The People, Respondent,v.Mark Boyd, Appellant.BriefN.Y.March 20, 2018 To be argued by EMILY ANNE ALDRIDGE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION – FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARK BOYD, Defendant-Appellant. R E S P O N D E N T’ S B R I E F DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 (718) 838-7091 aldridge@bronxda.nyc.gov GINA MIGNOLA EMILY ANNE ALDRIDGE Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER ii TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iv INTRODUCTION ..................................................................................................... 1 THE EVIDENCE AT TRIAL .................................................................................... 5 The People’s Case .......................................................................................... 5 The Defense .................................................................................................... 7 The People’s Rebuttal ..................................................................................10 ARGUMENT POINT ONE: THERE WAS AMPLE PROOF THAT DEFENDANT POSSESSED A TAURUS SEMI-AUTOMATIC PISTOL ..................................................... 12 POINT TWO: THE COURT’S RULINGS WERE APPROPRIATE................................... 21 A. Proof That Ramsanany Recanted His Statement to the Defense Investigator ....................................................................................21 B. Proof That Ramsanany Had Been Arrested For Possessing an AK-47 ............................................................................................25 C. Cross-examination About DeLoren’s Authority To Arrest Ramsanany .....................................................................................28 D. The Sandoval Ruling ......................................................................32 POINT THREE: DEFENDANT’S COMPLAINTS ABOUT THE PROSECUTORS’ CONDUCT ARE MERRITLESS AND LARGELY UNPRESERVED ...... 34 A. The Prosecutor Did Not Elicit Perjured Testimony .......................35 B. The Prosecutor’s Cross-examination of the Defense Investigator Was Proper ................................................................. 36 iii C. The Prosecutor’s Summation Remarks Were Entirely Appropriate .......................................................................38 POINT FOUR: THE COURT’S DECISION TO GRANT THE PEOPLE’S REQUEST TO DISMISS THE NONINCLUSORY, MISDEMEANOR PELLET GUN CHARGE WAS A PROPER EXERCISE OF DISCRETION ...................... 42 POINT FIVE: COUNSEL ABLY AND EFFECTIVELY ASSISTED DEFENDANT ....... 48 CONCLUSION ........................................................................................................57 PRINTING SPECIFICATIONS STATEMENT .....................................................58 iv TABLE OF AUTHORITIES Cases Bennett v. United States, 663 F3d 71 (2d Cir 2011) ................................................53 Burt v. Titlow, 134 SCt 10 (2013) ............................................................................53 Kimmelman v. Morrison, 477 US 365 (1986) .........................................................53 Padilla v. Kentucky, 559 U.S. 356 (2010) ...............................................................53 People v. Abraham, 22 NY3d 140 (2013) ...............................................................20 People v. Arthur, 290 AD2d 387 (1st Dept 2002) ...................................................28 People v. Bailey, 58 NY2d 272 (1983) ....................................................................40 People v. Baldi, 54 NY2d 137 (1981)......................................................................57 People v. Benevento, 91 NY2d 708 (1998) ...................................................... 52, 53 People v. Birwell, 159 AD2d 407 (1st Dept 1990) ..................................................27 People v. Bleakley, 69 NY2d 490 (1987) ................................................................15 People v. Buie, 86 NY26 501 (1995) ................................................................ 54, 55 People v. Caban, 5 NY3d 143 (2005) .....................................................................53 People v. Clermont, 22 NY3d 931 (2013) ...............................................................52 People v. Davis, 92 AD2d 177 (1st Dept 1983), aff’d, 61 NY2D 202 (1984) ........49 People v. DiMaria, 22 AD3d 229 (1st Dept 2005) ..................................................50 People v. DiPippo, 27 NY3d 127 (2016) .................................................................27 People v. Estevez, 176 AD2d 194 (1st Dept 1991) ..................................................40 People v. Extale, 18 NY3d 690 (2012) ............................................................. 45, 49 People v. Fernandez, 5 NY3d 813 (2005) ...............................................................53 People v. Galloway, 54 NY2d 396 (1981) ...............................................................40 v People v. Gaston, 135 AD3d 575 (1st Dept 2016), lv to appeal denied, 28 NY3d 929 (2016) .............................................................................................................40 People v. Goris, 305 AD2d 178 (1st Dept 2003) ....................................................28 People v. Gottlieb, 130 AD2d 202 (1st Dept 1987) ................................................27 People v. Gross, 26 NY3d 689 (2016) .............................................................. 52, 53 People v. Hayes, 97 NY2d 203 (2002) ............................................................. 34, 35 People v. Heidgen, 22 NY3d 259 (2013) .................................................................52 People v. Henry, 95 NY2d 563 (2000) ....................................................................52 People v. Hernandez, 22 NY3d 972 (2013) ................................................ 51, 52, 53 People v. Holman, 14 AD3d 443 (1st Dept 2005), lv. denied 4 NY3d 887 (2005)51 People v. Hubrecht, 2 AD3d 289 (1st Dept 2003) ..................................................50 People v. Jones, 165 AD2d 103 (1st Dept 1991).....................................................15 People v. Kancharla, 23 NY3d 294 (2014) .............................................................15 People v. Kelly, 157 AD2d 588 (1st Dept 1990) .....................................................40 People v. Lebron, 249 AD2d 147 (1st Dept 1998) ..................................................34 People v. Leon, 7 NY3d 109 (2006) ................................................................. 43, 47 People v. Liang, 208 AD2d 401 (1st Dept 1994) ....................................................40 People v. Malizia, 62 NY2d 755 (1984) ..................................................................15 People v. McDaniel, 81 NY2d 10 (1993) ......................................................... 54, 55 People v. McKinson, 249 AD2d 27 (1st Dept 1998) ...............................................20 People v. Murray, 104 AD3d 426 (1st Dept 2013) .................................................28 People v. Mussenden, 308 NY 558 (1955) ..............................................................49 People v. Nicholson, 26 NY3d 813 (2016) ....................................................... 52, 53 People v. Overlee, 236 AD2d 133 (1st Dept 1997) .......................................... 34, 40 vi People v. Randolph, 122 AD3d 522 (1st Dept 2014) ..............................................27 People v. Randolph, 42 Misc 3d 143(A) (App Term 1st Dept 2014), lv to appeal denied, 23 NY3d 1041 (2014) ..............................................................................35 People v. Reynoso, 73 NY2d 816 (1988) .................................................................50 People v. Rodriguez, 179 AD2d 554 (1st Dept 1992) .............................................20 People v. Roman, 217 AD2d 431 (1st Dept 1995) ..................................................21 People v. Roman, 30 AD3d 169 (1st Dept 2006) ....................................................20 People v. Saquet, 226 AD2d 272 (1st Dept 1996) ...................................................40 People v. Settles, 46 NY2d 154 (1978) ...................................................................... 3 People v. Shaw, 90 NY2d 879 (1987) .....................................................................46 People v. Stultz, 2 NY2d 277 (2004) ................................................................ 52, 54 People v. Thompson, 21 NY3d 555 (2013) .............................................................52 People v. Torres, __ NYS3d __, 2016 NY Slip Op 08115 (1st Dept Dec. 1, 2016) ...............................................................................................................................29 People v. Turner, 5 NY3d 476 (2005) .....................................................................53 People v. Wanton, 44 AD3d 439 (1st Dept 2007) ...................................................40 People v. West, 233 AD2d 277 (1st Dept 1996) ......................................................20 People v. Woolridge, 272 AD2d 242 (1st Dept 2000) .............................................27 People v. Wright, 25 NY3d 769 (2015) ............................................................ 40, 42 People v. Yourdon, 142 AD2d 998 (4th Dept 1988) ...............................................17 Premo v. Moore, 562 US 115 (2011) ................................................................ 53, 54 Strickland v. Washington, 466 US 668 (1984) ..................................... 51, 52, 53, 54 Statutes Criminal Procedure Law Section 300.40(6) ..................................................... 48, 51 1 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 RESPONDENT'S BRIEF INTRODUCTION Defendant appeals from a judgment of the Supreme Court of the State of New York, Bronx County (Efrain Alvarado, J.), rendered on February 26, 2014. By that judgment, defendant was convicted, after a jury trial, of Criminal Possession of a Weapon in the Third Degree (Penal Law §265.02[1]). He was sentenced, as a second felony offender, to an indeterminate term of imprisonment of from two to four years.1 Defendant has completed his prison term and is currently at liberty subject to community supervision. In the early morning hours of June 8, 2011, Detectives Angelo Tessitore and Ellis DeLoren of the Bronx Robbery Squad were searching for a suspect in a string of robberies. While they slowly drove down Marion Avenue scanning faces, DeLoren saw defendant standing in the street between parked vehicles, facing the 1 In 2009, defendant was convicted, in Bronx County, of fourth-degree criminal sale of a controlled substance (Penal Law § 220.34[5]). 