The People, Respondent,v.Mark Boyd, Appellant.BriefN.Y.Mar 20, 20181 OFFICE OF THE DISTRICT ATTORNEY, Bronx County DARCEL D. CLARK 198 East 161st Street (718) 838-7091 District Attorney Bronx, New York 10451 Fax 590-6523 November 8, 2017 The Honorable Judges of the Court of Appeals Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Mark Boyd APL-2017-00171 Your Honors: The People submit this letter in opposition to defendant’s submission in the above-referenced appeal, the merits of which this Court has designated for summary review under Rule 500.11 of the Court’s Rules of Practice. PRELIMINARY STATEMENT By permission of the Honorable Rolando Acosta, Justice of the Appellate Division, First Department (hereinafter “Appellate Division”), defendant appeals from an order of the Appellate Division rendered on June 13, 2017, which affirmed, by a three justice majority, a judgment of the Supreme Court, Bronx County (Alvarado, J), convicting defendant Mark Boyd, after a jury trial, of Criminal Possession of a Weapon in the Third Degree (Penal Law §265.02), and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from two to four years. Defendant completed his prison term and is currently at liberty subject to community supervision. 3fs ■.0 •1625- (S3 2 Defendant claims that the trial court abused its discretion when it dismissed the non-inclusive count of possession of an air pistol. He also alleges that the court issued erroneous evidentiary rulings, that the prosecutor violated his due process rights, and that he received ineffective assistance of counsel. The Appellate Division correctly rejected defendant’s claims. STATEMENT OF FACTS THE TRIAL The People’s Case On June 8, 2011, Detectives Angelo Tessitore and Ellis DeLoren of the Bronx Robbery Squad were in an unmarked car, with Tessitore driving and DeLor- en in the front passenger seat, canvassing for a suspect in a pattern robbery investi- gation (AT: T. 620, 623-24; ED: T. 646, 648).0F1 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. The area was well-lit by the street lights, and DeLoren saw the handguns without ob- struction. DeLoren excitedly told Tessitore to “Stop, stop, stop … gun, gun, guy has a gun, back up, back up.” Defendant turned, made a throwing motion under a white van that was parked on the street, and started to walk away. DeLoren heard the sound of two clinks hitting the ground (ED: T. 625, 650-52, 653, 664, 677-80, 687). The detectives exited their car, and they each went around a different side of the van. Defendant was on the sidewalk by the van. He was about ten to twelve feet from where he had thrown the guns. There was no one else in the immediate vicinity in the street or on the sidewalk. Two guns were under the van, about a 1 Page notations prefixed “T.” refer to the trial. 3 foot and a half apart. One of the guns was a loaded and operable Taurus semi- automatic pistol. The ammunition in the gun was also operable. The second gun was a BB gun. The ammunition in the BB gun was operable as well (AT: T. 626- 27; ED: T. 652, 654-55, 665, 677, 679, 683; CS: T. 582, 583, 585-86, 595; FC: T. 603-06). Neither DeLoren nor Tessitore requested fingerprint or DNA testing. De- Loren 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 because the detective had seen defendant holding the guns in his hands (AT: T. 642; ED: T. 661; see also CS: T. 599-600). The Defense John Bruno was retired from the New York Police Department’s Manhattan Homicide Task Force and received his private investigator’s license in 1985. He was hired by defense counsel. Defendant asked Bruno to speak to someone named “Steve.” Bruno learned the man’s last name when he subsequently met with Ste- ven Ramsanany on August 7, 2012, at defendant’s apartment. Before Bruno inter- viewed Ramsanany, Bruno asked defendant to leave the apartment. Bruno under- stood that Ramsanany was going to tell him that Ramsanany, and not defendant, had possessed the Taurus. Bruno warned that making such a statement could result in Ramsanany’s arrest, but Ramsanany wanted to proceed (JB: T. at 712-14, 718, 722, 741-43, 746, 750). Ramsanany told Bruno that, on the night in question, Ramsanany was play- ing dice with a group of people in front of 2650 Marion Avenue. A dispute arose between Ramsanany and another player, who slapped Ramsanany. Ramsanany left and returned with a 9 mm Taurus semiautomatic gun. When he saw an unmarked police car approach, he threw the pistol underneath a parked car. Ramsanany saw defendant throw a BB gun under the car. Then, as the police approached, 4 Ramsanany left. Ramsanany maintained that he had not been promised anything in exchange for making this statement. Bruno wrote out Ramsanany’s statement, and Ramsanany signed it. When the interview was over, Ramsanany stayed behind in defendant’s apartment. Defendant was waiting outside the building (JB: T. 718- 20, 747-48). Defendant’s friend Adan Gil testified that, at 1:00 a.m. on June 8, 2011, de- fendant was sitting on a stoop around 2654 Marion Avenue. People were playing dice, and an argument began. A man Gil knew as “Harlem” was smacked. 