The People, Respondent,v.Ronel Joseph, Appellant.BriefN.Y.Sep 14, 2016 To be Argued by: MATTHEW E. K. HOWATT, ESQ. New York County Indictment No. 3120/10 New York Supreme Court Appellate Division – First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – RONEL JOSEPH, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. EUNICE C. LEE, ESQ. Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 firstname.lastname@example.org MATTHEW E. K. HOWATT, ESQ. Pro Bono Of Counsel email@example.com i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................... ii ARGUMENT .................................................................................................. 1 POINT I: Respondent Does Not State Any Reason Why The Deli Basement Was A “Dwelling” Under The Recently Reaffirmed Test From The Court Of Appeals In People v. McCray; Thus, Mr. Joseph’s Second-Degree Burglary Conviction Was Legally Insufficient And Against The Weight Of The Evidence. (Replying to Resp. Br. at 15-23) .......................................................... 1 A. The Court of Appeals’ Test From People v. McCray For Whether A Non-Residential Part Of A Building Is Considered Part Of A “Dwelling,” Is Not Based Solely On The Size Of A Building, But Rather Focuses On Whether Residents Could Be Terrorized In Their Homes Or Endangered Defending Their Property, As Well As The Presence Of “Internal Communication……………………..2 B. No “Special Dangers” Were Implicated By Mr. Joseph’s Presence In The Deli Basement Or On The Public Sidewalk And Street ............................................................................. 6 POINT II: The Verdict On The Second And Third-Degree Burglary Counts Was Legally Insufficient And Against The Weight Of The Evidence Where The Evidence Failed To Establish The Intent To Commit A Crime In The Deli Basement. (Replying to Resp. Br. at 23-30) ………........................................... 13 CONCLUSION ............................................................................................. 18 ADDENDUM: Printing Specification Statement ……............................ A-1 ii TABLE OF AUTHORITIES Page(s) Cases People v. Bobbitt, 49 A.D.3d 265 (1st Dep’t 2008) ..................................... 14 People v. Crooks, 95 A.D.3d 417 (1st Dep’t 2012)........................................ 5 People v. Diaz, 53 A.D.3d 504 (2d Dep’t 2008) .......................................... 14 People v. Gaines, 74 N.Y.2d 358 (1989) ................................................ 13, 17 People v. Irrizary, 183 A.D.2d 630 (1st Dep’t 1992) ............................. 14, 16 People v. Mahboubian, 74 N.Y.2d 174 (1989) ............................................. 13 People v. Maisonet, 304 A.D.2d 674 (2d Dep’t 2003) ............................. 9, 10 People v. McCray, 102 A.D.3d 560 (1st Dep’t 2013), aff’d, 2014 WL 2608457 (N.Y. June 12, 2014) ......................................... 5 People v. McCray, __ N.Y.3d __, 2014 WL 2608457, slip op. No. 118 (June 12, 2014) ................................................................................... passim People v. Quattlebaum, 91 N.Y.2d 744 (1998) .............................................. 5 Quinn v. People, 71 N.Y. 561 (1878) .................................................... passim Statutes N.Y. Penal Law § 140.00(2) (McKinney 2010) ............................................ 2 N.Y. Penal Law § 140.05 (McKinney 2010) ................................................ 17 N.Y. Penal Law § 140.20 (McKinney 2010) ................................................ 13 N.Y. Penal Law § 140.25(2) (McKinney 2010) ........................................... 13 ARGUMENT POINT I RESPONDENT DOES NOT STATE ANY REASON WHY THE DELI BASEMENT WAS A “DWELLING” UNDER THE RECENTLY REAFFIRMED TEST FROM THE COURT OF APPEALS IN PEOPLE V. MCCRAY; THUS, MR. JOSEPH’S SECOND-DEGREE BURGLARY CONVICTION WAS LEGALLY INSUFFICIENT AND AGAINST THE WEIGHT OF THE EVIDENCE. (Replying to Resp. Br. at 15-23). As Respondent essentially concedes, Ronel Joseph’s conviction for second- degree burglary turns on whether the prosecution proved that the basement of the Greenleaf Deli—which Mr. Joseph entered and exited from through its sole entrance via doors that opened onto a public sidewalk—satisfied the “dwelling” element. See Resp. Br. at 15. But, like the trial judge, Respondent misconstrues and misapplies the test from the Court of Appeals for when a non-residential part of a building is severable from the residences and does not constitute a “dwelling.” As set forth in Mr. Joseph’s opening brief and below, a proper application of the test shows that the deli basement was not a “dwelling” under the law; therefore, Mr. Joseph’s second-degree burglary conviction lacks a required legal element and should be reversed. 