The People, Respondent,v.Mark Boyd, Appellant.BriefN.Y.March 20, 2018 1 Submitted by: Marianne Karas Bronx County Ind. No. 2069/2011 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Mark Boyd, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - x BRIEF FOR DEFENDANT-APPELLANT Marianne Karas Attorney for Defendant-Appellant Mariannekaras7@aol.com 980 Broadway Suite 324 Thornwood, New York 10594 (914) 434-5935 2 STATEMENT This appeal is taken from a judgment and resentence of the Supreme Court of the State of New York, Bronx County (Alvarado, J.), entered February 26, 2014, convicting appellant, after a jury trial, of Criminal Possession of a Weapon in the Third Degree, a Class D, non-violent felony, and re-sentencing him 1 , as a Second Felony Offender, to an indeterminate sentence of from two to four years’ incarceration. 1 On December 18, 2013, appellant was originally sentenced, as a Second Felony Offender, to a determinate term of incarceration of four years to be followed by five years of post-release supervision. On the date of the re-sentence, defense counsel moved to vacate that illegal sentence and the motion was joined by the prosecution. 3 QUESTIONS PRESENTED 1. Whether the lower court abused its discretion as a matter of law when it permitted the People to dismiss the consecutive count of Unlawful Possession of an Air Pistol or Rifle, over objection, thus taking away that count for the jury’s proper consideration under circumstances where appellant’s defense, supported by a reasonable view of the evidence, was that he possessed only the air pistol and not both the air pistol and another gun as the prosecution’s sole witness claimed? 2. Whether appellant was deprived of his fundamental constitutional rights to a fair trial and to present a defense as a matter of law when the trial court made improper legal rulings that denied him the meaningful opportunity to present a complete defense to the jury? 3. Whether the jury’s compromise verdict is against the weight of the evidence? 4. Whether appellant was denied the due process of law when the prosecutor elicited testimony that he knew or should have known was perjured and refused to allow the jury to make the proper credibility determination, when he snidely denigrated the defense counsel and suggested that counsel was somehow improperly in cahoots with the licensed investigation duly appointed by the court to assist in the defense, and when he made improper comments in summation? 5. Whether appellant was denied the effective assistance of counsel under the specific circumstances herein? 4 STATEMENT OF FACTS The Settles Hearing On October 3, 2013, a hearing pursuant to People v. Settles, 46 N.Y.2d 154 (1978) was held before the Honorable Efrain Alvarado (H. 2) 2 . John Bruno, a licensed New York State private investigator, testified for the defense that on August 7, 2012, he interviewed Steve Ramsanany who, after being informed that he could be arrested as a result of his statement, gave a signed written statement admitting that in the early morning hours of June 8, 2011, he was playing dice in front of 2640 Marion Avenue, that he had a .9 millimeter Taurus semi-automatic gun in his possession and that when a police car drove by, he threw the gun under a parked vehicle (H. 3-7). Detective Ellis DeLoren testified for the People that he had arrested appellant on June 8, 2011; according to the People’s witness, he went out to interview Steve Ramsanany after the prosecution became aware that he had admitted to possessing the very gun with which appellant was charged herein (H. 24-27). The detective did not know what day he actually interviewed the witness (H. 27). According to DeLoren, when asked about his 2 Numerical references preceded by “H.” are to the minutes of the Settles hearing and those preceded by “T.” are to the minutes of the trial. Numerical references preceded by “S.” are to the minutes of the defense motion to set aside the verdict at which proceeding the defendant was originally sentenced to an illegal term of incarceration; references preceded by “RS.” are to the re-sentencing minutes. 5 admissions, Ramsanany’s “head sunk down” (H. 27-29). Though the detective didn’t record the conversation in any way, didn’t have Ramsanany sign anything, and took no notes, he recalled that the witness told him that Mark had asked him to sign the statement, that Mark promised him he would not have to testify, and that Mark told him that it would make the case go away (T. 29, 52-53). According to DeLoren, the witness said that he was afraid of Mark (H. 29, 53). According to Detective DeLoren, on a subsequent date, Ramsanany called him on his cell phone; the detective did not bother to note the date and time of the call from this witness but he told the hearing court that Ramsanany was looking for reassurances that he would not tell Mark that he had recanted (H. 29, 37, 43). Here again, the police detective took no notes concerning the phone call and made no report of the same (H. 43). The detective testified that upon his arrest appellant made a statement admitting that he had the BB gun but stating that someone he knew as “Billy” had the .9 millimeter gun (H. 32). Defense counsel asked that the lower court consider appellant’s statement, made upon his arrest and included in the Voluntary Disclosure Form, in which appellant admitted having the BB gun and stated that his fingerprints were on the same but stated that, when the police drove by the location, a man named “Bill” tossed the gun under the van; appellant’s stated 6 that his fingerprints would not be on that gun (H. 73). After the lower court denied the defense to consider appellant’s statement, appellant testified at the hearing. He admitted that he had the BB gun but stated that the other individual had the .9 millimeter weapon. On October 4, 2013, the trial started while the hearing was still on-going. With respect to the hearing issues, the prosecutor inquired whether the court would permit the defense to use appellant’s statement that the BB gun was but that the other gun was not his and that his prints would not be on that (T. 16-17). With the lower court’s decision on the crucial Settles issue still outstanding, defense counsel stated he would not ask the detective about the statement made by defendant upon his arrest (T. 17). Unresponsively, the lower court stated for the record that defense counsel agreed to allow the prosecution to introduce the recantation of the statement (T. 18-20). On October 8, 2013, the hearing court ruled that the defense would be permitted to bring Ramsanany’s confession before the jury (H. 111). It stated that the defense agreed that the People would be allowed to impeach the statements through the detective (H. 111). The Trial The Sandoval Ruling 7 See Point Two, infra. The People’s Case At trial the prosecution called four witnesses. Only one, Detective Deloren, gave testimony that, if believed, would establish appellant’s guilt of any criminal conduct. Detective Schutt testified for the People that she works in the firearms analysis section of the New York Police Department laboratory and that the gun and ammunition submitted for analysis here—a .9 millimeter Taurus pistol with a magazine and 15 rounds of ammunition—were operable (T. 582-595). She stated that if fingerprint analysis or DNA analysis on the firearm had been requested, it would have been done but that she was not aware that the same had been requested here (T. 599-600). Detective Francisco Castillo testified that he tested an air pistol with respect to this case and determined that it is operable (T. 603, 606). Detective Angelo Tessitore testified for the prosecution that on June 8, 2001, he was working with Detective Ellis DeLoren; Tessitore testified that he was driving the unmarked police vehicle and DeLoren was the passenger (T. 620-623). According to the witness, in the vicinity of 195 th Street and Marion Avenue, he was driving 5 miles per hour when DeLoren told him to stop and stated that there was a guy with “a gun” (T. 8 624-625). Tessitore testified that he never saw appellant holding anything (T. 628, 636). The witness stated that when they stopped appellant he watched appellant while his partner recovered the guns from near a parked van (T. 629, 637). Tessitore stated that there was a group of five or six people on the sidewalk in the vicinity, possibly 30 feet away from the van (T. 628-642). Detective Ellis DeLoren testified for the prosecution that on the evening in question, he saw appellant standing in the street between a large van and another parked vehicle with a gun in each hand (T. 647-650, 653, 671). DeLoren testified that he remembered that the van was large and white but that he did not remember anything about the second car (T. 671-675). DeLoren stated that he told his partner to stop the car and that, before he even got out of the vehicle, he actually heard the sound of 2 guns hit the ground; he also testified that he saw appellant make a throwing motion toward the van and begin to walk north on Marion Avenue (T. 651-653, 677-678). The witness stated that there was a group of people 15 feet away but that no one else was around the van where appellant threw the guns (T. 654-655). The officer testified that he did not request that the guns be tested for fingerprints or for DNA because that was only 9 necessary when the police were trying to solve a crime; according to the officer it was not necessary here (T. 660-661, 686-687). Counsel for the defense made a motion to dismiss at the end of the People’s case based on Detective DeLoren’s lack of credibility (T. 694-695). The Defense John Bruno testified for the defense. Bruno stated that he is a retired New York Police Department Detective; before he retired from the force he had most recently worked at the Manhattan Homicide Squad (T. 712). Now a private investigator licensed by New York State, he was assigned to this case on July 28, 2012, and was asked by defense counsel to conduct an interview with an individual named Steve Ramsanany (T. 