The People, Respondent,v.Marcus D. Hogan, Appellant.

Brief

N.Y.January 13, 2016

To be argued by Shirley A. Gorman Time requested: 20 minutes APL-2015-00035 · COURT OF APPEALS 'STATE OF NEW YORK THE PEOPLE OF THE STATE OF.NEW YORK, Respondent, -v- MARCUS D. HOGAN, REPLY BRIEF Brief Completed: June 29, 2015 Appellant. SHIRLEY A. GORMAN Attorney for Appellant PO Box 629, 19 Market St. Brockport, NY 14420 Telephone: (585) 637-5645 Facsimile: (585) 637-5644 TABLE OF CONTENTS TABLE OF AUTHORITIES POINT I OF REPLY BRIEF: Counsel's ineffectiveness is evident on this record so no motion to vacate the judgment is necessary. POINT II OF REPLY BRIEF: Mr. Hogan's attorney did not provide meaningful representation. POINT III OF REPLY BRIEF: It was error to rely upon the drug factory presumption Page No. 1 1 4 in this case. 7 CONCLUSION 9 -a- TABLE OF AUTHORITIES New York Statutes: Criminal Procedure Law§ 180.40 Criminal Procedure Law§ 180.85 Criminal Procedure Law§ 190.50 (5) (c) Criminal Procedure Law§ 190.55 (2) (a) CriminalProcedure Law§ 440.10 (2) (b) Criminal Procedure Law§ 440.10 (2) (c) New York Cases: People v Galindo, 23 NY3d 719 (2014) -i- Page No. 5 5 5 5 1 1 7 POINT I OF REPLY BRIEF: Counsel's ineffectiveness is evident on this record so no motion to vacate the judgment is necessary. A motion to vacate this judgment of conviction for ineffective assistance of counsel is not only unnecessary, it would be denied. In this case the issue must be addressed through the direct appeal, as the Fourth Department did. A4-5. The facts establishing that Mr. Hogan did not receive the effective assistance of counsel both at the grand jury stage and when counsel made no motion to dismiss for inadequate grand jury notice after indictment are in this record. The People's argument that this issue is procedurally barred is thus without merit. Criminal Procedure Law § 440 .10 (2) identifies the circumstances when a court must deny a motion to vacate a judgment. Subdivision (b) requires the motion be denied"if an appeal is pending and "sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal" (CPL 440.10 [2] [b ]). Subdivision ( c) requires the motion be denied if the issue was not raised on appeal or even if no appeal was taken as long as "sufficient facts appear on the record of the proceeding underlying the judgment to have permitted" adequate review on appeal (CPL 440.10 [2] [c]). Thus no motion to vacate a judgment is either needed or appropriate if the appellate record contains the 1 facts necessary to decide the issue. Here, the record reflects exactly when the People sent notice of the grand jury proceeding to counsel and when counsel received that notice. A541-543 [fax notice from DA's Office]; A46 [counsel's statement at argument], A527-528 [counsel's motion allegations], A530-532 [fax from counsel's office]. The record reflects that counsel did not discuss the right to testify before the grand jury with Mr. Hogan until after the grand jury had vote�to indict. Counsel so indicated in his motion papers and in open court. A528; A46. When arguing the motion, defense counsel said: "A certification was filed. I didn't actually speak to Mr. Hogan about testifying. First, I saw him at the - - our appearance for the PH, that was a Friday, and then I didn't see him until court again on Wednesday, June ! 51 . That's essentially what happened. I did get notice. I mean, a letter was sent to my office. A fax was sent to my office, but I didn't actually speak to Mr. Hogan about testifying, and I would just make that clear." A46. Even the fact that counsel made a decision not to have his client testify despite not discussing it with him first is on the record. He acknowledged talking to an Assistant District Attorney and advising her that he would not have his client testify. His reason for that decision is on the record as well. Counsel said, "I think she asked me if Mr. Hogan was going to testify and I said I wouldn't have him testify, not that I actually spoke to him about testifying in this type case. I didn't see the benefit to it, only the harm, and that's how it took place." A48. 2 Typically that kind of information is not in the record for a direct appeal so a 440.10 motion is necessary to reveal whether counsel discussed testifying with a client, actually made a decision not to have the client testify and the reasoning behind that decision. Because this issue came up at Mr. Hogan's prodding, the facts were developed in the trial court. No further facts would be established through a motion to vacate the judgment. Nothing further is needed to show that Mr. Hogan was denied meaningful representation in this respect. This Court should therefore decide that Mr. Hogan was denied the effective assistance of counsel in this appeal. 