The People, Respondent,v.Everett B. McMillan, Appellant.

Brief

N.Y.March 29, 2017

STATE OF NEW YORK NEW YORK STATE COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK Case No.: APL-2015-00304 Respondent, -against- EVERETT MCMILLAN Defendant - Appellant. · REPLY BRIEF FOR DEFENDANT - APPELLANT SUPPLEMENTAL BRIEF RECEIVED SEP 082016 NEW YORK STATE COURT OF APPEALS Everett McMillan, prose Defendant-Appellant Great Meadow Correctional Facility P.O. Box 51 Comstock, N.Y. 12821-0051 TABLE OF CONTENTS PRELIMINARY STATEMENT ••••••••••••••••••••••••••••••••• 1 ARGlJMENT • ••..•.•.•••••••••.•••••••••••••••.•••••••••• • 1 PO I NT I .......................................... 1 POINT II ......................................... 5 POINT III ........................................ 5 CONCLtJSION ..•.•..•.........••..•.•••....•..•........•. 7 i PRELIMINARY STATEMENT Appellant submit this reply brief in response to the People's response brief (Pages 81-101) to Appellant's Pro-se Supplemental Brief, which was served by mail and postmarked July 20, 2016. Appellant relies on the statement of facts set forth in his Pro- se Supplemental brief, Pages 4-11. ARGUMENT POINT I Appellant's Sixth Amendment right to Confrontation And !!is Fourteenth Amendment right to Due Process And Article I § 6 of the Constitution of New York were violated and properly preserved for review by this Court and meritorious. The People contend that Appellant's Sixth, Fourteenth Amend- ment right and Article I § 6 of the Constitution of New York State are unpreserved. However, the .record reflects Appellant claims are timely preserved and meritorious. The People concede in their response (R.B. 82-83) 1during jury selection that a Molineuex hearing need be held to determine how to present to the jury how and why these detectiMes were looking for Appellant, without exposing the Parole warrant and the alleged phoneceall that Det.Tsangaris recieved from a female caller as to Appellant's location. The contents of the phonecall was not an except~on to the hearsay rule, which violated his right to a.·,fiairutrial.i;~Coriftontat ion. and Due Process. 1 R.B. heretofore is Respondent's Brief 1 IDafense counsel requested a hearing in limine because the Prosecutor kept changing their theory as to what the Det. is going to testify to and what the Prosecutor claim the facts are, Defense counsel stated: "Trying to compound what she's attempting or would like to bring o1;1t as opposed to what she can bring out." (R.A. 54) thiilssreqaest WB§' .. made.·,llciJ prevent any prejudicial hearsay evidence from being heard by the jury, this request was ignored by the trial Court. Sounsel also argued that the People can not bring out that she got a phonecall that the Defendant is back in the house. That::is hearsay. (R.A. 55-56j S.B.A. 7)~ He also argued that: "Judge, there is an objection to--again, its over defense objection but specifically by the Court, ; :., the only way that this officer can testify to the defendant not being at the premises is through hearsay and to make that fact and to be able to testify to that fact its hearsay and the officer really, none of the officer's are qualified to ; c': ; testify to that for the following reason. Assuming that the testimony at the hearing would be consistent with the testimony at the trial, the officer's never made an investigation as to whe.ther the Defendant was at the location or not when they were there the first time. They never attempted to go into the premises. They did not speak to any individual that was located at the premises at or about that time." ( S . B. A . 7) Over Defense counsel's objection, the trial Court ruled that the contents of the phone.call is exclude with the exception of the alerting the detectives that Appellant was back at the location in which they were looking for Appellant for an arrest warrant unrelat- ed to the caseat bar. (R.A. 53-55) 2 R.A. heretofore is Respondent's Appendix 3 S.B.A. heretofore is Supplemental Brief Appendix 2 After the Prosecutor established through her direct"examination that Appellant was now back at the home (R.A. 70), the Prosecutor began asking questions pertaining to what the caller said about the vehicle thats registered to Appellant and unrelated to the parole warrant they were there to execute. (R.A. 70-74) Defense counsel made over seventeen objections, one standing objection, . two requests for a mistrial, due to the prosecutor's succes§6ul attempts to get Det. Tsangaris to place