2 road. Defendant held a gun in each hand, and was looking down at them as if to admire them. DeLoren yelled, “Stop, stop, stop … gun, gun, guy has a gun …” Tessitore immediately stopped and backed up the car. Defendant threw the guns under a parked van, and walked away. DeLoren heard the sounds of both guns hitting the ground. Seconds later, the detectives apprehended defendant, and DeLoren recovered two guns from under the van: a BB gun and a loaded, operable, Taurus 9 mm semi-automatic handgun. There were no other people in the immediate vicinity. Shortly after his arrest, defendant told the police that he had thrown only the BB gun to the ground and that someone else named Billy had thrown the Taurus pistol. By Indictment 2069/11, dated June 21, 2011, a Bronx County Grand Jury charged defendant with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), Criminal Possession of a Weapon in the Third Degree (two counts)(Penal Law §§ 265.02[1], [5][ii]), Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[1]), Unlawful Possession of an Air-pistol or Rifle (Admin. Code § 10-131[b]), Possession of Ammunition (Admin. Code § 10-131[i][3]), and Imitation Pistol (Admin. Code §10-131[g.1]). Before trial, in August 2012, defendant arranged to have an investigator interview Steven Ramsanany at defendant’s apartment. During the interview, Ramsanany signed a statement which said that Ramsanany, and not defendant, had 3 thrown the Taurus pistol under the van. Subsequently, in March 2013, Ramsanany recanted that statement and told the police that defendant had asked him to sign the statement and that he was afraid of defendant. At the time of trial, Ramsanany was in federal custody, facing charges relating to the possession of an AK-47. He was, therefore, unavailable to testify. Accordingly, defendant moved to admit at trial, the statement Ramsanany had made to the defense investigator. On October 3, 4, and 7, 2013, the Honorable Efrain Alvarado conducted a Settles hearing (see People v. Settles, 46 NY2d 154 [1978]). On October 8, the court granted defendant’s request to introduce Ramsanany’s statement and, with defendant’s consent, also ruled that the People could introduce evidence of Ramsanany’s recantation. Additionally, before trial, Justice Alvarado conducted a Sandoval hearing. On October 8, 2013, the court ruled that, if defendant were to testify, the People would be permitted to cross-examine him about one felony conviction—a narcotics sale. In particular, the People could question defendant about the general underlying facts of that conviction—that defendant sold a controlled substance in exchange for U.S. currency. The prosecutor would also be permitted to ask defendant if he was on parole at the time of the instant offense. 4 Defendant then proceeded to trial before Justice Alvarado and jury.2 Before submitting the charges to the jury, the court granted the People’s motion to dismiss the lesser, non-inclusory fourth-degree weapons charge (possession of the BB gun). Subsequently, on October 28, 2013, the jury rendered its verdict. The jurors acquitted defendant of the top count weapons charge as well as one count of third- degree weapons possession. The jurors did, however, find defendant guilty of one count third-degree weapons possession (Penal Law § 265.02[1]) (possession of a firearm after previously having been convicted of a crime). On December 18, 2013, Justice Alvarado sentenced defendant, as a predicate felony offender, to a determinate term of imprisonment of four years with five years’ post-release supervision. Subsequently, defendant moved to be re- sentenced. On February 16, 2014, Justice Alvarado granted defendant’s application. In particular, the court ruled that because defendant’s prior conviction was not a violent felony, his original sentence was invalid. The court vacated the original sentence, and resentenced defendant to the minimum prison sentence of from two to four years. 2 Defendant suggests that the trial began before the court issued its Settles and Sandoval decisions (Defense Brief: 59). On the contrary, before the court delivered its rulings on these matters, the court conducted some brief, preliminary proceedings with prospective jurors: the court introduced the parties and gave the prospective jurors preliminary instructions, including the instructions they needed to complete the jury questionnaire (VD: 4-38). Critically, individual questioning of potential jurors by the parties did not begin until October 8, 2013, after the court had issued its Settles and Sandoval decisions. Furthermore, the court previewed in advance the procedure it intended to follow in this regard, and defendant raised no objection (VD: 37). 5 On appeal, defendant argues that his conviction was against the weight of the evidence, that some the court’s rulings were erroneous, that the prosecutor violated his due process rights, that the court abused its discretion in when it dismissed the misdemeanor air-gun charge, and that trial counsel provided less than effective assistance. THE EVIDENCE AT TRIAL The People’s Case In 2011, Detectives Angelo Tessitore and Ellis DeLoren worked for the Bronx Robbery Squad (AT: T. 620; ED: 646).3 On June 8, 2011, Tessitore and DeLoren were in an unmarked Blue Honda, with Tessitore driving and DeLoren in the front passenger seat, canvassing for a suspect in a pattern robbery investigation (AT: T. 620, 623-24; ED: T. 648). Tessitore slowed down to about 5 miles per hour when he passed a group of people; the windows were rolled down to cheek level so that the detectives could see over the tinted windows (AT: T. 624; ED: T. 649). Tessitore kept his eyes on the road (AT: T. 633; ED: T. 650). Around 1:15 a.m., near 195th Street and Marion Avenue, while driving at about 5 miles per hour, DeLoren saw defendant standing in the street, facing the street, with a gun in each hand, looking down, as if he were admiring them (ED: T. 650, 664). DeLoren was looking to his left, past Tessitore (AT: T. 625; ED: T. 3 Page notations prefixed by “P.” refer to pre-trial proceedings, “V.” refers to voir dire, “T.” refers to the trial, and “S.” refers to the sentencing. 6 652). The area was well-lit by the street lights (ED: T. 687). DeLoren saw the handguns without obstruction (ED: T. 653). DeLoren excitedly told Tessitore to “Stop, stop, stop … gun, gun, guy has a gun, back up, back up” (AT: T. 625; ED: T. 650). DeLoren looked over his shoulder and defendant looked at him (ED: T. 650). Tessitore looked at DeLoren and backed up (AT: T. 635). Defendant had two guns. He turned, made a throwing motion under a white van that was parked on the street, and started to walk away (ED: 651-52, 679-80). DeLoren heard the sound of two clinks hitting the ground (ED: T. 653, 677-78). Tessitore stopped the car, and DeLoren described the suspect as a black male with a dark blue sweatshirt (AT: T. 626; ED: 652). The detectives exited the Honda, and they each went around a different side of the van (AT: T. 626; ED: T. 652, 677). Defendant was on the sidewalk by the van. He was about ten to twelve feet from where he threw the guns (ED: T. 654, 665). Defendant was wearing a dark blue sweatshirt (AT: 640, 666). There was no one else in the street or on the sidewalk (AT: T. 627; ED: T. 652, 654-55). There were people near a building entrance, twenty to thirty feet away from where defendant had thrown the guns, and fifteen feet from where the detectives had stopped defendant (AT: T. 628; ED: T. 654, 665, 675). Two guns were under the van: one was somewhat close to the sidewalk, and the other was bit further 7 underneath the van, about a foot and a half apart (ED: T. 655, 679, 683).4 After DeLoren recovered the guns from under the van, defendant was placed under arrest (AT: T. 629; ED: T. 652). DeLoren made the Taurus pistol safe by removing the magazine and taking a round from the chamber (ED: T. 656). Ballistics expert, Detective Colleen Schutt, tested the Taurus—a semi-automatic pistol— and the ammunition that was with it (CS: T. 582, 583, 585-86; Exhibit 1 [pistol and ammunition]). The firearm and ammunition were operable (CS: T. 595). Additionally, the gun had a firing pin block that prevented it from discharging if it hit hard pavement (CS: T. 598).5 Neither DeLoren nor Tessitore requested fingerprint or DNA testing (AT: T. 642; ED: T. 661; see also CS: T. 599-600). DeLoren explained that evidence is submitted for testing only when the police were trying to determine a suspect’s identity. Here, however, there was no need to test the gun for fingerprints because the detective had seen defendant with the guns (ED: T. 661). The Defense John Bruno retired from the New York Police Department’s Manhattan Homicide Task Force in 1981 (JB: T. 712). He received his private investigator’s license in 1985, and had been working as a private investigator full time since 4 Upon a quick glance, both guns appeared to be semiautomatic weapons (AT: T. 640). 5 Ballistics expert Detective Francisco Castillo tested an air pistol and determined that it too was operable (FC: T. 603-06). 8 2000. He was assigned defendant’s case on July 28, 2012 (id. at 713). He was hired by defense counsel (id. at 741). Defendant asked Bruno to speak to someone named “Steve.” Bruno learned Steve’s last name when he subsequently met with Ramsanany on August 7, 2012, at defendant’s apartment (id. at 713-14, 722, 742- 43). Before Bruno interviewed defendant, he asked defendant to leave the apartment (id. at 746).6 Bruno understood that Ramsanany was going to tell him that Ramsanany, and not defendant, possessed the gun (id. at 750).7 Bruno warned that making such a statement could result in Ramsanany’s arrest, but Ramsanany wanted to proceed (id. at 718). Ramsanany told Bruno that he was playing dice with a group of people in front of 2650 Marion Avenue (id. at 718). A dispute arose between Ramsanany and another player, who slapped Ramsanany. Ramsanany did not fight back, but left and returned with a 9 mm Taurus semiautomatic gun.8 When he saw an unmarked police car approach, he threw the pistol underneath a parked car (id. at 719). Ramsanany saw defendant throw a BB gun under the car. Then, as the police approached, Ramsanany left. He had not been promised anything in 6 Bruno did not, however, search defendant’s apartment to determine whether anyone else was there (id. at 746). 8 Before he talked to Ramsanany, Bruno was not aware what type of gun was involved in the case (id. at 723). 9 exchange for making this statement. Bruno wrote Ramsanany’s statement, and Ramsanany signed it: On 6/8 of 2011 at about 12:30 a.m. I was in front of 2650 Marion Avenue. There were many people there. I was playing dice. I then had an argument with one of the other players. I got into a fight. He hit me. I did not hit him back. I left and went up the block to East 197th Street and got a gun from somebody, a 9 mm Taurus semi. I returned to the front of 2650. I saw a detective car and I threw the gun under a car parked at the curb. I saw [defendant] throw a gun underneath the car also. It was a BB gun. I then left the area. I make this statement of my own free will. It is true and to the best of my recollection. I have not been promised anything for this statement. Signed Steve Ramsanany (id. at 720; Exhibit A [signed statement]). When the interview was over, Ramsanany stayed behind in defendant’s apartment. Defendant was waiting outside the building (id. at 720, 747-48). As part of his investigation, Bruno also measured the distance from nearby streetlights to the front of 2650 Marion Avenue. He found that the one light was 52 feet away and a second was 115 feet from the location. Bruno also noted that there was a tree next to the farthest light pole (id. at 731-32). Adan Gil was one of defendant’s friends (AG: T. 769). Gambling charges involving dice were pending against him (AG: T. 769). At 1:00 a.m. on June 8, 2011, defendant was sitting on a stoop around 2654 Marion Avenue. People were 10 playing dice, and an argument began (id. at 771). A man Gil knew as “Harlem” was smacked (id. at 772). Harlem left, “smoked a blunt,” and then returned. Harlem was playing with his waistband, at which time Gil observed a brown gun handle. The lighting was strong enough to see the brown handle (id. at 783). Gil heard the police, and Harlem threw the gun under a white vehicle (id. at 773). Gil did not know what defendant was doing at that time (id. at 774). Earlier that day, defendant had shown him a BB gun (id. at 775). Although Gil and defendant spoke regularly during the two years after defendant was arrested, Gil first gave his statement to defense investigator Bruno only a week before the trial. The interview took place at defendant’s apartment while defendant was present (id. at 783-86). The People’s Rebuttal The prosecutor who was handling the case asked Detective DeLoren to interview Ramsanany (ED: T. 795-96). DeLoren first tried to speak to Ramsanany by phone. DeLoren made a few quick, five-second phone calls. Each time, Ramsanany either hung up on DeLoren or DeLoren did not get through (id. 807). On March 3, 2013, DeLoren and Detectives Angelo Tessitore and Luis Perez went to Ramsanany’s home (id. at 796). A woman answered the door and said that he was not there, but had just left. Down the block, DeLoren saw someone that he 11 thought might be Ramsanany, and called him over. Ramsanany produced New York State identification with his name (id. at 797). DeLoren, in the presence of the other detectives, asked Ramsanany about the statement Ramsanany had signed (id. at 798). Ramsanany put his head down and sighed heavily. Ramsanany admitted that the statement was “a fake” and “a lie,” and that the whole thing was defendant’s idea. Defendant had told Ramsanany that if Ramsanany agreed to say that he was the one who had the gun, the case would get dismissed. Additionally, defendant promised that Ramsanany would never have to testify and would not get in trouble. When DeLoren asked Ramsanany why he would do this for defendant, Ramsanany said that he was afraid of defendant (id. 798-99, 826, 831).9 Under the circumstances, DeLoren did not believe that he had the authority to arrest Ramsanany (id. at 833). A few weeks later, Ramsanany called DeLoren’s cell phone looking for reassurance that defendant would not find out that Ramsanany had told DeLoren the truth about the statement (id. at 799, 802). DeLoren completed all the necessary paperwork in this case (id. at 838), but did not take notes of his conversations with Ramsanany (id. at 808, 822, 836). Rather, DeLoren was “forthcoming and open about everything that [he had] 9 DeLoren did not ask Ramsanany why he was afraid of defendant because “it’s pretty well understood why somebody would be afraid” of a person who had two guns in his possession when he was arrested (id. at 831). 12 learned” from Ramsanany and reported the information to the District Attorney’s Office right after he talked with Ramsanany (id. at 837). ARGUMENT POINT I THERE WAS AMPLE PROOF THAT DEFENDANT POSSESSED A TAURUS SEMI-AUTOMATIC PISTOL Defendant stands convicted of third-degree criminal possession of a weapon (Penal Law §265.02[1]) for having possessed a 9 mm, semi-automatic Taurus pistol on Marion Avenue during the early morning hours of June 8, 2011. There was never any question that the pistol was both loaded and operable. Similarly, there was no question that defendant had previously been convicted of a crime.10 Furthermore, there was never any doubt about defendant’s whereabouts at the critical time: he was on the street a few feet from where the pistol was found. Nevertheless, at trial, the jurors had to resolve whether defendant was the one who possessed the gun. In that regard, the jurors were presented with two divergent accounts of what had happened. Detective DeLoren testified that, as he and his partner were slowly driving by, DeLoren saw defendant, standing in the street, holding two guns—one in each hand—and looking down, as if he were admiring them (ED: T. 650, 664). When the detectives stopped and backed up, defendant then turned, and made a throwing motion under a white van that was 10 In 2009, defendant was convicted, in Bronx County, of fourth-degree criminal sale of a controlled substance (Penal Law § 220.34[5]). 13 parked on the street (ED: 651-52, 679-80). DeLoren heard the sound of two “clinks” hitting the ground (ED: T. 653, 677-78), and ultimately recovered the Taurus pistol and a BB gun from under the van. When the detectives stopped defendant, the only other people around were near a building entrance, twenty to thirty feet away from the spot where defendant had thrown the guns, and fifteen feet from where the detectives had stopped defendant (AT: T. 628; ED: T. 654, 665, 675). Defendant, on the other hand, maintained that he had only one gun—the BB gun—and that Steven Ramsanany had the Taurus pistol. It was Ramsanany, defendant claimed, who had thrown the Taurus pistol under the van. Thus, defendant argued, DeLoren was telling “lies” and “ma[king] up things,” DeLoren’s testimony, defendant urged, was “not believable” (Defense summation: 868-71). By their verdict, the jurors rejected defendant’s version of the events in favor of Detective DeLoren’s account, which was well supported by the evidence.11 On appeal, defendant does not challenge the legal sufficiency of the proof. Indeed, defendant acknowledges that, if DeLoren’s testimony is credited, the evidence establishes defendant’s guilt (Defense Brief: 42). Rather, defendant 11 In a motion to set aside the verdict, defendant also asserted that Detective DeLoren was “a complete and total liar in this case” (S. 12/18/13: 5). Finding, of course, that the issue of DeLoren’s credibility was a matter for the jury to decide, Justice Alvarado rejected defendant’s motion and, in particular, noted that he “did not see anything in the officer’s testimony that would lead the court to conclude” that DeLoren had lied (S. 12/18/13: 5). 14 contends that the jury’s verdict is against the weight of the evidence and, in particular, casts a litany of aspersions on DeLoren’s credibility (Defense Brief: Point III: 41-47). In fact, the evidence convincingly demonstrated that defendant threw the Taurus pistol under the van, just as DeLoren described. Of course, weight of the evidence review requires the court to determine whether the trier of fact “was justified in finding defendant guilty beyond a reasonable doubt.” People v. Kancharla, 23 NY3d 294, 303 (2014) (quotations and citations omitted). Furthermore, even if the appellate court determines, as an initial step in the analysis, that “an acquittal would not have been unreasonable,” the court still should not set aside the verdict unless, in addition, there is some basis for concluding that the trier of fact “failed to give the evidence the weight it should be accorded.” People v. Bleakley, 69 NY2d 490, 495 (1987). In making this critical determination, the justices must be “careful not to substitute themselves for the jury” (id.), and must pay “[g]reat deference” to the jury’s “opportunity to view the witnesses, hear the testimony and observe demeanor.” Kancharla, 23 NY3d at 303. Indeed, matters of credibility, in particular, “are reserved for the triers of fact, who have had an opportunity to observe the demeanor of the witnesses.” People v. Jones, 165 AD2d 103, 108 (1st Dept 1991); see People v. Malizia, 62 NY2d 755, 757 (1984). 15 Here, the jury was right to credit DeLoren’s testimony that the saw defendant holding both the BB gun and the Taurus pistol in each of his hands. First, DeLoren had an excellent opportunity to see the guns in defendant’s hands. After all, the detectives were driving slowly—five miles an hour—because they were canvassing the area looking for a particular robbery suspect. They had the windows rolled down, which increased their visibility. In addition, the street lights provided ample illumination. In fact, defendant’s friend and defense witness Adan Gil confirmed that the lighting conditions that night were good (AG: T. 783). Defendant finds it significant that DeLoren’s partner, Detective Tessitore, did not also see defendant holding the guns (Defense Brief: 8, 43). Tessitore, however, was driving, so his eyes were on the road, and he was, understandably, watching to make sure they did not have an accident (AT: T. 633; ED: T. 650). Moreover, the fact that Tessitore admitted he did not see any guns in defendant’s hands showed that the detectives were neither colluding, nor fabricating evidence. Significantly, too, the fact that DeLoren yelled “guy with a gun,” rather than “guy with guns,” did not mean that DeLoren saw only one gun in defendant’s hands. In the moment, DeLoren did not speak with exacting precision. Understandably, however, under the circumstances, his first priority was to convey the critical information—that there was a man with a gun, as opposed to a man with a knife or a girl with an ice cream cone—to his partner as quickly as possible. 16 As the prosecutor correctly noted, DeLoren’s exclamation of the singular “gun” had “the ring of truth in real life” (People’s summation: T. 883). And, DeLoren’s imprecision only underscored the notion that he testified candidly, and that the account he gave the jury was not carefully crafted and rehearsed in order to frame defendant. Defendant is equally wrong to suggest that DeLoren should have had the gun tested for defendant’s fingerprints or DNA (Defense Brief: 45-46). DeLoren explained that fingerprint and DNA evidence was unnecessary because he had actually seen defendant with the guns in his hands. Moreover, the defense could have requested to have the guns fingerprinted or swabbed for DNA evidence at any point. Indeed, defendant’s decision not to have the weapon tested for fingerprints or DNA suggests that he believed results would not be favorable. See People v. Yourdon, 142 AD2d 998 (4th Dept 1988) (failure to request test of seminal fluid found in victim’s vagina might have been strategic). Furthermore, the jury had every reason to reject defendant’s claim that it was Ramsanany, and not defendant, who possessed the Taurus pistol. Defendant’s claim that Ramsanany had the Taurus was based primarily on the statement that Ramsanany had made the defense investigator. That statement, however, utterly lacked credibility. 17 First, Ramsanany did not testify under oath. He made a statement to a defense investigator. The truth of the statement, however, was not subjected to cross-examination and proper vetting. Second, Ramsanany recanted the statement. In particular, he told Detective DeLoran that the statement was “a fake” and “a lie,” and that the whole thing was defendant’s idea. Defendant promised that Ramsanany would never have to testify and would not get in trouble (ED: T. 798- 99).12 Notably, when Ramsanany was talking with DeLoren, his head was down and he sighed heavily, which suggested that his recantation was genuine. Furthermore, Ramsanany explained that he went along with defendant’s plan because he was afraid of defendant (id. 798-99, 826, 831). Critically, the defense investigator interviewed Ramsanany and obtained Ramsanany’s inculpatory statement, not in an office or on neutral ground, but at defendant’s apartment, with defendant nearby, which further buttressed the notion that Ramsanany cooperated with defendant only because he did fear defendant. Additionally, a few weeks later after Ramsanany had recanted, Ramsanany called and asked DeLoren to reassure him that defendant would not find out that Ramsanany had told DeLoren the truth 12 Defendant is wrong to suggest that it was a “conflict of interest” for DeLoren to interview Ramsanany and that another officer should have conducted the interview (Defense Brief: 46, 49). DeLoren was the officer who was most familiar with the case, so it is understandable that he conducted the interview. And, three other detectives witnessed the interview, so there was never any reason to think that DeLoren improperly skewed the interview or that he had failed to report accurately what had happened. 