The People, Respondent,v.Richard Garcia, Appellant.

Brief

N.Y.February 17, 2015

APL-2014-00085 To be argued by DAVID P. JOHNSON (15 minutes requested) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RICHARD GARCIA, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent- Appellant Bronx, New York 10451 (718) 838-7123 (p) (718) 590-6523 (f) johnsonda@bronxda.nyc.gov JOSEPH N. FERDENZI PETER D. CODDINGTON DAVID P. JOHNSON Assistant District Attorneys Of Counsel Date Completed: July 29, 2014 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT ............................................................................................................ 1 QUESTIONS PRESENTED ...................................................................................... 2 THE FACTS .............................................................................................................. 3 The Indictment ........................................................................................................ 3 The Pre-Trial Suppression Hearing ......................................................................... 3 The Trial .................................................................................................................. 3 The People’s Case ................................................................................................... 3 The Defense Case .................................................................................................... 8 ARGUMENT ............................................................................................................. 9 Point One DEFENDANT’S GUILT OF MANSLAUGHTER IN THE FIRST DEGREE WAS PROVED BEYOND A REASONABLE DOUBT. ...................................... 9 Point Two THE TRIAL COURT PROPERLY ALLOWED DETECTIVE BART SNYDER TO TESTIFY ABOUT AN OUT-OF-COURT STATEMENT TO EXPLAIN HIS PRE-ARREST INVESTIGATION; IN ANY EVENT, ANY POSSIBLE ERROR WAS HARMLESS. ................................................................................16 Point Three DEFENSE COUNSEL NEVER REQUESTED THAT THE TRIAL COURT ISSUE A LIMITING INSTRUCTION WITH RESPECT TO AN OUT-OF- COURT STATEMENT; IN ANY EVENT, THE LACK OF AN INSTRUCTION WAS HARMLESS. ...............................................................................................28 CONCLUSION ........................................................................................................37 i TABLE OF AUTHORITIES Page(s) CASES Federal Chapman v. California, 386 US 18 (1967)..............................................................24 Crawford v. Washington, 541 US 36 (2004).....................................................21, 22 Pointer v. Texas, 380 US 400 (1965)......................................................................21 United States v. Matera, 489 F3d 115 (2d Cir 2007)..............................................22 State People v. Ahmed, 66 NY2d 307 (1985)..................................................................36 People v. Baker, 14 NY3d 266 (2010)....................................................................36 People v. Belge, 41 NY2d 60 (1976).......................................................................18 People v. Bleakley, 69 NY2d 490 (1987)................................................................12 People v. Bradley, 8 NY3d 124 (2006)...................................................................21 People v. Carborano, 301 NY 39 (1950).................................................................24 People v. Contes, 60 NY2d 620 (1983)...................................................................12 People v. Crimmins, 36 NY2d 230 (1975)..................................................24, 27, 34 People v. Edwards, 47 NY2d 493 (1979)................................................................20 People v. Finch, — NY3d —, 2014 NY Slip Op 03424 (2014)....................9, 10, 11 People v. Garcia, 113 AD3d 553 (1st Dept 2014)...................................................35 ii People v. Gray, 86 NY2d 10 (1995)..........................................................................9 People v. Hawkins, 11 NY3d 484 (2008).........................................................passim People v. Jones, 73 NY2d 427 (1989).....................................................................13 People v. Kello, 96 NY2d 740 (2001)...................................................17, 27, 29, 33 People v. Mazilia, 62 NY2d 755 (1984)..................................................................12 People v. Nieves, 67 NY2d 125 (1986)...................................................................20 People v. Perez, 127 AD2d 707 (2d Dept 1987)...............................................24, 25 People v. Resek, 3 NY3d 385 (2004)......................................................................33 People v. Robinson, 36 NY2d 224 (1975)...............................................................32 People v. Scarborough, 49 NY2d 364 (1980).........................................................12 People v. Till, 87 NY2d 835 (1995)........................................................................21 People v. Tosca, 98 NY2d 660 (2002)........................................................21, 22, 23 People v. Winkler, 71 NY2d 592 (1988).................................................................18 STATE STATUTES CPL 470.05.......................................................................................................passim Penal Law § 125.20...................................................................................................1 OTHER AUTHORITIES NY Const, art IV § 3................................................................................................18 US Const Amend VI................................................................................................21 iii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, : : -against- : RICHARD GARCIA, Defendant-Appellant. : ----------------------------------------------------------------x BRIEF FOR RESPONDENT STATEMENT By permission of the Honorable Jenny Rivera, Associate Judge of the Court of Appeals, defendant appeals from an order of the Appellate Division, First Department, entered on January 28, 2014, which affirmed an order of the Supreme Court, Bronx County, rendered June 29, 2011, convicting defendant, after a jury trial, of Manslaughter in the First Degree (Penal Law § 125.20 [1]), and sentencing him to a determinate prison term of twenty years, and five-years’ post-release supervision (Massaro, J.). 