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. Gil heard the police, and Harlem threw the gun under a white vehicle. Gil did not know what defendant was doing at that time. Earlier that day, defendant had shown him a BB gun (AG: T. 769, 771-75, 783). Although Gil and defendant had spoken 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 (AG: T. 783-86). The People’s Rebuttal The prosecutor who was handling the case asked Detective DeLoren to in- terview Ramsanany. On March 3, 2013, DeLoren, in the presence of the other de- tectives, asked Ramsanany about the statement Ramsanany had signed. 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 prom- ised 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 5 said that he was afraid of defendant. 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 (ED: T. 831).1F2 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 (ED: T. 795-96, 798-99, 802, 826, 833, 831). Verdict The court submitted the following charges to the jury: Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and Criminal Posses- sion of a Weapon in the Third Degree (two counts)(Penal Law §§ 265.02, [ii]). The jurors acquitted defendant of the top count weapons charge as well as one count of third-degree weapons possession, and found defendant guilty of one count third-degree weapons possession (Penal Law § 265.02) (possession of a firearm after previously having been convicted of a crime). DEFENDANT’S APPEAL TO THE APPELLATE DIVISION On appeal before the Appellate Division, First Department, defendant argued that the conviction was against the weight of the evidence, that the trial court issued erroneous evidentiary rulings, that the prosecutor committed misconduct, that the court erred in granting the People’s request to dismiss the noninclusory, misdemeanor pellet gun charge, and that trial counsel was ineffective. In response, the People asserted that there was ample proof that defendant possessed the Taurus, that the evidentiary rulings were appropriate and defendant’s claims were unpreserved, that defendant’s complaint about the prosecutor’s conduct were meritless and largely unpreserved, that the court’s decision to grant 2 Under the circumstances, DeLoren did not believe that he had the authority to arrest Ramsanany. 6 the People’s request to dismiss the pellet gun charge was a proper exercise of discretion, and that counsel ably and effective assisted defendant. The Appellate Division considered and rejected all of defendant’s arguments and affirmed the judgment of the Supreme Court, Bronx County. People v. Boyd, 152 AD3d 53 (1st Dept. 2017). The First Department primarily focused on the dismissal of the pellet gun charge, finding: The court providently dismissed the air pistol charge so that the jury could not compromise by resorting to jury nullification and mere- ly find defendant guilty of that less serious charge. Instead, the jury was given an opportunity to resolve any credibility issues related to the possession of the Taurus pistol. Had the jurors believed defend- ant’s theory of the case that he did not possess the Taurus pistol and disbelieved the People’s witnesses, they could have easily acquitted defendant of all charges related to the Taurus pistol. Since the count of criminal possession of an air pistol was totally unrelated to the weapon charges, it could only confuse the jurors or permit jury nulli- fication during jury deliberations. Stated another way, defendant was not prejudiced by the dis- missal of the air pistol count. Once the People presented their case concerning the possessory counts of the Taurus pistol, defendant’s theory of the case that he did not possess the firearm was considered by the jury. Clearly, if the jurors determined that defendant only pos- sessed the BB gun, they could return a complete acquittal. Nor is it correct to state, as does the dissent, that dismissal of the air pistol count “removed defendant’s only defense from consideration.” The fallacy of this argument is that the charge of criminal possession of an air pistol, a misdemeanor, is a distinct and completely separate crime and, thus, cannot serve as a defense to the charge of possession of the 9 millimeter pistol. It would appear that the only reason to give both counts to the jury is to allow the jury to exercise mercy, or a compro- mise, to find defendant guilty only of criminal possession of the air pistol. Once again, no defendant is entitled to jury nullification. Fur- ther, defendant’s defense that he did not possess the Taurus pistol was considered, and rejected, by the jury. The jury’s finding defendant guilty of possession of the Taurus pistol count was based on the evi- dence presented by the People, including the credibility of their wit- nesses, and not for the reason that the air pistol count was dismissed. 