2 A. The Court of Appeals’ Test From People v. McCray For Whether A Non-Residential Part Of A Building Is Considered Part Of A “Dwelling,” Is Not Based Solely On The Size Of A Building, But Rather Focuses On Whether Residents Could Be Terrorized In Their Homes Or Endangered Defending Their Property, As Well As The Presence Of “Internal Communication.” Respondent notes that in People v. McCray, __ N.Y.3d __, 2014 WL 2608457, slip op. No. 118 (June 12, 2014)—a case decided after Mr. Joseph submitted his opening brief 1 —the Court of Appeals very recently rearticulated the test for what constitutes a “dwelling.” In McCray, the prosecution argued for a strict, literal application of the statutory definition of “dwelling” that would have allowed for no exceptions: “the People sa[id], a burglary committed anywhere in a building of which a dwelling is a part counts as a dwelling burglary.” Slip op. at 4 (emphasis added). 2 Similar to the People’s argument in McCray, the trial court here erroneously applied the same rigid rule in denying Mr. Joseph’s motion to dismiss. See App. Br. at 16-17 (describing trial judge’s ruling regarding “dwelling” from transcript). However, as McCray shows, the Court of Appeals rejected such an “unqualified” rule. Slip op. at 7. In McCray, the Court reaffirmed the “common sense limitation on a literal reading of the statute” regarding “dwellings” that it first enunciated in Quinn v. 1 Mr. Joseph’s opening brief filed on December 12, 2013 will be cited as “App. Br.” 2 See also N.Y. Penal Law § 140.00(2) (McKinney 2010) (“Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.”). 3 People, 71 N.Y. 561 (1878)—upon which Mr. Joseph’s opening brief relied. See slip op. at 2, 4-10; see also Resp. Br. at 18 (referring to the “Quinn/McCray” rule); App. Br. at 17 (discussing Quinn). As the Court stated in Quinn, and Respondent acknowledges remains the law, in certain circumstances, “‘part of a dwelling- house may be so severed from the rest of it, . . . as to no longer’ constitute a dwelling.” Resp. Br. at 16-17 (quoting Quinn, 71 N.Y. at 573-74). That exception applies where “the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” McCray, slip op. at 2. As to those “special dangers,” Respondent admits (as it must) that McCray reaffirms Quinn’s central holding that “‘the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation.’” Resp. Br. at 17 (quoting McCray, slip op. at 6 (quoting Quinn, 71 N.Y. at 567)). Despite this concession, Respondent attempts to (1) reduce McCray to a rule solely about the size of buildings, arguing that parts of only “very ‘large buildings’” can be severed from “dwellings” (Resp. Br. at 16 (citing McCray, slip op. at 2, 10 and adding the word “very”)) and, in so doing, Respondent seeks to (2) create a rule that the absence of “internal communication” between the residential 4 and non-residential space is essentially irrelevant (see Resp. Br. at 16, 18, 21). Respondent’s construction of McCray is incorrect on both grounds. On the first point, the Court of Appeals has expressed that the size of a building merits consideration as to whether those above-noted “special dangers” are implicated—but it alone is not dispositive. Indeed, in McCray, the opinion recalls that the Court in Quinn named the “Astor House” as a large building in that era to which the exception would apply and then discusses a modern “extreme case” of burglary of “stores and offices” in “a skyscraper,” which would not create any issue for “people living in the apartments” that are “remote and inaccessible from the commercial space.” McCray, slip op. at 7-8 (emphasis added). But there, as in less “extreme” cases, the Court’s main concern was not, and is not, the building’s size per se; rather, the critical factor to the Court of Appeals is whether “the people living in the apartments will even be conscious of [the burglar’s] presence.” Id. at 7. If not, then the Court of Appeals has unambiguously explained that “[s]uch a burglar should be convicted only of third degree, not second degree, burglary.” Id. Assuming, arguendo, that Mr. Joseph had the requisite intent to commit a crime when he entered the deli basement (which, he did not (see Point II, infra)), any burglary he committed falls under that very exception, and his conviction for second-degree burglary should be reversed. 