The People, Appellant-Respondent,v.Matthew A. Davis, Respondent-Appellant.BriefN.Y.October 14, 2016To be Argued by: Patricia M. McGrath, Esq. (Estimated Time: 10 minutes) ____________________________________________________________________ STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent vs. MATTHEW A. DAVIS, Respondent-Appellant ____________________________________________________________________________ RESPONDENT-APPELLANT’S BRIEF Niagara County Indictment No. 2011-409-2 APPEAL NO. APL-2015-00240 ____________________________________________________________________________ PATRICIA M. McGRATH, Esq. Attorney for Respondent-Appellant 37 East Avenue PO Box 293 Lockport, NY 14095-0293 Telephone: 716-438-7575 Facsimile: 716-625-1535 Dated: February 17, 2016 Table of Contents Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Argument I. The Appellate Division was correct in dismissing the felony murder counts of the indictment as the testimony of the Chief Medical Examiner underscored the absence of a clear link between the allegations of burglary and robbery and the decedent’s death.. . . . 11 II. The underlying conviction for first degree burglary was not proved beyond a reasonable doubt... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 III. The underlying conviction for first degree robbery should be dismissed for failure to provide legally sufficient proof of the crime charged.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 IV. The court below erred in allowing People’s Exhibit 38, a DVD showing clips of security footage from the night of August 21, 2011, to remain in evidence following the testimony of the security company representative that the clips did not fairly and accurately represent what occurred that evening.. . . . . . . . . . . . . . . . . . . . . . . . 23 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Table of Authorities Cases People v. Berger, 52 NY 2d 214 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Byrnes 33 NY 2d 343 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Davis, 126 AD 3d. 1516 (4th Dep’t 2015) . . . . . . . . . . . . . . . . . . . . 14, 21 People v. Freycinet, 11 NY 3d 38 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13 People v. Hawkins, 11 NY 3d 484 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Hernandez, 82 NY 2d 309 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Kibbe, 35 NY 2d. 407 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Lee, 80 Ad 3d 1072 (3d Dep’t 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Moses, 63 NY 2d 299 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Rawlins, 10 NY 3d 136 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 People v. Roberts, 66 AD 3d. 1135 (3d. Dep’t 2009).. . . . . . . . . . . . . . . . . . . . . . 25 Statutes Criminal Procedure Law §60.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Criminal Procedure Law§330.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 15 Criminal Procedure Law§330.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Penal Law §10.00(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Penal Law §140.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19 2 Penal Law §140.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Penal Law §140.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18 Penal Law §165.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20, 21 3 Preliminary Statement APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered on March 27, 2015. The Appellate Division modified, on the law, a judgment of the County Court, Niagara County (Matthew J. Murphy, III., J.), which had convicted Defendant, upon a jury verdict, of murder in the second degree (two counts), burglary in the first degree and robbery in the first degree. The modifications consisted of reversing those parts of the judgment convicting Defendant of two counts of murder in the second degree and dismissing those counts of the indictment. As modified, the judgment was affirmed. 4 Statement of Issues Did the prosecution prove every element necessary to convict the Defendant Matthew Davis of felony murder, given the testimony and evidence adduced at trial? The Appellate Division said no. Did the prosecution present competent evidence sufficient to convict the Defendant Matthew Davis of the charge of burglary in the first degree under Penal Law §140.30(2)? The Appellate Division said yes. Did the prosecution present competent evidence sufficient to convict the Defendant Matthew Davis of robbery in the first degree, causing serious injury under Penal Law §160.15? The Appellate Division said yes. Was it proper to permit into evidence a videotape from a building security camera that the prosecution’s own witness admitted was not a fair and accurate depiction of events on the evening of August 21 and 22, 2011? The Appellate Division said yes. 5 Statement of Facts The Defendant, Matthew A. Davis (hereinafter, “Davis”), was indicted by a Niagara County grand jury under Niagara County Indictment No. 2011-409, and arraigned before the Honorable Matthew J. Murphy, Niagara County Court Judge on charges of felony murder (two counts), first degree burglary and first degree robbery. The grand jury indictment relied in large part on the testimony of Teara Fatico (hereinafter, “Fatico”), an alleged accomplice to the incident. She told the police that on August 21, 2011, the decedent, Antoine Bradberry, contacted her via Facebook while she was with Davis at her apartment. Her story – in its final version – claimed that Davis encouraged her to arrange a visit to the victim’s apartment, which she did with her