The People, Respondent,v.Princesam Bailey, Appellant.

Brief

N.Y.May 2, 2018

To be argued by: MARGARET E. KNIGHT, ESQ. (Counsel requests 20 minutes) APL-2017-00140 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PRINCESAM BAILEY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT CHRISTINA A. SWARNS, ESQ. Attorney for Defendant-Appellant By: MARGARET E. KNIGHT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 Mknight@appellatedefender.org September 22, 2017 - i - TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Testimony Regarding the Underlying Incident. . . . . . . . . . . 5 i. Princesam Bailey’s Background and Version of the Fight. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ii. Steven Davis’s Background and Version of the Fight. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Pre-Trial Arguments about Admissibility of Evidence of Membership in the Bloods Gang and the Gang’s Customs and Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. Investigator Richard Rodriguez’s Testimony Regarding Bloods-Related Violence in New York City Jails. . . . . . . . . 14 D. Mr. Bailey’s Testimony Regarding Membership in the Bloods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 E. Court’s Denial of Defense Applications for Mistrial, Discharge, or Inquiry Following Juror Outburst. . . . . . . . 18 F. Verdict and Sentencing of Mr. Bailey. . . . . . . . . . . . . . . . . 22 G. Appellate Division Decision. . . . . . . . . . . . . . . . . . . . . . . . . 23 - ii - ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 POINT I THE TRIAL COURT ERRONEOUSLY REFUSED TO EVEN QUESTION A JUROR AFTER A COURTROOM OUTBURST DIRECTED AT MR. BAILEY’S COUNSEL, WHICH DEMONSTRATED A GRAVE RISK THAT THE JUROR WAS GROSSLY UNQUALIFIED. . . . . . . . . . . . . . . . . . 25 A. Juror Number Six’s Courtroom Outburst Required, at a Minimum, Inquiry into Her Capacity for Fairness and Impartiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 B. The Trial Court and the First Department Misinterpreted and Misapplied People v. Mejias. . . . . . . . 33 C. The Court’s Improper Handling of the Juror Outburst Presents a Question of Law for this Court’s Review. . . . . . 38 POINT II TRIAL COURT ERRED IN PERMITTING EXTENSIVE PREJUDICIAL TESTIMONY ABOUT THE BLOODS GANG THAT EXCEEDED THE LIMITED PURPOSE FOR WHICH IT WAS OFFERED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 A. The Admission of Extensive Evidence Regarding Bloods Customs and Violent Practices Was Improper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 B. The Erroneously Admitted Evidence Was Not Harmless Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 - iii - TABLE OF AUTHORITIES CASES PAGE Mark v. Colgate University, 53 A.D.2d 884 (2d Dep’t 1976) . . . . . 30-33 People v Crimmins, 36 N.Y.2d 230 (1975) . . . . . . . . . . . . . . . . . . . . . . 55 People v. Ahmed, 66 N.Y.2d 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. Alvino, 71 N.Y.2d 233 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Bailey, 148 A.D.3d 547 (1st Dep’t), lv. granted, 29 N.Y.3d 1075 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . vi, 23, 24 People v. Bartholomew, 105 A.D.3d 613 (1st Dep’t 2013) . . . . . . . 48, 55 People v. Buford, 69 N.Y.2d 290 (1987) . . . . . . 26, 27, 30, 36, 37, 42, 43 People v. Cain, 16 A.D.3d 288 (1st Dep’t 2005) . . . . . . . . . . . . . . . . . . 48 People v. Connally, 105 A.D.2d 797 (2d Dep’t 1979) . . . . . . . . . . . . . . 48 People v. Coons, 75 N.Y.2d 796 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. Finch, 23 N.Y.3d 408 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Fiore, 34 N.Y.2d 81 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Griffin, 242 A.D.2d 70 (1st Dep’t 1998) . . . . . . . . . . . . . . . . . 55 People v. Ivery, 96 A.D.2d 712 (4th Dep’t 1983) . . . . . . . . . . . . . . . 27, 28 People v. McClenton, 213 A.D.2d 1 (1st Dep’t 1995) . . . . . . . . . . . 26, 30 People v. Mehmedi, 69 N.Y.2d 759 (1987) . . . . . . . . . . . . . . . . . . . . . . . 43 - iv - People v. Mejias, 21 N.Y.3d 73 (2013) . . . . . . . . . . . . . . 28, 33-35, 37, 39 People v. Meyer, 78 A.D.2d 662 (2d Dep’t 1980) . . . . . . . . . . . . . . . . . . 27 People v. Mezon, 80 N.Y.2d 155 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Molineux, 168 N.Y. 264 (1901) . . . . . . . . . . . . . . . . . . . . . 46, 47 People v. O’Rama, 78 N.Y.2d 270 (1991) . . . . . . . . . . . . . . . . . . . . 38, 43 People v. Payne, 3 N.Y.3d 266 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Pineda, 269 A.D.2d 610 (2d Dep’t 2000) . . . . . . . . . . . . . . . . 29 People v. Rentz, 67 N.Y.2d 829 (1986) . . . . . . . . . . . . . . . . . . . . . . 27, 29 People v. Resek, 3 N.Y.3d 385 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Rodriguez, 71 N.Y.2d 214 (1988) . . . . . . . . . . . . . . . . . . . . . . 28 People v. Rosado, 53 A.D.3d 455 (1st Dep’t 2008) . . . . . . . . . . . . . . . . 30 People v. Sellan, 143 A.D.2d 690 (2d Dep’t 1988) . . . . . . . . . . . . . . . . . 55 People v. Silva, 24 N.Y.3d 294 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. Singleton, 139 A.D.3d 208 (1st Dep’t 2016) . . . . . . . . . . . 49, 50 People v. Spencer, 29 N.Y.3d 302 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Till, 87 N.Y.2d 835 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 People v. Ventimiglia, 52 N.Y.2d 350 (1981) . . . . . . . . . . . . . . . . . . . . 47 People v. Walston, 23 N.Y.3d 986 (2014) . . . . . . . . . . . . . . . . . . . . . . . 43 - v - People v. West, 92 A.D.2d 620 (3d Dep’t 1983) . . . . . . . . . . . . . . . . 27, 28 People v. Wiggins, 132 A.D.3d 514 (1st Dep’t 2015), lv. denied, 27 N.Y.3d 1076 (2016) . . . . . . . . . . . . . . . . . . . . . vii, 23, 24, 35, 36 People v. Wilson, 14 A.D.3d 463 (1st Dep’t 2005) . . . . . . . . . . . . . . . . . 48 Stressler v. Hynes, 169 A.D.2d 750 (2d Dep’t 1991) . . . . . . . . . . . . . . . 30 United States v. Hendrix, 52 F.3d 326 (6th Cir. 1995) . . . . . . . . . . . . . 50 CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 56 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 56 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 56 STATUTES N.Y. Crim. Proc. Law § 270.35 . . . . . . . . . . . . . . . . . . . . . . 26, 37, 42, 43 N.Y. Crim. Proc. Law § 450.90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii N.Y. Crim. Proc. Law § 470.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 N.Y. Penal Law § 120.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi 1 Page citations preceded by “A.” refer to the Appendix. - vi - COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : APL-2017-00140 PRINCESAM BAILEY, : Defendant-Appellant. : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of Honorable Eugene M. Fahey, Associate Judge of the Court of Appeals, granted on June 29, 2017, A. 1,1 an appeal is taken from an order of the Appellate Division, First Department, entered on March 21, 2017, People v. Bailey, 148 A.D.3d 547 (1st Dep’t), lv. granted, 29 N.Y.3d 1075 (2017); A. 2-4, which affirmed a judgment of conviction, rendered on July 30, 2013, by the Supreme Court, New York County (Sonberg, J.). Princesam Bailey was convicted, following a jury trial, of one count of assault in the second degree, Penal Law § 120.05(7), along with codefendants Jonathan Batticks and Reginald 2 Mr. Wiggins was sentenced to a determinate term of four and one-half years’ incarceration. His conviction has been affirmed. People v. Wiggins, 132 A.D.3d 514 (1st Dep’t 2015), lv. denied, 27 N.Y.3d 1076 (2016). Mr Batticks was sentenced to a determinate term of six and one-half years’ incarceration. His appeal is still pending in the Appellate Division, First Department. - vii - Wiggins.2 The court sentenced Mr. Bailey, as a second violent felony offender, to a determinate term of imprisonment of seven years followed by five years of post-release supervision. Mr. Bailey is currently serving his sentence in the custody of the Department of Corrections and Community Supervision. This Court has jurisdiction to entertain this appeal pursuant to Criminal Procedure Law § 450.90(1), (2)(a). In Point One, Mr. Bailey argues that the trial court erred in failing, at the very least, to conduct an inquiry into whether a seated juror was qualified to continue serving after that juror became so distressed by a portion of Mr. Bailey’s attorney’s cross-examination, which referred to a racial epithet, that she interjected in open court that she found it “very offensive” and threatened to leave the courtroom if counsel continued this line of questioning. A. 81. This argument is preserved by the court’s denial of the defense attorney’s applications to grant a mistrial, discharge the - viii - juror, or at least conduct an inquiry. A. 84-91; see further infra at 18-22, 38-44. In Point Two, Mr. Bailey argues that the court erred in allowing unduly prejudicial evidence about the hierarchy and internal workings of the Bloods gang, which went beyond the limited purpose of motive and intent for which such evidence was purportedly introduced. This error was preserved by extensive pre-trial arguments opposing the admission of Bloods gang evidence. A. 45-70; see further infra 12-13. - 1 - QUESTIONS PRESENTED 1. Did the trial court err by failing to grant a mistrial, discharge a juror, or even inquire into the juror’s ability to be fair and impartial after the juror directed a negative verbal outburst at Mr. Bailey’s counsel during cross-examination of the alleged victim and threatened to leave the courtroom? 