5 Similarly, the Court in McCray found that “the ease of access from one place to another is at least equally important” to physical closeness in finding that the defendant had committed two acts of burglary of “dwellings.” Slip op. at 11- 12. This contradicts Respondent’s claim that the absence of “internal communication” is generally irrelevant. See Resp. Br. at 21 (“Quinn and its progeny have all expressly rejected the argument that part of a building must be connected to the residential parts for danger to the inhabitants therein and thus constitute a dwelling.”). Given the foregoing from McCray, a fortiori, the absence of an internal connection must unquestionably be relevant—particularly where, as reiterated below, Mr. Joseph’s actions did not cause any of the above-described “special dangers” to residents of Amsterdam Avenue while in their homes. 3 3 Respondent offers a string cite of cases which supposedly follow (explicitly or implicitly) the rule in Quinn that a burglary of a “dwelling” generally occurs if a place is “under the same roof and within the same four walls” as any “dwelling.” Resp. Br. at 15-16 (quoting Quinn, 71 N.Y. at 573). For instance, Respondent quotes the Court of Appeals’ decision in People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998), which merely referred to that holding in Quinn but did not apply it—rather, the Court in that case found that a school which contained a bed that was only occasionally used overnight was not a “dwelling.” Id. at 745-46. The application of the “same roof” rule in the other cases is also of limited usefulness as they all pre-date the Court of Appeals’ decision in McCray, which explicitly explained that the “under the same roof” rule “cannot be unqualified.” Slip op. at 7. Following this strong reaffirmation of the exception noted above by the Court of Appeals in McCray, it is now insufficient to simply rely—as Respondent suggests—on “straight-forward applications” which do not “discuss the possibility or impossibility of interactions between building residents and the defendant” but look only to whether “separate, non-residential units of main buildings otherwise containing residences . . . were part of the same building.” Resp. Br. at 22 (citing People v. McCray, 102 A.D.3d 560, 560 (1st Dep’t 2013), aff’d, 2014 WL 2608457 (N.Y. June 12, 2014); People v. Crooks, 95 A.D.3d 417, 418 (1st Dep’t 2012)). See also App. Br. at 19-21 (distinguishing Appellate Division decisions in McCray and Crooks). Instead, parties and courts must more closely consider the particular circumstances to determine whether a space falls under the exception. 6 B. No “Special Dangers” Were Implicated By Mr. Joseph’s Presence In The Deli Basement Or On The Public Sidewalk And Street. Respondent does not (because it cannot) contest the key facts as set forth in Mr. Joseph’s opening brief: (1) Mr. Joseph entered only the basement of the Greenleaf Deli, or was on the public sidewalk or street outside (App. Br. at 6-10); (2) there was no evidence “that you could get to the apartments” above the Greenleaf Deli internally from the deli basement—indeed, the Greenleaf Deli was in the way (see T. 353; see also T. 269-70, 325-27); (3) the only entry or exit from the deli basement was through doors that opened onto a public sidewalk (see T. 352-53); and (4) there was no evidence that any resident of Amsterdam Avenue owned anything in the deli basement or even had permission to access that space because the goods there belonged only to the Greenleaf Deli (see T. 326, 329; see also Resp. Br. at 4, 14). See also App. Br. at 6-7, 18-19. Instead, Respondent asserts that, despite the admitted absence of any internal connection with the residences, the deli basement Mr. Joseph entered and public sidewalk and street outside of it were “‘in close congruity’ [(sic)] to six floors of residents in their ‘place[s] of repose,’ who were only two floors above him.” Resp. Br. 19-20 (quoting McCray, slip op. at 6). 4 Respondent argues that Mr. Joseph’s conviction for second-degree burglary should stand because “ Amsterdam Avenue was not 4 The quote from McCray actually refers to dangers created when a crime is committed “‘in close contiguity’ with a ‘place of repose.’” Slip op. at 6 (quoting Quinn, 71 N.Y. 567) (emphasis added); see also Resp. Br. at 21 (quoting same correctly). 