1 QUESTIONS PRESENTED Whether defendant’s conviction for Manslaughter in the First Degree was supported by legally sufficient evidence and was not against the weight of the evidence? The court denied a non-specific motion for a trial order of dismissal, the jury found defendant guilty of Manslaughter in the First Degree, and the First Department found the claim to be unpreserved and, in an alternative holding, meritless. Whether the court, in allowing Detective Bart Snyder to testify about an out- of-court statement in the context of his pre-arrest investigation, deprived defendant of his due process right to a fair trial and right to confront witnesses against him? The court admitted this evidence without a limiting instruction and denied defendant’s motion to strike that portion of Detective Snyder’s testimony; defendant did not voice his current constitutional claims. The First Department found the evidence was properly admitted. Whether the court, in failing to instruct the jury that Detective Bart Snyder’s testimony about an out-of-court statement was not offered for the truth of the matter asserted, deprived defendant of his due process right to a fair trial? Defendant did not request a limiting instruction or articulate his current claims to the trial court, and the First Department found that while the trial court should have instructed the jury, its decision to not do so was harmless. 2 THE FACTS The Indictment On or about June 25, 2007, the Bronx County Grand Jury accused defendant of Murder in the Second Degree, Manslaughter in the First Degree, and Criminal Possession of a Weapon in the Second Degree (Indictment Number 2729/07). The Pre-Trial Suppression Hearing The Supreme Court, Bronx County, denied defendant’s motion to suppress the line-up and photo array identification procedures following a hearing. No issues from the hearing have been raised in this appeal. The Trial The People’s Case In 2005, Eileen Estevez worked as a bus driver and lived in Bronx County, in the vicinity of East 145th Street and College Avenue. On August 20, 2005, at approximately 8:30 p.m., Ms. Estevez walked outside her apartment building and down the stairs. She noticed that two men were arguing on East 145th Street. Ms. Estevez saw both men’s faces clearly because her view was unobstructed. It was not late at night, and there were streetlights in the surrounding area. Both men were approximately eleven feet away from her. (A. 28–29, 32–34, 39–40).1 1 Citations preceded by “A.” refer to the appendix materials that defendant provided to this Court. 3 Ms. Estevez recalled that one man was short, stocky, and bald, while the other was tall and slim. She recognized the short man because she had seen him sitting in front of the building on East 145th Street once or twice before. She later identified him as defendant. Defendant was wearing a white tee shirt with blue jean shorts, and was accompanied by a small child. Ms. Estevez did not personally know either man. There were approximately fifteen additional people on the street in that vicinity (A. 34–36, 39–41, 50–51). The tall, skinny man and defendant were arguing about money, but were not in a physical altercation. Ms. Estevez noticed that the tall man had no weapon in his hands during the verbal dispute. Then, an older man attempted to intervene and stop the argument, but backed away when defendant took out a gun and pointed it at the taller man. Defendant then shot the taller man, who fell to the ground grabbing his chest. Ms. Estevez saw the shooting, heard what she thought were multiple gunshots, and immediately fled to her parked car (A. 41–44, 47–48, 51– 52). Ms. Estevez heard approximately four or five gunshots. She also noticed that the young child was standing “a couple of feet behind” defendant as he fired his weapon. As defendant shot the taller man, Ms. Estevez observed muzzle flash spraying from the gun and smoke emanating from the gun’s barrel. After shooting 4 the taller man, defendant ran towards a location on East 145th Street. Ms. Estevez called 911 and later told the police what had happened (A. 49–50, 53). On August 20, 2005, Police Officer Julian Suero was on foot patrol. At the time of the shooting, he was walking by a tennis court, approximately twenty-five to fifty yards away from the scene. Officer Suero heard multiple gunshots and observed flashes of light travel diagonally from the corner of College Avenue across the street towards East 145th Street. He ran towards the shots and discovered Michael Colon lying on the ground, writhing in pain. The next day, he identified Mr. Colon’s body at the Office of the Chief Medical Examiner in Bronx County (A. 95–96, 98–105, 107–08). Detective David Hernandez, of the Crime Scene Unit, arrived at the safeguarded scene of Mr. Colon’s death, but no ballistic evidence was recovered. There were also no bullet impact marks in the area near the scene on East 145th Street (A. 173–76). In August of 2005, Dr. James Gill was the Deputy Chief Medical Examiner for Bronx County.2 Dr. Gill performed the autopsy of Mr. Colon’s body on Augst 21, 2005.3 Dr. Gill concluded that Mr. Colon died from a single gunshot wound to 2 At trial, Dr. Gill was qualified as an expert witness in the field of forensic pathology (A. 207–09). 3 Dr. Gill concluded that Mr. Colon had small, trace amounts of cocaine and antihistamine in his blood at the time of death, but that neither substance had anything to do with his death (A. 221–25). 5 the chest. Specifically, the bullet entered Mr. Colon’s body in his left parasternal area, on his chest. The bullet then traveled through his heart, liver, and aorta, at a slightly downward but straight angle. The bullet finally became lodged in Mr. Colon’s back’s soft tissues, near his spinal cord. Later, Dr. Gill recovered the deadly bullet from Mr. Colon’s body (A. 206, 210, 214–20). Dr. Gill concluded that, as a result of the gunshot wound, which perforated the heart, liver, and aorta, Mr. Colon died of blood loss as well as cardiac tamponade. Specifically, he determined that the gunshot wound caused internal bleeding in the sack that surrounds the heart. This bleeding prevented Mr. Colon’s heart from beating. He bled into his chest cavity and lost a great deal of blood. Notably, Dr. Gill determined that Mr. Colon’s fatal wound was consistent with a downward shot from a diagonal angle (A. 225–27). After defendant killed Mr. Colon, Detective Bart Snyder was assigned to the investigation. On August 21, 2005, Detective Snyder spoke with the deceased’s sister, Lucy Colon. She informed Detective Snyder that her brother had been “having a problem [with] . . . Richard Garcia.” The detective also asked Ms. Estevez to view a photo array including defendant’s photograph (A. 68, 128–29). She did not select anyone from the photo array, and informed the police that she would be more comfortable with an in-person identification (A. 68–69, 77–79, 6 129). The detective attempted to locate defendant for nearly two years without success; he sent out a tips van seeking information from neighborhood residents, distributed fliers asking for assistance, and issued a wanted card for defendant. He also spoke with defendant’s “mother, sister, and common law wife,” but could not locate defendant (A. 118, 120–23). In 2005, Sergeant Robert Lamonica worked in the Firearms Analysis Section of the Forensic Investigation Division of the New York Police Department.4 Sergeant Lamonica reviewed a microscopy report of the projectile recovered from Mr. Colon’s body. He concluded that it was a “copper-jacketed full metal jacket .32 caliber class projectile.” He also determined that the lack of ballistic evidence or shell casings was consistent with the use of a revolver, which retains shell casings after discharge, rather than ejecting them (A. 180–81, 189–95).5 Nearly two years passed before defendant’s attorney called Detective Snyder and informed him that defendant intended to turn himself in to the police. Finally, on June 19, 2007, defendant appeared at the 40th Precinct in Bronx County, 4 At trial, Sergeant Lamonica was qualified as an expert in the field of ballistics (A. 183). During his testimony, he explained to the jury the difference between a revolver and a semi- automatic firearm (A. 183–89). Sergeant Lamonica also explained that to fire a revolver, a person would need to exert five to eight pounds of pressure on the trigger (A. 194). 