2. Did the trial court err when it permitted extensive prejudicial testimony about the Bloods, an infamously violent street gang, where the court did not properly limit the evidence to the allowable purpose of showing motive or intent and instead allowed the prosecution’s gang expert to testify broadly about the customs of the Bloods and their violent practices? - 2 - INTRODUCTION This case followed from a fight among inmates at the Manhattan Detention Center. There were two conflicting accounts of the incident. The first version was put forward by Steven Davis-an inmate who had previously engaged in numerous fights while incarcerated and filed a lawsuit against the New York City Department of Correction for monetary damages based on injuries sustained during this fight-in which he claimed to be the victim of an assault by the three codefendants here, Appellant Princesam Bailey, Jonathan Batticks, and Reginald Wiggins. In the second version, Mr. Bailey recounted that Mr. Davis initiated a physical fight, involving only Mr. Davis and Mr. Bailey, and Mr. Bailey acted in self-defense. This Court should reverse because the trial court erred in denying defense counsels’ requests to alternatively grant a mistrial, discharge a biased juror, or even inquire into that juror’s ability to be fair and impartial following a courtroom outburst. In particular, while Mr. Bailey’s counsel was cross-examining Mr. Davis, a juror interjected that she found the questioning “very offensive” and threatened to leave the courtroom. A. 81. This outburst was precipitated by counsel asking - 3 - several questions about Mr. Davis’s prior statement that codefendant Mr. Wiggins called him an “old nigger” before the fight. A. 544-46, 550. Counsel’s line of cross-examination, which repeatedly invoked this incendiary racial epithet, was clearly designed to probe the credibility of Mr. Davis’s assertion that he did not respond aggressively to the prior verbal taunting. Despite the prosecution’s lack of objection to the juror’s removal, the trial court did not remove her or even question her as to her ability to be fair and impartial. Instead, the trial court generally instructed the entire jury to not speak from the jury box and requested that any member of the jury who thought he or she could not be fair and impartial should so advise a court officer. Ultimately, the disruptive juror remained despite a grave risk that she was grossly unqualified and prejudiced against Mr. Bailey. Accordingly, Mr. Bailey’s conviction should be reversed. This Court should also reverse based on inflammatory and unnecessary testimony about the Bloods gang. In particular, the prosecution attempted to prove that the codefendants were members of the Bloods, a notoriously violent street gang. Over defense objections, - 4 - the trial court permitted this evidence for the limited purpose of showing motive and intent. However, the court’s ruling also allowed the prosecution to call a gang expert to testify about the violent culture of the Bloods gang-most egregiously, that the Bloods gang would put out “hits” on other inmates. The Bloods gang evidence went far beyond the limited purpose for which it was allowed, invited the jurors to speculate about the motivations behind the incident here, and injected incurable prejudice. This was reversible error. - 5 - STATEMENT OF FACTS A. Testimony Regarding the Underlying Incident. This case stems from a fight that occurred at the Manhattan Detention Center on October 5, 2011. i. Princesam Bailey’s Background and Version of the Fight. Princesam Bailey testified that he had known Steven Davis before they were in jail together in October 2011 because Mr. Bailey used to sell drugs to him. A. 678. Mr. Bailey also acknowledged that he had three prior felony and eleven misdemeanor convictions. A. 672. On the day of the incident, while inmates were lining up for the linen exchange, Mr. Davis sat at a nearby table, and then left the table and jumped immediately to the front of the line. A. 685. Reginald Wiggins, who was already in the line, reprimanded Mr. Davis for line-jumping and told him to go to the back of the line. A. 685-86. Mr. Davis then shouted back, calling Mr. Wiggins a “young punk” and telling him to “take [his] young ass to the back of the line”; Mr. Wiggins did so. A. 685-87; see also A. 690-92. Mr. Bailey received his linens, 3 Mr. Bailey testified at trial that he dropped his linens off at his cell and did not make his bed before going to Mr. Davis’s cell; however, Mr. Bailey had previously told a captain that he went to Mr. Davis’s cell after making his bed. A. 692, 759-60. - 6 - dropped them off at his cell,3 saw Mr. Wiggins going back to his own cell, and walked to Mr. Davis’s cell to criticize him for regularly boasting about “how much time he had in and ... his prior criminal history” and intimidating other inmates. A. 692-94. Mr. Davis responded by challenging Mr. Bailey to a fight in the cell. A. 694-95. Upon entering the cell, Mr. Davis swung at Mr. Bailey several times, but Mr. Bailey dodged the hits. A. 696. Mr. Bailey then punched Mr. Davis repeatedly. A. 697-98. At some point during the fight, Mr. Davis reached into his pants and produced a shiny, metallic object, which he brandished as a weapon to cut or stab Mr. Bailey. A. 698-99; see also A. 700 (Mr. Bailey testifying that inmates regularly hide “shanks” on their person); A. 500-02 (Mr. Davis testifying about “shanks” and noting that “shankings,” i.e., stabbing or cutting someone with a shank, are a common occurrence with such weapons rarely being recovered by correctional officers). Mr. Bailey backed away and found an inmate (Terique Collins) standing there, holding a cane. A. 702. Mr. Bailey took the cane and 4 Mr. Collins’s testimony contradicted Mr. Bailey’s version in the following ways: Mr. Davis was in the line before jumping to the front; Mr. Wiggins received his linens before Mr. Davis; and Mr. Batticks was in the line as well, not locked in his cell, although Mr. Collins conceded that he may have been confused as to whether he actually saw Mr. Batticks. A. 891-94, 926-27. In the prosecution’s rebuttal case, Investigator Richard Rodriguez testified that Mr. Collins confirmed Mr. Bailey took his cane and hit Mr. Davis but would not make a written inmate statement because “they’re Bloods and he was afraid of them,” without “specify[ing] who he was referring to.” A. 222-23. - 7 - used it in self-defense against Mr. Davis. A. 702-03. After Mr. Bailey was able to subdue Mr. Davis, an officer called through the gathered crowd to break up the fight, whereupon Mr. Bailey returned to his own cell. A. 705-06. Both Mr. Batticks and Mr. Collins corroborated portions of Mr. Bailey’s testimony. Mr. Batticks and Mr Bailey testified that when the linen exchange call occurred, Mr. Bailey offered to, and then did, close Mr. Batticks’s cell door, thereby locking Mr. Batticks in his cell. A. 681- 82, 836. Mr. Collins corroborated that Mr. Davis jumped to the front of the linen exchange line, Mr. Davis and Mr. Wiggins later exchanged words, and Mr. Bailey backed out of Mr. Davis’s cell with Mr. Davis holding a small weapon, at which point Mr. Bailey took Mr. Collins’s cane to protect himself from Mr. Davis. A. 867-72.4 - 8 - ii. Steven Davis’s Background and Version of the Fight. Mr. Davis had previously been convicted of seven felonies and four misdemeanors, and he spent a considerable amount of his adult life in prison, including fourteen and one-half years as a result of a gunpoint robbery conviction. A. 417, 488-92. Moreover, Mr. Davis admitted to having been involved in approximately 50 disciplinary proceedings and maybe five to ten of those involved prison fights. A. 502-03. Mr. Davis also acknowledged that he had filed a civil lawsuit against the Department of Correction relating to its employees’ failure to protect him. A. 485-86. Mr. Davis claimed that he was waiting in line for the linen exchange when two other inmates jumped ahead of him in line. A. 429, 547. Mr. Davis confronted them, and in response, codefendant Mr. Wiggins shouted obscenities at Mr. Davis from the stairs located in the housing area. A. 429-30. These obscenities included “throwing franks,” i.e., inviting or telling Mr. Davis “to suck his privates,” A. 430, saying that “he would fuck [Mr. Davis] up,” id., and apparently referring to Mr. Davis as an “old nigger,” A. 544-46. Mr. Davis responded that - 9 - “you’re not going to do any of that” and “stopped the conversation.” A. 430. After Mr. Davis returned to his cell with new linens, Mr. Wiggins came by and a fight ensued. A. 432-34. During the fight, Mr. Wiggins tackled Mr. Davis, and Mr. Bailey and Mr. Batticks then entered the cell and punched Mr. Davis in the face while he was held down by Mr. Wiggins. A. 434-441. As this was happening, Mr. Davis’s cell door began to automatically close, and the three codefendants ran out of his cell. A. 444-45, 559-60. Once the cell doors closed, Mr. Davis asked another inmate to alert an officer. A. 446. No officer came, but when the cell doors next opened, Mr. Bailey came over and told Mr. Davis to keep quiet about the fight. A. 447-48, A. 561-64. Mr. Davis cursed at Mr. Bailey, and a second fight ensued. A. 449, 564-65. During this fight, Mr. Bailey called out for help, and Mr. Wiggins and Mr. Batticks returned and began punching and kicking Mr. Davis. A. 449-50, 454, 566, 575. Mr. Bailey then struck Mr. Davis in the face with a cane. A. 455, 577. At this point, an officer broke up the fight. A. 455-56, 580-81. Pictures were taken of the codefendants’ as well as Mr. Davis’s injuries, and Officer Santiago noted that Mr. Davis had “a busted lip, a - 10 - busted eye and other injuries on his body.” A. 228; see also A. 285 (expert opinion that Mr. Davis was “kicked and punched repeatedly”); A. 665-71 (photographs of Mr. Davis). Mr. Bailey had scratches on his arms and two injuries on one of his hands, Mr. Batticks had no injuries, and Mr. Wiggins had a finger injury. A. 232-37; see also A. 651-64 (photographs of Mr. Bailey, Batticks, and Wiggins). Mr. Davis’s testimony contained several references to the Bloods gang. First, Mr. Davis