The People, Respondent,v.Everett B. McMillan, Appellant.BriefN.Y.March 29, 2017To be argued by A. ALEXANDER DONN (15 minutes) · Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Respondent, -against - EVERETI B. MCMILLAN, Defendant- Appellant. REPLY BRIEF FOR DEFENDANT ~APPELLANT September 7, 2016 LYNN W. L. FAHEY A. ALEXANDER DONN Attorneys for Defendant-Appellant I ll John Street, 9th Floor New York, N.Y. 10038 T: (2 12) 693-0085 F: (212) 693-0878 APL-2015-00304 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT ..................................................................... ! SUPPLEMENTAL STATEMENT OF FACTS ............................................. ! ARGUMENT POINT I THE SEARCH OF APPELLANT'S CAR BY AN NYPD DETECTLVE WAS_ NOT A LAWFUL PAROLE SEARCH BECAUSE IT WAS NOT AUTHORIZED BY THE CONDITIONS OF APPELLANT'S RELEASE TO PAROLE, AND THE PEOPLE'S ALTERNATIVE ARGUMENT AGAINST SUPPRESSION IS UNPRESERVED AND UNMERITORIOUS ............................ 3 POINT II COUNSEL'S ARGUMENT REGARDING THE TRIAL COURT'S BATSON/KERN RULING WAS PRESERVED FOR APPEAL, AND THE COURT ERRED IN DETERMINING THAT COUNSEL'S REASON FOR STRIKING Jo.Y. WAS PRETEXTUAL ....... 15 CONCLUSION ............................................................................................. 19 1 TABLE OF AUTHORITIES CASES God's Battilion of Prayer Pentecostal Church, Inc. v. Miele Associates, LLP, 6 N.Y.3d 371 (2006) ........................................ 6 Hernandez v. New York, 500 U.S. 352 (1991) ............................................. 16 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995) ............ 6 Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42 (1956) ................................... 6 People v. Carey, 29 N.Y.2d 302 (1971) .......................................................... 6 People v. Chisholm, 21 N.Y:3d 990 (2013) .................................................. 13 People v. Dodt, 61 N.Y.2d 408 (1984) ...................................................... 5,10 People v. Edwards, 95 N.Y.2d 486 (2000) .............................................. 12-13 People v. Hecker, 15 N.Y.3d 625 (2010) ................................................. 16-18 People v. Hetrick, 80 N.Y.2d 344 (1992) ..................................................... 14 People v. Huntley, 43 N.Y.2d 175 (1977) ................................................ 6-7, 9 People v. Jackson, 46 N.Y.2d 171 (1978) ....................................................... 7 People v. James, 99 N.Y.2d 264 (2002) ........................................................ 15 People v. Johnson, 64 N.Y.2d 617 (1984) ................................................ 5, 10 People v. Johnson, 66 N.Y.2d 398 (1985) .............................................. 13, 14 People v. Ketcham, 93 N.Y.2d 416 (1999) ................................................... 13 People v. Parris, 83 N.Y.2d 342 (1994) ....................................... .4, 10, 13, 14 11 People v. Payne, 88 N.Y.2d 172 (1996) ........................................................ 16 Samson v. California, 547 U.S. 843 (2006) ................................................. 7-8 United States v. Knights, 534 U.S. 112 (2001) ............................................ 7-8 STATUTES Criminal Procedure Law§ 470.05 .......................................................... 10, 16 1ll PRELIMINARY STATEMENT This Reply Brief is submitted in accordance with the Court's enlargement of time until September 8, 2016, to file the brief. SUPPLEMENTAL STATEMENT OF FACTS During a colloquy before the suppression hearing, the following exchange took place: THE COURT: This is a Huntley Mapp? [THE PROSECUTOR]: Yes, your Honor. Judge, . . . the defendant is currently on parole. This entire matter arose out of a parole warrant, and ... the hearing is moot because while being on parole he actually waived his Fourth Amendment [r]ights to search his residence and his personal property including his vehicle where the gun was recovered. So . . . the defendant has no standing, and I would like to start from that point. Otherwise, I intend to call the parole officer to whom he signed away his rights once he is on parole, and then otherwise call the detective who actually found it. [DEFENSE COUNSEL]: He was not taken into custody by the parole officer. [THE PROSECUTOR]: No, your Honor, by the joint team of parole with the warrant squad responding with a parole warrant for I believe some 14 odd violations. I have turned over a copy of the certified copy of the parole warrant that the detective had that day so the only thing this case emerges from is a parole violation. 