The People, Respondent,v.Princesam Bailey, Appellant.BriefN.Y.May 2, 2018To 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. REPLY 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 December 22, 2017 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I PRINCESAM BAILEY FULLY PRESERVED THE ARGUMENT THAT THE COURT IMPROPERLY FAILED TO MAKE THE NECESSARY INQUIRY OF A POTENTIALLY BIASED JUROR, AND THE COURT’S ERROR IN THIS REGARD REQUIRES REVERSAL (replying to Respondent’s Brief, Point I). . . . . . . . . . . . . . . . . . . . 1 A. Where All Three Defense Attorneys Protested That a Juror Was Grossly Unqualified, and Where the Court Denied a Request to Question the Juror, the Court’s Error Is Fully Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Where a Juror Threatened Both to Ignore an Attorney’s Examination of a Witness Because the Questioning Was Offensive and to Leave the Courtroom, the Trial Court Was Required, at a Minimum, to Conduct an Individual Inquiry. . . . . . . . . . . . 9 POINT II RESPONDENT FAILS TO PROVIDE ANY REASONABLE EXPLANATION FOR WHY TESTIMONY ABOUT THE VIOLENT PRACTICES AND HIERARCHIES OF THE BLOODS GANG WAS NECESSARY TO ESTABLISH MOTIVE (replying to Respondent’s Brief, Point II). . . . . . . . . . . 16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ii TABLE OF AUTHORITIES CASES PAGE People v. Anderson, 149 A.D.3d 1407 (3d Dep’t 2017) . . . . . . . . . . . . . . 8 People v. Bakerx, 114 A.D.3d 1244 (4th Dep’t 2014) . . . . . . . . . . . . . . . 8 People v. Benet, 45 A.D.3d 1449 (4th Dep’t 2007) . . . . . . . . . . . . . . . . 12 People v. Buckley, 75 N.Y.2d 843 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Buford, 69 N.Y.2d 290 (1987) . . . . . . . . . . . . . 5, 11, 12, 14, 15 People v. Cabassa, 79 N.Y.2d 722 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Callendar, 90 N.Y.2d 831 (1997) . . . . . . . . . . . . . . . . . . . . . . 20 People v. Finch, 23 N.Y.3d 408 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Gray, 86 N.Y.2d 10 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 People v. Greene, 49 A.D.3d 275 (1st Dep’t 2008) . . . . . . . . . . . . . . . . . . 8 People v. Harris, 99 N.Y.2d 202 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Hernandez, 136 A.D.3d 1055 (2d Dep’t 2016) . . . . . . . . . . . . . 8 People v. Hicks, 6 N.Y.3d 737 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Hunter, 17 N.Y.3d 725 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Hutchinson, 56 N.Y.2d 868 (1982) . . . . . . . . . . . . . . . . . . . . . 17 People v. Jaen, 116 A.D.3d 975 (2d Dep’t 2014) . . . . . . . . . . . . . . . . . . . 8 iii People v. Kuzdzal, 144 A.D.3d 1618 (4th Dep’t 2016), lv. granted, 28 N.Y.3d 1190 (2017) . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Lombardo, 61 N.Y.2d 97 (1984) . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v. Major, 143 A.D.3d 1155 (3d Dep’t 2016) . . . . . . . . . . . . . . . . 12 People v. Mejias, 21 N.Y.3d 73 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Nieves, 67 N.Y.2d 125 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Rice, 75 N.Y.2d 929 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Rodriguez, 71 N.Y.2d 214 (1988) . . . . . . . . . . . . . . . . . . . . . . 15 People v. Rojas, 220 A.D.2d 266 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . 12 People v. Ryan, 12 N.Y.3d 28 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Sabb, 11 A.D.3d 350 (1st Dep’t 2004) . . . . . . . . . . . . . . . 17, 18 People v. Samuel, 137 A.D.3d 1691 (4th Dep’t 2016) . . . . . . . . . . . . . . . 8 People v. Spencer, 29 N.Y.3d 302 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Toledo, 101 A.D.3d 571 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . 8 STATUTES Penal Law § 120.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Penal Law § 120.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Penal Law § 120.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iv Penal Law § 265.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1Respondent’s brief will be cited as “Resp. Br.” Appellant’s opening brief will be cited as “App. Br.” All other citations are the same as those employed in Appellant’s opening brief. 