The People, Respondent,v.Mark Boyd, Appellant.BriefN.Y.Mar 20, 2018 1 Submitted by: Marianne Karas Bronx County Ind. No. 2069/2011 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Mark Boyd, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - x REPLY BRIEF FOR DEFENDANT-APPELLANT Marianne Karas Attorney for Defendant-Appellant Mariannekaras7@aol.com 980 Broadway Suite 324 Thornwood, New York 10594 (914) 434-5935 2 ARGUMENT POINT ONE THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN, OVER OBJECTION BY THE DEFENSE, IT GRANTED THE PEOPLE’S IMPROPER REQUEST TO DISMISS THE CONSECUTIVE COUNT OF UNLAWFUL POSSESSION OF AN AIR PISTOL OR RIFLE, THUS TAKING AWAY THAT COUNT FOR THE JURY’S PROPER CONSIDERATION (replying to Respondent’s Brief, Point IV, pp. 42-48). The question for the jury at 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, appellant possessed only the BB gun while the other gun had been unlawfully possessed by a third-party who admitted to the same. The trial court erred as a matter of law when it took this question of fact away from the jury over objection. At the close of the People’s case, the trial court asked the prosecutor whether he intended to seek a “paring down” of the indictment (T. 701-702). The prosecutor asked defense counsel if he would be requesting that the charge for the possession of the BB gun be submitted to the jury; the prosecutor stated that if the defense wanted the charge submitted they would certainly get it and asked counsel, “if you want it, let me know” (T. 702). Inexplicably, however, the prosecution subsequently moved to dismiss the air pistol count and the 3 defense objected; the defense stated that “the jury should be allowed to consider that. I object to dismissing it.” (T. 857). The trial court stated, “People have the option at this point in time to make that application. And it is not a lesser included, so I don’t see there is any legal reason for the Court to include it with the lesser included, and were you to object I would deny it, but it is not. Granted, unlawful possession of a weapon is dismissed” (T. 857). The court granted the People’s application and dismissed the charge. In doing so, it erred as a matter of law. As Respondent aptly recognizes, by its ruling, the trial court suggested that it failed to realize that the prosecution did not have the unilateral power to dismiss a count over the defendant’s objection. People Extale, 18 N.Y.3d 690 (2012). It’s misapprehension of the basic law is error that deprived appellant of his Federal and State constitutional rights to the due process of law and to a fair trial. The count should not have been dismissed over the objection of the defense. People Extale, supra. As to the preservation of this claim, the prosecutor’s statement that the defendant should get the count if he wanted it, alerted the trial court to the fact that it could not properly dismiss the count over the defense’s objection; moreover, the trial court ruled that were defense counsel to 4 object, it would deny it (T. 702, 857). Of course, too, in terms of preservation, it’s not what a party argues but rather what a trial court rules on. Criminal Procedure Law Section 470.05(1); See e.g. People v. Nieves, 67 N.Y.2d 125 (1986); People v. LaFontaine, 92 N.Y.2d 470 (1998); People v. Concepcion, 17 N.Y.3d 192 (2011); People v. Washington, 82 A.D.3d 570 (1 st Dept. 2011). Here, this Court should review the issue as a matter of law. In any event, at trial, the People certainly knew that the court had no right to dismiss the count but nonetheless chose to knowingly take advantage of the improper ruling in order to “win”. Whether appellant was guilty of possessing the second gun, as the People’s shady witness claimed, or whether he had only the BB gun, a fact he candidly conceded from the outset, was the entire crux of the trial. The interest of justice is served herein by having this Court consider the matter. As to the error itself, the dismissal of the BB gun charge was patently improper. Respondent’s reliance on Leon is misplaced; the seminal case of Leon supports appellant’s claim. People v. Leon, 7 N.Y.3d 109 (2006). Leon holds that a trial court must “weigh competing possibilities: Would the submission of the … count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?” People 5 v. Leon, supra (emphasis added). This was not a complicated case. In fact, the trial court’s ruling refusing to allow the jury to consider the case as it was presented is the only thing that complicated the case and gave the jury the opportunity to split the difference. Contrary to Respondent’s arguments, 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. Asking the jury to properly decide the issue before it without playing games is not jury nullification. To the contrary, it was the prosecution 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. Though Respondent argues that the fact that the jury acquitted appellant of the top two charges, charges he would have been guilty of had the People believed the People’s version, somehow does not suggest