7 so ‘large,’ and the Deli basement was not ‘so remote,’ that virtually no danger was posed to the residents.” Resp. Br. at 18 (quoting McCray, slip op. at 2). While Respondent at least addresses the prospect that the deli basement could be severed from the rest of the building so as not to constitute a “dwelling,” the trial judge in this case did not. Rather, the trial judge committed legal error by summarily dismissing Mr. Joseph’s motion to dismiss simply “because there was testimony this was all part of one building”—a finding which Respondent does not mention, likely because the holding in McCray (and Quinn before) does not countenance it. T. 353; see also App. Br. at 16-17 (describing trial judge’s ruling regarding “dwelling”). Even if the trial judge had delved deeper into the facts, the inapt arguments in Respondent’s brief confirm that Mr. Joseph did not burglarize any “dwelling.” First, as discussed above (see p. 4, supra), the proximity of the deli basement to apartments above the Greenleaf Deli alone does not make the required showing that Mr. Joseph could have “terrorized” or “endangered” residents. Respondent does not allege that any resident lived in the deli basement or even had access to the deli basement such that he/she was affected by anything that occurred in the deli basement. Second, recognizing that the deli basement was only accessible via doors that opened onto the public sidewalk, Respondent asks this Court to imagine that 8 “residents at Amsterdam Avenue could easily have been exposed to the dangers of an intruder—whether by coming home and walking by the entrance to the basement, by leaving their apartments to investigate a disturbance, or even by staying in their apartments and being hit by a stray bullet from an armed intruder.” Resp. Br. at 20. But Respondent’s arguments in this regard are legally and factually unsupportable—and the strained nature of these inapposite hypotheticals illustrates why Mr. Joseph did not and could not have ever “terrorized” a resident in his/her home such that he committed second-degree burglary by burglarizing a “dwelling.” To the extent any residents encountered Mr. Joseph on the public sidewalk by, as Respondent’s hypothetical suggests, “coming home and walking by the entrance to the basement” or “by leaving their apartments,” those people, by definition, were no longer residents in their “dwelling.” As Mr. Joseph’s opening brief pointed out (at 19), if anyone was outside of their “dwelling” and on the public sidewalk or street, the test for second-degree burglary was no longer implicated as that person could no longer be “terrorized” in his/her residence. McCray underscores that point, explaining “why burglary of a dwelling is a more serious crime than other burglaries: an intrusion into a home, or an overnight lodging, is both more frightening and more likely to end in violence.” Slip op. at 6 (emphasis added). 9 With this fatal flaw in Mr. Joseph’s second-degree burglary conviction exposed, Respondent attempts to argue around it by relying on the finding in Quinn, where the building was a “dwelling” despite the absence of “internal communication” between the shop and residences. Resp. Br. at 18-21. But, as Mr. Joseph’s opening brief explained (at 18-19), the facts of Quinn are distinguishable from this case. As Respondent acknowledges, “In Quinn, to travel between the burglarized commercial unit and the apartments above, ‘it was necessary to go out of doors into a yard fenced in, and from thence up stairs.’” Resp. Br. at 18 (quoting Quinn, 71 N.Y. at 565) (emphasis added). Accordingly, a resident in Quinn could have encountered a burglar in his/her “fenced in” yard. Respondent’s ipse dixit argument that Quinn’s yard versus the public sidewalk here is a “distinction without a difference” does not square with the Court of Appeals’ avowed concern for protecting residents in their homes. Resp. Br. at 21 n.10. A resident who encounters a burglar in his/her fenced in yard remains on his/her own private property in obvious “close contiguity” to his/her “dwelling,” whereas a resident who ventures onto a public sidewalk completely loses the safety of any fence or barrier and, critically, the legal protections against trespassers afforded to residents in their yards. In this regard, Respondent’s attempt to distinguish Mr. Joseph’s citation (App. Br. at 19, 