alleged that he had a prior interaction with Mr. Bailey, when Mr. Bailey would not share a prison telephone with Mr. Davis because it was a “Blood phone,” meaning the Bloods controlled that telephone. A. 442-43. Second, Mr. Davis alleged that during the first fight, Mr. Batticks said “Blood rolling” and “ain’t nothing fair, only Blood rules” before punching Mr. Davis one final time. A. 444-45. Third, Mr. Davis alleged that after the first fight, a codefendant yelled out “[p]ower rules” from the upper tier of the housing unit, which Mr. Davis understood to be a reference to a Bloods subgroup. A. 451. Finally, Mr. Davis alleged that the three defendants used a special Bloods handshake with each other and would sit together at a “Blood table,” meaning a table used exclusively by Bloods members. A. 467-68. - 11 - Mr. Davis was impeached with prior inconsistent statements as to his version. For example: • Mr. Davis testified at trial that Mr. Batticks and Mr. Wiggins did not leave the scene after the second fight; however, at the grand jury, he testified that they did leave the scene. A. 520-23. • Mr. Davis testified at trial that Mr. Wiggins grabbed him first during the first fight; however, after the incident, he told Officer Santiago that he grabbed Mr. Wiggins first. A. 554-55. • Mr. Davis testified at trial that only Mr. Bailey could have hit him with the cane; however, at the grand jury, he testified that another individual may have hit him and that he was not sure who did. A. 582-83. • Mr. Davis testified at trial that Mr. Wiggins was the last participant to leave his cell; however, at the grand jury, he testified that Mr. Batticks was the last participant to leave, punching him upon leaving. A. 594-95. The only prosecution witness to corroborate portions of Mr. Davis’s version was Officer Brian Weise, who testified that he saw Mr. Batticks and Mr. Wiggins punching and kicking Mr. Davis and saw Mr. Bailey hit Mr. Davis with a cane. A. 320-21. However, Officer Weise acknowledged that this was his first time in the unit, and he “didn’t know any of the inmates there.” A. 349. He further did not see how the fight started, who started the fight, or how long the fight had been going on. A. 349. Mr. Davis also acknowledged that he overheard a corrections officer describing the incident as a one-on-one fight. A. 485. - 12 - B. Pre-Trial Arguments about Admissibility of Evidence of Membership in the Bloods Gang and the Gang’s Customs and Practices. Before trial, the prosecution sought to introduce evidence that each codefendant was a member of the Bloods, as well as evidence about “what it means to be in a gang” and “why one would act on behalf of another who is also a member of the gang,” to show why Mr. Bailey and Mr. Batticks would have gone to help Mr. Wiggins in his conflict with Mr. Davis. A. 45-46. In furtherance of this request, the prosecutor requested to call a member of the gang intelligence unit who would testify “generally how the Bloods work, and where it would be in a gang member’s interest to act on behalf of another.” A. 48-49. The defense attorneys objected that evidence of membership in the Bloods was unnecessary to prove the prosecution’s allegations and that the prejudice resulting from this “extensive evidence” outweighed any probative value. A. 50-53; see also A. 72 (arguing that grand jury testimony in which Mr. Bailey admitted to being a member of the Bloods was “irrelevant and prejudicial”). The trial court disagreed, finding that the probative value outweighed the potential prejudice, but ruled that the evidence would - 13 - only be admitted for the limited purpose of showing motive. A. 59; A. 1039 (instructing jury that Bloods gang evidence was offered “on the questions of motive and intent”). The court did warn the prosecutor to keep the evidence from its gang expert to “an absolute minimum” because it did not “want this to turn into a fifteen-minute primer on gangs in New York in the 21st Century.” A. 60. The trial court understood that, in addition to Mr. Davis’s testimony, the prosecution would be calling “three officers to whom each of the three defendants made admissions” to prove the codefendants’ membership in the Bloods. A. 54-55. However, while Mr. Bailey conceded his Bloods membership, no officer definitively testified that his codefendants were members of the Bloods. According to Officer Edwin Slowly, Mr. Wiggins admitted he was once affiliated with a gang but did not specify which gang and stated that he “dropped his flag” (i.e., was no longer a gang member) as of February 2012. A. 415. And Investigator Richard Rodriguez testified that Mr. Batticks had a 5 The court did not permit Mr. Batticks’s counsel to introduce evidence that Mr. Batticks was not a member of the Bloods through his parole officer. A. 75-80. Mr. Batticks did testify in his own defense and affirmed that he was not, nor had he ever been, a member of the Bloods. A. 833. - 14 - bulldog tattoo, and that pitbull tattoos “sometimes” signified membership in the Bloods. A. 196.5 C. Investigator Richard Rodriguez’s Testimony Regarding Bloods- Related Violence in New York City Jails. The prosecution’s first witness was Investigator Richard Rodriguez, a member of the Intelligence Unit of the New York City Department of Correction, who testified generally about the Bloods gang. A. 94, 148-49. He stated that, in the correctional facility setting, the Bloods are involved in various illegal and/or violent activities, including commissioning or participating in violence against other inmates, which is the conduct that Mr. Bailey and his codefendants were accused of. A. 149, 153. Investigator Rodriguez began by describing the Bloods as “a group of individuals that ... do different activities with drugs, guns and everything like that.” A. 149. He then explained how he identifies members of the Bloods, particularly because “[a] lot of [Bloods members] wear red and black” and they “also have burn marks on the upper right arm that makes it appear to be - 15 - like a dog paw ... showing that they belong to the organization.” A. 150. He explained that members of the Bloods “do hands [sic] signs more or less like that two fingers closed together making a hole and three (indicating)” and “0-3 they would call out,” in addition to many other unique hand signs. A. 150-51. He noted that members of the Bloods congregate with each other in jail and will sit together when assigned to the same housing area. A. 151. Investigator Rodriguez confirmed his knowledge of how the Bloods are organized, stating that there are “a lot of different sets ... I can’t even tell you how many it’s so many different sets,” with further emphasis on the ranking and hierarchy of members-from low-level soldiers to four-star bosses. A. 152. In describing how members rise up the ranks within the Bloods, Investigator Rodriguez stated that “[a] lot of times [the Bloods] say you have to put in work,” such as, for example, “[o]ne of the hierarchies will tell someone they need some work done, this is what you have to do and they would take and do whatever they were told to do.” A. 152-53. Investigator Rodriguez further explained the phrase “put in work”: “A lot of times it’s an act of violence. They would have to-they will put out a hit on an inmate and say I want that inmate cut, we want that - 16 - inmate to get a beatdown.” A. 153. Investigator Rodriguez claimed to have learned this phrase “put in work” specifically with reference to the Bloods. A. 153. Investigator Rodriguez closed by noting that Bloods members could be demoted within the organization “[i]f they don’t do what they were told to do.” A. 153. D. Mr. Bailey’s Testimony Regarding Membership in the Bloods. During trial, the prosecution read to the jury a statement made by Mr. Bailey during his grand jury testimony in which he admitted that he was a member of the Bloods. A. 414. Mr. Bailey also acknowledged his membership in the gang but explained that he was “inactive” at the time of the incident. A. 727-28. During Mr. Bailey’s testimony, the prosecution was permitted to cross-examine him extensively about the Bloods, spanning at least fourteen pages of the transcript. A. 726-39. The prosecution began by questioning Mr. Bailey about the process of discovering whether other inmates were also members of the Bloods. A. 726-29. The prosecution then moved onto the question of “[t]ell us what the Bloods is, who are they?”