The People, Respondent,v.Mark Boyd, Appellant.BriefN.Y.March 20, 2018 MARIANNE KARAS Attorney at Law 980 Broadway Suite 324 Thornwood, New York 10594 (914) 434-5935 October 6, 2017 John P. Asiello Chief Clerk and Legal Counsel to the Court The New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Mark Boyd APL-2017-00171 Dear Mr. Asiello: I submit this letter pursuant to Section 500.11 Rules of Practice on behalf of appellant, Mr. Mark Boyd. Appellant’s primary contention is that the trial court abused its discretion as a matter of law when it dismissed the non-inclusive count of unlawful possession of an air pistol and submitted only charges that pertained to the possession of a 9 millimeter Taurus pistol, taking away appellant’s defense—that he had the air pistol and that a third party had the Taurus—from the jury’s proper consideration. Under the circumstances, where at a Settles hearing the trial court ruled to admit into evidence the third party’s statement against penal interest, thereby necessarily finding that the third-party defense would not confuse the straightforward issue herein and/or mislead the jury, see People v. DiPippo, 27 N.Y.3d 127 (2016), and where taking away the only issue in the case from the jury’s proper consideration—did appellant have one gun, the BB gun, or did he have two—served to confuse the jury as evinced by its notes, by its questions during the deliberations and by its verdict. Appellant, having maintained from the time of his arrest through the trial that he had one gun, the BB gun but only the BB gun, certainly didn’t have zero guns. The jury should have been allowed to decide the issue that had been the crux of this trial through the People’s case, through the defense and through the rebuttal without the game playing in which the People chose to engage at trial. The Facts Appellant went to trial accused of the unlawful possession of an air pistol, or BB gun, and charges of criminal possession of a weapon relating to a 9 millimeter Taurus pistol. At his arrest, appellant told the police that the BB gun was his, he had thrown it under a parked vehicle when the police approached, but that the Taurus pistol was not, someone else had been in possession of that weapon. He presented this third-party culpability defense at trial. It was the issue at trial and appellant’s sole defense. A Settles hearing was held. Retired NYPD Homicide Task Force Detective, John Bruno, testified for the defense that, hired by the defense herein, he had conducted an interview with Steve Ramsanany who admitted that he, not Mr. Boyd, had been in possession of the Taurus pistol. The trial court ruled to allow the defense to introduce Ramsanany’s statement at trial and, with the defendant’s consent, allowed the People to introduce evidence that Ramsanany allegedly recanted the statement when approached by the detective on this case, Detective DeLoren and two of his partners. At trial, the jury heard that Retired Detective Bruno had been working as a private investigator since 1985, did not know what type of gun was involved herein before interviewing Steve Ramsanany, that appellant was not present during the interview, and that Bruno told Ramsanany that any admission that he possessed a gun could get him arrested. Ramsanany told Bruno that he had been playing dice with people in front of 2650 Marion Avenue when a dispute arose between himself and another player and that Ramsanany left and returned with a 9 millimeter Taurus semiautomatic gun, but that when an unmarked police car approached, he threw it under a car parked in front of 2650 Marion Avenue. Ramsanany stated that he saw Mark Boyd throw the BB gun under the car. As the police approached, Ramsanany left. The jury also heard testimony from Adan Gil who had been present at the same dice game. Gil told the jury that a dispute had broken out between two men, one of whom was a man Gil knew only as “Harlem.” Gil testified that Harlem left but soon returned with a brown gun with a handle sticking out of his waistband. Gil testified that when the police arrived, he saw Harlem throw the gun under a parked, white vehicle. The jury had already heard from the People’s witnesses. Though the prosecution called four witnesses, only one, Detective DeLoren gave testimony that, if believed, would establish appellant’s guilt of any gun possession. DeLoren testified that he saw appellant with two guns (T. 647-650, 653, 671). Two guns—one in each hand—and even distinctively heard “two clinks hitting the ground” as appellant threw the two guns (T. 651-653, 677-678). Either a properly charged jury believed him or it did not. DeLoren’s partner, Detective Tessitore, candidly testified that DeLoren had told him to stop the car because he saw a man with “a gun” (T. 624-625). He was very clear that he never saw appellant holding any guns as he was driving (T. 628, 636). The 9 millimeter Taurus was loaded and found to be operable, a fact not disputed at trial. The air pistol was also found to be operable. The People’s Detective DeLoren told the jury that he did not request that the guns be tested for fingerprints or for DNA because that is only done when the police are trying to solve a crime; according to the officer it was not necessary here (T. 660-661, 686-687). Having told this outright and obvious lie, DeLoren testified for the People on rebuttal. He told the jury that he and Tessitore and yet a third detective sought out Steve Ramsanany and confronted him on the street about his statement to Investigator Bruno. According to DeLoren, Ramsanany “put his head down and sighed