21) to People v. Maisonet, 304 A.D.2d 674 (2d Dep’t 2003), 10 proves too much. See Resp. Br. at 23. While Maisonet addressed a situation involving a hallway and not a basement, the case nonetheless illustrates that walkways can only be considered “dwellings” if they are “inaccessible to the public”—and there was no burglary of a “dwelling” in that case because the hallway was accessible to the public. Id. (quoting Maisonet, 304 A.D.2d at 675). Therefore, while the private yard in Quinn was inaccessible, the sidewalk here was completely accessible to the public and, thus, was not part of the “dwelling.” The facts of the two convictions for second-degree burglary in McCray provide a key contrast to those noted above and demonstrate the importance of this case’s total absence of any internal connection, or any connection via the same private property whatsoever. Specifically, in McCray, with regard to the first count, the Court found that the risk of “‘night terror’ and the danger of violence that [they] spoke of in Quinn” were present where, in burglarizing a hotel locker room, the defendant passed through stairways adjacent to and accessible to guest rooms. McCray, slip op. at 11. More important, the fact that the defendant could have accessed guestrooms via a stairway that connected a wax museum with the same hotel was “just barely” sufficient to uphold the second-degree burglary verdict on the other count. Id. at 11-12. If this second count from McCray was a “close” case that “just barely” merited a conviction in the view of the Court of Appeals (id.), the aforementioned weaker facts of Mr. Joseph’s case—where there 11 was no “internal connection” or any access via the same private property—warrant reversal. Additionally, Respondent’s theoretical concern that a resident of Amsterdam Avenue could have been injured “by staying in their apartments and being hit by a stray bullet from an armed intruder” is unfounded. Resp. Br. at 20. Whether or not a supposed burglar is armed has no bearing under the test in McCray for whether a place is a “dwelling.” Even if that were a relevant factor, the record unambiguously rejects that such a result could have happened in this case because it is undisputed that Mr. Joseph was unarmed. Regardless, that absurd possibility by itself does not mean that the dangers discussed in McCray were present. As a bullet can travel at high speeds and fly up many stories, a resident on a high floor in a “skyscraper” would also be similarly endangered— however, as the Court said in McCray, residents in a “skyscraper” were at “no risk” from a burglar many floors below. Slip op. at 7. Thus, like those theoretical residents in the skyscraper in McCray, the residents in Amsterdam Avenue were completely safe and had no reason to be “conscious of [Mr. Joseph’s] presence.” Id. That is particularly true where, unlike the resident/shop-keeper in Quinn, 71 N.Y. at 564-65, the residents in this case had no apparent relationship to the Greenleaf Deli or the property in the deli basement and had no reason to “endanger” themselves by “defending” or even concerning themselves with any 12 property in the deli basement. In other words, anything Mr. Joseph did was either completely out of sight in the deli basement or simply another random act on a busy New York City street that was unremarkable to any residents in their homes floors above. See Resp. Br. at 7 (quoting T. at 279) (referring to the street outside Amsterdam Avenue as “a six-lane highway with traffic”). For the foregoing reasons, Mr. Joseph was, despite Respondent’s incorrect arguments otherwise, “in a place so remote and inaccessible from the living quarters that the special dangers inherent of a burglary of a dwelling d[id] not exist.” McCray, slip op. at 2. The preceding facts show that this case is not analogous to the examples given in McCray of “[w]hen a store owner in his bedroom becomes conscious that there is a burglary in the shop downstairs, or when a hotel guest hears a burglary in the coffee shop across the hall from her room.” Id. at 6. Unlike those scenarios, Mr. Joseph’s actions in the deli basement or on the public sidewalk and street never implicated any “special dangers”; thus, the part of Amsterdam Avenue he entered was not a “dwelling,” and the trial judge should have granted Mr. Joseph’s motion to dismiss. Without that necessary “dwelling” element, the Court of Appeals’ ruling in McCray mandates that it cannot be “justif[ied] to treat the crime as a more serious one,” and Mr. Joseph’s second-degree burglary conviction was legally insufficient and against the weight of the evidence, and, therefore, should be reversed. Id. at 7. 