friend Chasity Wilson late in the evening of the 21st. According to Fatico, the two women took drugs with the decedent, then contacted Davis in a series of text messages and an interlude in his automobile before returning to the decedent’s apartment a second time to case it. In her final statement to police, and testimony, Fatico said she later brought Davis to the building and left him there. The police and maintenance personnel discovered the decedent’s body on 6 the morning of August 23rd. Their testimony and the photographs introduced into evidence suggested a struggle had occurred in the apartment. The autopsy report by Dr. Jonrika Malone, following her examination of the body on August 24, 2011, listed the cause of death as hypertensive cardiovascular disease – a heart attack – with obesity as a contributing factor. The manner of death was undetermined. (1561) Fatico received a reduced sentence in exchange for her testimony (A241). Chasity Wilson refused to testify at trial (A287 et seq.), giving no reason for her refusal. Both women were, at the time of trial, incarcerated at the Bedford Hills Correctional Facility. Dr. Malone was no longer employed by the Erie County Medical Examiner and unavailable to testify at the time of trial. The DA’s office advised the Court and defense counsel just prior to jury selection of her unavailability, and the prosecutors offered to introduce the autopsy report in a redacted form, while permitting the Chief Medical Examiner, Dr. Diane Vertes, to provide opinion testimony. The defense attorneys objected to the late notice, characterizing it as Brady material, and asked that the trial court allow in the report itself without Dr. Vertes’s testimony. The judge compromised by directing that the full report should be admitted, including Dr. Malone’s conclusions, but allowing the 7 prosecution to call Dr. Vertes as a live witness. (A29-30) The trial witnesses, in addition to Fatico and Dr. Vertes, were representatives of three mobile telephone companies to explain how each company recorded voice and text transmissions, several police personnel who investigated the crime scene and/or the suspects, a New York State trooper who assisted local police in locating Davis, a maintenance employee of the apartment building, and an employee of the building’s security company. The security company representative stated, in response to questions posed by the defense counsel, that the tape that was introduced into evidence was, in fact, not a fair and accurate representation of what transpired in the halls of the apartment building on August 21, 2011. (A408) Despite this testimony, the tape was permitted to remain in evidence. (A413) The trial court permitted the lesser-included offense of burglary in the second degree in its jury charge, but also acceded to the prosecution’s request to expand the burglary definition to include a building, the lower threshold included in Penal Law §140.20(3). (A693) The jury returned a verdict of guilty on all counts of the indictment against the Defendant, including burglary in the first degree. Defense counsel moved at the close of the prosecution’s proof, and again 8 after resting their case, for trial orders of dismissal, both of which were denied. The defense counsel subsequently filed a motion pursuant to Crim. Pro L §§330.30 and 330.40, for relief from the verdict. After denying the defense motions under Crim. Pro L §§330.30 and 330.40, the judge imposed a sentence of twenty-five years to life on the felony murder count and concurrent sentences of twenty-five years with five years’ post-release supervision on the burglary in the first degree and robbery in the first degree charges (A836-837) Davis filed an appeal to the Supreme Court, Appellate Division, Fourth Department. The Appellate Division, in a decision rendered March 27, 2015, affirmed the jury verdict on first degree burglary and robbery, but reversed the felony murder convictions based on legal insufficiency. The prosecution appealed the reversal of the felony murder convictions and Davis appealed the affirmance of the underlying felony convictions. 9 Preservation Davis and his attorneys litigated the issue of legal insufficiency for the charges of first degree burglary and first degree robbery during the trial in summation, by motion for a trial order of dismiss (A 670-677) and again through the Crim. Pro. L 330.30 motion to the trial court. The jury and the trial court rejected this argument. Davis’s attorneys also raised the issue of the admissibility of the surveillance video during trial and again in its 330.30 motion. The issues were preserved and this Court has jurisdiction. (see People v. Hawkins, 11 NY 3d 484 (2008)) 10 ARGUMENT I. The Appellate Division was correct in dismissing the felony murder counts of the indictment as the testimony of the Chief Medical Examiner underscored the absence of a clear link between the allegations of burglary and robbery and the decedent’s death. The District Attorney’s office revealed on the day of jury selection that Dr. Jonrika Malone, the medical examiner who had performed the autopsy in this case, would not be available to testify. (A12) They had learned this three weeks earlier. When the prosecution offered to redact the report in order to comport with this Court’s decision in People v. Freycinet, 11 NY 3d 38 (2008), the defense objected and insisted that the entire report be submitted. Subsequently, the prosecution produced for testimony Dr. Diane Vertes, the Chief Medical Examiner (hereafter, “CME”), who had taken no part in the autopsy (A510, et seq.). The CME initially testified that