712-713). Bruno told the jury that he met with Ramsanany on August 7, 2012, at the defendant’s apartment at 2640 Marion Avenue; he testified that prior to the interview, he asked appellant to leave the apartment so that no one else was present during the conversation (T. 713, 745). Bruno stated that first, he listened to what Ramsanany had to say; on the basis of what Ramsanany told him, Bruno asked him if anyone was forcing him to make the statement, asked him if anyone had promised him anything in exchange for making the statement, and asked him if he was making the statement 10 voluntarily (T. 714-718). Ramsanany indicated that the statement was voluntary, that he had not been forced or coerced and that he had not been promised anything in exchange for his statement (T. 714-718). At this point, the former homicide detective advised the witness that he could be arrested based on his statement (T. 718). Bruno told the jury that the witness thereafter still indicated that he was willing to make a statement about the events of the night in question and that he was willing to sign a written statement as to the facts (T. 718-719). Bruno stated that in sum and substance Ramsanany stated that at some time before 1:00 a.m. on the date in question, he was playing dice with a group of people in front of 2640 Marion Avenue when he got into a fight with another person present; Ramsanany admitted that he left and returned with a .9 millimeter Taurus semi-automatic gun (T. 718-719). According to Ramsanany, at some point he saw the unmarked police car and threw the gun under a nearby vehicle (T. 718-719). Ramsanany stated that he saw Mark Boyd, appellant, with a BB gun and witnessed appellant throw that item under a vehicle when the police showed up (T. 719). The signed statement was admitted into evidence as Defendant’s B (T. 720-721). The prosecutor began his cross-examination by asking the witness if he went out, “At the direction of our good counsel, 11 Mr. Fisher, correct?” (T. 737). He asked the investigator if he had been paid by Marty Fisher or by the defendant (T. 741). He asked the witness whether he was being paid for his testimony; the witness testified that he would submit a voucher for compensation to the judge at the end of the case and would be paid pursuant to 18-b (T. 741-742). Adan Gil was also called as a witness for the defense. The witness stated that on June 8, 2011, at approximately 1:00 a.m., he was at a dice game in front of 2640 Marion Avenue when two people at the game had words (T. 769-771). Gil stated that a man he knew as “Harlem” left and came back with something in his waistband; the witness told the jury that he saw Harlem throw a gun with a brown handle under a white vehicle (T. 771-773). The witness testified that he wasn’t paying attention to what appellant was doing; he stated that he had never been interviewed by the police (T. 773-775). The People’s Rebuttal Before the People’s witness Detective DeLoren took the witness stand in rebuttal, the defense stated that it was entitled to bring out that Mr. Ramsanany was in federal custody charged with being in possession of an AK47; defense counsel argued that DeLoren’s testimony was going to be that Ramsanany was afraid of appellant (T. 708-709). Counsel for the defense stated that, “I’m trying to show this person who is, who is 12 selling an AK47 is less likely to be afraid of Mark Boyd” and that it “is hardly likely that he would be able afraid [sic] of the defendant based upon this selling of an AK47. That person is not afraid of Mark Boyd. This jury should be aware of that.” (T. 709). The People argued that it was just an allegation at this point and that it was not relevant to the detective’s testimony (T. 709). The county court denied the defendant’s request to bring the matter before the jury, holding that it would allow the jury to speculate (T. 709-710). Defense counsel noted his strenuous exception (T. 710). On rebuttal, Detective Ellis DeLoren returned to the stand. According to DeLoren, Assistant District Attorney Fouz asked him to interview Steve Ramsanany (T. 795). To that end, according to DeLoren, he tracked Ramsanany to his home, where a woman answered the door and told the detectives that Ramsanany was down the block (T. 796-797). According to DeLoren, he and Detective Angelo Tessiore and Detective Luis Perez drove down the block in their unmarked police car until they saw a man matching Ramsanany’s description, “called him over” and told him to produce identification (T. 795-797). According to Detective DeLoren, all three of the detectives got out of the car at this point; under these circumstances, according to the officer, he asked the witness what “the story” was with respect 13 to the letter he had given to the defense with respect to Mark Boyd (T. 798). DeLoren told the jury that Ramsanany “put his head down and sighed heavily” and that “he basically admitted that the letter is a fake” (T. 798-799). According to DeLoren, the witness elaborated to say that he did not write the letter, that the letter was all Mark’s idea, that Mark said that if he agreed, the case would be dismissed and that he would never have to testify and would never get into any trouble (T. 798). As expected, DeLoren told the jury that the witness stated that he was afraid of Mark; DeLoren added for the jury’s benefit that he guessed that Ramsanany was “afraid of what Mark would do to him at some point in the future” (T. 798). The lower court sustained its own objection to the last (T. 798). At this point, counsel for the defense renewed his request concerning the fact that Ramsanany was in federal custody for trying to sell an AK47 to an undercover officer (T. 820-821). The defense argued that DeLoren testified that Ramsanany gave the statement because he was afraid of appellant and that the defense should be allowed to ask him if he was aware that Ramsanany had pending charges for trying to sell an AK 47 to an undercover officer (T. 821). The court below adhered to its decision to prevent the jury from considering the testimony that would strongly refute the detective’s contention that Ramsanany 14 was afraid of appellant (T. 821). The veteran police witness nevertheless went on to state in front of the jury, “I think it’s pretty well understood why someone would be afraid of him [the defendant]. I arrested him for being in possession of two firearms.” (T. 831). The detective claimed that he told the witness that he could be charged with perjury if he testified untruthfully for Mark consistent with the letter; however, the witness told the jury that he did not “have the power” to arrest Ramsanany if he had said that the real gun was his (T. 832). The prosecution’s objection was sustained when defense counsel asked if the officer would have arrested Ramsanany if he had said the gun was his (T. 833). When defense counsel again asked the witness if he would have arrested Ramsanany if he had said that he was the one who had possessed and thrown the .9 millimeter semi-automatic Taurus under a van at 1:00 a.m., on June 8, 2011, the witness refused to answer the question with a “yes” or a “no” and the county court explicitly allowed the witness to refuse to so answer the question (T. 834). DeLoren claimed that he took no notes in his memo book or otherwise concerning the witness’ statement or the occurrence. He also stated that some weeks later Ramsanany called him on his cell phone; according to the detective, who did not bother to make any notes that this call occurred and who could not 15 remember the date that this witness/suspect called him, Ramsanany was “looking for reassurance” that the defendant “would never find out that he told me the truth about the letter” (T. 799-807). The Motion to Set Aside the Verdict and the Sentence On December 18, 2013, appellant was arraigned as a predicate felony offender (S. 2-4). Counsel for appellant moved to set aside the verdict but the motion was denied (S. 4-9). Appellant was sentenced to a term of four years in prison to be followed by five years post-release supervision (S. 11). The Re-Sentence On February 26, 2014, more than a year after the sentencing, appellant appeared before the trial court. The court stated that it had received a request from him for a certificate regarding the nature of his conviction and that, upon examining that request, the court re-examined the proceedings and realized the sentence that it had originally imposed was illegal (RS. 2). A defense motion to vacate the sentence was joined by the prosecution (RS. 3). For his conviction of Criminal Possession of a Weapon in the Third Degree appellant was sentenced to an indeterminate term of from two to four years’ incarceration (RS. 4). 