that the jury did not believe the People’s witness. To the contrary, the jury acquitted on 6 the first count—the count that appellant would have been guilty of had the jury believed the testimony of the People’s Detective DeLoren. It acquitted on the second count. It only convicted on the third count because it wasn’t allowed to fairly find that appellant was guilty of having a BB gun. It cannot seriously be disputed that by taking away the opportunity to believe the defense and convict appellant of the charge that he admitted committing affected the jury’s deliberations. See People v. Boettcher, 69 N.Y.2d 174 (1987). The jury convicted of a crime that made no sense under either the People’s version or the defense because they were not given the fair opportunity to convict him of the crime of which he was guilty. To avoid dismissal Respondent would have this Court find that notwithstanding all of the prosecutor’s arguments, defense counsel’s objections to taking the question away from the trier of fact, the trial court’s improper rulings and the insufficient charge, there is no issue for this Court’s consideration as a matter of law. To the contrary, defense counsel stated that “the jury should be allowed to consider that [the BB gun charge]. I object to dismissing it.” (T. 857). The trial court’s improper ruling to refuse to allow this crucial question of fact to go to the jury for its consideration is thus preserved as a matter of law. As appellant argued in his main brief, the People did not 7 have faith in the believability of their own witness who said that he saw appellant with two guns, one in each hand, one a semi-automatic and one an air pistol, and they had absolutely no business putting him on the witness stand. The failure to properly charge the jury at trial, not some game to be won, 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 must be dismissed. People Extale, supra. POINT TWO APPELLANT WAS DEPRIVED OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A THIRD-PARTY CLUPABILITY DEFENSE AS A MATTER OF LAW WHEN THE TRIAL COURT ALLOWED THE PEOPLE TO ARGUE THAT THE THIRD PARTY ONLY ADMITTED TO THE GUN POSSSESSION BECAUSE HE WAS AFRAID OF APPELLANT WHILE REFUSING TO ALLOW THE JURY TO HEAR THAT THE THIRD PARTY WAS IN FEDERAL CUSTODY FOR HAVING SOLD AN AK-47 TO AN UNDERCOVER FEDERAL AGENT (replying to Respondent’s Brief, Point II, pp. 21-34). Detective DeLoren was allowed to tell the jury at trial that Ramsananny was obviously afraid of appellant because the detective had arrested appellant for possessing two weapons herein. At the same time, the defense was not permitted to counter with the fact that Ramsananny was in Federal custody for possessing and trying to sell an AK-47. There is no level on which that can be justified. Appellant was denied any meaningful opportunity to present a complete third-party culpability defense under the State and 8 Federal Constitutions as a matter of law. The trial court ruled, over numerous objections to disallow the relevant evidence concerning Ramsananny’s arrest and incarceration on Federal charges of selling AK-47s to undercover federal officers despite that the probative value of this uncontroverted fact outweighed any “prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury.” People v. DiPippo, _ N.Y.3d _ (2016); 2016 Slip Op. 02279; People v. Primo, 96 N.Y.2d 351 (2001). What misled the jury was the trial court’s refusal to allow the jury to hear that the person who confessed to possessing the semi-automatic at issue herein had subsequently been arrested for and was being held on charges of trying to sell an AK-47. This fact made the third party more likely to have had the semi-automatic and less likely to have confessed because he is afraid of appellant as the People still would have us believe. Notwithstanding Respondent’s contentions to the contrary, as with any evidence, the answer to the possibility that the introduction of this evidence might have led the jury to “speculate” was properly cured by an instructing the jury not to speculate, not by keeping the jury entirely in the dark while allowing the People to argue that the witness was ever so afraid of appellant and was not at all afraid of the New York City police 9 detectives who surrounded him on the street when he allegedly recanted. That Ramsananny had not yet been convicted also did not bar the admission of this evidence. First, the trial court did not preclude the evidence on this basis. Moreover, certainly, the People could have argued that the arrest on the serious gun possession charges did not prove that Ramsannany was guilty while allowing the defense to argue that Ramsannany probably was not all that afraid of appellant but was more than likely quite afraid of the police. Again, DeLoren told the jury that Ramsannany was afraid of appellant because of the arrest—not conviction—herein. Ramsannany’s arrest for possession and attempted sale of an AK-47 was probative and its preclusion allowed the People and Detective DeLoren to mislead the jury at trial. POINT THREE