7 Id. at 57. The court ruled that defendant’s other arguments were “either unpre- served or meritless.” Id. at 54. Justice Rolando Acosta, joined by Justice Ellen Gesmer, dissented, arguing that the trial court abused its discretion in granting the People’s application to dismiss the count relating to the air pistol. Id. at 62-67. The dissent did not address any of defendant’s remaining arguments. ARGUMENT The First Department properly held that the trial court’s decision to grant the People’s request to dismiss the noninclusory misdemeanor pellet gun charge was a proper exercise of discretion. Defendant contends that, in addition to the second and third-degree felony weapons charges that pertained to the Taurus handgun, the trial court should also have submitted to the jury a lesser, non-inclusory count that applied only to the air pistol. In affirming the conviction, the majority of First Department justices correctly concluded that the trial court’s decision not to submit the air pistol charge was a proper exercise of discretion. 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 dis- miss all charges other than the misdemeanor pellet gun count. The prosecutor re- 8 quested 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 dis- miss the air pistol charge. Court: Defense wish to be heard? 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 pos- session of a weapon is dismissed. (T. 857). In any event, the trial court properly exercised its discretion when, after hearing the arguments of the parties at the charge conference, and weighing and balancing the relevant considerations, the court granted the People’s application to dismiss the misdemeanor air pistol charge. Because the pellet gun charge was noninclusory, its submission to the jury was “not mandatory.” People v. Leon, 7 NY3d 109, 113 (2006). Indeed, under Criminal Procedure Law Section 300.40(6)(a), whether to dismiss the pellet gun count was a decision that was entrusted to the sound discretion of the trial court. People v. Extale, 18 NY3d 690, 692 (2012). A discretionary determination is re- viewable by this Court only for an abuse of discretion. See Leon, 7 NY3d at 113; People v. Williams, 56 NY2d 236, 239 (1982); People v. Duncan, 46 NY2d 74, 80 (1978). Of course, a defendant’s “burden to demonstrate” that the trial court abused its discretion “is a substantial one.” People v.Mahboubian, 74 NY2d 174, 9 183 (1989). Notably, in “determining whether a trial judge has abused his discre- tion as a matter of law, the question is not whether the course pursued by the trial judge was the best course to take, but whether it was a rational or justifiable course to take.” People v. Mendola, 2 NY2d 270, 277 (1957). In the end, this Court is empowered to review only whether the particular exercise of discretion was “so egregious or so arbitrary and unreasonable under the circumstances involved as to constitute an abuse of discretion as a matter of law.” See Karger, The Powers of the New York Court of Appeals (rev. 3rd ed. 2005). §21.7. Of course, in exercising its discretion, a trial court must “weigh competing possibilities” and assess whether the “submission of the less serious charge would 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 pro- vide a distraction or an opportunity to split the difference.” Id. Here, as the Appellate Division majority correctly concluded, the trial court’s decision to dismiss the noninclusory misdemeanor pellet gun charge en- joyed ample record support and was well within the proper bounds of the court’s discretion. Indeed, the trial court was right conclude, as it did, that under the circum- stances here, the submission of the lesser count would encourage the jurors “to split the difference” or open the door to jury nullification. As the First Department correctly observed: “[d]efendant, in asking for the submission of the less serious charge, was obviously hoping that he could avoid conviction on the more se- rious one” [Leon, 7 NY3d at 113–114]. Defendant hoped that a jury otherwise prepared to convict him for criminal possession of a weap- on in the second or third degree might—“perhaps in an exercise of mercy, or a compromise”—convict him on the unlawful possession of an air pistol instead. However, as the Court of Appeals explained in 10 Leon, “defendant was not entitled to a chance at jury nullification” [7 NY3d at 114, citing People v. Goetz, 73 NY2d 751 (1988)] (nullifica- tion “is not a legally sanctioned function of the jury and should not be encouraged by the court”), cert. denied [489 US 105 (1989)]. Boyd, 152 AD3d at 56. Defendant claims that the trial court took away his defense, and left the jury with the choice to convict defendant of possessing the Taurus or acquit him out- right. As noted