1 ARGUMENT POINT I PRINCESAM BAILEY FULLY PRESERVED THE ARGUMENT THAT THE COURT IMPROPERLY FAILED TO MAKE THE NECESSARY INQUIRY OF A POTENTIALLY BIASED JUROR, AND THE COURT’S ERROR IN THIS REGARD REQUIRES REVERSAL (replying to Respondent’s Brief at, Point I). Respondent argues that the court’s refusal to conduct an inquiry of juror number six is not reversible error because Princesam Bailey’s attorney did not request this relief, Resp. Br. at 18-25,1 and because the trial court correctly concluded that no inquiry was required, id. at 25- 38. Respondent is wrong on both counts. A. Where All Three Defense Attorneys Protested That a Juror Was Grossly Unqualified, and Where the Court Denied a Request to Question the Juror, the Court’s Error Is Fully Preserved. Following juror number six’s extreme outburst in the courtroom, Mr. Bailey’s attorney, along with the two codefendants’ attorneys, objected that juror number six was grossly unqualified. A. 84-88. In particular, Mr. Bailey’s counsel argued: 2 I am going to ask for a mistrial at this point. I think Juror Number Six in her outburst clearly poisoned the jury with her animosity, not only toward me, but the questions that I was asking, which were clearly legitimate questions based on the testimony . . . . I think her actions clearly show animosity, again, toward me, which may be carried over to my client. She is not going to be able to separate her opinion from whatever the facts in this case may eventually be. And I think based on her outburst, she not only put herself in a position where she should be removed but I think she has poisoned the entire jury as well. . . . I think she is grossly unqualified . . . . A. 84-85. While the two other defense attorneys did not believe that a mistrial was necessary, they agreed that juror number six was grossly unqualified and must be discharged. See, e.g., A. 87 (“I think the appropriate remedy here would be to strike the juror on the grounds that [Bailey’s counsel] has made with respect to the record.”). Notwithstanding the prosecution’s lack of objection to juror discharge, the trial court denied the requests and ruled that it would only issue a general instruction to the entire panel. A. 88-89. The court asked if the attorneys had any comments about its proposed instruction, but both Mr. Bailey’s and codefendant Jonathan Batticks’s attorneys continued 3 to make arguments related to the court’s earlier ruling. A. 89-91. Mr. Bailey’s attorney noted his concern that he would revisit the same language in summation, and Batticks’s attorney asked the court to question juror number six. Id. The court dismissed the concerns of Mr. Bailey’s attorney and denied the request for an inquiry. Id. Notwithstanding that all three attorneys objected that juror number six was grossly unqualified, and that the trial court denied an explicit request to question the allegedly unqualified juror, Respondent argues that this issue is unpreserved because defense counsel did not specifically join in the request for an inquiry and may even have had a reason to oppose a juror inquiry. See Resp. Br. at 18-25. Respondent’s misbegotten attempt to evade merits review of this issue must fail. Respondent’s primary argument is that where a defendant “requests a specific form of relief,” he “fails to preserve a claim that he was entitled to some other form of relief.” Id. at 19. Respondent’s argument is far too broad, and Respondent cites no authority that would support extending its hypertechnical application of the preservation rule to the instant situation. 4 A simple analogy illustrates the negative effect of a stringent application of Respondent’s ill-advised rule. Assume that an attorney correctly objected that a prejudicial piece of evidence should not have been admitted, and then argued for a mistrial. However, the trial court ruled that the evidence was properly admitted. It would be unjust to then find an appellate argument about the erroneous admission of the evidence to be unpreserved simply because less drastic remedies, like striking the testimony and issuing a curative instruction, would have sufficed. Instead, where a trial court refuses to do the bare minimum necessary to address a legal error, attorneys who have asked for the greatest remedy available do not forfeit review by failing to propose all the lesser remedies of which the trial court could have availed itself. The situation would be different if the trial court had offered to conduct an individual inquiry of juror number six and counsel had explicitly rejected the court’s offer of the appropriate remedy. Indeed, that would be similar to People v. Lombardo, 61 N.Y.2d 97 (1984), the primary authority relied upon by Respondent. Resp. Br. at 19-20. There, the prosecution suggested that the juror be questioned individually. The defense attorney “did not join” that