5 Sergeant Lamonica later explained at trial that firing a .32 caliber revolver would cause muzzle flash, also known as muzzle blast. Muzzle flash is a bright fire-like light, which is burning gas leaving the firearm as it is fired. He confirmed to the jury that when a revolver is shot, the muzzle flash travels in the same direction as the fired rounds (A. 179–80, 189–92, 195– 98). 7 without his attorney. Detective Snyder began organizing a lineup and left a voicemail message for defendant’s attorney explaining his intentions (A. 124–28). Later that day, Ms. Estevez identified defendant as the shooter from an in-person lineup at the New York Police Department Bronx Homicide Task Force (A. 55– 61). The Defense Case Defendant did not call any witnesses. 8 ARGUMENT POINT ONE DEFENDANT’S GUILT OF MANSLAUGHTER IN THE FIRST DEGREE WAS PROVED BEYOND A REASONABLE DOUBT. Defendant claims the People’s evidence was legally insufficient by asserting that the testimony from the prosecution’s eyewitness was contradicted or unsupported (defendant’s brief, pp. 16–21). This claim is unpreserved and meritless. To preserve a legal sufficiency claim, a defendant must move to dismiss at trial and specifically point to the alleged deficiency in the prosecution’s case. See CPL 470.05 (2); People v. Gray, 86 NY2d 10, 20–21 (1995). This is so because a defendant must give the trial court an opportunity to definitively rule on the legal argument underlying his appellate claim. People v. Finch, — NY3d — , 2014 NY Slip Op 03424 (2014). Here, defendant’s attorney reserved motions until both parties rested, and simply stated, “The defendant moves to dismiss this matter on the basis that the People have failed [to establish] a prima facie case,” and that “Ms. Estevez, her testimony, both direct and cross, in our humble opinion, constitutes an inability to 9 prove this defendant’s guilt beyond a reasonable doubt” (A. 229, 231). After the prosecution noted the infirmity of defendant’s motion, pointing out that “the standard is no reasonable juror could find this man guilty . . . [and] I believe that no reasonable juror could not [because] [t]he evidence, I believe is pretty overwhelming combined with consciousness of guilt after he flees” (A. 231), the court denied defense counsel’s motion for a trial order of dismissal (A. 230–31). Plainly, defense counsel’s motion lacked the specific arguments that are now being raised on appeal, and it did not give the court an opportunity to rule on whether Ms. Estevez’s testimony was so contradicted by the other evidence as to be legally insufficient. By vaguely referring to the entirety of Ms. Estevez’s testimony, he did not alert the court as to which elements of first-degree manslaughter Ms. Estevez’s testimony failed to establish, let alone the specific alleged infirmities in her testimony to which he now points, so his current arguments are unpreserved. See People v. Hawkins, 11 NY3d 484, 492 (2008) (noting that defense counsel’s motion “did little more than argue that the People failed to prove the essential elements of depraved indifference murder”). This is unlike the situation this Court recently addressed in People v. Finch, — NY3d —, 2014 NY Slip Op 03424 (2014). There, defendant was convicted of two counts of criminal trespass and resisting arrest. On appeal, the trespass 10 conviction was reversed because defendant was an invited guest at the building where he was arrested, though the resisting arrest conviction was affirmed. In considering defendant’s argument that there was no probable cause to arrest him for trespass, which would render the resisting arrest charge invalid, this Court found that such claim was properly preserved even though he did not raise that particular argument in support of his motion to dismiss for insufficiency of the evidence at trial. This was because defense counsel made the pertinent argument at arraignment, and again later in the proceeding, at which point the court specifically rejected the argument. Focusing on the fact that the court “ruled definitively on the legal argument that defendant makes on this appeal,” defendant did not need to again raise that claim on his motion to dismiss because “once is enough.” Finch, — NY3d at *2. Here, unlike in Finch, defense counsel never specifically advanced his instant claims so the trial court never had an opportunity to rule, adversely or otherwise, on that legal argument. Should this Court conclude that it can reach defendant’s claims, it will find that the evidence adduced at trial was more than legally sufficient to find defendant guilty beyond a reasonable doubt. As stated by the trial prosecutor, the standard for reviewing the sufficiency of evidence is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 11 People v. Contes, 60 NY2d 620, 621 (1983). The evidence must be viewed in the light most favorable to the prosecution. People v. Mazilia, 62 NY2d 755, 757 (1984). In a desperate attempt to cast aspersions on the verdict, defendant attacks Ms. Estevez’s credibility and reliability (defendant’s brief, pp. 16–21). In doing so, he ignores that the credibility of a witness is a question for the fact finder, who is free to accept or reject all, some, or none, of a witness’ testimony. See People v. Scarborough, 49 NY2d 364, 372 (1980). This Court should defer to the jury’s credibility determinations because the jury viewed each witness, heard the testimony, and observed each witness’ demeanor at trial. See People v. Bleakley, 69 NY2d 490, 495 (1987). In any event, should this Court consider defendant’s credibility arguments, it should find them unpersuasive. Defendant asserts that “[t]he only evidence linking [him] to the crime was one eyewitness, who could not even identify him the day after the shooting” (defendant’s brief, p. 19). This mischaracterizes the record, since Ms. Estevez made it clear that when presented with the initial photo array she declined to make an identification not because she could not do so, but rather, because she felt more comfortable identifying defendant in person (A. 78, 129).6 Indeed, she identified 6 As Ms. Estevez also made clear, her discomfort with identifying defendant in the photo array was also compounded by the fact that when defendant was bald when he shot Mr. Colon, but in the pictures he was wearing a hat (A. 70). 