- objected to by Mr. Bailey’s counsel but overruled. A. 730. Mr. Bailey responded, “The Bloods is a people’s nation. It’s a nation - 17 - originated to be for the peoples [sic]. We are against oppression. We are against bullies. ... We are an off blood from the Black Panthers.” A. 730, see also A. 731 (“[Y]ou hear a lot of things about Blood, but you don’t hear a lot of the positive things about Blood, you only hear the negative, the violence, you don’t hear the positive things about Blood.”). The prosecution continued with this type of questioning, asking “[w]ould it be fair to say that Blood members are like family to you, when you are Blood?” A. 731 (Mr. Bailey responded, “Not all Blood members are like family.”). The prosecution followed with “[w]hat’s the purpose of the Bloods?” A. 733. Mr. Bailey responded that “[t]here is not one direct purpose of the Bloods but to be against oppression.” A. 733. The prosecution asked more questions about whether Blood members are considered family, purposes behind joining the gang, and any benefits or detriments to being incarcerated with other Blood members. A. 733-34 (Mr. Bailey discussed, at length, how being incarcerated with other Bloods could “hurt” or “damage” you.). The prosecution also asked, “[I]f someone does you a favor, you would do that same Blood member a favor as well?” A. 734 (Mr. Bailey responded, “You could say that.”). The prosecution then questioned Mr. - 18 - Bailey about Bloods-affiliated colors and insignia, such as blood drops, paw-shaped burn marks, and pitbulls-the last of which was noted by Mr. Bailey as incorrect. A. 735-38. The prosecution asked whether “power rule” is a set in the Bloods and about the duration of Mr. Bailey’s membership in the Bloods. A. 739 (Mr. Bailey’s respective answers were “No” and “Since ‘99.”). The prosecution ended this line of questioning by circling back to asking Mr. Bailey about his investigation of whether other inmates are also members of the Bloods, particularly Mr. Batticks and other inmates in the housing unit. A. 739- 40 (Mr. Bailey reiterated that Mr. Batticks was not a Bloods member.). E. Court’s Denial of Defense Applications for Mistrial, Discharge, or Inquiry Following Juror Outburst. Mr. Bailey’s counsel attempted to undermine Mr. Davis’s account by challenging his claim that he did not respond aggressively to the verbal taunting and disparagement. A. 543-50. As part of this line of cross-examination, counsel several times referenced the offensive racial epithet “old nigger.” A. 544-46, 550. During a portion of this cross- examination, a juror directed a negative verbal outburst at Mr. Bailey’s counsel and threatened to leave the courtroom. - 19 - [MR. HARDY:] … And [codefendant Mr. Wiggins is] calling you an old nigger? A JUROR: Please, I am not going to sit here- THE COURT: Ma’am. A JUROR: -and having you say that again. Don’t say it again or I am leaving. THE COURT: Ma’am, ma’am. A JUROR: I find that very offensive. THE COURT: Ma’am, that’s not appropriate from you. But, Mr. Hardy, we’ve been here a half dozen times. MR. HARDY: Judge- THE COURT: I don’t want to hear it again. Okay. You don’t ask the same question over and over and over again. Move on. MR. HARDY: Judge, I’m trying to set the scene. THE COURT: Mr. Hardy, the scene is set. Move on. That’s the direction. A. 81. When the court asked the parties for their positions on the juror’s “outburst,” Mr. Bailey’s counsel promptly moved for a mistrial, noting that the juror had demonstrated “animosity, not only toward me, but the questions that I was asking,” that might further “be carried over to” Mr. Bailey. A. 84-85. Mr. Bailey’s counsel asserted that the juror was grossly unqualified to serve based on her inability to separate personal opinions from the case facts. A. 85. Mr. Bailey’s counsel further argued that not only should she be discharged, but she “poisoned the entire jury as well.” A. 85. Both of codefendants’ attorneys added that, as an - 20 - alternative to a mistrial, the juror should be discharged. A. 86-88; see also A. 87 (codefendant’s attorney: “her outburst ... indicated to me that perhaps she is unable to be fair and impartial having such a visceral response to what I thought was within the proper scope of Mr. Hardy’s cross-examination”). The prosecution responded that, while a mistrial was not appropriate, it would not object to discharge of the juror. A. 88. The court nonetheless concluded that the juror was objecting only to the frequency of the repeated epithet and denied the applications for a mistrial or the juror’s discharge, instead deciding to generally instruct the entire jury that it was improper to speak from the jury box, that the jurors were not to hold it against the defendants or the prosecution if they disliked or disapproved of questions, and that they were to advise a court officer if any of them thought they could not be fair and impartial. A. 86-89. Following the court’s proposed general instructions, Mr. Bailey’s counsel responded that the phrase was important to his case and likely to come up in his summation. A. 89. The court conceded that the juror’s conduct “wasn’t appropriate.” A. 90. However, the court believed that - 21 - because her conduct only showed that she found “the repeated use of the phrase distasteful,” there was no basis for an inquiry. A. 91. [I]f you look at the Court of Appeals decision yesterday in People against Majias [sic] and People against Rodriguez, that you will see that, unless it’s clear on its face that a juror is grossly disqualified, that there is no need to question the individual juror. ... I don’t think there would be any basis to remove the juror without first establishing that she can’t be fair and impartial. A. 91. A codefendant’s attorney immediately requested that the court ask the juror if she could be fair and impartial, but the court refused, stating that “what the decision yesterday specifically says is that you don’t question the individual juror unless the conduct would be grounds for removal in and of itself.” A. 91. The court ultimately proceeded with the following general instruction. It’s not appropriate for jurors to speak from the jury box. ... [Y]ou may not form an opinion even in the privacy of your own minds or express any opinion as to the guilt or nonguilt of any of the defendants until the case is submitted to you. You are also not to hold it against either one or more of the defendants or the People if you dislike or disapprove of questions that are asked or objections that are made. That being said, if any of you think that you can’t be fair and impartial as a result of something that has happened during - 22 - the trial, you should please let one of the court officers know that and they’ll talk to me about it. Otherwise, I’ll assume that all of you still believe that you can be fair and impartial. A. 92. F. Verdict and Sentencing of Mr. Bailey. The court submitted to the jury the charges of attempted first- degree assault (Count 1), attempted first-degree gang assault (Count 2), second-degree assault for causing physical injury with a dangerous instrument (Count 3), second-degree assault for causing physical injury in a correctional facility (Count 4), and third-degree criminal possession of a weapon (Count 5). A. 1040-64. The court also instructed the jury that the prosecution needed to prove that Mr. Bailey was not justified. A. 1040, 1043, 1048, 1050-51, 1052-53, 1062. The jury rendered a partial verdict acquitting Mr. Bailey and codefendants Mr. Wiggins and Mr. Batticks of Counts 1 and 2 while convicting them of Count 4. A. 1067-76. The court then dismissed Counts 3 and 5. A. 1077. At sentencing, Mr. Bailey was adjudicated a second violent felony offender and sentenced to a term of imprisonment of seven years followed by five years of post-release supervision. A. 1078-82. - 23 - G. Appellate Division Decision. The Appellate Division, First Department, affirmed Mr. Bailey’s conviction. A. 2. Regarding the trial court’s failure to conduct any inquiry of the potentially biased juror, the First Department found that Mr. Bailey’s “claim ... [wa]s similar to an argument unsuccessfully raised on a codefendant’s appeal,” and there was “no reason to revisit the determinations made on that appeal, with regard to both preservation and the merits.” People v. Bailey, 148 A.D.3d 547, 548 (1st Dep’t 2017) (citing People v. Wiggins, 132 A.D.3d 514 (1st Dep’t 2015), lv. denied, 27 N.Y.3d 1076 (2016)); A. 3-4. As pertinent to this appeal, the First Department held in Wiggins: Defendant’s claim that the court should have inquired into a juror’s fitness to continue serving is unpreserved because defendant, who requested other remedies, failed to join in his codefendant’s request for an inquiry (see People v Buckley, 75 NY2d 843, 552 NE2d 160, 552 NYS2d 912 [1990]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court properly determined, based on its own observations, that no inquiry was necessary (see People v Maldonado, 279 AD2d 406, 719 NYS2d 564 [1st Dept 2001], lv denied 96 NY2d 802, 750 NE2d 82, 726 NYS2d 380 [2001]; see also People v Buford, 69 NY2d 290, 299, 506 NE2d 901, 514 NYS2d 191 [1987]). The juror’s brief outburst telling the codefendant’s counsel not to use a racial epithet “again” during cross-examination demonstrated that she was bothered by the repeated use, at - 24 - least four times, of the phrase, rather than by counsel’s initial line of questioning, in which he was eliciting the relevant language used in a conversation. In any event, a juror’s mere annoyance with a question or with counsel would not be a basis for discharge (Buford, 69 NY2d at 298-299). Accordingly, the court’s instructions to all of the jurors to refrain from speaking from the jury box, to refrain from holding any questions they did not like against any of the parties, and to alert the court if they believed they could not be fair and impartial, sufficed under these circumstances (see People v Mejias, 21 NY3d 73, 80, 989 NE2d 26, 966 NYS2d 764 [2013]; People v Marshall, 106 AD3d 1, 10, 961 NYS2d 447 [1st Dept 2013], lv denied 21 NY3d 1006, 993 NE2d 1280, 971 NYS2d 258 [2013]). Wiggins, 132 A.D.3d at 514-515. The First Department also concluded that the trial court “providently exercised its discretion in admitting evidence of defendant’s membership in the Bloods gang and testimony from an expert witness concerning the customs, hierarchies and violent practices of the Bloods,” and that “[s]imply informing the jury ... that the participants in the crime were fellow gang members would not have sufficed to permit the jury to fully understand [Mr. Bailey’s] conduct.” Bailey, 148 A.D.3d at 547-48; A. 2-3. - 25 - ARGUMENT POINT I THE TRIAL COURT ERRONEOUSLY REFUSED TO EVEN QUESTION A JUROR AFTER A COURTROOM OUTBURST DIRECTED AT MR. BAILEY’S COUNSEL, WHICH DEMONSTRATED A GRAVE RISK THAT THE JUROR WAS GROSSLY UNQUALIFIED. Juror number six directed a negative verbal outburst at Princesam Bailey’s counsel during his cross-examination of Mr. Davis. This outburst facially indicated a bias against Mr. Bailey’s counsel and, by association, Mr. Bailey. In particular, the juror described the attorney’s course of examination, and likely the attorney himself, as “very offensive” and threatened to leave the courtroom if counsel continued the cross-examination. In response to the outburst, the trial court refused to take any of the corrective actions requested by the defense attorneys, such as ordering a mistrial, discharging the juror, or conducting an inquiry into the juror’s ability to be fair and impartial. Instead, because it applied the wrong legal standard, the court did nothing more than issue a general instruction to all of the jurors. This was error requiring reversal. - 26 - A. Juror Number Six’s Courtroom Outburst Required, at a Minimum, Inquiry into Her Capacity for Fairness and Impartiality. Pursuant to Section 270.35(1) of the New York Criminal Procedure Law, “If at any time after the trial jury has been sworn and before the rendition of its verdict ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, ... the court must discharge such juror.” Consistent with the statute, this Court held in People v. Buford that, prior to discharging an unqualified juror, “the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant” in order “to ascertain whether [the juror’s] state of mind will affect [the juror’s] deliberations.” 