by the First Department, “the charge of criminal possession of an air pistol, a misdemeanor, is a distinct and completely separate crime and, thus, cannot serve as a defense to the charge of possession of the 9 millimeter pistol.” Id. at 57. Either defendant possessed one Taurus 9mm pistol or no Taurus pistol. That is what the jury had to decide. Thus, rather than have defendant’s possession of a BB gun serve as a unnecessary “distraction” or as a platform for improper jury nul- lification, the court’s decision to dismiss the non-inclusory misdemeanor charge allowed the jury “to focus its deliberative energies on whether the People had proven beyond a reasonable doubt the elements of the counts relating to the Taurus pistol.” Id. Furthermore, “[h]ad the jurors believed defendant's theory of the case that he did not possess the Taurus pistol and disbelieved the People's witnesses, they could have easily acquitted defendant of all charges related to the Taurus pis- tol.” Id. To argue that Bronx jurors would not return a complete acquittal if they felt that the People had not proven the elements of the firearms offenses shows a significant underestimation of Bronx jurors’ deliberative abilities. 11 The fact that the jurors acquitted defendant of the top weapons counts does not suggest, as defendant contends, that they were utterly confused.2F3 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, misde- meanor pellet gun charges was, under the circumstances here, a proper exercise of discretion.3F4 The People’s complete response to defendant’s arguments regarding 3 Defendant, for the first time, now complains that it was wrong for the trial court to recharge the jury on the three counts that pertained to the Taurus pistol and later denied defendant’s request specifically to tell the jury that the three charges pertained only to the Taurus pistol (Defendant’s SSM letter, unnumbered page 7). Defendant did not raise this issue before the Appellate Divi- sion, and should not be reviewed for the first time by this Court. Defendant’s fact-based com- plaint is also belied by the record. After the court charged the jury, defense counsel requested clarification that “loaded firearm” referred to the Taurus, and not to the BB gun. The court stat- ed it would clarify that all three courts referred to the Taurus, and expressly instructed the jury, “the charges being submitted for your consideration refer, ladies and gentlemen, to the .9-mm semi Taurus; they do not refer in any way to the BB gun” (Charge: 943-46). When the jury later requested to see the “firearms,” the court explained, “I need you to clarify your request. The BB gun does not qualify under the definition of firearm. BB gun is a BB gun, not a firearm” (Charge: 951). Still later, when the jury requested to hear the charges again, counsel had “no problem with [the court] re-reading it” (Charge: 945). When counsel requested that the court again instruct the jury that “firearm” refers to the Taurus and not the BB gun, the court stated, “I did give that request specifically. When I gave the request there were several nods in the affirm- ative from the jurors. I don’t believe it’s a question now so I decline to give that instruction now” (Charge: 962-63). The jury asked no further questions. 4 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 (defendant’s SSM letter, unnumbered p. 10). See Extale, 18 NY3d at 696. 12 the dismissal of the pellet gun charge can be found on pages 42-48 of our First De- partment Respondent’s brief. Defendant’s remaining arguments are either unpreserved or meritless. Defendant also asks this Court to consider other supposed errors that defendant raised in his Appellate Division brief (defendant’s SSM letter, unnumbered p. 10). We will briefly address each of these matters in turn. A. Ramsanany’s Arrest Defendant argues that the trial court precluded evidence that Ramsanany had been arrested for possessing an AK47. Defendant sought to elicit evidence of Ramsanany’s arrest to counter DeLoren’s testimony that Ramsanany had recanted his statement that he was the one who had possessed the Taurus pistol and that Ramsanany explained to DeLoren that he made the false admission only because he was afraid of defendant. First, as the Appellate Division noted, defense counsel consented to the admission of testimony regarding Ramsanany’s recantation.4F5 Boyd, 152 AD3d at 59. Furthermore, even without defendant’s consent, the recantation “was properly admitted, since it would be misleading to admit only hearsay evidence of the initial inculpatory statement. Moreover, defense counsel was able to cross-examine DeLoren and elicit facts to undermine his claims regarding Ramsanany's recantation.” Id. It is worth noting that the statement that counsel wished to 5 Defendant’s current claim that the prosecutor was erroneously “allowed to elicit hearsay testi- mony” from DeLoren about the fact that Ramsanany said he was afraid of defendant (defend- ant’s SSM letter, unnumbered page 14) ignores the fact that defense counsel consented to the admission of Ramsanany’s recantation. Rather than an overreach by an unscrupulous prosecutor, “the issue was waived by defense counsel’s consent to the admission of that evidence in the event that he introduced Ramsanany’s initial inculpatory statement.” Boyd, 152 AD3d at 59. This was, simply, not something that the People were unjustly “allowed” to do. Further argu- ment regarding the court’s admission of Ramsanany’s recantation can be found on pages 21-25 of the Respondent’s brief. 