12 defendant without hesitation or doubt when she observed him in a lineup two years later (A. 55–61). Defendant also attempts to undermine the reliability of Ms. Estevez’s identification of defendant by suggesting that “[i]t is implausible that it was not very dark outside” when she saw defendant attack Mr. Colon, noting that it was approximately thirty minutes after sundown (defendant’s brief, pp. 20–21). Ms. Estevez’s testimony that there were streetlights would be sufficient to explain why she was able to see someone only about eleven feet away from her (A. 34). Furthermore, at the time of the attack, there was nearly a full moon.7 Thus, with Ms. Estevez only about eleven feet away from defendant and Mr. Colon (A. 39), it is flimsy to suggest that she could not identify defendant, particularly since she had seen defendant in the past and he was facing towards her during the attack (A. 64).8 The suggestion that Ms. Estevez’s description of the shooting renders her testimony unreliable or incredible (defendant’s brief, pp. 19–20) is also unavailing. Specifically, defendant asserts that Ms. Estevez’s testimony was not credible because she testified that Mr. Colon was shot once in the chest, though she told the 7 This information is available at http://aa.usno.navy.mil/data/docs/RS_OneDay.php (accessed July 6, 2014) (search “Bronx, NY” and “August 20, 2005") (“Phase of the Moon on 20 August [2005]: waning gibbous with 99% of the Moon's visible disk illuminated”). This Court can take judicial notice of this fact. See, e.g., People v. Jones, 73 NY2d 427, 431 (1989). 8 Nor is it significant that Officer Suero declined to describe defendant because of the lighting conditions, despite defendant’s protests to the contrary (defendant’s brief, p. 21), since the officer estimated that he was as far as fifty yards away from defendant, approximately ten times farther than Ms. Estevez (A. 109). 13 police the day after the shooting that two rounds struck him, and that defendant continued to shoot downward at defendant after he fell to the ground (defendant’s brief, pp. 20). Defendant also notes that Ms. Estevez stated defendant fired multiple shots which conflicts with “the medical examiner’s [testimony], who testified that only one bullet struck the decedent” (defendant’s brief, p. 20). Both arguments are easily rebutted by the fact that not every shot defendant fired necessarily hit Mr. Colon; it was entirely possible that Ms. Estevez saw and heard multiple shots fired, and only one struck Mr. Colon. Indeed, no evidence was introduced that established that defendant was a competent marksman. Furthermore, as the prosecutor noted during his summation, Ms. Estevez may have seen Mr. Colon actually crouching down in a defensive posture when he saw defendant produce a revolver, rather than falling down after being shot once (A. 282–83). In any event, this attempt to discredit Ms. Estevez’s testimony is itself weak, since the jury heard her testimony and defense counsel’s questioning on this alleged inconsistency (A. 47–50, 73–74, 79–82, 88), and could have arrived at a logical conclusion: that it is reasonable for a person who witnessed someone fire several rounds from a revolver from only a few feet away to be unsure of the precise number of rounds that struck the victim. 14 Furthermore, defendant’s note of the fact that Ms. Estevez could not remember whether she went to a police precinct the day after the shooting or a few days later (defendant’s brief, p. 20) is irrelevant. This minor detail would have had little impact on her credibility and, in any event, the jury heard this testimony and was able to consider it when evaluating her credibility (A. 66). To suggest that Ms. Estevez’s testimony regarding a traumatic shooting would be undermined by her uncertainty almost six years later regarding something as mundane as which day she spoke with police about that incident is lacking in persuasiveness. Finally, defendant’s contention that the evidence was legally insufficient because a gun was never recovered (defendant’s brief, p. 21) is meritless. As defendant himself points out, there was substantial evidence establishing the prosecution’s theory of how Mr. Colon was killed—there was medical evidence showing that the bullet entered Mr. Colon’s chest and traveled downward, Officer Suero and Ms. Estevez saw light flashes going in the same direction (and the latter saw smoke coming out of the gun), and a .32 caliber revolver bullet was recovered from Mr. Colon’s body (defendant’s brief, p. 21). Defendant simply argues this evidence did not go to his identity as the shooter. However, there was testimony from a credible witness, Ms. Estevez, that she stood approximately eleven feet from defendant, who she had seen before, and watched as he shot and killed Mr. 15 Colon. This credibly and reliably established the identity of the shooter. The fact that, as the trial prosecutor pointed out, Ms. Estevez’s testimony was fully corroborated by all the other evidence (as paraphrased in defendant’s brief, p. 21) only bolsters the reliability of her identification testimony. In sum, defendant’s guilt was proved beyond a reasonable doubt by legally sufficient evidence. POINT TWO THE TRIAL COURT PROPERLY ALLOWED DETECTIVE BART SNYDER TO TESTIFY ABOUT AN OUT-OF-COURT STATEMENT TO EXPLAIN HIS PRE-ARREST INVESTIGATION; IN ANY EVENT, ANY POSSIBLE ERROR WAS HARMLESS. Defendant claims his rights to confront the witnesses against him and to have a fair trial were violated where the trial court admitted a statement from Mr. Colon’s sister, who did not testify at trial, that defendant and Mr. Colon had known each other for a while and were having a problem at some time prior to the attack (defendant’s brief, pp. 28–31), that this constituted impermissible hearsay which should not have been admitted (defendant’s brief, pp. 23–27), and that this was not a harmless error. Defendant’s claims are meritless and his constitutional claims are unpreserved. Moreover, any error was harmless in light of all the other evidence 16 of guilt, the small role the disputed hearsay played in the case, and the curative comments made by the prosecutor in summation. At the outset, defendant’s constitutional claims are unpreserved. CPL 470.05 provides that “a question of law with respect to a ruling or instruction of a criminal court is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.” CPL 470.05 (2). Thus, as this statute recognizes, a party must protest the trial court’s decision to preserve a question of law for appellate review. To preserve a claim for appellate review as a matter of law, a defendant must register a timely objection that is specific and congruent to the argument made on appeal. See CPL 470.05 (2). This specificity requirement applies to not only those rooted in statute or state evidentiary law, but also to those of a constitutional nature. People v. Hawkins, 11 NY3d 484, 492–93 (2008); People v. Kello, 96 NY2d 740, 744 (2001) (“The defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which, as previously discussed, differs from the trial evidence error which was preserved”). 