18 (id. at 799, 802). Ramsanany’s desire to keep his discussion with DeLoren confidential further demonstrated that Ramsanany was afraid of defendant. Additionally, defense witness Adan Gil was thoroughly unconvincing. Gil claimed that he observed someone named “Harlem” toss a gun under a white vehicle that night. But, there was no evidence that Steve Ramsanany went by the name “Harlem.” Furthermore, although Gil and defendant were friends and had talked together regularly during the two years after defendant’s arrest, Gil did not tell the defense investigator what he had seen until the week before Gil testified. And, the circumstances and the manner in which Gil had come to make that initial statement were certainly suspect: Gil made the statement to the defense investigator at defendant’s apartment while defendant was present. Additionally, when Gil was challenged on cross-examination, he “look[ed] at the defendant” (AG: T. 790), not at the judge or even at the defense attorney for help. Consequently, the jurors had every reason to conclude that Gil was less than candid. Defendant’s masked repugnancy complaint is also easily dismissed. Defendant states that the ballistics evidence, which established that the Taurus pistol was loaded and operable, was uncontroverted. Defendant contends that, if the jurors had credited DeLoren’s testimony, they would have found defendant guilty of second-degree weapons possession for having possessing a loaded and 19 operable firearm. Because the jurors acquitted defendant of the top count possession charge, defendant asks this Court to conclude that “[t]hey did not” believe DeLoren (Defense Brief: 42, 46). As noted, defendant’s complaint is essentially one of masked repugnancy. But, because defendant did not object to the verdict while the jury was still assembled, he failed to preserve his repugnancy claim for review on appeal as a matter of law. See People v. West, 233 AD2d 277 (1st Dept 1996) (“Defendant's claim that the evidence was insufficient to sustain his conviction of robbery in the second degree given his acquittal of robbery in the first degree is merely a ‘masked repugnancy argument’ that defendant failed to preserve by not raising it prior to the jury’s discharge”) (citation omitted); People v. Rodriguez, 179 AD2d 554, 554 (1st Dept 1992) (“By failing to raise what the People aptly describe as ‘a masked repugnancy argument’ prior to the jury’s discharge, defendant has failed to preserve this claim as a matter of law”). In any event, defendant’s assault on the jury’s verdict impermissibly invades the jury’s deliberative process. See People v. McKinson, 249 AD2d 27, 28 (1st Dept 1998) (“Defendant's ‘masked repugnancy argument’ calls for an impermissible invasion of the jury’s deliberative processes”) (citations omitted). Indeed, “the acquittal on one count does not undermine the weight and sufficiency of the evidence on the count of which defendant was convicted.” Rodriguez, 179 AD2d at 554. See also People v. Abraham, 22 NY3d 20 140, 146-47 (2013) (a factually inconsistent verdict does not mean that the evidence was legally insufficient). “The fact that the jury acquitted defendant of other charges does not necessarily mean that it disbelieved the People's witnesses; it could simply have exercised mercy.” People v. Roman, 30 AD3d 169, 170 (1st Dept 2006); see also Rodriguez, 179 AD2d at 555 (“the jury may extend mercy to an accused by finding a lesser degree of crime than is established by the evidence”); People v. Roman, 217 AD2d 431, 432–33 (1st Dept 1995) (“the jury may exercise leniency by convicting him of a lesser charge than is established by the evidence”). Finally, defendant points to facts and allegations which, defendant acknowledges, “the jury did not hear” (Defense Brief: 44-45). For example, defendant asks this court to take into account the exculpatory statement he made to the police when he was arrested (Defense Brief: 45). However, on appeal, when assessing legal sufficiency or the weight of the evidence, an appellate court is limited to a review of the record evidence. Plainly, the correctness of a jury’s verdict cannot be measured against evidence it did not hear. The propriety of the court’s various evidentiary and other rulings will be addressed in other points of this brief. However, defendant’s complaints about the court’s rulings provide no basis to conclude that the jury’s verdict was in any way contrary to the weight of the evidence. 21 In sum, the jurors correctly rejected defendant’s claim that Steve Ramsanany threw the Taurus pistol under the van, in favor of Detective DeLoren’s straightforward and candid and account that defendant, and not Ramsanany, had the gun. POINT II THE COURT’S RULINGS WERE APPROPRIATE On appeal, defendant claims that the court made a series of erroneous rulings that denied him a meaningful opportunity to present a complete defense (Defense Brief: Point Two: 25-40).13 On the contrary, some of defendant’s appellate complaints are unpreserved. In any event, they are all without merit for the court’s rulings were correct in every respect. A. Proof That Ramsanany Recanted His Statement to the Defense Investigator In August 2012, defense investigator John Bruno interviewed Steven Ramsanany at defendant’s apartment. During the interview, Ramsanany signed a statement which said that Ramsanany, and not defendant, had thrown the Taurus pistol under the van. Subsequently, in March 2013, Ramsanany recanted that statement and told Detective DeLoren that defendant had asked him to sign the statement and that Ramsanany was afraid of defendant. By the time of trial, Ramsanany was in federal custody, facing charges relating to the possession of an 13 The defendant’s complaint about the prosecutor’s summation remark will be addressed in Point III. Additionally, defendant’s claim regarding the admissibility of the statement he made to the police will be answered in Point V, supra. 22 AK-47. Both sides agreed that Ramsanany was, therefore, unavailable to testify. Accordingly, defendant moved to admit into evidence at trial the oral and written statements Ramsanany had made to the defense investigator. After the court heard evidence at a Settles hearing, the People moved to admit at trial evidence of Ramsanany’s recantation. Defense counsel explicitly agreed to allow DeLoren’s testimony about the recantation for “strategic” reasons (P. 20). In particular, defense counsel wanted the jury to know that, when DeLoren interviewed Ramsanany, DeLoren did not take any notes. Defense counsel argued that DeLoren should have written down everything, but did not write anything and, two years later, remembered exactly what Ramsanany had said to him. Counsel believed DeLoren’s failure to take notes seriously undermined DeLoren’s credibility (P. 17). The parties, therefore, reached an agreement: the People would be allowed to elicit testimony from DeLoren that Ramsanany had recanted, and defendant, in turn, would be permitted to cross-examine the detective about the fact that he did not take any notes of the recantation (P. 18; T. 698). Consequently, after hearing the extensive testimony that was presented at the Settles hearing and the arguments of both parties, the court granted defendant’s request to introduce Ramsanany’s inculpatory statement that Ramsanany had possessed the Taurus pistol. In 23 addition, with defendant’s full consent, the court also ruled that the People could introduce evidence of Ramsanany’s recantation (P. 111). On appeal, defendant contends, for the first time, that the admission of DeLoren’s testimony about Ransanany’s recantation was “plain error” (Defense Brief: 36). As defendant now sees it, the recantation was unreliable hearsay (Defense Brief: 36). And, defendant alleges, DeLoren’s testimony that Ramsanany was afraid of defendant was “based on no facts whatsoever” (Defense Brief: 37). Contrary to defendant’s view, evidence that Ramsanany was afraid of defendant was not based on speculation: it based on the statements that Ramsanany made directly to Detective DeLoren and on Ramsanany’s behavior. Most notably, the fact that, a few weeks after the recantation, Ramsanany called DeLoren to make sure that what he had said to DeLoren was confidential and would not get back to defendant (ED: T. 799, 802), plainly demonstrated that Ramsanany’s fear of defendant was real. More fundamentally, though, defendant’s newfound appellate complaint is totally unpreserved because he never raised it before the court below. Furthermore, there is no reason to think that the recantation evidence was admitted unfairly or that it was prejudicial. Here, defense counsel did not unwittingly forget to lodge an objection to the proof, he affirmatively sought to use it, and did use it, to defendant’s full advantage. 24 On cross-examination, counsel carefully highlighted the circumstances surrounding Ramsanany’s recantation and stressed that DeLoren did not take notes of either of his conversations with Ramsanany (ED: T. at 808, 822, 836). And, in his closing argument, counsel used DeLoren’s testimony about the recantation to discredit DeLoren and to show that DeLoren was fabricating evidence and lying about the fact that he had seen defendant with two guns in his hands (T. 873). Counsel contrasted Bruno’s investigation and the fact that he carefully transcribed his conversation with Ramsanany, against DeLoren’s failure to investigate more fully and his failure to write anything down (T. 872-73). Counsel argued that “our hero Mr. DeLoren” did not want to consider Ramsanany’s “confession,” and that, “[l]ike an all-knowing Wizard of Oz, nothing can get Mr. DeLoren to alter his belief that one second was enough to refuse to even consider other evidence” (T. 877). Counsel utilized DeLoren's testimony regarding the recantation to argue not only that the recantation itself was unbelievable, but that the jury should also find DeLoren's testimony about seeing defendant with two guns unworthy of belief. Thus, before the court below, counsel took the position that, on balance, DeLoren’s testimony about the circumstances of the recantation and, in particular, DeLoren’s failure to take notes to memorialize it, favored defendant and would help convince the jurors that Ramsanany’s statement to the defense investigator was true and DeLoren’s testimony was untrue. The court granted defendant’s 25 request to admit the evidence and to try his case as he saw fit. Defendant should not be heard now on appeal to take the opposite position—to claim that the evidence was inadmissible and prejudicial—and to fault the court for giving him exactly what he requested. For these reasons, defendant’s newly minted appellate claim should be rejected. B. Proof that Ramsanany Had Been Arrested For Possessing an AK-47 To counter DeLoren’s testimony that Ramsanany was afraid of defendant, defense counsel sought to elicit evidence that Ramsanany was “currently charged with possession of an AK47” (T. 708-10). In particular, counsel wanted to elicit the fact of Ramsanany’s arrest to show that Ramsanany was the kind of person who was “less likely to be afraid” of defendant (T. 709). The prosecutor objected because the only thing the defense could point to was “an allegation … a charge” (T. 709).14 The court denied the defense application, and in particular, ruled that evidence that Ramsanany had been arrested and charged with a crime “would invite the jury to speculate” (T. 710). Later, during DeLoren’s cross-examination, defense counsel again petitioned the court to ask whether DeLoren was “aware of the pending charges against Ramsanany” (T. 820-21). Again, the court denied counsel’s request (T. 821). 14 In that regard, defendant was seeking to introduce only evidence of the fact of the arrest and pending charges and not, for example, proof that someone had seen Ramsanany in possession of the AK-47. 26 On appeal, defendant claims that it was error for the court to preclude the defense from eliciting before the jury evidence of Ramsanany’s arrest (Defense Brief: 37). In defendant’s view, the court’s ruling deprived defendant of a meaningful opportunity to present a complete defense (Defense Brief: 24-25). This claim has no merit. Plainly, a criminal defendant has a constitutional right to a meaningful opportunity to present a complete defense. People v. DiPippo, 27 NY3d 127, 135 (2016). That includes, of course, evidence that a third party, and not the defendant, committed the crime. 