13 counter, regarding Ramsanany’s fear of defendant (“I arrested Mr. Boyd for being in possession of two firearms. I think it’s pretty well understood why somebody would be afraid”), was elicited not by the prosecutor, but by defense counsel on his cross-examination of Detective DeLoren (T. 831). Against this backdrop, the court was right to preclude the defense from eliciting evidence of Ramsanany’s arrest. Plainly, a criminal defendant has a constitutional right to a meaningful op- portunity 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 proba- tive value is outweighed by the prospect of trial delay, undue prejudice to the op- posing party, confusing the issues or misleading the jury.” Id. at 135-36 (internal quotations and citations omitted). Thus, like most evidentiary decisions, this was a determination that was subject to the sound discretion of the trial court and is re- viewable by this Court only for an abuse of discretion. There was certainly no abuse of discretion here. After all, 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. As noted by the First Department, “the court correctly excluded that evidence because Ramsanany had not been convicted of any crime, and ‘the mere fact of an arrest is not a permitted area for impeachment’” (citing People v. Randolph, 122 A.D.3d 522, 522 [1st Dept. 2014], lv. denied ). Boyd, 152 AD3d at 59. And, in fact, the 14 proposed line of questioning about Ramsanany’s arrest would have invited the jury to speculate impermissibly (see People’s Appellate Division Brief, pages 25-28). B. Prosecutor’s Conduct Defendant claims that the prosecutor argued in summation that defendant did not produce Ramsanany at the trial, thereby impermissibly shifting the burden of proof (see defendant’s SSM letter, unnumbered p. 14-15). Before the trial court, however, defendant lodged no objection to many of the remarks he now finds so offensive and “galling” (Defendant’s SSM letter, unnumbered p. 15). Consequent- ly, as the Appellate Division correctly concluded, defendant’s current complaint is unpreserved for review by this Court as a question of law. Boyd, 152 AD3d at 61. Moreover, the prosecutor’s comments were entirely proper. 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 state- ment 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 relia- bility 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 pos- sessing 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 15 thrown a BB gun under the van (T. 888-89).5F6 The prosecutor highlighted factors that suggested that Ramsanany’s statement to the defense investigator were unreli- able. Indeed, as long as the prosecutor “adhere[s] to the trial evidence,” he may “employ[ ] a certain rhetorical flourish.” Wright, 25 NY3d 769, 784 (2015). 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. Regarding the one protest counsel did lodge, the First Department explained, Further, when the prosecutor commented that Ramsanany had said that defendant had told him he would not have to testify, and in fact, he did not testify, defense counsel objected. The court overruled the objection, but it instructed the jury that it would later deliver “a full charge [that] the defendant does not have to prove anything.” The prosecutor’s comment, either standing alone or combined with the other comments defendant cites, did not amount to conduct so perva- sive and egregious that it deprived defendant of a fair trial (see People v. D'Alessandro, 184 AD2d 114, 118–119 [1st Dept. 1992], lv. denied 81 NY2d 884  ). Moreover, the court reminded the jury that the defense did not have to prove anything, alleviating any prejudice to the defense. Boyd, 152 AD3d 53 at 61. In sum, contrary to defendant’s largely unpreserved complaint, the prosecutor’s summation was proper and fair in all respects, as ar- gued on pages 38-42 in the People’s Respondent’s brief. Defendant’s remaining claims regarding the prosecutor also ring hollow. Defendant, for the first time, complains that the prosecutor wrongly “embraced” what the defense characterizes as “wholly fabricated testimony” that a) the police do not conduct fingerprint or DNA testing “when the perpetrator is in custody,” 6 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 the