17 This requirement that even constitutional claims must be preserved by specific objection at trial reflects the fact that preservation is no mere technicality. From the outset, the requirement of a specific objection advances “both the truth- seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant.” Hawkins, 11 NY3d at 492. This also means it is a critical guard against gamesmanship. See People v. Winkler, 71 NY2d 592, 598 (1988). Moreover, without a preserved question of law, this Court has no jurisdiction to consider a defendant’s claim. NY Const, art VI, § 3; see People v. Belge, 41 NY2d 60, 62 (1976). Here, during Detective Snyder’s direct examination, he testified extensively about the course of his investigation into Mr. Colon’s death (A. 119–25). The detective tried to find defendant for nearly two years without success; he sent out a tips van seeking information from neighborhood residents, distributed fliers asking for assistance, and issued a wanted card for defendant. He also spoke with defendant’s “mother, sister, and common law wife,” but could not locate him (A. 120–25). Initially, though, Detective Snyder explained why defendant was a suspect in the first place: Mr. Colon’s sister, Lucy Colon, had told the detective that her brother knew defendant for a long time and had been having a problem with him (A. 120–21). 18 When defense counsel objected, he simply stated, “I’m going to object to that,” and it was overruled (A. 120). Later, when the prosecutor asked Detective Snyder whether Mr. Colon informed him how long defendant and Mr. Colon had known each other, defense counsel again objected, this time stating, “we don’t have that witness here” (A. 121). In other words, defendant raised an evidentiary hearsay objection, rather than a constitutional argument pertaining to the Confrontation Clause. Aside from these vague objections, defendant raised no argument regarding this testimony until just before closing arguments (A. 234). At that point, after all the testimony had concluded, defendant requested what he called “a curative charge” (A. 234). He reviewed Detective Snyder’s above-described testimony and moved to strike it from the record (A. 234). Defense counsel also requested that the court charge the jury to “disregard that because it’s pure hearsay,” and made the curious argument that it “infuses the defendant’s name into the record without the defendant [testifying]” (A. 234–35). Counsel further argued that it was prejudicial and a “psuedoidentification” (A. 235). In response to these brief allegations, the People explained that this portion of Detective Snyder’s testimony “was not introduced for the truth of [the] matter asserted, but rather for steps that the police took with respect to their investigation” 19 (A. 235–36). Moreover, the prosecutor pointed out that the need for this evidence was enhanced when defendant himself put in front of the jury the notion of Ms. Estevez’s supposed failure to identify him in a photo array (A. 235–36). Thus, it was necessary to explain why Detective Snyder searched for defendant, put him in a photo array and, later, in a lineup (A. 235–36). Given this scant record, in which defense counsel twice objected to the detective’s testimony but never alluded to the constitutional arguments he makes on appeal, defendant failed to preserve his instant constitutional claims for review as a question of law, instead only preserving the state evidentiary claim that he also now brings on appeal (A. 120–21, 234–36). See, e.g., Hawkins, 11 NY3d at 492– 93. Even if this Court were to find that defendant’s constitutional claim is preserved, it fares no better on the merits, the same as his argument on state evidentiary grounds. An out-of-court statement offered as evidence to establish the truth of the matter asserted is hearsay. Richardson, Evidence § 8-101 (Farrell, 11th ed. 1995); see also People v. Nieves, 67 NY2d 125, 131 (1986). However, such evidence is admissible if it falls under one of the established hearsay exceptions. See, e.g., People v. Edwards, 47 NY2d 493, 496–97 (1979). For instance, statements normally subject to the hearsay rule are admissible to explain to the jury 20 the extent of the police investigation and how the police came to focus on a defendant, if necessary to give the finder of fact a more complete narrative of the episode. People v. Tosca, 98 NY2d 660, 661 (2002) (“[T]estimony concerning an unidentified cab driver’s report of a recent encounter with the armed defendant . . . was admitted not for its truth, but to provide background information as to how and why the police pursued and confronted defendant”), citing People v. Till, 87 NY2d 835, 837 (1995). Separately, the Sixth Amendment’s Confrontation Clause requires that defendant have the right to be confronted with the witnesses against him. US Const Amend VI. This has been incorporated to apply in both federal and state prosecutions. Pointer v. Texas, 380 US 400, 406 (1965). Specifically, the Sixth Amendment prohibits admission of out-of-court testimonial statements where the declarant is unavailable and not subject to cross-examination by the defendant. Crawford v. Washington, 541 US 36, 68 (2004). This Court has fully adopted these constitutional rules. People v. Bradley, 8 NY3d 124, 126 (2006) (“Our interpretation of the federal Confrontation Clause is controlled by [Crawford] and [Davis]”). Notably, Crawford does not prohibit the use of testimonial statements when offered for a purpose other than establishing the truth of the matter asserted. 21 See Crawford, 541 US at 59 n 9; United States v. Matera, 489 F3d 115, 122 (2d Cir 2007). Here, despite defendant’s complaints, it was necessary to explain to the jury how the police came to focus on defendant during their investigation. Without Detective Snyder’s brief description of Ms. Colon’s account of the “problem” between defendant and Mr. Colon, there would have been no explanation for why the detective included defendant in the initial photo array or spent two years looking for him (A. 68, 128–29). The jury would have been left to speculate over an obvious gap in the narrative.9 Thus, Ms. Colon’s statements were not admitted to establish that her brother and defendant had a problem prior to the shooting; they were properly admitted solely to explain the development of the police investigation and why they looked for defendant (A. 278–79, 286–87). See Tosca, 98 NY2d at 661. To be sure, Ms. Colon’s statements to the detective did not establish defendant was the shooter; the defendant and her brother had a “problem,” which made the police want to find and talk to defendant. There was no less prejudicial way to explain how defendant became a person of interest. Defendant contends that “[a]ll the jury needed to know was that Snyder had received some information during his investigation that appellant may 9 While defendant suggests no explanation was needed since defendant surrendered to the police (defendant’s brief, p. 26), this ignores the fact that for the jury to have the complete picture, they would still need to know why defendant surrendered in the first place. 