69 N.Y.2d 290, 299 (1987); see also People v. McClenton, 213 A.D.2d 1, 5 (1st Dep’t 1995) (“cases applying Buford ... most frequently arise in the context of a trial court’s removal of a juror over defendant’s objection” but “no persuasive reason that the same standard should not apply when the court refuses to conduct an inquiry of a juror that defendant believes to be ‘grossly unqualified’ or to be guilty of ‘substantial misconduct’”). - 27 - This Court has held that “a juror is grossly unqualified and must be discharged where it is discovered during trial that the juror has relations with witnesses of a business ... or intimate nature ... or has an actual bias against a witness.” Buford, 69 N.Y.2d at 298 (citing People v. Rentz, 67 N.Y.2d 829, 831 (1986), and People v. Meyer, 78 A.D.2d 662, 664 (2d Dep’t 1980)). By contrast, a juror’s mere irritation with an attorney is not an appropriate ground for discharge. Buford, 69 N.Y.2d at 298-99. In Buford, this Court pointed to People v. Ivery, 96 A.D.2d 712 (4th Dep’t 1983), and People v. West, 92 A.D.2d 620, 622 (3d Dep’t 1983), as cases involving the type of irritation that did not warrant discharge. 69 N.Y.2d at 298-99. In Ivery, a juror questioned the relevance of prosecution questioning about a defense witness’s prior criminal conviction. 96 A.D.2d at 712. In West, two jurors expressed dissatisfaction with “mannerisms of the prosecutor, frequent Bench conferences, and the general course of the trial.” 92 A.D.2d at 621, rev’d, 62 N.Y.2d 708 (1984) (“reversed ... for a new trial for the reasons stated in the dissenting opinion”). Notably, in both of these cases, there was an inquiry of the allegedly unqualified jurors. See Ivery, 96 A.D.2d - 28 - at 712; West, 92 A.D.2d at 622 (Mahoney, J.,dissenting) (“extensive questioning by the trial court and counsel for both sides”). Indeed, in Ivery, the Appellate Division even noted that it would have been “the better practice ... for the Trial Judge to have conducted a further inquiry, in camera, before concluding that the juror was grossly unqualified.” 96 A.D.2d at 712. Moreover, the concerns of the “irritated” jurors in Ivery and West were relayed in an appropriate manner; no juror interrupted a witness’s testimony to threaten that she would leave the court unless an attorney ceased a line of questioning. Id. at 712 (“juror requested permission to approach the bench”); West, 92 A.D.2d at 621 (“forelady of the jury advised the court that two members of the jury panel had reservations regarding the manner in which the proceedings were being conducted”). Examples of cases where jurors have been found to be grossly unqualified go beyond the foregoing annoyance at one or more of the parties or the course of the trial proceedings. For example, in People v. Mejias, 21 N.Y.3d 73, 79 (2013), this Court pointed to the following as examples of conduct or beliefs that would render a juror grossly unqualified: an expression of racial bias, People v. Rodriguez, 71 N.Y.2d - 29 - 214, 220 (1988); a “somewhat intimate” relationship with a witness, Rentz, 67 N.Y.2d at 831; and reaching out to a family member of the defendant for information, People v. Pineda, 269 A.D.2d 610, 611 (2d Dep’t 2000). A critical fiber connecting all of these cases is the lack of assurance that the juror at issue carried no bias or favor for or against either side. That same concern is present here. As codefendant’s counsel noted, juror number six had such a strong “visceral” response to counsel’s use of a racial epithet as to call her fairness and impartiality into question. A. 87. That her feelings went beyond mere annoyance was conveyed by her description of the cross-examination as “very offensive,” as well as her threat to leave the courtroom should counsel continue. A. 81. And the nature of the racial epithet-a uniquely invidious and inflammatory term- that counsel referenced approximately five times was certainly capable of causing such a strong emotional reaction that the juror could no longer weigh the evidence and Mr. Bailey’s counsel’s arguments fairly. Indeed, a refusal to listen to and consider counsel’s arguments on this issue would, by itself, render the juror grossly unqualified. See People v. Spencer, 29 N.Y.3d - 30 - 302, 311 (2017) (juror grossly unqualified where she “could not separate her emotions from her ability to deliberate and was incapable of fulfilling her sworn duty to reach a verdict based solely on the evidence presented at trial and the law”). The tenor of the outburst here led all three defense attorneys to request some remedy, and even the prosecution preemptively consented to discharge of the juror. Thus, at minimum, a Buford inquiry was required. See People v. Rosado, 53 A.D.3d 455, 457 (1st Dep’t 2008) (juror dismissal upheld where juror’s comments about complainant during her testimony resulted in the trial court conducting an inquiry into the juror); McClenton, 213 A.D.2d at 7 (“important to keep in mind that at issue here is not whether the juror ultimately would or should have been discharged, but rather, simply whether the trial court should have made inquiry”); Stressler v. Hynes, 169 A.D.2d 750 (2d Dep’t 1991) (juror dismissal upheld where juror directed a verbal outburst at the victim’s father and the trial court immediately conducted in camera inquiry of the juror’s fairness and impartiality). Perhaps most similar to Mr. Bailey’s case is Mark v. Colgate University, 53 A.D.2d 884 (2d Dep’t 1976), where the Second - 31 - Department reversed and ordered a new trial because a trial judge declined to remove a juror who showed prejudice during an intense outburst directed at the plaintiff’s attorney: Mr. Geoghan: ... I will read from the examination before trial and if [defense attorneys] are going to interrupt me I’m going to stay here for three weeks. Juror No. 2: I am not going to stay here, that’s for sure; not three weeks. I am not going to stay. The Court: Please. Juror No. 2: Go into a recess. I don’t care. When you say you are going to stay three weeks, I am not. The Court: Juror No. 2- Mr. Geoghan: May we have a recess, sir? Juror No. 2: I won’t stay three weeks, not with you, no sir. The Court: Mr. Velardi, just a moment. Just calm yourself. We are- Juror No. 2: He is almost hitting me on the head this morning, and I got to keep quiet? The Court: We are not going to be here for three more weeks. Calm yourself. Juror No. 2: He was leaning over here. He almost hit me in the head. The Court: Mr. Velardi, please. Juror No. 2: Don’t look at me. Id. at 885. In Mark, the plaintiff’s attorney requested removal of the juror; however, the trial court denied such removal, as was the case here. Id. On appeal, the court found that “the vehemence and hostility exhibited by the juror toward the plaintiff’s attorney was of such a nature as to - 32 - require his removal,” and therefore not only should the juror have been discharged but “[o]n this ground alone a new trial should be had.” Id. at 886. The concurrence agreed with this result, further noting that “[t]he outburst ..., directed as it was at plaintiffs’ trial attorney, evinced a bias that seriously jeopardized plaintiffs’ chances of success in the outcome of the trial,” and “[t]he trial court should have granted the motion to substitute or, at the very least, should have conducted an [i]n camera inquiry as to bias and possible prejudice.” Id. at 887 (Cohalan and Titone, JJ., concurring). Similarly, the juror outburst here, at the very least, required an inquiry into the juror’s ability to be fair and impartial, and the court’s failure to conduct one is reversible error that warrants a new trial. The juror’s explosive reaction indicated more than mere annoyance. Instead, there is grave risk that the juror was biased against Mr. Bailey based on his attorney’s repeated use of what is almost certainly the most repugnant racial epithet in the United States. Moreover, while Mr. Bailey’s attorney used this and other offensive language for a legitimate purpose, there is a grave risk that the power of these incendiary words prevented the juror from dispassionately weighing 6 Given the context of the questioning, Mr. Bailey’s counsel was clearly challenging Mr. Davis’s account that he refrained from reacting violently in response to such a grave insult being lodged against him by Mr. Wiggins in front of numerous individuals in his housing unit. A. 543-550. Given the court’s handling of the juror outburst, Mr. Bailey’s counsel did not utilize the racial epithet in summation. A. 948 (“Wiggins cut in front of him, this young punk-this young punk. Come on, that defies reality. Davis isn’t going to let that be tolerated. Some young punk is tossing his franks at him calling