squarely identifies a culpable third-party. This evidence was relevant and not based on surmise,2 and would not have resulted in any delay, prejudice to the People or confusion of the jury. The victim’s statements indicating that she was being stalked by someone were hearsay, but “rendering them inadmissible unless some exception exists or the application of the hearsay rule violates defendant’s fundamental right to a fair trial” (see Oxley, 64 AD3d at 1083). Ordinarily, a strict application of the hearsay rule would prevent the admission of the victim’s statements. But the court’s analysis does not end with an evidentiary ruling. Rather, the court “should still consider whether that evidentiary rule is ‘arbitrary or disproportionate to the purposes [it is] designed to serve’ such that its application ‘infringed upon a weighty interest of the accused’” (see Oxley, 64 AD3d at 1083 quoting United States v Scheffer, 523 US 303, 308 [1998]). While the People were allowed to elicit hearsay statements made by the victim to Houston because they arguably fell within an exception to the hearsay rule, appellant was not permitted to introduce similar hearsay which “bore persuasive assurances of trustworthiness” and was crucial to the defense (see Chambers v Mississippi, 410 US 284, 302 [1973]). “In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice” (see Chambers, 410 US at 302). For that reason, this Court has held that “where a statement is exculpatory as to [a] defendant, a less exacting standard applies in determining whether statements against penal interest are admissible, and where the statement forms a critical part of the defense, due process concerns may 2 Evidence of “third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as resting on mere suspicion or surmise” (see People v Thompson, 111 AD3d 56, 64 [2d Dept 2013]). 55 tip the scales in favor of admission” (see Oxley, 64 AD3d at 1084 [internal quotations omitted] quoting People v Darrisaw, 206 AD2d 661, 664 [3d Dept 1994]). Under either the evidentiary rules as set out in Primo, or the constitutional right to present a defense, appellant should have been allowed to present the proffered evidence of the stalker’s “third-party” culpability. In rendering its verdict, the jury did not have all of the evidence that it needed to accurately determine the facts surrounding the murder of the victim. This Court should reverse appellant’s conviction based upon County Court’s improper exclusion of evidence concerning third-party culpability, thereby violating appellant’s right to “a meaningful opportunity to present a complete defense” (see Crane, 476 US at 690 [internal quotations omitted]). 56 POINT VIII COUNTY COURT ERRONEOUSLY LIMITED THE DEFENSE CROSS- EXAMINATION OF EILEEN SAYLES BY PRECLUDING THE DEFENSE FROM ELICITING ADMISSIONS MADE BY APPELLANT IN VIOLATION OF THE RULE OF COMPLETENESS 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. Picking up where the People left off, defense counsel attempted to inquire about the specifics of a conversation she had with appellant regarding a divorce (A 99). Despite eliciting testimony about this conversation, the trial prosecutor objected multiple times and was overruled multiple times (A 99-100). Undaunted, the trial prosecutor, who acted like he ran the courtroom throughout the trial,3 requested to approach the bench where he again lodged a hearsay objection (879). This bench conference ended with County Court striking the testimony and precluding any further inquiry by defense counsel (879-90). The crux of the People’s argument was that any statements appellant made to Sayles were hearsay and they do not constitute admissions; the People went on to cite a case from this Court regarding self-serving statements. The defense relied on the so-called rule of completeness, although he referred to it as “what’s good for the goose is good for the gander” (A 100). The 3County Court permitted the trial prosecutor to run roughshod over defense counsel, particularly in making speaking objections and responding to defense counsel’s objections (A 64 [“It’s not leading the witness. I can lead the witness very carefully and very specifically if I chose to”]). 57 People clearly misunderstood the applicable law and County Court erroneously precluded the defense from cross-examining Sayles about the full details surrounding statements appellant had made to her. The case the People relied upon, People v Valderrama, stands for the well-known proposition that a defendant cannot introduce exculpatory statements made to a police officer because that would allow a “defendant to introduce his self-serving version of the events at trial without being subjected to cross-examination” (see People v Valderrama, 285 AD2d 902, 904 [3d Dept 2001]). This rule only comes into play when a defendant is attempting to introduce statements, not when the People choose to introduce a defendant’s statements. Instead, “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, and the whole must stand or fall