heavily;” according to DeLoren, Ramsanany admitted that his statement was a “fake” and that Mark Boyd had said Ramsanany wouldn’t have to testify and wouldn’t get in trouble; according to DeLoren, Ramsanany told him he only made the statement because he was afraid of Mark Boyd (T. 798-799). DeLoren testified, “I think it’s pretty well understood why someone would be afraid of him [Mark Boyd]. I arrested him for being in possession of two firearms.” (T. 831). DeLoren told the jury that if, in fact, Ramsanany had stood by his written statement admitting to possession of the Taurus pistol at issue herein, the three detectives surrounding him would not have had the authority to arrest Ramsanany (T. 832). DeLoren made no notes about any of this and the other two officers were not called to testify as to the alleged interaction. It’s not surprising that the People had reservations about the veracity and believability of their sole witness. At the end of the case, the prosecution decided it did not want the jury to be able to choose whether to credit the defense—appellant had one gun, or to credit DeLoren—appellant had two guns. The People moved to dismiss the air pistol count in an attempt to leave the jury to decide whether to convict appellant of possessing a gun or whether to acquit him outright, despite the fact that he had admitted possession of a weapon. Though defense counsel objected and argued that “the jury should be allowed to consider that. I object to dismissing it” (T. 857), the trial court granted the People’s motion and dismissed the count of unlawful possession of the air pistol to which appellant had always accepted responsibility. It should be noted that as argued and as accepted by the Appellate Division, First Department, the issue is preserved as a matter of law. People v. Boyd, _ A.D.3d _ (1 st Dept. 2017). The trial court submitted three counts for the jury’s determination, criminal possession of a weapon in the second degree (Penal Law 265.03[3]), criminal possession of a weapon in the third degree (Penal Law 265.02[1]), and criminal possession of a weapon in the third degree (Penal Law 265.02[5][ii]). In its first note, the jury requested a readback of Bruno’s testimony regarding his conversation with Ramsanany. Twenty five minutes later, the jury asked that it be allowed to examine the “two active firearms.” Approximately two hours later, the jury requested “another reading from you [the court] on what the three counts entail—and how they are different.” Thus, notwithstanding that all of the counts in the trial court’s charge referred to the Taurus and despite that it had so stated in the charge, the jury asked for both the pistols and for a recharge on the counts. The court recharged the jury on the three counts but—now apparently less concerned with confusing the jury—inexplicitly refused the defense request to charge the jury that all three charges referred to the Taurus pistol. Left with no way to make the right and fair decision, the jury compromised. It acquitted appellant of the top charge of criminal possession of a weapon in the second degree (Penal Law 265.03[3]) despite that if the jury believed the shady DeLoren, appellant was guilty of this charge. It acquitted appellant of the second charge of criminal possession of a weapon in the third degree (Penal Law 265.02[1]) despite that if the jury somehow believed DeLoren, appellant was guilty of this charge. It convicted appellant criminal possession of a weapon in the third degree (Penal Law 265.02[5][ii]). This was the compromise verdict that resulted from the utter confusion facing a jury who heard direct testimony, a defense, and rebuttal testimony on one case—did appellant have one gun or two—and was made to decide a different case—did appellant have one gun or zero guns. Analysis The trial court abused its discretion when it dismissed the count of unlawful possession of an air pistol, submitting only the charges relating to the possession of the Taurus pistol, removing appellant’s only defense from proper consideration—that he only possessed the air pistol—at the eleventh hour. Submission of the air pistol charge, like all of the evidence and testimony about the air pistol, would not have confused the jury. Letting the entire trial be about an air pistol and a 9 millimeter Taurus, (neither of which was dusted for fingerprints or analyzed for DNA because the police don’t do that where they already have a suspect), and then taking the air pistol out of the case confused the jury and took the away its ability to fairly decide the case on the evidence that it had heard. A trial court’s discretion under Criminal Procedure Law Section 300.30(2) is not unfettered. People v. Leon, 7 N.Y.3d 109 (2006). The trial court is not supposed to use its power to give the prosecution some sort of strategic advantage. A criminal trial is not a game. The People conducted this trial like they were playing a game of Statego and the lower court let them do it. In exercising its discretion, the trial court was supposed to “weigh competing possibilities: Would the submission of the … count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?” People v. Leon, supra (emphasis added). We know without any doubt what happened here. This was not a complicated case. This was not a case where the number of counts or the complexity of the indictment required selectivity of the counts by the court in order to avoid placing an unduly heavy burden upon the jury in its consideration of the case. Criminal Procedure Law Section 300.40(6)(a)(b). Moreover, appellant was in no way looking for