1 THE COURT: Okay. We will go forward with the hearing, and the basis for the search as you say was a parole warrant, we will litigate that (A 8-9; emphasis added). The "CERTIFICATE OF RELEASE TO PAROLE SUPERVISION'' (henceforth "Certificate of Release") signed by appellant states: I, [appellant], voluntarily accept Parole supervision. I fully understand that my person, residence, and property are subject to search and inspection. I understand that Parole supervision is defined by these Conditions of Release and all other conditions that may be imposed on me by the Board or its representatives. I understand that my violation of these conditions may result in the revocation of my release (A 80; emphasis added). Immediately below this paragraph is the heading "CONDITIONS OF RELEASE," followed by eleven enumerated conditions of release and seven additional "Special Conditions" (A 80). The fourth enumerated condition states, in relevant part: "4. I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property" (A 80; emphasis added). During defense counsel's direct examination of Timothy Settles at the suppression hearing, Settles testified that the police officer with whom he interacted outside appellant's house did not ask him "any questions" about "whether he was in a car with [appellant]," whether appellant "was showing [him] 2 a gun," or whether he had been "texting [his] mother" to say that appellant "had a gun" (A 55-56). ARGUMENT POINT I THE SEARCH OF APPELLANT'S CAR BY AN NYPD DETECTIVE WAS NOT A LAWFUL PAROLE SEARCH BECAUSE IT WAS NOT AUTHORIZED BY THE CONDITIONS OF APPELLANT'S RELEASE TO PAROLE, AND THE PEOPLE'S ALTERNATIVE ARGUMENT AGAINST SUPPRESSION IS UNPRESERVED AND UNMERITORIOUS. Appellant argues that the search of his car by an NYPD detective was not a lawful parole search because the conditions of his release authorized only searches by his own parole officer and this Court has held that the parole search exception to the warrant requirement applies to searches ''undertaken by the parolee's own parole officer." People v. Huntley, 43 N.Y.2d 175, 179, 181 (1977) (emphasis added). The People's response depends on an impossible interpretation of the conditions of appellant's release to parole, ignores this Court's Huntley decision in favor of two inapplicable Supreme Court cases, and advances an unpreserved and meritless alternative probable cause argument against suppression. At the outset, the People advance - for the first time - a bizarre and obviously incorrect interpretation of appellant's Certificate of Release. The People concede that the specific search condition imposed on appellant was that he "will 3 permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment and [he] will permit the search and inspection of [his] person, residence and property," and they do not dispute that this condition "pertain[s] solely to visits by his parole officer" (Resp. Br. at 46). Nonetheless, they claim that the Certificate of Release contains a "second, independent search provision" that is "unrestricted" and "not limited to parole officers or to any specific purpose" (Resp. Br. at 46), which is inconsistent with common sense and the plain meaning of the Certificate of Release. Because this dramatic misinterpretation of appellant's parole conditions is central to the People's argument that the search was reasonable (see Resp. Br. at 2, 8, 10, 18, 28, 42, 46, 55, 56, 57), that argument is untenable. ' First, this Court cannot consider the People's present argument regarding the scope of the Certificate of Release because they did not make this argument to the hearing court. When they moved the Certificate of Release into evidence at the hearing in an effort to establish that Detective Herlihy "could search," the People specifically directed Herlihy to review "[p ]aragraph four," which authorizes searches only by appellant's own parole officer (A 43-44). They did not claim, at that point, that the Certificate of Release contained another "unrestricted" search provision, so they cannot do so now. People v. Parris, 83 N.Y.2d 342, 351 (1994); 4 Therefore, the People's interpretation violates the fundamental principle of contract interpretation that "require[ s] [courts] to adopt an interpretation which gives meaning to every provision of a contract." Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 46 (1956) (emphasis added); accord God's Battilion of Prayer Pentecostal Church, Inc. v. Miele Associates, LLP, 6 N.Y.3d 371, 374 (2006) ("A contract 'should be read to give effect to all its provisions'" (quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995))); People v. Carey, 29 N.Y.2d 302, 308 (1971) ("[A] court should not 'adopt an interpretation' which will operate to leave a 'provision of a contract * * * without force and effect"' (quoting Musak Corp., 1 N.Y.2d at 46)). Simply put, the People cannot defend the search of appellant's car on the ground that he consented to it. The People's misinterpretation of the parole conditions document at the center of this case was clearly an effort to circumvent this Court's decisions establishing that only