16 ARGUMENT POINT ONE THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW WHEN, OVER OBJECTION BY THE DEFENSE, IT ALLOWED THE PEOPLE TO DISMISS THE CONSECUTIVE COUNT OF UNLAWFUL POSSESSION OF AN AIR PISTOL OR RIFLE, THUS TAKING AWAY THAT COUNT FOR THE JURY’S PROPER CONSIDERATION UNDER CIRCUMSTANCES WHERE APPELLANT’S DEFENSE, SUPPORTED BY THE WEIGHT OF THE CREDIBLE EVIDENCE WAS THAT APPELLANT POSSESSED ONLY THE AIR PISTOL AND NOT BOTH THE AIR PISTOL AND ANOTHER GUN AS THE PROSECUTION’S SOLE WITNESS CLAIMED. If the People did not have faith in the believability of their own witness who said that he saw appellant with two guns, one in each hand, one a semi-automatic and one an air pistol, they had absolutely no business putting him on the witness stand. At trial the prosecution called four witnesses. Only one, Detective DeLoren gave testimony that, if believed, would establish appellant’s guilt of any criminal conduct. DeLoren testified that he saw appellant with two guns (T. 647-650, 653, 671). Two guns—one in each hand. Either the jury believed him or it did not. Though his partner would take the witness stand and candidly tell the jury that DeLoren had told him to stop the car because he saw a man with “a gun” (T. 624-625), that he never saw appellant holding anything (T. 628, 636), and that there 17 was a group of five or six people on the sidewalk in the vicinity, possibly 30 feet away from the van (T. 628-642), Detective Ellis DeLoren testified for the prosecution that on the evening in question, he saw appellant standing in the street between a large van and another parked vehicle with a gun in each hand (T. 647-650, 653, 671). DeLoren stated that he told his partner to stop the car and that, before he even got out of the vehicle, he actually heard the sound of 2 guns hit the ground; he also testified that he saw appellant make a throwing motion toward the van and begin to walk north on Marion Avenue (T. 651-653, 677-678). The witness stated that there was a group of people 15 feet away but that no one else was around the van where appellant threw the guns (T. 654-655). The officer testified that he did not request that the guns be tested for fingerprints or for DNA because that was only necessary when the police were trying to solve a crime; according to the officer it was not necessary here (T. 660-661, 686-687). John Bruno testified for the defense. Bruno stated that he is a retired New York Police Department Detective; before he retired from the force he had most recently worked at the Manhattan Homicide Squad (T. 712). Now a private investigator licensed by New York State, he was assigned to this case on July 18 28, 2012, and was asked by defense counsel to conduct an interview with an individual named Steve Ramsanany (T. 712-713). Bruno told the jury that he met with Ramsanany on August 7, 2012, asked him if anyone was forcing him to make the statement, asked him if anyone had promised him anything in exchange for making the statement, and asked him if he was making the statement voluntarily (T. 714-718). When Ramsanany indicated that the statement was voluntary, that he had not been forced or coerced and that he had not been promised anything in exchange for his statement (T. 714-718), the former homicide detective advised the witness that he could be arrested based on his statement (T. 718). Bruno told the jury that the witness thereafter still indicated that he was willing to make a statement and gave him a written statement in which he confessed to being the one who possessed the .9 millimeter firearm and throwing it under the car when the police drove by on the night in question (T. 718-719). Ramsanany stated that he saw Mark Boyd, appellant, with a BB gun and witnessed appellant throw that item under a vehicle when the police showed up (T. 719). The signed statement was admitted into evidence as Defendant’s B (T. 720-721). Adan Gil, a witness for the defense, stated that on the night in question a man he knew as “Harlem” threw a gun with a brown handle under a white vehicle when the police drove by 19 (T. 771-773). The witness testified that he wasn’t paying attention to what appellant was doing; he stated that he had never been interviewed by the police (T. 773-775). On rebuttal, DeLoren testified he and two other detectives sought out and confronted that Ramsanany on the street and that Ramsanany quickly recanted his confession, indicating that he had only made the statement because, according to DeLoren, he was afraid of appellant (T. 795-798). The defense was not allowed to bring out that Ramsanany was in Federal custody for trying to sell an AK47 to an undercover officer (see Points Two and Three, infra); it was allowed to hear DeLoren’s opinion that, “I think it’s pretty well understood why someone would be afraid of [the defendant]. I arrested him for being in possession of two firearms.” (T. 831). Before summations, the prosecutor asked defense counsel if he would be requesting that the charge for the possession of the BB gun be submitted to the jury; the prosecutor opined that if the defense wanted the charge submitted they would certainly get it (T. 702). Inexplicably, however, when the prosecution moved to dismiss the air pistol count and the defense objected, the trial court stated, “People have the option at this point in time to make that application. And it is not a lesser included, so I don’t see there is any legal reason for the Court to include it” (T. 857). The court granted the 20 People’s application and dismissed the charge. In doing so, it abused its discretion as a matter of law. Criminal Procedure Law Section 300 mandates that a trial court properly deliver instructions as to the offenses contained and charged in the indictment for the jury’s consideration. “If a multiple count indictment contains two or more groups of counts, with the counts within each group being concurrent as to each other but consecutive as to those of the other group or groups, the court must submit at least one count of each group” Criminal Procedure Law Section 300.40(4). However, the court is not required to submit any particular count to the jury when the People consent that it not be submitted” or when the number of counts or the complexity of the indictment requires selectivity of the counts by the court in order to avoid placing an unduly heavy burden upon the jury in its consideration of the case. Criminal Procedure Law Section 300.40(6)(a)(b). Here, the Possessions of a Weapons counts and the Unlawful Possession of an Air Pistol or Rifle were consecutive counts. Criminal Procedure Law Section 300.30(2). Though the court had some discretion under CPL Section 300.40(6)(a), this discretion was not unfettered and the trial court's refusal to submit the Unlawful Possession of an Air Pistol or Rifle to the jury is reviewable for abuse of discretion. People v. Leon, 7 N.Y.3d 21 109 (2006). A court is tasked with exercising its discretion in a manner that affords a defendant a fair trial in keeping with the constitutional mandates of the State and Federal Constitutions. It’s not supposed to use its power to give the prosecution some sort of strategic advantage. A criminal trial is not a game. The People conducted this trial like they were playing a game of Statego and the lower court let them do it. In People v. Leon, supra, the New York State Court of Appeals ruled that a trial court’s decision on to submit non-inclusory counts is reviewable for an abuse of discretion. The Leon court held that under the circumstances of that case the trial court did not abuse its discretion in failing to submit the non-inclusory count. The reasoning and dicta of Leon are relevant here. In Leon, the Court stated that when he asked for the submission of the less serious charge, the defendant was obviously hoping that he could avoid conviction on the more serious one; in other words, that a jury otherwise prepared to convict him for Criminal Possession of a Weapon in the Second Degree might—perhaps in an exercise of mercy, or a compromise—return a third-degree conviction instead. The court held that a defendant is not entitled to a chance at jury nullification. Nor then is the prosecution. 22 Here, appellant was in no way looking for jury nullification or a compromise verdict. He admitted he had the BB gun. If anything, it was the prosecution that was looking for jury nullification hoping that because appellant had admitted to committing a crime (the BB gun), if the jury was given no choice but to convict of something or nothing at all, they would convict of something and that is exactly what happened. The jury acquitted on the first count—the count that appellant would have been guilty of had the jury believed the testimony of the People’s Detective DeLoren. The jury acquitted on the second count. They only convicted on the third count because they weren’t allowed to fairly find that appellant was guilty of having a BB gun. Significantly, Leon stated that in exercising its discretion, a trial court must “weigh competing possibilities: Would the submission of the … count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?” People v. Leon, supra (emphasis added). We know without any doubt what happened here. This was not a complicated case. This was not a case where the number of counts or the complexity of the indictment required selectivity of the counts by the court in order to avoid placing an unduly heavy burden upon the jury in its consideration of the case. Criminal Procedure Law Section 300.40(6)(a)(b). 23 It cannot seriously be disputed that by taking away the opportunity to believe the defense and convict appellant of the charge that he admitted committing affected the jury’s deliberations. See People v. Boettcher, 69 N.Y.2d 174 (1987). The jury convicted of a crime that made no sense under either the People’s version or the defense because they were not given the fair opportunity to convict him of the crime of which he was guilty. The lower court abused its discretion as a matter of law and appellant is entitled to have his conviction set aside. People v. Extale, 18 N.Y.3d 690 (2012). Under Criminal Procedure Law Section 300.40(7) every count not submitted to the jury is deemed to have been dismissed by the court and double jeopardy has attached. Because this case cannot be fairly retried by a jury that is allowed to consider whether appellant possessed just the BB gun, the judgement must be reversed and the case must be dismissed. See also Point Three, infra. 24 POINT TWO APPELLANT WAS DEPRIVED OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE AS A MATTER OF LAW WHEN THE TRIAL COURT MADE IMPROPER LEGAL RULINGS THAT DENIED HIM THE MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE TO THE JURY. The Federal and State Constitutions guarantee a criminal defendant the “meaningful opportunity to present a complete defense.” Nevada v. Jackson, 569 U.S. _, 133 S.Ct. 1990 (2013)(emphasis added); Crane v. Kentucky, 476 U.S. 683 (1986); People v. Carroll, 95 N.Y.2d 375 (2000) and this this right is recognized as fundamental to a fair trial. U.S. Const. Amend. VI; N.Y. Const. Art. I, Section 6, Davis v. Alaska, 415 U.S. 308 (1974); People v. Chin, 67 N.Y. 2d 22 (1986); People v. Gissindanner, 48 N.Y.2d 543, 548 (1979). There can be no restriction upon this right which tends to deprive a defendant of a means of combating inculpatory testimony. People v. Chin, supra; California v. Green, 399 U.S. 149, 158; People v. Acomb, 87 A.D.2d 1 (4 th Dept. 1982), citing People v. Gissindanner, supra. Thus, the trial court, entrusted to make evidentiary rulings, is circumscribed by the defendant's constitutional right to present a defense as well as by the rules of evidence. People v. Aska, 91 N.Y.2d 979, 982 (1998); People v. Scarola, 71 N.Y.2d 769, 777 (1988); People v. Hudy, 73 N.Y.2d 40, 57 25 (1988). Under these rules, evidence is not collateral if it “concern[s] more than the credibility of the People's witnesses” People v. Scarola, supra. Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence. People v. Lewis, 69 N.Y.2d 321, 325 (1987); Richardson, Evidence § 4 [Prince 10th ed.]; Proposed Code of Evidence for State of New York § 401. Where a defendant seeks to pursue a defense of third-party culpability at trial, evidence offered in support of that defense is subject to "the general balancing analysis that governs the admissibility of all evidence" People v. Primo, 96 N.Y.2d 351 (2001). At trial, after recognizing appellant’s right to present a defense of third-party culpability such that it properly allowed the jury to hear and consider that a third party, Steve Ramsanany, confessed to the very crime that appellant was charged with committing, the lower court thereafter precluded all other relevant evidence offered by appellant in support of his defense. By its improper rulings, the trial court closed every avenue by which the defense could properly and meaningfully have brought his full and fair defense before the jury. It allowed the People to use improper evidence to counter the defense while denying the defense any means of rebuttal. Appellant was deprived of his 26 fundamental constitutional rights as a matter of law. Before the trial began herein, a Settles hearing was held. John Bruno, a licensed New York State private investigator, testified for the defense that on August 7, 2012, he interviewed Steve Ramsanany who, after being informed that he could be arrested as a result of his statement, gave a signed written statement admitting that in the early morning hours of June 8, 2011, he was playing dice in front of 2640 Marion Avenue, that he had a .9 millimeter Taurus semi-automatic gun in his possession and that when a police car drove by, he threw the gun under a parked vehicle (H. 3-7). Detective Ellis DeLoren testified for the People that he had arrested appellant on June 8, 2011; according to the People’s witness, he went out to interview Steve Ramsanany after the prosecution became aware that he had admitted to possessing the very gun with which appellant was charged herein (H. 24-27). The detective did not know what day he actually interviewed the witness but he testified that Detective Angelo Tessitorie was with him (H. 27). According to DeLoren, when asked about his admissions, Ramsanany’s “head sunk down” (H. 27-29). Though the detective didn’t record the conversation in any way, didn’t have Ramsanany sign anything, and took no notes, he recalled that the witness told him that Mark had asked him to sign the statement, that Mark promised him he would not have to testify, and that Mark 27 told him that it would make the case go away (T. 29, 52-53). According to DeLoren, the witness said that he was afraid of Mark (H. 29, 53). The defense was not allowed to ask the detective if he had the power to arrest Ramsanany if he admitted to having the gun (H. 38-39). Counsel for the defense asked that the lower court consider appellant’s statement, made upon his arrest and included in the Voluntary Disclosure Form, in which appellant admitted having the BB gun and stated that his fingerprints were on the same but stated that, when the police drove by the location, a man named “Bill” tossed the gun under the van; appellant’s statement was that his fingerprints would not be on that gun (H. 73). After the lower court denied the defense to consider appellant’s statement, appellant testified at the hearing. He admitted that he had the BB gun but stated that the other individual had the .9 millimeter weapon. On October 4, 2013, the county court started the trial herein while the hearing was still on-going. With respect to the hearing issues, the prosecutor inquired whether the court would permit the defense to use appellant’s statement made on his arrest that the BB gun was his and his prints would be on it but that the other gun was not his and that his prints would not be on that (T. 16-17). With the lower court’s decision on the crucial Settles issue still outstanding, defense counsel 28 stated he would not ask the detective about the statement made by defendant upon his arrest (T. 17). Unresponsively, the lower court stated for the record that defense counsel agreed to allow the prosecution to introduce the recantation of the statement (T. 18-20). Also on October 4, 2013, the Sandoval hearing started on the record of the trial. Counsel for the defense stated that appellant had a pending case that the People could not in good faith basis ask to use (T. 12). Counsel stated that appellant had a 2009 conviction in for Criminal Sale of a Controlled Substance in the Third Degree; the prosecutor asked that he be permitted to inquire whether appellant had been convicted of a “narcotics-related felony” (T. 13). When the lower court asked if the People did not want the underlying facts, the prosecutor responded that he believed that questions about it being a sale would be too prejudicial but if he asked if the defendant had been convicted of a “narcotic-related felony” it was “sanitizing it sufficiently” to avoid sabotage (T. 13-14). Defense counsel stated that appellant had a second felony conviction for a drug sale from 2007 and the People made the same request with respect to that matter (T. 13-14). On October 8, 2013, in his argument on the Settles issue, the prosecutor conceded that the witness who confessed to the crime with which appellant was being charged was in Government 29 custody for selling an AK47 to an undercover officer (T. 97). The hearing court ruled that the defense would be permitted to bring Ramsanany’s confession before the jury (H. 111). The county court stated that the defense agreed that the People would be allowed to impeach the statements through the detective (H. 111). Also on October 8, 2013, the trial court also ruled on the Sandoval matter (H. 112). The court noted that the defendant’s credibility was crucial so that the People would be permitted to impeach appellant with the fact that he had a prior felony as well as with the underlying facts thereof so that the People would be permitted to ask if appellant sold a quantity of a controlled substance in exchange for U.S. currency; the court below also stated that it would allow the People to impeach appellant with the fact that he was currently on parole (H. 112). When defense counsel asked if the lower court really intended to let the prosecution ask if appellant was on parole, it indicated it went to credibility because when someone was on parole, they were not allowed to possess certain things (H. 112-113). The lower court stated that it had essentially knocked out one felony (H. 113). It ignored the fact that the People had not asked to inquire about the sale of narcotics because in the People’s estimation, that would be entirely too prejudicial. 30 At trial, after the People’s firearm expert testified that the .9 millimeter Taurus pistol with a magazine and 15 rounds of ammunition—were operable (T. 582-595) and after Detective DeLoren’s partner, Detective Angelo Tessitore testified that he had been driving on the night in question when DeLoren had told him to stop and stated that there was a guy with “a gun” (T. 624-625), the People’s only witness, DeLoren testified for the prosecution that on the evening in question, he saw appellant standing in the street between a large van and another parked vehicle with a gun in each hand (T. 647-650, 653, 671). DeLoren testified he told his partner to stop the car and that, before he even got out of the vehicle, he actually heard the sound of 2 guns hit the ground (T. 651-653, 677-678). John Bruno, retired New York Police Department Detective, testified that he interviewed Steve Ramsanany (T. 712-713). Bruno told the jury that he met with Ramsanany on August 7, 2012, at the defendant’s apartment at 2640 Marion Avenue; he testified that prior to the interview, he asked appellant to leave the apartment so that no one else was present during the conversation (T. 713, 745). Bruno stated that first, he listened to what Ramsanany had to say; on the basis of what Ramsanany told him, Bruno asked him if anyone was forcing him to make the statement, asked him if anyone had promised him anything in exchange for making the 31 statement, and asked him if he was making the statement voluntarily (T. 714-718). Ramsanany indicated that the statement was voluntary, that he had not been forced or coerced and that he had not been promised anything in exchange for his statement (T. 714-718). At this point, the former homicide detective advised the witness that he could be arrested based on his statement (T. 718). Bruno told the jury that the witness thereafter still indicated that he was willing to make a statement about the events of the night in question and that he was willing to sign a written statement as to the facts (T. 718-719). Bruno stated that in sum and substance Ramsanany stated that at some time before 1:00 a.m. on the date in question, he was playing dice with a group of people in front of 2640 Marion Avenue when he got into a fight with another person present; Ramsanany admitted that he left and returned with a .9 millimeter Taurus semi-automatic gun (T. 718-719). According to Ramsanany, at some point he saw the unmarked police car and threw the gun under a nearby vehicle (T. 718-719). Ramsanany stated that he saw Mark Boyd, appellant, with a BB gun and witnessed appellant throw that item under a vehicle when the police showed up (T. 719). The signed statement was admitted into