jury nullification or a compromise verdict. He admitted he had the BB gun. If anything, it was the prosecution that was looking for jury nullification hoping that because appellant had admitted to committing a crime (the BB gun), if the jury was given no choice but to convict of something or nothing at all, they would convict of something and that is exactly what happened. The jury acquitted on the first count—the count that appellant would have been guilty of had the jury believed the testimony of the People’s Detective DeLoren. The jury acquitted on the second count. They only convicted on the third count because they weren’t allowed to fairly find that appellant was guilty of having a BB gun. If a defendant is not entitled to a chance at jury nullification, nor then is the prosecution. It cannot seriously be disputed that by taking away the opportunity to believe the defense and convict appellant of the charge that he admitted committing affected the jury’s deliberations. See People v. Boettcher, 69 N.Y.2d 174 (1987). The jury convicted appellant of a crime that made no sense under either the People’s version or the defense because it was not given the fair opportunity to convict him of the crime of which he was guilty. The lower court abused its discretion as a matter of law and appellant is entitled to have his conviction set aside. People v. Extale, 18 N.Y.3d 690 (2012). Under Criminal Procedure Law Section 300.40(7) every count not submitted to the jury is deemed to have been dismissed by the court and double jeopardy has attached. Because this case cannot be fairly retried by a jury that is allowed to consider whether appellant possessed just the BB gun, the judgement must be reversed and the case must be dismissed. Against this backdrop, appellant asks that this Court consider the compounding errors as raised in appellant’s briefs to the intermediate court. At trial, after recognizing appellant’s right to present a defense of third-party culpability such that it properly allowed the jury to hear and consider that a third party, Steve Ramsanany, confessed to the very crime that appellant was charged with committing, the lower court not only refused to properly charge the jury on the charges as argued above but also precluded other relevant evidence offered by appellant in support of his defense. Specifically, despite the People’s Detective DeLoren’s assertion to the jury that Ramsanany told him that he had only admitted to possessing the Taurus pistol because he was afraid of Mark Boyd and the detective’s testimony that Ramsanany was obviously afraid of Mark Boyd because Boyd had been arrested with two guns, and despite that the People would argue to the jury in summation that the defense had failed to produce Ramsanany and that its failure left unanswered questions, the defense was precluded from countering with the facts: Ramsanany was in federal custody charged with being in possession of an AK47 and trying to sell the same to federal undercover agents. This issue is preserved as a matter of law by virtue of defense counsel’s repeated requests and objections and by virtue of the trial court’s unfair rulings thereon. Appellant asks that this Court consider the matter herein. Defense counsel argued to the trial court that DeLoren’s testimony was going to be that Ramsanany was afraid of appellant and that, in response, “I’m trying to show this person who is, who is selling an AK47 is less likely to be afraid of Mark Boyd” and that it “is hardly likely that he would be able afraid [sic] of the defendant based upon this selling of an AK47. That person is not afraid of Mark Boyd. This jury should be aware of that.” (T. 708-709). The People argued that it was just an allegation at this point and that it was not relevant to the detective’s testimony (T. 709). The county court denied the defendant’s request to bring the matter before the jury, holding that it would allow the jury to speculate (T. 709-710). Defense counsel noted his strenuous exception (T. 710). After DeLoren’s rebuttal, counsel for the defense renewed his request concerning the fact that Ramsanany was in federal custody for trying to sell an AK47 to an undercover officer (T. 820-821). The defense argued that DeLoren testified that Ramsanany gave the statement because he was afraid of appellant and that the defense should be allowed to ask him if he was aware that Ramsanany had pending charges for trying to sell an AK 47 to an undercover officer (T. 821). The court below adhered to its decision to prevent the jury from considering the testimony that would strongly refute the detective’s contention that Ramsanany was afraid of appellant (T. 821). The jury here was indeed encouraged to speculate, however. It was invited by the prosecution, who knew the facts where the jury did not, to speculate on the reason for Ramsanany’s absence. It was also denied a proper avenue by which it could assess the credibility of DeLoren’s claims that Ramsanany told him he was afraid of appellant and the believability of appellant’s defense that Ramsanany, not appellant, had the pistol. The Federal and State Constitutions guarantee a criminal defendant the meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683 (1986); People v. Carroll, 95 N.Y.2d 375 (2000) and this this right is recognized as fundamental to a fair trial. U.S. Const. Amend. VI; N.Y. Const. Art. I, Section 6, Davis v. Alaska, 415 U.S. 308 (1974); People v. Chin, 67 N.Y. 2d 22 (1986); People v. Gissindanner, 48 N.Y.2d 543, 548 (1979). By its improper rulings, the trial court closed every avenue by which the defense