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 SURREPLY 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: June 4, 2016 TABLE OF CONTENTS Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Point 1 The Chief Medical Examiner’s proffered opinion testimony with respect to an autopsy she had not performed, especially given her misstatement of facts, showed an ignorance of the essential findings of the autopsy. The Appellate Division was correct in determining the proof was legally insufficient.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Point II The surveillance video (People’s Exhibit 38) should have been excluded, based upon the security expert’s admission that it was not a fair and accurate depiction of the events... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Point III The prosecution’s assertions with respect to proof of serious injury as required by Penal Law §160.15 (Robbery in the 1st Degree) are merely conclusory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Point IV The accomplice testimony in this case does not meet the standard enunciated in People v. Reome. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Table of Authorities Cases People v. Cyrus, 48 AD 3d. 150 (1st Dep’t 2007). . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 People v. Davis, 2015 NY Slip Op. 02628 (4th Dep’t 2015).. . . . . . . . . . . . . . . . . . 9 People v. Reome, 15 NY 3d. 188 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Statutes Criminal Procedure Law §60.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Penal Law §10.00(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Penal Law §160.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1 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. 2 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. 3 I. THE CHIEF MEDICAL EXAMINER’S PROFFERED OPINION TESTIMONY WITH RESPECT TO AN AUTOPSY SHE HAD NOT PERFORMED, ESPECIALLY GIVEN HER MISSTATEMENT OF FACTS, SHOWED AN IGNORANCE WITH THE ESSENTIAL CONCLUSIONS OF THE AUTOPSY. THE APPELLATE DIVISION WAS CORRECT IN DETERMINING THE PROOF WAS LEGALLY INSUFFICIENT. The prosecution medical witness, Dr. Diane Vertes, the Erie County Chief Medical Examiner (hereafter, “CME”), who had taken no part in the autopsy (A508). The CME 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, 530). The CME testified to missing teeth on the victim (A513), but later admitted 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 opinion, the stress caused by the injuries noted in the autopsy contributed to Bradberry’s death. The autopsy states in the section noted “Pathologic 4 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. 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. Given the factual discrepancies in the CME’s testimony, the bolstering effect that her position afforded the prosecution, and the influence of reviewing crime scene photos for no stated purpose, the admission of the CME’s testimony was reversible error. 5 II. THE SURVEILLANCE VIDEO (PEOPLE’S EXHIBIT 38) SHOULD HAVE BEEN EXCLUDED BASED UPON THE SECURITY EXPERT’S ADMISSION THAT IT WAS NOT A FAIR AND ACCURATE DEPICTION OF THE EVENTS. It is noteworthy that the prosecution appears to be the only party in this matter, including the Court, that is able so readily to buttress its claims by references to various “events” contained on a videotape that no one is able to open. Its own witness acknowledged the video to be not a fair and accurate depiction of the situation on the night of August 22, 2011. It is impossible for this author to rebut on an “event” by “event” basis what the prosecution has put forth in its reply, given the video will not open on any computer but the district attorney’s, but doing so would only give credence to an admittedly flawed piece of evidence. The First Department, in People v. Cyrus, 48 AD 3d. 150 (1st Dep’t 2007), discussed the problem raised by poor-quality video recordings. In that particular case, the review was part of an analysis of whether that defendant had received ineffective assistance of counsel. That can be contrasted with the vigorous attempts by defense counsel in this case to remove People’s Exhibit 38 from 6 evidence upon the testimony of Anthony Larosa that it was not a fair and accurate representation of the evening in question. Yet the prosecution’s argument that the question raised on behalf of Respondent-Appellant goes to the weight, but not the admissibility, of the tape ignores the fundamental problems that exist here as they did in Cyrus, supra. To admit a surveillance video that does not accurately depict what occurred, then to use that same inaccurate tape to buttress testimony from an accomplice, creates a palpable injustice. 7 III. THE PROSECUTION’S ASSERTIONS WITH RESPECT TO PROOF OF SERIOUS INJURY AS REQUIRED BY PENAL L. §160.15 (ROBBERY IN THE 1ST DEGREE) ARE MERELY CONCLUSORY. The prosecution has advanced several arguments in its reply brief to support the robbery conviction of Respondent-Appellant. It argues, for example, that the surveillance video (People’s Exhibit 38), the same one deemed to be not a fair and accurate representation of the events for which it was proffered, demonstrates proof of taking. For that, see Point II, supra. Likewise, the testimony of the accomplice, as further discussed below, is advanced as a point of proof, without corroboration. However, the failure of the prosecution to demonstrate the proof of serious injury remains a hole in their case. The proof regarding serious injury to the decedent by Davis does not exist. The testimony of the CME 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). The Appellate Division in its ruling commented on the lack of proof of 8 serious physical injury. People v. Davis, 2015 NY Slip Op. 02628 (4th Dep’t 2015). It is respectfully submitted that the dismissal of the felony murder counts requires examination of the injuries documented in the autopsy. (A1556) 9 IV. THE ACCOMPLICE TESTIMONY IN THIS CASE DOES NOT MEET THE STANDARD ENUNCIATED IN PEOPLE V. REOME. The prosecution relies on People v. Reome, 15 NY 3d 188 (2010), to argue that the testimony of the accomplice Teara Fatico was, in fact, corroborated by proof of mobile phone calls and surveillance video evidence. The reliability of the video evidence has been discussed previously. The mobile phone records are like the analogy offered in the Reome decision itself: “If an accomplice testifies that the defendant committed a crime next to a tree in Central Park, the prosecution cannot “corroborate” this testimony by proving the existence of the tree.” Id at 190. The voluminous records of calls placed in evidence do not do much to prove the essential elements of the crimes charged. In the Reome case, the accomplice testimony was buttressed by the victim’s testimony, even though the victim was unable to make a full identification of the defendant. Thus, the Reome case was proven by harmonizing evidence. No such harmonizing evidence is present in this case, placing it within the prohibitions contained in Criminal Procedure Law §60.22. 10 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 June 4, 2016 11 Printing Specification Statement The word count for this brief is 1310, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was WordPerfect X6. The brief is printed in Times New Roman, a serifed, proportionally spaced typeface. The type size is 14 points in the text. 12