APPELLANT’S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE; BECAUSE THE JURY WAS NOT IN THE BEST POSITION TO DECIDE THE CASE, THIS COURT SHOULD REVERSE APPELLANT’S CONVICTION AS A MATTER OF LAW AND IN THE INTEREST OF JUSTICE AND DISMISS THE INDICTMENT (replying to Respondent’s Brief, Point I, pp. 12-21). Respondent’s entire argument on appeal, like the People’s case at trial, depends in total on the credibility of Detective DeLoren. Detective DeLoren lied. The jury wasn’t completely in the best position to know this. Even so, it didn’t believe him. 10 If the jury believed DeLoren, they had to find appellant guilty of possessing a loaded and operable firearm. They did not. Respondent suggests that the jury convicted appellant of the lowest possible count, not because it did not believe DeLoren, buy out of sympathy or mercy. The jury was instructed not to allow sympathy to enter the determination and it is presumed to have followed the instruction. At trial DeLoren testified that he saw appellant with two guns including the loaded, operable semi-automatic. The jury acquitted appellant of the charge of possessing a loaded and operable semi-automatic. Its conviction on the lesser included was the result of its being improperly put in the untenable position of not having the crime appellant admitted to committing to choose from in rendering its verdict. It’s hardly surprising that the jury did not credit DeLoren. DeLoren lied—badly. He tried to sell jurors the notion that DNA and fingerprint testing is only done when the police are trying to solve a crime—not when they just needed evidence to prove it. He tried to sell jurors the notion that when he and two other officers surrounded Ramsanany on the street and elicited a recantation of his statement confessing to possessing the real gun, Ramsannany recanted, not because he was afraid of the officers, but because he was afraid of Mark Boyd. He tried to sell jurors 11 the notion that the three officers surrounding Ramsannay did not “have the power” to arrest Ramsannay if he had admitted to the crime and would merely have let him go on his merry way. He tried to sell jurors the story that Ramsannay, who we know is a gun runner in Federal prison for trying to sell AK-47s, called the detective on his personal cell phone, wringing his hands over whether or not the detective was going to tell Mark Boyd, who we know has a prior felony for a low level drug offense and no history of violence or gun possession, that he had recanted. He tried to sell the jury the story that he had absolutely no records whatsoever that would corroborate these incoming calls and that this was a most natural thing in the world. DeLoren lied. He lied on the witness stand about things we know are lies. Then there is the fact that there was no corroboration of things that would have been easy to corroborate. No phone records corroborated DeLoren. No DNA testing or fingerprints corroborated DeLoren 1 . No testimony by the two other officers to the supposed recantation corroborated DeLoren. Because DeLoren lied. Against this backdrop, Respondent contends that this Court 1 Respondent’s contention that the defense should have ordered the tests is specious. Of course, the defense bore no burden. Moreover, the detective’s explanation, patently false, points to why the jury didn’t credit him, why the People didn’t want to risk having the jury properly decide the BB gun count, and why this Court should dismiss this matter. 12 should not substitute themselves for the jury and must pay great deference to the jury’s opportunity to view the witnesses, hear the testimony and observe the demeanor. The jury didn’t believe DeLoren and they didn’t know the half of it. The jury didn’t believe DeLoren and it didn’t get to hear that Ramsanany is in Federal custody for trying to sell an AK 47 to an undercover officer making DeLoren’s assertion that Ramsananny was afraid of appellant, not the police, even more incredible. The jury didn’t believe DeLoren and it didn’t get to consider appellant’s post-arrest statement—that he had the BB gun but not the semi-automatic—to properly rebut the People’s claim of recent fabrication. The prosecution went to the jury with the only “evidence” they had—DeLoren. Then, not trusting that the jury would believe DeLoren when he said that appellant had two guns, including the loaded and operable firearm, they took the question away from the jury and dismissed the charge covering the BB gun. Under the truly egregious circumstances presented in this case, appellant asks that this Court set aside the verdict. POINT FOUR THE PROSECUTOR’S IMPROPER COMMENTS IN SUMMATION WHICH SHIFTED THE BURDEN OF PROOF AND DENIED APPELLANT THE DUE PROCESS OF LAW ARE PRESERVED FOR REVIEW BY THIS COURT AS A MATTER OF LAW (replying to Respondent’s Brief, Point III, pp. 34-42). Respondent’s brief adds nothing to appellant’s 13 contentions insofar as the prosecutor did use testimony so suspect that he did not have the gun checked for fingerprints or DNA, did not call the other officers who ostensibly witnessed the