evidence as Defendant’s B (T. 720-721). Adan Gil was testified for the defense. He stated that on 32 June 8, 2011, at approximately 1:00 a.m., he was at a dice game in front of 2640 Marion Avenue when two people at the game had words (T. 769-771). Gil stated that a man he knew as “Harlem” left and came back with something in his waistband; the witness told the jury that he saw Harlem throw a gun with a brown handle under a white vehicle (T. 771-773). The witness testified that he wasn’t paying attention to what appellant was doing; he stated that he had never been interviewed by the police (T. 773-775). Given the lower court’s Sandoval ruling, appellant did not take the stand on his own behalf. Before the People’s witness Detective DeLoren took the witness stand in rebuttal, the defense stated that it was entitled to bring out that Mr. Ramsanany was in federal custody charged with being in possession of an AK47; defense counsel argued that DeLoren’s testimony was going to be that Ramsanany was afraid of appellant (T. 708-709). Counsel for the defense stated that, “I’m trying to show this person who is, who is selling an AK47 is less likely to be afraid of Mark Boyd” and that it “is hardly likely that he would be able afraid [sic] of the defendant based upon this selling of an AK47. That person is not afraid of Mark Boyd. This jury should be aware of that.” (T. 709). The People argued that it was just an allegation at this point and that it was not relevant to the detective’s testimony 33 (T. 709). The county court denied the defendant’s request to bring the matter before the jury, holding that it would allow the jury to speculate (T. 709-710). Defense counsel noted his strenuous exception (T. 710). On rebuttal, Detective DeLoren returned to the stand. According to DeLoren, Assistant District Attorney Fouz asked him to interview Steve Ramsanany (T. 795). To that end, according to DeLoren, he tracked Ramsanany to his home, where a woman answered the door and told the detectives that Ramsanany was down the block (T. 796-797). According to DeLoren, he and Detective Angelo Tessiore and Detective Luis Perez drove down the block in their unmarked police car until they saw a man matching Ramsanany’s description, “called him over” and told him to produce identification (T. 795-797). According to Detective DeLoren, all three of the detectives got out of the car at this point; under these circumstances, according to the officer, he asked the witness what “the story” was with respect to the letter he had given to the defense with respect to Mark Boyd (T. 798). DeLoren told the jury that Ramsanany “put his head down and sighed heavily” and that “he basically admitted that the letter is a fake” (T. 798-799). According to DeLoren, the witness elaborated to say that he did not write the letter, that the letter was all Mark’s idea, that Mark said that if he agreed, 34 the case would be dismissed and that he would never have to testify and would never get into any trouble (T. 798). As expected, DeLoren told the jury that the witness stated that he was afraid of Mark; DeLoren added for the jury’s benefit that he guessed that Ramsanany was “afraid of what Mark would do to him at some point in the future” (T. 798). The lower court sustained its own objection to the last (T. 798). At this point, counsel for the defense renewed his request concerning the fact that Ramsanany was in federal custody for trying to sell an AK47 to an undercover officer (T. 820-821). The defense argued that DeLoren testified that Ramsanany gave the statement because he was afraid of appellant and that the defense should be allowed to ask him if he was aware that Ramsanany had pending charges for trying to sell an AK 47 to an undercover officer (T. 821). The court below adhered to its decision to prevent the jury from considering the testimony that would strongly refute the detective’s contention that Ramsanany was afraid of appellant (T. 821). The veteran police witness nevertheless went on to state in front of the jury, “I think it’s pretty well understood why someone would be afraid of him [the defendant]. I arrested him for being in possession of two firearms.” (T. 831). The detective claimed that he told the witness that he could be charged with perjury if he testified untruthfully for 35 Mark consistent with the letter; however, the witness told the jury that he did not “have the power” to arrest Ramsanany if he had said that the real gun was his (T. 832). The prosecution’s objection was sustained when defense counsel asked if the officer would have arrested Ramsanany if he had said the gun was his (T. 833). When defense counsel again asked the witness if he would have arrested Ramsanany if he had said that he was the one who had possessed and thrown the .9 millimeter semi-automatic Taurus under a van at 1:00 a.m., on June 8, 2011, the witness refused to answer the question with a “yes” or a “no” and the county court explicitly allowed the witness to refuse to so answer the question (T. 834). DeLoren claimed that some weeks later Ramsanany called him on his cell phone; according to the detective, who did not bother to make any notes that this call occurred and who could not remember the date that this witness/suspect called him, Ramsanany was “looking for reassurance” that the defendant “would never find out that he told me the truth about the letter” (T. 799-807). The prosecutor would be allowed to argue in summation that the defense failed to produce Ramsanany and that his absence left unanswered questions and should be held against the defense. Against this backdrop, the jury would not be allowed to consider and find that appellant was guilty of the possession 36 of the BB gun—one gun—but not the possession of the second gun—two guns. The trial court’s repeated improper rulings proscribed appellant’s rights to present a full and fair defense. After it properly ruled that it had to allow appellant to present the jury with the confession of the unavailable witness Ramsanany, the trial court ruled that the jury would be allowed to hear testimony from Detective DeLoren that Ramsanany recanted his confession. This was plain error. Ramsanany’s confession was admitted under an exception to the prohibition against hearsay precisely because it had all of the indicia of reliability—it was a declaration against Ramsanany’s penal interests. The alleged recantation, on the other hand, was hearsay and did not fall under any hearsay exception. It should not have. It was made under circumstances that rendered it inherently unreliable. The recantation was made by a gun runner as he was surrounded by three detectives asking him if he had indeed possessed a loaded pistol on the date in question. Yet, the jury was not only allowed to hear this patently suspect recantation, because of the improper rulings of the trial court, it was allowed to do so without being able to consider any of the real and relevant facts that rendered it unreliable. First, the People’s Detective DeLoren was able to tell the 37 jury that Ramsanany had confessed in the first place because he was afraid of appellant. This prejudicial testimony—speculation on the part of the shady DeLoren—was based on no facts whatsoever but was allowed in to evidence. Any and all proper attempts to counter it were denied by the trial court. Indeed, Ramsanany was, at the time of the trial, in jail for trying to sell an AK47 to an undercover Federal Agent. It is highly unlikely that he was afraid of the guy with the BB gun. But the defense was wholly precluded from bringing this crucial matter before the jury when the trial court repeatedly denied defense requests. Thus, no evidence of Ramsanany’s AK47 possession was allowed to be considered by the jury. The defense could not even ask DeLoren if he knew it to be true or if it would change his opinion that Ramsanany had given the confession in mortal fear of appellant. It should be noted that the arguments of counsel and the adverse ruling by the trial court preserve the instant issue for review by this Court as a matter of law. Criminal Procedure Law Section 470.05(2). Here, both the constitutional and the evidentiary rules were breached when the trial court precluded defense counsel from presenting a full and meaningful defense on appellant’s behalf. Defense counsel had a good-faith basis for his proffer—the matter was undisputed. This trustworthy 38 evidence went to more than just the credibility DeLoren. Rather, it went directly to a highly relevant issue and was necessary to help dispel the People’s contention that Ramsanany gave the confession because he was afraid of appellant instead of the more probable alternative that Ramsanany recanted because he was afraid of the police. Here too, the trial court denied appellant any semblance of a fair trial when it inexplicably refused to allow the defense to confront and cross-examine DeLoren with the fact that Ramsanany allegedly recanted under circumstances where he would reasonably have believed that he would have been arrested if he did not recant. Defense counsel was not permitted to ask the hostile witness, DeLoren, or to get a proper answer to the question as to whether DeLoren had the power to arrest Ramsanany had he confessed to possessing the .9 millimeter pistol on the night in question. Again, the one-sided legal rulings by the trial court, allowed the improper hearsay recantation to be considered by the jury without giving the defense the proper ability to put forth a meaningful defense by presenting evidence and confronting his accusers. Against this backdrop, this Court should consider that appellant was not permitted use his statement at the time of his arrest, wherein he immediately told the police that the BB gun was his but that the other gun was not, to combat the People’s 39 contention that his defense was a recent fabrication. See also Point Five, infra. Moreover, the trial court erred as a matter of law when it allowed the People to argue in summation over objection that the defense did not produce Ramsanany thereby preventing