Appellant in the vehicle where the weapon was recovered, through hearsay testimony. After establishing appellant is now back at the home, ~which was the purpose of the trial Courts ruling during the Molineuex hearing) the prosecutor began to elicit from the Det. what the cal- ler said to him pertaining to the vehicle, Det. Tsangaris answered: "The caller told met:,that defendant was driving back to the location in the vehicle." Defense counsel objected and moved to strike and the Court strick- ened it. (R.A. 74) The following question, (after the Court strickened the answer) was pertaining to the vehicle in an attempt to place Appellant in the vehicle through hearsay when no other evidence could. The Pro- secutor continued to ask about the vehicle over Appellant's object- ions. Though the trial Court stricken the answer previously, it none theless tainped the jury abilities to reach a fair verdict, as they heard through hearsay that Appellant was just in the vehicle thats registered to him, where the weapon was allegedly recovered. There was no other evidence that placed Appellant in or near the vehicle in which anyone, friend, or family could have been using the car. The only connection to the vehicle is the fact that it is reg- 3 istered in Appellant's name. (S.B.A. 41-44) According to the Peoples witness, a DMV Representative testimony: "Just because a vehicle .is registered in your marne , does not mean you registered the vehicle yourself or control the vehicle. Anyone can register a vehicle in your name, all they need is a copy of your license." (S.B.A. 25-27) This Court has established that an alleged violation of the Con- frontation Clause is subject to a harmless error analysis, the error being harmless only if it is harmless beyond a reasonable doubt. Also in making its findings it stated: "It involves a determination of the probable impact of the codefendant's admission on the minds of an average jury. The Court must ascertain whether the confession so prejudiced the defendant that reversal of the conviction and a new trial is mandated. Relevant consideration in this review include the comprehnsiveness of defendant's statement and the extent to which it explains defendant's part~ctpation in the crime without reference to the codefendants statement." Just as in Goldstein this Court wrote: "By allowing the People'''s expert forensic psychiatrist to testify, over objection, about state- ments made to her by nontestifying witness;~the Court deprived Appel- lant of his right to Confrontation and Due Process, (citing, Crawford v. Washington, 541 U.S. 31(2004);People v. Douglasi 4 N.Y.3d777,;779 (2005); People v. Eastman, 85 N.Y.2d Q65, 276(1995); People v. Crim- mins, 36 N.Y.2d 230(1975) because the statement made during the course of interviews conducted by an agent of the State for the purpose of prosecution were inadmissible hearsay." The People's case against Appellant was far from overwhelming, absent the numerous errors the jury would not have enough evidence to 4 Convict Appellant, that is why the conviction should be reversed and a new trial ordered, most respectfully. POINT II Appellant's Fourteenth Amendment Due process right were violated by the Prosecutor's improper remarks in Summation and were prop~rly preserved for this Courts review Appellant relies on his Supplemental Brief and the record (R.A. 140-185). The prosecutor in their response states that their improper comments were in response to defense counsels comments in his sum- mation. This claim is not merited due to the prosecutors failure to lodge (l)one objection during defense counsels summation. Every com- ment defense counsel argued was strictly within the four corners of the evidence during summation, see People v. Fisher, 18 N.Y.3d 964 (2012); People v. Ashwal, 39 N.Y.2d 105, 109-110(1976). The prosecutor disregarded the evidence in the trial and gave her own account of what she wanted the jury to believe. Defense coun- sel and the Court were so frustrated with the prosecutor that they gave up and let her ramble on. Defense counsel asked for a mistrial at one point because she kept making improper comments (R.A. 179). It was to the point as to deny appellant a fair trial. A reversal is the proper remedy and a new trial should be most respectfully ordered. POINT III Appellant's right to the effective assistance of counsel were violated when defense counsel's performance fell below standards of meaningful representation during crucial areas of the