suggestion and 5 “instead pressed a motion for a mistrial.” Lombardo, 61 N.Y.2d at 103. Unlike in Lombardo, Mr. Bailey’s counsel never rejected the suggestion of a juror inquiry. Rather, the court rejected the request as soon as it was made by a codefendant’s attorney, rendering futile any further objection by Mr. Bailey. See People v. Finch, 23 N.Y.3d 408, 413 (2014) (“When a court rules, a litigant is entitled to take the court at its word.”). It is also notable that Lombardo preceded this Court’s seminal decision in People v. Buford, 69 N.Y.2d 290 (1987). Buford made clear that the trial court “must question each allegedly unqualified juror individually.” Id. at 299 (emphasis added). See App. Br. at 42-43. (discussing the court’s obligation to conduct an adequate inquiry). The other cases relied on by Respondent are even more easily distinguishable. For example, in People v. Gray, 86 N.Y.2d 10, 18-19, 22-26 (1995), the defendants entirely failed to alert the trial court that they were challenging the legal sufficiency of the proof as to their knowledge of the weight of drugs. In finding the issue unpreserved, this Court provided a useful explanation of the purpose of preservation. The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to 6 bring the claim to the trial court’s attention. A general motion fails at this task. As a practical matter, a general motion to dismiss is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous ground. A sufficiently specific motion might provide the opportunity for cure before . . . a cure is no longer possible. Id. at 20-21 (citations omitted). While Respondent relies on technical arguments, it cannot dispute that the court was provided with a panoply of remedies, including an individual juror inquiry, and given ample opportunity to correct its error in a timely fashion. See also People v. Hicks, 6 N.Y.3d 737, 739 (2005) (court conducted an individual inquiry of juror, and counsel responded, “No,” when court asked if parties had further questions); People v. Rice, 75 N.Y.2d 929, 932 (1990) (defense counsel “demanded” mistrial as only acceptable remedy). Respondent next dismisses the unanimous chorus from all three defense attorneys that the juror needed to be removed because she was grossly unqualified and argues that Mr. Bailey’s attorney may have had a “strategy” for not joining the request for a juror inquiry. Resp. Br. at 22. Respondent’s argument is belied by the record and common sense. To support its argument, Respondent insinuates that Mr. Bailey affirmatively rejected any other remedy but a mistrial. Id. at 19 7 (“unwavering position . . . that it warranted a mistrial”). In fact, counsel argued both that juror number six was grossly unqualified and that she had tainted the other jurors. Nowhere in counsel’s argument does he reject other remedies, including the discharge of juror number six. Respondent similarly claims that this case involved “a co-defendant’s protest alone.” Id. at 23. This could not be further from the truth. All three defense attorneys were deeply troubled by the juror’s bias, and they were all unified in asking the court to do more than give a general instruction. Respondent also speculates that counsel “did not wish to run the risk that Juror Six would respond to an inquiry by saying exactly what was already apparent: that she was offended by the repeated use of the word ‘nigger’ but that it would not affect her ability to continue to serve impartially.” Id. at 22. Respondent fails to explain why this was a “risk.” The trial court had already refused to discharge the juror— either the juror would have made statements demonstrating bias, thereby leading to her discharge; or she would not, leading to the same 2The Appellate Division cases cited by Respondent are neither binding on this Court nor supportive of Respondent’s position as the defendants in those cases did not join in their codefendant’s specific objections to the legal errors, whereas counsel here was adamant that juror number six was grossly unqualified. Resp. Br. at 23. See People v. Anderson, 149 A.D.3d 1407, 1413 (3d Dep’t 2017) (“defendant’s counsel did not join an objection by counsel for some of his codefendants”); People v. Samuel, 137 A.D.3d 1691, 1694-95 (4th Dep’t 2016); People v. Hernandez, 136 A.D.3d 1055, 1056 (2d Dep’t 2016); People v. Jaen, 116 A.D.3d 975, 975 (2d Dep’t 2014); People v. Bakerx, 114 A.D.3d 1244, 1246 (4th Dep’t 2014); People v. Toledo, 101 A.D.3d 571, 571 (1st Dep’t 2012); People v. Greene, 49 A.D.3d 275, 275 (1st Dep’t 2008). 