she had reviewed only the autopsy report in preparation for her testimony, but later amended her answer in response to questions on cross examination to acknowledge reviewing Dr. Malone’s notes and police photographs. (A529-A530). The CME testified to missing teeth on the victim (A513), but later admitted 11 upon review of a photograph marked Defendant’s XX that there were, in fact, no teeth missing (A534) The CME also testified during direct testimony that, while the manner of death in Dr. Malone’s autopsy report was listed as “undetermined,” that in her (the CME’s) opinion, the stress caused by the injuries noted in the autopsy contributed to Bradberry’s death. Yet the autopsy states in the section noted “Pathologic Diagnoses”(A1561) that there were no internal head or neck trauma, nor internal torso trauma. The CME’s testimony contrasted in this respect with the findings of Dr. Malone, the one who actually performed the autopsy, and who was not produced by the prosecution at trial. Malone had concluded that it was hypertensive cardiovascular disease, with obesity as a contributing factor. (A1561) The case of People v. Freycinet, supra, examined seemingly analogous issues when the medical examiner who had conducted the autopsy was deemed unavailable by the prosecution and the chief medical examiner testified in his stead. This Court in Freycinet distinguished between the independent function of the Office of Chief Medical Examiner (Freycinet) and the fingerprint analysis that was the issue in People v. Rawlins, 10 NY 3d 136 (2008). With a redacted autopsy report, the Court found that the findings introduced into evidence were 12 non-testimonial since they were not intended to accuse the defendant therein per se, unlike the fingerprint analysis in Rawlins, the specific purpose of which was to substitute for testimony. Freycinet, at 41. In this respect, the defendant’s constitutionally-guaranteed right to confrontation under the Sixth Amendment was not abridged. The instant case presents a mirror image of Freycinet, with a full report including Dr. Malone’s conclusions being countered by the testimony of the CME. The CME elected to supplement the report in her testimony (A519, et seq.) by opining that the stress of blunt force injuries could induce a heart attack, even though the objective findings in the autopsy conflicted with that. (A1556, et seq.) The CME rendered an opinion with respect to the time of death (A518, et seq.) even though there is nothing in the autopsy report to confirm this opinion and even though the CME did not perform the autopsy. This embroidering onto the evidence before her made the CME’s testimony severely flawed and could unduly influence the jury, given her professional standing. The decision of the Appellate Division concluded that the felony murder charges had not been proven beyond a reasonable doubt since the prosecution had failed to prove that Davis’s actions as the prosecution had alleged them to be were reasonably foreseeable to cause the decedent’s death by heart attack. People v. 13 Davis, 126 AD 3d. 1516 (4th Dep’t 2015) The Davis ruling took into consideration the CME’s stated opinion that “but for” the stress the prosecution hypothesized had occurred, the decedent’s heart attack would not have happened. (A519) Her testimony also spoke of “preponderance of the evidence,” to conclude that the decedent died of “nonnatural” causes. (A546) The CME’s testimony with respect to the cause and manner of death suggests that she interposed her own judgment in interpreting the results,: ...[W]hen I was asked to review the case, I took what was called the “but for” principle. The “but for” principle means but for the circumstances tht are surrounding his death would the decedent have died when died had it not been for the extenuating or the surrounding – the circumstances surrounding his death, and so we say that I mean he has injuries, but the injuries themselves weren’t sufficient to cause death which is why I say that he’s dying of his heart disease and not the broken jaw and some of the other things that we’ve talked about, but my opinion then is there are other extenuating circumstances that hastened his death.” (A519) This Court explicitly rejected that kind of analysis in People v. Hernandez, 82 NY 2d 309 (1993) and People v. Kibbe, 35 NY 2d. 407 (1974), where the Court noted, “We subscribe to the requirement that the defendants’ actions mut be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required for tort liability.” Kibbe, at 413. (Emphasis in original) The trial court actually charged the jury to avoid employing a “but-for” test 14 in weighing the evidence. (A797) Yet given the cloak of authority that a trained professional like the CME necessarily garners by her testimony, it proved impossible for the jury to ignore her opinion on the ultimate issue of guilt. The lower court erred in permitting this case to go to the jury over the defense objections with respect to the CME and her analysis of the autopsy she did not even perform. Their objections were included in the trial motion to dismiss and in their Criminal Procedure Law §330.30 motion. (RA1, et seq.) Given the careful review of the trial court’s transcripts by the Appellate Division, and the case law supporting its determination, this Court should affirm the Appellate Division with respect to the dismissal of the felony murder counts of the indictment as lacking legal sufficiency. 