the prosecutor from properly questioning him and leaving many unanswered questions. See also Point Four, infra. Too, the trial court abused its discretion as a matter of law when it came up with a Sandoval ruling that even the prosecution admitted did not “sanitize” the record—that even the prosecution admitted was skewed against the defense and in the People’s favor. Indeed, with respect to cross-examination as to prior criminal convictions, the trial court must strike a balance between the probative worth of evidence of prior specific criminal acts on the issue of the defendant's credibility and the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf. People v. Sandoval, 34 N.Y.2d 371 (1974); People v. Mitchell, 209 A.D.2d 443 (2d Dept. 1994); see also People v. Williams, 56 N.Y.2d 236 (1982); People v. Bowles, 132 A.D.2d 465 (1 st Dept. 1987). In People v. Briggs, 166 A.D.2d 210 (1 st Dept. 1990), where the trial court failed to consider the necessity of defendant's testimony regarding his defense of 40 justification, this Court held that while the burden of demonstrating the prejudicial nature of convictions sought to be used for impeachment purposes rests with the defendant, it is for the court to consider whether the validity of the fact-finding process would be affected if the court's ruling had the effect of discouraging defendant from taking the stand. Here, the trial court considered only that the prosecution needed to disparage appellant’s credibility and wholly neglected to take into account that its unbalanced Sandoval ruling, far above what the prosecution asked for, kept appellant from taking the witness stand in this one witness case. Finally, as set forth in Point One, supra, the trial court took away the issue of appellant’s defense from proper consideration by the jury when it refused to charge the jury that it could consider appellant’s guilt of the crime that appellant admitted committing, the possession of the BB gun, and thereby precluded proper consideration of appellant’s case. By its improper and one-sided rulings, the trial court closed every avenue of defense. It precluded a meaningful defense and allowed the People to use patently unreliable evidence with impunity while it denied the defense any means of rebuttal. Appellant was deprived of his fundamental constitutional rights as a matter of law. 41 POINT THREE APPELLANT’S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE; BECAUSE THE JURY WAS NOT IN THE BEST POSITION TO DECIDE THE CASE, THIS COURT SHOULD REVERSE APPELLANT’S CONVICTION AS A MATTER OF LAW AND IN THE INTEREST OF JUSTICE AND DISMISS THE INDICTMENT. In considering whether appellant’s conviction was against the weight of the evidence, this Court should start with the fact that even the prosecution did not trust that the jury was going to believe its only witness. The standard for determining whether a conviction is based on legally sufficient evidence is whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the defendant's guilt had been proven beyond a reasonable doubt. People v. Wong, 81 N.Y.2d 600 (1993); People v. Forte, 223 A.D.2d 358 (1st Dept. 1996); People v. Carter, 63 N.Y.2d 530 (1984); People v. Contes, 60 N.Y.2d 620 (1983); See Jackson v. Virginia, 443 U.S. 307 (1979); U.S. Const. Amend. XIV; N.Y. Const. Art. 1 § 6. Further, this Court is empowered to assess whether a verdict is supported by the weight of the evidence. People v. Danielson, 9 N.Y.3d 342 (2007); Criminal Procedure Law Section 470.15. In its weight of the evidence review, a court must consider the elements of the crime to determine if the evidence, even if credible, proves the elements beyond a reasonable doubt. If based on all the credible evidence a different finding would 42 not have been unreasonable, then the Court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony”; if it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict. People v. Delamota, 18 N.Y.3d 107 (2011); People v. Bleakly, 69 N.Y.2d 490 (1987). Here, the Court should set aside the jury’s compromise verdict convicting appellant of Criminal Possession of a Weapon in the Third Degree. At trial the prosecution called four witnesses. Only one, Detective Deloren gave testimony that, if believed, would establish appellant’s guilt of any criminal conduct. The other three prosecution witnesses support appellant’s arguments herein. Detective Colleen Schutt, the People’s firearms analyst, testified that the .9 millimeter Taurus pistol with a magazine and 15 rounds of ammunition were operable (T. 582-595). Her testimony was not controverted. If the jury believed DeLoren, they had to find appellant guilty of possessing a loaded and operable firearm. They did not. Detective Francisco Castillo testified that he tested an air pistol or BB gun (T. 603, 606). Over the defense objection, that count was not submitted for the jury’s proper consideration. See Point One, supra. 43 Detective Angelo Tessitore testified for the prosecution that on June 8, 2001, he was working with Detective Ellis DeLoren, that he was driving and that DeLoren was the passenger (T. 620-623). In the vicinity of 195 th Street and Marion Avenue, DeLoren told him to stop, stating that there was a guy with “a gun” (T. 624-625). The witness testified that DeLoren said he saw a man with a gun—not two guns. Tessitore testified that he never saw appellant holding anything (T. 628, 636). He stated that there was a group of five or six people on the sidewalk in the vicinity, possibly 30 feet away from the van (T. 628-642). The only witness to any crime, Detective DeLoren testified that he saw appellant with two guns (T. 647-650, 653, 671). His testimony included such gems as telling the jury that he did not request that the guns be tested for fingerprints or for DNA because that was only necessary when the police were trying to solve a crime (T. 660-661, 686-687), that he did not “have the power” to arrest Ramsanany if he had said that the real gun was his instead of recanting his confession (T. 832), and that “I think it’s pretty well understood why someone would be afraid of him [the defendant]. I arrested him for being in possession of two firearms” (T. 831). If the prosecution trusted their witness, they should have ordered fingerprint and DNA analysis of the second gun. They did not. Even when faced with Ramsanany’s confession, they could 44 have ordered the tests to prove their contention that the statement was a recent fabrication. They did not. The prosecution went to the jury with only DeLoren. Then, not trusting that the jury would believe DeLoren when he said that appellant had two guns, including the loaded and operable firearm, they took the question away from the jury and dismissed the charge covering the BB gun. Against this backdrop, the jury heard from the defense. Adan Gil testified that the person with the real gun was someone he knew as “Harlem,” not appellant (T. 771-775). A former police detective testified that Steve Ramsanany had confessed to possessing the real gun on the night in question. Then the jury heard from the People’s DeLoren yet again. DeLoren stated that Ramsanany recanted his confession—not because he was afraid of being arrested by the three officers who came looking for him to see if he was going to confess to them that he had possessed a loaded an operable .9 millimeter firearm because, according to DeLoren, Ramsanany could not have been arrested for that, but because Ramsnany was afraid of appellant. What the jury did not hear but what this Court knows is that Ramsanany was in Federal custody for trying to sell an AK 47 to an undercover officer. It is not unlikely that he possessed the loaded .9 millimeter gun. It is unlikely that he was afraid 45 of appellant. What the jury did not hear but what this Court knows is that appellant admits having the BB gun but denies having had the loaded .9 millimeter and has denied since the moment he was arrested, claiming immediately that someone else threw it under the car when the police drove by and telling the police that his fingerprints would be on the BB gun but not on the .9 millimeter. What this Court knows but the jury did not is that the investigator assigned by the court who took Ramsanany’s confession was not in cahoots with the defense, that the police who tracked down Ramsanany on the street and elicited his “recantation” most certainly could and would have arrested him, and that the defense had no obligation to produce Ramsanany, who was in the government’s custody, despite the prosecutor’s argument that it should consider this against appellant. This Court knows that, contrary to what the jury heard from DeLoren, the police and the prosecution most certainly conduct fingerprint and DNA analysis to prove a case and not just in situations where they are trying to solve a case. Detective DeLoren probably did not start out to frame appellant. He undoubtedly was in the passenger seat of an unmarked police vehicle going slowly, looking for an unrelated suspect. Without a doubt, at some point he stated to his partner Detective Tessitorie to stop the car because there was a man 46 “with a gun.” Though the officer may or may not have seen appellant make a throwing motion at this point, he most certainly did not hear two distinct guns hit the ground from where he was sitting in the passenger seat of the vehicle. He undoubtedly did get out of the car and find two guns under a parked vehicle and he charged appellant with possession of those guns. After he’d embellished to say that he saw appellant with a gun in each hand, he was stuck. He couldn’t admit the truth. The People didn’t want the truth either. If they had, they would have ordered that the guns be tested for prints and for DNA. That could have settled the matter. If they had wanted any semblance of the truth, they could have sent someone other than the officer whose veracity was at issue to go and interview the witness. At the very least, they would have fairly put the matter to a jury and given them the option of convicting appellant of exactly what he admitted to doing—possessing the BB gun. The People did not want the truth. The weight of the credible evidence does not establish beyond a reasonable doubt that appellant possessed the loaded .9 millimeter firearm. If a unanimous jury had believed DeLoren, they would have convicted appellant of possessing the loaded, operable gun. If the People had believed DeLoren, they would have had the real gun tested for fingerprints and DNA. If the People had believed that the jury would find DeLoren credible, 47 they would have submitted the charge that was proved, the charge that appellant admitted, the possession of the BB gun, instead of hoping for a compromise verdict. Under the truly egregious circumstances presented in this case, appellant asks that this Court set aside the verdict. 