him a variety of names?”). - 33 - counsel’s related questioning and arguments about Mr. Davis’s credibility.6 Indeed, given the juror’s threat to leave the courtroom, she may have been unwilling to consider these arguments at all. Thus, the juror’s potential bias against Mr. Bailey’s attorney “seriously jeopardized” Mr. Bailey’s chance of a fair trial. Id. at 887. B. The Trial Court and the First Department Misinterpreted and Misapplied People v. Mejias. When the trial court refused to make an inquiry into the juror’s fairness and impartiality, it misinterpreted and misapplied the rule set forth in People v. Mejias, 21 N.Y.3d 73 (2013). The trial court stated that “if you look at the Court of Appeals decision yesterday in [Mejias] ... , unless it’s clear on its face that a juror is grossly disqualified, that there is no need to question the individual juror” and “what the decision yesterday [in Mejias] specifically says is that you don’t question the individual juror unless the conduct would be grounds for - 34 - removal in and of itself.” A. 91. The court’s application of Mejias was erroneous. First, Mejias is easily distinguishable on the facts. In Mejias, this Court held that the particular statement made by the juror in that case did not indicate that the juror could not be fair and impartial, and thus determined there was no need to conduct an inquiry. Mejias, 21 N.Y.3d at 76. However, Mejias is inapposite as it did not address a juror directing revulsion at an attorney and threatening to leave court in the middle of witness testimony-as occurred here. Rather, the issue in Mejias concerned whether a juror note requesting additional evidence indicated the occurrence of premature jury deliberations. Id. at 77. The trial court in Mejias could not even determine whether such premature deliberations had occurred due to the note’s ambiguity and instead believed that the note was a request for additional evidence; this Court opined that, whatever the note conveyed, it did not call into question the juror’s impartiality or suggest misconduct. Id. at 77-80. Thus, no inquiry was required. Id. There is no such ambiguity here, as a juror’s outburst that she finds defense counsel not just irritating but offensive does suggest bias. - 35 - Moreover, a juror’s threat to leave the courtroom during testimony unless counsel ceases an area of examination indicates an unwillingness to follow the law by usurping the role of the attorneys in presenting evidence and the judge in determining what is admissible. In misapplying Mejias, the trial court also announced a new rule-“that you don’t question the individual juror unless the conduct would be grounds for removal in and of itself.” A. 91. This Court in Mejias did not render such a broad decision. Rather, Mejias held only that the possibility of premature deliberations “does not render a juror grossly unqualified.” Mejias, 21 N.Y.3d at 79. It also distinguished cases where a juror is “biased” as involving “a state of mind which would prevent the rendering of an impartial verdict.” Id. As previously demonstrated, Mr. Bailey’s case presented, at the least, a strong indication of juror bias. The First Department similarly misapprehended the legal standard. Indeed, the Wiggins decision highlights the precise problem with the trial court’s refusal to conduct a juror inquiry, as the First Department was left to speculate about the inner workings of the juror’s mind. The Wiggins court concluded, in the face of absolutely no 7 While a general instruction to the entire panel will never substitute when an individualized “probing and tactful inquiry” is required, Buford, 69 N.Y.2d at 299, that is especially true here as the court’s own remarks in front of the jury indicated that it too believed counsel’s continued questioning on the topic was inappropriate. A. 81 (trial court: “Mr. Hardy, we’ve been here a half dozen times. ... I don’t want to hear it again.”). - 36 - inquiry into the juror’s state of mind, that she “was bothered by the repeated use, at least four times, of the [racial epithet], rather than by counsel’s initial line of questioning.” 132 A.D.3d at 514. However, without an inquiry, there was no evidence regarding the juror’s motivations. The Wiggins court also relied on the unremarkable proposition that “a juror’s mere annoyance with a question or with counsel would not be a basis for discharge.” Id. (emphasis added). But Mr. Bailey’s claim is not focused on the question of “basis for discharge” but rather the basis for inquiry. And again, without an individualized inquiry, there was insufficient information for the conclusion that the juror expressed “mere annoyance,” as opposed to strong offense and bias that would seep into deliberations. Indeed, in conjunction with the court’s rebuke of Mr. Bailey’s counsel, which may have confirmed the juror’s opinion about the objectionable nature of the inquiry,7 the juror likely believed she could be fair and impartial-even if further questioning - 37 - would have revealed that she could not disentangle her strong feelings about counsel’s “very offensive” behavior from an objective assessment of the evidence against Mr. Bailey. A. 92 (“[I]f any of you think that you can’t be fair and impartial as a result of something that has happened during the trial, you should please let one of the court officers know that and they’ll talk to me about it. Otherwise, I’ll assume that all of you still believe that you can be fair and impartial.”) (emphasis added). The trial court’s interpretation of Mejias raised the bar for conducting a juror inquiry to the point where the threshold for inquiry and discharge were identical, essentially obviating the need for inquiry altogether. If the conduct was such that it was “clear on its face that a juror is grossly disqualified,” the court would simply discharge the juror, as per Criminal Procedure Law § 270.35(1), and therefore there would be no need to conduct an inquiry. This should not be the standard. Instead, as Respondent even acknowledged at one point in the briefing below, “the need for a Buford inquiry is triggered only when there is ‘some indication that’ a particular juror lacked impartiality.” Respondent’s Brief at 40. Mr. Bailey agrees. A legal standard requiring that there be “some indication” of impartiality gets - 38 - to the purpose of a juror inquiry-further examination of that “indication” through questioning to reveal whether it is indicative of a grossly unqualified juror. The trial court assumed that the juror’s statement did not indicate that she “could not be [fair and impartial], only that she found the repeated use of the phrase [‘old nigger’] distasteful.” A. 91. However, where this assumption was uninformed by any inquiry, it cannot be credited. C. The Court’s Improper Handling of the Juror Outburst Presents a Question of Law for this Court’s Review. Respondent will undoubtedly urge this Court to find, as the First Department did, that this issue is unreviewable because it was not properly preserved as Mr. Bailey’s attorney did not join the request for an inquiry. This Court should reject that argument. Indeed to accept such a hyper-technical rule of preservation would be to ignore an error that was fully presented to the trial court and ruled upon and to excuse the court’s failure to comply with “the mode of proceedings prescribed by law.” People v. O’Rama, 78 N.Y.2d 270, 279 (1991). That a - 39 - preservation rule would lead to such a nonsensical and fundamentally unfair result amply demonstrates the lack of wisdom underlying it. While Mr. Bailey’s attorney asked for a mistrial, he also argued that juror number six needed to be discharged. Indeed, all three defense attorneys requested this relief, and even the prosecution lodged no objection to the juror’s discharge. Then, after the court said that it would not grant a mistrial or discharge the juror, it gave a proposed general instruction and asked for comments. Rather than directly address the instruction, Mr. Bailey’s attorney continued to object that his line of inquiry was legitimate and expressed concern that he wanted to address the same issue in summation. The court responded by noting how many times counsel had used the phrase and then proceeded to explain what it believed Mejias’s holding to be, which as argued above was a far too expansive interpretation. The court then concluded: “I don’t think there would be any basis to remove the juror without first establishing that she can’t be fair and impartial. I don’t think on its face her statement indicates that she could not be, only that she found the repeated use of the phrase distasteful.” A. 91. At this point, one of the codefendant’s attorneys interjected: “Could your Honor specifically - 40 - ask her?” A. 91. The court responded, “No. And what the decision yesterday specifically says is that you don’t question the individual juror unless the conduct would be grounds for removal in and of itself.” A. 91. To hold that the court’s error in not even conducting an inquiry is unpreserved would frustrate the salutary purposes and policy rationales underlying the preservation rule, as such a holding would rely on an unduly cabined reading of the factual record to prevent consideration of an issue that was decided adversely to Mr. Bailey. All three of the defense attorneys were unanimous in arguing that juror number six was grossly unqualified to serve on the jury. They also provided a range of remedies-including a mistrial, discharge of the juror, and an inquiry of the allegedly unqualified juror. Once the court is presented with an attorney’s objection to the continuing service of an allegedly unqualified juror and there is some indication that the juror may indeed be unqualified, that is sufficient for preservation. The court is then obligated to conduct an inquiry irrespective of