case. The people in their response contend that sounsel's performance 5 was reasonable to the extent that he made arguments pertaining to not allowing the contents of the phonecall and the fact that it was a parole warrant issued out for appellant. That does not justify him allowing errors that are crucial to evidence establishing the elements of the crime charged, constructive possession, dominion and control, going uncorrected. The alleged statement "Its my car" originally given notice to as "Its my car, but not my gun", was never challenged as to the admissibility by defense counsel. This should have been challenged during the llunj?.ley/Mapp hearing. Further, counsel failed to attack the outright inconsistencies in the two detectives testimony which was the only testimony that involved the appellant and eluded to his identification for possession. Counsel also failed to properly preserve prosecutorial miscond- uct for this Courts review as well as allowing the people's admission of false testimony to go uncorrected before the jury. llowever, the people concede, defense counsel did not object or protest to the prosecutors admittance that det. Tsangaris did not testify truthfully about going into the home on his initial visit to the 209th street address. This evidence was not harmless beyond a reasonable doubt because it was the only evidence that the jury could draw a reasonable inference from that the appellant was in the vehicle that is registered in his name and a weapon was recovered from. It is welLsettled by this Court that a single error by counsel can constitute ineffective assistance of counsel, see People v. Turn- er, 5 N.Y.3d 476 (2005). Defense counsel's admission that he does not feel that he could effectively represent appellant, ''He felt used by 6 the defendant", can not be taken lightly because the statement alone projects prejudice regardless of what the trial Court feel was work- ed out between the two. Counsel's performance fell below the require- ments of effective representation which are factors that are required to ensure a fairitrial. The people contend that the summation issue is unpreserved and the hearsay issue is unpreserved for review, It is then probative to conclude that counsel egregiously failed in maintaining effective, nonprejudicial, and,meanig representation of the appellant. For these reasons, all of the reasons contained within the record of trial and throughout the appeals process the appellant respectfully posits that the conviction should be reversed and a new trial should bb ordered and pray that any other and further such relief that the Court deem just and proper. CONCLUSION The reasons set forth in Point I, II, and III individually and collectively are compelling and shocking in nature that they should warrant the relief that appellant seeks. Ignoring the bold tactics and unfair practices of the people in this case would compound and suggest that the arena of actors which is our judicial system is open to full and prejudicial disorder. The basic right to a fair trial without prejudice base upon truth and evidence obtained in a legal manner is simple, yet, paramount to the very fabric of our institution. Indeed, these ideas and principles are not new or ground breaking in thtir substance or nature. For these very reasons this Court must enjoin in preserving the appellant's rights and grant the relief that is sought. 7 Dated: August 28, 2016 ! • 8 ~~ Everett McMillan, 10A6082 Great Meadow Correctional P.O. Box 51 Comstock, New York 12821 STATE OF NEll YORK COUNTY OF IIASHINGTON AFFIDAVIT OF SERVICE ~ ss.: ) I Everett McMillan, being duly sworn, depose and say that on the 5th day.of September, 2016, Appellant, served upon the People, ,and Appellate counsel the annexed copy identified as: Reply Brief for Appellant's Supplemental Brief, upon the follow- ing parties: Queens County District Attorney Richard A. Brown 125-01 Queens Blvd Kew Gardens, New York 11415 A. Alexander Donn Appellate Advocates 111 John Street-9th Floor New York, N.Y. 10038 by placing the same in the mailbox at the. Geat Meadow Correctional Facility, under the exclusive care and custody of the United States Postal Service, by regular first class mail. Sworn. b ~e r me on 2nd day Sept~ .. ~·~ .. \ v/J. Notarv Public~ PAT .J SUlliVAN Notary Public, State ollllaw York No. 01SU6316844 Qualified !11 Saratoga County Commission Expires Dec.l!l!, 2D11l c:!_~~~ -. hu72?Z?f ... ~e7~ Everett McMillan Box 51 Comstock, N.Y. 12821-0051