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. Thus, a court must determine whether the evidence is relevant and, if so, whether its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury.” Id. at 135-36 (internal quotations and citations omitted). Here, Ramsanany had not been convicted of any crime and was presumed innocent. Consequently, evidence that Ramsanany had been arrested had no probative value. Indeed, it was a proper exercise of discretion for the trial court to preclude questions and evidence concerning the fact that Ramsanany had been arrested—as opposed to convicted—of a crime. See People v. Randolph, 122 AD3d 522 (1st Dept 2014) (“the mere fact of an arrest is not a permitted area of 27 impeachment”); People v. Woolridge, 272 AD2d 242, 243 (1st Dept 2000); People v. Birwell, 159 AD2d 407 (1st Dept 1990); People v. Gottlieb, 130 AD2d 202 (1st Dept 1987). Further, as the court noted, the contested line of questioning about Ramsanany’s arrest would have invited the jury to speculate impermissibly. There were a host of unanswered questions: what did Ramsanany actually do? Were others involved? What role did Ramsanany play? Did he have a defense? Did he act out of coercion, entrapment, or fear? The court was therefore correct in preventing this line of cross-examination. See People v. Goris, 305 AD2d 178, 179 (1st Dept 2003) (“The court properly precluded a line of inquiry that was marginally relevant at best and invited speculation”); People v. Arthur, 290 AD2d 387, 388 (1st Dept 2002) (“the proffered cross-examination would have invited speculation as to whether the search would have produced something productive, and would also have delved into the legal requirements for the issuance of search warrants and the officers’ knowledge thereof, which had the potential to confuse or mislead the jury”); see also People v. Murray, 104 AD3d 426, 427 (1st Dept 2013) (“The court did not deprive defendant of the right to present a defense by precluding questions about matters not directly involving the victim, which would have had little or no relevance and would have invited speculation”). 28 Finally, the most detailed theory regarding Ramsanany’s fear of defendant was elicited not by the prosecutor, but rather by defense counsel on cross examination: “I arrested Mr. Boyd for being in possession of two firearms. I think it’s pretty well understood why somebody would be afraid” (ED: T. 831). As noted above, the only reason that the jury was learning about the recantation at all, including Ramsanany's stated fear of defendant, was because counsel's strategy was to permit the People to introduce the recantation as a method to discredit DeLoren. The court confirmed that counsel was allowing this testimony as a matter of strategy, and noted that it was otherwise inadmissible (P. 20, T. 697, 698). That alone is sufficient justification for denial of defendant's current claim, since “the right to present a defense does not include the right to be free from the consequences of opening the door to otherwise inadmissible evidence.” People v. Torres, __ NYS3d __, 2016 NY Slip Op 08115 (1st Dept Dec. 1, 2016). C. Cross-examination About DeLoren’s Authority To Arrest Ramsanany On appeal, defendant contends that the court “inexplicably refused to allow the defense to confront and cross-examine DeLoren” about the fact that Ramsanany may have thought that DeLoren would arrest Ramsanany if Ramsanany did not recant (Defense Brief: 38). On the contrary, the court did permit DeLoren to answer proper questions on this subject, and even overruled one of the People’s objections (ED: T. 832-34). At the same time, the court did not 29 allow a question that was improper in form. And although the court gave counsel an opportunity to “rephrase” the improper question, counsel chose to move on to another line of inquiry and did not pursue this topic (id. at 834). More specifically, defense counsel asked DeLoren whether DeLoren had told Ramsanany that, even if Ramsanany admitted that the gun was his, DeLoren would not arrest him (id. at 832). DeLoren testified that he had not told Ramsanany he would not arrest him (id. at 832). Next, defense counsel asked whether DeLoren “clearly had the ability and power to arrest [Ramsanany], did you not, yes or no? The court permitted counsel to ask this question, and DeLoren answered “No” (id. at 832). Defense counsel continued and, in particular, asked “So you couldn’t arrest him if he said that gun I had five years and I liked that gun, you wouldn’t have arrested him, would you?” (id. at 832). The court sustained the objection to this improper question (id. at 833). The court’s ruling was correct. First, the question was a sarcastic argument, not a genuine question. Second, it was an improper, and misleading, compound question. Whether DeLoren could arrest Ramsanany or would arrest Ramsanany were two different things. Had DeLoren answered “no,” for example, the jurors would not have been able to determine whether DeLoren meant that he lacked the power or authority to arrest DeLoren, or that he would have chosen not to do so. The question, in the form it was posed, was improper for 30 a third reason as well: it was a hypothetical based on facts that had no relation to the evidence. Accordingly, following an off-the-record bench conference, defense counsel rephrased his question in a proper form: “So it’s your testimony sir, yes or no, that if [Ramsanany] said to you I threw a .9 mm semiautomatic Taurus under the van … you would not have arrested him” (id. at 833). After the court overruled the People’s objection, DeLoren answered “No, I would have not --” (id. at 833). Before DeLoren could finish his answer, counsel cut him off and demanded that DeLoren answer by saying only “Yes or no” (T. 833). DeLoren, however, explained that “[i]t’s not a simple yes or no answer” (id. at 833). Defense counsel insisted: “I want a yes or no, sir, not what you want to say. Yes or no, sir” (id. at 833). Of course, defense counsel was not entitled to limit the witness to saying only either “yes or no” if the witness could not, truthfully and accurately, answer the question in that fashion. Consequently, the court correctly stepped in to clarify: “Detective, can you answer that with a yes or no?” DeLoren testified that he could “[n]ot in this particular case, I cannot” (id. at 834). At that point, the court asked defense counsel if he “wish[ed] to rephrase” (T. 834). Apparently satisfied with the testimony that he had already elicited, and unwilling to give DeLoren a chance 31 to explain his answer, counsel said he did not wish to rephrase the question, and moved on to another line of inquiry altogether (T. 834). Notably, counsel’s reluctance to pursue this line of inquiry was understandable because he had actually previewed the detective’s testimony on this score and knew that it was unfavorable. More specifically, at the Settles hearing, when given the chance to explain, DeLoren testified that he felt he did not have the authority to arrest Ramsanany because he did not have probable cause (ED: P. 38). DeLoren’s understanding of the law was that an arrest requires more than a confession: there must also be corroborating evidence that establishes that the confession is true (ED: P. 39). Plainly, defense counsel did not want the jurors to hear DeLoren’s explanation on this front and to consider that there was a lack of corroboration to show that Ramsanany had possessed the gun. As a result, defendant’s appellate claim—that the court improperly precluded him from pursuing questions about DeLoren’s power and authority to arrest Ramsanany—is both unpreserved and without merit. To the extent the court limited defense counsel, the limitation, which was entirely proper, was as to the form of the question, and not its substance. Defense counsel never suggested that the ruling improperly closed off an appropriate avenue of inquiry or otherwise made it impossible for defendant to confront DeLoren on this subject. On the 32 contrary, the court permitted DeLoren to answer each and every properly posed question. D. The Sandoval Ruling On October 4, 2013, the court conducted a Sandoval hearing. Defendant had two prior felony narcotic sale convictions, and an additional sale case pending (P. 111-14). If the defendant testified, the prosecutor sought to impeach defendant’s general credibility by asking if defendant had been convicted of both narcotics related felonies, without going into the underlying facts. In addition, the People sought to ask defendant whether he was on parole at the time of the incident (P. 113). The court ruled that the prosecutor would be permitted to ask defendant about only one of the felony convictions and the bare underlying facts of that conviction: whether on a certain date he sold controlled substance to another person in exchange for a sum of money (P. 113). The court noted that this compromise had been suggested by the prosecutor, and that it was reasonable. The court also permitted questioning regarding parole, noting that credibility was essential and knowledge of one’s ability to possess certain items while on parole is crucial to a credibility determination (P. 113). On appeal, defendant complains that the Sandoval ruling was skewed and prevented defendant from testifying. In defendant’s view, the court gave the People even more than they had asked for. This argument is unpreserved. 33 Defendant did not object complain, as he does now, that the compromise the court reached was an improper exercise of discretion. Nor did he suggest that the court “considered only” the People’s alleged need “to disparage” defendant’s credibility and “wholly neglected to take into account” that the ruling would keep defendant from taking the stand (Defense Brief: 39-40). Consequently, his appellate complaint about the ruling is unpreserved. People v. Lebron, 249 AD2d 147 (1st Dept 1998). Nor is there any reason to reach defendant’s claim in the interest of justice. As evidenced by his silence at the time, defendant’s attorney perceived neither any error, nor any harm. People v. Overlee, 236 AD2d 133, 142 (1st Dept 1997) (the absence of objection is typically “the best indication of the absence of any real prejudice”). In fact, the court’s ruling was an appropriate compromise. When considering impeachment under Sandoval, a trial court has the discretion to weigh using criminal convictions for impeachment with the risk that the defendant may be unduly deterred from testifying, and may prohibit questioning regarding prior convictions altogether, or may limit questioning to the bare fact that there has a been a prior conviction, or “limit inquiry to existence and nature of the prior conviction,” or the court may allow examination of the facts and circumstances underlying the conviction. People v. Hayes, 97 NY2d 203, 207-08 (2002). 34 Here, the court engaged in an appropriate compromise by essentially negating one of his felonies in exchange for allowing the prosecutor to ask whether, on one occasion, defendant had exchanged drugs for money. The underlying facts went to the existence and nature of the prior conviction, rather than allowing a full factual narrative. The court correctly assessed that hearing about only one drug sale was decidedly less prejudicial than the jury hearing that defendant had been caught repeatedly committing drug offenses. Therefore, the court properly exercised its discretion and “weighed appropriate concerns and limited both the number of convictions and the scope of permissible cross- examination.” Hayes, 97 NY2d at 208; see also People v. Randolph, 42 Misc 3d 143(A) (App Term 1st Dept 2014), lv to appeal denied, 23 NY3d 1041 (2014) (“The court's Sandoval ruling, which would have allowed the prosecutor to cross- examine defendant for impeachment purposes about the facts underlying only one of defendant's numerous prior convictions, balanced the appropriate factors and was a proper exercise of discretion”). POINT III DEFENDANT’S COMPLAINTS ABOUT THE PROSECUTORS’ CONDUCT ARE MERRITLESS AND LARGELY UNPRESERVED Defendant mounts a litany of complaints and allegations against the assistant district attorneys who handled his case. His particular complaints are largely unpreserved. All are without merit. 