15 II. The underlying conviction for first degree burglary was not proved beyond a reasonable doubt. Fatico was the chief witness for the prosecution regarding the circumstances of Antoine Bradberry’s death. Fatico testified that she and Davis had been in an extramarital relationship for a number of months when, on the night of August 21, 2011, she received a Facebook message from the decedent. According to her uncorroborated testimony, Davis encouraged her to make contact with Mr. Bradberry and to arrange with Bradberry to visit his apartment. She went to Bradberry’s apartment in Niagara Falls late on the evening of August 21st with a friend named Chasity Wilson (“Wilson”) (A173). The time line that Fatico testified to is partially corroborated by a security video (People’s Exhibit 38) from the apartment building where Bradberry lived. Two young women identified as Fatico and Wilson are seen arriving in the building vestibule and being met by someone presumed to be Bradberry, then later walking down an interior hallway to an apartment that was identified as the victim’s apartment. (People’s Exhibit 38) There were also records introduced by the prosecution of cell phone communications between and among three telephones, one registered in the name of Fatico’s 2-year-old daughter, another to Wilson, and a third to Davis. (A1551) 16 Fatico and her attorney negotiated a plea deal with the District Attorney’s office that was contingent upon her testimony at the Grand Jury and again at trial. She was incarcerated at the Bedford Hills Correctional Facility at the time she testified in this matter. Fatico’s testimony before the Grand Jury and at trial differed substantially from the initial statement that she provided to police. (A191, A234) She initially denied any involvement with or knowledge of Antoine Bradberry. It was only when the police detective showed her a screen capture of herself taken from the security video (A1544) that Fatico acknowledged she had seen Bradberry on the night of August 21st and early morning of August 22nd, but she then placed all responsibility at the feet of the Defendant. (A193, et seq.) Fatico’s companion on the evening in question, Chasity Wilson, refused to testify when brought to court from Bedford Hills where she was also incarcerated. Consequently, the only witness regarding the alleged plan to rob Bradberry was Fatico. In that respect, her testimony is uncorroborated by any other direct evidence with respect to Davis entering Bradberry’s apartment. The prosecution specifically asked Fatico about Davis entering Bradberry’s apartment. Fatico answered that she had let the Defendant in to the apartment building. (A181, et seq.) The prosecution asked Fatico if Bradberry had given her 17 permission to do so and she said no. She could not testify to seeing Davis enter the decedent’s apartment.(A182) One of the two felonies for which Davis was convicted was burglary of a dwelling place causing serious physical injury (Penal L. 140.30(2)). An essential element of the crime is the entry into a person’s dwelling without his permission. The police crime scene investigation did not produce any fingerprint or DNA evidence that placed Davis in the apartment. The security video, viewed in a light most favorable to the prosecution, does not show the person alleged to be Davis entering the apartment. (People’s Exhibit 38) There was no indication that the door had been forced. (A83) The only proof of that element of the crime of burglary is Fatico’s testimony, and she did not place Davis inside the apartment. The trial judge himself commented on this issue outside the presence of the jury. (A703) The video does not show Davis entering the apartment. The prosecution conceded in its brief (People’s Brief, p. 13) that there was no fingerprint evidence linking Davis to the apartment, nor was there DNA evidence supporting the claim that Davis was in the apartment (A1557). First degree burglary specifically requires proof of entering a dwelling place. Penal L. §140.30 The lesser-included offense in the jury charge, second degree burglary, also includes proof of a dwelling. Penal L. §140.25 However, the 18 prosecution asked for a modification of the definition of burglary for purposes of the felony murder charge that accompanied burglary to that employed under third degree burglary, that is proof of entering into a building only. Penal L. §140.20 (A693) This deviation from the definitions pertaining to the crimes charged must have been confusing to the jury. Given the absence of any proof – direct or circumstantial – that Davis was ever in the apartment, the burglary charge should be dismissed as a matter of law. 19 III. The underlying conviction for first degree robbery should be dismissed for failure to provide legally sufficient proof of the crime charged. The other felony conviction which permitted the charge of felony murder to be lodged was the robbery count. Under Penal Law §160.15, the crime of robbery in the first degree for which Davis was convicted requires proof that he took the property of another causing serious physical injury. Regarding the required proof of theft, Fatico testified that Davis had returned to the automobile after being alone with Bradberry with a white garbage bag in his hands. (A186) Her testimony further alleged that she later observed jars of marijuana in the same bag that she had previously seen in Bradberry’s apartment. (A187) Her story continued that Davis had then offered to share some of the marijuana with her and with Wilson. (A188) The police witnesses did not testify that they ever recovered any jars or marijuana traceable to Bradberry’s apartment. The only evidence regarding the taking of any property of Bradberry’s came from Fatico’s testimony. The proof regarding serious injury to the decedent by Davis does not exist. The testimony of the CME (See Point I, supra) and the autopsy report do not show evidence of protracted disfigurement, protracted impairment of health or impairment of function of any bodily organs as required by Penal Law §10.00(10). 