one person can conduct a warrantless parolee search: the parolee's own parole officer (App. Br. at 19-25). To be clear, in their entire brief, the People do not discuss, let alone distinguish, this Court's clear holding in Huntley that the parole exception to the warrant requirement applies only to searches "undertaken by the parolee's own parole officer" and that the legal standard for evaluating the reasonableness of the search of a parolee by a police 6 officer is "the familiar requirement of a showing of probable cause." Huntley, 43 N.Y.2d at 179, 181 (emphasis added; quoted in App. Br. at 3-4, 19, 21-24).1 Instead, the People rely on two federal cases that are easily distinguishable and, in any event, have no bearing on this Court's interpretation of the New York constitution (App. Br. at 30). Over and over again, the People claim that the parole search of appellant's car was lawful because Samson v. California, 547 U.S. 843 (2006), and United States v. Knights, 534 U.S. 112 (2001), upheld more intrusive searches (Resp. Br. at 7-8, 11, 29, 43-50, 51-57, 62-63). But Samson and Knights merely stand for the proposition that the search of a parolee or probationer by a police officer is not unconstitutional, under federal law, if the parolee or probationer has consented to be searched by a police officer. Samson, 547 U.S. at 846; Knights, 534 U.S. at 114. In appellant's case, unlike Samson and Knights, the challenged search exceeded the scope of the defendant's consent, making the search unreasonable and, therefore, unconstitutional. The relevant parole condition in Samson stated that the defendant would be "subject to search or seizure by a parole officer or other peace officer," 547 U.S. at 846 (emphasis added), and the probation In a single, dismissive sentence that apparently concerns Huntley's additional requirement that the search be related to a parole purpose, the People assert, "To the extent dicta in these cases [Huntley and People v. Jackson, 46 N.Y.2d 171 (1978)] could be read to limit the type of search here, it has been superceded in the Fourth Amendment context by the Supreme Court's later decisions in Knights and Samson" (Resp. Br. at 51). As discussed post, this is simply incorrect. 7 condition at issue in Knights provided that the defendant would be subject to search "by any probation officer or law enforcement officer." 534 U.S. at 114 (emphasis added). The searches in those cases were conducted in accordance with the relevant provisions and, therefore, were held to have been reasonable. Samson, 547 U.S. at 846; Knights, 534 U.S. at 114. Here, in contrast, the search of appellant's car was not authorized by the terms of the relevant parole condition, which permitted only searches by "my Parole Officer" (A 80). Appellant simply did not consent to be searched by other "officers." Therefore, the People are dead-wrong to contend that, somehow, appellant's argument "cannot survive" Samson and Knights (Resp. Br. at 53). Since those cases concerned the consent given by parolees in different jurisdictions to different search conditions, they are inapposite. If New York had wanted to mirror those jurisdictions' parole conditions, it could have done so in appellant's Certificate of Release. But it did not. In yet another effort avoid the real legal issue presented in this case, the People repeatedly cite appellant's criminal record and parole violations as a factor contributing to the lawfulness of the car search (Resp. Br. at 2, 8, 46, 47, 48 n. 13, 48). But there was no testimony at the hearing regarding appellant's prior convictions or the number of times he had violated parole, let alone any evidence 8 establishing that Detective Herlihy was aware of them.2 Therefore, the People have no basis for arguing that appellant's criminal record and parole violations "undoubtedly heighten[ed] the officers' concerns" (Resp. Br. at 48 n.l3). Finally, the People's contention that appellant's motion to suppress preserved "only a Fourth Amendment claim, not any claim under state law" (Resp. Br. at 30), is contradicted by the record. Defense counsel argued that the issue would be "different" if"it was the parole officer" who had searched appellant's car and that "a search of a parolee's private property, residence or car still has to have some reasonably related circumstance to what's taking place at the time" (A 72-73; emphasis added). These were clear references to the standard of People v. Huntley, 43 N.Y.2d 175 (1977), in which this Court, citing the New York constitution, announced that the search of a parolee by his own parole officer must be "rationally and reasonably related to the performance of his duty as a parole officer" and that searches of parolees by police officers must be supported by probable cause. I d. at 179, 181 (emphasis added). The hearing court's written decision further preserved the issue by citing Huntley twice and quoting from the decision (A 82). Notably, the People did not argue lack of preservation in the Appellate Division, which, in any event, found the issue preserved (A 3-4). Under these circumstances, appellant's argument that the 2 The People's brief cites to the Sandoval hearing, which they included in their Appendix for Respondent (Resp. Br. at 2, 47). 