35 A. The Prosecutor Did Not Elicit Perjured Testimony On appeal, defendant accuses the prosecutor of engaging in misconduct and treating the trial like “a game of Stratego” (Defense Brief: 49). In particular, defendant claims that Detective DeLoren’s testimony was “so suspect,” the prosecutor should have known that it amounted to perjury (Defense Brief: 48-50). Along these same lines, defendant contends that it was a “conflict of interest” for DeLoren to interview Ramsanany. Therefore, defendant argues, the prosecutor should have had someone else conduct the interview (Defense Brief: 46, 49). Additionally, defendant asserts, the prosecutor should have had the gun checked for fingerprints and DNA (Defense Brief: 49). First, defendant raises these stinging accusations, impugning the prosecutor’s integrity and sense of fair dealing, for the first time on appeal. Accordingly, they are unpreserved for this Court’s review. And, of course, as defendant’s silence on this matter strongly indicates, there was never any reason to think that the prosecutors had elicited perjured testimony or otherwise had engaged in any misconduct or unfair dealing. Critically, DeLoren’s testimony was truthful. In fact, each of the attacks that defendant now levies against DeLoren’s credibility—including defendant’s claim about DeLoren’s supposed conflict of interest and the absence of fingerprint and DNA evidence—were fully presented to the jury. The jurors considered and 36 weighed all of the facts and arguments on these very matters. The jurors, in fact, found DeLoren to be credible. Notably, too, in rejecting defendant’s motion to set aside the verdict, Justice Alvarado “did not see anything in the officer’s testimony that would lead the court to conclude” that DeLoren had lied (S. 12/18/13: 5). Under these circumstances, there certainly is no basis to conclude that the prosecutor elicited perjured testimony or engaged in misconduct. B. The Prosecutor’s Cross-examination of the Defense Investigator Was Proper Defendant claims that isolated questions that the prosecutor posed to defense investigator Bruno on cross-examination “snidely denigrated” the defense and implied that the defense investigator was “improperly in cahoots” with the defense (Defense Brief: 50-51). As an initial matter, it is important to note that the prosecutor expressly told the jurors, “I’m not attaching Mr. Fisher [the defense counsel], we won’t agree on a lot of things. He’s a good guy, good attorney” (People’s summation: T. 884). And, the prosecutor made it clear that he was “not going to trash John Bruno, the defense investigator” (T. 887). Consequently, the jurors could not reasonably have concluded that the prosecutor was, at any point, casting aspersions at the defense attorney or the defense investigator, or otherwise improperly denigrating the defense. Furthermore, in context, each of the prosecutor’s questions was well in bounds. In that regard, it was fair game, and completely appropriate, for the 37 prosecutor to point out that Bruno was not simply an objective, neutral investigator. He was hired by the defense. And even though he was paid by the court, he was not likely to be hired again by counsel if he turned up evidence that was unfavorable to the defense. The jurors were entitled to hear evidence that spoke to Bruno’s motives and potential bias. That is particularly true because the jurors had to assess Bruno’s credibility and the reliability of the statement that Ramsanany had made to him. In that regard, it was critically important for the jurors to understand the circumstances that led to the statement. For example, Bruno did not come upon Ramsanany through some independent avenue of investigation: it was defendant who directed Bruno to speak to Ramsanany and defendant who arranged the interview (JB: T. 742). Moreover, Bruno conducted interviews with potential defense witnesses, not in a neutral location, like a “library . . . Starbucks . . . or diner,” but in defendant’s own apartment (JB: T. 743). Bruno conducted his interview with Ramsanany in this unreliable manner even though he knew that Ramsanany was going to confess to having the actual gun. In this regard, Bruno seemed to close his eyes to the possibility that Ramsanany was offering evidence to help defendant because of undue pressure or influence by defendant. Consequently, the prosecutor was right to ask if Bruno had gone to the scene of the incident “at the direction of our good counsel, Mr. Fisher” (JB: T. 737). 38 Notably, at the time, defendant raised no objection to the question, which renders his current appellate claim on this score unpreserved. Of course, the lack of objection was perfectly understandable because the prosecutor’s inquiry did not suggest there was an improper relationship. Nor did it impugn either Bruno or defense counsel. The question simply highlighted the fact that Bruno worked for the defense and was motivated to help the defense cause. Similarly, it was plainly fair for the prosecutor, on cross-examination, to elicit testimony from Bruno about the fact that he was paid for his services as a defense investigator. In that regard, Bruno testified that he had been hired by defense counsel. The prosecutor subsequently asked whether Bruno was being paid by defendant directly or by counsel (JB: T. 741). Defense objected, and the court sustained the objection. After asking other questions regarding compensation without objection, the prosecutor noted “there is nothing wrong with that, you’re working. This is your job, correct?” (JB: T. 742). Plainly, though, questions regarding how Bruno was hired and compensated were proper, as the prosecutor had a good faith basis to examine Bruno’s bias. C. The Prosecutor’s Summation Remarks Were Entirely Appropriate On appeal, defendant claims that the prosecutor argued that defendant “did not produce” Ramsanany at the trial, thereby impermissibly shifting the burden of proof and improperly suggesting that defendant had something to hide (Defense 39 Brief: 52-54). As an initial matter, almost all of the remarks that defendant now finds so unfair passed by without protest or objection (T. 887-89). Therefore, his current complaint about these remarks is unpreserved. See People v. Kelly, 157 AD2d 588 (1st Dept 1990). And, in fact, all of the prosecutor’s comments were appropriate. A prosecutor is “afforded wide latitude in his summation.” People v. Overlee, 236 AD2d 133, 136 (1st Dept 1997); see also People v. Galloway, 54 NY2d 396, 399 (1981); People v. Liang, 208 AD2d 401 (1st Dept 1994). In particular, the People have the right to comment on every pertinent matter of fact bearing upon the questions the jury must decide. See People v. Saquet, 226 AD2d 272, 273 (1st Dept 1996). And, a prosecutor is, of course, entitled to comment upon the evidence introduced at trial, and to urge the jury to draw reasonable inferences from that evidence. See People v. Wright, 25 NY3d 769, 780 (2015); People v. Bailey, 58 NY2d 272, 277 (1983). “[I]f his remarks have a good faith basis, and can be considered a proper response to the defense summation, they are not a basis for reversal.” People v. Estevez, 176 AD2d 194, 195 (1st Dept 1991). A prosecutor’s argument does not shift the burden when it constitutes fair comment on defense arguments. See People v. Wanton, 44 AD3d 439, 439 (1st Dept 2007); People v. Gaston, 135 AD3d 575, 576 (1st Dept 2016), lv to appeal denied, 28 NY3d 929 (2016). Judged by these standards, the prosecutor’s 40 summation was appropriately responsive to defendant’s arguments and completely proper. Here, the prosecutor never suggested that defendant should have produced Ramsanany. Rather, the prosecutor simply referred to “Steve Ramsanay” as “the unavailable person” (T. 886, 890), and noted, quite correctly, that Ramsanany “[wa]s not here” in court (T. 887-88). Accordingly, the prosecutor properly pointed out, “[w]e don’t know much about Steve” (T. 888). And, the prosecutor correctly highlighted, Ramsanany was not subjected to cross-examination. The reliability of the statement Ramsanany made to Bruno was never tested (T. 888). Along these lines, the prosecutor properly outlined the questions that he would have asked had he been able to cross-examine Ramsanany about the reliability of his statement and his possible motive to lie for defendant (T. 888). For example, the prosecutor would have asked about Ramsanany’s relationship with defendant, why he agreed to meet the defense investigator in defendant’s home, why he waited over a year after defendant’s arrest to take responsibility for possessing the gun, why Ramsanany said he threw the gun under a car when counsel spoke of a large cargo van, and how did Ramsanany know that defendant had thrown a BB gun under the van (T. 888-89).15 In this way, the prosecutor 15 This was in stark contrast to defendant’s closing, in which counsel said that no other officers who were present for Ramsanany’s recantation testified because they would not lie on 41 highlighted factors that suggested that Ramsanany’s statement to the defense investigator unreliable. Indeed, as long as the prosecutor “adhere[s] to the trial evidence,” he may “employ[ ] a certain rhetorical flourish.” Wright, 25 NY3d at 784. Here, the prosecutor’s closing was a proper response to defendant’s evidence, and was concerned with the lack of credibility in Ramsanany’s alleged confession, and did not shift the burden.16 Significantly, defendant lodged no objection to the portions of the summation discussed above. Therefore his claims are unpreserved. Defendant’s objection occurred later, as the prosecutor addressed Ramsanany’s recantation, and he mentioned defendant’s promise that he would not have to testify (T. 890). The court explained that the prosecutor was permitted to comment to the best of his recollection regarding the prior testimony, and said that “[t]here will be a full charge made the defendant does not have to prove anything” (T. 890). When the prosecutor resumed, he again discussed the recantation, including that defendant asked him to write it and said he would not have to come to court. He also said, “Burden is on me, defense proves nothing, burden is on me” (T. 891). the witness stand for DeLoren: “they’re not here. They’re missing. And therefore, I submit to you it’s because they couldn’t stomach Det. DeLoren’s lies” (T. 868). 16 If anything, the prosecutor implied that he would have liked to call Ramsanany as a witness if he had been available. Had Ramsanany testified, he most likely would have denied having the gun, and said he wrote the statement only on defendant’s demand. Therefore defendant benefited from his unavailability. 42 Of course, the judge also made it clear, “There will be a full charge made that defendant does not have to prove anything” (T. 890). And, in fact, in its final charge, the judge admonished that “even though the defendant introduced evidence, the burden of proof remains upon the People. And the defendant has no burden to prove or disprove anything” (Charge: 906-07). Consequently, based on the prosecutor’s remarks and the judge’s unambiguous instructions, the jurors could not have concluded that the burden of proof had shifted to the defendant. In sum, contrary to defendant’s largely unpreserved complaint, the prosecutor’s summation was proper and fair in all respects. POINT IV THE COURT’S DECISION TO GRANT THE PEOPLE’S REQUEST TO DISMISS THE NONINCLUSORY, MISDEMEANOR PELLET GUN CHARGE WAS A PROPER EXERCISE OF DISCRETION After hearing the arguments of the parties at the charge conference, the court granted the People’s request to dismiss the lesser, misdemeanor pellet gun charge. Because the pellet gun charge was noninclusory, its submission was “not mandatory.” People v. Leon, 7 NY3d 109, 113 (2006). Indeed, on appeal, defendant acknowledges that, under Criminal Procedure Law Section 300.40(6)(a), the court had the discretion to dismiss the pellet gun count. Nevertheless, defendant complains, the dismissal of the misdemeanor charge was an abuse of discretion (Defendant’s brief, p. 16-33). His specific appellate complaint is both unpreserved and without merit. 