48 POINT FOUR APPELLANT WAS DENIED THE DUE PROCESS OF LAW WHEN THE PROSECUTOR ELICITED TESTIMONY THAT HE KNEW OR SHOULD HAVE KNOWN WAS PERJURED YET REFUSED TO ALLOW THE JURY TO MAKE THE PROPER CREDIBILITY DETERMINATION WITH RESPECT TO THE SAME, WHEN HE SNIDELY DENIGRATED DEFENSE COUNSEL AND SUGGESTED THAT HE WAS SOMEHOW IMPROPERLY IN CAHOOTS WITH THE LICENSED INVESTIGATOR DULY APPOINTED BY THE COURT TO ASSIST IN THE DEFENSE, AND WHEN HE MADE IMPROPER COMMENTS IN SUMMATION. In assessing whether a conviction will be overturned by reason of prosecutorial misconduct, the question is whether the misconduct deprived the defendant of a fair trial. The answer here is yes. A. THE PROSECUTOR ELICITED TESTIMONY THAT HE KNEW OR SHOLUD HAVE KNOWN WAS PERJURED The prosecutor, not a mere combatant but an officer of the court, has a duty to elicit the truth. People v. Savvides, 1 N.Y.2d 554 (1956). It is fundamentally unfair and a denial of a defendant’s due process for a prosecutor to present evidence that he knew or should have known was perjured and to allow such false evidence to go uncorrected when it appears. People v. Savvides, supra; People v. Schwartzman, 24 N.Y.2d 241 (1969); People v. Waters, 941 N.Y.S.2d 482 (Crim. Ct. Bx. Co. 2012). Here, the prosecutor elicited testimony that he knew or should have known to be false. He allowed Detective DeLoren to testify that he saw appellant with two guns—wild west style one 49 in each hand, though one was a real gun and one was a BB gun—even though DeLoren’s partner was clear that before the two guns were found under a car, DeLoren had told him he saw appellant with “a gun.” The prosecutor’s office allowed DeLoren to be the one to go interview the person who claimed that the real gun was his, despite the obvious conflict of interest insofar as the statement, if believed, showed that DeLoren had lied. The People did not have the gun checked for fingerprints or DNA. In this one-witness case for the People, the prosecutor used testimony so suspect that he didn’t trust that the jury would believe his witness’ assertion that appellant had two guns and asked that the court not allow the jury to consider the same. See Point One, supra. Under the circumstances, it was fundamentally unfair and a denial of a appellant’s due process for the prosecutor to present this evidence that he knew or should have known was perjured; he compounded the misconduct by refusing to allow the jury to make a full and fair determination thereon, instead acting like he was playing a game of Stratego not like he was representing the People of the State of New York. People v. Savvides, supra; People v. Schwartzman, supra. The prosecutor’s conduct herein, eliciting and embracing the testimony that he knew or should have known to be perjury, compromised the overall fairness of the trial, securing a guilty verdict that could never otherwise have been won and infringing 50 on appellant’s fundamental constitutional rights. Smith v. Phillips, 455 U.S. 209, 219 (1982); People v. Savvides, supra; People v. Schwartzman, supra; People v. Waters, supra. The resultant conviction must be reversed and the case, which could never be made without the use of the perjury, must be dismissed. Smith v. Phillips, supra. B. THE PROSECUTOR DENIGRATED DEFENSE COUNSEL AND THE DEFENSE, INSINUATING THAT COUNSEL WAS IMPROPERLY IN CAHOOTS WITH THE LICENSED INVESTIGATOR ASSIGNED BY THE COURT TO ASSIST IN THE DEFENSE. The United States Supreme Court has held "that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs." Estes v. Texas, 381 U.S. 532 (1965). A prosecutor must refrain from conduct which denies a defendant his constitutional right to a fair trial. People v. Petrucellit, 44 A.D.2d 58 (1 st Dept. 1974); People v. Gonzalez, 137 A.D.2d 618, 619 (2d Dept. 1988); People v. Roopchand, 137 A.D.2d 35 (2d Dept. 1985), aff'd 65 N.Y.2d 837 (1985). Thus, the prosecutor must refrain from denigrating the defense or suggesting that the defense was concocted. See e.g. People v. LaRosa, 112 A.D.2d 954 (2d Dept. 1985); People v. Clark, 195 A.D.2d 988 (4 th Dept. 1993)(reversal required where the prosecutor denigrated defendant's case, asserting that defense counsel was “blowing smoke”). 51 Here, the prosecutor insinuated to the jury that the investigator, a former New York City Homicide Detective properly assigned by the court to assist the defense here, was in cahoots with the defense counsel or the defendant in some improper manner. He snidely denigrated defense counsel for no earthly reason. After the licensed private investigator duly appointed by the county court pursuant to County Law 18-b testified that he had interviewed Ramsanany, who confessed to the crime for which appellant was being charged herein, the prosecutor began his cross-examination by asking the investigator if he went out, “At the direction of our good counsel, Mr. Fisher, correct?” (T. 737). He asked the investigator if he had been paid by “Marty Fisher” or by the defendant (T. 741). He asked the witness whether he was being paid for his testimony (T. 741-742). The investigator testified that he would submit a voucher for compensation to the judge at the end of the case and would be paid pursuant to 18-b (T. 741-742). Anyone involved in the court system knows there is nothing improper about any of this. Nothing whatsoever. The jury doesn’t know it though. For the prosecutor to sarcastically suggest that “our good counsel,” who did nothing but conduct himself with the utmost of professionalism, was improperly buying the witnesses testimony or that the defendant was improperly doing 52 the same is outrageously improper. See People v. Roopchand, supra; People v. LaRosa, supra; People v. Clark, supra. C. IN SUMMATION, THE PROSECUTOR FLAGRANTLY SHIFTED THE BURDEN OF PROOF WITH THE IMPRINTUR OF APPROVAL BY THE TRIAL COURT. Few principles of criminal law are more fundamental than the prosecutor's burden of proving guilt beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970). Accordingly, the prosecutor may not make comments with suggest that the defendant has the burden of proving anything. See e.g. People v. Robinson, 36 N.Y.2d 244 (1975); People v. Bacon, 84 A.D.2d 680 (4th Dept. 1981); People v. Fox, 72 A.D.2d 146 (1st Dept. 1980). A comment which suggests otherwise impermissibly shifts the burden of proof from the prosecution, where it belongs, to the defendant and constitutes reversible error. See People v. Iskander, 74 A.D.2d 880, 881 (2d Dept. 1980); People v. Sharp, 71 A.D.2d 1034 (3d Dept 1979). Here, talking Ramsanany, the witness who confessed to the crime that appellant was convicted of herein, the witness who was actually in the custody of the Government and actually under arrest for the possession and attempted sale of an AK47, none of which the jury was allowed to hear at the prosecutor’s insistence, the prosecutor delivered his own missing witness charge for this witness against the defense. The prosecutor argued to the jury that the defense did not produce Ramsanany, suggesting that the 53 defense did not do so because it had something to hide. In his summation, the prosecutor called Ramsanany the person that the prosecution wasn’t able to cross-examine (T. 887-888). He told the jury to consider “all the questions that he [the prosecutor] doesn’t have the answers to” (T. 888-889). The prosecutor told the jury that the “Silence is deafening” (T. 888-889). By arguing that the defense did not produce the witness, the prosecution improperly shifted the burden of proof. Yet, defense counsel’s objections were overruled by the trial court (T. 890). Recognizing the problem but nevertheless refusing to rectify it, the trial court stated that eventually the jury would get a charge about the defendant not having any burden of proof (T. 890). The error, preserved for this Court’s review as a matter of law by defense counsel’s immediate objection, Criminal Procedure Law Section 470.05(2), is all the more prejudicial because the trial court overruled the objection. Moreover, that the lower court permitted the admission to the jury of these prejudicial and improper arguments compounded the error and the prejudice that appellant suffered as a result. People v. Ashwal, 39 N.Y.2d 105 (1976). Had the trial court promptly and clearly advised the jury that the comments were entirely improper and had to be disregarded, it is possible that the prejudice would have been 54 dissipated. People v. Ashwal, supra. The jury would have presumably adhered to the instructions of the trial court and disregarded the improper arguments, instead concentrating on the true issue, not whether appellant proved that Ramsanany was guilty or whether the People were prejudiced by the defense failure to produce the witness despite that Ramsanany was in government custody, but whether the People established appellant’s guilt beyond a reasonable doubt with their lack of physical evidence in terms of fingerprints or DNA and with their police witness who perjured himself. See People v. Berg, 59 N.Y.2d 294 (1983). But, here, the lower court over-ruled defense counsel’s objections, thereby legitimizing the improper arguments and greatly enhancing the strong likelihood of prejudice to appellant. People v. Ashwal, supra; People v. Broady, 5 N.Y.2d 500 (1959). Accordingly, an evaluation of the overall fairness of the trial with respect to the conduct and comments of the prosecutor shows that the conviction must be overturned because his misconduct deprived the defendant of a fair trial. Smith v. Phillips, supra, People v. Roopchand, supra. Under the circumstances here, the misconduct had the desired effect of causing the jury to convict despite a lack of reliable evidence such that the case must be reversed and no overwhelming proof of guilt excused the misconduct by the prosecution herein. See 55 People v. Crimmins, 36 N.Y.2d 230 (1975). Appellant’s conviction must be dismissed. Smith v. Phillips, supra; People v. Roopchand, supra. 