could properly and meaningfully have brought his full and fair defense before the jury. It allowed the People to use improper evidence to counter the defense, to give its unsavory a witness a shield behind which to hide his lies, while denying the defense any means of rebuttal, i.e., the incontrovertible truth. In a similar vein, as argued to the intermediate appellate court, the misconduct of the prosecutor herein deprived appellant of his constitutional rights under the Federal and State constitutions. In assessing whether a conviction will be overturned by reason of prosecutorial misconduct, the question is whether the misconduct deprived the defendant of a fair trial. The answer here is yes. In a case where the issue was third party culpability, the People were permitted to argue that the defense failed to produce Ramsanany, suggesting that the defense bore some burden; they embraced wholly fabricated testimony of their police detective who maintained that the police do not fingerprint or conduct DNA testing when the perpetrator is in custody and that the police detectives would not have had the authority to arrest Ramsanany had he not recanted his admission of guilt; they were allowed to elicit hearsay evidence from the more-than-questionable DeLoren to the effect that Ramsanany said he was afraid of Mark Boyd. In a closely contested case, they treated the trial like a game to be won, asking to dismiss a charge to the jury that the prosecutor conceded the defense was entitled to. Thus, despite that the prosecutor knew full well exactly where Ramsanany was and fought tooth and nail to preclude the defense from adducing the truth, he actually argued to the jury that the defense did not produce Ramsanany and suggested that the defense did not do so because it had something to hide. In his summation, the prosecutor called Ramsanany the person that the prosecution wasn’t able to cross-examine (T. 887-888). He told the jury to consider “all the questions that he [the prosecutor] doesn’t have the answers to” (T. 888-889). The prosecutor told the jury that the “Silence is deafening” (T. 888-889). That he made this argument under these circumstances is galling. Moreover, by arguing that the defense did not produce the witness, the prosecution improperly shifted the burden of proof. Yet, defense counsel’s objections were overruled by the trial court (T. 890). Recognizing the problem but nevertheless refusing to rectify it, the trial court stated that eventually the jury would get a charge about the defendant not having any burden of proof (T. 890). The error, preserved for this Court’s review as a matter of law by defense counsel’s immediate objection, Criminal Procedure Law Section 470.05(2), is all the more prejudicial because the trial court overruled the objection. People v. Ashwal, 39 N.Y.2d 105 (1976). This case was not fairly tried. Ramsanany was in Federal custody, accused of selling AK 47s to undercover agents. That’s why he wasn’t available at trial. That’s also why it’s improbable that he was really more afraid of Mark Boyd than he was of the three police detectives who surrounded him. The People desperately did not want the jury to know this. They certainly had no right to suggest that the defense should have “found” this witness for the People to cross-examine. Unfortunately, in the face of the People’s contentions at trial that appellant’s third party culpability defense was a recent fabrication, the jury also did not hear that appellant had maintained this very thing from the time of his arrest when he told the officers that someone else had possessed the Taurus. As argued below, that defense counsel failed to argue this, amounted the ineffective assistance of counsel under the circumstances. The question for the jury at trial, the question that was litigated at this trial, was whether appellant possessed two guns, a firearm loaded and operable, capable of firing bullets, in addition to a BB gun, or whether, as appellant claimed from the outset, he possessed only the BB gun while the other gun had been unlawfully possessed by a third-party who admitted to the same. If the People did not have faith in the believability of their witness Detective DeLoren, (as well they should not), who said that appellant had two guns, they had absolutely no business putting him on the witness stand. Appellant was never looking to avoid conviction for his possession of the BB gun. He admitted to possessing it from the very outset and the defense conceded the matter to the jury; he wasn’t looking for mercy or for a compromise. He was looking for the jury to properly consider the case—did appellant have one gun, just the BB, or did he have two? He certainly didn’t have zero guns. The prosecutor actually conceded that if the defense wanted to BB gun charge submitted to the jury, they were entitled to it (T. 702). Nevertheless, when he saw an opening, the prosecutor pushed to have the charge dismissed. This was a trial, not some game to be won. The trial court’s errors and the prosecutor’s conduct deprived appellant the fundamental right to have the jury fairly consider the factual issues herein and the resultant judgement must be reversed and the case dismissed. People Extale, supra. Appellant relies on the arguments made herein and specifically reserves and incorporates by reference all of the arguments made in his briefs to the Appellate Division; on this basis appellant respectfully asks that the Court reverse his conviction as a matter of law and dismiss the case against him. Respectfully submitted, Marianne Karas Attorney for Defendant