43 The proceedings below are easily summarized. At the close of the People’s case, the court asked the prosecutor whether he intended to seek a “paring down” of the indictment (T. 701-02). The prosecutor said he needed more time to decide. He also asked defense counsel if he was going to request that the court submit the pellet gun charge, and counsel responded, “I would like to think about it. You make the decision first.” The prosecutor replied, “I think if defense asks for it he will get it,” and asked counsel, “if you know you want it, let me know” (T. 702). Subsequently, before summations began, defendant made a motion to dismiss all charges other than the misdemeanor pellet gun count: Counsel: I believe no reasonable view of the evidence would substantiate the first four counts being submitted to the jury. The only applicable count in fact is the count about the BB gun. I ask the court to submit that one, the other counts, there is no reasonable view of the evidence that could possibly permit any deliberating jury to convict the defendant on any of those other counts (T. 847). The prosecutor requested that the court deny defendant’s motion, “although I am not asking you to submit the air pistol, I know you’re not hearing argument on that at this point” (T. 848). Later, the following exchange occurred: Prosecutor: I have an application, People have an application to dismiss the air pistol charge. Court: Defense wish to be heard? 44 Counsel: Your Honor, I object to the dismissal of the BB gun charge. I believe that the jury should be allowed to consider that. I object to dismissing it. Court: Objection noted. 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 a legal reason for the Court to include it with the lesser includeds, and were you to object I would deny it, but it is not. Granted, unlawful possession of a weapon is dismissed. (T. 857). First, it is important to note that the “prosecutor does not have the unilateral power to dismiss a count of a grand jury indictment over a defendant's objection.” Indeed, [w]hether such a count should be dismissed at the prosecutor's request is an issue to be decided by the court in its discretion.” People v. Extale, 18 NY3d 690, 692 (2012). On appeal, defendant does not contend that the court mistakenly thought that the People had the unilateral power to dismiss the pellet gun charge, or that the court otherwise failed to appreciate that the discretion to dismiss the charge rested with the court. Notably, below, defense counsel never protested that the court misapprehended its own powers. Consequently, an appellate complaint on this particular ground is unpreserved. More important, before the court below, there was no objection along these lines because there was never any dispute that the dismissal of the charge was a matter entrusted to the sound discretion of the trial court. Notably, the court correctly observed that, because the pellet gun charge was not a lesser included offense, the People could “make th[e] application” for dismissal (T. 857). The 45 judge, therefore, plainly understood that it was within the court’s power and discretion to deny the “application.” Indeed, the judge explicitly stated that, when the charge is a lesser included offense, there is a “legal reason” the court must submit it the jury, as opposed to the situation at hand, which involved a noninclusory offense (T. 857). In other words, the judge fully appreciated that the ruling was not based on a “legal reason,” but was a discretionary determination. Consequently, on appeal, defendant alleges—not that the court failed to exercise discretion—but that the court misused its power “to give the prosecution some sort of strategic advantage” (Defense Brief: 21). Additionally defendant claims that the court abused its discretion by failing to consider and “weigh competing possibilities” (Defense Brief: 22).17 Defendant, though, never raised these specific complaints before the court below, and so they are unpreserved for appellate review. See People v. Shaw, 90 NY2d 879 (1987). In any event, the trial court properly exercised its discretion when it granted the People’s application to dismiss the misdemeanor pellet gun charge. Of course, in exercising its discretion, the court must “weigh competing possibilities” and assess whether the “submission of the less serious charge would 17 Defendant also criticizes that the “complexity of the indictment” did not require “selectivity of the counts” (Defense Brief: 22). In that regard, defendant is relying upon the language set out in CPL 300.40(6)(b). Here, however, the court was faced with a situation where the People were consenting to the dismissal, which implicates Section 300.40(6)(a), not Section 300.40(6)(b). 46 do more harm than good to the goal of a reasoned, fair adjudication.” Leon, 7 NY3d at 114. In that regard, the court must determine whether “the submission of the [lesser] count [would] help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference.” Id. Notably, in Leon, “in asking for the submission of the less serious charge,” the defendant “was obviously hoping that he could avoid conviction on the more serious one.” Id. at 113-14. In other words, the defendant was hoping that a jury that was “otherwise prepared to convict him for” the higher charge “might— perhaps in an exercise of mercy, or a compromise—return a [ ] conviction” on the lesser charge “instead.” Id. at 114. The Court of Appeals expressly ruled that the defendant “was not entitled to a chance at” this kind of “jury nullification.” Id. Thus, it is well within the trial court’s discretion to dismiss the less serious charge if the court reasonably concludes that the submission of the lesser count would give the jurors an “opportunity to split the difference” or open the door to jury nullification. Application of these principles leaves no doubt that the trial court’s decision here not to submit the pellet gun charge was a proper exercise of discretion. Although defendant now says otherwise (Defense Brief: 22), defendant asked the trial court to submit the lesser charge because he was plainly hoping for jury nullification or a compromise verdict. As defendant acknowledges, his theory of 47 the defense was that he possessed the BB gun, but not the Taurus pistol. Accordingly, defendant hoped that, if presented with both the third-degree weapons charge—which pertained only to the Taurus pistol—and the misdemeanor BB gun charge, the jury would compromise and find him guilty only of the pellet gun count. But, as the holding in Leon teaches us, that kind of jury nullification is improper. Indeed, as the trail court undoubtedly recognized, submission of the pellet gun count would have distracted the jury from resolving the counts that related to defendant’s possession of the Taurus pistol and opened the door to impermissible jury nullification. Defendant is wrong to say that the jurors convicted him of third-degree weapons possession because “they weren’t allowed to fairly find that [defendant] was guilty of having a BB gun” (Defense Brief: 22). In fact, by dismissing the pellet gun charge, the judge wisely did not allow the jurors to compromise by resorting to jury nullification. On the other hand, the ruling allowed the jurors to resolve the issues relating to DeLoren’s credibility and to determine whether, in addition to the pellet gun, defendant also possessed the Taurus pistol. If the jurors believed defendant’s theory of the case, and disbelieved DeLoren, they could have acquitted defendant of all of the charges that related to the Taurus pistol. To argue that Bronx jurors would not return a complete acquittal if they felt that the People 48 had not proven the elements of the firearms offenses shows a significant underestimation of Bronx jurors’ deliberative abilities. The fact that the jurors acquitted defendant of the top weapons counts does not suggest that they did not believe DeLoren (Defense Brief: 22). A conviction on the lowest gun charge was likely a show of mercy, though “[t]o speculate why the jury voted as it did, is at best, an exercise in futility.” People v. Davis, 92 AD2d 177, 185 (1st Dept 1983), aff’d, 61 NY2D 202 (1984). “As is manifest, merciful or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects. But that, it has been correctly observed, is their responsibility and not the court’s.” People v. Mussenden, 308 NY 558, 563 (1955) (internal citation omitted). In sum, the court’s decision to grant the People’s request to dismiss the noninclusory, misdemeanor pellet gun charges was, under the circumstances here, a proper exercise of discretion.18 POINT V COUNSEL ABLY AND EFFECTIVELY ASSISTED DEFENDANT When defendant was arrested, he told the police that the BB gun was his, that he had thrown only the BB gun to the ground, and that someone else named 18 Contrary to defendant’s claim, if this Court were to find that the trial court’s decision to dismiss the pellet gun charge was an improvident exercise of discretion, the appropriate remedy is a new trial, not a dismissal of the case (Defense Brief: 23). See People v. Extale, 18 NY3d 696. 49 Billy had thrown the Taurus pistol under the van. At trial, the prosecutor sought to preclude the defense from eliciting evidence of defendant’s post-arrest statement to the police. In particular, the prosecutor argued that defendant’s statement that “the gun is not mine” was exculpatory and self-serving (P. 16). And, in fact, a defendant is not entitled to introduce a self-serving exculpatory statement that he made to the police. People v. Reynoso, 73 NY2d 816, 819 (1988); People v. DiMaria, 22 AD3d 229 (1st Dept 2005); People v. Hubrecht, 2 AD3d 289 (1st Dept 2003). For his part, defense counsel said he understood the prosecutor’s application and affirmatively represented that he would not oppose it (P. 17, 19).19 Counsel did not elicit evidence of defendant’s post-arrest statement. On appeal, defendant contends that defense counsel and the court were both wrong to keep the statement out of evidence. As defendant now sees it, the statement should have been admitted to rebut a claim that the whole defense was a “recent fabrication” (Defense Brief: 38-39, 58, 61-62). But the People never alleged that defendant only recently claimed that that he possessed the BB gun and not the Tauris pistol. Nor did the People suggest that the whole defense was a recent fabrication. Thus, to the extent that his claim can be reviewed, the record that exists demonstrates that counsel very ably represented defendant. 19 Before trial, defense counsel moved to admit, as evidence at the Settles hearing, the statement that defendant had made to the police (P. 66-74). The court denied the request (P. 74). Defendant then testified at the hearing that the BB gun was his, but the Taurus pistol was not (MB: P. 79, 90). 