56 POINT FIVE APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE IS ENTITLED. It cannot be said that counsel for appellant was not zealous. However, overburdened as he was by defending this case against the prosecution and a lower court that gave the prosecution every ruling—sometimes more that the People asked for or stated was fair, counsel was improperly tasked with arguing and rearguing points that should easily and properly have gone in favor of the defense. See Point Two, supra. It is against this backdrop, where appellant was deprived of his basic constitutional rights at trial—the right to a fair trial, the right to the due process of law, the right to present a defense, the right to confront his accusers—that counsel’s fatal error must be assessed. A defendant in a criminal case has a constitutional right to the effective assistance of counsel. People v. McCray, 2016 NY Slip Op 04240; People v. Miller, 87 A.D.3d 1075 (2d Dept. 2011); People v. Larkins, 10 A.D.3d 694 (2d Dept. 2004); U.S. Const. Amend. VI; N.Y. Const., Art. I, § 6. "However, what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances 57 of each case" People v. Rivera, 71 N.Y.2d 705 (1988). To establish whether a defendant was deprived of the effective assistance of counsel under the New York State Constitution, a court must determine whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" People v. Miller, supra quoting People v. Baldi, 54 N.Y.2d 139 (1981). The totality of the circumstances of a particular case, including the evidence, the law, and the facts of the case as of the time of the representation must reveal that constitutional mandates were satisfied. People v. Baldi, supra. While the state standard also has a prejudice component, “prejudice' is examined in the context of the representation. People v. Benevento, 91 N.Y.2d 708, 713 (1998). This standard focuses on “the fairness of the process as a whole rather than on its impact on the outcome of the case.”” People v. Benevento, supra. The right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense. People v. Droz, 39 N.Y.2d 457 (1976); People v. Oliveras, 21 N.Y.3d 339 (2013). To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate "the absence of strategic or other legitimate explanations" for 58 counsel's failures. People v. Rivera, supra. Significantly, it need not be shown that counsel’s representation had no beneficial effects. That counsel provides representation which has beneficial effects but ultimately commits errors going to the core of an accused’s defense does not render his performance meaningful so as to satisfy the constitutional requirements of effective assistance of counsel. See e.g., People v. Wagner, 104 A.D.2d 487 (2d Dept. 1984)(where counsel originally made a pre-trial omnibus motion which resulted in having counts in the indictment dismissed but ultimately failed to make requests and applications which were central to the presentation of the defense, counsel’s performance fell below required standards and mandated a reversal). Here, counsel undeniably provided representation that had some beneficial effects and which should have led the lower court to make proper evidentiary rulings, see Point Two, supra, but, improperly tasked with presenting a defense in an atmosphere where every ruling was made for the prosecution, counsel made a fatal error— a forced error—wherein he failed to request that appellant’s statement to the police upon his arrest be admitted to rebut the People’s claim of recent fabrication. Under these specific circumstances, counsel’s performance fell below the required standard and a reversal is mandated. 59 On October 4, 2013, the county court started the trial herein while the hearing was still on-going. The prosecutor inquired whether the court would permit the defense to use appellant’s statement made on his arrest, to wit: the BB gun was his and his fingerprints would be on it, but any other gun was not his and his fingerprints would not be on it (T. 16-17). With the lower court’s decision on the crucial Settles issue still outstanding, defense counsel stated he would not ask the detective about the statement made by defendant upon his arrest (T. 17). At this point, the lower court, unresponsively, stated that defense counsel agreed to allow the prosecution to introduce, through its detective, that Ramsanany had recanted his confession (T. 18-20). On October 8, 2013, the county court decided the Settles hearing; it ruled that the defense would be permitted to bring Ramsanany’s hearsay statement confessing to possessing the gun before the jury (H. 111). It stated that the defense agreed that the People would be allowed to impeach the statements through the detective (H. 111). At this juncture, the trial court also ruled on the Sandoval matter, giving the People a ruling so favorable that the prosecutor himself had stated that it would be prejudicial to the defense, Point Two, supra, effectively keeping appellant off the witness stand so that the jury would not hear appellant state that the BB gun was his but that the 60 other gun, the real gun, was not his and had never been in his possession. At trial, the People produced only one witness, Detective DeLoren, who purported to see appellant with the real gun. After his own partner testified that DeLoren had told him to stop the car because he had seen a man with “a gun,” (T. 624-625), DeLoren nevertheless testified that he actually saw appellant standing in the street between a large van and another parked vehicle with a gun in each hand (T. 647-650, 653, 671). DeLoren stated that he told his partner to stop the car and that, before he even got out of the vehicle, he actually heard the sound of 2 guns hit the ground (T. 651-653, 677-678). The officer testified that he did not request that the guns be tested for fingerprints or for DNA, even after there was a confession by another man, because that was only necessary when the police were trying to solve a crime; according to the officer it was not necessary here (T. 660-661, 686-687). Against this backdrop, John Bruno, the private investigator, told the jury another man, Steve Ramsanany, had confessed to having the second gun, the real gun, and Ramsanany’s written confession was introduced into evidence (T. 712-721). Adan Gil also testified for the defense that another man, not appellant, had the real gun. Before calling Detective DeLoren on rebuttal, the People 61 again brought up the issue of the defendant’s post-arrest statement in which he stated that he had the BB gun but not the .9 millimeter Taurus (T. 617). The lower court stated that it was going to preclude it and asked to hear the defense’s position (T. 618). Inexplicitly, counsel for the defense stated that it went to DeLoren’s lack of credibility because he did not write down appellant’s full statement; on this basis, the lower court immediately denied the defense application to use the statement (T. 618). On rebuttal, DeLoren testified for the prosecution that Ramsanany told him that he and appellant agreed that he would fabricate a confession; according to DeLoren, Ramsanany agreed to the fabrication because he was afraid of appellant. Defense counsel failed to perceive that the statement, which could only help appellant as it wholly supported his defense that he only had the BB gun, not the .9 millimeter, that he had said as much immediately, and that he had told the police to check for fingerprints, was admissible under the hearsay exception to rebut the People’s claim that Ramsanany’s confession and indeed appellant’s whole defense was a recent fabrication. See People v. Buie, 86 N.Y.2d 501 (1995)( a 911 tape though hearsay, an out-of-court statement admitted for the truth of the matter asserted, can be admissible nonetheless to rebut a claim of recent fabrication); People v. McDaniel, 81 N.Y.2d 10 (1993). Defense counsel’s failure to request that the 62 jury hear the statement, had no legitimate strategic purpose; it constituted ineffective assistance of counsel under the totality of the circumstances of this case. 63 CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE REVERSED AND THE CASE DISMISSED AS A MATTER OF LAW AND IN THE INTEREST OF JUSTICE; IN THE ALTERNATIVE APPELLANT SHOULD BE AFFORDED A NEW TRIAL. Dated: Thornwood, New York August 2016 Respectfully submitted, MARIANNE KARAS Attorney for Defendant-Appellant 980 Broadway Suite 324 Thornwood, New York 10594 (914) 434-5935 64 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - -x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Mark Boyd, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - -x STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 2069/11. 2. This appeal is on behalf of Mr. Mark Boyd. 3. This action was commenced in the Supreme Court of the State of New York, County of the Bronx. 4. This appeal is from a judgment convicting appellant, after a jury trial, (Alvarado, J.), and a resentence entered February 26, 2014, convicting appellant, of Criminal Possession of a Weapon in the Third Degree and sentencing him to an indeterminate term of from two to four years’ incarceration. 5. This appeal is not being prosecuted by the appendix method. 65 CERTIFICATE OF COMPLIANCE The brief for appellant is printed in Courier New, double spaced. The footnotes are in Times New Roman. The font size is 12. The word count is 13,996.