22 have been involved in the shooting” (defendant’s brief, p. 27). He suggests this would have been a sufficient explanation for the purpose of the jury’s fact finding mission. However, that version would have been even more problematic; such testimony would have amounted to revealing an anonymous source inculpating defendant or establishing his involvement in the shooting. It was certainly less prejudicial to have testimony referring to an amorphous problem between the two, which did not directly implicate defendant in the shooting. Indeed, defendant’s proposal for how this testimony could have been introduced is at odds with his assertion that Detective Snyder’s testimony regarding his two-year search for defendant “implicitly conveyed the truth of the hearsay” (defendant’s brief, p. 30). If this contention was true, defendant’s proposal would be no less prejudicial than the course the trial court allowed; the fact that the police pursued defendant for two years would have been enough to persuade the jury that the anonymous informant had inculpated defendant. In any event, even if the trial court erred in admitting testimony regarding Ms. Colon’s statement, such error was harmless. At the outset, as demonstrated above, it can hardly be argued that defendant preserved the instant constitutional claim. If he had done so, the question would be whether “there is no reasonable possibility that the error might have contributed to defendant’s conviction and . . . 23 thus harmless beyond a reasonable doubt.” People v. Crimmins, 36 NY2d 230, 237 (1975), citing Chapman v. California, 386 US 18 (1967). Since he did not, however, the proper standard of harmless error analysis here is that for nonconstitutional trial error, which requires a consideration of whether “there is a significant probability, rather than only a rational possibility . . . that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” Crimmins, 36 NY2d at 242. Here, given the other evidence of defendant’s guilt (see Point One, supra), there is no significant probability that the jury would have acquitted defendant but for the introduction of the complained-of statements. This is also true because implicit in the consideration of whether the error affected the outcome of the trial is the fact that harmless error analysis must take into consideration not only the strength of the prosecution’s evidence, but also the severity of the error. See People v. Carborano, 301 NY 39 (1950) (“The decision in each case as to whether . . . the error was harmless or prejudicial, must of necessity depend upon the nature of the proof adduced and upon the type of error committed”). Defendant’s reliance on People v. Perez, 127 AD2d 707 (2d Dept 1987), to suggest that no harmless error can ever be found in a one identification witness case (defendant’s brief, p. 30), is therefore unpersuasive. In Perez, there was apparently no suggestion that 24 the identifying witness was familiar with the defendant before she saw him commit the crime, and she only saw defendant for a couple of minutes after she was woken up in the middle of the night. Id. at 708. In light of this weak identification testimony, the Second Department found that the improper bolstering of the witness’ identification testimony was not harmless. Id. at 710–11. Here, however, Ms. Estevez testified that she had seen defendant on occasions before the instant crime, and that streetlights helped her see him on the night of the crime, and the alleged error neither bolstered her testimony nor directly inculpated defendant. Consequently, the effect of the alleged error here can hardly be equated to that which the Second Department considered in Perez. Moreover, the undesirability of the notion that there can be no harmless error in a one identification witness case is plain. Since rarely, if ever, is any trial perfect, defendant’s proposed standard would yield numerous re-trials of all one witness identification cases. Furthermore, as defendant now acknowledges, Ms. Colon’s statements would at the least have been admissible if presented as “some information [from an anonymous source] during [the] investigation that [defendant] may have been involved in the shooting” (defendant’s brief, p. 27). Thus, for purposes of the harmless error analysis, defendant is entitled to no more than consideration of 25 whether there is a significant probability that he would have been acquitted if the hearsay testimony was presented as he now contends it should have been. In light of the other evidence of defendant’s guilt, it hardly seems that there is a significant probability defendant would have been acquitted if the pertinent hearsay was presented as an anonymous tip suggesting that defendant was a subject. Indeed, the pertinent testimony that defendant had a “problem” with Mr. Colon is even less prejudicial than what he now proposes should have been presented, since a “problem” could mean anything and did not necessarily indicate his involvement with the crime, while defendant’s proposal would have suggested that defendant had been involved with the shooting. Defendant also contends that the brief testimony regarding Ms. Colon’s statements was not harmless because it “injected a motive, specific to [defendant], into a motiveless case” (defendant’s brief, p. 30). He argues that this was because Ms. Estevez “admitted to the jury that the argument she overheard was ‘something about money,’ but she really could not remember” (defendant’s brief, p. 30, citing A. 42). This, however, overstates the degree of uncertainty in her testimony. Her response that she “can’t remember too well” was after the prosecutor asked if she could remember what defendant was saying (A. 41–42). Then, when the prosecutor asked what she could remember, she recognized that “[i]t was 26 something about money” (A. 42). In other words, Ms. Estevez recalled the gist of defendant’s fight with Mr. Colon, but not what he said verbatim. Thus, it can hardly be said there was no evidence of a motive beyond the pertinent testimony regarding Ms. Colon’s statements. If anything, Ms. Estevez’s testimony provided more substantial evidence of a motive—the almighty dollar—than the mere reference to a “problem” from Ms. Colon’s out-of-court statements. Thus, there is no significant probability that the jury would have acquitted had the evidence been presented as defendant now contends it should have been, so the claimed error was harmless. See Kello, 96 NY2d at 744. Indeed, even if this Court were to consider the alleged error under the constitutional harmless error standard not withstanding its lack of preservation, there is not