50 First, defendant never brought a post-judgment motion alleging attorney ineffectiveness complaining that his experienced trial counsel did not seek admission of defendant’s post-arrest statement. Consequently, counsel has never had the opportunity to explain his reasons or tactics. See People v. Holman, 14 AD3d 443 (1st Dept 2005) (“[o]n the existing record, defendant, who has not brought a motion pursuant to CPL 440.10 to expand the record to permit trial counsel to explain his tactics, has failed to show ‘the absence of strategic or other legitimate explanations’ for the various aspects of counsel's conduct challenged on appeal”), lv. denied 4 NY3d 887 (2005). On the extant record, it is clear that defendant received meaningful representation from his veteran trial attorney who had almost 40 years of experience.20 Even if this Court were to review defendant’s claims, the record that does exist demonstrates that his complaint has no merit. The legal principles are well settled. To establish that he was denied the effective assistance of counsel under the Sixth Amendment, a defendant must meet the two-pronged test. First, a defendant must show that his counsel’s performance fell below “an objective standard of reasonableness” judged by “prevailing professional norms” at the time of the representation. Strickland v. Washington, 466 US 668, 687-88, 690, 693-94 (1984); People v. Hernandez, 22 NY3d 972, 975-76 (2013). Second, a defendant 20 The New York State Unified Court System Attorney Directory indicates that trial counsel Martin Fisher was admitted to practice law in New York in 1974. 51 must show “that counsel’s deficient performance actually prejudiced defendant.” People v. Gross, 26 NY3d 689, 693 (2016); see also People v. Nicholson, 26 NY3d 813, 830-31 (2016); Strickland, 466 US at 693-94; Hernandez, 22 NY3d at 975-76. Under the New York Constitution, a defendant is entitled to “meaningful representation,” which is concerned with the “fairness of the process as a whole.” People v. Heidgen, 22 NY3d 259, 278-79 (2013); see Nicholson, 26 NY3d at 830- 31; Gross, 26 NY3d at 693; People v. Clermont, 22 NY3d 931, 934 (2013); People v. Henry, 95 NY2d 563, 566 (2000). Consequently, the defendant is not necessarily required to show prejudice or that the result of the proceeding would have been different. Clermont, 22 NY3d at 934; People v. Stultz, 2 NY3d 277, 283-284 (2004); People v. Benevento, 91 NY2d 708, 712-14 (1998). Much like the federal standard, however, the “meaningful representation” test contains a “prejudice component.” Henry, 95 NY2d at 566. Indeed, in assessing “meaningful representation,” a showing of prejudice is a “significant” element, and ineffective assistance claims without a showing of prejudice should be viewed with skepticism. Heidgen, 22 NY3d at 278-79; People v. Stultz, 2 NY3d at 283-284. Furthermore, under both federal and state law, the burden to establish that a misstep by counsel was “the sort of egregious and prejudicial error that amounts to a deprivation of the constitutional right to counsel” (People v. Thompson, 21 NY3d 555, 561 [2013] [internal quotations and citation omitted]), “rests squarely on the 52 defendant.” Burt v. Titlow, 134 SCt 10, 17 (2013); see Premo v. Moore, 562 US 115, 121 (2011); Kimmelman v. Morrison, 477 US 365, 381 (1986); Nicholson, 26 NY3d at 830-31; Hernandez, 22 NY3d at 976; People v. Fernandez, 5 NY3d 813, 814 (2005); Benevento, 91 NY2d at 712; see also Gross, 26 NY3d at 693 (the errors must be so egregious that the lawyer “did not function as counsel within the meaning of the United States Constitution”). In particular, the defendant must “demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failure.” Nicholson, 26 NY3d at 831. The standard is “highly demanding and rigorous.” Bennett v. United States, 663 F3d 71, 85 (2d Cir 2011) (internal quotations and citations omitted). Surmounting it is “never an easy task” (Padilla v. Kentucky, 559 U.S. 356, at 371 n.12 [2010]), for counsel is “strongly presumed” to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 US at 690; see Burt, 134 SCt at 17. “A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial (citations omitted).” People v. Caban, 5 NY3d 143, 152 (2005). “Such cases,” however, “are rare.” People v. Turner, 5 NY3d 476, 480 (2005). Additionally, because it is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence,” reviewing courts must apply the test with 53 “scrupulous care” (Premo, 562 US at 122), and make “every effort” to “eliminate the distorting effects of hindsight.” Strickland, 466 US at 689. Importantly, and dispositive here, courts may not find an attorney ineffective for failing to make a motion that “ha[s] little to no chance of success.” People v. Stultz, 2 NY2d 277, 287 (2004). Defendant’s entire claim is premised on the notion that the prosecutor argued that the theory of the defense—that defendant had the BB gun, but not the Taurus—was a “recent” fabrication (Defense Brief: 38). It was never the People’s position, however, that this defense was a recent fabrication. Rather, the People challenged that the statements by Ramsanany and defendant’s friend Adan Gil to the defense investigator were of recent vintage (AG: T. 783-86; T. 888). It was, in fact, telling that Ramsanany and Gil waited so long to come forward with evidence exculpating defendant. Critically, however, evidence of defendant’s own self-serving statement to the police denying that he had possessed the Taurus pistol did not rebut the contention that Ramsanany and Gil had recently fabricated their statements. Defendant’s reliance on People v. McDaniel, 81 NY2d 10 (1993) and People v. Buie, 86 NY26 501 (1995), to claim that defendant’s statement was admissible to refute arguments of recent fabrication, are misplaced. Both of those cases involved the utilization of a witness’s prior consistent statement to rehabilitate a 54 witness after cross-examination. Buie specified, “Significantly, the prior consistent statement prohibition and exception are anchored to the impeachment and rehabilitation of witnesses.” 86 NY2D at 510. Defendant never testified, therefore there was no ground to rehabilitate him. Further, when a witness’s testimony is assailed as a recent fabrication, “the witness may be rehabilitated with prior consistent statements that predated the motive to falsify. . . . Moreover, in applying the exception, it is important to identify when the motive to fabricate arose. In some cases, the motive may exist from the outset, and thus rehabilitation with consistent statements may be impossible.” McDaniel, 81 NY2d at 18. Defendant had a motivation to fabricate and deny responsibility from the very beginning, thus even if he had testified, he would not have been eligible to have his prior self-serving statement admitted as a prior consistent statement. It is also worth noting that defense counsel had an important strategy reason not to introduce defendant’s statement. At trial, defense counsel was able to present evidence that Ramsanany had claimed the credit for possessing the Taurus pistol and throwing it under the van. And, defendant was able to persuade his friend Adan Gil to testify that a person he knew as “Harlem” was the one who had thrown the Taurus. The statement that defendant made to the police—that someone named “Billy” or “Bills” was the culprit—would have served only to contradict Ramsanany’s statement and Gil’s testimony. And, the introduction of 55 defendant’s statement might have opened the door for the People to introduce the testimony defendant gave at the Settles hearing.21 Defense counsel apparently recognized how damaging the cross-examination was and wisely decided to keep any mention of defendant’s phony statement to the police out of the jury’s scrutiny. 21 At the Settles hearing, defendant claimed that during the early morning hours of June 8, 2011, he was in front of 2650 Marion Avenue, hanging out with friends (MB: P. 76). A group of seven people, including Steven Ramsanany, were nearby playing dice (MB: P. 76). Five others were watching the game from the sidelines (MB: P. 76). Defendant, who had a previous felony conviction for selling crack, was on parole at the time (MB: P. 81). During the dice game, a player named Tyreek smacked Ramsanany. After the game, “Steve was just venting,” saying ‘I’m gonna kill him” (MB: P. 77-78). “Steve” walked off, and returned less than ten minutes later. He had nothing in his hand. Defendant, though, assumed that “Steve” had gone to get a pistol. When the police officers drove by, defendant was still in front of 2650 Marion Avenue. He was standing in the street, between parked cars (MB: P. 78, 91-92). Ramsanany, who was on the sidewalk, threw something under a car and walked up the block. Defendant saw Ramsanany throw something and heard it drop, but did not know that it was a gun. Detectives rolled past and then backed up. They jumped out at defendant (MB: P. 79, 91-92). The detectives had defendant put his hands on the car. Defendant told them that the BB gun was his (MB: P. 79). Defendant never had a 9 mm pistol (MB: P. 90). Defendant did not know there was also a real gun under the car because he did not know that Ramsanany had thrown a gun (MB: P. 79). Before the grand jury, defendant testified that the person with the real gun was named “Bills” (MB: P. 84). At the time, defendant did not know “Bills’” real name. Defendant learned that “Bills” was Ramsanany only as the case went on (MB: P. 84). Defendant could not recall when, after he was arrested, he first spoke to Ramsanany (MB: P. 85). During the first year after defendant was arrested, he did not want to talk to Ramsanany because he was upset (MB: P. 88). Whenever defendant saw Ramsanany he would not say anything (MB: P. 87). As time went on, defendant heard that Ramsanany felt bad about what had happened and, when defendant learned that he had an investigator working on his case, he thought Ramsanany should speak to the investigator (MB: P. 87-88). In August of the prior year, defendant ran into Ramsanany on the way to the train and said that Ramsanany should meet with his investigator (MB: P. 89). “[O]ff the bat [Ramsanany] said okay” (MB: P. 89) Defendant saw DeLoren one day while waiting for court and had a conversation with him (MD: P. 93). Also at the Settles hearing, DeLoren testified that at some point after defendant was arrested, DeLoren ran into defendant at the courthouse (ED: P. 30). DeLoren was there on an unrelated matter, and defendant called out to him from the line. Defendant was friendly. DeLoren asked defendant why he was there, and DeLoren thought he said something about a marijuana case. DeLoren asked about the gun case, and defendant said, “So you didn’t hear?” It’s going to get dismissed.” “I got somebody to take responsibility for the gun” (ED: P. 30-31). 56 In the end, although defense strategy was not able to overcome all the evidence, a standard which neither the federal nor state constitutions demands of defense attorneys, counsel skilfully convinced a jury to acquit defendant of two of the three counts contained in the indictment. The “most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness.” People v. Baldi, 54 NY2d 137, 146 (1981). Counsel enlisted an investigator to work on defendant’s behalf, and succeeded in obtaining the court’s permission to present evidence of someone else’s confession to possessing the gun. He thoroughly cross-examined the People’s witnesses, and raised serious concerns about DeLoren’s credibility. In summary, defendant’s single complaint regarding counsel’s alleged ineffectiveness is meritless, and counsel provided meaningful representation. 57 CONCLUSION The judgment of conviction should be affirmed. Respectfully Submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent GINA MIGNOLA EMILY ANNE ALDRIDGE Assistant District Attorneys Of Counsel JANUARY 2017 58 PRINTING SPECIFICATIONS STATEMENT This brief was prepared on a Microsoft Word processing system, in Times New Roman typeface, font size 14, and footnote font size 12. It contains 13,951 words as counted by the Microsoft Word counting system.