the remedies that counsel suggests, and the failure to do so is a mode of proceedings error. In short, counsel arguing for the greatest remedy available does - 41 - not insulate the court’s denial of any remedy at all, where counsel correctly alerted the court to a situation that demanded some action. However, even if the request for a particular remedy were relevant to the preservation analysis, the issue is still preserved under Criminal Procedure Law § 470.05(2) (question of law presented “if in reponse [sic] to a protest by a party, the court expressly decided the question raised on appeal”). Counsel objected to the juror’s fitness to continue serving, and the court expressly decided that no inquiry was required. Moreover, once the trial court had made its position clear and issued its ruling, counsel was not required to continue making pointless objections in order to preserve the claim. See People v. Finch, 23 N.Y.3d 408, 413 (2014) (“As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected. ... When a court rules, a litigant is entitled to take the court at its word.”) (citations and explanatory parentheticals omitted); People v. Payne, 3 N.Y.3d 266, 273 (2004) (“declin[ing] to ... elevate preservation to a formality that would bar an appeal even though the trial court, aware that the motion was pending, had a full opportunity to review the issue in question”); People v. Mezon, 80 - 42 - N.Y.2d 155, 161 (1992) (“The law does not require litigants to make repeated pointless protests after the court has made its position clear”). The First Department’s conclusion regarding preservation was also incorrect because it inappropriately shifted a responsibility that is borne by the trial court onto defense counsel. When a juror is “grossly unqualified,” “the court must discharge such juror,” N.Y. Crim. Proc. Law § 270.35(1) (emphasis added), and where there is a colorable basis for believing a juror is unqualified, the court must examine the juror to ascertain his or her fitness to continue serving. See Buford, 69 N.Y.2d at 299 (“In reaching its conclusion [that a juror is grossly unqualified], the trial court must question each allegedly unqualified juror individually.”) (emphasis added). Ultimately, unless the juror is so clearly unqualified that the parties agree no inquiry is required or, alternatively, there is no concrete basis for concluding that the juror is unqualified, a substantiated objection that a juror may be grossly unqualified requires the court to determine whether or not to discharge the juror through individualized questioning. Thus, a specific, timely, and colorable objection that a juror is grossly unqualified, like the one that defense counsel made here, necessarily incorporates and preserves - 43 - a claim regarding the court’s dereliction of its duty to conduct the inquiry mandated by that colorable objection. Indeed, the court’s failure to oversee the proper procedures relating to jurors and jury deliberations is the quintessential type of defect that this Court has found to constitute a mode of proceedings error. See, e.g., O’Rama, 78 N.Y.2d at 279 (“failing to disclose the contents of the [jury] note”); People v. Coons, 75 N.Y.2d 796, 797 (1990) (“failing to keep the deliberating jury continuously together under supervision as required by the statute”); People v. Mehmedi, 69 N.Y.2d 759, 760 (1987) (responding to jury note with written instruction rather than bringing jurors back to courtroom); People v. Ahmed, 66 N.Y.2d 307, 310 (1985) (delegation of duties to court’s law secretary); see also People v. Silva, 24 N.Y.3d 294 (2014); People v. Walston, 23 N.Y.3d 986 (2014). As in the foregoing cases, Criminal Procedure Law § 270.35 and Buford place an obligation on the court to conduct an appropriate inquiry when a juror may be grossly unqualified, and the trial court’s deviation from that procedure was a mode of proceedings error. In sum, the colloquy about juror number six reflected one continuing and ongoing objection by all three defense attorneys to that - 44 - juror’s ability to serve. Counsel clearly protested that the juror was grossly unqualified, and the court expressly decided that it would not conduct an inquiry. To limit counsel’s protest as the First Department did is completely unmoored from the context of what happened here. Further, such a limitation does not accomplish justice because it only serves to insulate from review an issue that was considered and decided adversely to Mr. Bailey below. * * * The outburst, directed at Mr. Bailey via his counsel, was clearly an emotional response rooted in the juror’s impassioned personal feelings. In response to this outburst, the trial court had an obligation to inquire into the juror’s state of mind to ensure that her ability to listen to the evidence and to be fair and impartial was not compromised. The court failed in that obligation. Therefore, without the requisite inquiry, it is impossible to determine whether the juror’s outburst was an expression of personal bias against Mr. Bailey and/or his counsel that compromised her ability to be fair and impartial, or was merely a visceral reaction to language she understandably found “very offensive” but could nonetheless evaluate in the context for which - 45 - it was offered and put aside her strong feelings when considering the evidence. Moreover, the trial court’s general instructions to the entire jury did not suffice to resolve the concerns raised by this juror’s outburst. Thus, the trial court committed reversible error by denying the requests for discharge of the juror or for inquiry into the juror’s ability for fairness and impartiality, thereby improperly creating the risk that Mr. Bailey’s fundamental right to a proper jury verdict was violated. Ultimately, this error violated Mr. Bailey’s due process right to a fair trial. See U.S. Const. amend. V, XIV; N.Y. Const. art. I, §§ 2, 6. Accordingly, Mr. Bailey’s conviction must be reversed. - 46 - POINT II TRIAL COURT ERRED IN PERMITTING EXTENSIVE PREJUDICIAL TESTIMONY ABOUT THE BLOODS GANG THAT EXCEEDED THE LIMITED PURPOSE FOR WHICH IT WAS OFFERED. The trial court ruled that evidence regarding the Bloods membership of the three defendants and the testimony of a gang expert would be admissible, but only for the limited purpose of showing motive and intent with respect to the October 5, 2011 incident. However, whatever lip service it played to the limited purpose of the gang evidence, the trial court’s very ruling of allowing expert testimony about the background of the Bloods gang and “what it means to be in a gang,” A. 45, 49, i.e., its violent customs and practices, exceeded the limited purpose that the court ostensibly authorized. Because the court’s erroneous ruling significantly prejudiced Mr. Bailey, his conviction must be reversed. A. The Admission of Extensive Evidence Regarding Bloods Customs and Violent Practices Was Improper. It is well-established that, under People v. Molineux, 168 N.Y. 264 (1901), the prosecution generally may not introduce evidence that the defendant has committed an uncharged crime or other prior bad acts. - 47 - See also People v. Resek, 3 N.Y.3d 385, 390 (2004). This evidence generally is “excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters,” and cannot be admitted unless “probative of a legally relevant and material issue before the court.” People v. Alvino, 71 N.Y.2d 233, 241-42 (1987). The Molineux rule “is based upon the human tendency more readily ‘to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime,’” People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981) (quoting Molineux, 168 N.Y. at 313), and seeks to prevent a situation where “a jury might convict not for the crime charged, but because, as evidenced by other criminal conduct, the accused is a person deserving of punishment,” People v. Fiore, 34 N.Y.2d 81, 84 (1974). However, evidence of uncharged crimes or bad acts may nonetheless be admissible if relevant to prove, inter alia, motive or intent. Molineux, 168 N.Y. at 293; see also Ventimiglia, 52 N.Y.2d at 359. Importantly though, where evidence is deemed relevant under Molineux, it is subject to the further requirement that it may be received only if “its probative value for the jury outweighs the risk of 8 Courts have held that evidence of gang involvement is admissible only where there was some “connection between the membership and the crime.” People v. Bartholomew, 105 A.D.3d 613, 614 (1st Dep’t 2013); see also People v. Wilson, 14 A.D.3d 463, 463 (1st Dep’t 2005) (evidence of gang affiliation “was highly probative of defendant’s motive [and] explained the relationship between defendant and victim”); People v. Cain, 16 A.D.3d 288, 288-89 (1st Dep’t 2005) (same); People v. Connally, 105 A.D.2d 797, 797 (2d Dep’t 1979) (evidence of gang affiliation “was properly admitted into evidence to establish defendant’s motive and intent in shooting [victim]”). - 48 - undue prejudice to the defendant.” People v. Till, 87 N.Y.2d 835, 836 (1995). Here, even assuming limited evidence of gang membership was admissible based on what Mr. Davis purported was said during the incident,8 the sheer volume of gang evidence placed before the jury was unnecessary and highly prejudicial. Beyond Mr. Davis’s testimony, the prosecution’s evidence regarding the Bloods should have been narrowly tailored to simply show that all of the codefendants were members of the Bloods in order to demonstrate why the codefendants may have acted together. But the prosecution was permitted-from the outset-to stray beyond the limited purpose of motive and intent that was articulated, as expert testimony about “what it means to be in a gang,” A. 45, 49, was gratuitous to any understanding of what happened here. Indeed, the portion of the Bloods gang evidence that strayed beyond the - 49 - codefendants’ shared