together” (see People v Gallo, 12 NY2d 12, 15 [1962][internal quotations and citations omitted]). In other words, a “defendant [i]s entitled to have the entirety of the admissions, both the inculpatory and the exculpatory portions, placed in evidence before the trier of facts” (see People v Dlugash, 41 NY2d 725, 736 [1977]). The rule of completeness is grounded in the principles of fairness and equity. The People are not allowed to elicit some of a defendant’s statements, picking and choosing to create a favorable but misleading impression, and then invoke the hearsay rule to prevent the defense from responding to correct the misleading impression or to complete the picture. The unfairness involved in the selected presentation of only parts of a statement or parts of an investigation is that it poses a threat to the accuracy of a judgment. For example, under the People’s theory, they could 58 introduce a statement that a defendant admitted to stabbing the victim, but the defense could not elicit that the defendant told the police he stabbed the victim in self-defense in the same statement. In this case, the People went to great lengths to manufacture motive by pointing to the obvious implications of divorce, i.e. financial obligations, custody of the children, etc. The People then decided to call Eileen Sayles and to ask her about conversations appellant had with her about divorcing his wife. The defense was entitled, under the rule of completeness, to fully explore what was said to Sayles in these conversations. Thus, County Court deprived appellant of his Sixth Amendment right to cross-examine witnesses. 59 POINT IX THE INTEGRITY OF THE GRAND JURY PROCEEDING WAS IMPAIRED Under CPL article 190, the district attorney and the court are the exclusive legal advisors of the grand jury (see CPL 190.25[6]). Prosecutors enjoy “broad powers and duties, as well as wide discretion in presenting the People’s case” to the grand jury (see People v Huston, 88 NY2d 400, 406 [1996]). Thus, the prosecutor “determines the competency of witnesses to testify” and he or she “must instruct the jury on the legal significance of the evidence” (see People v DiFalco, 44 NY2d 482, 487 [1978]). But prosecutors have a “duty of fair dealing to the accused and candor to the courts,” which requires prosecutors to “not only . . . seek convictions but also to see that justice is done” (see People v Pelchat, 62 NY2d 97, 105 [1984]), including throughout the grand jury process (see People v Lancaster, 69 NY2d 20, 26 [1986]). For that reason, a prosecutor cannot “accept an indictment that he or she knows to be based on false, misleading or legally insufficient evidence” (see People v Thompson, 22 NY3d 687, 697 [2014]). Courts “may enforce these statutory rules by dismissing an indictment that ‘fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result’” (see Thompson, 22 NY3d at 698 quoting CPL 210.35[5]). The “exceptional remedy of dismissal is available in rare cases of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” (see Thompson, 22 NY3d at 698). That remedy is available “where the prosecutor engages in an over-all pattern of bias and misconduct that is pervasive and typically willful, whereas isolated instances of misconduct, including the erroneous handling of evidentiary matters, do not merit invalidation of the indictment” (see Thompson, 22 NY3d at 698). 60 Based on a review of the grand jury minutes disclosed under the People’s Rosario obligation, the trial prosecutor injected a tremendous amount of hearsay and otherwise engaged in pervasive and willful misconduct to the degree that the grand jury had no choice but to indict appellant. This Court should reverse (see People v Gordon, 101 AD3d 1473 [3d Dept 2012]). 61 POINT X THE MEDICAL EXAMINER’S OPINION THAT THE VICTIM’S DEATH WAS A HOMICIDE INVADED THE PROVINCE OF THE JURY The medical examiner who conducted the victim’s autopsy, Dr. Stoppacher, was permitted to opine that the manner of death was homicide, but he was unable to opine as to the cause of death (A 137-39). Following this testimony, defense counsel objected and requested that County Court strike this portion of testimony and instruct the jury to disregard the opinion testimony (A 205- 13). County Court overruled the objection (A 212-13). Permitting an expert to express his opinion an ultimate issue in a criminal case is clear error (see People v Langlois, 17 AD3d 772, 774 [3d Dept 2005]; People v Odell, 26 AD3d 527, 529 [3d Dept 2006]; People v Johnson, 123 AD3d 1055 [2d Dept 2014]). This issue was preserved by defense counsel’s objection and request to strike the testimony and given the paucity of evidence of appellant’s guilt, the error cannot be deemed to be harmless. 62 CONCLUSION FOR THE REASONS STATED ABOVE, APPELLANT’S JUDGMENT SHOULD BE REVERSED AND THE MATTER REMANDED TO THE TRIAL COURT FOR A NEW TRIAL Dated: November 16, 2015 ____________________________ Cheryl Coleman, Attorney at Law Cheryl Coleman Law Offices 90 State Street, Suite 1400 Albany, New York, 12207 518-436-5790