9 search of his car violated the New York constitution is plainly preserved for appellate review. C.P.L. § 470.05(2) (question of law presented when a protest "was registered, by the party claiming error, at the time of such ruling" or "if in re[ s ]ponse to a protest by a party, the court expressly decided the question raised on appeal"). * * * Having failed to rebut appellant's arguments, the People advance a new one, that "regardless of whether [appellant] was a parolee or an ordinary citizen," the police had probable cause to search his car pursuant to the "warrant exception for automobiles" (Resp. Br. at 41 ). However, because this claim "was never advanced before the suppression court," this Court may not consider it. People v. Parris, 83 N.Y.2d 342, 351 (1994); accord People v. Dodt, 61 N.Y.2d 408, 416 (1984); People v. Johnson, 64 N.Y.2d 617, 619 n.2 (1984). The only issue litigated at the suppression hearing in this case was the legality of the search as a parole search. Before the hearing began, the prosecutor argued that a hearing was not even necessary at all because "the only thing this case emerges from is a parole warrant" (A 8; emphasis added).3 After the hearing, 3 In rejecting the prosecutor's argument, the court explicitly told her that "the basis for the search as you say was a parole warrant, we will litigate that," and the prosecutor responded, "Yes" (A 8- 9). The prosecutor did not mention probable cause or any other alternative theory justifying the search (A 8-9). Under these circumstances, the prosecutor not only failed to preserve, but (cont.) 10 defense counsel's argument for suppression of the gun focused entirely on the illegality of the search as a parole search (A 71-74). From the opening of his argument - "The People have made much about the fact that the defendant being a parolee has signed for his parole officer a consent to search" (A 71) - to its conclusion - "[T]he [parole] waiver itself specifically refers to his parole officer, not the police officers" (A 74)- this was the only basis for counsel's suppression motion. In keeping with her earlier argument that the hearing was moot, the prosecutor opposed suppression only on the ground that the search was a lawful parolee search, arguing that, as a parolee, appellant had "waive[ d] all his rights" and that the NYPD detective who searched appellant's car was "acting alongside parole" (A 74). The prosecutor never argued that the search was justified because the police had probable cause to search appellant's car pursuant to the automobile exception to the warrant requirement. 4 Indeed, she never even uttered the words "probable cause" or "automobile exception." The court's decision addressed only the parole search issue. After devoting two lengthy paragraphs to the issue of when the search of a parolee is affirmatively waived the People's present contention that the search as justified by probable cause. 4 The prosecutor referred to the phone call the police had received from appellant's ex-girlfriend only to emphasize that the "[parole] warrant was properly executed" (A 75). 11 unreasonable, the court denied the suppression motion because "not only did the Detective have information from the parole officer that the defendant, who was on parole, had an active parole warrant, he was further informed that that parolee may have a gun in his car" (A 82-83; emphasis added). Obviously, this sentence, which used the word "parole" or "parolee" four times and did not refer to "probable cause," did not constitute a ruling that the police had probable cause to search appellant's car. Accordingly, this Court may not reach the People's unpreserved argument, made for the first time on appeal. In any event, the People's argument that the police had probable cause to search appellant's car because "an identified citizen, [appellant's] ex-girlfriend, had phoned the arresting officer's partner and told him, frantically, that ... [her] son had texted her that [appellant] had a gun with him" (Resp. Br. at 33) is completely meritless. Because, at the time of the call, the caller did not identify herself or her son, both individuals were unknown to the police, who never esta,blished their reliability. Pursuant to the Aguilar-Spinelli test, "a tip from a hearsay informant . . . may not be used" to establish probable cause "unless the source of his knowledge is revealed and the informant is of known reliability." People v. Edwards, 95 12 N.Y.2d 486, 495 (2000) (emphasis added).5 