13 POINT II THE VERDICT ON THE SECOND AND THIRD-DEGREE BURGLARY COUNTS WAS LEGALLY INSUFFICIENT AND AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE EVIDENCE FAILED TO ESTABLISH THE INTENT TO COMMIT A CRIME IN THE DELI BASEMENT. (Replying to Resp. Br. at 23-30). Respondent acknowledges that the prosecution was required to prove an “‘unlawful entry coupled with an intent to commit a crime therein’” for both the second and third-degree burglary counts. Resp. Br. at 24 (quoting People v. Mahboubian, 74 N.Y.2d 174, 193 (1989)) (emphasis added); see also id. at 14 (quoting N.Y. Penal Law §§ 140.25(2), 140.20 (McKinney 2010)). Respondent concedes that “[o]f course, the intent to commit a crime inside must exist contemporaneously with the unlawful entry into the building.” Id. at 24 (citing People v. Gaines, 74 N.Y.2d 358, 363 (1989)) (emphasis added). Respondent argues that the prosecution satisfied those standards because the jury could have reasonably inferred that Mr. Joseph had the necessary intent from the evidence presented at trial. See Resp. Br. at 24. Again, Respondent’s arguments miss the mark. Respondent offers its own spin on the evidence but does not dispute the underlying facts set forth in Mr. Joseph’s opening brief on this point. Respondent also does not contest that this Court can independently review the evidence. See App. Br. at 12-13. Upon such a further review, this Court will see that, as Mr. 14 Joseph’s opening brief explained, the verdict on the burglary counts should be reversed because there was reasonable doubt that Mr. Joseph had the intent to commit a crime when he entered the deli basement. See App. Br. at 22-28. First, the cases Respondent cites illustrate the relative weakness of the evidence from which the jury inferred intent here. In those cases, there was evidence of forced or unusual entry. See Resp. Br. at 24-25 n.11 (citing People v. Irrizary, 183 A.D.2d 630, 630 (1st Dep’t 1992) (noting, inter alia, defendant “broke through the window of a coffee shop, and kicked open a locked door to the restaurant’s second floor”); People v. Bobbitt, 49 A.D.3d 265, 265 (1st Dep’t 2008) (noting, inter alia, “signs of forced entry”); People v. Diaz, 53 A.D.3d 504, 505 (2d Dep’t 2008) (noting, inter alia, defendant entered “locked management office of an apartment building” through a window at around 4:00 a.m.). In contrast, Respondent does not (because it cannot) claim that Mr. Joseph entered the deli basement in a similarly suspicious manner; rather, Mr. Joseph merely walked down into the basement through open doors. See Resp. Br. at 25-26. As Mr. Joseph explained, he did so in search of his fallen cell phone. T. 362, 377-79. Second, Respondent does not dispute the facts in Mr. Joseph’s opening brief supporting his explanation for entering the deli basement but instead puts its own gloss on them. Respondent does not contest that the video of Mr. Joseph in the deli basement shows him looking around—which, he explained, was to find his 15 cell phone and then to find a way out after the door had been closed on him (T. 362-64, 380-81)—but did not record him handling any property. Instead, Respondent offers that Mr. Joseph “was searching the basement for the most valuable wares.” Resp. Br. at 30; see also id. at 26 (“plainly, defendant entered the basement expecting to locate more valuable items than the water and juices he located there, and he continued to look around for something more valuable until he was caught”). Tellingly, this is a new argument that the prosecution did not make at trial. The fact that Respondent has to conceive new theories to support the verdict demonstrates the weakness of the evidence on this issue. Respondent also does not dispute that the police ultimately found a cell phone belonging to Mr. Joseph and that the police did not note its location on the evidence voucher. See id. at 7. Consequently, there is no conclusive evidence from trial that contradicts Mr. Joseph’s story that his phone was found in the deli basement. See id. at 28 n.12. Additionally, in an attempt to refute Mr. Joseph’s testimony that he told the other witnesses why he had gone into the deli basement, Respondent construes the evidence from the police officers and Mr. Roy of