wit- ness 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 and b) that police detectives would not have had the authority to arrest Ramsanany “had he not recanted his admission of guilt” (defendant’s SSM letter, unnumbered page 14). The record does not support defendant’s unpreserved complaint of im- propriety. First, DeLoren correctly explained that, in his view, 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 de- cision not to have the weapon tested for fingerprints or DNA suggests that he be- lieved 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, “[t]here is no merit to defendant's contention that the court did not allow DeLoren to be fully questioned regarding his authority to arrest Ramsanany for his purported possession of the Taurus pistol if he did not recant his prior admission. Defense counsel was able to ask a number of questions on the topic and there is no indication that the court unfairly limited his inquiry.” Boyd, 152 AD3d at 59–60. C. Ineffective Assistance of Counsel Lastly, defendant complains that he received ineffective assistance of coun- sel due to his attorney’s failure, “in the face of the People’s contentions at trial that [defendant’s] third party culpability defense was a recent fabrication,” to seek to admit defendant’s post-arrest statement to the police that he had possessed the BB gun, but not the Taurus (defendant’s SSM letter, unnumbered page 15-16). Noteably, defendant never brought a post-conviction motion alleging that there were failures on his lawyer’s part. Consequently, defendant’s current appel- late complaint cannot be fairly reviewed. As aptly explained by the First Depart- ment: 17 [W]e find that this ineffective assistance claim is unreviewable on di- rect appeal because counsel may have had strategic reasons for his conduct that are not apparent from the trial record (see People v Love, 57 NY2d 998 ). For example, admission of the statement might have opened the door to admission of more of defendant's testimony at the Settles hearing, which includes references to his criminal record. Defendant had also named someone named “Billy” or “Bills” as hav- ing the Taurus gun, and thus his prior statement would have served only to contradict Ramsanany’s statement that he possessed the gun and Gil’s testimony that someone named “Harlem” had the gun, and would not have rebutted the contention that they had recently fabricat- ed their statements. Boyd, 152 AD3d at 61. In any event, the existing record makes it clear that the claim has no merit. The First Department continued, As an alternative holding, we reject defendant’s ineffective assistance claim on the merits (see People v Benevento, 91 NY2d 708, 713-714 ; see also Strickland v Washington, 466 US 668 ). Even if defense counsel asked to introduce evidence of defendant’s state- ment as a prior consistent statement to rebut a charge of recent fabri- cation, it had little chance of success. While a witness’s own prior consistent statement may be admitted, we note that defendant did not testify and thus could not be cross-examined (see People v McDaniel, 81 NY2d 10, 18  [prior consistent statements may be admitted because “it would be unjust to permit a party to suggest that a witness . . . is fabricating a story without allowing the opponent to demon- strate that the witness had spoken similarly even before the alleged in- centive to falsify arose”]). Accordingly, defense counsel would have had to successfully argue that he could elicit evidence of that state- ment through Detective DeLoren’s testimony. It should be noted that DeLoren had failed to make a complete written report as to what de- fendant told him. In sum, this error, standing alone, based on the trial record, does not warrant a finding of ineffective assistance. Id. at 61–62. Further, it was never the People’s position that this defense was a recent fab- rication. Rather, the People challenged that the statements by Ramsanany and de- 18 fendant’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, evi- dence 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. The People’s full argument addressing this point can be found in our First Department Respondent’s brief, pages 48-56. CONCLUSION In sum, for the reasons discussed herein, as well as those set forth in the People’s Appellate Division Brief,6F7 this Court should either dismiss the appeal or affirm the order of the Appellate Division affirming the judgment of conviction. Respectfully submitted, ____________________ Emily Anne Aldridge Assistant District Attorney Appeals Bureau Cc: Marianne Karas, Esq. 980 Broadway, Suite 324 Thornwood, NY 10594 7 The People reserve and incorporate by reference all of the arguments made in our Respondent’s brief to the Appellate Division. 19 PRINTING SPECIFICATIONS STATEMENT This letter was prepared in Microsoft Word, using 14-point Times New Roman font, and totaled 5,612 words.