8 outcome as no inquiry at all. Thus, there was only potential benefit and no actual risk. The cases cited by Respondent for the general proposition that an objection by a codefendant’s attorney does not serve to preserve a legal issue unless specifically joined are easily distinguishable, as they involved the decision whether or not to submit a lesser included offense. Id. at 21. See People v. Buckley, 75 N.Y.2d 843, 846 (1990) (court’s denial of codefendant’s request of lesser included offense did not preserve issue as to defendant because there are “tactical reasons” for codefendants to “take different positions”); see also People v. Cabassa, 79 N.Y.2d 722, 730 (1992) (same).2 In short, Respondent cannot identify a single case finding an error to be unpreserved where numerous attorneys all raised the same 9 objection (here, as to a juror’s qualification to continue serving), the attorneys presented various potential remedies in quick succession, and the court denied all suggested remedies, including the precise remedy at issue on appeal. Such a harsh and unbending rule of preservation is neither dictated by this Court’s precedent, nor warranted by the rationale underlying the preservation rule. Rather, it would serve to insulate a legal issue that was fully considered by the trial court and would mete out justice inconsistently and unfairly among similarly situated individuals. Indeed, it would lead to the twisted result that the defendant who indicated through his objection that the error was most prejudicial to him would be the least entitled to relief. B. Where a Juror Threatened Both to Ignore an Attorney’s Examination of a Witness Because the Questioning Was Offensive and to Leave the Courtroom, the Trial Court Was Required, at a Minimum, to Conduct an Individual Inquiry. Respondent acknowledges that defense counsel had a legitimate strategy for using a racial epithet during his cross-examination of the complainant Steven Davis. Resp. Br. at 28. In particular, “[c]ounsel had plainly calculated that an emotional reaction from Davis on the witness stand would bolster defendant’s ultimate argument that Davis 3Respondent believes that the fifth time the word was uttered was gratuitous because, by then, Davis admitted that the epithet had been directed at him. Resp. Br. at 28-29. Davis’s acknowledgment of the epithet was not as clear as Respondent suggests. A. 546 (“Q You told Officer Santiago that he called you an old nigger? A Okay. He may have.”). However, even if Davis had clearly confirmed the use of the racial epithet, it is not inappropriate for a lawyer to briefly revisit an issue. 4See, e.g., Resp. Br. at 25 (“nothing more than an expression of exasperation”); id. at 28 (“merely reflected her exasperation”); id. (“the juror’s frustration”); id. at 29 (not “remotely biased”); id. at 31 (“understandable, momentary lapse in judgment stemmed only from frustration”); id. at 33 (“juror’s conduct reflected . . . temporary frustration”); id. at 34 (“juror’s remarks . . . directed at her discomfort”); id. at 35 10 instigated the violence and defendant acted in self-defense.” Id. And Respondent concedes that counsel properly invoked the epithet four times, but claims that the critical fifth time was “gratuitous.”3 Id. at 25, 28. It is thus clear to Respondent that juror number six was able to properly consider counsel’s four legitimate uses of the word “nigger,” but was “exasperated” when it was used again an unnecessary fifth time. Id. Respondent gleans from an equivocal record the inner workings of juror number six’s mind, including that she was able to finely parse the legally appropriate use of the word on four occasions, but only objected when counsel’s cross-examination became cumulative. Perhaps Respondent is correct when it baldly asserts that juror number six’s reaction was not truly indicative of bias or strong feelings. But Respondent’s sanitized representation of the encounter4 is no (“the emotion expressed plainly had dissipated”). 