even a “reasonable possibility” that this error contributed to the conviction. See Crimmins, 36 NY2d at 240–41. Moreover, contrary to defendant’s bold assertion (defendant’s brief, pp. 30– 31), the prosecutor did not rely on Ms. Colon’s statement for the truth of the matter asserted during his summation (A. 278–79, 286–87). Rather, as discussed infra, he did exactly the opposite (A. 278–79, 286–87). The court issued no curative charge or limitation on that testimony (A. 236). Yet, the prosecutor, in the context of explaining the nature and length of Detective Snyder’s investigation, chose to 27 twice remind the jury that his comments about Ms. Colon were not offered for their truth, but merely to explain the police investigation (A. 278–79, 286–87). Had he intended to use the statement improperly, the prosecutor would not have qualified each statement with that explanation (A. 278–79, 286–87). The manner in which the prosecutor utilized the statement negated any prejudicial effect the testimony might have had. Nothing in the record establishes that the jury disregarded the prosecutor’s self-imposed limitation of its evidentiary purpose, so it would stand to reason the jury would consider the evidence accordingly. POINT THREE DEFENSE COUNSEL NEVER REQUESTED THAT THE TRIAL COURT ISSUE A LIMITING INSTRUCTION WITH RESPECT TO AN OUT-OF- COURT STATEMENT; IN ANY EVENT, THE LACK OF AN INSTRUCTION WAS HARMLESS. Finally, defendant contends that reversal must follow from the trial court’s failure to issue a limiting instruction concerning the aforementioned hearsay testimony. He argues this was error as a matter of state evidentiary law because a limiting instruction should be given when hearsay is allowed to provide background information to explain police actions, and that it was also a constitutional error in that it deprived him of his due process right to a fair trial (defendant’s brief, pp. 32–38). Defendant’s claims are unpreserved and meritless. 28 At the outset, defendant’s claims are unpreserved. As discussed in Part Two, supra, CPL 470.05 provides that “a question of law with respect to a ruling or instruction of a criminal court is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.” CPL 470.05 (2). Thus, to preserve a claim for appellate review as a matter of law, a defendant must register a timely objection that is specific and congruent to the argument made on appeal, giving the trial court an opportunity to make an express decision on the argument. See CPL 470.05 (2). This specificity requirement applies to not only those rooted in statute or state evidentiary law, but also to those of a constitutional nature. People v. Hawkins, 11 NY3d 484, 492–93 (2008); People v. Kello, 96 NY2d 740, 744 (2001) (“The defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which, as previously discussed, differs from the trial evidence error which was preserved”). Defendant’s assertion that his trial counsel requested a limiting instruction (defendant’s brief, pp. 32–34, 39) is incorrect and not supported by the record. When the pertinent testimony was offered, counsel only stated, “I’m going to object to that” (A. 120). During the charge conference, the parties briefly argued 29 with respect to whether the testimony regarding Lucy Colon should be stricken and a charge given to the jury. Defense counsel stated, “I’d move to strike that and request that [prosecutor interrupts] a charge made to the jury would ask them to disregard that because it’s pure hearsay” (A. 234–35). The prosecutor responded that the testimony should not be stricken, and argued that it was only introduced to explain the police investigation (A. 235–36). The court denied defense counsel’s application (A. 236). In response, defense counsel simply stated, “Exception” (A. 236). Subsequently, the prosecutor asked the court to give a limiting instruction pertaining to the background information: [THE PROSECUTOR]: First of all, yesterday afternoon [defense counsel] made an application with respect to some testimony from Detective Bart Snyder. Specifically, I think [counsel] made reference to the fact that the victim in this case, Michael Colon, had a problem with Richard Garcia, and I believe what he was asking for was a limiting instruction with respect to the fact that that wasn’t introduced for the truth of the matter asserted . . . .10 Judge, I would ask you to do that, I think it’s appropriate. In addition to . . . the application that [counsel] made, there was also testimony from Bart Snyder, that Lucy Colon also told Detective Snyder that they [had] known each other for a long period of time. . . What I would ask for, is an indication to the jury . . . that that testimony was not elicited [for] the truth of the matter asserted, but rather from what the police did, that’s why they were looking for this man. 10 The prosecutor’s characterization of the defense request was mistaken and most likely intended to seek the instruction that he believed the defense should have sought rather than cure any error on the part of the court. 30 THE COURT: I just will let it rise and fall. [THE PROSECUTOR]: Okay, Judge, in that case I will tell the jury that, if that’s okay with the Court, okay. (A. 241–43). At that time, defense counsel failed to object to the prosecutor’s proposal or the court’s decision to not issue the instruction (A. 242–43). Thus, defendant never requested the limiting instruction that he now claims should have been given or voiced support for the prosecutor’s application for the same. Instead, he only asked that the testimony be stricken and the jury told to disregard it as hearsay (A. 234–35). This interpretation of defense counsel’s request is borne out by responses to the application. The prosecutor’s initial response was to say that the testimony “should not be stricken” (A. 235). The following the day, when the prosecutor referenced defendant’s application the court responded that it had already considered the request, and that it was “not going to delete it or reference to it” (A. 242). Plainly, all parties involved thought the only question presented by defendant’s application was whether the pertinent testimony should be stricken. Indeed, the words “limiting instruction” did not appear until the prosecutor’s request. Therefore, since defendant did not request a limiting instruction, and instead only asked that the testimony be stricken, his claims are unpreserved. See CPL 470.05 (2) (“[A] party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, 31 is deemed to have thereby protested the court’s ultimate disposition of the matter or to rule or instruct accordingly”). Defendant could have also preserved this argument when the prosecutor requested the limiting instruction and suggested that he would address the matter in his summation. At those times, he was obligated to inform the court of whether he was in favor of the prosecutor’s proposal or whether he objected to the court’s failure to give the limiting instruction. See CPL 470.05 (2); see generally Hawkins, 11 NY3d at 