the Greenleaf Deli that they did not recall such an explanation as unequivocal. See id. at 28-29. But, again, this revisionist history demonstrates that Respondent incorrectly believes it can alter the evidence simply because it says so. As this Court can see, none of those 16 witnesses categorically denied that Mr. Joseph attempted to explain why he was in the deli basement; instead, they simply did not recall such a statement. See T. 290- 91, 315. Respondent attempts to minimize these notable issues in its case. Indeed, Respondent buries in a footnote its recognition that there was potentially “inconsistent evidence at trial about whether Officer Gore or the Deli employees recovered the flashlight.” Resp. Br. at 28 n.13. Added together, these various issues cast sufficient reasonable doubt on the evidence from which the jury inferred Mr. Joseph’s intent to commit a crime when he entered the deli basement. Finally, Respondent argues that Mr. Joseph’s attempted escape and resisting arrest after exiting the deli basement illustrate his “consciousness of guilt.” Resp. Br. at 26-27. Respondent cites this Court’s decision in Irrizary, 183 A.D.2d at 630, for this proposition. Resp. Br. at 27. Again, the extreme facts in Respondent’s cited authority actually demonstrate why the facts here do not support Mr. Joseph’s conviction. In Irrizary, after the defendant “broke through the window of a coffee shop, and kicked open a locked door to the restaurant’s second floor,” he “was found hiding under a heating duct and in resisting arrest he lunged for an officer’s gun, biting that officer, as well as injuring another officer.” 183 A.D.2d at 630. Unlike that case, nothing in the record here suggests that Mr. Joseph was hiding from anyone; nor did he offensively attack anyone. Moreover, whereas the 17 defendant’s actions in Irrizary occurred in the coffee shop defendant had broken into, Respondent admits that Mr. Joseph’s altercation happened after he voluntarily left the deli basement. See Resp. Br. at 26-27. The attenuated nature of Mr. Joseph’s later actions during his arrest do not suffice to show that he had the requisite intent to commit a crime “contemporaneously” with his earlier entry into the deli basement. See Resp. Br. at 24 (citing Gaines, 74 N.Y.2d at 363). Rather, as described in Mr. Joseph’s opening brief (at 28), Mr. Joseph arguably committed non-criminal trespass when he entered the deli basement—which does not require intent. N.Y. Penal Law § 140.05 (McKinney 2010). Given this and his prior convictions (T. 369), it is completely plausible that Mr. Joseph’s actions outside the deli basement came from an aversion to police and returning to jail, irrespective of whether he committed burglary. And again, for all the reasons in Mr. Joseph’s opening brief and above, Mr. Joseph did not commit burglary in either the second or third degrees. 18 CONCLUSION For the reasons stated above, nothing in Respondent’s brief refutes what Ronel Joseph’s opening brief demonstrated: Mr. Joseph’s convictions for both second and third-degree burglary should be reversed. In the alternative, if the Court finds that he had the requisite intent to commit a crime in the deli basement, Mr. Joseph’s conviction for second-degree burglary should be reversed for the prosecution’s failure to prove the “dwelling” element beyond a reasonable doubt. Dated: New York, New York August 15, 2014 Respectfully submitted, Richard M. Greenberg, Esq. Eunice C. Lee, Esq. Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 firstname.lastname@example.org Matthew E. K. Howatt, Esq. 5 Pro Bono Of Counsel email@example.com 5 Mr. Howatt was associated with Weil, Gotshal & Manges LLP when Mr. Joseph’s opening brief was filed. Mr. Howatt is no longer so-affiliated and, as Mr. Joseph is aware and has consented to, neither Weil nor any of its attorneys represents Mr. Joseph in this matter. A-1 ADDENDUM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : Ind. No. 3120/10 -against- : : RONEL JOSEPH, : : Defendant-Appellant. : – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x PRINTING SPECIFICATIONS STATEMENT 1. The following statement is made in accordance with 22 N.Y. C.R.R. § 600.10. 2. Ronel Joseph’s reply brief was prepared in the processing system Microsoft Word 2008, with Times New Roman typeface, 14 point font (12 point font footnotes). 3. The text of the brief has a word count of 4485, as calculated by the processing system, and is 18 pages.