The purpose of this two-part test is to ensure that the police do not conduct an arrest or search on the basis of a tip "born of suspicion or rumor or intentional fabrication." People v. Johnson, 66 N.Y.2d 398, 403 (1985); see also People v. Ketcham, 93 N.Y.2d 416, 420 (1999). For probable cause to be based on an unknown informant's report of another person's alleged statement, i.e., double hearsay, the People must establish that both the informant and his source are reliable. People v. Parris, 83 N.Y.2d 342, 347-48 ( 1994) ("both prongs of the Aguilar test" must be "met at each level"). Here, the People failed to satisfy Aguilar-Spinelli's "reliability" prong at either level because the woman who called Detective Herlihy's partner did not disclose her identity or that of her son, the supposed source of her information. Detective Herlihy explicitly testified that he did not know the woman's name, 6 and he was able to describe her only as "a female caller" who claimed to his partner that she was appellant's girlfriend or ex-girlfriend (A 12, 15). There was no evidence that the woman provided her son's name during the call, that the police had had any prior encounters with him, or that he was a reliable source of 5 The Aguilar-Spinelli test "remains the law ofNew York." People v. Chisholm, 21 N.Y.3d 990, 994 (2013); accord Edwards, 95 N.Y.2d at 495 n.5. 6 While Detective Herlihy had previously given ~ woman his contact information during a visit to appellant's house (A 15), he did not know if it was that woman who had called his partner (A 24). Herlihy had communicated with "several" women in connection with his prior visit to appellant's house, "d[id]n't know how many girlfriends" appellant had, and "c[ould]n't say for certain" which one had spoken with his partner (A 23-24). 13 information. Therefore, contrary to the People's claim that these two unnamed informants were "identified citizens" who were "presumed to be personally reliable" (A 33, 38, 41; emphasis added), the woman was just an unknown "caller" passing along an unsubstantiated, second-hand tip about her ex-boyfriend. See Johnson, 66 N.Y.2d at 403; cf. Parris, 83 N.Y.2d at 349-50; People v. Hetrick, 80 N.Y.2d 344,348-49 (1992). When the police did learn the son's name after encountering him outside appellant's house, they did not even try to confirm the critical information he had supposedly communicated to his mother by asking him whether he had been in a car with appellant earlier that day, whether appellant had shown him a gun, or whether he had sent a text message to his mother saying that appellant had a gun (A 55-56). In fact, at the hearing, he denied sending any text messages to his mother (A 54). Therefore, the People failed to meet their burden to establish that he ever provided information giving them probable cause for a search. See Parris, 83 N.Y.2d at 348 ("[B]are reliance on an unsubstantiated hearsay communication . . . will not suffice for probable cause") (internal quotations and citation omitted; emphasis in original); Johnson, 66 N.Y.2d at 405 (lack of corroboration "by independent police investigation" contributed to finding that "reliability" prong was not satisfied). 14 In sum, the search of appellant's car was not a lawful parole search because it was conducted exclusively by an NYPD detective, rather than appellant's own parole officer. The People's alternative argument against suppression of the gun is completely unpreserved and unmeritorious. Accordingly, for the foregoing reasons and those in appellant's opening brief, this Court should suppress the gun, reverse appellant's conviction of criminal possession of a weapon in the second and third degrees, and dismiss those counts of the indictment. POINT II COUNSEL'S ARGUMENT REGARDING THE TRIAL COURT'S BATSON/KERN RULING WAS PRESERVED FOR APPEAL, AND THE COURT ERRED IN DETERMINING THAT COUNSEL'S REASON FOR STRIKING J.Y. WAS PRETEXTUAL. The People claim that appellant's present challenge to the trial court's pretextuality determination is unpreserved because he "must show that he raised the same specific argument in the trial court as the one raised on appeal" (Resp. Br. at 66). But the only case cited by the People for this proposition, People v. James, 99 N.Y.2d 264, 272 (2002), concerns the entirely unrelated issue of what, if anything, a moving party must do to preserve a Batson/Kern issue for appeal after a trial court "accepts the race neutral reasons given" by the non-moving party.7 7 Emphasizing that "[i]t is incumbent upon the moving party to be clear about any person still claimed to be improperly challenged," the Court held that the moving party must "make a (cont. l 15 Notably, the People do not cite a single case in which the party opposing a successful Baton/Kern application failed to preserve his objection to the court's ruling. Indeed, as the opponent of the People's