492–93. However, defense counsel remained silent, so his claims are unpreserved (A. 242–43). While it may be that defendant’s failure to ask for a limiting instruction was due to a strategic decision, that did not vitiate his obligation to register a protest to the court’s refusal to instruct the jury as the prosecutor requested, or the prosecutor’s proposal to do so himself, in order to preserve his claims. See CPL 470.05 (2); People v. Robinson, 36 NY2d 224, 227 (1975) (“We note in this regard that counsel for both sides are not without responsibility in protecting the substantial rights of the parties and that that responsibility extends to calling the attention of the court to errors of law which adversely affect a client at a time when such errors are correctible”). Defendant cannot rely on the prosecutor’s request to meet the preservation requirements. A contrary finding could encourage 32 gamesmanship in future cases with a less diligent prosecutor, where a defense counsel might avoid a limiting instruction that would draw the jury’s attention to the pertinent testimony even though such instruction would be proper and then opt to challenge the absence of a limiting instruction as reversible error on appeal. It would also contravene the express wording of CPL 470.05 (2). Notwithstanding preservation, both of defendant’s arguments fail on the merits. An out-of-court statement may be admissible in those cases where the fact finder would benefit from a complete narrative detailing the conduct of law enforcement. See, e.g., People v. Resek, 3 NY3d 385 (2004); People v. Tosca, 98 NY2d 660 (2002). This Court has indicated, however, that a limiting instruction should be given where such evidence is introduced. See Resek, 3 NY3d at 389. However, even if the trial court erred by not giving a limiting instruction, defendant was not prejudiced as the error was harmless. As noted above, this Court should not consider whether this was harmless beyond a reasonable doubt since defendant did not preserve any of the claims he now raises, let alone the constitutional claim. See Kello, 96 NY2d at 744 (2001). Thus, the proper standard of harmless error analysis here is that for nonconstitutional trial error, which requires a consideration of whether “there is a significant probability, rather than 33 only a rational possibility . . . that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” Crimmins, 36 NY2d at 242. As set forth in Part One, supra, defendant’s guilt was proved beyond a reasonable doubt. Furthermore, as noted in Part Two, supra, the pertinent testimony only briefly indicated that defendant and Mr. Colon had an unspecified “problem,” which neither inculpated defendant nor placed him at the scene of the crime. It merely explained why he was a person of interest. Thus, balancing this claimed error, involving such a small part of the overall evidence, against the other evidence of defendant’s guilt shows that it is highly unlikely that the lack of a limiting instruction from the court affected the outcome. Consequently, the claimed error was harmless. See Crimmins, 36 NY2d at 242. Moreover, during his summation, the prosecutor noted that the pertinent testimony was simply introduced to explain the police investigation (A. 278–79, 286–87). When the prosecutor explained the nature and length of Detective Snyder’s investigation, he chose to twice remind the jury that the information from Ms. Colon was not offered for its truth, but merely to explain the police investigation. After noting Ms. Estevez’s testimony that she heard defendant saying something about money, the prosecutor stated: We don’t know anything about that. We don’t know, other than that testimony, anything about a problem that they had. Because while Bart Snyder testified about that 34 from what Lucy Colon, Michael Colon told her, that’s not introduced for the truth of the matter asserted, that’s being introduced [to show] why Detective Bart Snyder . . . was looking for him, and why Bart Snyder ultimately put him in that lineup . . . (A. 278–79.) Later, he again told the jury, “Lucy Colon, Michael Colon’s sister, tells the police about Richard Garcia, remember, not for the truth of the matter asserted, but rather for what the police did, and they start looking for him” (A. 286–87). During his summation, defense counsel did not address the pertinent testimony or attempt to explain the limited purpose for which it had been admitted. Had the prosecutor intended to use the statement improperly, the prosecutor would not have qualified each statement with that explanation and, in fact, the manner in which the prosecutor utilized that statement negated any possible prejudicial effects. See People v. Garcia, 113 AD3d 553, 554 (1st Dept 2014). Defendant also contends the prosecutor’s comments during the summation could not remedy the court’s alleged error because “jurors are presumed to follow the court’s instructions,” and “the court in its charge told the jury that it must ‘apply the law exactly the way the court instructs’ . . . and [the jury] is ‘not bound to accept the arguments advanced by either the defense counsel or the District Attorney’” (defendant’s brief, p. 35, citing A. 292–93, 295). Yet, that argument is illogical in this situation because the court committed no legal error. Moreover, it 35 is unlikely that the jury would disregard the prosecutor’s comments regarding the limited value of his own evidence. Defendant’s argument that the court improperly delegated its duty to instruct the jury to the prosecutor (defendant’s brief, pp. 34–35) is incorrect. Certainly, a court must charge the jury pursuant to CPL 300.10 and, as defendant points out by citing People v. Ahmed, 66 NY2d 307 (1985), this responsibility cannot be delegated. However, this claim is plainly inapposite where, as here, the court did not delegate its duty of instructing the jury but, rather, simply did not give a particular instruction (A. 292–309). Furthermore, there is nothing improper about an attorney correctly describing the law during his summation, just as the prosecutor did in this case. See, e.g., People v. Baker, 14 NY3d 266, 273 (2010) (finding the defendant’s right to a fair trial was not violated where a prosecutor’s summation featured projector slides with “virtually verbatim definitions of depraved indifference murder and recklessness as set forth in the pattern Criminal Jury Instructions”). Indeed, defendant’s trial counsel was free to do the same, had he felt so inclined. In sum, even if the trial court should have acceded to the prosecutor’s request to give a limiting instruction, the error in not doing so was harmless and, in any event, cannot be the legal basis for a new trial. 36 CONCLUSION THIS COURT SHOULD AFFIRM THE DECISION AND ORDER OF THE APPELLATE DIVISION. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent By: /s/ DAVID P. JOHNSON Assistant District Attorney Appeals Bureau JOSEPH N. FERDENZI PETER D. CODDINGTON DAVID P. JOHNSON Assistant District Attorneys Of Counsel July 29, 2014 37