5Respondent suggests that the jury’s verdict indicates that there was no bias, as Mr. Bailey was acquitted of the top charges. Resp. Br. at 33 n. 14. However, as Respondent tacitly concedes, this issue is not subject to harmless error review. Moreover, Respondent’s ignores the import of the jury’s verdict as to each element. The acquittals of attempted first-degree assault and gang assault reflected a finding that there was insufficient proof of an intent to inflict serious physical injury. Penal Law §§ 120.07, 120.10(1). The failure to reach a verdict on one of the second-degree assault counts and third-degree criminal possession of a weapon reflected a disagreement over whether the cane constituted a dangerous instrument. Penal Law §§ 120.05(2), 265.02(1). By contrast, the second-degree assault count that Mr. Bailey was convicted of directly pitted Mr. Bailey’s credibility against Mr. Davis’s on the element of justification. Penal Law § 120.05(7). This was the very issue that the counsel was exploring during juror number six’s outburst. Accordingly, the jury’s verdict does not suggest that juror number six was unaffected by bias. 11 substitute for concrete information. Indeed, given the extreme nature of her response, it is more likely that juror number six was highly distressed by the use of the racial epithet, and when it was uttered the final time, she could no longer contain herself, openly declared her offense in open court, and threatened to leave the proceedings. A. 81 (“I am not going to sit here . . . and having you say that again. Don’t say it again or I am leaving. . . . I find that very offensive.”). Which illustrates the central defect at the heart of the trial court’s ruling. We cannot know whether bias infected the deliberations because the court never conducted a “probing and tactful inquiry” of the juror.5 Buford, 69 N.Y.2d at 299; People v. Kuzdzal, 144 A.D.3d 1618, 1620 (4th Dep’t 12 2016) (“the court must hold a Buford inquiry whenever there are facts indicating the possibility of juror bias, and must not base its ruling on speculation”), lv. granted, 28 N.Y.3d 1190 (2017). Respondent’s argument that the juror’s reaction plainly evinced irritation but not bias is also unsupported the Appellate Division cases upon which it relies. Resp. Br. at 26-27, 29. For example, in People v. Major, 143 A.D.3d 1155, 1156 (3d Dep’t 2016), a juror believed that defense counsel was making “inappropriate facial and eye gestures.” In People v. Benet, 45 A.D.3d 1449, 1451 (4th Dep’t 2007), a juror “audibly sighed” at a defense motion. In People v. Rojas, 220 A.D.2d 266, 267 (1st Dep’t 1995), a juror “verbally responded to rhetorical questions” during a summation. See also Resp. Br. at 29-30 (citing cases where jurors laughed, talked, visibly expressed disbelief, or closed one’s eyes during trial proceedings). These mild instances of disagreement with attorney tactics or arguably inappropriate behavior highlight how dissimilar juror number six’s reaction was. Juror number six directed the term “offensive” at Mr. Bailey’s counsel, she said that she would not listen to his cross-examination if he did not curtail it according to her 13 wishes, and she threatened to leave the proceedings altogether. If this does not require an inquiry, then Respondent has set the bar at requiring an explicit statement of bias or an inability to follow the law. Respondent’s threshold would accomplish implicitly what the trial court did explicitly: collapse the distinction between grounds for an inquiry and for discharge. See App. Br. at 33-38 (discussing how the trial court’s misinterpretation of People v. Mejias, 21 N.Y.3d 73 (2013), resulted in an erroneously high bar for conducting a juror inquiry). Finally, Respondent errs in suggesting that this Court must defer to the trial court’s interpretation of juror number six’s behavior. Resp. Br. at 27. While a trial court’s observations are entitled to some deference, the determination of whether a juror is grossly unqualified is “a legal determination.” People v. Spencer, 29 N.Y.3d 302, 310 (2017) (quoting People v. Harris, 99 N.Y.2d 202, 212 (2002)). Thus, in Spencer, this Court rejected the lower court’s finding that a juror was not grossly unqualified. Id. at 311. Moreover, deference to a trial court’s observations is unwarranted where the court fails to conduct the requisite inquiry necessary for a 14 considered determination of the issue. This Court has laid out in detail what steps the trial court should take. In reaching its conclusion, the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate if they desire. In a probing and tactful inquiry, the court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case. In this context, the court should carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations. The trial court’s reasons for its ruling should be placed on the record. In concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Buford, 69 N.Y.2d at 299. The trial court here did not (1) individually question juror number