gang affiliation, which was sufficient to explain any motivation to act in concert, into the hierarchies and violent activities of the Bloods gang was irrelevant to the issues in this case. The incident involved a brawl over someone jumping to the front of a line-not a gang altercation. People v. Singleton, 139 A.D.3d 208, 210 (1st Dep’t 2016), is instructive. There, the conviction was reversed because “photographs showing defendants making gang signs while holding a gun different from the one they were charged with possessing” were “classic propensity evidence and lacked probative value.” Id. The First Department acknowledged that the “trial court properly exercised its discretion in admitting some testimony about the various gangs operating in East Harlem, and Facebook communications suggesting that defendants were members of a gang.” Id. at 212. However, the “photographs, particularly in view of the gang gestures depicted and the prominence of the guns displayed, were highly inflammatory, and impermissibly served to arouse the jury’s emotions by portraying defendants as dangerous gun-carrying criminals with a propensity for violence.” Id. at 214. - 50 - Similarly, in United States v. Hendrix, 52 F.3d 326, 1995 U.S. App. LEXIS 8676 (6th Cir. 1995), the court held that while a jury could convict a defendant of possession with intent to distribute, a photograph showing, inter alia, defendant’s potential gang membership “seem[ed] intended to appeal to jurors’ prejudices about the young black men, rather than to their disinterested judgment of [defendant’s] guilt or innocence of the charged crimes,” and as a result of its admission, defendant’s trial was “impermissibly tainted with prejudice” because the photograph “may have swayed the jury and rendered the trial unfair.” Id. at *5, *7. As in Singleton and Hendrix, the testimony here was unnecessarily excessive, going far beyond what was needed in order to show intent and motive-which was the limited use that the trial court ordered. Indeed, while the mere fact of gang membership to show the codefendants’ association with each other may have been a proper exercise of discretion, the additional evidence portraying Mr. Bailey as a member of a violent, criminal organization served no legitimate purpose. This included extensive cross-examination of Mr. Bailey regarding the Bloods, A. 726-39, and Investigator Rodriguez’s broad - 51 - testimony on the Bloods and the violence associated with the organization, A. 149-53. Most disturbingly, Investigator Rodriguez testified that Bloods members regularly engaged in prison violence against other inmates. For example, in discussing how Bloods members advance within the gang, Investigator Rodriguez told the jurors: “A lot of times it’s an act of violence. They would have to-they will put out a hit on an inmate and say I want that inmate cut, we want that inmate to get a beatdown.” A. 153. To demonstrate motive and intent for the purported group assault, it was only necessary to show that the codefendants were members of the same gang. That would have sufficiently explained why they acted together and minimized the risk of unduly inflaming the jurors’ emotions. In marked contrast, injecting damaging propensity evidence that advancement in the Bloods often requires putting “a hit” on another inmate, and that gang members regularly engage in violence, signaled to the jury that the codefendants were guilty of this assault by association. Such an error undermined any chance that the jurors would dispassionately weigh the evidence. Similarly, the extensive inquiry of Mr. Bailey into his understanding of, and - 52 - participation in, the Bloods strayed far beyond the sole permissible purpose of motive and intent; instead, it was designed to impeach his credibility by association with the Bloods and reinforce to the jurors that he was a member of a violent organization. The improper introduction of excessive gang evidence also allowed the prosecution to make numerous arguments in summation that were not directed at motive and intent, but instead improperly transformed the trial from one focusing on the October 5, 2011 incident to instead putting the Bloods and their collective past transgressions on trial. Indeed, the prosecution’s summation repeatedly referenced the Bloods. See, e.g., A. 978-81, 992, 1000-03. For example, the prosecutor argued Mr. Bailey was not credible because he claimed that the Bloods were opposed to oppression and did not agree with some of the prosecutor’s characterizations of the gang’s attributes and practices. A. 978 (“Bailey wants you to believe that he and other Blood members are almost even a charitable organization, helping others when they need to. We know they’re not a charitable organization. Okay.”). The prosecutor also argued that Mr. Bailey had perjured himself to protect other gang members, and that he had coerced additional perjured testimony based - 53 - on his Bloods membership. A. 1000-03. These were incendiary and improper arguments, which went beyond motive and intent. B. The Erroneously Admitted Evidence Was Not Harmless Error. The extensive, improperly admitted evidence regarding Bloods gang affiliation and the Bloods violent culture and practices was highly prejudicial as it served to inflame the jury’s passions and focus their attention on a perceived propensity for violence. Indeed, voir dire confirmed the common sense conclusion that many people hold a strong negative association with the Bloods and other similar gangs. See, e.g., A. 13-14 (seated juror: “I’ve read a lot about the Bloods, both on the West Coast and their arrival in New York. I think it’s a terrible, terrible organization.”); A. 18 (prospective juror, not seated: “three years ago I was robbed, ... and apparently it was one of the Blood members”); A. 35-36 (seated juror: “[A]ny person who is a member of any gang, let’s talk about a Crib [sic] and not the Bloods. Do you think they live their lives about nothing but committing crimes in every moment? ... Yes.”). Moreover, this inflammatory and prejudicial evidence effectively distracted the jury and obscured significant defects in the prosecution’s - 54 - case. For instance, there were numerous problems with Mr. Davis’s testimony. Mr. Davis’s credibility was vigorously challenged. He has a lengthy criminal record of seven felony convictions and four misdemeanor convictions, including imprisonment for fourteen and one- half years as a result of a gunpoint robbery conviction, and he has also been involved in approximately 50 disciplinary proceedings. A. 488-90, 502-03. Moreover, Mr. Davis was not only the prosecution’s key witness but he is also the plaintiff in a suit brought against the Department of Correction relating to its role in the incident. A. 485-86. Thus, Mr. Davis had a monetary incentive to testify that he was an innocent victim in this case, in addition to his long history of placing his own interests above those of society. Mr. Davis’s testimony was also impeached with prior inconsistent statements. A. 520-23, 554-55, 582- 83, 594-95. Based on these facts alone, the jury had ample reason to discredit Mr. Davis’s testimony. However, this was not the only reason to discredit his testimony. The jurors were also presented with Mr. Bailey’s competing account of a fight solely between him and Mr. Davis, which was corroborated by Terique Collins. The only witness to - 55 - corroborate any part of Mr. Davis’s testimony was Officer Weise, who claimed only to see the very end of the fight. Moreover, Mr. Davis admitted that he previously heard a corrections officer telling the captain that it was a one-on-one fight. A. 485. In short, it is clear that there was no “compelling proof of [Mr. Bailey’s] guilt” here-a typical requirement for finding the erroneous admission of gang membership to be harmless error. People v. Sellan, 143 A.D.2d 690, 691 (2d Dep’t 1988). Thus, the extensive evidence admitted about the Bloods and violence associated with this gang undoubtedly had a prejudicial effect on the jurors and was not harmless error. People v Crimmins, 36 N.Y.2d 230, 241 (1975) (“every error of law (save, perhaps, one of sheerest technicality) is, ipso facto, deemed to be prejudicial and to require a reversal, unless that error can be found to have been rendered harmless by the weight and the nature of the other proof”); see also Bartholomew, 105 A.D.3d at 613-14 (conviction reversed as a matter of discretion in the interest of justice, as cross-examination of defendant regarding the criminal history of others, specifically defendant’s gang member boyfriend, “only serve[d] to inflame the jury and prejudice defendant”); People v. Griffin, 242 - 56 - A.D.2d 70, 74 (1st Dep’t 1998) (conviction reversed in a case where “the credibility of the two people involved was the paramount issue for the jury to resolve” and the court noted the importance of impeaching an alleged victim with a “monetary incentive to fabricate”). * * * The foregoing errors violated Mr. Bailey’s due process right to a fair trial. See U.S. Const. amend V, XIV; N.Y. Const. art. I, § 6. A criminal case should be tried on its facts; it should not hinge upon a perceived propensity for violent crime based on a defendant’s affiliation with a violent gang. Thus, due to the extensive and prejudicial evidence that was admitted regarding the Bloods, Mr. Bailey’s conviction should be reversed and the case remanded for a new trial. - 57 - CONCLUSION For the foregoing reasons, this Court should reverse Princesam Bailey’s conviction. Dated: New York, New York September 22, 2017 Respectfully submitted, CHRISTINA A. SWARNS, ESQ. Attorney for Defendant-Appellant By: ____________________________ MARGARET E. KNIGHT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Mknight@appellatedefender.org Tel. No.: (212) 402-4100 Fax No.: (212) 402-4199