Batson/Kern motion, appellant's only obligation was to provide race-neutral reasons for the challenged peremptory strikes. See People v. Hecker, 15 N.Y.3d 625, 657 (2010) (non-moving party "overcome[s]" the "inference of discrimination" by "set[ting] forth a race-neutral reason for each of the stricken jurors"); Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (non-moving party must "articulate a race-neutral explanation for striking the jurors in question"). After counsel did so, providing race-neutral reasons for all four of his challenged strikes against Asian prospective jurors, the court accepted counsel's reasons for three of the strikes, but ruled that the fourth, used against Jo. Y., was pretextual. Under these circumstances, counsel's race- neutral explanations and the court's ruling plainly preserved the issue for appeal. See Hecker, 15 N.Y.3d at 657 (Court "examin[ed] ... Supreme Court's pretext determination in light of the reasons placed on the record by defense counsel"); People v. Payne, 88 N.Y.2d 172, 185 (1996) (reviewing trial court's pretext determination); C.P.L. § 470.05(2). specific objection to the exclusion of any juror still claimed to have been the object of discrimination." ld. 16 In maintaining that the trial court properly rejected defense counsel's explanation that he struck Jo.Y. because he "didn't know anything about" her except that she was related to a police officer (A 313), the People rely on the fact that the court itself had "elicited a great deal of information as to each of the prospective jurors," largely through a "detailed questionnaire" (Resp. Br. at 72-73). According to the People, the court's "thorough voir dire" rendered counsel's "lack of knowledge" explanation "suspect from the outset" (Resp. Br. at 73). But the trial court in Hecker also used a preliminary questionnaire to conduct its own questioning of the jurors, and this Court reversed that court's ruling that defense counsel's "lack of knowledge" reason was pretextual. See Hecker, 15 N.Y.3d at 635-36, 657-58. In Hecker, there were 14 questions in the court's two-part questionnaire: the first part concerned the prospective jurors' biographical information, and the second part focused on their "legal backgrounds, contact with the criminal justice system, and prior jury service." Id. at 635. When it held that counsel's explanation for striking the juror in question- that he "kt1ew little to nothing about her" - was a valid, non-pretextual explanation because counsel's "strategy . . . was ... to remove jurors whom either she or both parties did not have time to address," this Court did not even mention the trial court's questionnaire. See Hecker, 15 N.Y.3d at 657-64. Therefore, the People have no basis for relying on the 17 questionnaire in this case as evidence that counsel's race-neutral "lack of knowledge" explanation was pretextual. Finally, in light of the time limitation imposed by the court and the fact that defense counsel exhausted all of his allotted time, the People are wrong to contend that counsel "had ample opportunity" to ask Jo.Y. about her law enforcement connection "if [he had been] concerned about it" (Resp. Br. 76-77). As this Court has made clear, the fact that counsel did not ask Jo.Y. any questions about her law enforcement connection did not indicate that he was biased against her or that he was not legitimately seeking to strike prospective jurors with law enforcement connections. See Hecker, 15 N.Y.3d at 657-58 (given time limits imposed by court, counsel's decision not to question certain prospective jurors did not "mean that [he] exhibited a bias against [them]," but "more realistically reveal[ed]" the "impossibility of directing [his] attention to all of the panelists in the brief time [he] had"). To the contrary, counsel's questioning and use of peremptory strikes evidenced an understandable interest in removing prospective jurors with law enforcement connections: counsel asked another prospective juror with such connections a series of questions about his ability to judge the credibility of police officers and, after that juror's removal for cause, used a peremptory strike against the only remaining prospective juror, other than Jo.Y., who had a law enforcement connection. 18 Accordingly, this Court should reverse appellant's conviction and order a new trial. CONCLUSION FOR THE REASONS SET FORTH IN POINT I, THE COURT SHOULD SUPPRESS THE GUN, REVERSE APPELLANT'S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON IN THE SECOND AND THIRD DEGREES, AND DISMISS THOSE COUNTS OF THE INDICTMENT. ALTERNATIVELY, FOR THE REASONS SET FORTH IN POINT II, THE COURT SHOULD ORDER A NEW TRIAL. Respectfully submitted, LYNNW.L.FAHEY Attorney for Defendant-Appellant Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085 By: A. Alexander Donn Of Counsel Dated: September 7, 2016 New York, New York 19