six, (2) allow the attorneys to participate, (3) evaluate the juror’s answers and demeanor, (4) determine whether those answers indicated a state of mind that would affect her deliberations, or (5) place determinations of credibility or findings of fact on the record. Instead, the court speculated based on an equivocal outburst. Accordingly, the court was not entitled to deference. Indeed, it is telling that the only case from this Court that Respondent cites in support of giving deference to the trial court involved a lengthy inquiry 6Incidentally, in that case, this Court rejected the trial court’s finding that the juror was not grossly unqualified, reversed the conviction, and ordered a new trial. Rodriguez, 71 N.Y.2d at 220-21. 15 of the allegedly unqualified juror.6 Resp. Br. at 27 (citing People v. Rodriguez, 71 N.Y.2d 214, 219 (1988)). In sum, the course that the court pursued was not “sensible and effective.” Resp. Br. at 31. Because the trial court refused to conduct a Buford inquiry, this Court is left to “speculate as to possible partiality of the juror based on her equivocal responses.” Buford, 69 N.Y.2d at 299. The trial court’s refusal to do what the law requires mandates reversal. 16 POINT II RESPONDENT FAILS TO PROVIDE ANY REASONABLE EXPLANATION FOR WHY TESTIMONY ABOUT THE VIOLENT PRACTICES AND HIERARCHIES OF THE BLOODS GANG WAS NECESSARY TO ESTABLISH MOTIVE (replying to Respondent’s Brief, Point II). Respondent argues that Princesam Bailey did not preserve his argument that evidence about the violent criminal practices of the Bloods gang should not have been admitted, Rep. Br. at 44-45, and in any event, that the evidence was properly admitted because it was probative of relevant issues and limited in scope, id. at 47-50. Neither argument is convincing. As to preservation, Respondent argues that Mr. Bailey “never once squarely complained before the trial court that background testimony from Rodriguez was improper.” Id. at 44. To the contrary, counsel’s objection, in conjunction with the court’s ruling, clearly preserved the issue. In particular, the prosecution sought to elicit evidence regarding the codefendants’ joint gang membership and background about the Bloods gang for purposes of “motive and intent” because otherwise the “jurors would speculate why would two people 17 who have no prior relationship with this victim [choose] to get involved” in an altercation that was initiated by the third codefendant. A. 45-46. The defense acknowledged that the evidence was probative of motive, but nonetheless argued that “extensive evidence” about the Bloods gang was more prejudicial than probative A. 53. After hearing arguments, the trial court agreed that Bloods gang evidence, including the testimony of “Investigator Rodriguez and his background” on gangs, was probative of motive and issued the overly broad ruling now challenged on appeal. A. 59-60. Thus, defense counsel alerted the court to the error challenged on appeal; nothing further is required. Respondent’s reliance on People v. Hutchinson, 56 N.Y.2d 868 (1982), and People v. Sabb, 11 A.D.3d 350 (1st Dep’t 2004), is misplaced. Resp. Br. at 44. In Hutchinson, defense counsel did not object to the “excessive volume” of other crimes evidence. Hutchinson, 56 N.Y.2d at 870. Here, the defense made the precise objection that was absent in Hutchinson by opposing “extensive evidence” about the Bloods gang. A. 53. The argument in Sabb was that “the People introduced excessive and prejudicial details . . . that went beyond the 18 court’s Molineux ruling.” Sabb, 11 A.D.3d at 351. Here, the argument is that the trial court’s initial ruling allowing excessive evidence about the Bloods gang was erroneous. On the merits, Respondent spends significant time on issues that are not in dispute regarding the admissibility of the codefendants’ alleged shared gang affiliation. Resp. Br. at 45-47. The narrow issue before this Court, however, is whether the trial court abused its discretion in allowing evidence that went beyond this shared membership and instead more broadly detailed the Bloods gang’s criminal activity and violent practices in prison. Respondent has never been able to provide a convincing justification for why such evidence was more than minimally probative of motive. The fact the three defendants were part of the same gang fully explained the motive for Mr. Bailey and Jonathan Batticks coming to Reginald Wiggins’s aid in a fight that Wiggins alone initiated. It is common sense that gang members will help other gang