20 The Appellate Division in its ruling commented on the lack of proof of serious physical injury. Davis, supra. While the prosecution might argue that the remaining prong of the definition – “substantial risk of death” – has been demonstrated, it is respectfully submitted that the dismissal of the felony murder counts requires examination of the injuries documented in the autopsy. (A1556) Moreover, the proof of first degree robbery fails based upon the failure to corroborate the theft component of Penal Law §165.15. Criminal Procedure Law §60.22 codified the concept that uncorroborated accomplice testimony is insufficient to convict a person of a crime. People v. Moses, 63 NY 2d 299 (1984), People v. Berger, 52 NY 2d 214 (1981). The defense raised the point of uncorroborated accomplice testimony in its trial motions to dismiss (A670), but the trial court permitted the case to go to the jury. This was reversible error. The robbery charge is further negated by the autopsy report that showed no blunt force trauma to Bradberry either externally or internally. (A1561), nor evidence of recent injury. (A1558) Even the CME’s testimony acknowledged this point. Without proof of serious injury, the robbery conviction must fail. Even a lesser-included offense can only be proven through Fatico, and this violates 21 Criminal Procedure Law §60.22. 22 IV. The court below erred in allowing People’s Exhibit 38, a DVD showing clips of security footage from the night of August 21, 2011, to remain in evidence following the testimony of the security company representative that the clips did not fairly and accurately represent what occurred that evening. The prosecution entered into evidence People’s Exhibit 38, a DVD of video clips that were culled from the security system at the apartment building where the decedent resided. The clips came from several different cameras installed throughout the common areas of the building and at various times showed the decedent, Fatico, Wilson, and a person identified by Fatico as Davis entering or leaving the building, or walking down a hallway. To authenticate the video images, the prosecution called Anthony LaRosa as a witness, an employee of the security company employed by the apartment management company. He was, parenthetically, a resident of the building (A377) but his testimony was limited to the security system in place at the apartment building on the night of August 21, 2011. LaRosa testified that the multiple cameras in place throughout the building were motion-activated, recording only when they sensed movement in the camera’s field of view. (A379) According to LaRosa, “a time stamp is embedded into the video” whenever the camera begins recording, thereby providing a method 23 for determining when the images were recorded. (A380). With respect to archiving of video images from the various cameras, LaRosa testified that there is a transfer onto the building’s hard drive, and simultaneously stored on a server offsite. (A379) During this storage process, the files are compressed, such that a glitch can occur when they are “uncompressed.” (A399) Essentially, the images overlap each other, creating false recording, e.g., people appearing and disappearing within the same scene. The defense attorneys asked LaRosa on cross-examination to view a particular image on the DVD (People’s Exhibit 38) where an individual seems to disappear, then reappear in the blink of an eye. LaRosa acknowledged that the problem of archiving and compression occurred throughout the system. (A406). Finally, LaRosa admitted that in regards to the representative clip, it could not fairly and accurately represent what happened that evening. (A408) Following LaRosa’s testimony, defense counsel moved to have the DVD precluded for further use at trial. The lower court denied the motion, finding that it went to the weight of the evidence, but not the admissibility. (A413) In order for videographic evidence to be admissible, it must be properly authenticated. As noted in People v. Roberts, 66 AD 3d. 1135 (3d. Dep’t 2009), a videotape may be authenticated by the testimony of an expert that it “truly and 24 accurately represents what was before the camera” and has not been altered. (Citing People v. Byrnes 33 NY 2d 343 (1974)). Unlike the case of People v. Lee, 80 Ad 3d 1072 (3d Dep’t 2011), where surveillance was admitted following the testimony of an officer that it was a fair and accurate representation of what he had observed, this surveillance video has not been so characterized. As set forth supra, this case has the testimony of an accomplice to tell the story. Her testimony can only have value with the introduction of corroborating evidence. The DVD was the prosecution’s effort to overcome the holes in their case. By permitting it to stay in evidence, the lower court erred, given the acknowledgment on the record that this was not a fair and accurate representation of what occurred. 25 CONCLUSION For the reasons set forth herein, this Court should affirm that portion of the decision of the Supreme Court, Appellate Division, Fourth Department, which reversed the convictions for felony murder, and dismiss the remaining charges against Davis for legal insufficiency. Respectfully submitted, _______________________________ PATRICIA M. McGRATH, Esq. Attorney for Respondent-Appellant February 17, 2016 26