3 POINT II OF REPLY BRIEF: Mr. Hogan's at orney d id not provide meaningful representation As the People have pointed out, if a defendant has already been held for action of the grand jury, no notice of his right to testify need be served by the People. See Brief for Respondent, p 13. The significant distinction between a defendant in that position and one like Mr. Hogan is that such an individual has either had a preliminary hearing or make a conscious decision to waive one. A person in Mr. Hogan's situation is being denied that right when the People pre-empt the preliminary hearing with grand jury action. It is this power of the prosecutor to deny a defendant the right to a preliminary hearing which accounts for why notice is warranted. An independent and public airing of the charge is being lost. The speed at which this happens does not afford counsel and client the time to discuss the presentment which they would typically have if a grand jury is hearing the case after the preliminary hearing. After felony charges have been divested from local court, an attorney and client can be expected to discuss the next step. At that point, counsel knows that grand jury action is mandated without court order or consent of the defendant (CPL 190.55 [2] [a] [district attorney must submit matter to grand jury if held for such action unless waiver by defendant]; 180.40 [application to return felony complaint to local court]; 180.85 [motion to terminate prosecution]). At that 4 point, counsel can ascertain whether the client wants to testify before the grand jury and serve notice of that desire upon the prosecutor, even if the People have not yet scheduled the matter for grand jury consideration. The People have also made reference to the lack of any allegations in Mr. Hogan's motion to dismiss in the trial court that the grandjury'sresult would have been different had he testified. See Brief for Respondent, pl 4. The only motion trial counsel made was one to dismiss for lack of sufficient notice of the grand jury presentment. A525-534. Counsel did not assert that Mr. Hogan was denied meaningful assistance when he made a critical decision without input from the client. A motion to dismiss because the People did not provide adequate notice of the grand jury does not require such an allegation ( see CPL 190 .50 [ 5] [ c ]). Instead the People's failing to do what the statute requires and a timely complaint about that inadequacy by motion is all that is necessary. The fact that such allegations are missing is thus inconsequential to the issue being considered in this appeal. In addition, the People have argued that counsel was not ineffective for making a motion he personally did not want to win. Brief for Respondent, pl 5. However, counsel made the motion eventually. He did not assert his authority and insist that the motion to dismiss for a new grand jury presentment was inappropriate. Rather he made a motion which he could have won but he made that motion 54 days too late. 5 It is therefore apparent that counsel was not motivated by a desire to avoid Mr. Hogan testifying in the grand jury when he did not. make the motion when the statute reqmres. This Court should find that trial counsel's errors in deciding not to assert Mr. Hogan's right to appear before the grand jury without discussing it with him and then failing to timely make a meritorious motion to dismiss he ultimately did make individually and together deprived Mr. Hogan of his right to meaningful representation at a critical stage of the prosecution. 6 POINT III OF REPLY BRIEF: It was error to rely upon the drug factory presumption in this case. A presumption can be employed only when the People prove beyond a reasonable doubt the predicate facts which the statute requires to trigger that presumption (People v Galindo, 23 NY3d 719, 723. [2014]). In this case those underlying facts were the circumstances evincing an intent to mix, compound, package, or otherwise prepare the drugs in open view for sale. The People failed to prove those facts so the trial court erred in relying upon the drug factory presumption to reaching its verdict. The People claim that the proof established cocaine was being packaged for sale vyhen police arrived. Brief for Respondent p 1 7. However, they point to the loose cocaine in making that argument. Brief for Respondent pl 8. Since the proof did not establish that this cocaine was in open view; it cannot be included in any analysis of the presumption's applicability. That cocaine was on carpeting "kind of close to the wall" and overlooked by more than one police officer before being located. A301- 302. The only cocaine in open view was that already packaged sitting on a kitchen counter. It was not being prepared for sale because if to be sold, it was ready for sale. Therefore the presumption could not apply as a result of that cocaine either. Since the trier of fact explicitly used the drug factory presumption in convicting 7 Mr. Hogan of these crimes, his judgment of conviction must be reversed. 8 CONCLUSION This Court should reverse this judgment of conviction on the grounds that the court inappropriately considered the drug factory presumption. The Indictment should then be dismissed. In the alternative, the judgment of conviction should be reversed and the matter remitted to Rochester City Court to give Mr. Hogan an opportunity to appear before a new grand jury. This result is warranted because he was denied the effective assistance of an attorney at this stage. Dated: June 29, 2015 �J-1:L-ShieyA. Gorman Attorney for Appellant 9