members—this is not a confusing or controversial fact, and certainly not one deserving an in-depth exploration into the inner culture of the controversial Bloods gang. Investigator Rodriguez was nonetheless permitted to 19 describe the Bloods as “a group of individuals that . . . do different activities with drugs, guns, and everything like that,” A. 149, thus connecting Mr. Bailey with criminal activities and violence beyond the charged crime. Rodriguez’s most egregious testimony was that in order to advance within the Bloods, gang members will have to “put in work” and “[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. Respondent claims that this propensity evidence about bad acts committed by the Bloods gang “substantiated the link between [Mr. Bailey’s] affiliation with the gang and his conduct,” and “testimony that gang members commit acts of violence under instruction or to rise in the ranks spoke directly to the material issue of defendant’s motive to participate in the assault.” Resp. Br. at 47-48. Respondent is wrong. The testimony about drugs, guns, and violent hits was completely untethered from the facts here, which involved a trivial dispute over cutting the linen line that escalated into a fight, and therefore injected unanswerable prejudice into the minds of the jury. Ultimately, any 20 probative value coming from the testimony was far outweighed by its prejudicial effect. Perhaps realizing that evidence of the violent practices of members of the Bloods gangs was not necessary to show motive, Respondent now seeks other justifications. For example, Respondent claims that this evidence was necessary to explain Batticks’s use of the phrase “power rules,” and to preemptively rebut Mr. Bailey’s minimization of his relationship with Batticks and Wiggins. Id. at 48. Of course, Respondent never made these arguments before, so they are unpreserved. See People v. Nieves, 67 N.Y.2d 125, 136 (1986) (Appellate Division erred in upholding the admissibility of hearsay on the basis of an exception never advanced by the prosecution at trial, which prevented the defense from countering that factual theory); see also People v. Hunter, 17 N.Y.3d 725, 727-28 (2011); People v. Ryan, 12 N.Y.3d 28, 31 n.* (2009); People v. Callendar, 90 N.Y.2d 831, 832 (1997). They are also meritless. The complainant testified that he understood the phrase “power rules” to refer to a subgroup of the 21 Bloods gang, so Rodriguez’s testimony was cumulative of this point, and the complainant also referenced more explicit statements of Bloods membership when discussing the fight, so there was no risk of juror confusion. A. 444-45, 451. And while Mr. Bailey testified that he was only acquaintances with Batticks and Wiggins, he admitted that he was personally a member of the Bloods gang. Evidence about the violent criminal practices of the Bloods gang was irrelevant to proving that Wiggins and Batticks were members of the gang, or that their relationship with Mr. Bailey was closer than described. Finally, Respondent argues that Mr. Bailey was not prejudiced because Rodriguez’s testimony was “academic in tone,” Resp. Br. at 49, Mr. Bailey has only identified the testimony about “following orders to perform a ‘hit’” as excessive, id. at 50, and Rodriguez’s testimony did not influence the verdict, id. at 52. Whatever the “tone” of Rodriguez’s testimony, the content was highly prejudicial. And while Mr. Bailey objects to all of Rodriguez’s background testimony, he has indeed focused on the testimony about placing violent hits on other inmates, as well as the Bloods gang’s involvement with guns, drugs, and criminal 22 activity, as the most damaging portion of Rodriguez’s testimony. While Respondent tries to minimize the impact of the testimony by focusing on the number of transcript pages, id. at 42, 49, there can be no doubt that the jurors were affected by evidence that individuals, like Mr. Bailey, who are members of the Bloods gang regularly engage in all manner of violent criminal behavior. Finally, given the weaknesses in the prosecution’s case, App. Br. at 54-55, testimony that went beyond mere membership in the Bloods gang very well could have affected the outcome of this trial. 23 CONCLUSION For these reasons and the reasons provided in Appellant’s opening brief, this Court should reverse Princesam Bailey’s conviction. Dated: December 22, 2017 New York, New York 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 Tel. No.: (212) 402-4100 Fax No.: (212) 402-4199 mknight@appellatedefender.org