circumstances of the recantation, and did not want the jury to fully and fairly consider the questions of fact, requesting that the BB gun charge be dismissed, like he was playing a game of Stratego instead of representing the People of the State of New York. He did snidely suggest that the investigator went out, “At the direction of our good counsel, Mr. Fisher, correct?” (T. 737)(emphasis added) and insinuated that the investigator was being paid by the defense for his testimony (T. 741-742), despite that anyone involved in the court system knows there is nothing improper about any of this. With respect to the prosecutor’s misconduct in summation, however, Respondent’s brief is misleading. Respondent maintains that the matter is not preserved (Respondent’s brief, p. 39). This is not the case. Defense counsel’s objections to the prosecutor’s comments that shifted the burden of proof with respect to the non-production of Ramsananny 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). 14 Respondent’s contention is incorrect. The error is preserved for this Court’s review as a matter of law by defense counsel’s immediate objection, Criminal Procedure Law Section 470.05(2). The lower court over-ruled defense counsel’s objection, legitimizing the improper arguments and greatly enhancing the strong likelihood of prejudice to appellant. People v. Ashwal, 39 N.Y.2d 105 (1976); People v. Broady, 5 N.Y.2d 500 (1959). In 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). The improperly commenting on Ramsananny’s absence, the People shifted the burden of proof, suggested that the defense was remiss or was hiding something, and suggested that the jury draw an inference adverse to the defense from Ramsannay’s absence. The impropriety is even more egregious because the prosecutor, unlike the jury, knew exactly where Ramsananny was. He was in the Government’s custody. If the prosecutor had really wanted to ask all those questions, he certainly could have done so. Instead, he strategically prevented the jury form hearing where Ramsananny was and then asked the jury, “Where, oh where 15 could he be?” He certainly was not holed up someplace quaking in fear of appellant. He was in jail for selling AK-47s to Federal agents as the prosecutor well knew. To pretend otherwise was unseemly. POINT FIVE APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE IS ENTITLED (replying to Respondent’s Brief, Point V, pp. 48-56). As Respondent concedes, a single error may qualify as ineffective assistance of counsel. People v. Caban, 5 N.Y.3d 143 (2005). Respondent is also correct insofar as the prosecution at trial did not broadcast to the defense that its response to defendant’s claim of third-party culpability was that it was a recent fabrication. That certainly would have clued defense counsel in to the fact that appellant’s post-arrest statement was admissible to rebut the same. In fact, however, the People’s position at trial was that Ramsananny’s admission that he possessed the semi-automatic was a fabrication, made after appellant’s arrest (a recent fabrication, if you will), such that appellant’s statement immediately upon his arrest was admissible at trial. Defense counsel failed to perceive that the statement, which could only help appellant as it wholly supported his defense that he only had the BB gun, not the .9 millimeter, that he had said as much immediately, and that he had told the police 16 to check for fingerprints, was admissible under the hearsay exception to rebut the People’s claim that Ramsanany’s confession and indeed appellant’s whole defense was a recent fabrication. See People v. Buie, 86 N.Y.2d 501 (1995)( a 911 tape though hearsay, an out-of-court statement admitted for the truth of the matter asserted, can be admissible nonetheless to rebut a claim of recent fabrication); People v. McDaniel, 81 N.Y.2d 10 (1993). Defense counsel’s failure to request that the jury hear the statement, had no legitimate strategic purpose; it constituted ineffective assistance of counsel on the record before this Court under the totality of the circumstances of this case. Here, improperly tasked with presenting a defense in an atmosphere where every ruling was made for the prosecution, defense counsel made a fatal error when he failed to request that appellant’s statement to the police upon his arrest be admitted to rebut the People’s claim of recent fabrication. Under these specific circumstances, counsel’s performance fell below the required standard and a reversal is mandated. 17 CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE REVERSED AND THE CASE DISMISSED AS A MATTER OF LAW AND IN THE INTEREST OF JUSTICE; IN THE ALTERNATIVE APPELLANT SHOULD BE AFFORDED A NEW TRIAL. Dated: Thornwood, New York January 2017 Respectfully submitted, MARIANNE KARAS Attorney for Defendant-Appellant 980 Broadway Suite 324 Thornwood, New York 10594 (914) 434-5935 18 CERTIFICATE OF COMPLIANCE The brief for appellant is printed in Courier New, double spaced. The footnote is in Times New Roman. The font size is 12. The word count is 3,658.